G.R. No. 108747 April 6, 1995 PABLO C. FRANCISCO, petitioner, vs.

COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

BELLOSILLO, J.: Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of speculation on the part of the accused to wager on the result of his appeal that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an "escape hatch" thus rendering nugatory the appellate court's affirmance of his conviction. Consequently, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated, who manifest spontaneity, contrition and remorse. As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990? Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he failed to control his outburst and blurted You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak . . . .Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all. Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5) separate Informations instituted by five (5) of his employees, each Information charging him with gravely maligning them on four different days, i.e., from 9 to 12 April 1980. On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61, found petitioner guilty of grave oral defamation in four (4) of the five (5) cases filed against him, i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each crime committed on each date of each case, as alleqed in the information(s)," ordered him to indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus costs of suit. 1 He was however acquitted in Crim. Case No. 105208 for persistent failure of the offended party, Edgar Colindres, to appear and testify. Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated his case to the Regional Trial Court. On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but appreciated in his favor a mitigating circumstance analogous to passion or obfuscation. Thus

. . . (he) was angry and shouting when he uttered the defamatory words complained of . . . . he must have been angry and worried "about some missing documents . . . as well as the letter of the Department of Tourism advising ASPAC about its delinquent tax of P1.2 million . . . . " the said defamatory words must have been uttered in the heat of anger which is a mitigating circumstance analogous to passion or obfuscation. 2

Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . . " 3 After he failed to interpose an appeal therefrom the decision.of the RTC became final. The case was then set for execution of judgment by the MeTC which, as a consequence, issued a warrant of arrest. Butbefore he could be arrested petitioner filed an application for probation which the MeTC denied "in the light of the ruling of the Supreme Court in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ." 4 Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his petition on the following grounds Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme Court Circular No. 28-91 of September 4, 1991. Violation of the circular is sufficient cause for dismissal of the petition. Secondly, the petitioner does not allege anywhere in the petition that he had asked the respondent court to reconsider its above order; in fact, he had failed to give the court an.opportunity to correct itself if it had, in fact, committed any error on the matter. He is, however, required to move for reconsideration of the questioned order before filing a petition for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a ground for dismissal of his petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA 18; Del Pilar Transit, Inc. v. Public Service Commission, 31-SCRA 372). Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or whimsical exercise of power in denying the petitioner's application for probation . . . . Fourthly, the petition for probation was filed by the petitioner out of time . . . . Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after conviction, upon an application by the defendant within the period of appeal, upon terms and conditions and period appropriate to each case, but expressly rules out probation where an appeal has been taken . . . . 5 The motion for reconsideration was likewise denied. In the present recourse, petitioner squirms out of each ground and seeks this Court's compassion in dispensing with the minor technicalities which may militate against his petition as he now argues before us that he has not yet lost his right to avail of probation notwithstanding his appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable him to avail himself of the benefits of the Probation Law because the original Decision of the (Metropolitan) Trial Court was such that he would not then be entitled to probation." 6 He contends that "he appealed from the judgment of the trial court precisely for the purpose of reducing the penalties imposed upon him by the said court to enable him to qualify for probation." 7

The central issue therefore is whether petitioneris still qualified to avail of probation even after appealing his conviction to the RTC which affirmed the MeTC except with regard to the duration of the penalties imposed. Petitioner is no longer eligible for probation. First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not expressly included. Probation is not a right of an accused, but rather an act of grace and clemency or immunity conferred by the state which may be granted by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted. 9 It is a special prerogative granted by law to a person or group of persons not enjoyed by others or by all. Accordingly, the grant of probation rests solely upon the discretion of the court which is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused. 10 The Probation Law should not therefore be permitted to divest the state or its government of any of the latter's prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly expressed, and no person should benefit from the terms of the law who is not clearly within them. Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted provision, offers any ambiguity or qualification. As such, the application of the law should not be subjected to any to suit the case of petitioner. While the proposition that an appeal should not bar the accused from applying for probation if the appealis solely to reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for the Court en banc in Llamado v. Court of Appeals . . . we note at the outset that Probation Law is not a penal statute. We, however, understand petitioner's argument to be really that any statutory language that appears to favor the accused in acriminal case should be given.a "liberal interpretation." Courts . . . have no authority to invoke "liberal interpretation" or "the spirit of the law" where the words of the statute themselves, andas illuminated by the history of that statute, leave no room for doubt or interpretation. We do not believe that "the spirit ofthe law" may legitimately be invoked to set at naught words which have a clear and definite meaning imparted to them by our procedural law. The "true legislative intent" must obviously be given effect by judges and all others who are charged with the application and implementation of a statute. It is absolutely essential to bear in mind, however, that the spirit of the law and the intent that is to be given effect are derived from the words actually used by the law-maker, and not from some external, mystical or metajuridical source independent of and transcending the words of the legislature. The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal" one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too frequently impede a disciplined and principled search for the meaning which the law-making authority projected when it promulgated the language which we must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as the nose on a man's face. The Courtis simplyreading Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning which

shines through the words of the statute. The first duty of the judge is to take and apply a statute as he finds it, not as he would likeit to be. Otherwise, as this Court in Yangco v. Court of First Instance warned, confusion and uncertainty will surely follow, making, we might add, stability and continuity in the law much more difficult to achieve: . . . [w]here language is plain, subtle refinements which tinge words as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with the English language as found in statutes and contracts, cutting the words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it has been submitted to some court for its interpretation and construction.
The point in this warning may be expected to become sharper as our people's grasp of English is steadily attenuated. 12

Therefore, that an appeal should notbar the accused from applying for probation if the appeal is taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." In Bersabal v. Salvador, 13 we said By its very language, the Rule is mandatory. Under the rule of statutory construction. negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory. . . . the use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced. And where the law does not distinguish the courts should not distinguish; where the law does not make exception the court should not except. Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence, there was no need to appeal if only to reduce the penalties to within the probationable period. Multiple prison terms imposed against an accused found guilty of several offenses in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to

have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with.having defamed the four (4) private complainants on four (4) different, separate days, he was stilleligible for probation, as each prison term imposed on petitioner was probationable. Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society, not just because of their demonstrated capability for serious wrong doing but because of the gravity and serious consequences of the offense they might further commit. 14 The Probation Law, as amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence, the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous, hard core criminals, and thus may avail of probation. To demonstrate the point, let ustake for instance one who is convicted in a single decision of, say, thirteen (13) counts of grave oral defamation (for having defamed thirteen [13] individuals in one outburst) and sentenced to atotal prison term of thirteen (13) years, and another who has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision mayor minimum as minimum to twelve (l2) years and one (1) day of reclusion temporal minimum as maximuin. Obviously, the latter offender is more perverse and is disqualified from availing of probation. Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could not have availed of the benefits of probation. Since he could have, although he did not, his appeal now precludes him from applying for probation. And, even if we go along with the premise of petitioner, however erroneous it may be, that the penalties imposed against him should be summed up, still he would not have qualified under the Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty would be ten (10) years and eight (8) months, which is still way beyond the limit of not more than six (6) years provided for in the Probation Law, as amended. To illustrate: 8 months multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years and 8 months, hence, following his argument, petitioner cannot still be eligible for probation as the total of his penalties exceeds six (6) years. The assertion that the Decision of the RTC should be multiplied only four (4) times since there are only four (4) Informations thereby allowing petitioner to qualify for probation, instead of sixteen (16) times, is quite difficult to understand. The penalties imposed by the MeTC cannot be any clearer "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional, in each crime committed on each date of each case, as alleged in the information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16) times. On the other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration of each penalty imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment" on account of a mitigating circumstance for each case, count or incident of grave oral defamationThere is no valid reason therefore why the penalties imposed by the RTC should be multiplied only four (4) times, and not sixteen (16) times, considering that the RTC merely affirmed the MeTC as regards the culpability of petitioner in each of the sixteen (16) cases and reducing only the duration of the penalties imposed therein. Thus

Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable doubt in each of the above entitled cases and appreciating in his favor the mitigating circumstance which is analogous to passion or obfuscation, the Court hereby sentences the said accused in each case to a straight penalty of EIGHT (8) MONTHS imprisonment, with the accessory penalties prescribed by law; and to pay the costs. 16

Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or absolved in any of the four (4) counts under each of the four (4) Informatfons, or that any part of thejudgment of conviction was reversed, or that any of the cases, counts or incidents was dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by the MeTC. Can we? What is clear is that the judgment of conviction rendered by the was affirmed with the sole modification on the duration of the penalties. In fine, considering that the multiple prison terms should not be summed up but taken separately as the totality of all the penalties is not the test, petitioner should have immediately filed an application for probation as he was already qualified after being convicted by the MeTC, if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the court and admit his liability. Consequently, in appealing the Decision of the MeTC to the RTC, petitioner lost his right to probation. For, plainly, the law considers appeal and probation mutually exclusive remedies. 17 Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by the MeTC, but to assert his innocence. Nothing more. The cold fact is that petitioner appealed his conviction to the RTC not for the sole purpose of reducing his penalties to make him eligible for probation since he was already qualified under the MeTC Decision but rather to insist on his innocence. The appeal record is wanting of any other purpose. Thus, in his Memorandum before the RTC, he raised only three (3) statements of error purportedly committed by the MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established because of his positive identification by the witness for the prosecution; (b) in giving full faith and credence to the bare statements of the private complainants despite the absence of corroborating testimonies; and, (c)in not acquitting him in all the cases," 18 Consequently, petitioner insisted that the trial court committed an error in relying on his positive identification considering that private complainants could not have missed identifying him who was their President and General Manager with whom they worked for a good number of years. Petitioner further argued that although the alleged defamatory words were uttered in the presence of other persons, mostly private complainants, co-employees and clients, not one of them was presented as a witness. Hence, according to petitioner, the trial court could not have convicted him on the basis of the uncorroborative testimony of private complainants. 19 Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete innocence, and do not simply put in issue the propriety of the penalties imposed. For sure, the accused never manifested that he was appealing only for the purpose of correcting a wrong penalty to reduce it to within the probationable range. Hence, upon interposing an appeal, more so after asserting his innocence therein, petitioner should be precluded from seeking probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative remedy of availing of the Probation Law the purpose of which is simply to prevent speculation or opportunism on the part of an accused who although already eligible does not at once apply for probation, but doing so only after failing in his appeal. The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court of Appeals does not necessarily mean that his appeal to the RTC was solely to reduce his penalties.

Conversely, he was afraid that the Court of Appeals would increase his penalties, which could be worse for him. Besides, the RTC Decision had already become final and executory because of the negligence, according to him, of his former counsel who failed to seek possible remedies within the period allowed by law. Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e), Rule 117 of the Rules of Court, 20 should have moved to quash as each of the four (4) Informations filed against him charged four (4) separate crimes of grave oral defamation, committed on four (4) separate days. His failure to do so however may now be deemed a waiver under Sec. 8 of the same Rule 21 and he can be validly convicted, as in the instant case, of as many crimes charged in the Information. Fourth. The application for probation was filed way beyond the period allowed by law. This is vital way beyond the period allowed by law and crucial. From the records it is clear that the application for probation was filed "only after a warrant for the arrest of petitioner had been issued . . . (and) almost two months after (his) receipt of the Decision" 22 of the RTC. This is a significant fact which militates against the instant petition. We quote with affirmance the well-written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals Nathanael P. De Pano, Jr., on the specific issue . . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4 of P.D. 968, as amended, provides thus: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal. . . . place the defendant on probation . . . . Going to the extreme, and assuming that an application for probation from one who had appealed the trial court's judgment is allowed by law, the petitioner's plea for probation was filed out of time. In the petition is a clear statement that the petitioner was up for execution of judgment before he filed his application for probation. P.D. No. 968 says that the application for probation must be filed "within the period for perfecting an appeal;" but in this case, such period for appeal had passed, meaning to say that the Regional Trial Court's decision had attained finality, and no appeal therefrom was possible under the law. Even granting that an appeal from the appellate court's judgment is contemplated by P.D. 968, in addition to the judgment rendered by the trial court, that appellate judgment had become final and was, in fact, up for actual execution before the application for probation was attempted by the petitioner. The petitioner did not file his application for probation before the finality of the said judgment; therefore, the petitioner's attempt at probation was filed too late. Our minds cannot simply rest easy on. the proposition that an application for probation may yet be granted even if it was filed only after judgment has become final, the conviction already set for execution and a warrant of arrest issued for service of sentence. The argument that petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final, for him to file the application for probation with the trial court, is to stretch the law beyond comprehension. The law, simply, does not allow probation after an appeal has been perfected.

Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and petitioner appealed from his conviction by the MeTC although the imposed penalties were already probationable, and in his appeal, he asserted only his innocence and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he filed an application for probation outside the period for perfecting an appeal granting he was otherwise eligible for probation, the instant petition for review should be as it is hereby DENIED. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

Separate Opinions

MENDOZA, J., dissenting: I vote to reverse the judgment of the Court of Appeals in this case. I. The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the fact that petitioner had appealed his sentence before filing his application for probation. Reliance is placed on the literal application of 4 of the Probation Law of 1976 ,as amended, which provides as follows: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only probation shall be filed with the trial court application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. Thus, under 4 the accused is given the choice of appealing his sentence or applying for probation. If he appeals, he cannot later apply for probation. If he opts for probation, he can not appeal. Implicit in the choice, however, is that the accused is not disqualified for probation under any of the cases mentioned in 9, to wit:

Sec. 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six years; (b) convicted of subversion or any crime against the national security or the public order; (c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. (d) who have been once on probation under the provisions of this Decree; and (e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. Consequently, if under the sentence given to him an accused is not qualified for probation, as when the penalty imposed on him by the court singly or in their totality exceeds six (6) years but on appeal the sentence is modified so that he becomes qualified, I believe that the accused should not be denied the benefit of probation. Before its amendment by P.D. No. 1990, the law allowed even encouraged speculation on the outcome of appeals by permitting the accused to apply for probation after he had appealed and failed to obtain an acquittal. 1It was to change this that 4 was amended by P.D. No. 1990 by expressly providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his conviction is affirmed. 2 There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of either appealing from the decision of the trial court or applying for probation, the purpose is to deny him the right to probation in cases like the one at bar where he becomes eligible for probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears repeating, is simply to prevent speculation or opportunism on the part of an accused who; although eligible for probation, does not at once apply for probation, doing so only after failing in his appeal. In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally motivated by a desire to be acquitted. While acquittal might have been an alluring prospect for him, what is clear is that he had a reason for appealing because under the sentence given to him he was disqualified to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1 year and 8 months of prision correccional for "each crime committed on each date of each case, as alleged in the information[s]." This meant, as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since he was found guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment allowed by 9(a) and disqualified him for probation. It was only after this penalty was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term of 2 years and 8 months in the four cases that petitioner became eligible for probation. Then he did not appeal further although he could have done so.

The Court of Appeals, while acknowledging that "there may be some space not covered by the present law on probation . . . where in its original state, the petitioner was disqualified from applying for probation under Sec. 9 of the Decree, becoming eligible for probation only under the terms of the judgment on appeal," nevertheless felt bound by the letter of 4: "No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." The majority opinion, affirming the ruling, states that to allow probation in this case would be to go against the "clear and express mandate of sec. 4 of the Probation Law, as amended." (p. 9) To regard probation, however, as a mere privilege, to be given to the accused only where it clearly appears he comes within its letter is to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law it is not but to achieve its beneficent purpose. (Santos To v. Pao, 120 SCRA 8, 14 (1983)). The niggardly application of the law would defeat its purpose to "help the probationer develop into a law-abiding and selfrespecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save government funds that may otherwise be spent for his food and maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.) The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985) instead commends itself to me: Regarding this, it suffices to state that the Probation Law was never intended to limit the right of an accused person to present all relevant evidence he can avail of in order to secure a verdict of acquittal or a reduction of the penalty. Neither does the law require a plea of guilty on the part of the accused to enable him to avail of the benefits of probation. A contrary view would certainly negate the constitutional right of an accused to be presumed innocent until the contrary is proved. As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the penalty imposed on him by the MeTC had been reduced by the RTC so that he thereby became qualified for probation, he did not appeal further. The majority says that this was because he was afraid that if he did the penalty could be increased. That possibility, however, was also there when he appealed from the MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the penalty would be raised as the chance that he would he acquitted. It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not simply questioned the propriety of his sentence, but no more so does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is otherwise eligible for probation. It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning, later acknowledges his guilt and shows contrition after he is found guilty. So does an accused who appeals a sentence because under it he is not qualified for probation, but after the penalty is reduced, instead of appealing further, accepts the new sentence and applies for probation. This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which it was held that because the petitioner had appealed his sentence, he could not subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that case could have applied for probation as his original sentence of one year of prision correccional did not disqualify him for probation. That case fell squarely within the ambit of the prohibition in 4 that one who applies for probation must not "have perfected an appeal from the judgment of conviction."

II. It is contended that petitioner did not have to appeal because under the original sentence meted out to him he was not disqualified for probation. The issue here is whether the multiple prison terms imposed on petitioner are to be considered singly or in their totality for the purpose of 9(a) which disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than six years." I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in each crime committed on each date of each case" and as there are four offenses of grave oral defamation against petitioner in each of the four cases, the total prison term which he would have to serve was 26 years and 8 months. This is clearly beyond the probationable maximum allowed by law. It is said, however, that even if the totality of the prison terms is the test, the modified sentence imposed by the RTC would not qualify the petitioner for probation because he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8 months. The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases which are jointly tried and decided. For example, 9(c) disqualifies from probation persons "who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had been found guilty of estafa in five criminal cases, was qualified for probation because although the crimes had been committed on different dates he was found guilty of each crime on the same day. As this Court noted, "Rura was sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal case the sentence was three (3) months and fifteen (15) days. That the duration of a convict's sentence is determined by considering the totality of several penalties for different offenses committed is also implicit in the provisions of the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70) It is said that the basis of disqualification under 9 is the gravity of the offense committed and the penalty imposed. I agree. That is why I contend that a person who is convicted of multiple grave oral defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a graver offense than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty of 1 year and 8 months. The relevant comparison is between an accused convicted of one offense of grave oral defamation and another one convicted of the same offense, say four or more times. The relevant comparison is not, as the majority says, between an accused found guilty of grave oral defamation four or more times and another one found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day of prision mayor to 12 years and 1 day of reclusion temporal. III. Finally, it is said that there is a more fundamental reason for denying probation in this case and that is that petitioner applied for probation only after his case had been remanded to the MeTC for the execution of its decision as modified. But that is because 4 provides that "an application for probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await

the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final. The decision of the Court of Appeals should be REVERSED and respondent judge of the Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's application for probation. VITUG, J., concurring: While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting opinion that an accused, who originally is not qualified for probation because the penalty imposed on him by a court a quoexceeds six (6) years, should not be denied that benefit of probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to second the other proposition that multiple prison terms imposed by a court should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period." The use of the word maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the legislative intent. Thus, I still must vote for the denial of the petition.

Separate Opinions MENDOZA, J., dissenting: I vote to reverse the judgment of the Court of Appeals in this case. I. The principal basis for the affirmance of the decision of the Court of Appeals denying probation is the fact that petitioner had appealed his sentence before filing his application for probation. Reliance is placed on the literal application of 4 of the Probation Law of 1976 ,as amended, which provides as follows: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only probation shall be filed with the trial court application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. Thus, under 4 the accused is given the choice of appealing his sentence or applying for probation. If he appeals, he cannot later apply for probation. If he opts for probation, he can not appeal. Implicit in the choice, however, is that the accused is not disqualified for probation under any of the cases mentioned in 9, to wit: Sec. 9. Disqualified Offenders. The benefits of this Decree shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six years; (b) convicted of subversion or any crime against the national security or the public order; (c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. (d) who have been once on probation under the provisions of this Decree; and (e) who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. Consequently, if under the sentence given to him an accused is not qualified for probation, as when the penalty imposed on him by the court singly or in their totality exceeds six (6) years but on appeal the sentence is modified so that he becomes qualified, I believe that the accused should not be denied the benefit of probation. Before its amendment by P.D. No. 1990, the law allowed even encouraged speculation on the outcome of appeals by permitting the accused to apply for probation after he had appealed and failed to obtain an acquittal. 1It was to change this that 4 was amended by P.D. No. 1990 by expressly providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." For an accused, despite the fact that he is eligible for probation, may be tempted to appeal in the hope of obtaining an acquittal if he knows he can any way apply for probation in the event his conviction is affirmed. 2 There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to the choice of either appealing from the decision of the trial court or applying for probation, the purpose is to deny him the right to probation in cases like the one at bar where he becomes eligible for probation only because on appeal his sentence is reduced. The purpose of the amendment, it bears repeating, is simply to prevent speculation or opportunism on the part of an accused who; although eligible for probation, does not at once apply for probation, doing so only after failing in his appeal. In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was principally motivated by a desire to be acquitted. While acquittal might have been an alluring prospect for him, what is clear is that he had a reason for appealing because under the sentence given to him he was

disqualified to apply for probation. The MeTC had originally sentenced him to 1 year and 1 day to 1 year and 8 months of prision correccional for "each crime committed on each date of each case, as alleged in the information[s]." This meant, as the majority opinion points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8 months sixteen times, since he was found guilty of four crimes of grave oral defamation in each of four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus exceeded the limit of six (6) years of imprisonment allowed by 9(a) and disqualified him for probation. It was only after this penalty was reduced on appeal to a straight penalty of eight months imprisonment in each case or to a total term of 2 years and 8 months in the four cases that petitioner became eligible for probation. Then he did not appeal further although he could have done so. The Court of Appeals, while acknowledging that "there may be some space not covered by the present law on probation . . . where in its original state, the petitioner was disqualified from applying for probation under Sec. 9 of the Decree, becoming eligible for probation only under the terms of the judgment on appeal," nevertheless felt bound by the letter of 4: "No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." The majority opinion, affirming the ruling, states that to allow probation in this case would be to go against the "clear and express mandate of sec. 4 of the Probation Law, as amended." (p. 9) To regard probation, however, as a mere privilege, to be given to the accused only where it clearly appears he comes within its letter is to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law it is not but to achieve its beneficent purpose. (Santos To v. Pao, 120 SCRA 8, 14 (1983)). The niggardly application of the law would defeat its purpose to "help the probationer develop into a law-abiding and selfrespecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of a prison record, to save government funds that may otherwise be spent for his food and maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v. Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.) The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985) instead commends itself to me: Regarding this, it suffices to state that the Probation Law was never intended to limit the right of an accused person to present all relevant evidence he can avail of in order to secure a verdict of acquittal or a reduction of the penalty. Neither does the law require a plea of guilty on the part of the accused to enable him to avail of the benefits of probation. A contrary view would certainly negate the constitutional right of an accused to be presumed innocent until the contrary is proved. As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after the penalty imposed on him by the MeTC had been reduced by the RTC so that he thereby became qualified for probation, he did not appeal further. The majority says that this was because he was afraid that if he did the penalty could be increased. That possibility, however, was also there when he appealed from the MeTC to the RTC. For by appealing the sentence of the MeTC, petitioner took as much risk that the penalty would be raised as the chance that he would he acquitted. It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not simply questioned the propriety of his sentence, but no more so does an accused who, upon being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is otherwise eligible for probation.

It is argued that there is a difference because an accused who pleads "not guilty'' in the beginning, later acknowledges his guilt and shows contrition after he is found guilty. So does an accused who appeals a sentence because under it he is not qualified for probation, but after the penalty is reduced, instead of appealing further, accepts the new sentence and applies for probation. This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in which it was held that because the petitioner had appealed his sentence, he could not subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that case could have applied for probation as his original sentence of one year of prision correccional did not disqualify him for probation. That case fell squarely within the ambit of the prohibition in 4 that one who applies for probation must not "have perfected an appeal from the judgment of conviction." II. It is contended that petitioner did not have to appeal because under the original sentence meted out to him he was not disqualified for probation. The issue here is whether the multiple prison terms imposed on petitioner are to be considered singly or in their totality for the purpose of 9(a) which disqualifies from probation those "sentenced to serve a maximum term of imprisonment of more than six years." I submit that they should be taken in their totality. As the sentence originally imposed on petitioner was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional in each crime committed on each date of each case" and as there are four offenses of grave oral defamation against petitioner in each of the four cases, the total prison term which he would have to serve was 26 years and 8 months. This is clearly beyond the probationable maximum allowed by law. It is said, however, that even if the totality of the prison terms is the test, the modified sentence imposed by the RTC would not qualify the petitioner for probation because he has to suffer imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8 months. The policy of the law indeed appears to be to treat as only one multiple sentences imposed in cases which are jointly tried and decided. For example, 9(c) disqualifies from probation persons "who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had been found guilty of estafa in five criminal cases, was qualified for probation because although the crimes had been committed on different dates he was found guilty of each crime on the same day. As this Court noted, "Rura was sentenced to a total prison term of seventeen (l7) months and twenty-five (25) days. In each criminal case the sentence was three (3) months and fifteen (15) days. That the duration of a convict's sentence is determined by considering the totality of several penalties for different offenses committed is also implicit in the provisions of the Revised Penal Code on the accumulation of penalties. (See e.g., arts. 48 and 70) It is said that the basis of disqualification under 9 is the gravity of the offense committed and the penalty imposed. I agree. That is why I contend that a person who is convicted of multiple grave oral defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a graver offense than another who is guilty of only offense of grave oral defamation and sentenced to a single penalty of 1 year and 8 months. The relevant comparison is between an accused convicted of one offense of

grave oral defamation and another one convicted of the same offense, say four or more times. The relevant comparison is not, as the majority says, between an accused found guilty of grave oral defamation four or more times and another one found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day of prision mayor to 12 years and 1 day of reclusion temporal. III. Finally, it is said that there is a more fundamental reason for denying probation in this case and that is that petitioner applied for probation only after his case had been remanded to the MeTC for the execution of its decision as modified. But that is because 4 provides that "an application for probation shall be filed with the trial court." In the circumstances of this case, petitioner had to await the remand of the case to the MeTC, which necessarily must be after the decision of the RTC had become final. The decision of the Court of Appeals should be REVERSED and respondent judge of the Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's application for probation. VITUG, J., concurring: While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting opinion that an accused, who originally is not qualified for probation because the penalty imposed on him by a court a quoexceeds six (6) years, should not be denied that benefit of probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am unable, however, to second the other proposition that multiple prison terms imposed by a court should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or disqualification of an applicant for probation charged with, and sentenced to serve multiple prison terms for, several offenses, "the number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period." The use of the word maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should be enough to reveal that such has been the legislative intent. Thus, I still must vote for the denial of the petition. Footnotes 1 Decision penned by Judge Andres B. Reyes. Jr., pp. 13-14; Rollo, pp. 46-47. 2 Decision penned-by Judge Lucia V. Isnani, pp. 12-13; Rollo, pp. 59-60. 3 Ibid. 4 Order of Judge Maximo C. Contreras, Metropolitan Trial Court of Makati, Br. 61, Rollo, p. 67. 5 Decision of the Special Eleventh Division penned by then Associate Justice Nathanael P. De Pano, Jr. (now Presiding Justice), concurred in by Associate Justices Jesus M. Elbinias and Consuelo Y. Santiago.

6 Urgent Petition for Review, p, 15; Rollo, p, 16. 7 Id., p, 10; Rollo, p.11. 8 Baclayon v. Mutia, G.R. No. 59298, 30 April 1984, 129 SCRA 149; Amandy v. People, G.R. No. 76258, 23 May 1988, 161 SCRA 436. 9 34 Words and Phrases 111. 10 Bala v. Martinez, G.R. No. 67301, 29 January 1990, 181 SCRA 459. 11 G.R. No. 84850, 29 June 1989, 174 SCRA 566. 12 See Note 11, pp. 577-578. 13 No. L - 35910, 21 July 1978, 84 SCRA 176, citing McGee v. Republic, 94 Phil. 820 (1954). 14 Bautista, E., Statutory Concept and Objectives, Coverage and Selection Criteria for Probation. Lecture delivered during the 1977 Regional Seminar on Probation, Philippine International Convention Center. 15 Art. 9 defines grave felonies as those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Art. 25. Art. 25 On the other hand lists death as capital punishment, and reclusion perpetua, reclusion temporal, perpetual or temporary absolute disqualification, perpetual or temporary special disqualification, and prision mayor as afflictive penalties. 16 Decision of the RTC, p. 13; Rollo, p. 60. 17 Bernardo v. Balagot, G.R. No. 86561, 10 November 1992, 215 SCRA 526. 18 Decision of the RTC, p. 2; Rollo, p. 49. 19 Ibid. 20 Section 3, par. (e), Rule 117, Rules of Court, provides: "The accused may move to quash the complaint or information on any of the following grounds: . . . that more than one offense is charged . . . . 21 Section 8, Rule 117, Rules of Court, provides: "The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to alleged the same in the said motion shall be deemed a waiver of the grounds of a motion to quash . . . . 22 Urgent Petition for Review, p. 5; Rollo, P 6. MENDOZA, J., dissenting:

1 As originally promulgated on July 24, 1976, P.D. No. 968, 4 provided: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced a defendant and upon application at any time of said defendant, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. An order granting or denying probation shall not be appealable. (Emphasis added) Thus, under the law as originally promulgated, any time after the trial court had convicted and sentenced the accused and even if he had taken an appeal, the trial court could grant him probation in the event he is convicted. On December 1, 1977, 4 of the law was again amended by P.D. No. 1257 so as to read as follows: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced a defendant but before he begins to serve his sentence and upon his application, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. The prosecuting officer concerned shall be notified by the court of the filing of the application for probation and he may submit his comment on such application within ten days from receipt of the notification. Probation may be granted whether the sentence imposes a term of imprisonment or a fine with subsidiary imprisonment in case of insolvency. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal. In the latter case, however, if the application is filed on or after the date of the judgment of the appellate court, said application shall be acted upon by the trial court on the basis of the judgment of the appellate court. An order granting or denying probation shall not be appealable. (Emphasis added) This amendment limited the period for applying for probation to the point just "before he begins to serve his sentence." This meant not only after an appeal had been taken but even after a judgment had been rendered by the appellate court and after the latter's judgment had become final. Hence the proviso that "the application [for probation] shall be acted upon by the trial court on the basis of the judgment of the appellate court."

On October 5, 1985, 4 of the Probation Law was again amended to further limit the period for applying for probation to the "period for perfecting an appeal." The purpose was to confine the accused to the choice of either applying for probation or appealing. While heretofore an accused could appeal and, after his appeal had failed, apply for probation, under the amendatory Decree, this is no longer possible. If he appeals he cannot later apply for probation. If he applies for probation he cannot later appeal. As amended by P.D. No. 1990, 4 reads: Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. (Emphasis added) 2 The preamble of P.D. No. 1990 states: WHEREAS, it has been the sad experience that persons who are convicted of offenses and who may be entitled to probation still appeal the judgment of conviction even up to the Supreme Court, only to pursue their application for probation when their appeal is eventually dismissed; WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too much time and effort, not to mention the huge expenses of litigation, on the part of the State; WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting accused persons from the lower courts up to the Supreme Court, are often times rendered nugatory when, after the appellate court finally affirms the judgment of conviction, the defendant applies for and is granted probation; WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated; (Emphasis added)

ARNEL COLINARES, Petitioner,

G.R. No. 182748 Present: CORONA, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, SERENO, REYES, and PERLAS-BERNABE, JJ. Promulgated: December 13, 2011

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

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

DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what distinguishes frustrated homicide from attempted homicide; and c) when an accused who appeals may still apply for probation on remand of the case to the trial court. The Facts and the Case

The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated homicide before the Regional Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.[1] Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15 inches in diameter. Rufino fell unconscious as Jesus fled. Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the roadside. Ananias tried to help but someone struck him with something hard on the right temple, knocking him out. He later learned that Arnel had hit him. Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house. He sought the help of a barangay tanod and they brought Rufino to the hospital. Dr. Albert Belleza issued a Medico-Legal Certificate[2] showing that Rufino suffered two lacerated wounds on the forehead, along the hairline area. The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go home after initial treatment. The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times on the back. Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino on the head with it. When Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone. Arnel then fled and hid in his sisters house. On September 4, 2000, he voluntarily surrendered at the Tigaon Municipal Police Station. Diomedes testified that he, Rufino, Jesus, and Ananias attended a prewedding party on the night of the incident. His three companions were all

drunk. On his way home, Diomedes saw the three engaged in heated argument with Arnel. On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation. Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely affirmed the RTC decision but deleted the award for lost income in the absence of evidence to support it.[3] Not satisfied, Arnel comes to this Court on petition for review. In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to submit their respective positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months ofprision correccional, as maximum, he could still apply for probation upon remand of the case to the trial court. Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court metes out a new penalty on him that makes his offense probationable. The language and spirit of the probation law warrants such a stand. The Solicitor General, on the other hand, argues that under the Probation Law no application for probation can be entertained once the accused has perfected his appeal from the judgment of conviction. The Issues Presented The case essentially presents three issues: 1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone; 2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide; and

3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable penalty, whether or not he may still apply for probation on remand of the case to the trial court. The Courts Rulings One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-defense when he hit Rufino back with a stone. When the accused invokes self-defense, he bears the burden of showing that he was legally justified in killing the victim or inflicting injury to him. The accused must establish the elements of self-defense by clear and convincing evidence. When successful, the otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused.[4] In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the person whom the offender killed or injured committed unlawful aggression; (2) that the offender employed means that is reasonably necessary to prevent or repel the unlawful aggression; and (3) that the person defending himself did not act with sufficient provocation.[5] If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent or repel and the other two requisites of self-defense would have no basis for being appreciated. Unlawful aggression contemplates an actual, sudden, and unexpected attack or an imminent danger of such attack. A mere threatening or intimidating attitude is not enough. The victim must attack the accused with actual physical force or with a weapon.[6] Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone testified that Jesus and Ananias rained fist blows on him and that Rufino and Ananias tried to stab him. No one corroborated Arnels testimony that it was Rufino who started it. Arnels only other witness, Diomedes, merely testified that he saw those involved having a heated argument in the middle of the street. Arnel did not submit any medical certificate to prove his point that he suffered injuries in the hands of Rufino and his companions.[7] In contrast, the three witnessesJesus, Paciano, and Ananiastestified that Arnel was the aggressor. Although their versions were mottled with inconsistencies, these do not detract from their core story. The witnesses were one in what Arnel did and when and how he did it. Compared to Arnels testimony,

the prosecutions version is more believable and consistent with reality, hence deserving credence.[8] Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated homicide when the wounds he inflicted on Rufino, his victim, were not fatal and could not have resulted in death as in fact it did not? The main element of attempted or frustrated homicide is the accuseds intent to take his victims life. The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent.[9] And the intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim.[10] Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked Rufino out. Considering the great size of his weapon, the impact it produced, and the location of the wounds that Arnel inflicted on his victim, the Court is convinced that he intended to kill him. The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In Palaganas v. People,[11] we ruled that when the accused intended to kill his victim, as shown by his use of a deadly weapon and the wounds he inflicted, but the victim did not die because of timely medical assistance, the crime is frustrated murder or frustrated homicide. If the victims wounds are not fatal, the crime is only attempted murder or attempted homicide. Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victims wounds. While Dr. Belleza testified that head injuries are always very serious,[12] he could not categorically say that Rufinos wounds in this case were fatal. Thus:
Q: A: Q: A: Doctor, all the injuries in the head are fatal? No, all traumatic injuries are potentially treated. But in the case of the victim when you treated him the wounds actually are not fatal on that very day? I could not say, with the treatment we did, prevent from becoming fatal. But on that case the patient preferred to go home at that time.

Q: A:

The findings also indicated in the medical certificate only refers to the length of the wound not the depth of the wound? When you say lacerated wound, the entire length of the layer of scalp. So you could not find out any abrasion? It is different laceration and abrasion so once the skin is broken up the label of the frontal lo[b]e, we always call it lacerated wound, but in that kind of wound, we did not measure the depth.[13]

Q: A:

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred fracture or that he bled internally as a result of the pounding of his head. The wounds were not so deep, they merely required suturing, and were estimated to heal in seven or eight days. Dr. Belleza further testified:
Q: A: Q: A: So, in the medical certificate the wounds will not require surgery? Yes, Madam. The injuries are slight? 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus the problem the contusion that occurred in the brain. xxxx Q: A: What medical intervention that you undertake? We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds. For how many days did he stay in the hospital? Head injury at least be observed within 24 hours, but some of them would rather go home and then come back. So the patient did not stay 24 hours in the hospital? No, Your Honor. Did he come back to you after 24 hours?

Q: A:

Q: A: Q:

A:

I am not sure when he came back for follow-up.[14]

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecutions claim that Rufino would have died without timely medical intervention. Thus, the Court finds Arnel liable only for attempted homicide and entitled to the mitigating circumstance of voluntary surrender. Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide. But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the RTC. Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.[15] Since Arnel appealed his conviction for frustrated homicide, he should be deemed permanently disqualified from applying for probation. But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he certainly does not have. What he has is the right to apply for that privilege. The Court finds that his maximum jail term should only be 2 years and 4 months. If the Court allows him to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case. Secondly, it is true that under the probation law the accused who appeals from the judgment of conviction is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial

court, now set aside; and,two, a conviction for attempted homicide by the Supreme Court. If the Court chooses to go by the dissenting opinions hard position, it will apply the probation law on Arnel based on the trial courts annulled judgment against him. He will not be entitled to probation because of the severe penalty that such judgment imposed on him. More, the Supreme Courts judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial courts judgmenteven if this has been found in error. And, worse, Arnel will now also be made to pay for the trial courts erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there? The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the ruling of this Court in Francisco v. Court of Appeals[16] that the probation law requires that an accused must not have appealed his conviction before he can avail himself of probation. But there is a huge difference between Francisco and this case. In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral defamation and sentenced him to a prison term of one year and one day to one year and eight months of prision correccional, a clearly probationable penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When the acquittal did not come, he wanted probation. The Court would not of course let him. It served him right that he wanted to save his cake and eat it too. He certainly could not have both appeal and probation. The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before he can avail himself of probation. This requirement outlaws the element of speculation on the part of the accusedto wager on the result of his appealthat when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his sentence inevitable, he now applies for probation as an escape hatch thus rendering nugatory the appellate courts affirmance of his conviction.[17] Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice between appeal and probation. He was not in a position to say, By taking this appeal, I choose no t to

apply for probation. The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation under this Courts greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option to try for probation, forfeit their right to apply for that privilege. Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that the evidence at best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a probationable penalty. In a way, therefore, Arnel sought from the beginning to bring down the penalty to the level where the law would allow him to apply for probation. In a real sense, the Courts finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two years and four months maximum. This would have afforded Arnel the right to apply for probation. The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent interpretation of the statutory provisions.[18] As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a mere privilege to be given to the accused only where it clearly appears he comes within its letter; to do so would be to disregard the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to achieve its beneficent purpose.[19] One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed from the trial courts judgment of conviction would not be consistent with the provision of Section 2 that the probation law should be interpreted to provide an opportunity for the reformation of a penitent offender. An accused like Arnel who appeals from a judgment convicting him, it is claimed, shows no penitence. This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of the wrong crime, frustrated

homicide, that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months. Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending him straight behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent offender, defeating the very purpose of the probation law. At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable. The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation when the new penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court, subject to probation? WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR 29639, FINDSpetitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate penalty from four months of arrestomayor, as minimum, to two years and four months of prision correccional, as maximum, and to pay Rufino P. Buena the amount of P20,000.00 as moral damages, without prejudice to petitioner applying for probation within 15 days from notice that the record of the case has been remanded for execution to the Regional Trial Court of San Jose, Camarines Sur, in Criminal Case T-2213.

[G.R. No. 138896. June 20, 2000] BARANGAY SAN ROQUE, TALISAY, CEBU, petitioner, vs. Heirs of FRANCISCO PASTOR, namely: EUGENIO SYLIANCO, TEODORO SYLIANCO, ISABEL SYLIANCO, EUGENIA S. ONG, LAWRENCE SYLIANCO, LAWSON SYLIANCO, LAWINA S. NOTARIO, LEONARDO SYLIANCO JR. and LAWFORD SYLIANCO,respondents. DECISION PANGANIBAN, J.: An expropriation suit is incapable of pecuniary estimation. Accordingly, it falls within the jurisdiction of the regional trial courts, regardless of the value of the subject property.

The Case Before us is a Petition for Review on Certiorari assailing the March 29, 1999 Order of the Regional Trial Court (RTC) of Cebu City (Branch 58) in Civil Case No. CEB-21978, in which it dismissed a Complaint for eminent domain. It ruled as follows:
[1]

"Premises considered, the motion to dismiss is hereby granted on the ground that this Court has no jurisdiction over the case. Accordingly, the Orders dated February 19, 1999 and February 26, 1999, as well as the Writ of Possession issued by virtue of the latter Order are hereby recalled for being without force and effect."
[2]

Petitioner also challenges the May 14, 1999 Order of the RTC denying reconsideration.

The Facts Petitioner filed before the Municipal Trial Court (MTC) of Talisay, Cebu (Branch 1) a Complaint to expropriate a property of the respondents. In an Order dated April 8, 1997, the MTC dismissed the Complaint on the ground of
[3]

lack of jurisdiction. It reasoned that "[e]minent domain is an exercise of the power to take private property for public use after payment of just compensation. In an action for eminent domain, therefore, the principal cause of action is the exercise of such power or right. The fact that the action also involves real property is merely incidental. An action for eminent domain is therefore within the exclusive original jurisdiction of the Regional Trial Court and not with this Court."
[4]

Assailed RTC Ruling The RTC also dismissed the Complaint when filed before it, holding that an action for eminent domain affected title to real property; hence, the value of the property to be expropriated would determine whether the case should be filed before the MTC or the RTC. Concluding that the action should have been filed before the MTC since the value of the subject property was less thanP20,000, the RTC ratiocinated in this wise: "The instant action is for eminent domain. It appears from the current Tax Declaration of the land involved that its assessed value is only One Thousand Seven Hundred Forty Pesos (P1,740.00). Pursuant to Section 3, paragraph (3), of Republic Act No. 7691, all civil actions involving title to, or possession of, real property with an assessed value of less thanP20,000.00 are within the exclusive original jurisdiction of the Municipal Trial Courts. In the case at bar, it is within the exclusive original jurisdiction of the Municipal Trial Court of Talisay, Cebu, where the property involved is located. "The instant action for eminent domain or condemnation of real property is a real action affecting title to or possession of real property, hence, it is the assessed value of the property involved which determines the jurisdiction of the court. That the right of eminent domain or condemnation of real property is included in a real action affecting title to or possession of real property, is pronounced by retired Justice Jose Y. Feria, thus, Real actions are those affecting title to or possession of real property. These include partition or condemnation of, or foreclosures of mortgage on, real property. x x x"
[5]

Aggrieved, petitioner appealed directly to this Court, raising a pure question of law. In a Resolution dated July 28, 1999, the Court denied the Petition for Review "for being posted out of time on July 2, 1999, the due date being June 2, 1999, as the motion for extension of time to file petition was denied in the resolution of July 14, 1999." In a subsequent Resolution dated October 6, 1999, the Court reinstated the Petition.
[6] [7] [8]

Respondents, on the other hand, contend that the Complaint for Eminent Domain affects the title to or possession of real property. Thus, they argue that the case should have been brought before the MTC, pursuant to BP 129 as amended by Section 3 (3) of RA 7691. This law provides that MTCs shall have exclusive original jurisdiction over all civil actions that involve title to or possession of real property, the assessed value of which does not exceed twenty thousand pesos or, in civil actions in Metro Manila, fifty thousand pesos exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs. We agree with the petitioner that an expropriation suit is incapable of pecuniary estimation. The test to determine whether it is so was laid down by the Court in this wise: "A review of the jurisprudence of this Court indicates that in determining whether an action is one the subject matter of which is not capable of pecuniary estimation, this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance. The rationale of the rule is plainly that the second class cases, besides the determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of courts of first instance, which were the lowest courts of record at

the time that the first organic laws of the Judiciary were enacted allocating jurisdiction (Act 136 of the Philippine Commission of June 11, 1901)."
10

In the present case, an expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the exercise by the government of its authority and right to take private property for public use. In National Power Corporation v. Jocson, the Court ruled that expropriation proceedings have two phases:
11 12

"The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint. An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too, would an order of condemnation be a final one, for thereafter as the Rules expressly state, in the proceedings before the Trial Court, no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard. "The second phase of the eminent domain action is concerned with the determination by the court of the just compensation for the property sought to be taken. This is done by the Court with the assistance of not more than three (3) commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. x x x" It should be stressed that the primary consideration in an expropriation suit is whether the government or any of its instrumentalities has complied with the requisites for the taking of private property. Hence, the courts determine the authority of the government entity, the necessity of the expropriation, and the observance of due process. In the main, the subject of an expropriation suit is the governments exercise of eminent domain, a matter that is incapable of pecuniary estimation.
13

True, the value of the property to be expropriated is estimated in monetary terms, for the court is duty-bound to determine the just compensation for it. This, however, is merely incidental to the expropriation suit. Indeed, that amount is determined only after the court is satisfied with the propriety of the expropriation. Verily, the Court held in Republic of the Philippines v. Zurbano that "condemnation proceedings are within the jurisdiction of Courts of First Instance," the forerunners of the regional trial courts. The said case was decided during the effectivity of the Judiciary Act of 1948 which, like BP 129 in respect to RTCs, provided that courts of first instance had original jurisdiction over "all civil actions in which the subject of the litigation is not capable of pecuniary estimation." The 1997 amendments to the Rules of Court were not intended to change these jurisprudential precedents.
14 15

We are not persuaded by respondents argument that the present action involves the title to or possession of a parcel of land. They cite the observation of retired Justice Jose Y. Feria, an eminent authority in remedial law, that condemnation or expropriation proceedings are examples of real actions that affect the title to or possession of a parcel of land.
16

Their reliance is misplaced. Justice Feria sought merely to distinguish between real and personal actions. His discussion on this point pertained to the nature of actions, not to the jurisdiction of courts. In fact, in his pre-bar lectures, he emphasizes that jurisdiction over eminent domain cases is still within the RTCs under the 1997 Rules. To emphasize, the question in the present suit is whether the government may expropriate private property under the given set of circumstances. The government does not dispute respondents title to or possession of the same. Indeed, it is not a question of who has a better title or right, for the government does not even claim that it has a title to the property. It merely asserts its inherent sovereign power to "appropriate and control individual property for the public benefit, as the public necessity, convenience or welfare may demand."
17

WHEREFORE, the Petition is hereby GRANTED and the assailed Orders SET ASIDE. The Regional Trial Court is directed to HEAR the case. No costs. SO ORDERED.

CIVIL SERVICE COMMISSION, Petitioner,

G.R. No. 185749 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ. Promulgated:

- versus -

HERMINIGILDO L. ANDAL, Respondent. December 16, 2009 x--------------------------------------------------x

DECISION
CARPIO, J.:

The Case Before this Court is a petition for review on certiorari filed by the Civil Service Commission (CSC) seeking to set aside the Decision dated 22 September 2008[1] and the Resolution dated 2 December 2008[2] of the Court of Appeals[3] in CA-G.R. SP No. 100452. The Court of Appeals set aside the CSC Decision dated 25 May 2005, Resolution No. 062255 dated 20 December 2006 and Resolution No.

071493 dated 1 August 2007 in Administrative Case No. 00-12-027. The motion for reconsideration filed thereafter was denied.

The Facts

Herminigildo L. Andal (respondent) holds the position of Security Guard II in the Sandiganbayan. On 24 January 2000, he filed an application to take the Career Service Professional Examination-Computer Assisted Test (CSPE-CAT) and was admitted to take the examination. The examination results showed that respondent passed the examination with a rating of 81.03%. On 25 January 2000, Arlene S. Vito (Vito), claiming to have been authorized by respondent to secure the results of the examination, presented a handwritten authorization allegedly signed by respondent. Upon verification and comparison of the pictures attached to the Picture Seat Plan and the identification card of respondent which Vito presented, there appeared a dissimilarity in the facial features. Bella A. Mitra, then Officer-in-Charge of the Examination, Placement and Services Division (EPSD) of the Civil Service Commission-National Capital Region (CSC-NCR), issued a Memorandum on the alleged impersonation of respondent and the matter was referred to the Legal Affairs Division to conduct a fact-finding investigation. On 29 November 2000, the CSC-NCR formally charged respondent with dishonesty. A formal investigation of the case was scheduled on 4 June 2001, 21 November 2001, 5 February 2002, and 10 July 2002. Notices were sent to respondents last known address as indicated in his Application Form but respondent failed to appear on the scheduled hearings. Respondent was deemed to have waived his right to appear at the formal investigation and the case proceeded ex parte. On 5 August 2005, the CSC-NCR rendered judgment finding respondent guilty of dishonesty and imposing upon him the penalty of dismissal from the service.

Aggrieved, respondent appealed to the CSC which issued Resolution No. 062255 dated 20 December 2006, the dispositive portion of which reads:
WHEREFORE, the appeal of Herminigildo L. Andal is hereby DISMISSED. Accordingly, the Decision dated May 25, 2005 of the Civil Service Commission National Capital Region (CSC-NCR), Quezon City, finding him guilty of Dishonesty and imposing upon him the penalty of dismissal from the service with accessory penalties of disqualification from re-entering government service, forfeiture of retirement benefits, and bar from taking any civil service examination, pursuant to Section 57 of the Uniformed Rules, is AFFIRMED.[4]

Respondent moved for a reconsideration of the CSC judgment but the motion was denied in the CSC Resolution No. 071493 dated 1 August 2007. Respondent elevated the case to the Court of Appeals on a petition for review under Rule 43. On 22 September 2008, the Court of Appeals rendered judgment in favor of respondent, the dispositive portion of which reads:

WHEREFORE, premises considered, the assailed Decision dated 25 May 2005, Resolution No. 062255 dated 20 December 2006, and Resolution No. 071493 dated 01 August 2007 in Admin. Case No. 00-12-027 are SET ASIDE and respondent Civil Service Commission is enjoined from implementing the same. Respondent Civil Service Commission is hereby ORDERED to immediately refer said administrative case for Dishonesty against petitioner Herminigildo L. Andal to the Office of the Court Administrator, Supreme Court, for appropriate action.[5]

The CSC filed a motion for reconsideration which the Court of Appeals denied in its Resolution dated 2 December 2008. Hence, the present petition.

The Issue

The issue in this case is whether or not the Civil Service Commission has disciplinary jurisdiction to try and decide administrative cases against court personnel.

Ruling of the Court of Appeals

The Court of Appeals ruled that the CSC encroached upon the Supreme Courts power of administrative supervision over court personnel. In reversing the CSC resolutions, the Court of Appeals cited Section 6, Article VIII [6] of the 1987 Constitution which provides that the Supreme Court shall have administrative supervision over all courts and the personnel thereof. The Court of Appeals further stated that what the CSC should have done was to refer the administrative case for dishonesty against respondent to the Office of the Court Administrator for appropriate action instead of resolving the case. The Courts Ruling

In taking cognizance of the administrative case for dishonesty against respondent, the CSC invoked Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations which provides that the CSC shall have original disciplinary jurisdiction over all its officials and employees and over all cases involving civil service examination anomalies or irregularities. The CSC further contends that administrative cases of dishonesty in connection with duties and responsibilities under Section 47, Chapter 7, Subtitle A, Title I, Book V of the Revised Administrative Code are different from cases of dishonesty in connection with cheating incidents in Civil Service examinations administered by the CSC. In the latter case, the CSC assumes jurisdiction as an integral part of its duty, authority and power to administer the civil service system and protect its integrity, citing the case of Civil Service Commission v. Albao.[7]

The CSC argues that one of the powers of the CSC is the administration of the civil service examinations. The CSC made a careful study and comparison of the facial features of the person appearing on the photographs attached to the Application Form and the Personal Data Sheet (PDS), and the photograph attached to the Picture Seat Plan. Resemblance of the pictures purporting to be respondents was clearly wanting. The signatures appearing on the face of the documents also revealed discrepancies in the structure, strokes, form and general appearance. We agree with the Court of Appeals and accordingly, deny the present petition. The Court recognizes the CSCs administrative jurisdiction over the civil service. Section 3, Article IX-B of the Constitution declares the CSC as the central personnel agency of the Government, thus:
Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.

Section 12, Title 1 (A), Book V of Executive Order No. 292 (EO 292) likewise enumerates the powers and functions of the CSC, one of which is its quasi-judicial function under paragraph 11, which states:
Section 12. Powers and Functions The Commission shall have the following powers and functions: xxx (11) Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it x x x.

And, Section 47, Title 1 (A), Book V of EO 292 provides for the CSCs disciplinary jurisdiction, as follows:
SEC. 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. x x x (Emphasis supplied)

The CSCs authority and power to hear and decide administrative disciplinary cases are not in dispute. The question is whether the CSCs disciplinary jurisdiction extends to court personnel in view of Section 6, Article VIII of the 1987 Constitution. The Albao case cited by the CSC is not in point as Albao was not a court employee but a contractual employee of the Office of the Vice President. The Albao case merely affirmed the authority of the CSC to take cognizance of any irregularity or anomaly connected with the civil service examinations. One case in point is Bartolata v. Julaton[8] wherein a letter-complaint was sent to the CSC Regional Office in Davao City denouncing the acts of Felicia Julaton (Julaton), Clerk of Court, and Juanita Tapic (Tapic), Court Interpreter II, both of the Municipal Trial Court in Cities, Davao City, Branch 3. The CSC Regional Office in Davao City discovered that a certain Julaton submitted her application to take the Civil Service Professional Examination in 1989 but the picture on the application form and on the Picture Seat Plan did not resemble the picture appearing on the appointment of Julaton. The signature of Julaton affixed to the examination documents did not match the signature on her PDS. The case was referred to the Office of the Court Administrator which recommended that

Julaton and Tapic be held liable as charged. This Court dismissed Julaton from the service, with forfeiture of all retirement benefits while Tapic, who had resigned, was fined P25,000 and his retirement benefits were ordered forfeited. Likewise, in Civil Service Commission v. Sta. Ana,[9] the CSC formally charged Zenaida Sta. Ana (Sta. Ana), Court Stenographer I of the Municipal Circuit Trial Court of Quezon-Licab, Nueva Ecija with dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service for misrepresenting that she took and passed the CSPE-CAT when in truth and in fact, someone else took the examinations for her. The CSC found that the picture and signature in Sta. Anas PDS were different from those appearing in her application form and in the Picture Seat Plan. Upon the recommendation of the Office of the Court Administrator, this Court found Sta. Ana guilty of dishonesty and dismissed her from the service with forfeiture of retirement benefits. In the Julaton and Sta. Ana cases, the CSC recognized the disciplinary jurisdiction of the Supreme Court over court personnel. This is consonant with Section 6, Article VIII of the 1987 Constitution vesting in the Supreme Court administrative supervision over all courts and the personnel thereof, thus:
Sec. 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.

By virtue of this power, it is only the Supreme Court that can oversee the judges and court personnels administrative compliance with all laws, rules and regulations. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. This we have ruled in Maceda v. Vasquez[10] and have reiterated in the case of Ampong v. Civil Service Commission.[11] In Ampong, we also emphasized that in case of violation of the Civil Service Law by a court personnel, the standard procedure is for the CSC to bring its complaint against a judicial employee before the Office of the Court Administrator of the Supreme Court.

The CSC contends that respondent is now estopped from assailing the jurisdiction of the CSC when he voluntarily submitted himself to the CSC-NCR and was accorded due process, citing the Ampong case. We disagree. In Ampong, petitioner in that case admitted her guilt. She voluntarily went to the CSC regional office, admitted to the charges leveled against her and waived her right to the assistance of counsel. She was given ample opportunity to present her side and adduce evidence in her defense before the CSC. She filed her answer to the charges against her and even moved for a reconsideration of the adverse ruling of the CSC. In short, Ampong did not question the authority of the CSC and, in fact, actively participated in the proceedings before it. In the present case, while respondent may have filed his Answer to the formal charge of dishonesty after having been directed to do so, he denied having taken the civil service examination and did not even appear at the formal investigation conducted by the CSC-NCR.[12] He appealed to the CSC after the adverse decision of the CSC-NCR was rendered but raised the issue of lack of jurisdiction over his person. He argued that as an employee in the Judiciary, the jurisdiction to hear disciplinary action against him vests with the Sandiganbayan or the Supreme Court.[13] It cannot therefore be said that he was estopped from assailing the jurisdiction of the CSC. This notwithstanding, we reiterate that we will not and cannot tolerate dishonesty for the judiciary expects the highest standard of integrity from all its employees. The conduct and behavior of everyone connected with an office charged with the dispensation of justice is circumscribed with a heavy burden or responsibility. The Court will not hesitate to rid its ranks of undesirables. WHEREFORE, we AFFIRM the Decision dated 22 September 2008 and the Resolution dated 2 December 2008 of the Court of Appeals in CA-G.R. SP No. 100452. Accordingly, we DENY the instant petition. Nonetheless, we ORDER the Civil Service Commission to refer the case of respondent Herminigildo L. Andal to the Office of the Court Administrator, for the filing of the appropriate administrative case against him.

SO ORDERED.

ROGER V. NAVARRO, Petitioner,

G.R. No. 153788

Present:

- versus -

CARPIO, J., Chairperson, LEONARDO-DE CASTRO, BRION, DEL CASTILLO, and

HON. JOSE L. ESCOBIDO, Presiding Judge, RTC Branch 37, Cagayan de Oro City, and KAREN T. GO, doing business under the name KARGO ENTERPRISES, Respondents.

ABAD, JJ.

Promulgated:

November 27, 2009

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

DECISION

BRION, J.:

This is a petition for review on certiorari[1] that seeks to set aside the Court of Appeals (CA) Decision[2] dated October 16, 2001 and Resolution[3] dated May 29, 2002 in CA-G.R. SP. No. 64701. These CA rulings affirmed the July 26, 2000[4] and March 7, 2001[5] orders of the Regional Trial Court (RTC), Misamis Oriental, Cagayan de Oro City, denying petitioner Roger V. Navarros (Navarro) motion to dismiss.

BACKGROUND FACTS

On September 12, 1998, respondent Karen T. Go filed two complaints, docketed as Civil Case Nos. 98-599 (first complaint)[6] and 98-598 (second complaint),[7] before the RTC for replevin and/or sum of money with damages against Navarro. In these complaints, Karen Go prayed that the RTC issue writs of replevin for the seizure of two (2) motor vehicles in Navarros possession.

The first complaint stated:

1. That plaintiff KAREN T. GO is a Filipino, of legal age, married to GLENN O. GO, a resident of Cagayan de Oro City and doing business under the trade name KARGO ENTERPRISES, an entity duly registered and existing under and by virtue of the laws of the Republic of the Philippines, which has its business address at Bulua, Cagayan de Oro City; that defendant ROGER NAVARRO is a Filipino, of legal age, a resident of 62 Dolores Street, Nazareth, Cagayan de Oro City, where he may be served with summons and other processes of the Honorable Court; that defendant JOHN DOE whose real name and address are at

present unknown to plaintiff is hereby joined as party defendant as he may be the person in whose possession and custody the personal property subject matter of this suit may be found if the same is not in the possession of defendant ROGER NAVARRO;

2. That KARGO ENTERPRISES is in the business of, among others, buying and selling motor vehicles, including hauling trucks and other heavy equipment;

3. That for the cause of action against defendant ROGER NAVARRO, it is hereby stated that on August 8, 1997, the said defendant leased [from] plaintiff a certain motor vehicle which is more particularly described as follows

Make/Type Serial No. Motor No. Plate No.

FUSO WITH MOUNTED CRANE FK416K-51680 6D15-338735 GHK-378

as evidenced by a LEASE AGREEMENT WITH OPTION TO PURCHASE entered into by and between KARGO ENTERPRISES, then represented by its Manager, the aforementioned GLENN O. GO, and defendant ROGER NAVARRO xxx; that in accordance with the provisions of the above LEASE AGREEMENT WITH OPTION TO PURCHASE, defendant ROGER NAVARRO delivered unto plaintiff six (6) post-dated checks each in the amount of SIXTY-SIX THOUSAND THREE HUNDRED THIRTY-THREE & 33/100 PESOS (P66,333.33) which were supposedly in payment of the agreed rentals; that when the fifth and

sixth checks, i.e. PHILIPPINE BANK OF COMMUNICATIONS CAGAYAN DE ORO BRANCH CHECKS NOS. 017112 and 017113, respectively dated January 8, 1998 and February 8, 1998, were presented for payment and/or credit, the same were dishonored and/or returned by the drawee bank for the common reason that the current deposit account against which the said checks were issued did not have sufficient funds to cover the amounts thereof; that the total amount of the two (2) checks, i.e. the sum of ONE HUNDRED THIRTY-TWO THOUSAND SIX HUNDRED SIXTY-SIX & 66/100 PESOS (P132,666.66) therefore represents the principal liability of defendant ROGER NAVARRO unto plaintiff on the basis of the provisions of the above LEASE AGREEMENT WITH RIGHT TO PURCHASE; that demands, written and oral, were made of defendant ROGER NAVARRO to pay the amount of ONE HUNDRED THIRTY-TWO THOUSAND SIX HUNDRED SIXTY-SIX & 66/100 PESOS (P132,666.66), or to return the subject motor vehicle as also provided for in the LEASE AGREEMENT WITH RIGHT TO PURCHASE, but said demands were, and still are, in vain to the great damage and injury of herein plaintiff; xxx

4. That the aforedescribed motor vehicle has not been the subject of any tax assessment and/or fine pursuant to law, or seized under an execution or an attachment as against herein plaintiff;

xxx

8. That plaintiff hereby respectfully applies for an order of the Honorable Court for the immediate delivery of the above-described motor vehicle from defendants unto plaintiff pending the final determination of this case on the merits and, for that purpose, there is attached hereto an affidavit duly executed and bond double the value of the personal property subject matter hereof to answer for damages

and costs which defendants may suffer in the event that the order for replevin prayed for may be found out to having not been properly issued.

The second complaint contained essentially the same allegations as the first complaint, except that the Lease Agreement with Option to Purchase involved is dated October 1, 1997 and the motor vehicle leased is described as follows:

Make/Type Serial No. Motor No.

FUSO WITH MOUNTED CRANE FK416K-510528 6D14-423403

The second complaint also alleged that Navarro delivered three post-dated checks, each for the amount of P100,000.00, to Karen Go in payment of the agreed rentals; however, the third check was dishonored when presented for payment.[8]

On October 12, 1998[9] and October 14, 1998,[10] the RTC issued writs of replevin for both cases; as a result, the Sheriff seized the two vehicles and delivered them to the possession of Karen Go.

In his Answers, Navarro alleged as a special affirmative defense that the two complaints stated no cause of action, since Karen Go was not a party to the Lease Agreements with Option to Purchase (collectively, the lease agreements) the actionable documents on which the complaints were based.

On Navarros motion, both cases were duly consolidated on December 13, 1999.

In its May 8, 2000 order, the RTC dismissed the case on the ground that the complaints did not state a cause of action.

In response to the motion for reconsideration Karen Go filed dated May 26, 2000,[11] the RTC issued another order dated July 26, 2000 setting aside the order of dismissal. Acting on the presumption that Glenn Gos leasing business is a conjugal property, the RTC held that Karen Go had sufficient interest in his leasing business to file the action against Navarro. However, the RTC held that Karen Go should have included her husband, Glenn Go, in the complaint based on Section 4, Rule 3 of the Rules of Court (Rules).[12] Thus, the lower court ordered Karen Go to file a motion for the inclusion of Glenn Go as co-plaintiff.

When the RTC denied Navarros motion for reconsideration on March 7, 2001, Navarro filed a petition for certiorari with the CA, essentially contending that the RTC committed grave abuse of discretion when it reconsidered the dismissal of the case and directed Karen Go to amend her complaints by including her husband Glenn Go as co-plaintiff. According to Navarro, a complaint which failed to state a cause of action could not be converted into one with a cause of action by mere amendment or supplemental pleading.

On October 16, 2001, the CA denied Navarros petition and affirmed the RTCs order.[13] The CA also denied Navarros motion for reconsideration in its resolution ofMay 29, 2002,[14] leading to the filing of the present petition.

THE PETITION

Navarro alleges that even if the lease agreements were in the name of Kargo Enterprises, since it did not have the requisite juridical personality to sue, the actual parties to the agreement are himself and Glenn Go. Since it was Karen Go who filed the complaints and not Glenn Go, she was not a real party-ininterest and the complaints failed to state a cause of action.

Navarro posits that the RTC erred when it ordered the amendment of the complaint to include Glenn Go as a co-plaintiff, instead of dismissing the complaint outright because a complaint which does not state a cause of action cannot be converted into one with a cause of action by a mere amendment or a supplemental pleading. In effect, the lower court created a cause of action for Karen Go when there was none at the time she filed the complaints.

Even worse, according to Navarro, the inclusion of Glenn Go as co-plaintiff drastically changed the theory of the complaints, to his great prejudice. Navarro claims that the lower court gravely abused its discretion when it assumed that the leased vehicles are part of the conjugal property of Glenn and Karen Go. Since Karen Go is the registered owner of Kargo Enterprises, the vehicles subject of the complaint are her paraphernal properties and the RTC gravely erred when it ordered the inclusion of Glenn Go as a co-plaintiff.

Navarro likewise faults the lower court for setting the trial of the case in the same order that required Karen Go to amend her complaints, claiming that by issuing this order, the trial court violated Rule 10 of the Rules.

Even assuming the complaints stated a cause of action against him, Navarro maintains that the complaints were premature because no prior demand was made on him to comply with the provisions of the lease agreements before the complaints for replevin were filed.

Lastly, Navarro posits that since the two writs of replevin were issued based on flawed complaints, the vehicles were illegally seized from his possession and should be returned to him immediately.

Karen Go, on the other hand, claims that it is misleading for Navarro to state that she has no real interest in the subject of the complaint, even if the lease agreements were signed only by her husband, Glenn Go; she is the owner of Kargo Enterprises and Glenn Go signed the lease agreements merely as the manager of Kargo Enterprises. Moreover, Karen Go maintains that Navarros insistence that Kargo Enterprises is Karen Gos paraphernal property is without basis. Based on the law and jurisprudence on the matter, all property acquired during the marriage is presumed to be conjugal property. Finally, Karen Go insists that her complaints sufficiently established a cause of action against Navarro. Thus, when the RTC ordered her to include her husband as co-plaintiff, this was merely to comply with the rule that spouses should sue jointly, and was not meant to cure the complaints lack of cause of action.

THE COURTS RULING

We find the petition devoid of merit.

Karen Go is the real party-in-interest

The 1997 Rules of Civil Procedure requires that every action must be prosecuted or defended in the name of the real party-in-interest, i.e., the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.[15]

Interestingly, although Navarro admits that Karen Go is the registered owner of the business name Kargo Enterprises, he still insists that Karen Go is not a real party-in-interest in the case. According to Navarro, while the lease contracts were in Kargo Enterprises name, this was merely a trade name without a juridical personality, so the actual parties to the lease agreements were Navarro and Glenn Go, to the exclusion of Karen Go. As a corollary, Navarro contends that the RTC acted with grave abuse of discretion when it ordered the inclusion of Glenn Go as co-plaintiff, since this in effect created a cause of action for the complaints when in truth, there was none. We do not find Navarros arguments persuasive. The central factor in appreciating the issues presented in this case is the business name Kargo Enterprises. The name appears in the title of the Complaint where the plaintiff was identified as KAREN T. GO doing business under the name KARGO ENTERPRISES, and this identification was repeated in the first paragraph of the Complaint. Paragraph 2 defined the business KARGO ENTERPRISES undertakes. Paragraph 3 continued with the allegation that the defendant leased from plaintiff a certain motor vehicle that was thereafter described. Significantly, the Complaint specifies and attaches as its integral part the Lease Agreement that underlies the transaction between the plaintiff and the defendant. Again, the name KARGO ENTERPRISES entered the picture as this Lease Agreement provides:
This agreement, made and entered into by and between: GLENN O. GO, of legal age, married, with post office address at xxx, herein referred to as the LESSOR-SELLER; representing KARGO ENTERPRISES as its Manager, xxx

thus, expressly pointing to KARGO ENTERPRISES as the principal that Glenn O. Go represented. In other words, by the express terms of this Lease Agreement, Glenn Go did sign the agreement only as the manager of Kargo Enterprises and the latter is clearly the real party to the lease agreements. As Navarro correctly points out, Kargo Enterprises is a sole proprietorship, which is neither a natural person, nor a juridical person, as defined by Article 44 of the Civil Code:
Art. 44. The following are juridical persons: (1) The State and its political subdivisions; (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

Thus, pursuant to Section 1, Rule 3 of the Rules,[16] Kargo Enterprises cannot be a party to a civil action. This legal reality leads to the question: who then is the proper party to file an action based on a contract in the name of Kargo Enterprises? We faced a similar question in Juasing Hardware v. Mendoza,[17] where we said:
Finally, there is no law authorizing sole proprietorships like petitioner to bring suit in court. The law merely recognizes the existence of a sole proprietorship as a form of business organization conducted for profit by a single individual, and requires the proprietor or owner thereof to secure licenses and permits, register the business name, and pay taxes to the national government. It does not vest juridical or legal personality upon the sole proprietorship nor empower it to file or defend an action in court. Thus, the complaint in the court below should have been filed in the name of the owner of Juasing Hardware. The allegation in the

body of the complaint would show that the suit is brought by such person as proprietor or owner of the business conducted under the name and style Juasing Hardware. The descriptive words doing business as Juasing Hardware may be added to the title of the case, as is customarily done.[18] [Emphasis supplied.]

This conclusion should be read in relation with Section 2, Rule 3 of the Rules, which states:
SEC. 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.

As the registered owner of Kargo Enterprises, Karen Go is the party who will directly benefit from or be injured by a judgment in this case. Thus, contrary to Navarros contention, Karen Go is the real party-in-interest, and it is legally incorrect to say that her Complaint does not state a cause of action because her name did not appear in the Lease Agreement that her husband signed in behalf of Kargo Enterprises. Whether Glenn Go can legally sign the Lease Agreement in his capacity as a manager of Kargo Enterprises, a sole proprietorship, is a question we do not decide, as this is a matter for the trial court to consider in a trial on the merits. Glenn Gos Role in the Case We find it significant that the business name Kargo Enterprises is in the name of Karen T. Go,[19] who described herself in the Complaints to be a Filipino, of legal age, married to GLENN O. GO, a resident of Cagayan de Oro City, and doing business under the trade name KARGO ENTERPRISES.[20] That Glenn Go and Karen Go are married to each other is a fact never brought in issue in the case. Thus, the business name KARGO ENTERPRISES is registered in the name of a married woman, a fact material to the side issue of whether Kargo Enterprises and its properties are paraphernal or conjugal properties. To restate the parties positions, Navarro alleges that Kargo Enterprises is Karen Gos paraphernal

property, emphasizing the fact that the business is registered solely in Karen Gos name. On the other hand, Karen Go contends that while the business is registered in her name, it is in fact part of their conjugal property.

The registration of the trade name in the name of one person a woman does not necessarily lead to the conclusion that the trade name as a property is hers alone, particularly when the woman is married. By law, all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved.[21] Our examination of the records of the case does not show any proof that Kargo Enterprises and the properties or contracts in its name are conjugal. If at all, only the bare allegation of Navarro to this effect exists in the records of the case. As we emphasized in Castro v. Miat:[22]
Petitioners also overlook Article 160 of the New Civil Code. It provides that all property of the marriage is presumed to be conjugal partnership, unless it be prove[n] that it pertains exclusively to the husband or to the wife. This article does not require proof that the property was acquired with funds of the partnership. The presumption applies even when the manner in which the property was acquired does not appear.[23] [Emphasis supplied.]

Thus, for purposes solely of this case and of resolving the issue of whether Kargo Enterprises as a sole proprietorship is conjugal or paraphernal property, we hold that it is conjugal property.

Article 124 of the Family Code, on the administration of the conjugal property, provides:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to

recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

xxx

This provision, by its terms, allows either Karen or Glenn Go to speak and act with authority in managing their conjugal property, i.e., Kargo Enterprises. No need exists, therefore, for one to obtain the consent of the other before performing an act of administration or any act that does not dispose of or encumber their conjugal property.

Under Article 108 of the Family Code, the conjugal partnership is governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. In other words, the property relations of the husband and wife shall be governed primarily by Chapter 4 on Conjugal Partnership of Gains of the Family Code and, suppletorily, by the spouses marriage settlement and by the rules on partnership under the Civil Code. In the absence of any evidence of a marriage settlement between the spouses Go, we look at the Civil Code provision on partnership for guidance.

A rule on partnership applicable to the spouses circumstances is Article 1811 of the Civil Code, which states:

Art. 1811. A partner is a co-owner with the other partners of specific partnership property.

The incidents of this co-ownership are such that:

(1) A partner, subject to the provisions of this Title and to any agreement between the partners, has an equal right with his partners to possess specific partnership property for partnership purposes; xxx

Under this provision, Glenn and Karen Go are effectively co-owners of Kargo Enterprises and the properties registered under this name; hence, both have an equal right to seek possession of these properties. Applying Article 484 of the Civil Code, which states that in default of contracts, or special provisions, co-ownership shall be governed by the provisions of this Title, we find further support in Article 487 of the Civil Code that allows any of the co-owners to bring an action in ejectment with respect to the co-owned property.

While ejectment is normally associated with actions involving real property, we find that this rule can be applied to the circumstances of the present case, following our ruling in Carandang v. Heirs of De Guzman.[24] In this case, one spouse filed an action for the recovery of credit, a personal property considered conjugal property, without including the other spouse in the action. In resolving the issue of whether the other spouse was required to be included as a co-plaintiff in the action for the recovery of the credit, we said:

Milagros de Guzman, being presumed to be a co-owner of the credits allegedly extended to the spouses Carandang, seems to be either an indispensable or a necessary party. If she is an indispensable party, dismissal would be proper. If she is merely a necessary party,

dismissal is not warranted, whether or not there was an order for her inclusion in the complaint pursuant to Section 9, Rule 3.

Article 108 of the Family Code provides:

Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements.

This provision is practically the same as the Civil Code provision it superseded:

Art. 147. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter.

In this connection, Article 1811 of the Civil Code provides that [a] partner is a co-owner with the other partners of specific partnership property. Taken with the presumption of the conjugal nature of the funds used to finance the four checks used to pay for petitioners stock subscriptions, and with the presumption that the credits themselves are part of conjugal funds, Article 1811 makes Quirino and Milagros de Guzman co-owners of the alleged credit.

Being co-owners of the alleged credit, Quirino and Milagros de Guzman may separately bring an action for the recovery thereof. In the fairly recent cases of Baloloy v. Hular and Adlawan v. Adlawan, we held that, in a co-ownership, co-owners may bring actions for the recovery of co-owned property without the necessity of joining all the other co-owners as co-plaintiffs because the suit is presumed to have been filed for the benefit of his co-owners. In the latter case and in that of De Guia v. Court of Appeals, we also held that Article 487 of the Civil Code, which provides that any of the co-owners may bring an action for ejectment, covers all kinds of action for the recovery of possession.

In sum, in suits to recover properties, all co-owners are real parties in interest. However, pursuant to Article 487 of the Civil Code and relevant jurisprudence, any one of them may bring an action, any kind of action, for the recovery of co-owned properties. Therefore, only one of the co-owners, namely the coowner who filed the suit for the recovery of the co-owned property, is an indispensable party thereto. The other co-owners are not indispensable parties. They are not even necessary parties, for a complete relief can be accorded in the suit even without their participation, since the suit is presumed to have been filed for the benefit of all co-owners.[25] [Emphasis supplied.]

Under this ruling, either of the spouses Go may bring an action against Navarro to recover possession of the Kargo Enterprises-leased vehicles which they co-own. This conclusion is consistent with Article 124 of the Family Code, supporting as it does the position that either spouse may act on behalf of the conjugal partnership, so long as they do not dispose of or encumber the property in question without the other spouses consent.

On this basis, we hold that since Glenn Go is not strictly an indispensable party in the action to recover possession of the leased vehicles, he only needs to be impleaded as a pro-forma party to the suit, based on Section 4, Rule 4 of the Rules, which states:

Section 4. Spouses as parties. Husband and wife shall sue or be sued jointly, except as provided by law.

Non-joinder of indispensable parties not ground to dismiss action

Even assuming that Glenn Go is an indispensable party to the action, we have held in a number of cases[26] that the misjoinder or non-joinder of indispensable parties in a complaint is not a ground for dismissal of action. As we stated in Macababbad v. Masirag:[27]

Rule 3, Section 11 of the Rules of Court provides that neither misjoinder nor nonjoinder of parties is a ground for the dismissal of an action, thus:

Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a misjoined party may be severed and proceeded with separately.

In Domingo v. Scheer, this Court held that the proper remedy when a party is left out is to implead the indispensable party at any stage of the action. The court, either motu proprio or upon the motion of a party, may order the inclusion of the indispensable party or give the plaintiff opportunity to amend his complaint in order to include indispensable parties. If the plaintiff to whom the order to include the indispensable party is directed refuses to comply with the order of the court, the complaint may be dismissed upon motion of the defendant or upon the court's own motion. Only upon unjustified failure or refusal to obey the order to include or to amend is the action dismissed.

In these lights, the RTC Order of July 26, 2000 requiring plaintiff Karen Go to join her husband as a party plaintiff is fully in order.

Demand not required prior to filing of replevin action

In arguing that prior demand is required before an action for a writ of replevin is filed, Navarro apparently likens a replevin action to an unlawful detainer.

For a writ of replevin to issue, all that the applicant must do is to file an affidavit and bond, pursuant to Section 2, Rule 60 of the Rules, which states:

Sec. 2. Affidavit and bond.

The applicant must show by his own affidavit or that of some other person who personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

(b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief;

(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodialegis, or if so seized, that it is exempt from such seizure or custody; and

(d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.

We see nothing in these provisions which requires the applicant to make a prior demand on the possessor of the property before he can file an action for a writ of replevin. Thus, prior demand is not a condition precedent to an action for a writ of replevin.

More importantly, Navarro is no longer in the position to claim that a prior demand is necessary, as he has already admitted in his Answers that he had received the letters that Karen Go sent him, demanding that he either pay his unpaid obligations or return the leased motor vehicles. Navarros position that a demand is necessary and has not been made is therefore totally unmeritorious.

WHEREFORE, premises considered, we DENY the petition for review for lack of merit. Costs against petitioner Roger V. Navarro.

SO ORDERED.

G.R. No. 162059

January 22, 2008

HANNAH EUNICE D. SERANA, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. DECISION REYES, R.T., J.: CAN the Sandiganbayan try a government scholaran** accused, along with her brother, of swindling government funds? MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan? The jurisdictional question is posed in this petition for certiorari assailing the Resolutions1 of the Sandiganbayan, Fifth Division, denying petitioners motion to quash the information and her motion for reconsideration. The Antecedents Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu. A student of a state university is known as a government scholar. She was appointed by then President Joseph Estrada on December 21, 1999 as a student regent of UP, to serve a one-year term starting January 1, 2000 and ending on December 31, 2000. In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex in UP Diliman.2 On September 4, 2000, petitioner, with her siblings and relatives, registered with the Securities and Exchange Commission the Office of the Student Regent Foundation, Inc. (OSRFI).3 One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex.4 President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the funds, according to the information, was the Office of the President. The renovation of Vinzons Hall Annex failed to materialize.5 The succeeding student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance of student councils within the state university, consequently filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman.6 On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan.7 The Information reads: The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as amended committed as follows:

That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being then the Student Regent of the University of the Philippines, Diliman, Quezon City, while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government by falsely and fraudulently representing to former President Joseph Ejercito Estrada that the renovation of the Vinzons Hall of the University of the Philippines will be renovated and renamed as "President Joseph Ejercito Estrada Student Hall," and for which purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and misappropriated for their personal use and benefit, and despite repeated demands made upon the accused for them to return aforesaid amount, the said accused failed and refused to do so to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW. (Underscoring supplied) Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any jurisdiction over the offense charged or over her person, in her capacity as UP student regent. Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction.8 It has no jurisdiction over the crime of estafa.9 It only has jurisdiction over crimes covered by Title VII, Chapter II, Section 2 (Crimes Committed by Public Officers), Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the Sandiganbayans jurisdiction. She also argued that it was President Estrada, not the government, that was duped. Even assuming that she received the P15,000,000.00, that amount came from Estrada, not from the coffers of the government.10 Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a student regent, she was not a public officer since she merely represented her peers, in contrast to the other regents who held their positions in an ex officio capacity. She addsed that she was a simple student and did not receive any salary as a student regent. She further contended that she had no power or authority to receive monies or funds. Such power was vested with the Board of Regents (BOR) as a whole. Since it was not alleged in the information that it was among her functions or duties to receive funds, or that the crime was committed in connection with her official functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller v. Sandiganbayan.11 The Ombudsman opposed the motion.12 It disputed petitioners interpretation of the law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch -all phrase "in relation to office," thus, the Sandiganbayan has jurisdiction over the charges against petitioner. In the same breath, the prosecution countered that the source of the money is a matter of defense. It should be threshed out during a full-blown trial.13

According to the Ombudsman, petitioner, despite her protestations, iwas a public officer. As a member of the BOR, she hads the general powers of administration and exerciseds the corporate powers of UP. Based on Mechems definition of a public office, petitioners stance that she was not compensated, hence, not a public officer, is erroneous. Compensation is not an essential part of public office. Parenthetically, compensation has been interpreted to include allowances. By this definition, petitioner was compensated.14 Sandiganbayan Disposition In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioners motion for lack of merit.15 It ratiocinated: The focal point in controversy is the jurisdiction of the Sandiganbayan over this case. It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has jurisdiction over other offenses committed by public officials and employees in relation to their office. From this provision, there is no single doubt that this Court has jurisdiction over the offense of estafa committed by a public official in relation to his office. Accused-movants claim that being merely a member in representation of the student body, she was never a public officer since she never received any compensation nor does she fall under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of Republic Act No. 8249 which provides: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: (A) x x x (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: xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (Italics supplied) It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of their salary grades, because the primordial consideration in the inclusion of these officials is the nature of their responsibilities and functions. Is accused-movant included in the contemplated provision of law? A meticulous review of the existing Charter of the University of the Philippines reveals that the Board of Regents, to which accused-movant belongs, exclusively exercises the general powers of administration and corporate powers in the university, such as: 1) To receive and

appropriate to the ends specified by law such sums as may be provided by law for the support of the university; 2) To prescribe rules for its own government and to enact for the government of the university such general ordinances and regulations, not contrary to law, as are consistent with the purposes of the university; and 3) To appoint, on recommendation of the President of the University, professors, instructors, lecturers and other employees of the University; to fix their compensation, hours of service, and such other duties and conditions as it may deem proper; to grant to them in its discretion leave of absence under such regulations as it may promulgate, any other provisions of law to the contrary notwithstanding, and to remove them for cause after an investigation and hearing shall have been had. It is well-established in corporation law that the corporation can act only through its board of directors, or board of trustees in the case of non-stock corporations. The board of directors or trustees, therefore, is the governing body of the corporation. It is unmistakably evident that the Board of Regents of the University of the Philippines is performing functions similar to those of the Board of Trustees of a non-stock corporation. This draws to fore the conclusion that being a member of such board, accused-movant undoubtedly falls within the category of public officials upon whom this Court is vested with original exclusive jurisdiction, regardless of the fact that she does not occupy a position classified as Salary Grade 27 or higher under the Compensation and Position Classification Act of 1989. Finally, this court finds that accused-movants contention that the same of P15 Million was received from former President Estrada and not from the coffers of the government, is a matter a defense that should be properly ventilated during the trial on the merits of this case.16 On November 19, 2003, petitioner filed a motion for reconsideration.17 The motion was denied with finality in a Resolution dated February 4, 2004.18 Issue Petitioner is now before this Court, contending that "THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION." 19 In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government. Our Ruling The petition cannot be granted. Preliminarily, the denial of a motion to quash is not correctible by certiorari.

We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Wellestablished is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash.20Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed.21 The evident reason for this rule is to avoid multiplicity of appeals in a single action.22 In Newsweek, Inc. v. Intermediate Appellate Court,23 the Court clearly explained and illustrated the rule and the exceptions, thus: As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal lies from a judgment of acquittal. This general rule is subject to certain exceptions. If the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. The following are a few examples of the exceptions to the general rule. In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack of jurisdiction over the subject matter, this Court granted the petition for certiorari and prohibition against the City Court of Manila and directed the respondent court to dismiss the case. In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack of jurisdiction over the offense, this Court granted the petition for prohibition and enjoined the respondent court from further proceeding in the case. In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on improper venue, this Court granted the petition for prohibition and enjoined the respondent judge from taking cognizance of the case except to dismiss the same. In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by prior judgment, this Court granted the petition for certiorari and directed the respondent judge to dismiss the case. In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on the Statute of Frauds, this Court granted the petition for certiorari and dismissed the amended complaint. In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the motion to quash based on double jeopardy was denied by respondent judge and ordered him to desist from further action in the criminal case except to dismiss the same.

In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on prescription was set aside on certiorari and the criminal case was dismissed by this Court.24 We do not find the Sandiganbayan to have committed a grave abuse of discretion. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as amended, not by R.A. No. 3019, as amended. We first address petitioners contention that the jurisdiction of the Sandiganbayan is determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan.25 She repeats the reference in the instant petition for certiorari26 and in her memorandum of authorities.27 We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears stressing that petitioner repeated this claim twice despite corrections made by the Sandiganbayan.28 Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.29 P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.30 P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other 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 989 (Republic Act No. 6758), specifically including: " (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads;

" (b) City mayor, vice-mayors, 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 government-owned 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. B. Other offenses of felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. " In cases where none of the accused are occupying positions corresponding to Salary Grade "27'" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. " The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or order of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. " The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

" The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may thereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. " In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. " 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 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." Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.31 Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan.32 R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition on private individuals. We quote: Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties.

Sandiganbayan has jurisdiction over the offense of estafa. Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision. The rule is well-established in this jurisdiction that statutes should receive a sensible construction so as to avoid an unjust or an absurd conclusion.33 Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa. Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at the effect contemplated by the legislature.34 The intention of the legislator must be ascertained from the whole text of the law and every part of the act is to be taken into view.35 In other words, petitioners interpretation lies in direct opposition to the rule that a statute must be interpreted as a whole under the principle that the best interpreter of a statute is the statute itself.36 Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang mismong batas. Section 4(B) of P.D. No. 1606 reads: B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office. In Perlas, Jr. v. People,37 the Court had occasion to explain that the Sandiganbayan has jurisdiction over an indictment for estafa versus a director of the National Parks Development Committee, a government instrumentality. The Court held then: The National Parks Development Committee was created originally as an Executive Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and ViceChairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981).

Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3). The Sandiganbayans jurisdiction over estafa was reiterated with greater firmness in Bondoc v. Sandiganbayan.38Pertinent parts of the Courts ruling in Bondoc read: Furthermore, it is not legally possible to transfer Bondocs cases to the Regional Trial Court, for the simple reason that the latter would not have jurisdiction over the offenses. As already above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondocs cases and those of the government employees separately charged for the same crimes, has not altered the nature of the offenses charged, as estafa thru falsification punishable by penalties higher than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by government employees in conspiracy with private persons, including Bondoc. These crimes are within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot be taken cognizance of by the regular courts, apart from the fact that even if the cases could be so transferred, a joint trial would nonetheless not be possible. Petitioner UP student regent is a public officer. Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that We will be called upon to define a public officer. InKhan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer.39The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence. In Aparri v. Court of Appeals,40 the Court held that: A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881). In Laurel v. Desierto,41 the Court adopted the definition of Mechem of a public office: "A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer."42 Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. InGeduspan v. People,43 We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other

executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.44 Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation.45 By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606. Moreover, it is well established that compensation is not an essential element of public office.46 At most, it is merely incidental to the public office.47 Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer.48 The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training.49 Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit.50 The offense charged was committed in relation to public office, according to the Information. Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in relation to public office. It is axiomatic that jurisdiction is determined by the averments in the information.51 More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash.52 Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent.53 In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., "while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x." (Underscoring supplied) Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground.

Source of funds is a defense that should be raised during trial on the merits. It is contended anew that the amount came from President Estradas private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on. We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that "petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00)." Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case.54 A lawyer owes candor, fairness and honesty to the Court. As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented his reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to quash, the instant petition forcertiorari and his memorandum, unveils the misquotation. We urge petitioners counsel to observe Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the Rules stating that "a lawyer shall not misquote or misrepresent." The Court stressed the importance of this rule in Pangan v. Ramos,55 where Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty. Ramos resorted to deception by using a name different from that with which he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may warrant suspension or disbarment.56 We admonish petitioners counsel to be more careful and accurate in his citation. A lawyers conduct before the court should be characterized by candor and fairness.57 The administration of justice would gravely suffer if lawyers do not act with complete candor and honesty before the courts.58 WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED.

THE ESTATE OF PEDRO C. GONZALES and HEIRS OF PEDRO C. GONZALES, Petitioners,

G.R. No. 169681 Present: QUISUMBING,* J., CARPIO, J., Chairperson, CHICO-NAZARIO, PERALTA, and ABAD,** JJ.

- versus -

THE HEIRS PEREZ,

OF

MARCOS Promulgated:

Respondents. November 5, 2009 x-----------------------------------------------------------------------------------------x DECISION

PERALTA, J.: This resolves the instant Petition for Review on Certiorari under Rule 45 of the Rules of Court praying for the nullification of the Decision[1] of the Court of Appeals (CA) dated April 25, 2005 in CA-G.R. CV No. 60998 and its Resolution[2] dated September 14, 2005. The challenged Decision of the CA reversed and set aside the judgment of the Regional Trial Court (RTC) of Marikina City, Branch 272 in Civil Case No. 94-57-MK while its assailed Resolution denied petitioners' motion for reconsideration. The antecedent facts are as follows: The former Municipality of Marikina in the Province of Rizal (now City of Marikina, Metro Manila) used to own a parcel of land located in Barrio Concepcion of the said municipality covered by Original Certificate of Title (OCT) No. 629[3] of the Register of Deeds of Rizal. The said property was subdivided into three (3) lots, namely, lots A, B and C, per subdivision plan (LRC) Psd-4571.[4]

On January 14, 1966, the Municipal Council of Marikina passed Resolution No. 9, series of 1966 which authorized the sale through public bidding of Municipal Lots A and C. On April 25, 1966, a public bidding was conducted wherein Pedro Gonzales was the highest bidder. Two days thereafter, or on April 27, 1966, the Municipal Council of Marikina issued Resolution No. 75 accepting the bid of Pedro. Thereafter, a deed of sale was executed in favor of the latter which was later forwarded to the Provincial Governor of Rizal for his approval. The Governor, however, did not act upon the said deed. Sometime in September 1966, Pedro sold to Marcos Perez a portion of Lot C, denominated as Lot C-3, which contains an area of 375 square meters. The contract of sale was embodied in a Deed of Sale[5] which, however, was not notarized. To segregate the subject property from the remaining portions of Lot C, Marcos had the same surveyed wherein a technical description of the subject lot was prepared by a surveyor.[6] Subsequently, Pedro and Marcos died. On February 7, 1992, the Municipality of Marikina, through its then Mayor Rodolfo Valentino, executed a Deed of Absolute Transfer of Real Property over Lots A and C in favor of the Estate of Pedro C. Gonzales.[7] On June 25, 1992, Transfer Certificate of Title (TCT) No. 223361, covering Lot C, was issued in the name of the said estate.[8] Subsequently, herein petitioners executed an extra-judicial partition wherein Lot C was subdivided into three lots. As a result of the subdivision, new titles were issued wherein the 370-square-meter portion of Lot C-3 is now denominated as Lot C-1 and is covered by TCT No. 244447[9] and the remaining 5 square meters of the subject lot (Lot C-3) now forms a portion of another lot denominated as Lot C-2 and is now covered by TCT No. 244448.[10] On October 1, 1992, herein respondents sent a demand letter to one of herein petitioners asking for the reconveyance of the subject property.[11] However, petitioners refused to reconvey the said lot. As a consequence, respondents filed an

action for Annulment and/or Rescission of Deed of Absolute Transfer of Real Property x x x and for Reconveyance with Damages.[12] On February 2, 1998, the RTC rendered its Decision with the following dispositive portion:
WHEREFORE, foregoing premises, judgment is hereby rendered as follows: 1. DISMISSING the complaint subject of the case in caption for lack of merit; 2. DECLARING VALID both Transfer Certificates of Title Nos. 244447 and 244448 issued by the Register of Deeds of Marikina; 3. DISMISSING the defendants' counterclaim. No pronouncement as to costs. SO ORDERED.[13]

The RTC ruled that since the Deed of Sale executed between Pedro and Marcos was not notarized, the same is considered void and of no effect. In addition, the trial court also held that Pedro became the owner of the subject lot only on February 7, 1992; as such, he could not have lawfully transferred ownership thereof to Marcos in 1966. Herein respondents appealed the RTC Decision to the CA contending that the RTC erred in relying only on Articles 1356 and 1358 of the Civil Code. Instead, respondents assert that the RTC should also have applied the provisions of Articles 1357, 1403 (2), 1405 and 1406 of the same Code. On April 25, 2005, the CA rendered its presently assailed Decision disposing as follows:

WHEREFORE, premises considered, the instant Appeal is hereby GRANTED and the assailed Decision dated February 2, 1998 is REVERSED and SET ASIDE. TCT No. 244447 and partially, TCT No. 244448, with respect to five (5) square meters, are declared NULL and VOID and defendants-appellees are ordered to reconvey in favor of the plaintiffs-appellants the subject property covered by said Transfer Certificates of Title (five square meters only with respect to TCT No. 244448). The trial court's dismissal of defendants-appellees' counterclaim is, however, AFFIRMED. SO ORDERED.[14]

The CA held that a sale of real property, though not consigned in a public instrument, is nevertheless valid and binding among the parties and that the form required in Article 1358 of the Civil Code is not essential to the validity or enforceability of the transactions but only for convenience. Petitioners filed a motion for reconsideration, but the same was denied by the CA in its Resolution of September 14, 2005 on the ground that the said motion was filed out of time. Hence, the present petition with the following assignment of errors:
WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS, ITS FINDINGS OF FACT RUN COUNTER TO THOSE OF THE TRIAL COURT, THUS, IT HAS DECIDED THE CASE IN A WAY NOT IN ACCORD WITH LAW AND JURISPRUDENCE. WITH DUE RESPECT, THE ALLEGED DEED OF SALE IS SUSPECT AND RIDDEN WITH INCONSISTENCIES. IN FACT, THE LOWER COURT HELD THAT THE DEED OF SALE FAILED TO MEET THE SOLEMNITY REQUIREMENTS PROVIDED UNDER THE LAW FOR ITS VALIDITY. WITH DUE RESPECT, THE COURT OF APPEALS ERRED IN DISREGARDING THE FINDINGS OF FACT AND THE APPLICATION OF LAW BY THE REGIONAL TRIAL COURT THAT UNDER THE PURPORTED DEED OF SALE THE

VENDOR COULD OWNERSHIP.[15]

NOT

HAVE

TRANSFERRED

In their first and last assigned errors, petitioners contend that Marcos, who is respondents' predecessor-in-interest, could not have legally bought the disputed parcel of land from petitioners' predecessor-in-interest, Pedro, in September 1966 because, during that time, Pedro had not yet acquired ownership of the subject lot. Petitioners' assertion is based on the premise that as of February 29, 1968, the Deed of Sale between Pedro and the Municipality of Marikina was still subject to approval by the Provincial Governor of Rizal, as required under Section 2196 of the Revised Administrative Code. Considering that on the supposed date of sale in favor of Marcos, the requisite approval of the Provincial Governor was not yet secured, petitioners conclude that Pedro could not be considered as the owner of the subject property and, as such, he did not yet possess the right to transfer ownership thereof and, thus, could not have lawfully sold the same to Marcos. The Court does not agree. Section 2196 of the Revised Administrative Code provides:
SECTION 2196. Execution of deeds. When the government of a municipality is a party to a deed or an instrument which conveys real property or any interest therein or which creates a lien upon the same, such deed or instrument shall be executed on behalf of the municipal government by the mayor, upon resolution of the council, with the approval of the governor.

In Municipality of Camiling v. Lopez,[16] the Court found occasion to expound on the nature and effect of the provincial governor's power to approve contracts entered into by a municipal government as provided for under Section 2196 of the Revised Administrative Code. The Court held, thus:
x x x The approval by the provincial governor of contracts entered into and executed by a municipal council, as required in [S]ection 2196 of the Revised Administrative Code, is part of the system of supervision that the provincial government exercises over the municipal governments. It is not

a prohibition against municipal councils entering into contracts regarding municipal properties subject of municipal administration or control. It does not deny the power, right or capacity of municipal councils to enter into such contracts; such power or capacity is recognized. Only the exercise thereof is subject to supervision by approval or disapproval, i.e., contracts entered in pursuance of the power would ordinarily be approved if entered into in good faith and for the best interests of the municipality; they would be denied approval if found illegal or unfavorable to public or municipal interest. The absence of the approval, therefore, does not per se make the contracts null and void.[17]

This pronouncement was later reiterated in Pechueco Sons Company v. Provincial Board of Antique,[18] where the Court ruled more emphatically that:
In other words, as regards the municipal transactions specified in Section 2196 of the Revised Administrative Code, the Provincial Governor has two courses of action to take either to approve or disapprove the same. And since absence of such approval does not necessarily render the contract entered into by the municipality null and void, the transaction remains voidable until such time when by subsequent unfavorable action of the governor, for reasons of public interest, the contract is thereby invalidated.[19]

It is clear from the above-quoted pronouncements of the Court that, pending approval or disapproval by the Provincial Governor of a contract entered into by a municipality which falls under the provisions of Section 2196 of the Revised Administrative Code, such contract is considered voidable. In the instant case, there is no showing that the contract of sale entered into between Pedro and the Municipality of Marikina was ever acted upon by the Provincial Governor. Hence, consistent with the rulings enunciated above, the subject contract should be considered voidable. Voidable or annullable contracts, before they are set aside, are existent, valid, and binding, and are effective and obligatory between the parties.[20] In the present case, since the contract was never annulled or set aside, it had the effect of transferring ownership of the subject property to Pedro. Having lawfully acquired ownership of Lots A and C, Pedro, in turn, had the full capacity

to transfer ownership of these parcels of land or parts thereof, including the subject property which comprises a portion of Lot C. It is wrong for petitioners to argue that it was only on June 25, 1992, when TCT No. 223361 covering Lot C was issued in the name of the estate of Pedro, that he became the owner thereof. Article 1496 of the Civil Code provides:
The ownership of the thing sold is acquired by the vendee from the moment it is delivered to him in any of the ways specified in Articles 1497 to 1501, or in any other manner signifying an agreement that the possession is transferred from the vendor to the vendee.

In conjunction with the above-stated provision, Article 1497 of the Civil Code states that:
The thing sold shall be understood as delivered when it is placed in the control and possession of the vendee.

In the present case, there is no dispute that Pedro took control and possession of the said lot immediately after his bid was accepted by the Municipal Government of Marikina. In fact, herein petitioners, in their Answer with Compulsory Counterclaim admit that both Pedro and Marcos, together with their respective heirs, were already occupying the subject property even before the same was sold to Pedro and that, after buying the same, Pedro allowed Marcos and his family to stay thereon.[21] This only shows that upon perfection of the contract of sale between the Municipality of Marikina and Pedro, the latter acquired ownership of the subject property by means of delivery of the same to him. Hence, the issuance of TCT No. 223361, as well as the execution of the Deed of Absolute Transfer of Real Property on February 7, 1992 by the Municipal Mayor of Marikina, could not be considered as the operative acts which transferred ownership of Lot C to Pedro. Pedro already acquired ownership of the subject property as early as 1966 when the same was delivered to him by the Municipality of Marikina, and the execution of the Deed of Absolute Transfer of Real Property

as well as the consequent issuance of TCT No. 223316 are simply a confirmation of such ownership. It may not be amiss to point out at this juncture that the Deed of Absolute Transfer of Real Property executed by the Mayor of Marikina was no longer subject to approval by the Provincial Governor of Rizal because Marikina already became part of Metro Manila on November 7, 1975.[22] On December 8, 1996, Marikina became a chartered city.[23] In their second assignment of error, petitioners question the authenticity and due execution of the Deed of Sale executed by Pedro in favor of Marcos. Petitioners also argue that even assuming that Pedro actually executed the subject Deed of Sale, the same is not valid because it was not notarized as required under the provisions of Articles 1403 and 1358 of the Civil Code. The Court is not persuaded. The RTC, in its abbreviated discussion of the questions raised before it, did not touch on the issue of whether the Deed of Sale between Pedro and Marcos is authentic and duly executed. However, the CA, in its presently assailed Decision, adequately discussed this issue and ruled as follows: x x x In the present case, We are convinced that plaintiffs-appellants [herein respondents] have substantially proven that Pedro, indeed, sold the subject property to Marcos for P9,378.75. The fact that no receipt was presented to prove actual payment of consideration, in itself, the absence of receipts, or any proof of consideration, would not be conclusive since consideration is always presumed. Likewise, the categorical statement in the trial court of Manuel P. Bernardo, one of the witnesses in the Deed of Sale, that he himself saw Pedro sign such Deed lends credence. This was corroborated by another witness, Guillermo Flores. Although the defendants-appellees [herein petitioners] are assailing the genuineness of the signatures of their parents on the said Deed, they presented no evidence of the genuine signatures of their parents as would give this Court a chance to scrutinize and compare it with the assailed signatures. Bare allegations, unsubstantiated by evidence, are not equivalent to proof under our Rules.[24]

In the instant petition, petitioners would have us review the factual determinations of the CA. However, settled is the rule that the Court is not a trier of facts and only questions of law are the proper subject of a petition for review on certiorari in this Court.[25] While there are exceptions to this rule,[26] the Court finds that the instant case does not fall under any of them. Hence, the Court sees no reason to disturb the findings of the CA, which are supported by evidence on record. On the question of whether the subject Deed of Sale is invalid on the ground that it does not appear in a public document, Article 1358 of the same Code enumerates the acts and contracts that should be embodied in a public document, to wit:
Art. 1358. The following must appear in a public document: (1) Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein are governed by Articles 1403, No. 2 and 1405; (2) The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains; (3) The power to administer property, or any other power which has for its object an act appearing or which should appear in a public document, or should prejudice a third person; and (4) The cession of actions or rights proceeding from an act appearing in a public document. All other contracts where the amount involved exceeds five hundred pesos must appear in writing, even a private one. But sales of goods, chattels or things in action are governed by Articles 1403, No. 2 and 1405.

On the other hand, pertinent portions of Article 1403 of the Civil Code provide as follows:

Art. 1403. The following contracts are unenforceable, unless they are ratified: xxxx (2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (a) An agreement that by its terms is not to be performed within a year from the making thereof; xxxx (e) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; x x x[27]

Under Article 1403(2), the sale of real property should be in writing and subscribed by the party charged for it to be enforceable.[28] In the case before the Court, the Deed of Sale between Pedro and Marcos is in writing and subscribed by Pedro and his wife Francisca; hence, it is enforceable under the Statute of Frauds. However, not having been subscribed and sworn to before a notary public, the Deed of Sale is not a public document and, therefore, does not comply with Article 1358 of the Civil Code. Nonetheless, it is a settled rule that the failure to observe the proper form prescribed by Article 1358 does not render the acts or contracts enumerated therein invalid. It has been uniformly held that the form required under the said Article is not essential to the validity or enforceability of the transaction, but merely for convenience.[29] The Court agrees with the CA in holding that a sale of real property, though not consigned in a public instrument or formal writing, is, nevertheless, valid and binding among the parties, for the time-honored rule is that even a verbal contract of sale of real estate produces legal effects between the

parties.[30] Stated differently, although a conveyance of land is not made in a public document, it does not affect the validity of such conveyance. Article 1358 does not require the accomplishment of the acts or contracts in a public instrument in order to validate the act or contract but only to insure its efficacy.[31] Thus, based on the foregoing, the Court finds that the CA did not err in ruling that the contract of sale between Pedro and Marcos is valid and binding. WHEREFORE, the instant petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 60998 are AFFIRMED.