Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 175910

July 30, 2009

ATTY. ROGELIO E. SARSABA, Petitioner,

vs.
FE VDA. DE TE, represented by her Attorney-in-Fact, FAUSTINO
CASTAEDA, Respondents.
DECISION
DEL CASTILLO, J.:
Before us is a petition for review on certiorari 1 with prayer for preliminary injunction
assailing the Order2 dated March 22, 2006 of the Regional Trial Court (RTC), Branch 19,
Digos City, Davao del Sur, in Civil Case No. 3488.
The facts, as culled from the records, follow.
On February 14, 1995, a Decision was rendered in NLRC Case No. RAB-11-07-0060893 entitled, Patricio Sereno v. Teodoro Gasing/Truck Operator, finding Sereno to have
been illegally dismissed and ordering Gasing to pay him his monetary claims in the
amount of P43,606.47. After the Writ of Execution was returned unsatisfied, Labor
Arbiter Newton R. Sancho issued an Alias Writ of Execution 3 on June 10, 1996, directing
Fulgencio R. Lavarez, Sheriff II of the National Labor Relations Commission (NLRC), to
satisfy the judgment award. On July 23, 1996, Lavarez, accompanied by Sereno and his
counsel, petitioner Atty. Rogelio E. Sarsaba, levied a Fuso Truck bearing License Plate
No. LBR-514, which at that time was in the possession of Gasing. On July 30, 1996, the
truck was sold at public auction, with Sereno appearing as the highest bidder.4
Meanwhile, respondent Fe Vda. de Te, represented by her attorney-in-fact, Faustino
Castaeda, filed with the RTC, Branch 18, Digos, Davao del Sur, a Complaint 5 for
recovery of motor vehicle, damages with prayer for the delivery of the truck pendente
lite against petitioner, Sereno, Lavarez and the NLRC of Davao City, docketed as Civil
Case No. 3488.
Respondent alleged that: (1) she is the wife of the late Pedro Te, the registered owner of
the truck, as evidenced by the Official Receipt6 and Certificate of Registration;7 (2)
Gasing merely rented the truck from her; (3) Lavarez erroneously assumed that Gasing
owned the truck because he was, at the time of the "taking," 8 in possession of the same;
and (4) since neither she nor her husband were parties to the labor case between
Sereno and Gasing, she should not be made to answer for the judgment award, much
less be deprived of the truck as a consequence of the levy in execution.
Petitioner filed a Motion to Dismiss9 on the following grounds: (1) respondent has no
legal personality to sue, having no real interests over the property subject of the instant
complaint; (2) the allegations in the complaint do not sufficiently state that the

respondent has cause of action; (3) the allegations in the complaint do not contain
sufficient cause of action as against him; and (4) the complaint is not accompanied by
an Affidavit of Merit and Bond that would entitle the respondent to the delivery of the
tuck pendente lite.
The NLRC also filed a Motion to Dismiss10 on the grounds of lack of jurisdiction and lack
of cause of action.
Meanwhile, Lavarez filed an Answer with Compulsory Counterclaim and Third-Party
Complaint.11 By way of special and affirmative defenses, he asserted that the RTC does
not have jurisdiction over the subject matter and that the complaint does not state a
cause of action.
On January 21, 2000, the RTC issued an Order12 denying petitioner's Motion to Dismiss
for lack of merit.
In his Answer,13 petitioner denied the material allegations in the complaint. Specifically,
he cited as affirmative defenses that: respondent had no legal personality to sue, as she
had no interest over the motor vehicle; that there was no showing that the heirs have
filed an intestate estate proceedings of the estate of Pedro Te, or that respondent was
duly authorized by her co-heirs to file the case; and that the truck was already sold to
Gasing on March 11, 1986 by one Jesus Matias, who bought the same from the
Spouses Te. Corollarily, Gasing was already the lawful owner of the truck when it was
levied on execution and, later on, sold at public auction.
Incidentally, Lavarez filed a Motion for Inhibition, 14 which was opposed15 by respondent.
On October 13, 2000, RTC Branch 18 issued an Order 16 of inhibition and directed the
transfer of the records to Branch 19. RTC Branch 19, however, returned the records
back to Branch 18 in view of the appointment of a new judge in place of Judgedesignate Rodolfo A. Escovilla. Yet, Branch 19 issued another Order 17 dated November
22, 2000 retaining the case in said branch.
Eventually, the RTC issued an Order18 dated May 19, 2003 denying the separate
motions to dismiss filed by the NLRC and Lavarez, and setting the Pre-Trial Conference
on July 25, 2003.
On October 17, 2005, petitioner filed an Omnibus Motion to Dismiss the Case on the
following grounds:19 (1) lack of jurisdiction over one of the principal defendants; and (2)
to discharge respondent's attorney-in-fact for lack of legal personality to sue.
It appeared that the respondent, Fe Vda. de Te, died on April 12, 2005. 20
Respondent, through her lawyer, Atty. William G. Carpentero, filed an
Opposition,21 contending that the failure to serve summons upon Sereno is not a ground
for dismissing the complaint, because the other defendants have already submitted their
respective responsive pleadings. He also contended that the defendants, including
herein petitioner, had previously filed separate motions to dismiss the complaint, which
the RTC denied for lack of merit. Moreover, respondent's death did not render functus
officio her right to sue since her attorney-in-fact, Faustino Castaeda, had long testified

on the complaint on March 13, 1998 for and on her behalf and, accordingly, submitted
documentary exhibits in support of the complaint.
On March 22, 2006, the RTC issued the assailed Order 22 denying petitioner's aforesaid
motion.
Petitioner then filed a Motion for Reconsideration with Motion for Inhibition, 23 in which he
claimed that the judge who issued the Order was biased and partial. He went on to state
that the judge's husband was the defendant in a petition for judicial recognition of which
he was the counsel, docketed as Civil Case No. C-XXI-100, before the RTC, Branch 21,
Bansalan, Davao del Sur. Thus, propriety dictates that the judge should inhibit herself
from the case.
Acting on the motion for inhibition, Judge Carmelita Sarno-Davin granted the
same24 and ordered that the case be re-raffled to Branch 18. Eventually, the said RTC
issued an Order25 on October 16, 2006 denying petitioner's motion for reconsideration
for lack of merit.
Hence, petitioner directly sought recourse from the Court via the present petition
involving pure questions of law, which he claimed were resolved by the RTC contrary to
law, rules and existing jurisprudence.26
There is a "question of law" when the doubt or difference arises as to what the law is
on certain state of facts, and which does not call for an examination of the probative
value of the evidence presented by the parties-litigants. On the other hand, there is a
"question of fact" when the doubt or controversy arises as to the truth or falsity of the
alleged facts. Simply put, when there is no dispute as to fact, the question of whether or
not the conclusion drawn therefrom is correct, is a question of law.27
Verily, the issues raised by herein petitioner are "questions of law," as their resolution
rest solely on what the law provides given the set of circumstances availing. The first
issue involves the jurisdiction of the court over the person of one of the defendants, who
was not served with summons on account of his death. The second issue, on the other
hand, pertains to the legal effect of death of the plaintiff during the pendency of the
case.
At first brush, it may appear that since pure questions of law were raised, petitioner's
resort to this Court was justified and the resolution of the aforementioned issues will
necessarily follow. However, a perusal of the petition requires that certain procedural
issues must initially be resolved before We delve into the merits of the case.
Notably, the petition was filed directly from the RTC which issued the Order in the
exercise of its original jurisdiction. The question before Us then is: whether or not
petitioner correctly availed of the mode of appeal under Rule 45 of the Rules of Court.
Significantly, the rule on appeals is outlined below, to wit: 28
(1) In all cases decided by the RTC in the exercise of its original
jurisdiction, appeal may be made to the Court of Appeals by mere notice of
appeal where the appellant raises questions of fact or mixed questions of fact
and law;

(2) In all cases decided by the RTC in the exercise of its original
jurisdiction where the appellant raises only questions of law, the appeal
must be taken to the Supreme Court on a petition for review oncertiorari under
Rule 45.
(3) All appeals from judgments rendered by the RTC in the exercise of its
appellate jurisdiction, regardless of whether the appellant raises questions of
fact, questions of law, or mixed questions of fact and law, shall be brought to the
Court of Appeals by filing a petition for review under Rule 42.
Accordingly, an appeal may be taken from the RTC which exercised its original
jurisdiction, before the Court of Appeals or directly before this Court, provided that the
subject of the same is a judgment or final order that completely disposes of the case,
or of a particular matter therein when declared by the Rules to be appealable. 29The first
mode of appeal, to be filed before the Court of Appeals, pertains to a writ of error under
Section 2(a), Rule 41 of the Rules of Court, if questions of fact or questions of fact and
law are raised or involved. On the other hand, the second mode is by way of an appeal
by certiorari before the Supreme Court under Section 2(c), Rule 41, in relation to Rule
45, where only questions of law are raised or involved. 30
An order or judgment of the RTC is deemed final when it finally disposes of a pending
action, so that nothing more can be done with it in the trial court. In other words, the
order or judgment ends the litigation in the lower court. 31 On the other hand, an order
which does not dispose of the case completely and indicates that other things remain to
be done by the court as regards the merits, is interlocutory. Interlocutory refers to
something between the commencement and the end of the suit which decides some
point or matter, but is not a final decision on the whole controversy.32
The subject of the present petition is an Order of the RTC, which denied petitioner's
Omnibus Motion to Dismiss, for lack of merit.
We have said time and again that an order denying a motion to dismiss is
interlocutory.33 Under Section 1(c), Rule 41 of the Rules of Court, an interlocutory order
is not appealable. As a remedy for the denial, a party has to file an answer and
interpose as a defense the objections raised in the motion, and then to proceed to trial;
or, a party may immediately avail of the remedy available to the aggrieved party by filing
an appropriate special civil action for certiorari under Rule 65 of the Revised Rules of
Court. Let it be stressed though that a petition forcertiorari is appropriate only when an
order has been issued without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Based on the foregoing, the Order of the RTC denying petitioner's Omnibus Motion to
Dismiss is not appealable even on pure questions of law. It is worth mentioning that the
proper procedure in this case, as enunciated by this Court, is to cite such interlocutory
order as an error in the appeal of the case -- in the event that the RTC rules in favor of
respondent -- and not to appeal such interlocutory order. On the other hand, if the
petition is to be treated as a petition for review under Rule 45, it would likewise fail
because the proper subject would only be judgments or final orders that completely
dispose of the case.34

Not being a proper subject of an appeal, the Order of the RTC is considered
interlocutory. Petitioner should have proceeded with the trial of the case and, should the
RTC eventually render an unfavorable verdict, petitioner should assail the said Order as
part of an appeal that may be taken from the final judgment to be rendered in this case.
Such rule is founded on considerations of orderly procedure, to forestall useless
appeals and avoid
undue inconvenience to the appealing party by having to assail orders as they are
promulgated by the court, when all such orders may be contested in a single appeal.
In one case,35 the Court adverted to the hazards of interlocutory appeals:
It is axiomatic that an interlocutory order cannot be challenged by an appeal. Thus, it
has been held that "the proper remedy in such cases is an ordinary appeal from an
adverse judgment on the merits, incorporating in said appeal the grounds for assailing
the interlocutory order. Allowing appeals from interlocutory orders would result in the
`sorry spectacle of a case being subject of a counterproductive ping-pong to and from
the appellate court as often as a trial court is perceived to have made an error in any of
its interlocutory rulings. x x x.
Another recognized reason of the law in permitting appeal only from a final order or
judgment, and not from an interlocutory or incidental one, is to avoid multiplicity of
appeals in a single action, which must necessarily suspend the hearing and decision on
the merits of the case during the pendency of the appeal. If such appeal were allowed,
trial on the merits of the case would necessarily be delayed for a considerable length of
time and compel the adverse party to incur unnecessary expenses, for one of the
parties may interpose as many appeals as incidental questions may be raised by him,
and interlocutory orders rendered or issued by the lower court. 36
And, even if We treat the petition to have been filed under Rule 65, the same is still
dismissible for violating the principle on hierarchy of courts. Generally, a direct resort to
us in a petition for certiorari is highly improper, for it violates the established policy of
strict observance of the judicial hierarchy of courts. 37 This principle, as a rule, requires
that recourse must first be made to the lower-ranked court exercising concurrent
jurisdiction with a higher court. However, the judicial hierarchy of courts is not an ironclad rule. A strict application of the rule is not necessary when cases brought before the
appellate courts do not involve factual but legal questions. 38
In the present case, petitioner submits pure questions of law involving the effect of nonservice of summons following the death of the person to whom it should be served, and
the effect of the death of the complainant during the pendency of the case. We deem it
best to rule on these issues, not only for the benefit of the bench and bar, but in order to
prevent further delay in the trial of the case. Resultantly, our relaxation of the policy of
strict observance of the judicial hierarchy of courts is warranted.
Anent the first issue, petitioner argues that, since Sereno died before summons was
served on him, the RTC should have dismissed the complaint against all the defendants
and that the same should be filed against his estate.

The Sheriff's Return of Service39 dated May 19, 1997 states that Sereno could not be
served with copy of the summons, together with a copy of the complaint, because he
was already dead.
In view of Sereno's death, petitioner asks that the complaint should be dismissed, not
only against Sereno, but as to all the defendants, considering that the RTC did not
acquire jurisdiction over the person of Sereno.1avvph!1
Jurisdiction over a party is acquired by service of summons by the sheriff, his deputy or
other proper court officer, either personally by handing a copy thereof to the defendant
or by substituted service.40 On the other
hand, summons is a writ by which the defendant is notified of the action brought against
him. Service of such writ is the means by which the court may acquire jurisdiction over
his person.41
Records show that petitioner had filed a Motion to Dismiss on the grounds of lack of
legal personality of respondent; the allegations in the complaint did not sufficiently state
that respondent has a cause of action or a cause of action against the defendants; and,
the complaint was not accompanied by an affidavit of merit and bond. The RTC denied
the motion and held therein that, on the basis of the allegations of fact in the complaint,
it can render a valid judgment. Petitioner, subsequently, filed his answer by denying all
the material allegations of the complaint. And by way of special and affirmative
defenses, he reiterated that respondent had no legal personality to sue as she had no
real interest over the property and that while the truck was still registered in Pedro Te's
name, the same was already sold to Gasing.
Significantly, a motion to dismiss may be filed within the time for but before the filing of
an answer to the complaint or pleading asserting a claim. 42 Among the grounds
mentioned is the court's lack of jurisdiction over the person of the defending party.
As a rule, all defenses and objections not pleaded, either in a motion to dismiss or in an
answer, are deemed waived.43 The exceptions to this rule are: (1) when the court has no
jurisdiction over the subject matter, (2) when there is another action pending between
the parties for the same cause, or (3) when the action is barred by prior judgment or by
statute of limitations, in which cases, the court may dismiss the claim.
In the case before Us, petitioner raises the issue of lack of jurisdiction over the person
of Sereno, not in his Motion to Dismiss or in his Answer but only in his Omnibus Motion
to Dismiss. Having failed to invoke this ground at the proper time, that is, in a motion to
dismiss, petitioner cannot raise it now for the first time on appeal.
In fine, We cannot countenance petitioner's argument that the complaint against the
other defendants should have been dismissed, considering that the RTC never acquired
jurisdiction over the person of Sereno. The court's failure to acquire jurisdiction over
one's person is a defense which is personal to the person claiming it. Obviously, it is
now impossible for Sereno to invoke the same in view of his death. Neither can
petitioner invoke such ground, on behalf of Sereno, so as to reap the benefit of having
the case dismissed against all of the defendants. Failure to serve summons on Sereno's
person will not be a cause for the dismissal of the complaint against the other
defendants, considering that they have been served with copies of the summons and

complaints and have long submitted their respective responsive pleadings. In fact, the
other defendants in the complaint were given the chance to raise all possible defenses
and objections personal to them in their respective motions to dismiss and their
subsequent answers.
We agree with the RTC in its Order when it resolved the issue in this wise:
As correctly pointed by defendants, the Honorable Court has not acquired jurisdiction
over the person of Patricio Sereno since there was indeed no valid service of summons
insofar as Patricio Sereno is concerned. Patricio Sereno died before the summons,
together with a copy of the complaint and its annexes, could be served upon him.
However, the failure to effect service of summons unto Patricio Sereno, one of the
defendants herein does not render the action DISMISSIBLE, considering that the three
(3) other defendants, namely, Atty. Rogelio E. Sarsaba, Fulgencio Lavares and the
NLRC, were validly served with summons and the case with respect to the answering
defendants may still proceed independently. Be it recalled that the three (3) answering
defendants have previously filed a Motion to Dismiss the Complaint which was denied
by the Court.
Hence, only the case against Patricio Sereno will be DISMISSED and the same may be
filed as a claim against the estate of Patricio Sereno, but the case with respect to the
three (3) other accused will proceed.
Anent the second issue, petitioner moves that respondent's attorney-in-fact, Faustino
Castaeda, be discharged as he has no more legal personality to sue on behalf of Fe
Vda. de Te, who passed away on April 12, 2005, during the pendency of the case before
the RTC.
When a party to a pending action dies and the claim is not extinguished, the Rules of
Court require a substitution of the deceased.44 Section 1, Rule 87 of the Rules of Court
enumerates the actions that survived and may be filed against the decedent's
representatives as follows: (1) actions to recover real or personal property or an interest
thereon, (2) actions to enforce liens thereon, and (3) actions to recover damages for an
injury to a person or a property. In such cases, a counsel is obliged to inform the court
of the death of his client and give the name and address of the latter's legal
representative.45
The rule on substitution of parties is governed by Section 16, 46 Rule 3 of the 1997 Rules
of Civil Procedure, as amended.
Strictly speaking, the rule on substitution by heirs is not a matter of jurisdiction, but a
requirement of due process. The rule on substitution was crafted to protect every party's
right to due process. It was designed to ensure that the deceased party would continue
to be properly represented in the suit through his heirs or the duly appointed legal
representative of his estate. Moreover, non-compliance with the Rules results in the
denial of the right to due process for the heirs who, though not duly notified of the
proceedings, would be substantially affected by the decision rendered therein. Thus, it is
only when there is a denial of due process, as when the deceased is not represented by
any legal representative or heir, that the court nullifies the trial proceedings and the
resulting judgment therein.47

In the case before Us, it appears that respondent's counsel did not make any
manifestation before the RTC as to her death. In fact, he had actively participated in the
proceedings. Neither had he shown any proof that he had been retained by
respondent's legal representative or any one who succeeded her.
However, such failure of counsel would not lead Us to invalidate the proceedings that
have long taken place before the RTC. The Court has repeatedly declared that failure of
the counsel to comply with his duty to inform the court of the death of his client, such
that no substitution is effected, will not invalidate the proceedings and the judgment
rendered thereon if the action survives the death of such party. The trial court's
jurisdiction over the case subsists despite the death of the party.48
The purpose behind this rule is the protection of the right to due process of every party
to the litigation who may be affected by the intervening death. The deceased litigants
are themselves protected as they continue to be properly represented in the suit
through the duly appointed legal representative of their estate. 49
Anent the claim of petitioner that the special power of attorney50 dated March 4, 1997
executed by respondent in favor of Faustino has become functus officio and that the
agency constituted between them has been extinguished upon the death of respondent,
corollarily, he had no more personality to appear and prosecute the case on her behalf.
Agency is extinguished by the death of the principal. 51 The only exception where the
agency shall remain in full force and effect even after the death of the principal is when
if it has been constituted in the common interest of the latter and of the agent, or in the
interest of a third person who has accepted the stipulation in his favor.52
A perusal of the special power of attorney leads us to conclude that it was constituted
for the benefit solely of the principal or for respondent Fe Vda. de Te. Nowhere can we
infer from the stipulations therein that it was created for the common interest of
respondent and her attorney-in-fact. Neither was there any mention that it was to benefit
a third person who has accepted the stipulation in his favor.
On this ground, We agree with petitioner. However, We do not believe that such ground
would cause the dismissal of the complaint. For as We have said, Civil Case No. 3488,
which is an action for the recovery of a personal property, a motor vehicle, is an action
that survives pursuant to Section 1, Rule 87 of the Rules of Court. As such, it is not
extinguished by the death of a party.
In Gonzalez v. Philippine Amusement and Gaming Corporation,53 We have laid down
the criteria for determining whether an action survives the death of a plaintiff or
petitioner, to wit:
x x x The question as to whether an action survives or not depends on the nature of the
action and the damage sued for. If the causes of action which survive the wrong
complained [of] affects primarily and principally property and property rights, the injuries
to the person being merely incidental, while in the causes of action which do not survive
the injury complained of is to the person the property and rights of property affected
being incidental. x x x
Thus, the RTC aptly resolved the second issue with the following ratiocination:

While it may be true as alleged by defendants that with the death of Plaintiff, Fe Vda. de
Te, the Special Power of Attorney she executed empowering the Attorney-in-fact,
Faustino Castaeda to sue in her behalf has been rendered functus officio, however,
this Court believes that the Attorney-in-fact had not lost his personality to prosecute this
case.
It bears stressing that when this case was initiated/filed by the Attorney-in-fact, the
plaintiff was still very much alive.
Records reveal that the Attorney-in-fact has testified long before in behalf of the said
plaintiff and more particularly during the state when the plaintiff was vehemently
opposing the dismissal of the complainant. Subsequently thereto, he even offered
documentary evidence in support of the complaint, and this court admitted the same.
When this case was initiated, jurisdiction was vested upon this Court to try and hear the
same to the end. Well-settled is the rule to the point of being elementary that once
jurisdiction is acquired by this Court, it attaches until the case is decided.
Thus, the proper remedy here is the Substitution of Heirs and not the dismissal of this
case which would work injustice to the plaintiff.
SEC. 16, RULE 3 provides for the substitution of the plaintiff who dies pending hearing
of the case by his/her legal heirs. As to whether or not the heirs will still continue to
engage the services of the Attorney-in-fact is another matter, which lies within the sole
discretion of the heirs.
In fine, We hold that the petition should be denied as the RTC Order is interlocutory;
hence, not a proper subject of an appeal before the Court. In the same breath, We also
hold that, if the petition is to be treated as a petition for certiorari as a relaxation of the
judicial hierarchy of courts, the same is also dismissible for being substantially
insufficient to warrant the Court the nullification of the Order of the RTC.
Let this be an occasion for Us to reiterate that the rules are there to aid litigants in
prosecuting or defending their cases before the courts. However, these very rules
should not be abused so as to advance one's personal purposes, to the detriment of
orderly administration of justice. We can surmise from the present case herein
petitioner's manipulation in order to circumvent the rule on modes of appeal and the
hierarchy of courts so that the issues presented herein could be settled without going
through the established procedures. In Vergara, Sr. v. Suelto, 54 We stressed that this
should be the constant policy that must be observed strictly by the courts and lawyers,
thus:
x x x. The Supreme Court is a court of last resort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter and
immemorial tradition. It cannot and should not be burdened with the task of dealing with
causes in the first instance. Its original jurisdiction to issue the so-called extraordinary
writs should be exercised only where absolutely necessary or where serious and
important reasons exist therefor. Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also

within the competence of the Court of Appeals or a Regional Trial Court, it is in either of
these courts that the specific action for the writs procurement must be presented. This
is and should continue to be the policy in this regard, a policy that courts and lawyers
must strictly observe.55
WHEREFORE, premises considered, the Petition is DENIED. The Order dated March
22, 2006 of the Regional Trial Court, Branch 19, Digos, Davao del Sur in Civil Case No.
3488, is hereby AFFIRMED. Costs against the petitioner.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18148

February 28, 1963

DEOGRACIAS BERNARDO, executor of the testate estate of the deceased

EUSEBIO CAPILI; and the instituted heirs, namely: ARMANDO CAPILI and
ARTURO BERNARDO, ET AL., petitioners,
vs.
HON. COURT OF APPEALS and THE HEIRS OF THE LATE HERMOGENA REYES,
namely: FRANCISCO REYES, ET AL., and JOSE ISIDORO, ET AL., respondents.
Ambrosio Padilla Law Offices for petitioners.
Romerico F. Flores for respondents.
BARRERA, J.:
This is a petition by certiorari for the review of the decision of the Court of Appeals
affirming that of the Court of First Instance of Bulacan holding that the probate court in
Special Proceeding 1101 had jurisdiction to determine the validity of the deed of
donation in question and to pass upon the question of title or ownership of the
properties mentioned therein.
The facts are briefly stated in the appealed decision of the Court of Appeals as follows:
Eusebio Capili and Hermogena Reyes were husband and wife. The first died on
July 27, 1958 and a testate proceeding for the settlement of his estate was
instituted in the Court of the Fist Instance of Bulacan. His will was admitted to
probate on October 9, 1958, disposing of his properties in favor of his widow; his
cousins Armando, Ursula, and Buenaventura, all surnamed Capili; and Arturo,
Deogracias and Eduardo, all surnamed Bernardo. Hermogena Reyes herself
died on April 24, 1959. Upon petition of Deogracias Bernardo, executor of the
estate of the deceased Eusebio Capili, she was substituted by her collateral
relatives and intestate heirs, namely, Marcos, Vicente, Francisco and Dominga,
all surnamed Reyes; and Jose, Constancia, Raymunda and Elena, all surnamed
Isidoro.
On June 12, 1959, the executor filed a project of partition in the testate
proceeding in accordance with the terms of the will, adjudicating the estate of
Eusebio Capili among the testamentary heirs with the exception of Hermogena
Reyes, whose share was alloted to her collateral relatives aforementioned. On
June 16, 1959 these relatives filed an opposition to the executor's project of
partition and submitted a counter-project of partition of their own, claiming 1/2 of
the properties mentioned in the will of the deceased Eusebio Capili on the theory
that they belonged not to the latter alone but to the conjugal partnership of the
spouses.

The probate court, in two orders dated June 24, 1959 and February 10, 1960,
respectively, set the two projects of partition for hearing, at which evidence was
presented by the parties, followed by the submission of memoranda discussing
certain legal issues. In the memorandum for the executor and the instituted heirs
it was contended: (1) that the properties disposed of in the will of the deceased
Eusebio Capili belonged to him exclusively and not to the conjugal partnership,
because Hermogena Reyes had donated to him her half share of such
partnership; (2) that the collateral heirs of Hermogena Reyes had no lawful
standing or grounds to question the validity of the donation; and (3) that even
assuming that they could question the validity of the donation, the same must be
litigated not in the testate proceeding but in a separate civil action.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1wph1.t
The oppositors and heirs of Hermogena Reyes, on their part, argued that the
deed of donation itself was determinative of the original conjugal character to the
properties, aside from the legal presumption laid down in Article 160 of the Civil
Code, and that since the donation was null and void the deceased Eusebio Capili
did not become owner of the share of his wife and therefore could not validly
dispose of it in his will.
On September 14, 1960, the probate court, the Honorable M. Mejia presiding,
issued an order declaring the donation void without making any specific finding
as to its juridical nature, that is, whether it was inter vivos or mortis causa, for the
reason that, considered under the first category, it falls under Article 133 of the
Civil Code, which prohibits donations between spouses during the marriage; and
considered under the second category, it does not comply with the formalities of
a will as required by Article 728 in relation to Article 805 of the same Code, there
being no attestation clause. In the same order the court disapproved both
projects of partition and directed the executor to file another," dividing the
property mentioned in the last will and testament of the deceased Eusebio Capili
and the properties mentioned in the deed of donation, Exhibit B, between the
instituted heirs of the deceased Eusebio Capili and the legal heirs of the
deceased Hermogena Reyes, upon the basis that the said properties were
conjugal properties of the deceased spouses." On September 27, 1960, the
executor filed a motion for new trial, reiterating and emphasizing the contention
previously raised in their memorandum that the probate court had no jurisdiction
to take cognizance of the claim of the legal heirs of Hermogena Reyes involving
title to the properties mentioned in the will of Eusebio Capili and taking exception
to the court's declaration of the nullity of the donation "without stating facts or
provision of law on which it was based." The motion for new trial was denied in
an order dated October 3, 1960.
On appeal to the Court of Appeals the order appealed from being affirmed, petitioners
filed this present petition for review by certiorari.

The petitioners-appellants contend that the appellate court erred in not declaring that
the probate court, having limited and special jurisdiction, had generally no power to
adjudicate title and erred in applying the exception to the rule.
In a line of decisions, this Court consistently held that as a general rule, question as to
title to property cannot be passed upon on testate or intestate proceedings," 1 except
where one of the parties prays merely for the inclusion or exclusion from the inventory
of the property, in which case the probate court may pass provisionally upon the
question without prejudice to its final determination in a separate action. 2 However, we
have also held that when the parties interested are all heirs of the deceased, it is
optional to them to submit to the probate court a question as to title to property, and
when so submitted, said probate court may definitely pass judgment thereon (Pascual v.
Pascual, 73 Phil. 561; Manalac v. Ocampo, et al., 73 Phil. 661); and that with the
consent of the parties, matters affecting property under judicial administration may be
taken cognizance of by the court in the course of intestate proceeding, provided
interests of third persons are not prejudiced (Cunanan v. Amparo, 80 Phil. 229, 232).
In the light of this doctrine, may it be said correctly that the trial court as well as the
Court of Appeals erred in upholding the power of the probate court in this case to
adjudicate in the testate proceedings, the question as to whether the properties herein
involved belong to the conjugal partnership of Eusebio Capili and Hermogena Reyes, or
to the deceased husband exclusively?
At the outset, let it be clarified that the matter at issue is not a question of jurisdiction, in
the sense advanced by appellants that the trial court had completely no authority to
pass upon the title to the lands in dispute, and that its decision on the subject is null and
void and does not bind even those who had invoked its authority and submitted to its
decision because, it is contended, jurisdiction is a creature of law and parties to an
action can not vest, extend or broaden it. If appellants' contention is correct, then there
can be no exception to the no-jurisdiction theory. But as has been stated in the case
of Cunanan v. Amparo (supra) the Supreme Court speaking through Mr. Justice Pedro
Tuason: "Determination of title to property is within the jurisdiction of Courts of First
Instance. The responding Soriano's objection (that the probate court lacked jurisdiction
to order the delivery of the possession of the lots to the estate) relates exclusively to the
procedure, which is distinct from jurisdiction. It affects only personal rights to a mode of
practice (the filing of an independent ordinary action) which may be waived". Strictly
speaking, it is more a question of jurisdiction over the person, not over the subject
matter, for the jurisdiction to try controversies between heirs of a deceased person
regarding the ownership of properties alleged to belong to his estate, has been
recognized to be vested in probate courts. This is so because the purpose of an
administration proceeding is the liquidation of the estate and distribution of the residue
among the heirs and legatees. Liquidation means determination of all the assets of the
estate and payment of all the debts and expenses. 3 Thereafter, distribution is made of
the decedent's liquidated estate among the persons entitled to succeed him. The
proceeding is in the nature of an action of partition, in which each party is required to
bring into the mass whatever community property he has in his possession. To this end,
and as a necessary corollary, the interested parties may introduce proofs relative to the
ownership of the properties in dispute. All the heirs who take part in the distribution of
the decedent's estate are before the court, and subject to the jurisdiction thereof, in all

matters and incidents necessary to the complete settlement of such estate, so long as
no interests of third parties are affected.4
In the case now before us, the matter in controversy is the question of ownership of
certain of the properties involved whether they belong to the conjugal partnership or
to the husband exclusively. This is a matter properly within the jurisdiction of the probate
court which necessarily has to liquidate the conjugal partnership in order to determine
the estate of the decedent which is to be distributed among his heirs who are all parties
to the proceedings, including, of course, the widow, now represented because of her
death, by her heirs who have been substituted upon petition of the executor himself and
who have appeared voluntarily. There are no third parties whose rights may be affected.
It is true that the heirs of the deceased widow are not heirs of the testator-husband, but
the widow is, in addition to her own right to the conjugal property. And it is this right that
is being sought to be enforced by her substitutes. Therefore, the claim that is being
asserted is one belonging to an heir to the testator and, consequently, it complies with
the requirement of the exception that the parties interested (the petitioners and the
widow, represented by dents) are all heirs claiming title under the testator.
Petitioners contend additionally that they have never submitted themselves to the
jurisdiction of the probate court, for the purpose of the determination of the question of
ownership of the disputed properties. This is not borne by the admitted facts. On the
contrary, it is undisputed that they were the ones who presented the project of partition
claiming the questioned properties as part of the testator's asset. The respondents, as
representatives or substitutes of the deceased widow opposed the project of partition
and submitted another. As the Court of Appeals said, "In doing so all of them must be
deemed to have submitted the issue for resolution in the same proceeding. Certainly,
the petitioners can not be heard to insist, as they do, on the approval of their project of
partition and, thus, have the court take it for granted that their theory as to the character
of the properties is correct, entirely without regard to the opposition of the respondents".
In other words, by presenting their project of partition including therein the disputed
lands (upon the claim that they were donated by the wife to her husband), petitioners
themselves put in issue the question of ownership of the properties which is well
within the competence of the probate court and just because of an opposition
thereto, they can not thereafter withdraw either their appearance or the issue from the
jurisdiction of the court. Certainly, there is here a waiver where the parties who raise the
objection are the ones who set the court in motion. 5 They can not be permitted to
complain if the court, after due hearing, adjudges question against them. 6
Finally, petitioners-appellants claim that appellees are estopped to raise the question of
ownership of the properties involved because the widow herself, during her lifetime, not
only did not object to the inclusion of these properties in the inventory of the assets of
her deceased husband, but also signed an extra-judicial partition of those inventoried
properties. But the very authorities cited by appellants require that to constitute
estoppel, the actor must have knowledge of the facts and be appraised of his rights at
the time he performs the act constituting estoppel, because silence without knowledge
works no estoppel.7 In the present case, the deceased widow acted as she did because
of the deed of donation she executed in favor of her husband not knowing that such
deed was illegal, if inter-vivos, and ineffectual if mortis-causa, as it has not been
executed with the required formalities similar to a will.

WHEREFORE, the decision of the Court of Appeals being in accordance with law, the
same is hereby affirmed with costs against appellants. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes,
Dizon and Regala, JJ., concur.
Makalintal, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 169454

December 27, 2007

THE HEIRS OF MARCELINO DORONIO, NAMELY: REGINA AND FLORA, BOTH

SURNAMED DORONIO,Petitioners,
vs.
HEIRS OF FORTUNATO DORONIO, NAMELY: TRINIDAD ROSALINA DORONIOBALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA
ALCANTARA-MANALO, Respondents.
DECISION
REYES, R.T., J.:
For Our review on certiorari is the Decision1 of the Court of Appeals (CA) reversing
that2 of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta City, Pangasinan,
in an action for reconveyance and damages. The CA declared respondents as rightful
owners of one-half of the subject property and directed petitioners to execute a
registerable document conveying the same to respondents.
The Facts
Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered
owners of a parcel of land located at Barangay Cabalitaan, Asingan, Pangasinan
covered by Original Certificate of Title (OCT) No. 352.3The courts below described it as
follows:

Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con
propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y
Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el
camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos
metros cuadrados.4
The spouses had children but the records fail to disclose their number. It is clear,
however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were
among them and that the parties in this case are their heirs. Petitioners are the heirs
of Marcelino Doronio, while respondents are the heirs of Fortunato Doronio.
On April 24, 1919, a private deed of donation propter nuptias 5 was executed by spouses
Simeon Doronio and Cornelia Gante in favor of Marcelino Doronio and the latters wife,
Veronica Pico. One of the properties subject of said deed of donation is the one that it
described as follows:
Fourth A piece of residential land located in the barrio of Cabalitian but we did not
measure it, the area is bounded on the north by Gabriel Bernardino; on the east by
Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to
Villasis. Constructed on said land is a house of light materials also a part of the dowry.
Value 200.00.6
It appears that the property described in the deed of donation is the one covered by
OCT No. 352. However, there is a significant discrepancy with respect to the identity of
the owner of adjacent property at the eastern side. Based on OCT No. 352, the adjacent
owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of
donation, the owner of the adjacent property is Fortunato Doronio. Furthermore, said
deed of donation remained a private document as it was never notarized. 7
Both parties have been occupying the subject land for several decades 8 although they
have different theories regarding its present ownership. According to petitioners, they
are now the owners of the entire property in view of the private deed of donation propter
nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico.
Respondents, on the other hand, claim that only half of the property was actually
incorporated in the said deed of donation because it stated that Fortunato Doronio,
instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent
property at the eastern side. Respondents posit that the donors respected and
segregated the possession of Fortunato Doronio of the eastern half of the land. They
are the ones who have been possessing said land occupied by their predecessor,
Fortunato Doronio.
Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico
filed, on January 11, 1993, before the RTC in Urdaneta, Pangasinan a petition "For the
Registration of a Private Deed of Donation" 9docketed as Petition Case No. U-920. No
respondents were named in the said petition 10 although notices of hearing were posted
on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen. 11
During the hearings, no one interposed an objection to the petition. 12 After the RTC
ordered a general default,13the petition was eventually granted on September 22, 1993.
This led to the registration of the deed of donation, cancellation of OCT No. 352 and

issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of
Marcelino Doronio and Veronica Pico.14 Thus, the entire property was titled in the
names of petitioners predecessors.
On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the
form of a petition in the same Petition Case No. U-920. The petition was for the
reconsideration of the decision of the RTC that ordered the registration of the subject
deed of donation. It was prayed in the petition that an order be issued declaring null and
void the registration of the private deed of donation and that TCT No. 44481 be
cancelled. However, the petition was dismissed on May 13, 1994 on the ground that the
decision in Petition Case No. U-920 had already become final as it was not appealed.
Determined to remain in their possessed property, respondent heirs of Fortunato
Doronio (as plaintiffs) filed an action for reconveyance and damages with prayer for
preliminary injunction15 against petitioner heirs of Marcelino Doronio (as defendants)
before the RTC, Branch 45, Anonas, Urdaneta City, Pangasinan. Respondents
contended, among others, that the subject land is different from what was donated as
the descriptions of the property under OCT No. 352 and under the private deed of
donation were different. They posited that spouses Simeon Doronio and Cornelia Gante
intended to donate only one-half of the property.
During the pre-trial conference, the parties stipulated, among others, that the property
was originally covered by OCT No. 352 which was cancelled by TCT No. 44481. They
also agreed that the issues are: (1) whether or not there was a variation in the
description of the property subject of the private deed of donation and OCT No. 352; (2)
whether or not respondents had acquired one-half of the property covered by OCT No.
352 by acquisitive prescription; (3) whether or not the transfer of the whole property
covered by OCT No. 352 on the basis of the registration of the private deed of donation
notwithstanding the discrepancy in the description is valid; (4) whether or not
respondents are entitled to damages; and (5) whether or not TCT No. 44481 is valid. 16
RTC Decision
After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio
(defendants). It concluded that the parties admitted the identity of the land which they all
occupy;17 that a title once registered under the torrens system cannot be defeated by
adverse, open and notorious possession or by prescription; 18 that the deed of donation
in consideration of the marriage of the parents of petitioners is valid, hence, it led to the
eventual issuance of TCT No. 44481 in the names of said parents; 19 and that
respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they
are not the rightful owners of the portion of the property they are claiming. 20
The RTC disposed of the case, thus:
WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING
the herein Complaint filed by plaintiffs against defendants. 21
Disagreeing with the judgment of the RTC, respondents appealed to the CA. They
argued that the trial court erred in not finding that respondents predecessor-in-interest
acquired one-half of the property covered by OCT No. 352 by tradition and/or intestate
succession; that the deed of donation dated April 26, 1919 was null and void; that

assuming that the deed of donation was valid, only one-half of the property was actually
donated to Marcelino Doronio and Veronica Pico; and that respondents acquired
ownership of the other half portion of the property by acquisitive prescription. 22
CA Disposition
In a Decision dated January 26, 2005, the CA reversed the RTC decision with the
following disposition:
WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET
ASIDE. Declaring the appellants as rightful owners of one-half of the property now
covered by TCT No. 44481, the appellees are hereby directed to execute a registerable
document conveying the same to appellants.
SO ORDERED.23
The appellate court determined that "(t)he intention to donate half of the disputed
property to appellees predecessors can be gleaned from the disparity of technical
descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio and
Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919
in favor of appellees predecessors."24
The CA based its conclusion on the disparity of the following technical descriptions of
the property under OCT No. 352 and the deed of donation, to wit:
The court below described the property covered by OCT No. 352 as follows:
"Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con
propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y
Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el
camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos
metros cuadrados."
On the other hand, the property donated to appellees predecessors was described in
the deed of donation as:
"Fourth A piece of residential land located in the barrio of Cabalitian but we did not
measure it, the area is bounded on the north by Gabriel Bernardino; on the east by
Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to
Villasis. Constructed on said land is a house of light materials also a part of the dowry.
Value 200.00."25 (Emphasis ours)
Taking note "that the boundaries of the lot donated to Marcelino Doronio and Veronica
Pico differ from the boundaries of the land owned by spouses Simeon Doronio and
Cornelia Gante," the CA concluded that spouses Simeon Doronio and Cornelia Gante
donated only half of the property covered by OCT No. 352. 26
Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence,
the CA pointed out that, "while the OCT is written in the Spanish language, this
document already forms part of the records of this case for failure of appellees to
interpose a timely objection when it was offered as evidence in the proceedings a quo. It

is a well-settled rule that any objection to the admissibility of such evidence not raised
will be considered waived and said evidence will have to form part of the records of the
case as competent and admitted evidence."27
The CA likewise ruled that the donation of the entire property in favor of petitioners
predecessors is invalid on the ground that it impairs the legitime of respondents
predecessor, Fortunato Doronio. On this aspect, the CA reasoned out:
Moreover, We find the donation of the entire property in favor of appellees
predecessors invalid as it impairs the legitime of appellants predecessor. Article 961 of
the Civil Code is explicit. "In default of testamentary heirs, the law vests the inheritance,
x x x, in the legitimate x x x relatives of the deceased, x x x." As Spouses Simeon
Doronio and Cornelia Gante died intestate, their property shall pass to their lawful heirs,
namely: Fortunato and Marcelino Doronio. Donating the entire property to Marcelino
Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to
divesting the latter of his rightful share in his parents inheritance. Besides, a persons
prerogative to make donations is subject to certain limitations, one of which is that he
cannot give by donation more than what he can give by will (Article 752, Civil Code). If
he does, so much of what is donated as exceeds what he can give by will is deemed
inofficious and the donation is reducible to the extent of such excess. 28
Petitioners were not pleased with the decision of the CA. Hence, this petition under Rule
45.
Issues
Petitioners now contend that the CA erred in:
1. DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE
NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF.
2. (RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS
DONATED TO THE PREDECESSORS-IN-INTEREST OF THE HEREIN
APPELLANTS.
3. (ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS
INNOFICIOUS, IS PREMATURE, AND THUS IT IS ILLEGAL AND
UNPROCEDURAL.29
Our Ruling
OCT No. 352 in Spanish Although Not
Translated into English or Filipino Is
Admissible For Lack of Timely Objection
Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is
written in Spanish language. They posit that "(d)ocumentary evidence in an unofficial
language shall not be admitted as evidence, unless accompanied with a translation into
English or Filipino."30

The argument is untenable. The requirement that documents written in an unofficial

language must be accompanied with a translation in English or Filipino as a prerequisite
for its admission in evidence must be insisted upon by the parties at the trial to enable
the court, where a translation has been impugned as incorrect, to decide the
issue.31 Where such document, not so accompanied with a translation in English or
Filipino, is offered in evidence and not objected to, either by the parties or the court, it
must be presumed that the language in which the document is written is understood by
all, and the document is admissible in evidence.32
Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides:
SECTION 36. Objection. Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a witness
shall be made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of
the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified. (Emphasis ours)
Since petitioners did not object to the offer of said documentary evidence on time, it is
now too late in the day for them to question its admissibility. The rule is that evidence
not objected may be deemed admitted and may be validly considered by the court in
arriving at its judgment.33 This is true even if by its nature, the evidence is inadmissible
and would have surely been rejected if it had been challenged at the proper time. 34
As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit "A,"
that is, OCT No. 352 in their comment35 on respondents formal offer of documentary
evidence. In the said comment, petitioners alleged, among others, that "Exhibits A, B, C,
D, E, F and G, are admitted but not for the purpose they are offered because these
exhibits being public and official documents are the best evidence of that they contain
and not for what a party would like it to prove." 36 Said evidence was admitted by the
RTC.37 Once admitted without objection, even though not admissible under an objection,
We are not inclined now to reject it.38 Consequently, the evidence that was not objected
to became property of the case, and all parties to the case are considered amenable to
any favorable or unfavorable effects resulting from the said evidence. 39
Issues on Impairment of Legitime
Should Be Threshed Out in a Special
Proceeding, Not in Civil Action for
Reconveyance and Damages
On the other hand, petitioners are correct in alleging that the issue regarding the
impairment of legitime of Fortunato Doronio must be resolved in an action for the
settlement of estates of spouses Simeon Doronio and Cornelia Gante. It may not be
passed upon in an action for reconveyance and damages. A probate court, in the
exercise of its limited jurisdiction, is the best forum to ventilate and adjudge the issue of
impairment of legitime as well as other related matters involving the settlement of
estate.40

An action for reconveyance with damages is a civil action, whereas matters relating to
settlement of the estate of a deceased person such as advancement of property made
by the decedent, partake of the nature of a special proceeding. Special proceedings
require the application of specific rules as provided for in the Rules of Court. 41
As explained by the Court in Natcher v. Court of Appeals: 42
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special
proceedings, in this wise:
x x x a) A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to specific rules prescribed for a special civil action.
xxxx
c) A special proceeding is a remedy by which a party seeks to establish a status, a right
or a particular fact.
As could be gleaned from the foregoing, there lies a marked distinction between an
action and a special proceeding. An action is a formal demand of ones right in a court
of justice in the manner prescribed by the court or by the law. It is the method of
applying legal remedies according to definite established rules. The term "special
proceeding" may be defined as an application or proceeding to establish the status or
right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings
are required unless the statute expressly so provides. In special proceedings, the
remedy is granted generally upon an application or motion.
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:
It may accordingly be stated generally that actions include those proceedings which are
instituted and prosecuted according to the ordinary rules and provisions relating to
actions at law or suits in equity, and that special proceedings include those proceedings
which are not ordinary in this sense, but is instituted and prosecuted according to some
special mode as in the case of proceedings commenced without summons and
prosecuted without regular pleadings, which are characteristics of ordinary actions x x x.
A special proceeding must therefore be in the nature of a distinct and independent
proceeding for particular relief, such as may be instituted independently of a pending
action, by petition or motion upon notice.
Applying these principles, an action for reconveyance and annulment of title with
damages is a civil action, whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made by the decedent, partake of
the nature of a special proceeding, which concomitantly requires the application of
specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent
fall within the exclusive province of the probate court in the exercise of its limited
jurisdiction.

Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement

made or alleged to have been made by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate proceedings, and the final order
of the court thereon shall be binding on the person raising the questions and on the heir.
While it may be true that the Rules used the word "may," it is nevertheless clear that the
same provision contemplates a probate court when it speaks of the "court having
jurisdiction of the estate proceedings."
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction,
is devoid of authority to render an adjudication and resolve the issue of advancement of
the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075
for reconveyance and annulment of title with damages is not, to our mind, the proper
vehicle to thresh out said question. Moreover, under the present circumstances, the
RTC of Manila, Branch 55, was not properly constituted as a probate court so as to
validly pass upon the question of advancement made by the decedent Graciano Del
Rosario to his wife, herein petitioner Natcher.
We likewise find merit in petitioners contention that before any conclusion about the
legal share due to a compulsory heir may be reached, it is necessary that certain steps
be taken first.43 The net estate of the decedent must be ascertained, by deducting all
payable obligations and charges from the value of the property owned by the deceased
at the time of his death; then, all donations subject to collation would be added to it.
With the partible estate thus determined, the legitime of the compulsory heir or heirs can
be established; and only then can it be ascertained whether or not a donation had
prejudiced the legitimes.44
Declaration of Validity of Donation
Can Be Challenged by an Interested
Party Not Impleaded in Petition for
Quieting of Title or Declaratory Relief
or Where There is No Res Judicata.
Moreover, This Court Can Consider
a Factual Matter or Unassigned Error
in the Interest of Substantial Justice.
Nevertheless, petitioners cannot preclude the determination of validity of the deed of
donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has
already been determined with finality by the RTC in Petition Case No. U-920; or (3) the
only issue in an action for reconveyance is who has a better right over the land. 45
The validity of the private deed of donation propter nuptias in favor of petitioners
predecessors was one of the issues in this case before the lower courts. The pre-trial
order46 of the RTC stated that one of the issues before it is "(w)hether or not the transfer
of the whole property covered by OCT No. 352 on the basis of the private deed of
donation notwithstanding the discrepancy in the description is valid." Before the CA, one
of the errors assigned by respondents is that "THE TRIAL COURT ERRED IN NOT
FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919 WAS
NULL AND VOID."47

The issue of the validity of donation is likewise brought to Us by petitioners as they

stated in their Memorandum48that one of the issues to be resolved is regarding the
alleged fact that "THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE
DONATION INVALID." We are thus poised to inspect the deed of donation and to
determine its validity.
We cannot agree with petitioners contention that respondents may no longer question
the validity of the deed of donation on the ground that they already impliedly admitted it.
Under the provisions of the Civil Code, a void contract is inexistent from the beginning.
The right to set up the defense of its illegality cannot be waived. 49 The right to set up the
nullity of a void or non-existent contract is not limited to the parties as in the case of
annullable or voidable contracts; it is extended to third persons who are directly affected
by the contract.50
Consequently, although respondents are not parties in the deed of donation, they can
set up its nullity because they are directly affected by the same. 51 The subject of the
deed being the land they are occupying, its enforcement will definitely affect them.
Petitioners cannot also use the finality of the RTC decision in Petition Case No. U92052 as a shield against the verification of the validity of the deed of donation.
According to petitioners, the said final decision is one for quieting of title. 53 In other
words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of
Court, which provides:
SECTION 1. Who may file petition. Any person interested under a deed, will, contract
or other written instrument, or whose rights are affected by a statute, executive order or
regulation, or ordinance, may, before breach or violation thereof, bring an action to
determine any question of construction or validity arising under the instrument or statute
and for a declaration of his rights or duties thereunder.
An action for the reformation of an instrument, to quiet title to real property or remove
clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may
be brought under this rule.
SECTION 2. Parties. All persons shall be made parties who have or claim any interest
which would be affected by the declaration; and no declaration shall, except as
otherwise provided in these rules, prejudice the rights of persons not parties to the
action. (Emphasis ours)
However, respondents were not made parties in the said Petition Case No. U920.1wphi1 Worse, instead of issuing summons to interested parties, the RTC merely
allowed the posting of notices on the bulletin boards of Barangay Cabalitaan,
Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing
the ruling of the RTC:
x x x In the said case or Petition No. U-920, notices were posted on the bulletin boards
of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that
there was a notice to the whole world and during the initial hearing and/or hearings, no
one interposed objection thereto.54

Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in
personam, but being against the person in respect of the res, these proceedings are
characterized as quasi in rem.55 The judgment in such proceedings is conclusive only
between the parties.56 Thus, respondents are not bound by the decision in Petition Case
No. U-920 as they were not made parties in the said case.
The rules on quieting of title57 expressly provide that any declaration in a suit to quiet
title shall not prejudice persons who are not parties to the action.
That respondents filed a subsequent pleading 58 in the same Petition Case No. U-920
after the decision there had become final did not change the fact that said decision
became final without their being impleaded in the case. Said subsequent pleading was
dismissed on the ground of finality of the decision. 59
Thus, the RTC totally failed to give respondents their day in court. As a result, they
cannot be bound by its orders. Generally accepted is the principle that no man shall be
affected by any proceeding to which he is a stranger, and strangers to a case are not
bound by judgment rendered by the court. 60
Moreover, for the principle of res judicata to apply, the following must be present: (1) a
decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final;
and (4) the two actions involve identical parties, subject matter and causes of
action.61 The fourth element is not present in this case. The parties are not identical
because respondents were not impleaded in Petition Case No. U-920. While the subject
matter may be the same property covered by OCT No. 352, the causes of action are
different. Petition Case No. U-920 is an action for declaratory relief while the case below
is for recovery of property.
We are not persuaded by petitioners posture that the only issue in this action for
reconveyance is who has a better right over the land; and that the validity of the deed of
donation is beside the point.62 It is precisely the validity and enforceability of the deed of
donation that is the determining factor in resolving the issue of who has a better right
over the property. Moreover, notwithstanding procedural lapses as to the
appropriateness of the remedies prayed for in the petition filed before Us, this Court can
brush aside the technicalities in the interest of justice. In some instances, this Court
even suspended its own rules and excepted a case from their operation whenever the
higher interests of justice so demanded.63
Moreover, although respondents did not directly raise the issue of validity of the deed of
donation at the commencement of the case before the trial court, it was stipulated 64 by
the parties during the pre-trial conference. In any event, this Court has authority to
inquire into any question necessary in arriving at a just decision of a case before
it.65 Though not specifically questioned by the parties, additional issues may also be
included, if deemed important for substantial justice to be rendered. 66
Furthermore, this Court has held that although a factual issue is not squarely raised
below, still in the interest of substantial justice, this Court is not prevented from
considering a pivotal factual matter. The Supreme Court is clothed with ample authority
to review palpable errors not assigned as such if it finds that their consideration is
necessary in arriving at a just decision. 67

A rudimentary doctrine on appealed cases is that this Court is clothed with ample
authority to review matters, even if they are not assigned as errors on appeal, if it finds
that their consideration is necessary at arriving at a just decision of the case. 68 Also, an
unassigned error closely related to an error properly assigned or upon which the
determination of the question raised by the error properly assigned is dependent, will be
considered by the appellate court notwithstanding the failure to assign it as an error. 69
Donation Propter Nuptias of Real
Property Made in a Private Instrument
Before the New Civil Code Took Effect
on August 30, 1950 is Void
We now focus on the crux of the petition, which is the validity of the deed of
donation.1avvphi1 It is settled that only laws existing at the time of the execution of a
contract are applicable to it and not the later statutes, unless the latter are specifically
intended to have retroactive effect.70 Accordingly, the Old Civil Code applies in this case
as the donation propter nuptias was executed in 1919, while the New Civil Code took
effect only on August 30, 1950.
Under the Old Civil Code, donations propter nuptias must be made in a public
instrument in which the property donated must be specifically described. 71 Article 1328
of the Old Civil Code provides that gifts propter nuptias are governed by the rules
established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that
the gift of real property, in order to be valid, must appear in a public document. 72 It is
settled that a donation of real estate propter nuptias is void unless made by public
instrument.73
In the instant case, the donation propter nuptias did not become valid. Neither did it
create any right because it was not made in a public instrument. 74 Hence, it conveyed
no title to the land in question to petitioners predecessors.
Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No.
44481 in favor of petitioners predecessors have no legal basis. The title to the subject
property should, therefore, be restored to its original owners under OCT No. 352.
Direct reconveyance to any of the parties is not possible as it has not yet been
determined in a proper proceeding who among the heirs of spouses Simeon Doronio
and Cornelia Gante is entitled to it. It is still unproven whether or not the parties are the
only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As
earlier intimated, there are still things to be done before the legal share of all the heirs
can be properly adjudicated.75
Titled Property Cannot Be Acquired
By Another By Adverse Possession
or Extinctive Prescription
Likewise, the claim of respondents that they became owners of the property by
acquisitive prescription has no merit. Truth to tell, respondents cannot successfully
invoke the argument of extinctive prescription. They cannot be deemed the owners by
acquisitive prescription of the portion of the property they have been possessing. The
reason is that the property was covered by OCT No. 352. A title once registered under

the torrens system cannot be defeated even by adverse, open and notorious
possession; neither can it be defeated by prescription. 76 It is notice to the whole world
and as such all persons are bound by it and no one can plead ignorance of the
registration.77
The torrens system is intended to guarantee the integrity and conclusiveness of the
certificate of registration, but it cannot be used for the perpetration of fraud against the
real owner of the registered land.78 The system merely confirms ownership and does not
create it. Certainly, it cannot be used to divest the lawful owner of his title for the
purpose of transferring it to another who has not acquired it by any of the modes
allowed or recognized by law. It cannot be used to protect a usurper from the true
owner, nor can it be used as a shield for the commission of fraud; neither does it permit
one to enrich himself at the expense of another.79 Where such an illegal transfer is
made, as in the case at bar, the law presumes that no registration has been made and
so retains title in the real owner of the land.80
Although We confirm here the invalidity of the deed of donation and of its resulting TCT
No. 44481, the controversy between the parties is yet to be fully settled. The issues as
to who truly are the present owners of the property and what is the extent of their
ownership remain unresolved. The same may be properly threshed out in the settlement
of the estates of the registered owners of the property, namely: spouses Simeon
Doronio and Cornelia Gante.
WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is
entered:
(1) Declaring the private deed of donation propter nuptias in favor of petitioners
predecessors NULL AND VOID; and
(2) Ordering the Register of Deeds of Pangasinan to:
(a) CANCEL Transfer Certificate of Title No. 44481 in the names of
Marcelino Doronio and Veronica Pico; and
(b) RESTORE Original Certificate of Title No. 352 in the names of its
original owners, spouses Simeon Doronio and Cornelia Gante.
SO ORDERED.
RUBEN T. REYES
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-15445

April 29, 1961

IN THE MATTER OF THE INTESTATE ESTATE OF THE DECEASED MERCEDES

CANO. FLORANTE C. TIMBOL, administrator-appellee,
vs.
JOSE CANO, oppositor-appellant.
Jose P. Fausto for administrator-appellee.
Filemon Cajator for oppositor-appellant.
LABRADOR, J.:
Appeal from an order of the Court of First Instance of Pampanga, Hon. Arsenio Santos,
presiding, dated August 25, 1958, approving petitions of the administrator Florante C.
Timbol dated January 6 and 8, 1958. The order appealed from authorizes the
administrator to increase the area of a subdivision to be formed out of the lands under
administration from 30 hectares to 41.9233 hectares and approves the plan of such
increased area.
The intestate Mercedes Cano died in August, 1945, leaving as her only heir her son
Florante C. Timbol then only 11 years old. On September 27, 1946, Jose Cano, brother
of the intestate, was appointed administrator. On April 13, 1951 Jose Cano, filed a
petition, thru his counsel Atty. Filemon Cajator, also an uncle of the minor Florante C.
Timbol, proposing that the agricultural lands of the intestate be leased to the
administrator Jose Cano for an annual rental of P4,000, this rental to be used for the
maintenance of the minor and the payment of land taxes and dues to the government.
Judge Edilberto Barot, then presiding the court, approved the motion in an order dated
April 27, 1951, which reads:
WHEREFORE, the motion of the administrator and his lawyer dated April
13,1951, is hereby granted under the conditions therein set forth and the further

condition that all previous obligations of the administration including the previous
deficits are assumed by said administrator, and that the arrangement will
continue only as long as, in the judgment of contageous to the heir, the Court, the
same continues to be advantageous to the heir, Florante C. Timbol. (p. 27, Rec.
on Appeal)
On January 14, 1956 the court, upon motion of the administrator and the conformity of
the minor heir and his uncles, approved the reduction of the annual rental of the
agricultural lands of the intestate leased to the administrator from P4,000 to P2,400 and
the conversion of 30 hectares of the agricultural lands into a subdivision.
On April 2, 1957, upon motion of the administrator, a project of partition was approved,
designating Florante C. Timbol the sole and exclusive heir of all the properties of the
intestate.
On June 6, 1957 Florante C. Timbol was appointed administrator in place of Jose Cano
and on January 6, 1958 he presented a motion, which he modified ina subsequent one
of January 8, 1958, alleging among other things (a) that the area destined for the
projected subdivision be increased from 30 hectares to 41.9233 hectares and (b) that
the plan submitted be approved. The motions were approved but the approval was
immediately thereafter set aside to give opportunity to the former administrator and
lessee Jose Cano to formulate his objections to the motions. Cano's objections are (1)
that the enlargement of the subdivision would reduce the land leased to him and would
deprive his tenants of their landholdings, and (b) that he is in possession under express
authority of the court, under a valid contract, and may not be deprived of his leasehold
summarily upon a simple petition.
The court granted the motions of the administrator, overruling the objections of Jose
Cano, in the order now subject of appeal, which reads:
The said contract of lease is on all forms illegal. Under article 1646 of the Civil
Code of the Philippines, a new provision, "the persons disqualified to buy
referred to in articles 1490 and 1491, are also disqualified to become lessee of
the things mentioned therein," and under article 1491 (3) o the same Code,
executors and administrators cannot acquire by purchase the property of the
estate under administration.
If, as already stated, Florante C. Timbol was only pointed administrator on June
6, 1957 and the said contract of lease having been executed on July 9, 1956, the
same fall within the prohibition provided by law. However, Jose C. Cano avers
that this Court, in the instant proceedings, cannot pass upon the legality of the
aforesaid lease contract, but in its general jurisdiction. There is no need for the
court to declare such contract illegal and, therefore, null and void as the law so
expressly provides.
WHEREFORE, in view of the foregoing considerations the court hereby grants
Florante C. Timbol's petitions date January 6 and 8, 1958, approving the
amended plan for sub division, attached thereto, and overrules Jose C. Cano's
motion for reconsideration dated May 9, same year. (pp. 151-152 Record on
Appeal) The above is the subject of the present appeal.

The above is the subject of the present appeal.

In the first assignment of error appellant claims that the consideration of the motions of
the administrator July 6 and 8, 1958, without due notice to him, who is lessee is a
violation of the Rules of Court. This objection lost its force when the court, motu
proprio set aside it first order of approval and furnished copy of the motion to appellant
and gave him all the opportunity to present his objections thereto.
In the second and third assignments of error appellant argues that the court below, as a
probate court, has no jurisdiction to deprive the appellant of his rights under the lease,
because these rights may be annulled or modified only by a court of general jurisdiction.
The above arguments are without merit. In probate proceedings the court orders the
probate of the will of the decedent (Rule 80, See. 5); grants letters of administration to
the party best entitled thereto or to any qualified applicant (Id., Sec. 6); supervises and
controls all acts of administration; hears and approves claims against the estate of the
deceased (Rule 87, See. 13); orders payment of lawful debts (Rule 89, Sec. 14);
authorizes sale, mortgage or any encumbrance of real estate (Rule 90, Sec. 2); directs
the delivery of the estate to those entitled thereto (Rule 91, See. 1). It has been held
that the court acts as a trustee, and as such trustee, should jealously guard the estate
and see that it is wisely and economically administered, not dissipated. (Tambunting vs.
San Jose, G.R. No. L-8152.) .
Even the contract of lease under which the appellant holds the agricultural lands of the
intestate and which he now seeks to protect, was obtained with the court's approval. If
the probate court has the right to approve the lease, so may it order its revocation, or
the reduction of the subject of the lease. The matter of giving the property to a lessee is
an act of administration, also subject to the approval of the court. Of course, if the court
abuses its discretion in the approval of the contracts or acts of the administrator, its
orders may be subject to appeal and may be reversed on appeal; but not because the
court may make an error may it be said that it lacks jurisdiction to control acts of
administration of the administrator.
In the fourth assignment of error, appellant argues that the effect of the reduction of the
area under lease would be to deprive the tenants of appellant of their landholdings. In
the first place, the tenants know ought to know that the lands leased are lands under
administration, subject to be sold, divided or finally delivered to the heir, according to the
progress of the administration of the lands of the intestate. The order appealed from
does not have the effect of immediately depriving them of their landholdings; the order
does not state so, it only states that the lands leased shall be reduced and subdivided. If
they refuse to leave their landholdings, the administrator will certainly proceed as the
law provides. But in the meanwhile, the lessee cannot allege the rights of his tenants as
an excuse for refusing the reduction ordered by the court.
In the fifth assignment of error, appellant claims that his rights as lessee would be
prejudiced because the land leased would be reduced without a corresponding
reduction in the rentals. This would be a matter to be litigate between the administrator
and himself before the probate court. But the fact of the prejudice alone cannot bar
reduction of the land leased, because such reduction is necessary to raise funds with
which to pay and liquidate the debts of the estate under administration.

The sixth assignment of error merits no attention on our part; it is appellant himself who,
as administrator since 1945, has delayed the settlement of the estate.
In the seventh assignment of error, appellant argues that since the project of partition
had already been approved and had become final, the lower court has lost jurisdiction to
appoint a new administrator or to authorize the enlargement of the land to be converted
into a subdivision. This assignment of error needs but a passing mention. The probate
court loses jurisdiction of an estate under administration only after the payment of all the
debts the remaining estate delivered to the heirs entitled to receive the same. In the
case at bar, the debts had not yet been paid, and the estate had not yet been delivered
to the heirs as such heir.
We have taken pains to answer all the arguments adduced by the appellant on this
appeal. But all said arguments are squarely laid to naught by the declaration of the court
that the lease of the agricultural lands of the estate to the appellant Cano, who was the
administrator at the time the lease was granted, is null and void not only because it is
immoral but also because the lease by the administrator to himself is prohibited by law.
(See Arts. 1646 and 1491, Civil Code of the Philippines). And in view of the declaration
of the court below that the lease is null and void, which declaration we hereby affirm, it
would seem proper for the administrator under the direction of the court, to take steps to
get back the lands leased from the appellant herein, or so much thereof as is needed in
the course of administration.
The court order appealed from is hereby affirmed, with costs against the appellant.
Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes
and Dizon, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-26695 January 31, 1972

JUANITA LOPEZ GUILAS, petitioner,
vs.
JUDGE OF THE COURT OF FIRST INSTANCE OF PAMPANGA AND ALEJANDRO
LOPEZ respondents .
Filemon Cajator for petitioner.
Eligio G. Lagman for respondent Alejandro Lopez.

MAKASIAR, J.:p
It appears from the records that Jacinta Limson de Lopez, of Guagua, Pampanga was
married to Alejandro Lopez y Siongco. They had no children.
On April 28, 1936, Jacinta executed a will instituting her husband Alejandro as her sole
heir and executor (pp. 20-21, rec.).
In a Resolution dated October 26, 1953 in Sp. Proc. No. 894 entitled "En el Asunto de la
Adopcion de la Menor Juanita Lopez y Limson" (pp. 92-94, 103, rec.), herein petitioner
Juanita Lopez, then single and now married to Federico Guilas, was declared legally
adopted daughter and legal heir of the spouses Jacinta and Alejandro. After adopting
legally herein petitioner Juanita Lopez, the testatrix Doa Jacinta did not execute
another will or codicil so as to include Juanita Lopez as one of her heirs.
In an order dated March 5, 1959 in Testate Proceedings No. 1426, the aforementioned
will was admitted to probate and the surviving husband, Alejandro Lopez y Siongco,
was appointed executor without bond by the Court of First Instance of Pampanga
(Annexes "A" and "B", pp. 18-23, rec.). Accordingly, Alejandro took his oath of office as
executor (Annex "C", p. 24, rec.).
Nevertheless, in a project of partition dated March 19, 1960 executed by both Alejandro
Lopez and Juanita Lopez Guilas, the right of Juanita Lopez to inherit from Jacinta was
recognized and Lots Nos. 3368 and 3441 (Jacinta's paraphernal property), described
and embraced in Original Certificate of Title No. 13092, both situated in Bacolor
Pampanga Lot 3368 with an area of 68,141 square meters and Lot 3441 with an area
of 163,231 square meters, then assessed respectively at P3,070.00 and P5,800.00

(Annex "D", pp. 27-36, rec.) were adjudicated to Juanita Lopez-Guilas as her share
free from all liens, encumbrances and charges, with the executor Alejandro Lopez,
binding himself to free the said two parcels from such liens, encumbrances and
charges. The rest of the estate of the deceased consisting of 28 other parcels of lands
with a total assessed valuation of P69,020.00 and a combined area of 743,924.67
square meters, as well as personal properties including a 1953 Buick car valued at
P2,500.00 were allotted to Don Alejandro who assumed all the mortgage liens on the
estate (Annex "D", pp. 25-37, rec.).
In an order dated April 23, 1960, the lower court approved the said project of partition
and directed that the records of the case be sent to the archives, upon payment of the
estate and inheritance taxes (Annex "E", p. 38, rec.). Upon ex-parte petition of the
adjudicatees Alejandro Lopez and Juanita Lopez-Guilas dated August 25, 1961 (Annex
"F", pp. 39-40, rec.), the lower court in an order dated August 28, 1961, approved the
correction of clerical errors appearing in the project of partition (Annex "G", p. 41, rec.).
On April 10, 1964, herein petitioner Juanita Lopez-Guilas filed a separate ordinary
action to set aside and annul the project of partition, which case was docketed as Civil
Case 2539 entitled "Juanita Lopez-Guilas vs. Alejandro Lopez" in the Court of First
Instance of Pampanga, on the ground of lesion, perpetration and fraud, and pray further
that Alejandro Lopez be ordered to submit a statement of accounts of all the crops and
to deliver immediately to Juanita lots nos. 3368 and 3441 of the Bacolor Cadastre,
which were allocated to her under the project of partition (p. 132, rec.).
Meanwhile, in Testate Proceedings No. 1426, Juanita filed a petition dated July 20,
1964 praying that Alejandro Lopez be directed to deliver to her the actual possession of
said lots nos. 3368 and 3441 as well as the 1,216 caverns of palay that he collected
from the ten (10) tenants or lessees of the said two lots (Annex "H", pp. 42-44, rec.).
In his opposition dated August 5, 1964 to the said petition, Alejandro Lopez claims that,
by virtue of the order dated April 23, 1960 which approved the project of partition
submitted by both Alejandro and Juanita and directed that the records of the case be
archived upon payment of the estate and inheritance taxes, and the order of December
15, 1960 which "ordered closed and terminated the present case", the testate
proceedings had already been closed and terminated; and that he ceased as a
consequence to be the executor of the estate of the deceased; and that Juanita Lopez
is guilty of laches and negligence in filing the petition of the delivery of her share 4 years
after such closure of the estate, when she could have filed a petition for relief of
judgment within sixty (60) days from December 15, 1960 under Rule 38 of the old Rules
of Court (Annex "I") citing A. Austria vs. Heirs of Antonio Ventenilla, L-100808, Sept. 18,
1956 (pp. 45-48, rec.).
In her reply dated November 17, 1965 to said opposition, Juanita contends that the
actual delivery and distribution of the hereditary shares to the heirs, and not the order of
the court declaring as closed and terminated the proceedings, determines the
termination of the probate proceedings (citing Intestate estate of the deceased
Mercedes Cano, Timbol vs. Cano, 59 O.G. No. 30, pp. 46-73, April 29, 1961, where it
was ruled that "the probate court loses jurisdiction of an estate under administration only
after the payment of all the taxes, and after the remaining estate is delivered to the heirs
entitled to receive the same"); that the executor Alejandro is estopped from opposing

her petition because he was the one who prepared, filed and secured court approval of,
the aforesaid project of partition, which she seeks to be implemented; that she is not
guilty of laches, because when she filed on July 20, 1964, her petition for he delivery of
her share allocated to her under the project of partition, less than 3 years had elapsed
from August 28, 1961 when the amended project of partition was approved, which is
within the 5-year period for the execution of judgment by motion (Annex "J", pp. 49-52,
rec.).
In its order dated October 2, 1964, the lower court after a "pre-trial" stated that because
the civil action for the annulment of the project of partition was filed on April 13, 1964,
before the filing on July 2, 1964 of the petition for delivery of the shares of Juanita
Lopez, "the parties have agreed to suspend action or resolution upon the said petition
for the delivery of shares until; after the civil action aforementioned has been finally
settled and decided", and forthwith set the civil action for annulment for trial on
November 25, and December 2, 1964 (Annex "K", pp. 53-54, rec.).
On June 11, 1965, Juanita filed an amended complaint in Civil Case 2539 (pp. 78-110,
rec.), where she acknowledges the partial legality and validity of the project of partition
insofar as the allocation in her favor of the Lots Nos. 3368 and 3441, the delivery of
which she is seeking (pp. 106-107, rec.).
In her motion dated November 17, 1965, Juanita sought the setting aside of the order
dated October 2, 1964 on the ground that while the said order considered her action for
annulment of the project of partition as a prejudicial question, her filing an amended
complaint on June 11, 1965 in civil case No. 2539 wherein she admitted the partial
legality and validity of the project of partition with respect to the adjudication to her of
the two lots as her share, rendered said civil case No. 2539 no longer a prejudicial
question to her petition of July 20, 1964 for the delivery of her share (Annex "L", pp. 5559, rec.).
Alejandro filed his opposition dated December 1, 1965 to the aforesaid motion of
Juanita to set aside the order dated October 2, 1964 (Annex "M", pp. 60-61, rec.), to
which Juanita filed her rejoinder dated December 6, 1965 wherein she stated among
others that pursuant to the project of partition, executor Alejandro secured the
cancellation of OCT. No. 13093 covering the two parcels of land adjudicated to her
under the project of partition and the issuance in his exclusive name on August 4, 1961
TCT No. 26638-R covering the said Lots Nos. 3368 and 3441 of the Bacolor Cadastre
(Annex "N", pp. 62-71, rec.).
In an order dated April 27, 1966, the lower court denied Juanita's motion to set aside the
order of October 2, 1964 on the ground that the parties themselves agreed to suspend
resolution of her petition for the delivery of her shares until after the civil action for
annulment of the project of partition has been finally settled and decided (Annex "O", p.
72, rec.).
Juanita filed a motion dated May 9, 1966 for the reconsideration of the order dated April
27, 1966 (Annex "P" pp. 73-77, rec.), to which Alejandro filed an opposition dated June
8, 1966 (Annex "Q", pp. 112-113, rec.).

Subsequently, Alejandro filed a motion dated July 25, 1966 praying that the palay
deposited with Fericsons and Ideal Rice Mill by the ten (10) tenants of the two parcels in
question be delivered to him (Annex "R", pp. 114-116, rec.),to which Juanita filed an
opposition dated July 26, 1966 (Annex "S", pp. 117-121, rec.). In an order dated
September 8, 1966, the lower court denied the motion for reconsideration of the order
dated April 27, 1966, and directed Fericsons Inc. and the Ideal Rice Mills to deliver to
Alejandro or his representative the 229 cavans and 46 kilos and 325 and 1/2 cavans
and 23 kilos of palay respectively deposited with the said rice mills upon the filing by
Alejandro of a bond in the amount of P12,000.00 duly approved by the court (Annex "T",
pp. 122-127, rec.). Hence, this petition for certiorari and mandamus.
The position of petitioner Juanita Lopez-Guilas should be sustained and the writs
prayed for granted.
The probate court loses jurisdiction of an estate under administration only after the
payment of all the debts and the remaining estate delivered to the heirs entitled to
receive the same. The finality of the approval of the project of partition by itself alone
does not terminate the probate proceeding (Timbol vs. Cano, 1 SCRA 1271, 1276, L15445, April 29, 1961; Siguiong vs. Tecson, 89 Phil., pp. 28-30). As long as the order of
the distribution of the estate has not been complied with, the probate proceedings
cannot be deemed closed and terminated Siguiong vs. Tecson, supra.); because a
judicial partition is not final and conclusive and does not prevent the heir from bringing
an action to obtain his share, provided the prescriptive period therefor has not elapsed
(Mari vs. Bonilla, 83 Phil., 137). The better practice, however, for the heir who has not
received his share, is to demand his share through a proper motion in the same probate
or administration proceedings, or for re-opening of the probate or administrative
proceedings if it had already been closed, and not through an independent action, which
would be tried by another court or Judge which may thus reverse a decision or order of
the probate on intestate court already final and executed and re-shuffle properties long
ago distributed and disposed of (Ramos vs. Ortuzar, 89 Phil., 730, 741-742; Timbol vs.
Cano, supra.; Jingco vs. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic
vs. Agustines, L-14710, March 29, 1960, 107 Phil., 455, 460-461).
Section 1 of Rule 90 of the Revised Rules of Court of 1964 as worded, which secures
for the heirs or legatees the right to "demand and recover their respective shares from
the executor or administrator, or any other person having the same in his possession",
re-states the aforecited doctrines.
The case of Austria vs. Heirs of Ventenilla (99 Phil. 1068) does not control the present
controversy; because the motion filed therein for the removal of the administratrix and
the appointment of a new administrator in her place was rejected by the court on the
ground of laches as it was filed after the lapse of about 38 years from October 5, 1910
when the court issued an order settling and deciding the issues raised by the motion (L10018, September 19, 1956, 99 Phil., 1069-1070). In the case at bar, the motion filed by
petitioner for the delivery of her share was filed on July 20, 1964, which is just more
than 3 years from August 28, 1961 when the amended project of partition was approve
and within 5 years from April 23, 1960 when the original project of partition was
approved. Clearly, her right to claim the two lots allocated to her under the project of
partition had not yet expired. And in the light of Section 1 of Rule 90 of the Revised
Rules of Court of 1964 and the jurisprudence above cited, the order dated December

15, 1960 of the probate court closing and terminating the probate case did not legally
terminate the testate proceedings, for her share under the project of partition has not
been delivered to her.
While it is true that the order dated October 2, 1964 by agreement of the parties
suspended resolution of her petition for the delivery of her shares until after the decision
in the civil action for the annulment of the project of partition (Civil Case 2539) she filed
on April 10, 1964; the said order lost its validity and efficacy when the herein petitioner
filed on June 11, 1965 an amended complaint in said Civil Case 2539 wherein she
recognized the partial legality and validity of the said project of partition insofar as the
allocation in her favor of lots Nos. 3368 and 3441 in the delivery of which she has been
insisting all along (pp. 106-107, rec.).
WHEREFORE, judgment is hereby rendered:
1. Granting the writs prayed for;
2. Setting aside the orders of the respondent court dated October 2, 1964 and April 27,
1966, as null and void; and, without prejudice to the continuance of Civil Case No. 2539,
which, by reason of this decision, involves no longer Lots 3368 and 3441 of the Bacolor
Cadastre, .
3. Directing.
(a) the Register of Deeds of Pampanga to cancel TCT No. 26638-R
covering the aforesaid lots Nos. 3368 and 3441 of the Bacolor Cadastre
and to issue anew Transfer Certificate of Title covering the said two lots in
the name of herein petitioner Juanita Lopez Guilas; and
(b) the respondent Alejandro Lopez
(1) to deliver to herein petitioner Juanita Lopez Guilas the possession of
lots Nos. 3368 and 3441;
(2) to deliver and/or pay to herein, petitioner all the rents, crops or income
collected by him from said lots Nos. 3368 and 3441 from April 23, 1960
until the possession of the two aforementioned lots is actually delivered to
her, or their value based on the current market price; and
(3) to pay the costs.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo and Villamor, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-852

March 19, 1949

LEONIDA MARI and CARIDAD EVANGELISTA, plaintiffs-appellees,

vs.
ISAAC BONILLA and SILVINA ORDAEZ, defendants-appellants.
Ignacio Nabong for appellants.
Agustin Bagasao for appellees.
TUASON, J.:

This action was brought to recover plaintiff's combined 3/4 share in a parcel of land sold
to defendant by Deogracias Evangelista plaintiff co-owner. The case was submitted
upon the following agreed statement of facts:
1. That Casimiro Evangelista is a registered owner of a parcel of land
(homestead) as evidenced by Original Certificate of Title No. 4905, of the register
of deeds of Nueva Ecija, consisting of 7.0652 hectares more or less situated at
Valdefuente, Cabanatuan, Nueva Ecija;
2. That Casimiro Evangelista was married to Leonida Mari plaintiff herein on
February 7, 1920 at Rizal Nueva Ecija and during their marriage and while living
together as spouses they begot two children Caridad and Deogracias
Evangelista all surnamed Evangelista;
3. That Casimiro Evangelista died intestate on or about 1938 at Platero,
Cabanatuan Nueva Ecija;
4. That the property in litigation was acquired on January 23, 1935 as per original
certificate of title No. 49055 homestead patent;
5. That on January 10, 1944 Deogracias Evangelista alleging to be the only heir
of Casimiro Evangelista executed a declaration of heirship known as Doc. No. 9,
Page 30 Book No. 18, of Notary Public Carlos M. Ferrer herein incorporated and
made a part of these agreement of facts as Exhibit A for the sum of P2,400 the
said Deogracias Evangelista sold on the same date January 10, 1944 the
property in question to the defendants spouses, Isaac Bonilla and Silvina
Ordaez in Doc. 10, Page No. 31 Book No. 18, series of 1944 of Notary Public
Carlos M. Ferrer incorporated and attached herein as Exhibit B, as part of this
agreement;
6. That the certificate of marriage of Casimiro Evangelista and Leonida Mari and
Herein attached as Exhibit C and made a part of this agreement;
7. That after the said sale on January 10, 1944 original certificate of title No.
4905 was cancelled and in lieu thereof transfer certificate of title No. 19991 was
issued in the spouses Isaac Bonilla and Silvina Ordaez;
8. That after the sale the defendant assumed possession of the lands and the
harvest for the year 1944-1945 was seventeen cavanes, (17) and at present the
land was planted with palay (1 hectare), sugar cane (/3 hectare ), and camoting
kahoy, (/3 hectare included in the /3 planted with sugar cane), now still in the
possession of the defendant.
9. That the defendant begun to live in Platero, Cabanatuan Nueva Ecija on
March 1938 and that the plaintiff lived in Platero, Cabanatuan Nueva Ecija since
the year 1920; up to the present time;
10. That the defendant did not know that Leonida Mari is the mother of
Deogracias Evangelista at the time when he bought the land as Deogracias
Evangelista was living with his grandfather, Matias Evangelista and that Caridad
Evangelista was living with her mother Leonida Mari;

11. That the attorney for the plaintiff reserve the right to present a memorandum
discussing the legal point of these agreement of facts within 3 days from date of
these agreement and the defendants counsel will answer the same within 3 days,
after receipt of the plaintiff's memorandum.
Judge Catalino Buenaventura gave judgment for plaintiff without costs. This is an
appeal from that judgment.
The gravamen of appellants contention is good faith. They cite three decisions one of
which is Castillo vs. Valdez, 53 Phil., 120 wherein the court said:
A purchaser for value who takes property upon the faith of the certificate so
issued acquires a good title. Any other conclusion would be wholly inconsistent
with the spirit and purpose of the Land Registration Law. Of course so long sa
the property remains in the hands of the person who has acquired title irregularly
he can be made to surrender the certificate to be cancelled. But it is not so with
an innocent purchaser for value. . . .
Appellants citation do not fit into the facts of the present case. Good faith affords
protection only to purchaser for value from the registered owner. Deogracias
Evangelista, defendants grantor is not a registered owner. The land was and still is
registered in the name of Casimiro Evangelista. In no way does the certificate of title
state that Deogracias owned the land: consequently defendant cannot summon to their
aid the theory of indefeasibility of Torrens title. There is nothing in the certificate and in
the circumstances of the transaction which them in supposing that they needed not
looked beyond the title. If anything it should have put them on their guard cautioned
them to ascertain and verify that vendor was the only heir of his father that there was no
debt and that the latter was the sole owner of the parcel.
If as is probably the case defendants relied on the court order adjudicating to
Deogracias Evangelista the entire estate in the distribution held under Rule 74 of the
Rules of Court their innocence avails them less as against the true owners of the land.
That was a summary settlement made on the faith and strength of the distributes selfserving affidavit; section 4 of the above-mentioned rule provides that, "If it shall appear
at anything within two year after the settlement and distribution of an estate . . . that an
heir or other person has been unduly deprived of his lawful participation in the estate
such heir or other person may compel the settlement of the estate in the court in the
manner herein provided for purpose of satisfying such participation." Far from shielding
defendants against loss the adjudication and the rule under which it was made gave
them a clear warning that they were acting at their peril. "A judicial partition in probate
proceeding does not bind the heir who were not parties thereon. No partition judicial or
extrajudicial could add one iota or particle to the interest which the partitioner had during
the joint possession. Partition is of the nature of a conveyance of ownership and
certainly none of the co-owner may convey to the other more than his own true right. A
judicial partition in probate proceeding is not final and conclusive and not being of such
definitive as to stop all mean of redress for a co-heir who has been deprived of his
lawful share such co-heir may still within the prescriptive period bring an action
for reivindicacion in the province where any of the real property of the deceased may be
situated. Broad perspective of public policy are set out in the opinion of the court in

support of the wisdom of allowing a co-heir the benefits of the law of prescription even
after a partition judicial or extrajudicial has been had." (Lajom vs. Viola, 73 Phil., 563. )
The judgment is affirmed with cost of this appeal against appellants.
Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones, Montemayor and Reyes,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 178933

September 16, 2009

RICARDO S. SILVERIO, JR. Petitioner,

vs.
COURT OF APPEALS (Fifth Division) and NELIA S. SILVERIO-DEE, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This Petition for Review on Certiorari under Rule 65 seeks the reversal of the May 4,
2007 Resolution1 and July 6, 2007 Decision2 of the Court of Appeals (CA) in CA-G.R.
SP No. 98764, entitled Nelia S. Silverio-Dee and Ricardo C. Silverio, Sr. (impleaded as
necessary party) v. Reinato G. Quilala, in his capacity as Presiding Judge of the RTC of
Makati, Branch 57, Ricardo S. Silverio, Jr., Edmundo S. Silverio, represented by Nestor
Dela Merced II, and Sheriff Villamor R. Villegas.
The assailed resolution granted private respondents prayer for the issuance of a
Temporary Restraining Order against public respondent Judge Quilala. On the other
hand, the assailed decision set aside the Writ of Execution dated April 17, 2007 and the
Notice to Vacate dated April 19, 2007 while directing the respondent lower court to give
due course to the appeal of herein private respondent.
The Facts
The instant controversy stemmed from the settlement of estate of the deceased Beatriz
Silverio. After her death, her surviving spouse, Ricardo Silverio, Sr., filed an intestate
proceeding for the settlement of her estate. The case was docketed as SP. PROC. NO.
M-2629 entitled In Re: Estate of the Late Beatriz D. Silverio, Ricardo C. Silverio, Sr. v.
Ricardo S. Silverio Jr., et al. pending before the Regional Trial Court (RTC) of Makati
City, Branch 57 (RTC).
On November 16, 2004, during the pendency of the case, Ricardo Silverio, Jr. filed a
petition to remove Ricardo C. Silverio, Sr. as the administrator of the subject estate. On
November 22, 2004, Edmundo S. Silverio also filed a comment/opposition for the
removal of Ricardo C. Silverio, Sr. as administrator of the estate and for the
appointment of a new administrator.
On January 3, 2005, the RTC issued an Order granting the petition and removing
Ricardo Silverio, Sr. as administrator of the estate, while appointing Ricardo Silverio, Jr.
as the new administrator.

On January 26, 2005, Nelia S. Silverio-Dee filed a Motion for Reconsideration of the
Order dated January 3, 2005, as well as all other related orders.
On February 4, 2005, Ricardo Silverio Jr. filed an Urgent Motion for an Order Prohibiting
Any Person to Occupy/Stay/Use Real Estate Properties Involved in the Intestate Estate
of the Late Beatriz Silverio, Without Authority from this Honorable Court. 3
Then, on May 31, 2005, the RTC issued an Omnibus Order 4 affirming its Order dated
January 3, 2005 and denying private respondents motion for reconsideration. In the
Omnibus Order, the RTC also authorized Ricardo Silverio, Jr. to, upon receipt of the
order, immediately exercise his duties as administrator of the subject estate. The
Omnibus Order also directed Nelia S. Silverio-Dee to vacate the property at No. 3,
Intsia, Forbes Park, Makati City within fifteen (15) days from receipt of the order.
Nelia Silverio-Dee received a copy of the Omnibus Order dated May 31, 2005 on June
8, 2005.
On June 16, 2005, private respondent filed a Motion for Reconsideration dated June 15,
20055 of the Omnibus Order. This was later denied by the RTC in an Order dated
December 12, 2005, which was received by private respondent on December 22, 2005.
Notably, the RTC in its Order dated December 12, 2005 6 also recalled its previous order
granting Ricardo Silverio, Jr. with letters of administration over the intestate estate of
Beatriz Silverio and reinstating Ricardo Silverio, Sr. as the administrator.
From the Order dated December 12, 2005, Ricardo Silverio, Jr. filed a motion for
reconsideration which was denied by the RTC in an Order dated October 31, 2006. In
the same order, the RTC also allowed the sale of various properties of the intestate
estate of the late Beatriz Silverio to partially settle estate taxes, penalties, interests and
other charges due thereon. Among the properties authorized to be sold was the one
located at No. 3 Intsia Road, Forbes Park, Makati City.7
Meanwhile, on January 6, 2006, Nelia Silverio-Dee filed a Notice of Appeal dated
January 5, 20068 from the Order dated December 12, 2005 while the Record on Appeal
dated January 20, 20069 was filed on January 23, 2006.
Thereafter, on October 23, 2006, Ricardo Silverio, Jr. filed a Motion to Dismiss Appeal
and for Issuance of a Writ of Execution10 against the appeal of Nelia Silverio-Dee on the
ground that the Record on Appeal was filed ten (10) days beyond the reglementary
period pursuant to Section 3, Rule 41 of the Rules of Court.
Thus, on April 2, 2007, the RTC issued an Order 11 denying the appeal on the ground
that it was not perfected within the reglementary period. The RTC further issued a writ of
execution for the enforcement of the Order dated May 31, 2005 against private
respondent to vacate the premises of the property located at No. 3, Intsia, Forbes Park,
Makati City. The writ of execution was later issued on April 17, 2007 12 and a Notice to
Vacate13 was issued on April 19, 2007 ordering private respondent to leave the premises
of the subject property within ten (10) days.
Consequently, private respondent filed a Petition for Certiorari and Prohibition (With
Prayer for TRO and Writ of Preliminary Injunction) dated May 2, 2007 14 with the CA.

On May 4, 2007, the CA issued the assailed Resolution granting the prayer for the
issuance of a TRO. In issuing the TRO, the CA ruled that the Notice of Appeal was filed
within the reglementary period provided by the Rules of Court applying the "fresh rule
period" enunciated by this Court in Neypes v. Court of Appeals 15 as reiterated in
Sumaway v. Union Bank.16
Afterwards, on July 6, 2007, the CA issued the assailed decision granting the petition of
private respondent. The dispositive portion reads:
WHEREFORE, in view of the foregoing, the instant petition is GRANTED and GIVEN
DUE COURSE. Accordingly, the Order, dated April 2, 2007, the writ of execution, dated
April 17, 2007, and the Notice to Vacate, dated April 19, 2007, are ANNULLED AND
SET ASIDE. Further, the court a quo is hereby directed to give due course to the appeal
of Nelia S. Silverio-Dee.
SO ORDERED.
Hence, the instant petition.
The Issues
-AThe Omnibus Order dated May 31, 2005 (Annex G of Annex C) and the Order dated
December 12, 2005 are Interlocutory Orders which are not subject to appeal under Sec.
1 of Rule 41;
-BThe respondent Court seriously erred and/or committed grave abuse of discretion
amounting to lack of or excess of jurisdiction, in deliberately failing to decide that the
basis of the occupancy of Nelia S. Silverio-Dee are fraudulent documents, without any
authority from the Intestate Court;
-CThe respondent Court seriously erred and/or committed grave abuse of discretion
amounting to lack of or excess of jurisdiction, in issuing precipitately the temporary
restraining order (TRO) in its Resolution dated May 4, 2007 (Annex A-1);
-DThe respondent Court seriously erred and/or committed grave abuse of discretion
amounting to lack of or excess of jurisdiction in annulling the Order dated April 2, 2007,
the Writ of Execution dated April 17, 2007, and the Notice to Vacate dated April 19, 2007
because the respondent Silverio-Dees occupancy of the Intestate property located at
No. 3 Intsia Road, Forbes Park, Makati City (Annex N of Annex C) will prevent the sale
authorized by the Order dated October 31, 2006 to secure funds for the payment of
taxes due which are now high and rapidly increasing payment of which must not be
enjoined.17

The Courts Ruling

This petition is meritorious.
The May 31, 2005 Order of the RTC Is an Interlocutory Order, Not Subject to an Appeal
To recapitulate, the relevant facts to the instant issue are as follows:
On May 31, 2005, the RTC issued an Omnibus Order ordering Nelia Silverio-Dee to
vacate the premises of the property located at No. 3, Intsia Road, Forbes Park, Makati
City. She received a copy of the said Order on June 8, 2005. Instead of filing a Notice of
Appeal and Record on Appeal, private respondent filed a motion for reconsideration of
the Order. This motion for reconsideration was denied in an Order dated December 12,
2005. This Order was received by private respondent on December 22, 2005. On
January 6, 2006, private respondent filed her Notice of Appeal while she filed her
Record on Appeal on January 23, 2006.1avvphi1
Thus, in denying due course to the Notice/Record on Appeal, the RTC, in its Order
dated April 2, 2007, ruled:
Verily, the appeal taken by the movant Nelia Silverio-Dee from the Order of this Court
dated December 12, 2005 denying the Motion for Reconsideration is misplaced as no
appeal may be taken from the order denying the motion for reconsideration (see Section
1, Rule 41 of the 1997 Rules of Civil Procedure in relation to Section 1(f), Rule 109 of
the Rules of Court). Furthermore, assuming that what said movant had appealed is the
final Order dated May 31, 2005, still, the appeal cannot be given due course as the
Record on Appeal had been filed beyond the thirty-day period to appeal (see Section 3
Rule 41 of the Rules of Court)
WHEREFORE, the appeal filed by Nelia Silverio is hereby DENIED due course.
Let a writ of execution issue to enforce the Order dated May 31, 2005 against Nelia
Silverio-Dee requiring her to vacate the premises at No. 3 Intsia, Forbes Park, Makati
City.
SO ORDERED.
Thus, the denial of due course by the RTC was based on two (2) grounds: (1) that Nelia
Silverio-Dees appeal was against an order denying a motion for reconsideration which
is disallowed under Sec. 1(a), Rule 41 of the Rules of Court; and (2) that Nelia SilverioDees Record on Appeal was filed beyond the reglementary period to file an appeal
provided under Sec. 3 of Rule 41.
Sec. 1(a), Rule 41 of the Rules of Court provides:
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
SECTION 1. Subject of appeal.An appeal may be taken from a judgment or final
order that completely disposes of the case, or of a particular matter therein when
declared by these Rules to be appealable.

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;
xxxx
In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil action under Rule 65.
Petitioner argues that because private respondent filed a Notice of Appeal from the
Order dated December 12, 2005 which denied her motion for reconsideration of the
Omnibus Order dated May 31, 2005, her appeal is of an order denying a motion for
reconsideration. Thus, petitioner alleges that private respondent employed the wrong
remedy in filing a notice of appeal and should have filed a petition for certiorari with the
CA under Rule 65 of the Rules of Court instead.
The CA, however, ruled that the filing of the Notice of Appeal in this case was proper
saying that the appeal pertained to the earlier Omnibus Order dated May 31, 2005. The
CA, citing Apuyan v. Haldeman,18 argued that an order denying a motion for
reconsideration may be appealed as such order is the "final order" which disposes of
the case. In that case, we stated:
In the recent case of Quelnan v. VHF Philippines, Inc., We held, thus:
[T]his Court finds that the proscription against appealing from an order denying a
motion for reconsideration refers to an interlocutory order, and not to a final order or
judgment. That that was the intention of the above-quoted rules is gathered from
Pagtakhan v. CIR, 39 SCRA 455 (1971), cited in above-quoted portion of the decision in
Republic, in which this Court held that an order denying a motion to dismiss an action is
interlocutory, hence, not appealable.
The rationale behind the rule proscribing the remedy of appeal from an interlocutory
order is to prevent undue delay, useless appeals and undue inconvenience to the
appealing party by having to assail orders as they are promulgated by the court, when
they can be contested in a single appeal. The appropriate remedy is thus for the party to
wait for the final judgment or order and assign such interlocutory order as an error of the
court on appeal.
The denial of the motion for reconsideration of an order of dismissal of a complaint is
not an interlocutory order, however, but a final order as it puts an end to the particular
matter resolved, or settles definitely the matter therein disposed of, and nothing is left
for the trial court to do other than to execute the order.
Not being an interlocutory order, an order denying a motion for reconsideration of an
order of dismissal of a complaint is effectively an appeal of the order of dismissal itself.
The reference by petitioner, in his notice of appeal, to the March 12, 1999 Order
denying his Omnibus MotionMotion for Reconsideration should thus be deemed to
refer to the January 17, 1999 Order which declared him non-suited and accordingly
dismissed his complaint.

If the proscription against appealing an order denying a motion for reconsideration is

applied to any order, then there would have been no need to specifically mention in both
above-quoted sections of the Rules "final orders or judgments" as subject to appeal. In
other words, from the entire provisions of Rule 39 and 41, there can be no mistaking
that what is proscribed is to appeal from a denial of a motion for reconsideration of an
interlocutory order. (Emphasis supplied.)
Thus, the question posed is whether the Omnibus Order dated May 31, 2005 is an
interlocutory order.
On this aspect, the CA ruled that the Omnibus Order dated May 31, 2005 was a final
order, to wit:
We note that the Order, dated December 12, 2005, is an offshoot of the Omnibus Order,
dated May 31, 2005. In the Omnibus Order, the court a quo ruled that the petitioner, as
an heir of the late Beatriz S. Silverio, had no right to use and occupy the property in
question despite authority given to her by Ricardo Silverio, Sr. when it said, thus:
x x x In the first place, Nelia S. Silverio-Dee cannot occupy the property in Intsia, Forbes
Park, admittedly belonging to the conjugal estate and subject to their proceedings
without authority of the Court. Based on the pretenses of Nelia Silverio-Dee in her
memorandum, it is clear that she would use and maintain the premises in the concept of
a distributee. Under her perception, Section 1 Rule 90 of the Revised Rules of Court is
violated. x x x
xxxx
For the property at Intsia, Forbes Park cannot be occupied or appropriated by, nor
distributed to Nelia S. Silverio-Dee, since no distribution shall be allowed until the
payment of the obligations mentioned in the aforestated Rule is made. In fact, the said
property may still be sold to pay the taxes and/or other obligations owned by the estate,
which will be difficult to do if she is allowed to stay in the property.
Moreover, the alleged authority given by SILVERIO, SR. for Nelia S. Silverio-Dee to
occupy the property dated May 4, 2004, assuming it is not even antedated as alleged by
SILVERIO, JR., is null and void since the possession of estate property can only be
given to a purported heir by virtue of an Order from this Court (see Sec. 1 Rule 90,
supra; and Sec. 2 Rule 84, Revised Rules of Court). In fact, the Executor or
Administrator shall have the right to the possession and management of the real as well
as the personal estate of the deceased only when it is necessary for the payment of the
debts and expenses of administration (See Sec. 3 Rule 84, Revised Rules of Court).
With this in mind, it is without an iota of doubt that the possession by Nelia S. SilverioDee of the property in question has absolutely no legal basis considering that her
occupancy cannot pay the debts and expenses of administration, not to mention the fact
that it will also disturb the right of the new Administrator to possess and manage the
property for the purpose of settling the estates legitimate obligations.
In the belated Memorandum of Nelia Silverio-Dee, she enclosed a statement of the
expenses she incurred pertaining to the house renovation covering the period from May
26, 2004 to February 28, 2005 in the total amount of Php12,434,749.55, which supports
this Courts conclusion that she is already the final distributee of the property. Repairs of

such magnitude require notice, hearing of the parties and approval of the Court under
the Rules. Without following this process, the acts of Nelia Silverio-Dee are absolutely
without legal sanction.
To our mind, the court a quos ruling clearly constitutes a final determination of the rights
of the petitioner as the appealing party. As such, the Omnibus Order, dated May 31,
2002 (the predecessor of the Order dated December 12, 2002) is a final order; hence,
the same may be appealed, for the said matter is clearly declared by the rules as
appealable and the proscription does not apply.19 (Emphasis supplied.)
An interlocutory order, as opposed to a final order, was defined in Tan v. Republic: 20
A final order is one that disposes of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing else to be done but to enforce by
execution what has been determined by the court, while an interlocutory order is one
which does not dispose of the case completely but leaves something to be decided
upon. (Emphasis supplied.)
Additionally, it is only after a judgment has been rendered in the case that the ground for
the appeal of the interlocutory order may be included in the appeal of the judgment
itself. The interlocutory order generally cannot be appealed separately from the
judgment. It is only when such interlocutory order was rendered without or in excess of
jurisdiction or with grave abuse of discretion that certiorari under Rule 65 may be
resorted to.21
In the instant case, Nelia Silverio-Dee appealed the May 31, 2005 Order of the RTC on
the ground that it ordered her to vacate the premises of the property located at No. 3
Intsia Road, Forbes Park, Makati City. On that aspect the order is not a final
determination of the case or of the issue of distribution of the shares of the heirs in the
estate or their rights therein. It must be borne in mind that until the estate is partitioned,
each heir only has an inchoate right to the properties of the estate, such that no heir
may lay claim on a particular property. In Alejandrino v. Court of Appeals, we succinctly
ruled:
Art. 1078 of the Civil Code provides that where there are two or more heirs, the whole
estate of the decedent is, before partition, owned in common by such heirs, subject to
the payment of the debts of the deceased. Under a co-ownership, the ownership of an
undivided thing or right belongs to different persons. Each co-owner of property which is
held pro indiviso exercises his rights over the whole property and may use and enjoy
the same with no other limitation than that he shall not injure the interests of his coowners. The underlying rationale is that until a division is made, the respective share of
each cannot be determined and every co-owner exercises, together with his coparticipants, joint ownership over the pro indiviso property, in addition to his use and
enjoyment of the same.
Although the right of an heir over the property of the decedent is inchoate as long as the
estate has not been fully settled and partitioned, the law allows a co-owner to exercise
rights of ownership over such inchoate right. Thus, the Civil Code provides:
Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and

even substitute another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with respect to the co-owners,
shall be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership.22 (Emphasis supplied.)
Additionally, the above provision must be viewed in the context that the subject property
is part of an estate and subject to intestate proceedings before the courts. It is, thus,
relevant to note that in Rule 84, Sec. 2 of the Rules of Court, the administrator may only
deliver properties of the estate to the heirs upon order of the Court. Similarly, under
Rule 90, Sec. 1 of the Rules of Court, the properties of the estate shall only be
distributed after the payment of the debts, funeral charges, and other expenses against
the estate, except when authorized by the Court.
Verily, once an action for the settlement of an estate is filed with the court, the properties
included therein are under the control of the intestate court. And not even the
administrator may take possession of any property that is part of the estate without the
prior authority of the Court.
In the instant case, the purported authority of Nelia Silverio-Dee, which she allegedly
secured from Ricardo Silverio, Sr., was never approved by the probate court. She,
therefore, never had any real interest in the specific property located at No. 3 Intsia
Road, Forbes Park, Makati City. As such, the May 31, 2005 Order of the RTC must be
considered as interlocutory and, therefore, not subject to an appeal.1avvphi1
Thus, private respondent employed the wrong mode of appeal by filing a Notice of
Appeal with the RTC. Hence, for employing the improper mode of appeal, the case
should have been dismissed.23
The implication of such improper appeal is that the notice of appeal did not toll the
reglementary period for the filing of a petition for certiorari under Rule 65, the proper
remedy in the instant case. This means that private respondent has now lost her
remedy of appeal from the May 31, 2005 Order of the RTC.
Therefore, there is no longer any need to consider the other issues raised in the
petition.
WHEREFORE, the May 4, 2007 Resolution and July 6, 2007 Decision of the CA in CAG.R. SP No. 98764 are REVERSED and SET ASIDE. Thus, the Decision dated April 2,
2007 of the RTC denying due course to the appeal of Nelia Silverio-Dee; the Writ of
Execution dated April 17, 2007; and the Notice to Vacate dated April 19, 2007 are
hereby REINSTATED.
No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-23915 September 28, 1970

INTESTATE ESTATE OF THE LATE EMILIO T. LOPEZ. SATURNINA M. VDA. DE
LOPEZ, administratrix-appellee,
vs.
DAHLIA LOPEZ and ROY LOPEZ, minors, represented by their mother and natural
guardian LOLITA B. BACHAR, movants-appellants.
Hilado, Coruna and Hilado for administratrix and appellee.
Rodolfo J. Herman for movants and appellants.

MAKALINTAL, J.:
This appeal is directed against the order dated October 6, 1964 of the Court of First
Instance of Negros Occidental denying appellants' motion to reopen the intestate
proceeding of the late Emilio Lopez.
The facts are not disputed. On October 13, 1962 Saturnina M. Vda. de Lopez, judicial
administratrix of the estate of the deceased (Sp. Proc No. 3740), filed with the lower
court a project of partition adjudicating the whole to herself and her legitimate children
with the deceased. In an order dated March 30, 1964 the lower court approved the
project of partition and declared the intestate proceeding "terminated and closed for all
legal purposes." Seventeen days thereafter, or on April 16, 1964, the minors Dahlia and
Roy, both surnamed Lopez, 1 represented by their mother, Lolita B. Bachar, filed a
motion to reopen the proceeding, together with a petition claiming that they were
illegitimate children of, the deceased Emilio Lopez, born out of his extra-marital relations
with Lolita B. Bachar, and asking that their rights as such be recognized and their
shares in the estate given to them. The motion was opposed by the judicial
administratrix on the ground that the proceeding had already been ordered terminated
and closed and the estate was already in the hands of the distributees; and that the
reopening of the intestate proceeding was not the proper remedy, which should be an
independent action against the individual distributees..
On October 6, 1964 the trial court issued the following order:
Taking into consideration the petition of Dahlia Lopez and Roy Lopez
represented by their mother and natural guardian Lolita B. Bachar, dated
April 13, 1964 and the opposition to the said motion to re-open filed by
attorneys for Saturnina Vda. de Lopez dated May 6, 1964, the Court finds
that the said petition to reopen is not in order. The said proceeding was

already ordered closed and that the property was divided to their
respective heirs. In the opinion of the Court, under the law, reopening is
not the proper remedy (Tomias, et al. vs. Tomias, et al., G.R. No. L-3004,
May 30, 1951). In view thereof, the said petition to reopen is hereby
denied for lack of merit.
The movants asked for reconsideration, which was denied, and thereupon appealed
directly to this Court.
The issues posed before us for resolution are: (1) whether or not the motion to reopen
the estate proceeding was filed too late; and (2) whether or not such motion was the
proper remedy.
On the first issue appellee's opposition is that the order declaring the intestate
proceeding of the late Emilio Lopez terminated and closed had the effect of finality, and
thereafter the court had no more jurisdiction to reopen the same; and that since the
estate had been distributed the title thereto had become vested in the distributees.
Of vital importance is the fact that appellants' motion to reopen, as well as the petition
attached thereto, is based on their claim that they are illegitimate children of the
deceased. On the face of such claim they are legal heirs of the deceased and hence
entitled to share in his estate. Having been omitted in the partition presented by the
judicial administratrix and approved by the Court, they were not bound thereby. The
following statement of this Court in Vda. de Marbella vs. Kilayko, et al., 104 Phil. 41,
citing Lajom vs. Viola, 73 Phil. 563, expresses the general governing principle:
A judicial partition in probate proceedings (and the same thing can be said
of partition in intestate proceedings) does not bind the heirs who were not
parties thereto. No partition, judicial or extrajudicial, could add one iota or
particle to the interest which the petitioner had during the joint possession.
Partition is of the nature of a conveyance of ownership and certainly none
of the co-owners may convey to the others more than his own true right. A
judicial partition in probate proceedings is not final and conclusive, and not
being of such definitive character to stop all means of redress for a co-heir
who has been deprived of his lawful share, such co-heir may still, within
the prescriptive period, bring an action for reivindication in the province
where any of the real property of the deceased may be situated.
The motion to reopen was not too late. The court's order declaring the intestate
proceeding closed did not become final immediately upon its issuance. It was no
different from judgments or orders in ordinary actions. Thus, Section 2 of Rule 72
provides that "in the absence of special provisions, the rules provided for in ordinary
actions shall be, as far as practicable, applicable in Special Proceedings." And
judgments or orders in ordinary actions become final after thirty (30) days from notice to
the party concerned. In this case appellants' motion to reopen was led only seventeen
(17) days from the date of the order of closure. The remedy was therefore invoked on
time.
The next issue as to whether the remedy pursued was proper, or whether it should
have been an independent action against the individual distributees to annul the

partition and recover appellants' shares in the estate is not a novel one. In Arroyo vs.
Gerona, 54 Phil. 909, this Court said:
Taking up the question of jurisdiction of the court to entertain the
appellants' motion (to annul the deed of partition and the order approving
it) filed on July 9, 1929, it must be remembered that in Benedicto vs.
Javellana (10 Phil. 197) this Court held that an demands and claims filed
by any heir, legatee or party in interest to a testate or intestate succession,
shall be acted upon and decided in the same special proceedings, and not
in a separate action, and the judge who has jurisdiction over the
administration of the inheritance, and who, when the time comes, will be
called upon to divide and adjudicate it to the interested parties, shall take
cognizance of all such questions.
In our opinion the court that approved the partition and the agreement in
ratification thereof may annul both whenever, as it is here alleged, the
approval was obtained by deceit or fraud, and the petition must be filed in
the course of the intestate proceedings, for it is generally admitted that the
probate courts are authorized to vacate any decree or judgment procured
by fraud, not only while the proceedings in the course of which it was
issued are pending, but even, as in this case within a reasonable time
thereafter. (as reiterated in Yusay vs. Yusay Gonzales, 106 Phil. 46).
The order of the trial court sought to be reviewed cites the case of Tomias, et al. vs.
Tomias, et al., 89 Phil. 216. That case is not here applicable, since it involved the
annulment of the decision in ordinary action for partition, which had already become
final. The alleged natural child's remedy, said the court, was to file a separate action
against the children to whom the estate had been adjudicated. More to the point here is
the following statement of this Court in Ramos vs. Ortuzar, 89 Phil. 730:
The only instance that we can think of in which a party interested in a
probate proceeding may have a final liquidation set aside is when he is left
out by reason of circumstances beyond his control or through mistake or
inadvertence not impotable to negligence. Even then, the better practice to
secure relief is reopening of the same case by proper motion within the
reglementary period, instead of an independent action the effect of which,
if successful, would be, as in the instant case, for another court or judge to
throw out a decision or order already final and executed and reshuffle
properties long ago distributed and disposed of.
Finally, in the recent case of Uriarte vs. Uriarte, et al., G.R. Nos. L-21938-39, May 29,
1970, this Court, thru Justice Arsenio Dizon, pointed out that there are two alternatives
for an acknowledged natural child to prove his status and interest in the estate of the
deceased parent, to wit: (1) to intervene in the probate proceeding if it is still open; and
(2) to ask for its reopening if it has already been closed.
WHEREFORE, the order appealed from is set aside and the case is remanded to the
court of origin for further proceeding, with costs against appellee.

Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro, Fernando, Teehankee, Barredo,
Villamor and Makasiar, JJ., concur.
Concepcion, C.J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 94005. April 6, 1993.

LUISA LYON NUAL, herein represented by ALBERT NUAL, and ANITA NUAL
HORMIGOS, petitioners,
vs.
THE COURT OF APPEALS and EMMA LYON DE LEON in her behalf and as guardian
ad litem of the minors HELEN SABARRE and KENNY SABARRE, EDUARDO
GUZMAN, MERCEDEZ LYON TAUPAN, WILFREDO GUZMAN, MALLY LYON
ENCARNACION and DORA LYON DELAS PEAS, respondents.
SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT; ONCE IT BECOMES FINAL,

MAY NO LONGER BE MODIFIED IN ANY RESPECT; EXCEPTIONS. In the case of
Manning International Corporation v. NLRC, (195 SCRA 155, 161 [1991]) We held that
". . ., nothing is more settled in the law than that when a final judgment becomes
executory, it thereby becomes immutable and unalterable. The judgment may no longer
be modified in any respect, even if the modification is meant to correct what is perceived
to be an erroneous conclusion of fact or law, and regardless of whether the modification
is attempted to be made by the Court rendering it or by the highest Court of land. The
only recognized exceptions are the correction of clerical errors or the making of socalled nunc pro tunc entries which cause no prejudice to any party, and, of course,
where the judgment is void." Furthermore, "(a)ny amendment or alteration which
substantially affects a final and executory judgment is null and void for lack of
jurisdiction, including the entire proceedings held for that purpose."
2. ID.; ID.; ID.; ID.; REMEDY OF AGGRIEVED PARTY. In the case at bar, the
decision of the trial court in Civil Case No. 872 has become final and executory. Thus,
upon its finality, the trial judge lost his jurisdiction over the case. Consequently, any
modification that he would make, as in this case, the inclusion of Mary Lyon Martin
would be in excess of his authority. The remedy of Mary Lyon Martin is to file an
independent suit against the parties in Civil Case No. 872 and all other heirs for her
share in the subject property, in order that all the parties in interest can prove their
respective claims.
DECISION
CAMPOS, JR., J p:
This is a petition for review on certiorari of the decision ** dated February 22, 1990 of
the Court of Appeals in CA-G.R. CV No. 14889 entitled "Emma Lyon de Leon, et al.,
plaintiffs-appellees versus Luisa Lyon Nual, now deceased herein represented by
Albert Nual, et al., defendants appellants," dismissing petitioners' appeal and affirming
the trial court's order *** dated January 9, 1987 for the inclusion of Mary Lyon Martin as
one of the heirs who shall benefit from the partition.
The facts as culled from the records of the case are as follows.
This case originated from a suit docketed as Civil Case No. 872 filed by Emma Lyon de
Leon in her behalf and as guardian ad litem of the minors Helen Sabarre and Kenny
Sabarre, Eduardo Guzman, Mercedes Lyon Taupan, Wilfredo Guzman, Mally Lyon
Encarnacion and Dona Lyon de las Peas, (herein private respondents) against Luisa
Lyon Nual, now deceased and herein represented by her heirs, Albert Nual and Anita
Nual Hormigos (herein petitioners), for partition and accounting of a parcel of land
located in Isabela, Basilan City. Subject parcel of land was formerly owned by Frank C.
Lyon and May Ekstrom Lyon, deceased parents of Helen, Dona, Luisa, Mary, Frank and
William James. Private respondents claimed that said parcel of land, formerly covered
by Transfer Certificate of Title No. 3141 in the name of Frank C. Lyon, has been in
possession of petitioner Luisa Lyon Nual since 1946 and that she made no accounting
of the income derived therefrom, despite demands made by private respondents for the
partition and delivery of their shares.
On December 17, 1974, after trial and hearing, the then Court of First Instance (now
Regional Trial court) rendered its judgment in favor of private respondents and ordered
the partition of the property but dismissing private respondents' complaint for
accounting. The dispositive portion of the judgment reads as follows:
"WHEREFORE, judgment is hereby rendered ordering the partition of the land covered
by Transfer Certificate of Title No. 3141 among the plaintiffs and defendant. The parties

shall make partition among themselves by proper instruments of conveyance, subject to

the Court's confirmation, should the parties be unable to agree on the partition, the court
shall appoint commissioners to make the partition, commanding them to set off to such
party in interest such part and proportion of the property as the Court shall direct.
Defendant is further ordered to pay plaintiffs attorney's fees in the sum of P2,000.00." 1
On July 30, 1982, the order of partition was affirmed in toto by the Court of Appeals in
CA-G.R. No. 57265-R. The case was remanded to the court of origin for the ordered
partition. 2
On May 17, 1984, an order for the issuance of the writ of execution was issued by the
court a quo. 3
On July 17, 1984, Mary Lyon Martin, daughter of the late Frank C. Lyon and Mary
Ekstrom Lyon, assisted by her counsel filed a motion to quash the order of execution
with preliminary injunction. In her motion, she contends that not being a party to the
above-entitled case her rights, interests, ownership and participation over the land
should not be affected by a judgment in the said case; that the order of execution is
unenforceable insofar as her share, right, ownership and participation is concerned,
said share not having been brought within the Jurisdiction of the court a quo. She
further invokes Section 12, Rule 69 of the Rules of Court. 4
On June 26, 1985, the trial court issued an order revoking the appointment of the three
commissioners and in lieu thereof, ordered the issuance of a writ of execution. 5
On February 4, 1986, the said court issued an order appointing a Board of
Commissioners to effect the partition of the contested property. 6
On May 28, 1986, the trial court dismissed the motion to quash order of execution with
preliminary injunction filed by Mary Lyon Martin and directed the partition of the property
among the original party plaintiffs and defendants. 7
On September 24, 1986, the Commissioners manifested to the trial court that in view of
the fact that the name of Mary Lyon Martin also appears in the Transfer Certificate of
Title, she could therefore be construed as one of the heirs. A ruling from the trial court
was then sought. 8
On September 29, 1986, the lower court issued an order directing the counsel of Emma
Lyon de Leon to furnish the court within five days from receipt thereof all the names the
of heirs entitled to share in the partition of the subject property. 9
On October 1, 1986, the petitioners filed a manifestation praying that the court issue an
order directing the partition of the property in consonance the decision dated December
17, 1974 of the trial court the order of said court dated May 28, 1986. 10
Without ruling on the manifestation, the lower court issued an order directing the Board
of Commissioners to immediately partition the said property. 11
On January 3, 1987, the private respondents filed motion for clarification as to whether
the partition of property is to be confined merely among the party plaintiffs and
defendants, to the exclusion of Mary Lyon Martin. 12
On January 9, 1987, the lower court issued the assailed order directing the inclusion of
Mary Lyon Martin as co-owner with a share in the partition of the property, to wit:
"After a perusal of the decision of the Court of Appeals CA-G.R. No. 57265-R, where
this case was appealed by the unsatisfied parties, there is a finding that Mary now Mary

Lyon Martin is one of the legitimate children of Frank C. Lyon and Mary Ekstrom. (Page
3 of the decision).
In view of this finding, it would be unfair and unjust if she would be left out in the
partition of this property now undertaking (sic) by the said court appointed
commissioners.
WHEREFORE, premises considered, the court appointed commissioners is hereby
directed to include Mary Lyon Martin as co-owner in the said property subject of partition
with the corresponding shares adjudicated to her.
SO ORDERED." 13
Petitioners' motion for reconsideration 14 of the aforesaid order was denied by the trial
court. 15
On February 22, 1990 the Court of Appeals rendered its decision dismissing petitioners'
appeal, the dispositive portion of which reads as follows:
"WHEREFORE, premises considered, there being no legal impediment to the inclusion
of Mary Lyon Martin by the court-appointed Board of Commissioners as one of the heirs
who shall benefit from the partition, the instant appeal is DISMISSED for lack of merit.
NO COSTS.
SO ORDERED." 16
Petitioners' motion for reconsideration was denied on June 6, 1990. 17
Petitioners filed this petition for review alleging that the Court of Appeals has decided
questions of substance contrary to law and the applicable decisions of this Court, for the
following reasons:
"1.) BY SUSTAINING THE ORDER OF THE REGIONAL TRIAL COURT DIRECTING
THE COURT APPOINTED BOARD OF COMMISSIONERS TO INCLUDE MARY L.
MARTIN TO SHARE IN THE PARTITION OF THE PROPERTY IN LITIGATION
DESPITE THE FACT, OVER WHICH THERE IS NO DISPUTE, THAT SHE HAS NOT
LITIGATED EITHER AS A PARTY PLAINTIFF OR DEFENDANT IN CIVIL CASE NO.
872, IT HAS REFUSED TO RECOGNIZE THAT THE REGIONAL TRIAL COURT HAS
NO JURISDICTION TO AMEND OR MODIFY THE JUDGMENT IN CIVIL CASE NO.
872 AND THE REGIONAL TRIAL COURT'S ORDER DATED 28 MAY 1986 WHICH
HAS BECOME FINAL AND EXECUTORY.
2.) WHEN THE COURT OF APPEALS HAS CATEGORICALLY STATED THAT MARY L.
MARTIN "NEVER LITIGATED AS ONE OF THE PLAINTIFFS IN SAID CASE," AND
HER ONLY PARTICIPATION THEREIN WAS SIMPLY CONFINED "AS A WITNESS
FOR DEFENDANT-SISTER LUISA LY ON NUAL," AND TO ALLOW HER TO SHARE
IN THE PARTITION THIS LATE WITHOUT REQUIRING A PROCEEDING WHERE THE
PARTIES COULD PROVE THEIR RESPECTIVE CLAIMS, IS TANTAMOUNT TO
DENYING THE NUALS OF THEIR RIGHT TO DUE PROCESS. 18
The crux of this case is whether of not the trial court may order the inclusion of Mary L.
Martin as co-heir entitled to participate in the partition of the property considering that
she was neither a party plaintiff nor a party defendant in Civil Case No. 872 for partition
and accounting of the aforesaid property and that the decision rendered in said case
has long become final and executory.

Petitioners contend that the trial court's decision dated December 14, 1974 in Civil Case
No. 872 ordering the partition of the parcel of land covered by Transfer Certificate of
Title No. 3141 among plaintiffs and defendants has long become final and executory.
Hence the trial court has no jurisdiction to issue the questioned Order dated January 9,
1987 ordering the Board of Commissioners to include Mary Lyon Martin to share in the
partition of said property despite the fact that she was not a party to the said case. Said
Order, therefore, resulted in an amendment or modification of its decision rendered in
Civil Case No. 872.
We find merit in the instant petition.
In the ease of Manning International Corporation v. NLRC, 19 We held that ". . ., nothing
is more settled in the law than that when a final judgment becomes executory, it thereby
becomes immutable and unalterable. The judgment may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law, and regardless of whether the modification is
attempted to be made by the Court rendering it or by the highest Court of land. The only
recognized exceptions are the correction of clerical errors or the making of so-called
nunc pro tunc entries which cause no prejudice to any party, and, of course, where the
judgment is void."
Furthermore, "(a)ny amendment. or alteration which substantially affects a final and
executory judgment is null and void for lack of jurisdiction, including the entire
proceedings held for that purpose." 20
In the case at bar, the decision of the trial court in Civil Case No. 872 has become final
and executory. Thus, upon its finality, the trial judge lost his jurisdiction over the case.
Consequently, any modification that he would make, as in this case, the inclusion of
Mary Lyon Martin would be in excess of his authority.
The remedy of Mary Lyon Martin is to file an independent suit against the parties in Civil
Case No. 872 and all other heirs for her share in the subject property, in order that all
the parties in interest can prove their respective claims.
WHEREFORE, the petition is GRANTED. The Order dated January 9, 1987 of the trial
Court as affirmed by the Court of Appeals is hereby REVERSED and SET ASIDE. The
decision of the trial court dated December 17, 1974 in Civil Case No. 872 is hereby
REINSTATED.
SO ORDERED.
Narvasa, C .J ., Padilla, Regalado and Nocon, Jr., JJ ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3342

April 18, 1951

Intestate Estate of the deceased Lee Liong. RAFAEL A. DINGLASAN, ET

ALS., petitioners-appellees,
vs.
ANG CHIA, as Administratrix of the above intestate, LEE BING HOO alias CLARO
LEE, and LEE BUN TING,respondents-appellants.
Quisumbing, Sycip, Quisumbing and Zalazar for appellants.
Hector Bisnar and Rafael Dinglasan for appellees.
BAUTISTA ANGELO, J.:
This is an appeal by Ang Chia, her son Claro Lee, and Lee Bun Ting from an order of
the Court of First Instance of Capiz, issued in the intestate estate proceedings of the
deceased Lee Liong, holding in abeyance the approval of their petition for an
extrajudicial partition and the closing of said proceedings until after the final termination
of Civil Case No. V-331 of the same court, entitled Rafael Dinglasan, et al., vs. Lee Bun
Ting, Claro Lee and Ang Chia, in her personal capacity and as administratrix of the
estate of Lee Liong.
Rafael Dinglasan et al. filed a case in the Court of First Instance of Capiz on February
16, 1948, against Ang Chia, her son Claro Lee and one Lee Bun Ting to recover the

ownership and possession of a parcel of land located at Capiz, Capiz, and damages in
the amount of P1,000 a month. Subsequently, the plaintiffs filed a motion for the
appointment of a receiver to which counsel for the defendants objected, and it was only
at the hearing of said motion when plaintiffs discovered that there was pending in the
same court a case concerning the intestate estate of Lee Liong. In view thereof, the
motion for the appointment of a receiver was withdrawn and the plaintiffs filed an
amended complaint seeking the inclusion as party-defendant of the administratrix of the
estate, who is the same widow Ang Chia, who was already a party-defendant in her
personal capacity. In order to protect their interests, the plaintiffs also filed in the
intestate proceedings a verified claim in intervention and a motion praying that a coadministrator of the estate be appointed and the bond of the administratrix in the
amount of P500 be increased to P20,000. By their claim in intervention, the plaintiffs
made of record the pendency of the aforesaid civil case No. V-331 and prayed that the
intestate proceedings be not closed until said civil case shall have been terminated.
On June 21, 1948, the administratrix filed a motion to dismiss the claim in intervention
and objected to the motion for the increase of her bond and for the appointment of a coadministrator. On August 4, 1948, the court issued an order denying the petition for a
co-administrator but increasing the bond to P5,000, and as regards the petition not to
close the intestate proceedings until after civil case No. V-331 shall have been decided,
the court stated that it would act thereon if a motion to close the proceedings is
presented in due time and is objected to by petitioners. The court however took
cognizance of the pendency of said civil case No. V-331. The administratrix did not
appeal from said order nor file a new bond and instead moved for the closing of the
proceedings and her discharge as administratrix on the ground that the heirs had
already entered into an extrajudicial partition of the estate. To this motion the petitioners
objected, whereupon the court issued on July 15, 1949, an order holding in abeyance
the approval of the partition and the closing of the proceedings until after the decision in
said civil case has been rendered. From this order the administratrix and the heirs
appealed and now assign the following errors:
I
The lower court erred in taking cognizance of and being guided by the supposed
"claim" of petitioners-appellees.
II
The lower court erred in holding in abeyance the closing of the intestate
proceedings pending the termination of the separate civil action filed by the
petitioners-appellees.
III
The lower court erred in ordering the administratrix to file an increased bond of
P5,000.
Under the first assignment of error, the appellants question the validity of the order of
the lower court of August 4, 1948, whereby the court took cognizance of the civil case
filed by the appellees against the administratrix to recover possession of lot No. 398 and
damages, and required the administratrix to file a new bond of P5,000, contending that

by taking such action the court assumed jurisdiction over the case which it cannot do
because its jurisdiction as probate court is limited and especial (Guzman vs. Anog and
Anog, 37 Phil. 61). They claim further that probate proceedings are purely statutory and
their functions are limited to the control of the property upon the death of its owner and
cannot extend to the adjudication of collateral questions. (I Woermer, The American Law
of Administration, 514, 662-663.) Appellees on the other hand claim that said order of
August 4, 1948, is not the subject of this appeal, as no appeal has been taken by the
appellants from said order and the same has long become final; so that the present
appeal is only from the order of the lower court dated July 15, 1949, which denies the
motion of the appellees to terminate the intestate proceedings on the ground that they
have already agreed on the extrajudicial settlement of the estate and to relieve the
administratrix of the obligation of filing an increased bond.
There is merit in the claim of the appellees. It really appears from the record that the
order increasing the bond of the administratrix to P5,000 was issued on August 4, 1948,
and from said order no appeal has been taken by the appellants which has become final
long ago and that the present appeal is only from the order of the lower court dated July
15, 1949. It is true that the lower court in its later order of July 15, 1949, reiterated its
order to the administratrix to file a new bond in the amount of P5,000 within 30 days
after receipt thereof, but this cannot have the effect of receiving the former order of
August 4, 1948, nor does it give the appellants the right to question in this instance the
validity of said order, which has long become final. Moreover, an order requiring the
filing of a new bond by the administratrix is interlocutory in nature and is solely
addressed to the sound discretion of the court.
The act of the lower court in taking cognizance of civil case No. V-331 is not tantamount
to assuming jurisdiction over said case nor does it violate the ruling of this court which
says that "when questions arise as to the ownership of property, alleged to be part of
the estate of a deceased person, but claimed by some other person to be his property,
not by virtue of any right of inheritance from the deceased, but by title adverse to that of
the deceased and his estate, such questions cannot be determined in the course of
administration proceedings. The Court of First Instance, acting as probate court, has no
jurisdiction to adjudicate such contentions, which must be submitted to the court in the
exercise of its general jurisdiction as a Court of First Instance to try and determine
ordinary actions. . . ." (Guzman vs. Anog and Anog, 37 Phil., 61, 62-63.)
If the appellants filed a claim in intervention in the intestate proceedings it was only
pursuant to their desire to protect their interests it appearing that the property in
litigation is involved in said proceedings and in fact is the only property of the estate left
subject of administration and distribution; and the court is justified in taking cognizance
of said civil case because of the unavoidable fact that whatever is determined in said
civil case will necessarily reflect and have a far reaching consequence in the
determination and distribution of the estate. In so taking cognizance of civil case No. V331 the court does not assume general jurisdiction over the case but merely makes of
record its existence because of the close interrelation of the two cases and cannot
therefore be branded as having acted in excess of its jurisdiction.
Appellants' claim that the lower court erred in holding in abeyance the closing of the
intestate proceedings pending determination of the separate civil action for the reason
that there is no rule or authority justifying the extension of administration proceedings

until after the separate action pertaining to its general jurisdiction has been terminated,
cannot entertained. Section 1, Rule 88, of the Rules of Court, expressly provides that
"action to recover real or personal property from the estate or to enforce a lien thereon,
and actions to recover damages for an injury to person or property, real or personal,
may be commenced against the executor or administrator". What practical value would
this provision have if the action against the administrator cannot be prosecuted to its
termination simply because the heirs desire to close the intestate proceedings without
first taking any step to settle the ordinary civil case? This rule is but a corollary to the
ruling which declares that questions concerning ownership of property alleged to be part
of the estate but claimed by another person should be determined in a separate action
and should be submitted to the court in the exercise of its general jurisdiction.
(Guzman vs. Anog and Anog, supra). These rules would be rendered nugatory if we are
to hold that an intestate proceedings can be closed by any time at the whim and caprice
of the heirs. Another rule of court provides that "after a party dies and the claim is not
thereby extinguished, the court shall order, upon proper notice, the legal representative
of the deceased to appear and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified by
the court, and the representative shall immediately appear for and on behalf of the
interest of the deceased." (Section 17, Rule 3.) This rule also implies that a probate
case may be held in abeyance pending determination of an ordinary case wherein an
administrator is made a party. To hold otherwise would be also to render said rule
nugatory.
Wherefore, the Court affirms the order appealed from, with costs against appellants.
Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor and Jugo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-43082

June 18, 1937

PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiffappellant,

vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate
of Thomas Hanley, deceased, brought this action in the Court of First Instance of
Zamboanga against the defendant, Juan Posadas, Jr., then the Collector of Internal
Revenue, for the refund of the amount of P2,052.74, paid by the plaintiff as inheritance
tax on the estate of the deceased, and for the collection of interst thereon at the rate of
6 per cent per annum, computed from September 15, 1932, the date when the aforesaid
tax was [paid under protest. The defendant set up a counterclaim for P1,191.27 alleged
to be interest due on the tax in question and which was not included in the original
assessment. From the decision of the Court of First Instance of Zamboanga dismissing
both the plaintiff's complaint and the defendant's counterclaim, both parties appealed to
this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga,
leaving a will (Exhibit 5) and considerable amount of real and personal properties. On
june 14, 1922, proceedings for the probate of his will and the settlement and distribution
of his estate were begun in the Court of First Instance of Zamboanga. The will was
admitted to probate. Said will provides, among other things, as follows:
4. I direct that any money left by me be given to my nephew Matthew Hanley.
5. I direct that all real estate owned by me at the time of my death be not sold or
otherwise disposed of for a period of ten (10) years after my death, and that the
same be handled and managed by the executors, and proceeds thereof to be

given to my nephew, Matthew Hanley, at Castlemore, Ballaghaderine, County of

Rosecommon, Ireland, and that he be directed that the same be used only for the
education of my brother's children and their descendants.
6. I direct that ten (10) years after my death my property be given to the above
mentioned Matthew Hanley to be disposed of in the way he thinks most
advantageous.
xxx

xxx

xxx

8. I state at this time I have one brother living, named Malachi Hanley, and that
my nephew, Matthew Hanley, is a son of my said brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best interests of
ther estate to appoint a trustee to administer the real properties which, under the will,
were to pass to Matthew Hanley ten years after the two executors named in the will,
was, on March 8, 1924, appointed trustee. Moore took his oath of office and gave bond
on March 10, 1924. He acted as trustee until February 29, 1932, when he resigned and
the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of Internal
Revenue, alleging that the estate left by the deceased at the time of his death consisted
of realty valued at P27,920 and personalty valued at P1,465, and allowing a deduction
of P480.81, assessed against the estate an inheritance tax in the amount of P1,434.24
which, together with the penalties for deliquency in payment consisting of a 1 per cent
monthly interest from July 1, 1931 to the date of payment and a surcharge of 25 per
cent on the tax, amounted to P2,052.74. On March 15, 1932, the defendant filed a
motion in the testamentary proceedings pending before the Court of First Instance of
Zamboanga (Special proceedings No. 302) praying that the trustee, plaintiff herein, be
ordered to pay to the Government the said sum of P2,052.74. The motion was granted.
On September 15, 1932, the plaintiff paid said amount under protest, notifying the
defendant at the same time that unless the amount was promptly refunded suit would
be brought for its recovery. The defendant overruled the plaintiff's protest and refused to
refund the said amount hausted, plaintiff went to court with the result herein above
indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased, passed to his
instituted heir, Matthew Hanley, from the moment of the death of the former, and
that from the time, the latter became the owner thereof.
II. In holding, in effect, that there was deliquency in the payment of inheritance
tax due on the estate of said deceased.
III. In holding that the inheritance tax in question be based upon the value of the
estate upon the death of the testator, and not, as it should have been held, upon
the value thereof at the expiration of the period of ten years after which,
according to the testator's will, the property could be and was to be delivered to
the instituted heir.

IV. In not allowing as lawful deductions, in the determination of the net amount of
the estate subject to said tax, the amounts allowed by the court as compensation
to the "trustees" and paid to them from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying his motion for
new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns the
following error besides:
The lower court erred in not ordering the plaintiff to pay to the defendant the sum
of P1,191.27, representing part of the interest at the rate of 1 per cent per month
from April 10, 1924, to June 30, 1931, which the plaintiff had failed to pay on the
inheritance tax assessed by the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in this appeal: (a)
When does the inheritance tax accrue and when must it be satisfied? (b) Should the
inheritance tax be computed on the basis of the value of the estate at the time of the
testator's death, or on its value ten years later? (c) In determining the net value of the
estate subject to tax, is it proper to deduct the compensation due to trustees? (d) What
law governs the case at bar? Should the provisions of Act No. 3606 favorable to the taxpayer be given retroactive effect? (e) Has there been deliquency in the payment of the
inheritance tax? If so, should the additional interest claimed by the defendant in his
appeal be paid by the estate? Other points of incidental importance, raised by the
parties in their briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the same.
Section 1536 as amended, of the Administrative Code, imposes the tax upon "every
transmission by virtue of inheritance, devise, bequest, giftmortis causa, or advance in
anticipation of inheritance,devise, or bequest." The tax therefore is upon transmission or
the transfer or devolution of property of a decedent, made effective by his death. (61 C.
J., p. 1592.) It is in reality an excise or privilege tax imposed on the right to succeed to,
receive, or take property by or under a will or the intestacy law, or deed, grant, or gift to
become operative at or after death. Acording to article 657 of the Civil Code, "the rights
to the succession of a person are transmitted from the moment of his death." "In other
words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of
the deceased ancestor. The property belongs to the heirs at the moment of the death of
the ancestor as completely as if the ancestor had executed and delivered to them a
deed for the same before his death." (Bondad vs. Bondad, 34 Phil., 232. See also,
Mijares vs. Nery, 3 Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs.
Arbado, 12 Phil., 391; Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas vs.Alcantara,
16 Phil., 489; Ilustre vs. Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil.,
434; Bowa vs. Briones, 38 Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41
Phil., 531; Fule vs. Fule, 46 Phil., 317; Dais vs. Court of First Instance of Capiz, 51 Phil.,
396; Baun vs. Heirs of Baun, 53 Phil., 654.) Plaintiff, however, asserts that while article
657 of the Civil Code is applicable to testate as well as intestate succession, it operates
only in so far as forced heirs are concerned. But the language of article 657 of the Civil
Code is broad and makes no distinction between different classes of heirs. That article
does not speak of forced heirs; it does not even use the word "heir". It speaks of the
rights of succession and the transmission thereof from the moment of death. The

provision of section 625 of the Code of Civil Procedure regarding the authentication and
probate of a will as a necessary condition to effect transmission of property does not
affect the general rule laid down in article 657 of the Civil Code. The authentication of a
will implies its due execution but once probated and allowed the transmission is
effective as of the death of the testator in accordance with article 657 of the Civil Code.
Whatever may be the time when actual transmission of the inheritance takes place,
succession takes place in any event at the moment of the decedent's death. The time
when the heirs legally succeed to the inheritance may differ from the time when the
heirs actually receive such inheritance. "Poco importa", says Manresa commenting on
article 657 of the Civil Code, "que desde el falleimiento del causante, hasta que el
heredero o legatario entre en posesion de los bienes de la herencia o del legado,
transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al momento de
la muerte, y asi lo ordena el articulo 989, que debe considerarse como complemento
del presente." (5 Manresa, 305; see also, art. 440, par. 1, Civil Code.) Thomas Hanley
having died on May 27, 1922, the inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow
that the obligation to pay the tax arose as of the date. The time for the payment on
inheritance tax is clearly fixed by section 1544 of the Revised Administrative Code as
amended by Act No. 3031, in relation to section 1543 of the same Code. The two
sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. The
following shall not be taxed:
(a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy by the
fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in favor of
another beneficiary, in accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate to the new beneficiary is
greater than that paid by the first, the former must pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article shall be paid:
(a) In the second and third cases of the next preceding section, before
entrance into possession of the property.
(b) In other cases, within the six months subsequent to the death of the
predecessor; but if judicial testamentary or intestate proceedings shall be
instituted prior to the expiration of said period, the payment shall be made
by the executor or administrator before delivering to each beneficiary his
share.
If the tax is not paid within the time hereinbefore prescribed, interest at the rate of
twelve per centum per annum shall be added as part of the tax; and to the tax
and interest due and unpaid within ten days after the date of notice and demand

thereof by the collector, there shall be further added a surcharge of twenty-five

per centum.
A certified of all letters testamentary or of admisitration shall be furnished the
Collector of Internal Revenue by the Clerk of Court within thirty days after their
issuance.
It should be observed in passing that the word "trustee", appearing in subsection (b) of
section 1543, should read "fideicommissary" or "cestui que trust". There was an obvious
mistake in translation from the Spanish to the English version.
The instant case does fall under subsection (a), but under subsection (b), of section
1544 above-quoted, as there is here no fiduciary heirs, first heirs, legatee or donee.
Under the subsection, the tax should have been paid before the delivery of the
properties in question to P. J. M. Moore as trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real
properties are concerned, did not and could not legally pass to the instituted heir,
Matthew Hanley, until after the expiration of ten years from the death of the testator on
May 27, 1922 and, that the inheritance tax should be based on the value of the estate in
1932, or ten years after the testator's death. The plaintiff introduced evidence tending to
show that in 1932 the real properties in question had a reasonable value of only P5,787.
This amount added to the value of the personal property left by the deceased, which the
plaintiff admits is P1,465, would generate an inheritance tax which, excluding
deductions, interest and surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose
inheritance taxes takes its being and if, upon the death of the decedent, succession
takes place and the right of the estate to tax vests instantly, the tax should be measured
by the vlaue of the estate as it stood at the time of the decedent's death, regardless of
any subsequent contingency value of any subsequent increase or decrease in value.
(61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft, Inheritance
Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44
Law. ed., 969.) "The right of the state to an inheritance tax accrues at the moment of
death, and hence is ordinarily measured as to any beneficiary by the value at that time
of such property as passes to him. Subsequent appreciation or depriciation is
immaterial." (Ross, Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of and
Procedure (vol. 37, pp. 1574, 1575) that, in the case of contingent remainders, taxation
is postponed until the estate vests in possession or the contingency is settled. This rule
was formerly followed in New York and has been adopted in Illinois, Minnesota,
Massachusetts, Ohio, Pennsylvania and Wisconsin. This rule, horever, is by no means
entirely satisfactory either to the estate or to those interested in the property (26 R. C.
L., p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon
examination of cases and authorities that New York has varied and now requires the
immediate appraisal of the postponed estate at its clear market value and the payment
forthwith of the tax on its out of the corpus of the estate transferred. (In re Vanderbilt,
172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769;
Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez, 172 N. Y., 609; 64 N. E.,

958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide also, Saltoun vs. Lord
Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas., 888.) California
adheres to this new rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a transmission by
inheritance is taxable at the time of the predecessor's death, notwithstanding the
postponement of the actual possession or enjoyment of the estate by the beneficiary,
and the tax measured by the value of the property transmitted at that time regardless of
its appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross in arriving
at the net value of the estate on which the inheritance tax is to be computed (sec. 1539,
Revised Administrative Code). In the case at bar, the defendant and the trial court
allowed a deduction of only P480.81. This sum represents the expenses and
disbursements of the executors until March 10, 1924, among which were their fees and
the proven debts of the deceased. The plaintiff contends that the compensation and
fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL,
NN, OO), should also be deducted under section 1539 of the Revised Administrative
Code which provides, in part, as follows: "In order to determine the net sum which must
bear the tax, when an inheritance is concerned, there shall be deducted, in case of a
resident, . . . the judicial expenses of the testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney
vs. Saunders, 16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the
compensation due him may lawfully be deducted in arriving at the net value of the
estate subject to tax. There is no statute in the Philippines which requires trustees'
commissions to be deducted in determining the net value of the estate subject to
inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust has been
created, it does not appear that the testator intended that the duties of his executors
and trustees should be separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893;
175 App. Div., 363; In re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in
paragraph 5 of his will, the testator expressed the desire that his real estate be handled
and managed by his executors until the expiration of the period of ten years therein
provided. Judicial expenses are expenses of administration (61 C. J., p. 1705) but, in
State vs. Hennepin County Probate Court (112 N. W., 878; 101 Minn., 485), it was said:
". . . The compensation of a trustee, earned, not in the administration of the estate, but
in the management thereof for the benefit of the legatees or devises, does not come
properly within the class or reason for exempting administration expenses. . . . Service
rendered in that behalf have no reference to closing the estate for the purpose of a
distribution thereof to those entitled to it, and are not required or essential to the
perfection of the rights of the heirs or legatees. . . . Trusts . . . of the character of that
here before the court, are created for the the benefit of those to whom the property
ultimately passes, are of voluntary creation, and intended for the preservation of the
estate. No sound reason is given to support the contention that such expenses should
be taken into consideration in fixing the value of the estate for the purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the estate of
Thomas Hanley under the provisions of section 1544 of the Revised Administrative
Code, as amended by section 3 of Act No. 3606. But Act No. 3606 went into effect on
January 1, 1930. It, therefore, was not the law in force when the testator died on May

27, 1922. The law at the time was section 1544 above-mentioned, as amended by Act
No. 3031, which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at the time
of the death of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p.
3461). The taxpayer can not foresee and ought not to be required to guess the outcome
of pending measures. Of course, a tax statute may be made retroactive in its operation.
Liability for taxes under retroactive legislation has been "one of the incidents of social
life." (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But
legislative intent that a tax statute should operate retroactively should be perfectly clear.
(Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank,
257 U. S., 602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S.,
221.) "A statute should be considered as prospective in its operation, whether it enacts,
amends, or repeals an inheritance tax, unless the language of the statute clearly
demands or expresses that it shall have a retroactive effect, . . . ." (61 C. J., P. 1602.)
Though the last paragraph of section 5 of Regulations No. 65 of the Department of
Finance makes section 3 of Act No. 3606, amending section 1544 of the Revised
Administrative Code, applicable to all estates the inheritance taxes due from which have
not been paid, Act No. 3606 itself contains no provisions indicating legislative intent to
give it retroactive effect. No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain provisions
of Act No. 3606 are more favorable to the taxpayer than those of Act No. 3031, that said
provisions are penal in nature and, therefore, should operate retroactively in conformity
with the provisions of article 22 of the Revised Penal Code. This is the reason why he
applied Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the
surcharge of 25 per cent is based on the tax only, instead of on both the tax and the
interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty days
from notice and demand by rthe Collector of Internal Revenue within which to pay the
tax, instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an offense
committed against the state which, under the Constitution, the Executive has the power
to pardon. In common use, however, this sense has been enlarged to include within the
term "penal statutes" all status which command or prohibit certain acts, and establish
penalties for their violation, and even those which, without expressly prohibiting certain
acts, impose a penalty upon their commission (59 C. J., p. 1110). Revenue laws,
generally, which impose taxes collected by the means ordinarily resorted to for the
collection of taxes are not classed as penal laws, although there are authorities to the
contrary. (See Sutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141
U. S., 468; 12 Sup. Ct., 55; Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs.
Standard Oil Co., 101 Pa. St., 150; State vs. Wheeler, 44 P., 430; 25 Nev. 143.) Article
22 of the Revised Penal Code is not applicable to the case at bar, and in the absence of
clear legislative intent, we cannot give Act No. 3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time
and the tax may be paid within another given time. As stated by this court, "the mere
failure to pay one's tax does not render one delinqent until and unless the entire period
has eplased within which the taxpayer is authorized by law to make such payment

without being subjected to the payment of penalties for fasilure to pay his taxes within
the prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the executor to pay the inheritance tax
before the delivery of the decedent's property to the trustee. Stated otherwise, the
defendant contends that delivery to the trustee was delivery to the cestui que trust, the
beneficiery in this case, within the meaning of the first paragraph of subsection (b) of
section 1544 of the Revised Administrative Code. This contention is well taken and is
sustained. The appointment of P. J. M. Moore as trustee was made by the trial court in
conformity with the wishes of the testator as expressed in his will. It is true that the word
"trust" is not mentioned or used in the will but the intention to create one is clear. No
particular or technical words are required to create a testamentary trust (69 C. J., p.
711). The words "trust" and "trustee", though apt for the purpose, are not necessary. In
fact, the use of these two words is not conclusive on the question that a trust is created
(69 C. J., p. 714). "To create a trust by will the testator must indicate in the will his
intention so to do by using language sufficient to separate the legal from the equitable
estate, and with sufficient certainty designate the beneficiaries, their interest in the
ttrust, the purpose or object of the trust, and the property or subject matter thereof.
Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of
three circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a
certain or ascertain object; statutes in some jurisdictions expressly or in effect so
providing." (69 C. J., pp. 705,706.) There is no doubt that the testator intended to create
a trust. He ordered in his will that certain of his properties be kept together undisposed
during a fixed period, for a stated purpose. The probate court certainly exercised sound
judgment in appointment a trustee to carry into effect the provisions of the will (see sec.
582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in
him (sec. 582 in relation to sec. 590, Code of Civil Procedure). The mere fact that the
estate of the deceased was placed in trust did not remove it from the operation of our
inheritance tax laws or exempt it from the payment of the inheritance tax. The
corresponding inheritance tax should have been paid on or before March 10, 1924, to
escape the penalties of the laws. This is so for the reason already stated that the
delivery of the estate to the trustee was in esse delivery of the same estate to the cestui
que trust, the beneficiary in this case. A trustee is but an instrument or agent for
thecestui que trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed.,
1086). When Moore accepted the trust and took possesson of the trust estate he
thereby admitted that the estate belonged not to him but to his cestui que
trust (Tolentino vs. Vitug, 39 Phil.,126, cited in 65 C. J., p. 692, n. 63). He did not
acquire any beneficial interest in the estate. He took such legal estate only as the
proper execution of the trust required (65 C. J., p. 528) and, his estate ceased upon the
fulfillment of the testator's wishes. The estate then vested absolutely in the beneficiary
(65 C. J., p. 542).
The highest considerations of public policy also justify the conclusion we have reached.
Were we to hold that the payment of the tax could be postponed or delayed by the
creation of a trust of the type at hand, the result would be plainly disastrous. Testators
may provide, as Thomas Hanley has provided, that their estates be not delivered to
their beneficiaries until after the lapse of a certain period of time. In the case at bar, the
period is ten years. In other cases, the trust may last for fifty years, or for a longer

period which does not offend the rule against petuities. The collection of the tax would
then be left to the will of a private individual. The mere suggestion of this result is a
sufficient warning against the accpetance of the essential to the very exeistence of
government. (Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs.
Hotchkiss, 100 U. S., 491; 25 Law. ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19
Law. ed., 101; Union Refrigerator Transit Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct.
Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren Bridge, 11 Pet., 420; 9
Law. ed., 773.) The obligation to pay taxes rests not upon the privileges enjoyed by, or
the protection afforded to, a citizen by the government but upon the necessity of money
for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one is
allowed to object to or resist the payment of taxes solely because no personal benefit to
him can be pointed out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43
Law. ed., 740.) While courts will not enlarge, by construction, the government's power of
taxation (Bromley vs. McCaughn, 280 U. S., 124; 74 Law. ed., 226; 50 Sup. Ct. Rep.,
46) they also will not place upon tax laws so loose a construction as to permit evasions
on merely fanciful and insubstantial distictions. (U. S. vs. Watts, 1 Bond., 580; Fed. Cas.
No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed in
Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle Bros., Wolf &
Sons vs. McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12 Phil., 624; Hongkong &
Shanghai Banking Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs.
Trinidad, 43 Phil., 803.) When proper, a tax statute should be construed to avoid the
possibilities of tax evasion. Construed this way, the statute, without resulting in injustice
to the taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in our tax system.
Thus, no court is allowed to grant injunction to restrain the collection of any internal
revenue tax ( sec. 1578, Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil.,
252). In the case of Lim Co Chui vs. Posadas (47 Phil., 461), this court had occassion to
demonstrate trenchment adherence to this policy of the law. It held that "the fact that on
account of riots directed against the Chinese on October 18, 19, and 20, 1924, they
were prevented from praying their internal revenue taxes on time and by mutual
agreement closed their homes and stores and remained therein, does not authorize the
Collector of Internal Revenue to extend the time prescribed for the payment of the taxes
or to accept them without the additional penalty of twenty five per cent." (Syllabus, No.
3.)
". . . It is of the utmost importance," said the Supreme Court of the United States, ". . .
that the modes adopted to enforce the taxes levied should be interfered with as little as
possible. Any delay in the proceedings of the officers, upon whom the duty is developed
of collecting the taxes, may derange the operations of government, and thereby, cause
serious detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66;
Churchill and Tait vs. Rafferty, 32 Phil., 580.)
It results that the estate which plaintiff represents has been delinquent in the payment of
inheritance tax and, therefore, liable for the payment of interest and surcharge provided
by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when Moore
became trustee. The interest due should be computed from that date and it is error on
the part of the defendant to compute it one month later. The provisions cases is

mandatory (see and cf. Lim Co Chui vs. Posadas, supra), and neither the Collector of
Internal Revenuen or this court may remit or decrease such interest, no matter how
heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice and
demand thereof by the Collector of Internal Revenue, a surcharge of twenty-five per
centum should be added (sec. 1544, subsec. (b), par. 2, Revised Administrative Code).
Demand was made by the Deputy Collector of Internal Revenue upon Moore in a
communiction dated October 16, 1931 (Exhibit 29). The date fixed for the payment of
the tax and interest was November 30, 1931. November 30 being an official holiday, the
tenth day fell on December 1, 1931. As the tax and interest due were not paid on that
date, the estate became liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth error
assigned by the plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due from the
estate of Thomas Hanley inaccordance with the conclusions we have reached.
At the time of his death, the deceased left real properties valued at P27,920 and
personal properties worth P1,465, or a total of P29,385. Deducting from this amount the
sum of P480.81, representing allowable deductions under secftion 1539 of the Revised
Administrative Code, we have P28,904.19 as the net value of the estate subject to
inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised
Administrative Code, should be imposed at the rate of one per centum upon the first ten
thousand pesos and two per centum upon the amount by which the share exceed thirty
thousand pesos, plus an additional two hundred per centum. One per centum of ten
thousand pesos is P100. Two per centum of P18,904.19 is P378.08. Adding to these
two sums an additional two hundred per centum, or P965.16, we have as primary tax,
correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible under section
1544 of the Revised Administrative Code. First should be added P1,465.31 which
stands for interest at the rate of twelve per centum per annum from March 10, 1924, the
date of delinquency, to September 15, 1932, the date of payment under protest, a
period covering 8 years, 6 months and 5 days. To the tax and interest thus computed
should be added the sum of P724.88, representing a surhcarge of 25 per cent on both
the tax and interest, and also P10, the compromise sum fixed by the defendant (Exh.
29), giving a grand total of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is
legally due from the estate. This last sum is P390.42 more than the amount demanded
by the defendant in his counterclaim. But, as we cannot give the defendant more than
what he claims, we must hold that the plaintiff is liable only in the sum of P1,191.27 the
amount stated in the counterclaim.
The judgment of the lower court is accordingly modified, with costs against the plaintiff
in both instances. So ordered.

Avancea, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
Villa-Real, J., concurs.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-33626

March 2, 1931

ANA CALLEJON SALINAS, ET AL., plaintiffs-appellants,

vs.
FELISA ROMAN TUASON and JOSE MORENO ROMAN, defendants-appellants.
Eduardo Gutierrez Repide and N. B. Villanueva for plaintiffs-appellants.
Araneta and Zaragoza for defendants-appellants.
JOHNSON, J.:
This action was commenced on the 26th day of March, 1928 in the Court of First
Instance of the City of Manila for the purpose of recovering the sum of P30,000 with
interest at 10 per cent from November 24, 1918. The plaintiffs were residents of the
Kingdom of Spain, represented in this action by the Consul General of Spain in the
Philippine Islands.
The plaintiffs alleged that they were the heirs of Francisco Callejon Salinas, who died in
Spain in 1911; that the amount of P30,000 which they claimed from the defendants was
the proceeds from the sale of two parcels of land situated in San Antonio, Province of
Nueva Ecija, particularly described in paragraph four of the complaint; that said lands
belonged to their predecessor Francisco Callejon Salinas, who had been a resident of
the Philippine Islands; that said lands were administered by Jose Moreno Lahaba, also
a Spaniard, resident of the Philippine Islands, who died in Manila on May 2, 1920; that
on November 24, 1918, said Moreno Lahaba sold said parcels of land for the sum of
P30,000, but failed and refused to account for that sum to his principal or the heirs of
the latter; that said sum passed by way of inheritance to the heirs of Moreno Lahaba,
the defendants herein; that said defendants, as such heirs, likewise refused to account
to the plaintiffs for said sum of P30,000.
The defendants demurred to the complaint on the grounds of (a) lack of jurisdiction,
(b) res judicata and (c) prescription. The demurrer was overruled, whereupon the
defendants filed an answer denying generally and specifically each and every allegation
of the complaint, and also containing the following special defenses: (a) That the court
did not have jurisdiction of the subject matter; (b) that the plaintiff's claim was res
judicata; (c) that the action has prescribed; (d) that the deceased Jose Moreno Lahaba,
as agent or representative of Francisco Callejon Salinas, had accounted to his principal
for the proceeds from the sale of the lands in question, resulting from said accounting a
balance of P2,500 in favor of his principal; (e) that said amount was paid to the heirs of
his principal; and ( f ) that Moreno Lahaba had spent P16,000 for clearing said lands
and for the survey and registration thereof. The defendants prayed that they be
absolved from the complaint with costs against the plaintiffs.
Upon the issue thus presented, the cause was brought on for trial. After hearing the
evidence and on March 10, 1930, Simplicio del Rosario, judge, arrived at the conclusion
that the plaintiffs were entitled to recover said sum of P30,000 from the defendants after
deducting therefrom the expenses incurred by Moreno Lahaba for the survey and
registration of said lands and also for attorney's fees and taxes, all amounting to
P3,491.60; and rendered a judgment ordering the defendants to pay to the plaintiffs said
sum of P30,000 after deducting therefrom said expenses of P3,491.60, with legal
interest on the balance from the date of the commencement of this action. The
dispositive part of the decision reads as follows:

SE CONDENA a los demandados al pago de la cantidad de treinta mil pesos

(P30,000) a favor de los demandantes, de las que se deben descontar los
gastos de medicion, titulacion, honorarios de abogado y pagos de amillaramiento
que sumados ascienden a P3,491.60, mas los interes legales de la cantidad
remanente a contar desde la presentacion de la demanda en causa.
From that judgment both parties appealed.
The defendants-appellants make the following assignments of error:
1. The court erred in not declaring that it had no jurisdiction over the subject
matter of the litigation;
2. The court erred in holding that the claim of P2,500 filed by the plaintiffs before
the committee on claims does not constitute res judicata of this action;
3. The court erred in holding that the present action has not prescribed;
4. The court erred in finding that Jose Moreno Lahaba was indebted to plaintiffs
for more than P2,500; and
5. The court erred in overruling the demurrer, and in sentencing the defendants
to pay to the plaintiffs the amount stated in the judgment.
The plaintiffs-appellants make the following assignments of error:
1. The court erred in allowing in favor of the defendants the sum of P3,491.60,
representing alleged expenses incurred by Moreno Lahaba in connection with
the lands in question;
2. The court erred in not ordering the defendants to pay legal interest on the
amount of the judgment from the 24th day of November, 1918; and
3. The court erred in not ordering the defendants to pay the costs and also
damages by reason of their misappropriation of the proceeds of the sale of lands.
A careful examination of the record shows that the following facts were established by a
large preponderance of the evidence.
Francisco Callejon Salinas, the plaintiffs' predecessor, a former resident of the
Philippine Islands, died in Spain on May 31, 1911. The record does not disclose the
date when he left the Islands. In 1900 he appointed Teodosio Pintado y Fernandez as
his attorney in fact to administer his properties here, with express authority to delegate
his powers as such attorney, or to appoint his successor. On April 24, 1905, Teodosio
Pintado y Fernandez appointed Jose Moreno Lahaba as attorney in fact or agent for
Callejon Salinas.
Jose Moreno Lahaba administered the properties of Callejon Salinas and rendered
accounts of his administration from April 24, 1905 up to the time of the death of his
principal in 1911. His last letter to his principal is dated June 31st (30th), 1911. He died
on May 2, 1920, but from July, 1911 up to the time of his death in 1920 he had not

rendered any report of his administration in spite of inquiries made by the heirs of his
principal, Francisco Callejon Salinas. Among the properties administered by him were
included the two parcels of land in question.
Sometime before the death of Jose Moreno Lahaba, the Spanish Consul in the
Philippine Islands, Vicente Palmaroli, at the request of the plaintiffs, as heirs of
Francisco Callejon Salinas, made inquiries from Moreno Lahaba about the properties
administered by him. Prior thereto said heirs had made direct inquiries from Moreno
Lahaba but received no reply whatsoever. Moreno Lahaba told the Spanish Consul that
he had only P2,500 in his possession belonging to his principal, which he was ready to
deliver to the consul upon his production of written authority from said heirs to receive
the same in their behalf. Pending the receipt of said authority, Jose Moreno Lahaba
died. So the consul presented a claim for P2,500 to the commissioners in the intestate
proceedings of the deceased Moreno Lahaba. Said claim was allowed and paid and
delivered to the said heirs of Francisco Callejon Salinas.
After the receipt of said amount the heirs of Callejon Salinas requested the Spanish
Consul to make further inquiries about other properties under the administration of
Moreno Lahaba. The Spanish Consul, with the assistance of attorney Eduardo
Gutierrez Repide, found that on November 24, 1918, Moreno Lahaba had sold in the
name of Francisco Callejon Salinas the two parcels of land in question to Tomas Ortiz
Luis for P30,000 (Exhibit D). According to the deed of sale the whole price was paid in
cash; but according to the evidence, only the sum of P5,000 was paid at the time of the
sale, and the balance was paid in annual installments of P5,000. Five days after the
sale, or on November 29, 1918, the vendee executed a mortgage on said lands in favor
of Jose Moreno Lahaba (Exhibit H) for P25,000 to secure the unpaid balance of the
price of said lands.
When Moreno Lahaba died on May 2, 1920, a balance of P20,000 of said mortgage
was still unpaid. Said amount was entered in the inventory of his estate (Exhibit A) as
conjugal property, and in the settlement of that estate it passed to the defendants as
heirs of Moreno Lahaba. Said mortgage credit was paid to them long before the
commencement of this action.
The defendants-appellants in their first assignment of error contend that the lower court
did not have jurisdiction of the subject matter of this action. Their theory is that the
plaintiffs' claim for P30,000 is a claim against the estate of Jose Moreno Lahaba, and
said claim not having been presented before the commissioners of said estate, is now
barred, and the lower court did not have jurisdiction to take cognizance of an action for
the recovery of said amount.
This contention cannot be sustained. The amount of P30,000 which the plaintiffs are
seeking to recover is not a claim against the estate of Moreno Lahaba. It is not an
indebtedness of Moreno Lahaba or his estate. Said amount represents the price of trust
property administered by him, of which he and his heirs failed and refused to account.
The only appropriate manner to recover said trust property, in view of the trustee's
failure and refusal to account for it, is by an action in court, and the lower court acted
correctly in taking jurisdiction of the case.

In their second assignment of error the defendants-appellants contend that the payment
to the heirs of Callejon Salinas of the sum of P2,500 constitutes res judicata. It does
constitute res judicata as to that amount only, but not as to the amount of P30,000
claimed in this action.
With reference to third assignment of error of the defendants-appellants, to wit, that the
lower court erred in holding that the present action has not prescribed, it may be said
that there is absolutely no evidence in the record to show that the plaintiffs failed to
demand from time to time from Moreno Lahaba and his heirs all the trust property in his
or their possession belonging to Callejon Salinas. As a matter of fact, the plaintiffs,
through the Spanish Consul General, time and again requested Moreno Lahaba and his
heirs to return to them all of said trust property, but Moreno Lahaba and his heirs denied
and concealed the existence of the P30,000 in question. As soon as the plaintiffs
secured positive knowledge of the existence of said amount as trust property belonging
to their predecessor, they commenced this action for the recovery thereof.
As a general rule, a trust estate is exempt from the operation of the statute of
limitations. A trustee, however, may acquire the trust estate by prescription provided
there is repudiation of the trust and this fact is known to the cestui que trust. The
repudiation must be clear, open and unequivocal. In that case the statute will
commence to run from and after said repudiation and the knowledge thereof by
the cestui. Furthermore, prescription in order to be available as a defense, the trustee
must prove that there was a direct repudiation of the trust and that thecestui que trust or
beneficiary had knowledge thereof. Such is the rule as found in Vol. 37, C. J., secs. 249,
295 and 296, pp. 923-926.
SEC. 294. (2) Repudiation of Trust and Assertion of Adverse Claim (a) In
General. In the case of an express trust limitations do not start to run in favor
of the trustee until the trust is repudiated. A doctrine, the validity of which has
been questioned, applying to all express trusts, regardless of the manner in
which the trust was created, is that if the trustee openly repudiates the trust and
asserts an adverse claim to the trust property, these facts being known to
the cestui que trust, the statute begins to run in the trustee's favor, although not
until then, and even though the trust is a resulting one, or a trust ex maleficio, . . .
. And the general rule above stated applies in favor of persons who become
trustees by construction of law, and in case of a voluntary constructive trust. As
the statute of limitations is an affirmative defense to be alleged and proved, it is
incumbent upon the trustee to show that there was a direct repudiation of the
trust and that the cestui que trust had knowledge thereof. Every intendment and
presumption is against a repudiation.
SEC. 295. (b) Necessity for Notice But a trustee's repudiation of an express
trust, or a trust subject to the rule governing express trusts, and his assertion of
an adverse interest will not be sufficient to start the statute of limitations in
motion, unless knowledge or notice of such repudiation and claim is brought
home to the cestui que trust, and the statute begins to run when and only when
the cestui que trust acquires the knowledge or receives the notice.
SEC. 296. (c) Character and Circumstances of Repudiation and Notice To set
the statute in motion the trustee's repudiation and adverse claim, whether by acts

or words repudiation may be proved by circumstances must be clear, open

and unequivocal, and must be so clearly and fully made known to thecestui que
trust as to make it incumbent upon him to assert his equitable rights. Mere failure
of the trustee to respond to repeated inquiries addressed to him by the cestui
que trust is not enough. To constitute a repudiation there must be something said
or done by the trustee in open contravention of the terms of the trust, and of such
character that the relations of the parties will become and continue hostile.
Under the facts hereinbefore stated, the defense of prescription is not available to the
defendants. There was no open, clear and unequivocal repudiation of the trust by Jose
Moreno Lahaba. Neither was there any knowledge on the part of Callejon Salinas and
his heirs of any such repudiation. On the contrary, there was concealment and
misappropriation on the part of Moreno Lahaba of the property entrusted to his
administration and care.
The last two assignments of error of the defendants-appellants are sufficiently answered
by the foregoing arguments and the facts above stated.
With reference to the assignments of error of the plaintiffs-appellants, we are of the
opinion that none of the alleged errors were committed by the lower court. The amount
of P3,491.60 was correctly allowed by the lower court in favor of the defendants. It
represented expenses actually incurred by Moreno Lahaba for the survey and
registration of the lands in question and for taxes paid thereon.
The judgment appealed from is in accordance with the facts and the law, and the same
should be and is hereby affirmed, with costs against the defendants-appellants. So
ordered.
Avancea, C.J., Malcolm, Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 58010. March 31, 1993.
EMILIA O'LACO and HUCO LUNA, petitioners, vs. VALENTIN CO CHO CHIT, O LAY
KIA and COURT OF APPEALS, respondents.
Sergio L. Guadiz for petitioners.
Norberto J . Quisumbing & Associates for private respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; CONDITION PRECEDENT TO
FILING OF SUIT BETWEEN MEMBERS OF THE SAME FAMILY; EFFECT OF
FAILURE TO COMPLY WITH CONDITION. Admittedly, the present action is between
members of the same family since petitioner Emilia O'Laco and respondent O Lay Kia
are half-sisters. Consequently, there should be an averment in the compliant that
earnest efforts toward a compromise have been made, pursuant to Art. 222 of the New
Civil Code, or a motion to dismiss could have been filed under Sec. 1, par. (j), Rule 16
of the Rules of Court. For, it is well-settled that the attempt to compromise as well as the
inability to succeed is a condition precedent to the filing of a suit between members of
the same family. Hence, the defect in the complaint is assailable at any stage of the
proceedings, even on appeal, for lack of cause of action.

2. ID.; ID.; AMENDMENT TO COMPLAINT; WHEN PROPER; AMENDMENT TO

CONFORM TO EVIDENCE. Plaintiff may be allowed to amend his complaint to
correct the defect if the amendment does not actually confer jurisdiction on the court in
which the action is filed, i.e., if the cause of action was originally within that court's
jurisdiction. In such case, the amendment is only to cure the perceived defect in the
complaint, thus may be allowed. In the case before Us, while respondent-spouses did
not formally amend their complaint, they were nonetheless allowed to introduce
evidence purporting to show that earnest efforts toward a compromise had been made,
that is, respondent O Lay Kia importuned Emilia O'Laco and pressed her for the transfer
of the title of the Oroquieta property in the name of spouses O Lay Kia and Valentin Co
Cho Chit, just before Emilia's marriage to Hugo Luna. But, instead of transferring the
title as requested, Emilia sold the property to the Roman Catholic Archbishop of Manila.
This testimony was not objected to by petitioner-spouses. Hence, the complaint was
deemed accordingly amended to conform to the evidence, pursuant to Sec. 5, Rule 10
of the Rules of Court which reads "Sec. 5. Amendment to conform to or authorize
presentation of evidence. When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects, as if they
had been raised in the pleadings . . ." Indeed, if the defendant permits evidence to be
introduced without objection and which supplies the necessary allegations of a defective
complaint, then the evidence is deemed to have the effect of curing the defects of the
complaint. The insufficiency of the allegations in the complaint is deemed ipso facto
rectified.
3. CIVIL LAW; OBLIGATIONS AND CONTRACTS; TRUSTS; EXPRESS TRUST;
DEFINED; IMPLIED TRUST; DEFINED. By definition, trust relations between parties
may either be express or implied. Express trusts are those which are created by the
direct and positive acts of the parties, by some writing or deed, or will, or by words
evincing an intention to create a trust. Implied trusts are those which, without being
express, are deducible from the nature of the transaction as matters of intent, or which
are superinduced on the transaction by operation of law as matters of equity,
independently of the particular intention of the parties.
4. ID.; ID.; ID.; IMPLIED TRUSTS; RESULTING TRUST; BASIS THEREOF;
CONSTRUCTIVE TRUST; BASIS THEREOF. Implied trust may either be resulting or
constructive trusts, both coming into being by operation of law. Resulting trusts are
based on the equitable doctrine that valuable consideration and not legal title
determines the equitable title or interest and are presumed always to have been
contemplated by the parties. They arise from the nature or circumstances of the
consideration involved in a transaction whereby one person thereby becomes invested
with legal title but is obligated in equity to hold his legal title for the benefit of another.
On the other hand, constructive trusts are created by the construction of equity in order
to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to
intention against one who, by fraud, duress or abuse of confidence, obtains or holds the
legal right to property which he ought not, in equity and good conscience, to hold.
5. ID.; ID.; ID.; EXPRESS TRUSTS CONCERNING IMMOVABLES NOT PROVED BY
PAROL EVIDENCE; IMPLIED TRUST IN REAL PROPERTY ESTABLISHED BY PAROL
EVIDENCE; PROOF REQUIRED; CASE AT BAR. Unlike express trusts concerning
immovables or any interest therein which cannot be proved by parol evidence, implied
trusts may be established by oral evidence. However, in order to establish an implied

trust in real property by parol evidence, the proof should be as fully convincing as if the
acts giving rise to the trust obligation were proven by an authentic document. It cannot
be established upon vague and inconclusive proof. After a thorough review of the
evidence on record, We hold that a resulting trust was indeed intended by the parties
under Art. 1448 of the New Civil Code which states "Art. 1448. There is an implied
trust when property is sold, and the legal estate is granted to one party but the price is
paid by another for the purpose of having the beneficial interest of the property. The
former is the trustee, while the latter is the beneficiary . . ." As stipulated by the parties,
the document of sale, the owner's duplicate copy of the certificate of title, insurance
policies, receipt of initial premium of insurance coverage and real estate tax receipts
were all in the possession of respondent-spouses which they offered in evidence. As
emphatically asserted by respondent O Lay Kia, the reason why these documents of
ownership remained with her is that the land in question belonged to her. Indeed, there
can be no persuasive rationalization for the possession of these documents of
ownership by respondent-spouses for seventeen (17) years after the Oroquieta property
was purchased in 1943 than that of precluding its possible sale, alienation or
conveyance by Emilia O'Laco, absent any machination or fraud. This continued
possession of the documents, together with other corroborating evidence spread on
record, strongly suggests that Emilia O'Laco merely held the Oroquieta property in trust
for respondent-spouses.
6. ID.; ID.; ID.; CONSTRUCTIVE TRUST SUBJECT TO PRESCRIPTION; RESULTING
TRUST IMPRESCRIPTIBLE; RESULTING TRUST CONVERTED TO CONSTRUCTIVE
TRUST BY REPUDIATION; REQUISITES; PRESCRIPTIVE PERIOD FOR ACTION
FOR RECONVEYANCE BASED ON CONSTRUCTIVE TRUST. As differentiated
from constructive trusts, where the settled rule is that prescription may supervene, in
resulting trust, the rule of imprescriptibility may apply for as long as the trustee has not
repudiated the trust. Once the resulting trust is repudiated, however, it is converted into
a constructive trust and is subject to prescription. A resulting trust is repudiated if the
following requisites concur: (a) the trustee has performed unequivocal acts of
repudiation amounting to an ouster of the cestui qui trust; (b) such positive acts of
repudiation have been made known to the cestui qui trust; and, (c) the evidence thereon
is clear and convincing. In Tale v. Court of Appeals the Court categorically ruled that an
action for reconveyance based on an implied or constructive trust must perforce
prescribe in ten (10) years, and not otherwise, thereby modifying previous decisions
holding that the prescriptive period was four (4) years. So long as the trustee recognizes
the trust, the beneficiary may rely upon the recognition, and ordinarily will not be in fault
for omitting to bring an action to enforce his rights. There is no running of the
prescriptive period if the trustee expressly recognizes the resulting trust. Since the
complaint for breach of trust was filed by respondent-spouses two (2) months after
acquiring knowledge of the sale, the action therefore has not yet prescribed.
DECISION
BELLOSILLO, J p:
History is replete with cases of erstwhile close family relations put asunder by property
disputes. This is one of them. It involves half-sisters each claiming ownership over a
parcel of land. While petitioner Emilia O'Laco asserts that she merely left the certificate
of title covering the property with private respondent O Lay Kia for safekeeping, the

latter who is the former's older sister insists that the title was in her possession because
she and her husband bought the property from their conjugal funds. To be resolved
therefore is the issue of whether a resulting trust was intended by them in the
acquisition of the property. The trial court declared that there was no trust relation of any
sort between the sisters. 1 The Court of Appeals ruled otherwise. 2 Hence, the instant
petition for review on certiorari of the decision of the appellate court together with its
resolution denying reconsideration. 3
It appears that on 31 May 1943, the Philippine Sugar Estate Development Company,
Ltd., sold a parcel of land, Lot No. 5, Block No. 10, Plan Psu-10038, situated at
Oroquieta St., Sta. Cruz, Manila, with the Deed of Absolute Sale naming Emilia O'Laco
as vendee; thereafter, Transfer Certificate of Title No. 66456 was issued in her name.
On 17 May 1960, private respondent-spouses Valentin Co Cho Chit and O Lay Wa
learned from the newspapers that Emilia O'Laco sold the same property to the Roman
Catholic Archbishop of Manila for P230,000.00, with assumption of the real estate
mortgage constituted thereon. 4
On 22 June 1960, respondent-spouses Valentin Co Cho Chit and O Lay Kia sued
petitioner-spouses Emilia O'Laco and Hugo Luna to recover the purchase price of the
land before the then Court of First Instance of Rizal, respondent-spouses asserting that
petitioner Emilia O'Laco knew that they were the real vendees of the Oroquieta property
sold in 1943 by Philippine Sugar Estate Development Company, Ltd., and that the legal
title thereto was merely placed in her name. They contend that Emilia O'Laco breached
the trust when she sold the land to the Roman Catholic Archbishop of Manila.
Meanwhile, they asked the trial court to garnish all the amounts still due and payable to
petitioner-spouses arising from the sale, which was granted on 30 June 1960. 5
Petitioner-spouses deny the existence of any form of trust relation. They aver that
Emilia O'Laco actually bought the property with her own money; that she left the Deed
of Absolute Sale and the corresponding title with respondent-spouses merely for
safekeeping; that when she asked for the return of the documents evidencing her
ownership, respondent-spouses told her that these were misplaced or lost; and, that in
view of the loss, she filed a petition for issuance of a new title, and on 18 August 1944
the then Court of First Instance of Manila granted her petition.
On 20 September 1976, finding no trust relation between the parties, the trial court
dismissed the complaint together with the counterclaim. Petitioners and respondents
appealed.
On 9 April 1981, the Court of Appeals set aside the decision of the trial court thus
". . . We set aside the decision of the lower court dated September 20, 1976 and the
order of January 5, 1977 and another one is hereby entered ordering the defendantsappellees to pay plaintiffs-appellants jointly and severally the sum of P230,000.00
representing the value of the property subject of the sale with assumption of mortgage
to the Roman Catholic Archbishop of Manila with legal interest from the filing of the
complaint until fully paid, the sum of P10,000.00 as attorney's fees, plus costs."
On 7 August 1981, the Court of Appeals denied reconsideration of its decision,
prompting petitioners to come to this Court for relief.

Petitioners contend that the present action should have been dismissed. They argue
that the complaint fails to allege that earnest efforts toward a compromise were exerted
considering that the suit is between members of the same family, and no trust relation
exists between them. Even assuming ex argumenti that there is such a relation,
petitioners further argue, respondents are already barred by laches.
We are not persuaded. Admittedly, the present action is between members of the same
family since petitioner Emilia O'Laco and respondent O Lay Kia are half-sisters.
Consequently, there should be an averment in the complaint that earnest efforts toward
a compromise have been made, pursuant to Art. 222 of the New Civil Code, 6 or a
motion to dismiss could have been filed under Sec. 1, par. (j), Rule 16, of the Rules of
Court. 7 For, it is well-settled that the attempt to compromise as well as the inability to
succeed is a condition precedent to the filing of a suit between members of the same
family. 8 Hence, the defect in the complaint is assailable at any stage of the
proceedings, even on appeal, for lack of cause of action. 9
But, plaintiff may be allowed to amend his complaint to correct the defect if the
amendment does not actually confer jurisdiction on the court in which the action is filed,
i.e., if the cause of action was originally within that court's jurisdiction. 10 In such case,
the amendment is only to cure the perceived defect in the complaint, thus may be
allowed.
In the case before Us, while respondent-spouses did not formally amend their
complaint, they were nonetheless allowed to introduce evidence purporting to show that
earnest efforts toward a compromise had been made, that is, respondent O Lay Kia
importuned Emilia O'Laco and pressed her for the transfer of the title of the Oroquieta
property in the name of spouses O Lay Kia and Valentin Co Cho Chit, just before
Emilia's marriage to Hugo Luna. 11 But, instead of transferring the title as requested,
Emilia sold the property to the Roman Catholic Archbishop of Manila. This testimony
was not objected to by petitioner-spouses. Hence, the complaint was deemed
accordingly amended to conform to the evidence, 12 pursuant to Sec. 5, Rule 10 of the
Rules of Court which reads
"SECTION 5. Amendment to conform to or authorize presentation of evidence. When
issues not raised by the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects, as, if they had been raised in the pleadings . . ."
(emphasis supplied).
Indeed, if the defendant permits evidence to be introduced without objection and which
supplies the necessary allegations of a defective complaint, then the evidence is
deemed to have the effect of curing the defects of the complaint. 13 The insufficiency of
the allegations in the complaint is deemed ipso facto rectified. 14
But the more crucial issue before Us is whether there is a trust relation between the
parties in contemplation of law.
We find that there is. By definition, trust relations between parties may either be express
or implied. 15 Express trusts are those which are created by the direct and positive acts
of the parties, by some writing or deed, or will, or by words evincing an intention to
create a trust. 16 Implied trusts are those which, without being express, are deducible

from the nature of the transaction as matters of intent, or which are superinduced on the
transaction by operation of law as matters of equity, independently of the particular
intention of the parties.17 Implied trusts may either be resulting or constructive trusts,
both coming into being by operation of law. 18
Resulting trusts are based on the equitable doctrine that valuable consideration and not
legal title determines the equitable title or interest 19 and are presumed always to have
been contemplated by the parties. They arise from the nature or circumstances of the
consideration involved in a transaction whereby one person thereby becomes invested
with legal title but is obligated in equity to hold his legal title for the benefit of another. 20
On the other hand, constructive trusts are created by the construction of equity in order
to satisfy the demands of justice 21 and prevent unjust enrichment. They arise contrary
to intention against one who, by fraud, duress or abuse of confidence, obtains or holds
the legal right to property which he ought not, in equity and good conscience, to hold. 22
Specific examples of resulting trusts may be found in the Civil Code, particularly Arts.
1448, 1449, 1451,1452 and 1453, 23 while constructive trusts are illustrated in Arts.
1450, 1454, 1455 and 1456. 24
Unlike express trusts concerning immovables or any interest therein which cannot be
proved by parol evidence, 25 implied trusts may be established by oral evidence. 26
However, in order to establish an implied trust in real property by parol evidence, the
proof should be as fully convincing as if the acts giving rise to the trust obligation were
proven by an authentic document. 27 It cannot be established upon vague and
inconclusive proof. 28
After a thorough review of the evidence on record, We hold that a resulting trust was
indeed intended by the parties under Art. 1448 of the New Civil Code which states
"ARTICLE 1448. There is an implied trust when property is sold, and the legal estate is
granted to one party but the price is paid by another for the purpose of having the
beneficial interest of the property. The former is the trustee, while the latter is the
beneficiary . . ." (emphasis supplied).
First. As stipulated by the parties, the document of sale, the owner's duplicate copy of
the certificate of title, insurance policies, receipt of initial premium of insurance coverage
and real estate tax receipts ware all in the possession of respondent spouses which
they offered in evidence. As emphatically asserted by respondent O Lay Kia, the reason
why these documents of ownership remained with her is that the land in question
belonged to her. 29
Indeed, there can be no persuasive rationalization for the possession of these
documents of ownership by respondent-spouses for seventeen (17) years after the
Oroquieta property was purchased in 1943 than that of precluding its possible sale,
alienation or conveyance by Emilia O'Laco, absent any machination or fraud. This
continued possession of the documents, together with other corroborating evidence
spread on record, strongly suggests that Emilia O'Laco merely held the Oroquieta
property in trust for respondent-spouses.
Second. It may be worth to mention that before buying the Oroquieta property,
respondent-spouses purchased another property situated in Kusang-Loob, Sta. Cruz,

Manila, where the certificate of title was placed in the name of Ambrosio O'Laco, older
brother of Emilia, under similar or identical circumstances. The testimony of former
counsel for respondent-spouses, then Associate Justice Antonio G. Lucero of the Court
of Appeals, is enlightening
"Q In the same conversation he told you how he would buy the property (referring to the
Oroquieta property), he and his wife?
"A Yes, Sir, he did.
"Q What did he say?
xxx xxx xxx
"A He said he and his wife has (sic) already acquired by purchase a certain property
located at Kusang-Loob, Sta. Cruz, Manila. He told me he would like to place the
Oroquieta Maternity Hospital in case the negotiation materialize(s) in the name of a
sister of his wife (O'Laco)" (emphasis supplied). 30
On the part of respondent-spouses, they explained that the reason why they did not
place these Oroquieta and Kusang-Loob properties in their name was that being
Chinese nationals at the time of the purchase they did not want to execute the required
affidavit to the effect that they were allies of the Japanese. 31 Since O Lay Kia took care
of Emilia who was still young when her mother died, 32 respondent-spouses did not
hesitate to place the title of the Oroquieta property in Emilia's name.
Quite significantly, respondent-spouses also instituted an action for reconveyance
against Ambrosio O'Laco when the latter claimed the Kusang-Loob property as his own.
A similar stipulation of facts was likewise entered, i.e., respondent-spouses had in their
possession documents showing ownership of the Kusang-Loob property which they
offered in evidence. In that case, the decision of the trial court, now final and executory,
declared respondent-spouses as owners of the Kusang-Loob property and ordered
Ambrosio O'Laco to reconvey it to them. 33
Incidentally, Ambrosio O'Laco thus charged respondent spouses Valentin Co Cho Cit
and O Lay Kia before the Anti-Dummy Board, docketed as Case No. 2424, for their
acquisition of the Kusang-Loob and Oroquieta properties. 34 He claimed that
respondent-spouses utilized his name in buying the Kusang-Loob property while that of
petitioner O'Laco was used in the purchase of the Oroquieta property. In effect, there
was an implied admission by Ambrosio that his sister Emilia, like him, was merely used
as a dummy. However, the Anti-Dummy Board exonerated respondent-spouses since
the purchases were made in 1943, or during World War II, when the Anti-Dummy Law
was not enforceable.
Third. The circumstances by which Emilia O'Laco obtained a new title by reason of the
alleged loss of the old title then in the possession of respondent-spouses cast serious
doubt on the veracity of her ownership. The petitions respectively filed by Emilia O'Laco
and Ambrosio O'Laco for the Oroquieta and the Kusang-Loob properties were both
granted on the same day, 18 August 1944, by the then Court of First Instance of Manila.
These orders were recorded in the Primary Entry Book of the Register of Deeds of
Manila at the same time, 2:35 o'clock in the afternoon of 1 September 1944, in

consecutive entries, Entries Nos. 246117-18. 35 This coincidence lends credence to the
position of respondent-spouses that there was in fact a conspiracy between the siblings
Ambrosio and Emilia to defraud and deprive respondents of their title to the Oroquieta
and Kusang-Loob properties.
Fourth. Until the sale of the Oroquieta property to the Roman Catholic Archbishop of
Manila, petitioner Emilia O'Laco actually recognized the trust. Specifically, when
respondent spouses learned that Emilia was getting married to Hugo, O Lay Kia asked
her to have the title to the property already transferred to her and her husband Valentin,
and Emilia assured her that "would be arranged (maaayos na)" after her wedding. 36
Her answer was an express recognition of the trust, otherwise, she would have refused
the request outright. Petitioners never objected to this evidence; nor did they attempt to
controvert it.
Fifth. The trial court itself determined that "Valentin Co Cho Chit and O Lay Kia had
some money with which they could buy the property." 37 In fact, Valentin was the Chief
Mechanic of the Paniqui Sugar Mills, was engaged in the buy and sell business,
operated a gasoline station, and owned an auto supply store as well as a ten-door
apartment in Caloocan City. 38 In contrast, Emilia O'Laco failed to convince the Court
that she was financially capable of purchasing the Oroquieta property. In fact, she
opened a bank account only in 1946 and likewise began filing income tax returns that
same year, 39 while the property in question was bought in 1943. Respondent-spouses
even helped Emilia and her brothers in their expenses and livelihood. Emilia could only
give a vague account on how she raised the money for the purchase of the property.
Her narration of the transaction of sale abounds with "I don't know" and "I don't
remember." 40
Having established a resulting trust between the parties, the next question is whether
prescription has set in.
As differentiated from constructive trusts, where the settled rule is that prescription may
supervene, in resulting trust, the rule of imprescriptibility may apply for as long as the
trustee has not repudiated the trust. 41 Once the resulting trust is repudiated, however,
it is converted into a constructive trust and is subject to prescription.
A resulting trust is repudiated if the following requisites concur: (a) the trustee has
performed unequivocal acts of repudiation amounting to an ouster of the cestui qui trust;
(b) such positive acts of repudiation have been made known to the cestui qui trust; and,
(c) the evidence thereon is clear and convincing. 42
In Tale v. Court of Appeals 43 the Court categorically ruled that an action for
reconveyance based on an implied or constructive trust must perforce prescribe in ten
(10) years, and not otherwise, thereby modifying previous decisions holding that the
prescriptive period was four (4) years.
Neither the registration of the Oroquieta property in the name of petitioner Emilia O'Laco
nor the issuance of a new Torrens title in 1944 in her name in lieu of the alleged loss of
the original may be made the basis for the commencement of the prescriptive period.
For, the issuance of the Torrens title in the name of Emilia O'Laco could not be
considered adverse, much less fraudulent. Precisely, although the property was bought

by respondent-spouses, the legal title was placed in the name of Emilia O'Laco. The
transfer of the Torrens title in her name was only in consonance with the deed of sale in
her favor. Consequently, there was no cause for any alarm on the part of respondentspouses. As late as 1959, or just before she got married, Emilia continued to recognize
the ownership of respondent-spouses over the Oroquieta property. Thus, until that point,
respondent-spouses were not aware of any act of Emilia which would convey to them
the idea that she was repudiating the resulting trust. The second requisite is therefore
absent. Hence, prescription did not begin to run until the sale of the Oroquieta property,
which was clearly an act of repudiation.
But immediately after Emilia sold the Oroquieta property which is obviously a disavowal
of the resulting trust, respondent-spouses instituted the present suit for breach of trust.
Correspondingly, laches cannot lie against them.
After all, so long as the trustee recognizes the trust, the beneficiary may rely upon the
recognition, and ordinarily will not be in fault for omitting to bring an action to enforce his
rights. 44 There is no running of the prescriptive period if the trustee expressly
recognizes the resulting trust. 45 Since the complaint for breach of trust was filed by
respondent-spouses two (2) months after acquiring knowledge of the sale, the action
therefore has not yet prescribed.
WHEREFORE, the Petition for Review on Certiorari is DENIED. The Decision of the
Court of Appeals of 9 April 1981, which reversed the trial court, is AFFIRMED. Costs
against petitioners.
SO ORDERED.
Cruz , Grio-Aquino and Quiason, JJ ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. L-16185-86

May 31, 1962

TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA and ANTONIO, all surnamed

PEREZ Y TUASON,
PHILIPPINE NATIONAL BANK, Judicial Guardian, J. ANTONIO ARANETA, trusteeappellee,
vs.
ANTONIO M. PEREZ, judicial guardian-appellant.
Araneta and Araneta for trustee-appellee.
Alfonso Felix, Jr. for judicial guardian-appellant.
CONCEPCION, J.:
These are two (2) incidents of the trusteeship of the minors Benigno, Angela and
Antonio, all surnamed Perez Y Tuason. The issue in G.R. No. L-16185 is whether or not
the trustee, J. Antonio Araneta hereinafter referred to as the appellee may be
allowed to pay a sum of money to the law firm, Araneta & Araneta, of which he is a
member, for services rendered to him, in his aforementioned capacity as such trustee,
in several judicial proceedings, whereas G.R. No. L-16186 concerns the question
whether the purchase of certain shares of stock nude by the appellee for the benefit of
the trusteeship merits judicial approval. Both questions were decided by the Court of
First Instance of Rizal (Quezon City Branch) in the affirmative. Hence, this appeal by
Antonio M. Perez hereinafter referred to as the appellant as guardian of the
person of said minors.

With respect to G.R. No. L-16185, it appears that the law firm Araneta & Araneta,
through its assistant, Atty. Francisco T. Papa, had rendered services, as counsel for the
appellee, in connection with the following:
1. The approval of his accounts for January to March, 1956, which were objected
to by the appellant. Said objection was, on October 19, 1956, overruled by the
lower court, the action of which was affirmed by this Court in G.R. No. L-11788,
on May 16, 1958, on appeal taken by appellant.
2. The appellee's accounts for April to June, 1957; which were approved by the
lower court on July 13, 1957, despite appellant's objection thereto. Although
appellant appealed to the Supreme Court, he, subsequently, withdrew the
appeal.
3. In 1958, appellant instituted CA-G.R. No. 22810-R of the Court of Appeals for
a writ of certiorari andmandamus against the appellee and the lower court, the
latter having sustained the action of the appellee in withholding certain sums
from the shares of the minors aforementioned in the net income of the trust
estate for July to September, 1957, in view of the appellant's refusal to reimburse
to said estate identical sums received in the form of allowances for the period
from April to June, 1957, in excess of the shares of said minors in the net income
for that period. After appropriate proceedings, the Court of Appeals rendered a
decision on June 25, 1958, dismissing said petition.
The lower court authorized the payment of P5,500.00 for the services thus rendered by
Araneta & Araneta, which appellant assails upon the ground that, pursuant to Section 7
of Rule 86 of the Rules of Court:
When the executor or administrator is an attorney he shall not charge against the
estate any professional fees for legal services rendered by him.
that the services above referred to inured to the benefit, not of the trust estate, but of the
trustee; that the amount of the award is excessive; and that the lower court should have
required the introduction of evidence on the extent of the services rendered by the
aforementioned law firm before making said award.
Appellant's pretense is untenable. Said Section 7 of Rule 86 refers only to "executors or
administrators" of the estate of deceased persons, and does not necessarily apply to
trustees. It is true that some functions of the former bear a close analogy with those of
the latter. Moreover, a trustee, like, an executor or administrator, holds an office of trust,
particularly when, as in the case of appellee herein, the trustee acts as such under
judicial authority. Hence, generally, the policy set forth in said Section 7 of Rule 86
basically sound and wise as it is should be applicable to trustees. The duties of
executors or administrators are, however, fixed and/or limited by law, whereas those of
trustee of an express trust like that which we have under consideration are,
usually, governed by the intention of the trustor or of the parties, if established by
contract (Art. 1441, Civil Code of the Philippines). Besides, the duties of trustees may
cover a much wider range than those of executors or administrators of the estate of
deceased persons. Again the application of Section 7 of Rule 86 to all trusteeships
without distinction may dissuade deserving persons from accepting the position of

trustee and consequently have a deterrent effect upon the establishment of trusts, at a
time when a sizeable part of the burden to undertake important and even essential
activities in advanced and/or developing communities or states, particularly in the field
of education, science and social welfare, is borne by foundations or other similar
organizations based upon the principles of trust. We believe it, therefore, to be the
better policy to acknowledge the authority of courts of justice to exercise a sound
judgment in determining, in the light of the peculiar circumstances obtaining in each
case, whether or not a trustee shall be allowed to pay attorney's fees and charge the
same against the trust estate, independently of his compensation as a trustee.
In the case at bar, considering that the appellee was merely defending himself in the
proceedings that required the services of counsel; that in each case the stand taken by
the appellee was upheld by the court; that the will creating the trust and designating the
appellee as trustee explicitly grants him the right to collect for his services such
reasonable fees; that, in view of the nature of the relations between the trustor and the
trustee, on the one hand, and the trustor and appellant on the other, there can be little
doubt but that the trustor would have sanctioned the payment of the attorney's fees
involved in this incident; and that it may have been more costly for the trust estate to
engage the services of a law firm other than that of Araneta & Araneta, we are not
prepared to hold that the lower court has erred in authorizing the payment of said
attorney's fees by herein appellee.
For the rest, it is well settled that "a trustee may be indemnified out of the trust estate for
his expenses in rendering and proving his accounts and for costs and counsel fees" in
connection therewith (54 Am. Jur. 415-416), apart from the fact that the nature of the
professional services in question appeared in the records before the lower court and
that the amount of P5,500 fixed by the same as compensation for such services is not
excessive.
Referring now to G.R. No. L-16186, it appears that from July to September, 1958, the
appellee had bought for the trust estate, through a broker (Pedro Nolasco da Silva &
Co.), a total of 118 common shares of stock of the Philippine-American Drug Co. at
P100 each, and that, upon submission of appellee's accounts for said period, appellant
objected to the items of expenses relative to the acquisition of said common shares,
upon the ground that the investment therein is "unwise in that (the operation of) said
company has not, to our knowledge, proved profitable and unlawful in that it is actually
an act of self-dealing between the trustee and the beneficiaries of the trust", because
the former (appellee) is, also, a stockholder of said company. After the introduction of
the evidence of both parties, the lower court overruled the objection and approved said
accounts.
It is not disputed that appellee holds, in his individual capacity, 199 out of 30,000
common shares of stock of the Philippine-American Drug Co., whereas his children own
270 out of 5,000 preferred shares of stock of the same enterprise. As a consequence,
the interest of appellees and his children in said company is not such as to warrant the
charge that the purchase of 118 common stocks for the trust estate amounts to selfdealing by the appellee with himself. What is more, said purchase by the trustee may be
considered as an indication that he had displayed in the management of the trust estate
the same interest he had in the protection of his own property.

Upon the other hand, it has, also, been established that the book value of each of said
118 common shares of stock, purchased by the trustee at P100 each, is P202.80; that
in 1954 the Philippine-American Drug Co. had paid a cash dividend of 6%, side from
declaring a 33-1/3% stock dividend for its common shares; and that 6- % and 4%
cash dividends were paid in 1955 and 1957, respectively. Furthermore, the statement of
accounts of the company for the years 1954, 1955, 1956 and 1957, satisfied the lower
court that the enterprise "is financially stable and sound". Under the circumstances, we
cannot say that the investment in question is unwise.
Appellant's allegation to the effect that shares of stock of the San Miguel Brewery pay
higher returns, even if true, does not establish his pretense. Whether an investment is
good or not does not depend upon the general, abstract possibility of better
investments. Again, one factor that should be taken into account is the degree of
influence that the investor may have upon the management of the enterprise
concerned, which appellee admittedly has in the Philippine-American Drug Co., but
which it is not claimed he wields in the San Miguel Brewery Co.
WHEREFORE, the orders appealed from are hereby affirmed, with costs against the
appellant. It is so ordered.
Padilla, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
Bengzon, C.J., is on leave.
Bautista Angelo, J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-44347 September 29, 1988

VICENTE TAN, petitioner,

vs.
CITY OF DAVAO, respondent.
Occea Law Office for petitioner.
The City Legal Officer for respondent.

GRIO-AQUINO, J.:
This 26-year old case involves what is probably now a valuable lot in the City of Davao
whose owner left for China with her entire family in 1923 and never returned. Like all
such estates facing escheat proceedings, it is fair game for poseurs and fakers claiming
to be the missing heir of the deceased owner.
The spouses Cornelia Pizarro and Baltazar Garcia, during their lifetime, were residents
of Davao City. As they were childless, they adopted a three-year old girl whom they
named Dominga Garcia and brought up as their own. At the age of nineteen years,
Dominga Garcia married a Chinaman, Tan Seng alias Seng Yap, with whom she had
three children, named Vicente, who was born in 1916, Mariano who was born in 1918,
and Luis who was born in 1921. In 1923, Dominga Garcia and her three children
emigrated to Canton, China. In less than a year, Tan Seng followed his family to his
country of origin.
According to the petitioner, Dominga Garcia died intestate in 1955 (Extra-judicial
Settlement of the Estate of Dominga Garcia dated May 27, 1966, p. 8, Rollo). She left in
the Philippines a 1,966-square-meter lot on Claveria Street, Townsite of Davao, District
of Davao, registered in her name under T.C.T. No. 296 (T-2774) of the Registry of
Deeds of Davao City. Since her departure for China with her family, neither she, nor her
husband, nor any of their children has returned to the Philippines to claim the lot.
Dominga's adoptive parent, Cornelia Pizarro, died in May 1936. In 1948, her nephew,
Ramon Pizarro, occupied a part of Dominga's property and collected the rentals from
the owners of other houses occupying the land. Another nephew of Cornelia, Segundo
Reyes, in a burst of civic spirit, informed the Solicitor General about the property. The
City Fiscal and NBI agents, Antonio Gonzaga and Felix Valencia, investigated Segundo
Reyes, Ramon Pizarro and Aurelio Pizarro regarding the whereabouts of Dominga
Garcia, Tan Seng, and their children.
During the investigation, Ramon Pizarro alleged that Vicenta Tan, daughter of Dominga,
was married and living in Bacolod City, but he did not know her exact address. Aurelio
Pizarro, on the other hand, controverted that statement because as far as he knew,
Vicenta Tan left for China with her mother and brothers in 1923.
On September 12,1962, the City of Davao filed a petition in the Court of First Instance
of Davao, Branch I (Special Civil Case No. 1220) to declare Dominga Garcia's land
escheated in its favor. It alleged that Dominga Garcia and her children are presumed to
be dead and since Dominga Garcia left no heir person by law entitled to inherit her

estate, the same should be escheated pursuant to Rule 92 of the Rules of Court (pp. 15, Record on Appeal).
The court set the petition for hearing and directed the City to cause (as it did ) the
publication of its petition in the 'Mindanao Times," a newspaper of general circulation in
the city and province of Davao, and in the Official Gazette, once a week for six (6)
consecutive weeks (pp. 6-8, Record on Appeal).
Ramon Pizarro opposed the escheat petition on the ground that courts are not
authorized to declare that a person is presumed to be dead and that Dominga Garcia's
being in Red China is not a sufficient ground to deprive her of her property by escheat
proceedings (pp. 8-9, Record on Appeal).
On June 15, 1966, Pizarro filed a motion to dismiss the escheat petition (pp. 13-15,
Record on Appeal), but he withdrew his motion three days later (p. 15, Record on
Appeal).
Numerous incidents delayed the trial of the case, among them: (1) the court's order
denying the oppositor's motion to dismiss the escheat petition, which reached the Court
of Appeals and the Supreme Court (L-38423); (2) the court's order requiring Pizarro to
render an accounting which also reached the Court of Appeals and Supreme Court (L38642); and (3) the court's order for receivership which reached the Court of Appeals
and the Supreme Court (L-39224).
At the trial, the petitioner's evidence on the Identity of the land; the fact that the
registered owner, Dominga Garcia, and her children and husband had left for China in
1923; that she died intestate in 1955; and that none of her heirs is found in the
Philippines, were not seriously disputed.
The controversy centers on whether Dominga's daughter, Vicenta Tan, is alive in China
or in Hongkong, as alleged by Pizarro who tried to prove it through: (1) supposed
pictures of the missing heir (Exhs. 1, 2, and 3); (2) an Extrajudicial Settlement and
Adjudication of Dominga's Estate (Exh. 19, pp. 8-9, Rollo) allegedly executed by Vicenta
in Hongkong on May 27, 1966; and (3) a Special Power of Attorney (Exh. 20) that she
supposedly signed (thumbmarked) in favor of Pizarro on the same date also in
Hongkong (pp. 53-56, Rollo).
Pizarro testified that his aunt Cornelia Pizarro gave him the papers pertaining to the
land and told him to take care of it before she died in 1936.
On cross-examination, he alleged that in 1960 he met Vicenta on Claveria Street, that
she told him to take care of her property because she would come again later; that they
met again in Hongkong in 1966; and he recognized her from her pictures
(Exhs. 1, 2, and 3).
On still another occasion, Pizarro testified that the title of the land was given to him by
Dominga Garcia when she and her husband returned to Davao before the war and
borrowed money from him for their trip to China.
Pizarro's witness, a septuagenarian Arsenio Suazo, who claimed to be a distant relative
of Cornelia Pizarro and Dominga Garcia, testified that the last time he saw Vicenta was

when she was 5 years old. He Identified her as the woman with buck teeth in the
pictures (Exhs. 1, 2 and 3) because he remembered that, even as a 5-year-old, "her
teeth were not in good form and were somewhat protruding."
Another witness, Ramon Regino, a nephew of Pizarro, calculated that Vicenta was 7
years old when he last saw her. He testified that the pictures (Exhs. 1, 2, and 3) bore a
similarity to Vicenta whose face, he recalled, was "somewhat long."
The trial court found Suazos testimony "not credible" or "improbable" for it was
impossible for him to Identify the woman in the picture as Vicenta on the basis only of
his recollection that she had protruding teeth as a child, because, the court argued, "it is
a matter of common knowledge ... that the teeth of children of five years of age are
temporary, and are replaced by permanent teeth at the age of seven or eight years."
(p. 185, Record on Appeal.)
The court also found Regino's testimony "Incredible, patently incredible" (p. 185, Record
on Appeal).
Neither did the trial court believe Pizarro's allegation that the pictures, Exhibits 1, 2, and
3, were those of Vicenta Tan. The court observed that the woman in the picture, who
supposedly made the Extrajudicial Settlement and Special Power of Attorney (Exhs. 19
and 20) did not know how to sign her name, thus contradicting Pizarro's statement that
Vicente, at age 7, already knew how to write and that when they met in Hongkong, they
conversed in Chavacano and in English. On the other hand, the court pointed out, since
Vicenta left for China in 1923 when she was only 7 years old, and as she grew up in
China, it could not be true that she spoke Chavacano and could write in the Roman
alphabet
(p. 194, Record on Appeal).
The Court did not believe that Pizarro and Vicenta met in Davao in 1960, for if that were
true, he did not need to be shown the scar on Vicenta's thigh in order for him to
recognize her. Furthermore, it is improbable that a woman whom he had not seen for 43
years would bare her thigh to him. The trial court pointed out in its decision that:
... There is no proof that Vicenta Tan, daughter of Dominga Garcia, was
the one who in fact sent the picture other than the claim of Pizarro that he
received the same from her. Likewise, there is no proof that the woman in
Exhibit I is Vicenta Tan, daughter of Dominga Garcia, except the testimony
of Pizarro that he received the picture from her. An impostor might have
sent her picture to Pizarro foist herself upon him as the daughter of
Dominga Garcia. And this is the woman whom Pizarro met in Hongkong
(p. 196, Record on Appeal.)
The trial court found that Pizarro's testimonies "ring with untruthfulness; they are replete
with inconsistencies" (p. 17, Record on Appeal) and the witnesses who corroborated
him were "unworthy of belief" (p. 198, Record on Appeal).
On March 23, 1972, the trial court rendered judgment whose dispositive portion is
quoted below:

WHEREFORE, the land in the name of Dominga Garcia covered by

Transfer Certificate of Title No. 296 (T-2774) of the Register of Deeds of
Davao City, as well as the rentals thereon, shall escheat and the same are
hereby assigned to the City of Davao for the benefit of public schools and
public charitable institutions and centers in the said city.
Ramon Pizarro shall make an accounting of the income he collected from
himself and those who are occupying the land from the time he took
possession of it in 1936 when his aunt Cornelia Pizarro died until the City
of Davao takes possession of the property and shall deliver the same to
the city.
Ramon Pizarro shall likewise deliver to the City of Davao the owner's
duplicate of Transfer Certificate of Title No. 296 (T-2774) which is in his
possession, without costs. (p. 198, Record on Appeal.)
Pizarro appealed to the Court of Appeals (CA-G.R. No. L-51786-R). He passed away on
June 16, 1975 during the pendency of the appeal.
On August 19,1975, a certain Luis Tan, alias Chen Yek An claiming to be the long
missing son of Dominga Garcia, filed a motion for intervention in the Court of Appeals.
He alleged that he had been living in mainland China; that he failed to come to the trial
because of a government prohibition barring his entry to the Philippines; that after
diplomatic relations with China were restored, he returned to this country to oppose the
escheat proceedings on the properties of his mother, Dominga Garcia.
The City of Davao opposed the motion for intervention for tardiness. The Court of
Appeals disallowed it because the trial had long been terminated, and the intervention, if
allowed, would unduly delay the adjudication of the rights of the original parties
(p. 26, Rollo).
On April 2, 1976, the Court of Appeals affirmed the appealed decision of the trial court.
Vicenta Tan and/or her attorney-in-fact, Ramon Pizarro, appealed by petition for
certiorari to this Court, alleging that the Court of Appeals erred:
1. in ruling that the city of Davao had personality to file the escheat
petition; and
2. in declaring that petitioner Vicenta Tan may be presumed dead.
We find no merit in the petition for review.
With respect to the argument that only the Republic of the Philippines, represented by
the Solicitor-General, may file the escheat petition under Section 1, Rule 91 of the
Revised (1964) Rules of Court, the Appellate Court correctly ruled that the case did not
come under Rule 91 because the petition was filed on September 12,1962, when the
applicable rule was still Rule 92 of the 1940 Rules of Court which provided:
Sec. 1. When and by whom,petition filed.When a person dies intestate,
seized of real or personal property in the Philippines, leaving no heirs or
person by law entitled to the same, the municipality or city where the

deceased last resided, if he resided in the Philippines, or the municipality

or city in which he had estate if he resided out of the Philippines, may file
a petition in the court of first instance of the province setting forth the facts,
and praying that the estate of the deceased be declared escheated.
(Emphasis supplied.)
Rule 91 of the Revised rules of Court, which provides that only the Republic of the
Philippines, through the Solicitor General, may commence escheat proceedings, did not
take effect until January 1, 1964. Although the escheat proceedings were still pending
then, the Revised Rules of Court could not be applied to the petition because to do so
would work injustice to the City of Davao. Rule 144 of the 1964 Rules of Court contains
this "saving" clause:
These rules shall take effect on January 1, 1964. They shall govern all
cases brought after they take effect, and also all further proceedings in
cases pending, except to the extent that in the opinion of the court, their
application would not be feasible or would work injustice, in which event
the former procedure shall apply.
The Court of Appeals should have dismissed the appeal of Vicenta Tan and Ramon
Pizarro earlier because the records show that Vicenta was never a party in the escheat
proceedings. The trial court's order dated February 4, 1972 ordering that she be
substituted for Ramon Pizarro as oppositor (p. 16, Record on Appeal) was set aside by
the same court in its Order of March 23, 1972 (p. 178, Record on Appeal) which was not
appealed.
Vicenta Tan, if she still exists, was never served with summons extra-territorially under
Section 17, Rule 14 of the Rules of Court. She never appeared in the trial court by
herself, or counsel and never filed a pleading therein, hence, she never submitted to the
court's jurisdiction.
Every action must be prosecuted and defended in the name of the real party-in-interest
(Sec. 2, Rule 3, Rules of Court; Ferrer vs. Villamor, 60 SCRA 106; Filipinas Industrial
Corp. vs. San Diego, 23 SCRA 706; 1 Moran 144). Ramon Pizarro, the alleged
administrator of Dominga Garcia's property, was not a real party in interest. He had no
personality to oppose the escheat petition.
The Court of Appeals did not err in affirming the trial court's ruling that Dominga Garcia
and her heirs may be presumed dead in the escheat proceedings as they are, in effect,
proceedings to settle her estate. Indeed, while a petition instituted for the sole purpose
of securing a judicial declaration that a person is presumptively dead cannot be
entertained if that were the only question or matter involved in the case, the courts are
not barred from declaring an absentee presumptively dead as an incident of, or in
connection with, an action or proceeding for the settlement of the intestate estate of
such absentee. Thus ruled this Court in In re Szatraw 81 Phil 461:
... This presumption ... may arise and be invoked and trade in a case,
either in an action or in a special proceeding, which is tried or heard by,
and submitted for-decision to, competent court. Independently of such an
action or special proceeding, the presumption of death cannot be invoked,

nor can it be made the subject of an action or special proceeding.

(Emphasis added.)
Direct evidence proving that Dominga Garcia, her husband and her children are in fact
dead, is not necessary. It may be presumed under Article 390 of the New Civil Code
which provides:
ART. 390. After an absence of seven years, it being unknown whether or
not the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years ...
The Court of Appeals found that the City of Davao was able to prove the facts from
which the presumption arises. It said:
... Its evidence preponderantly shows that in 1923 Dominga Garcia and
her family left the Philippines bound for China. Since then until the instant
petition was filed on September 12, 1962, a period covering about 39
years, nothing had been heard about them. It is not known whether all or
any of them is still alive at present. No heir, devisee or any other person
entitled to the estate of Dominga Garcia has appeared and claimed the
same up to this time except Luis Tan whose status as alleged heir has still
to be proven in the proper court.
The assertion of appellant Pizarro that in 1960 he met and talked with
Vicenta Tan in Claveria, Davao City, before she went to China, and again
in 1966, when he went to Hongkong, was not believed by the court below.
After assessing and evaluating the evidence, we find no sufficient cause to
disturb the conclusion of the trial court made on a finding of fact based on
conflicting testimony and depending largely upon the credibility of
witnesses who testified before it. In our review of the evidence, we have
not come across any material fact or circumstance which the court a
quo has overlooked and failed to consider, or has misunderstood and
misapplied, and which if properly appreciated and accurately were held
would change the result of this litigation.
For one thing, if it is true that Vicenta Tan left the Philippines only in 1960,
as oppositor Pizarro would like the court to believe, it has not been
explained why he omitted to secure copies of her departure papers from
either the Department of Foreign Affairs, the Bureau of Immigration or the
former Chinese Embassy, and present them to the court to establish her
existence as late as 1960.
For another, if it is also true that he met her in Hongkong in 1966, we are
at a loss why he failed to arrange for her return to the Philippines. We do
not believe it would have been difficult to do so, considering that she had
been a resident of this country for more than 40 years and had been
absent for only about six years and that her return was imperative on
account of a court action against her property which required her personal

presence. But even if this were impossible, oppositor Pizarro would not be
left without any other remedy. He could have arranged for the taking of her
deposition in Hongkong by means of letters rogatory under Sections 11
and 12, Rule 24 of the Revised Rules of Court, in the same manner that,
according to him, he arranged their meeting in the Crown Colony
sometime in 1966.
The unexplained failure of oppositor Pizarro to take advantage of any of
these remedies available to him heavily tilts the scale against the
credibility of his claim.
(pp. 30-31, Rollo.)
These factual findings of the Court of Appeals are binding on Us. They may not be
disturbed in this petition for review where only legal questions may be raised
(Sec. 2, Rule 45).
WHEREFORE, finding no reversible error in the decision of the Court of Appeals in CAG.R. No. 51786-R, the petition for review is denied for lack of merit.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-44658

January 24, 1936

EMILIA DIVINO, as guardian of the minors Bienvenido Esperanza and Narciso

surnamed Loo Tan y Divino, petitioner,
vs.
CEFERINO HILARIO, Judge of the Court of First Instance of Davao and THE
MUNICIPALITY OF GUIANGA,respondents.
Suazo, Bastida and Pelayo for petitioner.
No appearance for respondents.
IMPERIAL, J.:
This petition for certiorari was filed by the petitioner, as guardian of the minors
Bienvenido, Esperanza and Narciso, surnamed Loo Tan y Divino, to the end that this
court should set aside and nullify the order issued by the respondent judge on August
24, 1935, that the respondent municipality with the clerk of court the sum of P5,000, that
the above-named minors should be declared heirs of the deceased Tan Chay entitled to
inherit in equal share said amount of money, and that they should be granted such other
remedy as may be just and equitable.
In the Court of First Instance of Davao, Tan Kui Sing began the intestate of the
deceased Tan Chay, special proceeding No. 314, stating in the petition filed by him that
the deceased was a party in civil case No. 1147 of the same Court of First Instance the
Judgment of which was appealed to this court, and asking that, while his properties are
yet unknown, a special administrator be appointed to duly represent said deceased in
the appeal. In an order of November 5, 1932, the court appointed Ang Liongto special
administrator. The latter qualified and on April 9, 1934, he filed an inventory of the
properties left by the deceased Tan Chay wherein he stated that he had left P5,000 in
cash in the possession of the Philippine Foreign Trading & Company and P390 as rents
of a house. On July 6, 1935, the respondent judge ordered that the petition of Tan Kui

Sing be set for trial. On the 9th of the same month the clerk of court set the trial of the
petition on August 24, 1935, at 8:30 a. m., and ordered that the notice of trial be
published in the newspaper El Magindanaw, published in Davao, once a week for three
consecutive weeks. It does not appear that the notice was actually published. On
August 24, 1935, the court called the petition for hearing, and after the presentation of
the evidence declared that Tan Chay, had died intestate, that he left no legal heirs, that
he left as his only estate the sum of P5,000 deposited with the Philippine Foreign
Trading & Company, and decreed the escheat of said funds to the municipality of
Guianga, Province of Davao. Thereafter the municipal president of Guianga took charge
of the funds. On October 16, 1935, the petitioner, in the same capacity as guardian,
appeared in the case and through her attorneys filed a motion to set aside the decree
escheating the P5,000 to the municipality of Guianga, to declare the minors the only
heirs of Tan Chay, and, finally, to adjudicated to them share and share alike the sum of
P5,000. The motion was based on the allegation under oath that the minors were the
only legitimate nephews and niece left by the deceased and that the latter had not been
survived by another that the decree of reversion was already irrevocable and that, in
any case, the minors could avail themselves of the procedure under section 752 of the
Code of Civil Procedure. On the 24th of the same month, the petitioner excepted in
writing to the said resolution. It was does not appear that the petitioner eventually
appealed from the order of August 24, 1935, and from the resolution of October 21 of
the same year denying the motion, nor does it appear that an appeal is pending.
Sections 750 and 752 of the Code of Civil Procedure, applicable to case, provide as
follows:
SEC. 750. Procedure when persons dies intestate without heirs. When a
person dies intestate, seized of real or personal by law entitled to the same, the
president and municipal council of the municipality where the deceased last
resided, if he was an inhabitant of these Islands, or of the municipality in which
he had estate, if he resided out of the Islands, may, on behalf of the municipality,
file a petition with the Court of First Instance of the province for an inquisition in
the premises; the court shall thereupon appoint a time and place of hearing, and
deciding on such petition, cause a notice thereof to be published in some
newspaper of general circulation in the province of which the deceased was last
an inhabitant, if within the Philippine Islands, and if not, in some newspaper of
general circulation in the province in which he had estate. The notice shall recite
the substance of the facts and request set forth in the petition, the time and place
at which persons claiming the estate may appear and be heard before the court,
and shall be published at least six weeks successively, the last of which
publications shall be at least six weeks before the time appointed by the court to
make inquisition.
SEC. 752. Right of heir, and so forth subsequently appearing. If a devise,
legatee, heir, widow, husband, or other person entitled to such estate, within
seventeen years from the date of such decree, appears and files a claim with the
court to such estate, he shall have possession of the same, or if sold, the
municipality shall be accountable to him for the avails, after deducting reasonable
charges for the care of the estate; but if a claim is not made within the time
mentioned, it shall be forever barred.

Section 750 provides how the Court of First Instance may acquire jurisdiction over the
properties left by s deceased who resided in the Philippine Islands and may decree its
escheat to the municipality where he resided. It provides that the municipal president
and the municipal council may file a petition to that effect, whereupon the court shall set
the same for hearing and shall cause the latter to be published in a newspaper of
general circulation in the province where the deceased had resided, or in default
thereof, in some newspaper of general circulation in the province in which he had
estate, for a period of six successive weeks, the last of which publications shall be at
least six weeks before the time appointed for the trial. Section 752 provides that any
heir or legatee may appear in the proceeding within 17 years, and after establishing his
hereditary right, it shall be the duty of the court to order the municipality to which the
estate was escheated to return the same for adjudication to the former, and in case it
had been sold the municipality shall return its avails after deducting charges for its care.
In the case under consideration, the procedure fixed by section 750 has neither been
followed nor complied with, wherefore, we hold that the respondent judge and the Court
of First Instance of Davao did not acquire jurisdiction either to take cognizance of the
escheat case or to promulgate the order of August 24, 1935, whereby the sum of
P5,000 was escheated or adjudicated the municipality of Guianga. No petition was filed
either by the required publication made which was the essential step which should have
conferred jurisdiction.
As the special proceeding No. 314 has been instituted, neither could the petitioner
resort to the remedy granted by section 752, because if the respondent judge and the
Court of First Instance of Davao never acquired jurisdiction to take cognizance of the
escheat case, it is clear and logical that they neither have jurisdiction to grant the
aforesaid remedy. As we have seen, the only petition which conferred jurisdiction over
the state of the deceased Tan Chay was that filed by Tan Kui Sing, which was for the
sole purpose of appointing a special administrator to represent the deceased in the
appeal interposed in civil cause No. 1147 of the Court of First Instance of Davao. If
another petition for the appointment of a regular administrator had been filed, it should
have been incumbent on the court to follow the entire procedure in intestacy in order to
determine the heirs and to distribute finally the estate among them.
In view of the foregoing, the petition is granted, and the order of August 24, 1935 as well
as the resolution of October 21 of the same year are set aside.
The respondent judge or the presiding judge of the Court of First Instance of Davao is
instructed to immediately order the municipal president and the municipal council of the
municipality of Guianga, Province of Davao, to return forthwith the sum of P5,000 and
deposit the same with the clerk of said court for distribution among the legal heirs of the
deceased Tan Chay. This is without prejudice to the petitioner's right, in her capacity as
administratrix, to present in the special proceeding No. 314 an amended petition for the
appointment of a regular administrator and that the amount of P5,000 with other
properties left by the deceased Tan Chay be distributed among his heirs, upon payment
of his legal debts that might be established and other expenses of administration.
The costs of this proceeding shall be assessed against the respondent municipality of
Guianga. So ordered.

Avancea, C.J., Abad Santos, Hull, Vickers, Butte, Goddard, and Diaz, JJ., concur.
Villa-Real and Recto, JJ., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. L-30381 August 30, 1988

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF FIRST INSTANCE OF MANILA, BRANCH XIII, HON. JESUS P. MORFE,
PRESIDING JUDGE, AND PRES. ROXAS RURAL BANK INC., respondents.
The Solicitor General for petitioner.
Leonardo De Ocampo, Jr. and Alfredo Arungayan Jr., for private respondent.

FERNAN, C.J.:
The instant appeal by certiorari seeks (1) to annul and set aside the Orders dated
October 26,1968 and March 1, 1969 of the then Court of First Instance (CFI) of Manila,
Branch XIII in Civil Case No. 73707 entitled "Republic of the Philippines, Plaintiff, versus
Bank of America, et al., Defendants," which orders respectively dismissed herein
petitioner's complaint for escheat as against private respondent Pres. Roxas Rural Bank
for improper venue and denied petitioner's motion for reconsideration of such dismissal
order; and (2) the reinstatement of the aforesaid against private respondent.
The antecedents are as follows:
Pursuant to Section 2 of Act No. 3936, otherwise known as the Unclaimed Balance Law,
some 31 banks including herein private respondent Pres. Roxas Rural Bank forwarded
to the Treasurer of the Philippines in January of 1968 separate statements under oath
by their respective managing officers of all deposits and credits held by them in favor, or
in the names of such depositors or creditors known to be dead, or who have not been
heard from, or who have not made further deposits or withdrawals during the preceding
ten years or more. In the sworn statement submitted by private respondent Bank, only
two (2) names appeared: Jesus Ydirin with a balance of P126.54 and Leonora
Trumpeta with a deposit of P62.91.
Upon receipt of these sworn statements, the Treasurer of the Philippines caused the
same to be published in the February 25, March 3 and March 10, 1968 issues of the
"Philippines Herald", an English newspaper, and the"El Debate", a Spanish newspaper,
both of general circulation in the Philippines.
Thereafter, or on July 25, 1968, the Republic of the Philippines instituted before the CFI
of Manila a complaint for escheat against the aforesaid 31 banks, including herein
private respondent. Likewise named defendants therein were the individual depositors
and/or creditors reported in the sworn statements and listed in Annex "A" of the
complaint. Summonses were accordingly issued to defendant banks and the
creditors/depositors requiring them to file severally their answers to the complaint within
60 days after the first publication of the summons with notice that should they fail to file
their answers, plaintiff would take judgment against them by default. The aforesaid
complaint, list of depositors-creditors (Annex "A"of the complaint), summons and notice
were duly published in the August 25, September 1, and September 8, 1968 issues of
the "Philippines Herald" and "El Debate."

On October 5,1968, private respondent Bank filed before the CFI a motion to dismiss
the complaint as against it on the ground of improper venue. Opposed by the petitioner,
the motion to dismiss was granted in the first assailed Order. Its motion for
reconsideration of said dismissal order having been denied in the second assailed
order, petitioner interposed the instant appeal on pure questions of law, to wit:
a. Whether or not Pres. Roxas Rural Bank is a real party in interest in the escheat
proceedings or in Civil Case No. 73707 of the Court of First Instance of Manila.
b. Whether or not venue of action in Civil Case No. 73707 has been properly laid in the
City of Manila, since all defendant banks, wherever they may be found, could be
included in one single action, pursuant to the provisions of Act No. 3936.
c. Whether or not Section 2(b), Rule 4 of the Revised Rules of Court on venue, likewise,
governs escheat proceedings instituted by the Republic in the Court of First Instance of
Manila.
It is petitioner's contention that private respondent bank, being a mere nominal party,
could not file a motion to dismiss on the ground of improper venue, the real party in
interest being the depositors themselves; that the avowed purpose of Act No. 3936 is to
benefit the government by escheating unto itself dormant bank deposits and that this
purpose will be defeated if escheat proceedings will have to be instituted in each and
every province or city where a bank is located because of the publication expense; that
the convenience or inconvenience of the depositors is not the determining factor as to
venue of action, but that in view of Rule 144 of the Revised Rules of Court, which
provides that all cases brought after the effectivity of the Rules on January 1, 1964 shall
be governed by the provisions of the Rules of Court, Section 2(b) of Rule 4 on venue is
made applicable and available to the Republic in the instant case.
We find these contentions unmeritorious.
A "real party in interest" has been defined as the party who would be benefitted or
injured by the judgment of the suit or the party entitled to avail of the suit. 1 There can be
no doubt that private respondent bank falls under this definition for the escheat of the
dormant deposits in favor of the government would necessarily deprive said bank of the
use of such deposits. It is in this sense that it stands to be "injured by the judgment of
the suit;" and it is for this reason that Section 3 of Act No. 3936 specifically provides that
the bank shall be joined as a party in the action for escheat, thus:
Section 3. Whenever the Attorney General shall be informed of such
unclaimed balances, he shall commence an action or actions in the name
of the People of the Philippines in the Court of First Instance of the
province where the bank is located, in which shall be joined as parties the
bank and such creditors or depositors. All or any member of such creditors
or depositors or banks, may be included in one action. (Emphasis
supplied.)
Indeed, if the bank were not a real party in interest, the legislature would not have
provided for its joining as a party in the escheat proceedings.

Besides, under Section 2, Rule 3 of the Rules of Court, private respondent bank is a
real party in interest as its presence in the action is necessary for a complete
determination and settlement of the questions involved therein. Private respondent bank
being a real party in interest, it may and can file a motion to dismiss on the ground of
improper venue.
In defense of the second issue raised, petitioner points to the last sentence of Section 3
of Act No. 3936 above-quoted as authority for saying that the venue of the escheat
proceedings was properly laid in the City of Manila. Petitioner's reliance on said
sentence is patently misplaced, the same having been obviously read out of context
instead of in relation to the sentence preceding it.
The first sentence of Section 3 of Act No. 3936 directs the Attorney General, now
Solicitor General, to commence an action or actions in the name of the People of the
Philippines in the Court of First Instance of the province where the bank is located. The
phrase "or actions" in this section is very significant. It manifests awareness on the part
of the legislators that a single action to cover all banks wherever located in the
Philippines would not be legally feasible in view of the venue prescribed for such action
under the same section, i.e., the province where the bank is located. Thus, the addition
of the last sentence, which the lower court had correctly interpreted to mean "that for
escheat of unclaimed bank balances all banks located in one and the same province
where the Court of First Instance concerned is located may be made parties defendant
"in one action" 2 was clearly intended to save on litigation and publication expenses, but
certainly not as authority for the lumping together of all banks wherever found in the
Philippines in one single escheat proceedings.
Anent the third issue raised, suffice it to say that Section 2(b) of Rule 4 of the Revised
Rules of Court cannot govern escheat proceedings principally because said section
refers to personal actions. Escheat proceedings are actions in rem which must be
brought in the province or city where the rem in this case the dormant deposits, is
located.
We note that while private respondent bank's motion to dismiss was granted, the trial
court in a subsequent order dated November 16, 1968 declared private respondent
bank's depositors and co-defendants Jose Ydirin and Leonora Trumpeta in default for
failure to file their answers. Considering that the complaint in Civil Case No. 73707
states a common cause of action against private respondent bank and its depositors-codefendants, and considering further that the motion to dismiss filed by private
respondent bank alleged facts 3 that would warrant dismissal of the complaint against
said co-defendants, we apply by analogy Section 4 of Rule 18 of the Rules of
Court, 4thereby decreeing the benefits of the dismissal of the complaint to extend to
private respondent bank's co-defendants Jose Ydirin and Leonora Trumpeta and their
successors- in-interest.
WHEREFORE, the instant appeal by certiorari is hereby denied. No costs.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-16106

December 30, 1961

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
PHILIPPINE NATIONAL BANK, ET AL., defendants,
THE FIRST NATIONAL CITY BANK OF NEW YORK, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Picazo, Lichauco and Agcaoili for defendant-appellee.
BAUTISTA ANGELO, J.:
The Republic of the Philippines filed on September 25, 1957 before the Court of First
Instance of Manila a complaint for escheat of certain unclaimed bank deposits balances
under the provisions of Act No. 3936 against several banks, among them the First
National City Bank of New York. It is alleged that pursuant to Section 2 of said Act
defendant banks forwarded to the Treasurer of the Philippines a statement under oath
of their respective managing officials of all the credits and deposits held by them in favor
of persons known to be dead or who have not made further deposits or withdrawals
during the period of 10 years or more. Wherefore, it is prayed that said credits and
deposits be escheated to the Republic of the Philippines by ordering defendant banks to
deposit them to its credit with the Treasurer of the Philippines.
In its answer the First National City Bank of New York claims that, while it admits that
various savings deposits, pre-war inactive accounts, and sundry accounts contained in

its report submitted to the Treasurer of the Philippines pursuant to Act No. 3936,
totalling more than P100,000.00, which remained dormant for 10 years or more, are
subject to escheat however, it has inadvertently included in said report certain items
amounting to P18,589.89 which, properly speaking, are not credits or deposits within
the contemplation of Act No. 3936. Hence, it prayed that said items be not included in
the claim of plaintiff.
After hearing the court a quo rendered judgment holding that cashier's is or manager's
checks and demand drafts as those which defendant wants excluded from the
complaint come within the purview of Act No. 3936, but not the telegraphic transfer
payment which orders are of different category. Consequently, the complaint was
dismissed with regard to the latter. But, after a motion to reconsider was filed by
defendant, the court a quo changed its view and held that even said demand drafts do
not come within the purview of said Act and so amended its decision accordingly.
Plaintiff has appealed.lawphil.net
Section 1, Act No. 3936, provides:
Section 1. "Unclaimed balances" within the meaning of this Act shall include
credits or deposits of money, bullion, security or other evidence of indebtedness
of any kind, and interest thereon with banks, as hereinafter defined, in favor of
any person unheard from for a period of ten years or more. Such unclaimed
balances, together with the increase and proceeds thereof, shall be deposited
with the Insular Treasure to the credit of the Government of the Philippine Islands
to be as the Philippine Legislature may direct.
It would appear that the term "unclaimed balances" that are subject to escheat include
credits or deposits money, or other evidence of indebtedness of any kind with banks, in
favor of any person unheard from for a period of 10 years or more. And as correctly
stated by the trial court, the term "credit" in its usual meaning is a sum credited on the
books of a company to a person who appears to be entitled to it. It presupposes a
creditor-debtor relationship, and may be said to imply ability, by reason of property or
estates, to make a promised payment ( In re Ford, 14 F. 2d 848, 849). It is the
correlative to debt or indebtedness, and that which is due to any person, a distinguished
from that which he owes (Mountain Motor Co. vs. Solof, 124 S.E., 824, 825; Eric vs.
Walsh, 61 Atl. 2d 1, 4; See also Libby vs. Hopkins, 104 U.S. 303, 309; Prudential
Insurance Co. of America vs. Nelson, 101 F. 2d, 441, 443; Barnes vs. Treat, 7 Mass.
271, 274). The same is true with the term "deposits" in banks where the relationship
created between the depositor and the bank is that of creditor and debtor (Article 1980,
Civil Code; Gullas vs. National Bank, 62 Phil. 915; Gopoco Grocery, et al. vs. Pacific
Coast Biscuit Co., et al., 65 Phil. 443).
The questions that now arise are: Do demand draft and telegraphic orders come within
the meaning of the term "credits" or "deposits" employed in the law? Can their import be
considered as a sum credited on the books of the bank to a person who appears to be
entitled to it? Do they create a creditor-debtor relationship between drawee and the
payee?
The answers to these questions require a digression the legal meaning of said banking
terminologies.

To begin with, we may say that a demand draft is a bill of exchange payable on demand
(Arnd vs. Aylesworth, 145 Iowa 185; Ward vs. City Trust Company, 102 N.Y.S. 50; Bank
of Republic vs. Republic State Bank, 42 S.W. 2d, 27). Considered as a bill of exchange,
a draft is said to be, like the former, an open letter of request from, and an order by, one
person on another to pay a sum of money therein mentioned to a third person, on
demand or at a future time therein specified (13 Words and Phrases, 371). As a matter
of fact, the term "draft" is often used, and is the common term, for all bills of exchange.
And the words "draft" and "bill of exchange" are used indiscriminately (Ennis vs.
Coshoctan Nat. Bank, 108 S.E., 811; Hinnemann vs. Rosenback, 39 N.Y. 98, 100, 101;
Wilson vs. Bechenau, 48 Supp. 272, 275).
On the other hand, a bill of exchange within the meaning of our Negotiable Instruments
Law (Act No. 2031) does not operate as an assignment of funds in the hands of the
drawee who is not liable on the instrument until he accepts it. This is the clear import of
Section 127. It says: "A bill of exchange of itself does not operate as an assignment of
the funds in the hands of the drawee available for the payment thereon and the drawee
is not liable on the bill unless and until he accepts the same." In other words, in order
that a drawee may be liable on the draft and then become obligated to the payee it is
necessary that he first accepts the same. In fact, our law requires that with regard to
drafts or bills of exchange there is need that they be presented either for acceptance or
for payment within a reasonable time after their issuance or after their last negotiation
thereof as the case may be (Section 71, Act 2031). Failure to make such presentment
will discharge the drawer from liability or to the extent of the loss caused by the delay
(Section 186, Ibid.)
Since it is admitted that the demand drafts herein involved have not been presented
either for acceptance or for payment, the inevitable consequence is that the appellee
bank never had any chance of accepting or rejecting them. Verily, appellee bank never
became a debtor of the payee concerned and as such the aforesaid drafts cannot be
considered as credits subject to escheat within the meaning of the law.
But a demand draft is very different from a cashier's or manager's cheek, contrary to
appellant's pretense, for it has been held that the latter is a primary obligation of the
bank which issues it and constitutes its written promise to pay upon demand. Thus, a
cashier's check has been clearly characterized in In Re Bank of the United States, 277
N.Y.S. 96. 100, as follows:
A cashier's check issued by a bank, however, is not an ordinary draft. The latter
is a bill of exchange payable demand. It is an order upon a third party purporting
to drawn upon a deposit of funds. Drinkall v. Movious State Bank, 11 N.D. 10, 88
N.W. 724, 57 L.R.A. 341, 95 Am. St. Rep. 693; State v. Tyler County State Bank
(Tex. Com. App.) 277 S.W. 625, 42 A.L.R. 1347. A cashier's check is of a very
different character. It is the primary obligation of the bank which issues it
(Nissenbaum v. State, 38 Ga. App. 253, S.E. 776) and constitutes its written
promise to pay upon demand (Steinmetz v. Schultz, 59 S.D. 603, 241 N.W.
734)....lawphil.net
The following definitions cited by appellant also confirm this view:

A cashier's check is a check of the bank's cashier on his or another bank. It is in

effect a bill of exchange drawn by a bank on itself and accepted in advance by
the act of issuance (10 C.J.S. 409).
A cashier's check issued on request of a depositor is the substantial equivalent of
a certified check and the deposit represented by the check passes to the credit of
the checkholder, who is thereafter a depositor to that amount (Lummus Cotton
Gin Co. v. Walker, 70 So. 754, 756, 195 Ala. 552).
A cashier's check, being merely a bill of exchange drawn by a bank on itself, and
accepted in advance by the act of issuance, is not subject to countermand by the
payee after indorsement, and has the same legal effects as a certificate deposit
or a certified check (Walker v. Sellers, 77 So. 715, 201 Ala. 189).
A demand draft is not therefore of the same category as a cashier's check which should
come within the purview of the law.
The case, however, is different with regard to telegraphic payment order. It is said that
as the transaction is for the establishment of a telegraphic or cable transfer the
agreement to remit creates a contractual obligation a has been termed a purchase and
sale transaction (9 C.J.S. 368). The purchaser of a telegraphic transfer upon making
payment completes the transaction insofar as he is concerned, though insofar as the
remitting bank is concerned the contract is executory until the credit is established
(Ibid.) We agree with the following comment the Solicitor General: "This is so because
the drawer bank was already paid the value of the telegraphic transfer payment order. In
the particular cases under consideration it appears in the books of the defendant bank
that the amounts represented by the telegraphic payment orders appear in the names of
the respective payees. If the latter choose to demand payment of their telegraphic
transfers at the time the same was (were) received by the defendant bank, there could
be no question that this bank would have to pay them. Now, the question is, if the
payees decide to have their money remain for sometime in the defendant bank, can the
latter maintain that the ownership of said telegraphic payment orders is now with the
drawer bank? The latter was already paid the value of the telegraphic payment orders
otherwise it would not have transmitted the same to the defendant bank. Hence, it is
absurd to say that the drawer banks are still the owners of said telegraphic payment
orders."
WHEREFORE, the decision of the trial court is hereby modified in the sense that the
items specifically referred to and listed under paragraph 3 of appellee bank's answer
representing telegraphic transfer payment orders should be escheated in favor of the
Republic of the Philippines. No costs.
Reyes, J.B.L., Barrera, Paredes, Dizon and De Leon, JJ., concur.
Bengzon, C.J., Padilla, Labrador and Concepcion, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-45460

February 25, 1938

THE MUNICIPAL COUNCIL OF SAN PEDRO, LAGUNA, ET AL., applicantsappellants,

vs.
COLEGIO DE SAN JOSE, INC., ET AL., oppositors-appellees.
Juan S. Rustia for appellants.
Araneta, Zaragoza and Araneta for appellee Colegio de San Jose, Inc.
Francisco Alfonso for appellee Young.
IMPERIAL, J.:
This is an appeal from the order of the Court of First Instance of Laguna of October 29,
1936, which denied the applicants motion questioning the appearance and intervention
in the case of the oppositors Colegio de San Jose and Carlos Young, and from the
resolution of the 30th of the same month which denied the petition for escheat filed by
the said petitioners, with the costs against the latter.
This case was commenced in the said by a petition filed by the petitioners in behalf of
the municipality of San Pedro, Province of Laguna, wherein they claim the Hacienda de
San Pedro Tunasa by the right of escheat. The Colegio de San Jose, Inc., appeared
specially and assailed the petition upon the grounds that the court has no jurisdiction to
take cognizance and decide the case and that the petition does not allege sufficient
facts to entitle the applicants to the remedy prayed for; and asked that the petition be
finally dismissed. Carlos Young intervened and filed a motion asking for the dismissal or

the petition upon the ground that the Code of Civil Procedure, under which the same
was filed, is not applicable because it was not yet in force when the original owner of the
hacienda died, which was in April, 1596, and that the petition was irregularly docketed
as the applicants had paid at the docket fees which the clerk of court should collect.
Subsequently the attorneys for both parties filed another motions of minor importance,
almost all of which contains the arguments advanced in support of their contentions. On
October 29, 1936, the court overruled the objection to the appearance and intervention
in the case by the Colegio de San Jose and Carlos Young, entering the order which is
one of those appealed from. And on the 30th of the same moth the court entered the
resolution, also appealed from, dismissing the petition for escheat, with the costs to the
petitioners.
The petitioners attribute to the court the following errors: "(1) In overruling the objection
of the appellant of September 2, 1936, and in not excluding the appellees Carlos Young
and Colegio de San Jose, Inc., from these proceedings. (2) In sustaining definitely the
appellees' petitions to dismiss, without previous hearing and in derogation of the right to
amend in any case. (3) In improperly and unseasonably taking judicial notice of certain
facts in other judicial records to reinforce the appealed resolutions, and in erroneously
distorting those facts judicially taken notice of. (4) In holding that the municipality of San
Jose has neither right standing to file a petition for escheat; that the petition does not
state facts sufficient a cause of action and that the same does not lie, and that the Court
of First Instance of Laguna is without jurisdiction to take cognizance of and decide said
petition. (5) In finally dismissing the petition upon the dilatory exceptions thereto, and
the ordering the payment of costs when no hearing has yet taken place."
1. The sworn petition which gave rise to the proceeding is based upon the provisions of
section 750 and 751 of the Code of Civil Procedure, the English text of which
reads:1vvphl.nt
SEC. 750. Procedure when person dies intestate without heirs. When a
person dies intestate, seized of real or personal property in the Philippines
Islands, leaving no heir or person by law entitled to the same, the president and
municipal council of the municipality where the deceased last resided, if he was
an inhabitant of these Islands, or of the municipality in which he had estate, if he
resided out of the Islands, may, on behalf of the municipality, the file a petition
with the Court of First Instance of the province for an inquisition in the premises;
the court shall there upon appoint a time and place of hearing, and deciding on
such petition, and cause a notice thereof to be published in some newspaper of
general circulation in the province of which the deceased was last an inhabitant,
if within the Philippines Island, and if not, some newspaper of general circulation
in the province in which he had estate. The notice shall recite the substance of
the facts and request set forth in the petition, the time and place at which persons
claiming the estate may appear and be heard before the court, and shall be
published at least six weeks successively, the last of which publication shall be at
least six weeks before the time appointed by the court to make inquisition.
SEC. 751. Decree of the court in such case. If, at the time appointed for the
that purpose, the court that the person died intestate, seized of real or personal
property in the Islands, leaving no heirs or person entitled to the same and no
sufficient cause is shown to the contrary, the court shall order and decree that the

estate of the deceased in these Islands, after the payment of just debts and
charges, shall escheat; and shall assign the personal estate to the municipality
where he was last an inhabitant in the Islands, and the real estate to the
municipality in which the same is situated. If he never was a inhabitant of the
Islands, the whole estate may be assigned to the several municipalities where
the same is located. Such estate shall be for the use of schools in the
municipalities, respectively, and shall be managed and disposed or by the
municipal council like other property appropriated to the use of schools.
Accordingly to the first of the said sections, the essential facts which should be alleged
in the petition, which are jurisdiction because they confer jurisdiction upon the Court of
First Instance, are: That a person has died intestate or without leaving any will; that he
has left real or personal property; that he was the owner thereof; that he has not left any
heir or person who is by law entitled to the property; and that the one who applies for
the escheat is the municipality where deceased had his last residence, or in case
should have no residence in the country, the municipality where the property is situated.
The following section provides that after the publications and trial, if the court finds that
the deceased is in fact the owner of real and personal property situated in the country
and has not left any heirs or other person entitled thereto, it may order, after the
payments of debts and other legal expenses, the escheat, and in such case it shall
adjudicate the personal property to the municipality where the deceased had his last
place of residence and the real property to the municipality or municipalities where they
are situated.
Escheat, under sections 750 and 751, is a proceeding whereby the real and personal
property of a deceased person become the property of the State upon his death without
leaving any will or legal heirs (21 C.J., sec. 1, p. 848; American L. & T. Co. vs. Grand
River Co., 159 Fed., 775; In re Miner, 143 Cal., 194; Johnston vs. Spicer 107 N.Y., 185;
Wright vs. Methodist Episcopal Church, Hoffm. [N.Y.], 201; In re Linton's, 198 Pa., 438;
State vs. Goldberg, 113 Tenn., 298). It is not an ordinary action contemplated by section
1 of the Code of Civil Procedure, but a special proceeding in accordance with the said
section and Chapter XXXIX, Part II, of the same Code. The proceeding, as provided by
section 750, should be commenced by petition and not by complaint.
In a special proceeding for escheat under section 750 and 751 the petitioner is not the
sole and exclusive interested party. Any person alleging to have a direct right or interest
in the property sought to be escheated is likewise and interest and necessary party and
may appear and oppose the petition for escheat. In the present case the Colegio de
San Jose, Inc., and Carlos Young appeared alleging to have a material interest in the
Hacienda de San Pedro Tunasa; and the former because it claims to be the exclusive
owner of the hacienda, and the latter because he claim to be the lessee thereof under a
contract legality entered with the former. In view of these allegations it is erroneous to
hold that the said parties are without right either to appear in case or to substantiate
their respective alleged right. This unfavorably resolves the petitioners' first assignment
of error.
2. The final dismissal of the petition for escheat decreed by the court is assigned by the
petitioners as the second error committed by it upon the contention that the demurrer, to
which amount the motions for dismissal, is not a pleading authorized by law in this kind

of proceeding and because, in any event, the court should have given them an
opportunity to amend the petition.
Chapter XXXIX of the Code of Civil Procedure, relative to the escheat of properties,
does not in fact authorize the filing of a demurrer to the petition presented for that
purpose, and section 91 and 99 permitting the interposition of demurrers to the
complaint and answer, respectively, are not applicable to special proceedings. But is no
reason of a procedure nature which prevents the filing of a motion to dismiss based
upon any of the grounds provided by law for a demurrer to a complaint. In such case,
the motion to dismiss pays the role of a demurrer and the court should resolve the legal
question raised therein. When, for instance, a petition for escheat does not state facts
which entitle the petitioner to the remedy prayed from and even admitting them
hypothetically it is clear that there are nor grounds for the court to proceed to the
inquisition provided by law, we see no reason to disallow an interest party from filing a
motion to dismiss the petition which is untenable from all standpoints. And when the
motion to dismiss is entertained upon this ground, the petition may be dismissed
unconditionally and the petitioner is not entitled, as in the case of a demurrer, to be
afforded an opportunity to amend his petition.
3. The petitioners assign as third error the judicial notice which the court took of the
complaint filed in civil case No. 6790, docketed and pending in the same court, wherein
the petitioner recognized the personality Colegio de San Jose, Inc., and Carlos Young
and the latters' interest in said action of interpleader and in the Hacienda de San Pedro
Tunasan which is the same subject matter of the instant proceedings.
In general, courts are not authorized to take judicial notice, in the adjudication of cases
pending before them, of the contents of the records of the other cases, even when such
cases have been tried or are pending in the same court, and notwithstanding the fact
that both cases may have been heard or are actually pending before the same judge.
(U.S. vs. Claveria, 29 Phil., 527.) The rule is squarely applicable to the present case,
wherefore, we hold that the assignment of error is tenable.
4. In the appealed resolution the court held that the municipality of San Pedro,
represented by the petitioners, has no personality to institute the petition for escheat
that the latter does not state sufficient facts, and that the court is without jurisdiction
either to take cognizance of the proceeding or to grant the remedy sought. These legal
conclusions are the subject matter of the fourth assignment of error.
According to the allegations of the petition, the petitioners base their right to the escheat
upon the fact that the temporal properties of the Father of the Society of Jesus, among
them, the Hacienda de San Pedro Tunasan, were confiscated by order of the King of
Spain and passed from then on the Crown of Spain. The following allegations of the
petition are important and specific and clearly the theory maintained by the petitioners:
"11. As a result of the perpetual expulsion of the Jesuits in their dominions, the King also
decreed the confiscation of all their properties, estate, rents, foundation, etc., in favor of
the Crown of Spain, and the order of the King was thus complied with here in the
Philippines. The Hacienda de San Pedro Tunasa from then on passed to the Crown of
Spain under the administration and management on its respective here, the GovernorGeneral of the Philippines Islands. 12. As a result of the war between Spain and the
United States, the latter acquired by way of transfer, all the properties of the Crown of

Spain in the Philippines, under articles III and VIII of the Treaty of Peace entered into in
Paris on December 10, 1989, and among which properties was included the Hacienda
de San Pedro Tunasan. 13. That the said hacienda thereafter passed to the
Government of the Philippines Islands by virtue of the Act of the United States Congress
of July 1, 1992 (Philippine Bill), by mere administration for the benefit of the inhabitant of
the Philippines; and there after, under the Tydings-McDuffie law approved by the same
Congress on March 24, 1934, section 5, the United States, in turn, have ceded to the
Commonwealth of the Philippines, upon its inauguration, all the properties, estate, etc.,
ceded by Spain to the United States as above stated, among them being the Hacienda
de San Pedro Tunasan. Said Commonwealth was inaugurated on November 15, 1935."
If the hacienda de San Pedro Tunasan,, which is the only property sought to be
escheated and adjudicated to the municipality of San Pedro, has already passed to the
ownership of the Commonwealth of the Philippines, it is evident that the petitioners
cannot claim that the same be escheated to the said municipality, because it is no
longer the case of real property owned by a deceased person who has not left any heirs
or person who may legality claim it, these being the conditions required by section 750
and without which a petition for escheat should not lie from the moment the hacienda
was confiscated by the Kingdom of Spain, the same ceased to be the property of the
children of Esteban Rodriguez de Figueroa, the Colegio de San Jose or the Jesuit
Father, and became the property of the Commonwealth of the Philippines by virtue of
the transfer under the Treaty of Paris, alleged in the petition. If the municipality of San
Pedro believes that it has some other right to the hacienda, distinct from the escheat
relied upon in its petition which gave rise to this proceeding, it should bring the proper
action, but it cannot avail itself successfully of the remedy provided by section 750 of
the Code of Civil Procedure. We, therefore, hold that the court did not commit the error
assigned in ruling that the petition does not allege sufficient facts justifying the escheat
of the hacienda in favor of the municipality of San Pedro and in finally dismissing the
same. Having reached this conclusion we do not believe it necessary to go into further
considerations regarding the personality of the municipality of San Pedro and the court's
lack of jurisdiction.
5. The last assignment of error does not require any further consideration. The
questions raised therein have already been passed upon in the preceding
considerations, with the exception of the order to pay costs. With respect thereto, there
is no reason why they should not be taxed against the petitioners, they being defeated
party (section 487, Code of Civil Procedure). That no trial was had is not a bar to the
imposition of costs under the provisions of section 492.
For the foregoing reasons, the appealed order and resolution are affirmed, with the
costs of this instance against the petitioners and appellants. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 151243

April 30, 2008

LOLITA R. ALAMAYRI, petitioner,

vs.
ROMMEL, ELMER, ERWIN, ROILER and AMANDA, all surnamed
PABALE, respondents.
DECISION
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of
Court filed by petitioner Lolita R. Alamayri (Alamayri) seeking the reversal and setting
aside of the Decision,2 dated 10 April 2001, of the Court of Appeals in CA-G.R. CV No.
58133; as well as the Resolution,3 dated 19 December 2001 of the same court denying
reconsideration of its aforementioned Decision. The Court of Appeals, in its assailed
Decision, upheld the validity of the Deed of Absolute Sale, dated 20 February 1984,
executed by Nelly S. Nave (Nave) in favor of siblings Rommel, Elmer, Erwin, Roiler and
Amanda, all surnamed Pabale (the Pabale siblings) over a piece of land (subject
property) in Calamba, Laguna, covered by Transfer Certificate of Title (TCT) No. T-3317
(27604); and, thus, reversed and set aside the Decision, 4 dated 2 December 1997, of
the Regional Trial Court (RTC) of Pasay City, Branch 119 in Civil Case No. 675-84C.5 The 2 December 1997 Decision of the RTC declared null and void the two sales
agreements involving the subject property entered into by Nave with different parties,
namely, Sesinando M. Fernando (Fernando) and the Pabale siblings; and ordered the
reconveyance of the subject property to Alamayri, as Naves successor-in-interest.
There is no controversy as to the facts that gave rise to the present Petition, determined
by the Court of Appeals to be as follows:
This is a Complaint for Specific Performance with Damages filed by Sesinando
M. Fernando, representing S.M. Fernando Realty Corporation [Fernando] on
February 6, 1984 before the Regional Trial Court of Calamba, Laguna presided
over by Judge Salvador P. de Guzman, Jr., docketed as Civil Case No. 675-84-C
against Nelly S. Nave [Nave], owner of a parcel of land located in Calamba,
Laguna covered by TCT No. T-3317 (27604). [Fernando] alleged that on January
3, 1984, a handwritten "Kasunduan Sa Pagbibilihan" (Contract to Sell) was
entered into by and between him and [Nave] involving said parcel of land.
However, [Nave] reneged on their agreement when the latter refused to accept
the partial down payment he tendered to her as previously agreed because she
did not want to sell her property to him anymore. [Fernando] prayed that after trial
on the merits, [Nave] be ordered to execute the corresponding Deed of Sale in
his favor, and to pay attorneys fees, litigation expenses and damages.

[Nave] filed a Motion to Dismiss averring that she could not be ordered to
execute the corresponding Deed of Sale in favor of [Fernando] based on the
following grounds: (1) she was not fully apprised of the nature of the piece of
paper [Fernando] handed to her for her signature on January 3, 1984. When she
was informed that it was for the sale of her property in Calamba, Laguna covered
by TCT No. T-3317 (27604), she immediately returned to [Fernando] the said
piece of paper and at the same time repudiating the same. Her repudiation was
further bolstered by the fact that when [Fernando] tendered the partial down
payment to her, she refused to receive the same; and (2) she already sold the
property in good faith to Rommel, Elmer, Erwin, Roller and Amanda, all
surnamed Pabale [the Pabale siblings] on February 20, 1984 after the complaint
was filed against her but before she received a copy thereof. Moreover, she
alleged that [Fernando] has no cause of action against her as he is suing for and
in behalf of S.M. Fernando Realty Corporation who is not a party to the alleged
Contract to Sell. Even assuming that said entity is the real party in interest, still,
[Fernando] cannot sue in representation of the corporation there being no
evidence to show that he was duly authorized to do so.
Subsequently, [the Pabale siblings] filed a Motion to Intervene alleging that they
are now the land owners of the subject property. Thus, the complaint was
amended to include [the Pabale siblings] as party defendants. In an Order dated
April 24, 1984, the trial court denied [Naves] Motion to Dismiss prompting her to
file a Manifestation and Motion stating that she was adopting the allegations in
her Motion to Dismiss in answer to [Fernandos] amended complaint.
Thereafter, [Nave] filed a Motion to Admit her Amended Answer with
Counterclaim and Cross-claim praying that her husband, Atty. Vedasto
Gesmundo be impleaded as her co-defendant, and including as her defense
undue influence and fraud by reason of the fact that she was made to appear as
widow when in fact she was very much married at the time of the transaction in
issue. Despite the opposition of [Fernando] and [the Pabale siblings], the trial
court admitted the aforesaid Amended Answer with Counterclaim and Crossclaim.
Still unsatisfied with her defense, [Nave] and Atty. Vedasto Gesmundo filed a
Motion to Admit Second Amended Answer and Amended Reply and Cross-claim
against [the Pabale siblings], this time including the fact of her incapacity to
contract for being mentally deficient based on the psychological evaluation report
conducted on December 2, 1985 by Dra. Virginia P. Panlasigui, M. A., a clinical
psychologist. Finding the motion unmeritorious, the same was denied by the
court a quo.
[Nave] filed a motion for reconsideration thereof asseverating that in Criminal
Case No. 1308-85-C entitled "People vs. Nelly S. Nave" she raised therein as a
defense her mental deficiency. This being a decisive factor to determine once
and for all whether the contract entered into by [Nave] with respect to the subject
property is null and void, the Second Amended Answer and Amended Reply and
Cross-claim against [the Pabale siblings] should be admitted.

Before the motion for reconsideration could be acted upon, the proceedings in
this case was suspended sometime in 1987 in view of the filing of a Petition for
Guardianship of [Nave] with the Regional Trial Court, Branch 36 of Calamba,
Laguna, docketed as SP No. 146-86-C with Atty. Vedasto Gesmundo as the
petitioner. On June 22, 1988, a Decision was rendered in the said guardianship
proceedings, the dispositive portion of which reads:
"Under the circumstances, specially since Nelly S. Nave who now resides
with the Brosas spouses has categorically refused to be examined again
at the National Mental Hospital, the Court is constrained to accept the
Neuro-Psychiatric Evaluation report dated April 14, 1986 submitted by
Dra. Nona Jean Alviso-Ramos and the supporting report dated April 20,
1987 submitted by Dr. Eduardo T. Maaba, both of the National Mental
Hospital and hereby finds Nelly S. Nave an incompetent within the purview
of Rule 92 of the Revised Rules of Court, a person who, by reason of age,
disease, weak mind and deteriorating mental processes cannot without
outside aid take care of herself and manage her properties, becoming
thereby an easy prey for deceit and exploitation, said condition having
become severe since the year 1980. She and her estate are hereby
placed under guardianship. Atty. Leonardo C. Paner is hereby appointed
as her regular guardian without need of bond, until further orders from this
Court. Upon his taking his oath of office as regular guardian, Atty. Paner is
ordered to participate actively in the pending cases of Nelly S. Nave with
the end in view of protecting her interests from the prejudicial sales of her
real properties, from the overpayment in the foreclosure made by Ms.
Gilda Mendoza-Ong, and in recovering her lost jewelries and monies and
other personal effects.
SO ORDERED."
Both [Fernando] and [the Pabale siblings] did not appeal therefrom, while the
appeal interposed by spouses Juliano and Evangelina Brosas was dismissed by
this Court for failure to pay the required docketing fees within the reglementary
period.
In the meantime, [Nave] died on December 9, 1992. On September 20, 1993,
Atty. Vedasto Gesmundo, [Naves] sole heir, she being an orphan and childless,
executed an Affidavit of Self-Adjudication pertaining to his inherited properties
from [Nave].
On account of such development, a motion for the dismissal of the instant case
and for the issuance of a writ of execution of the Decision dated June 22, 1988 in
SP No. 146-86-C (petition for guardianship) was filed by Atty. Vedasto Gesmundo
on February 14, 1996 with the court a quo. [The Pabale siblings] filed their
Opposition to the motion on grounds that (1) they were not made a party to the
guardianship proceedings and thus cannot be bound by the Decision therein; and
(2) that the validity of the Deed of Absolute Sale executed by the late [Nave] in
their favor was never raised in the guardianship case.

The case was then set for an annual conference. On January 9, 1997, Atty.
Vedasto Gesmundo filed a motion seeking the courts permission for his
substitution for the late defendant Nelly in the instant case. Not long after the
parties submitted their respective pre-trial briefs, a motion for substitution was
filed by Lolita R. Alamayre (sic) [Alamayri] alleging that since the subject property
was sold to her by Atty. Vedasto Gesmundo as evidenced by a Deed of Absolute
Sale, she should be substituted in his stead. In refutation, Atty. Vedasto
Gesmundo filed a Manifestation stating that what he executed is a Deed of
Donation and not a Deed of Absolute Sale in favor of [Alamayri] and that the
same was already revoked by him on March 5, 1997. Thus, the motion for
substitution should be denied.
On July 29, 1997, the court a quo issued an Order declaring that it cannot make
a ruling as to the conflicting claims of [Alamayri] and Atty. Vedasto Gesmundo.
After the case was heard on the merits, the trial court rendered its Decision on
December 2, 1997, the dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered as follows:
1. Declaring the handwritten Contract to Sell dated January 3, 1984
executed by Nelly S. Nave and Sesinando Fernando null and void and of
no force and effect;
2. Declaring the Deed of Absolute Sale dated February 20, 1984 executed
by Nelly S. Nave in favor of the [Pabale siblings] similarly null and void
and of no force and effect;
3. Recognizing Ms. Lolita P. [Alamayri] as the owner of the property
covered by TCT No. 111249 of the land records of Calamba, Laguna;
4. Ordering the [Pabale siblings] to execute a transfer of title over the
property in favor of Ms. Lolita P. [Alamayri] in the concept of reconveyance
because the sale in their favor has been declared null and void;
5. Ordering the [Pabale siblings] to surrender possession over the
property to Ms. [Alamayri] and to account for its income from the time they
took over possession to the time the same is turned over to Ms. Lolita
[Alamayri], and thereafter pay the said income to the latter;
6. Ordering [Fernando] and the [Pabale siblings], jointly and severally, to
pay Ms. [Alamayri]:
a. attorneys fees in the sum of P30,000.00; and
b. the costs.6
S.M. Fernando Realty Corporation, still represented by Fernando, filed an appeal with
the Court of Appeals, docketed as CA-G.R. CV No. 58133, solely to question the portion
of the 2 December 1997 Decision of the RTC ordering him and the Pabale siblings to
jointly and severally pay Alamayri the amount of P30,000.00 as attorneys fees.

The Pabale siblings intervened as appellants in CA-G.R. CV No. 58133 averring that
the RTC erred in declaring in its 2 December 1997 Decision that the Deed of Absolute
Sale dated 20 February 1984 executed by Nave in their favor was null and void on the
ground that Nave was found incompetent since the year 1980.
The Court of Appeals, in its Decision, dated 10 April 2001, granted the appeals of S.M.
Fernando Realty Corporation and the Pabale siblings. It ruled thus:
WHEREFORE, premises considered, the appeal filed by S. M. Fernando Realty
Corporation, represented by its President, Sesinando M. Fernando as well as the
appeal interposed by Rommel, Elmer, Erwin, Roller and Amanda, all surnamed
Pabale, are hereby GRANTED. The Decision of the Regional Trial Court of
Pasay City, Branch 119 in Civil Case No. 675-84-C is hereby REVERSED and
SET ASIDE and a new one rendered upholding the VALIDITY of the Deed of
Absolute Sale dated February 20, 1984.
No pronouncements as to costs.7
Alamayri sought reconsideration of the afore-quoted Decision of the appellate court,
invoking the Decision,8 dated 22 June 1988, of the RTC in the guardianship
proceedings, docketed as SP. PROC. No. 146-86-C, which found Nave incompetent,
her condition becoming severe since 1980; and thus appointed Atty. Leonardo C. Paner
as her guardian. Said Decision already became final and executory when no one
appealed therefrom. Alamayri argued that since Nave was already judicially determined
to be an incompetent since 1980, then all contracts she subsequently entered into
should be declared null and void, including the Deed of Sale, dated 20 February 1984,
which she executed over the subject property in favor of the Pabale siblings.
According to Alamayri, the Pabale siblings should be bound by the findings of the RTC
in its 22 June 1988 Decision in SP. PROC. No. 146-86-C, having participated in the said
guardianship proceedings through their father Jose Pabale. She pointed out that the
RTC explicitly named in its orders Jose Pabale as among those present during the
hearings held on 30 October 1987 and 19 November 1987 in SP. PROC. No. 146-86-C.
Alamayri thus filed on 21 November 2001 a Motion to Schedule Hearing to Mark
Exhibits in Evidence so she could mark and submit as evidence certain documents to
establish that the Pabale siblings are indeed the children of Jose Pabale.
Atty. Gesmundo, Naves surviving spouse, likewise filed his own Motion for
Reconsideration of the 10 April 2001 Decision of the Court of Appeals in CA-G.R. CV
No. 58133, asserting Naves incompetence since 1980 as found by the RTC in SP.
PROC. No. 146-86-C, and his right to the subject property as owner upon Naves death
in accordance with the laws of succession. It must be remembered that Atty. Gesmundo
disputed before the RTC the supposed transfer of his rights to the subject property to
Alamayri, but the court a quo refrained from ruling thereon.
In a Resolution, dated 19 December 2001, the Court of Appeals denied for lack of merit
the Motions for Reconsideration of Alamayri and Atty. Gesmundo.
Hence, Alamayri comes before this Court via the present Petition for Review
on Certiorari under Rule 45 of the Rules of Court, with the following assignment of
errors:

I
THE COURT OF APPEALS ERRED IN HOLDING THAT THE FINDING THAT
NELLY S. NAVE WAS INCOMPETENT IN SPECIAL PROCEEDING NO. 146-86C ON JUNE 22, 1988 CANNOT RETROACT TO AFFECT THE VALIDITY OF
THE DEED OF SALE SHE EXECUTED ON FEBRUARY 20, 1984 IN FAVOR OF
RESPONDENTS PABALES.
II
THE COURT OF APPEALS ERRED IN HOLDING THAT THE DECISION IN
SPECIAL PROCEEDING NO. 146-86-C DATED JUNE 22, 1988 IS NOT
BINDING ON RESPONDENTS PABALES.
III
THE COURT OF APPEALS ERRED IN DENYING PETITIONERS MOTION TO
SCHEDULE HEARING TO MARK DOCUMENTARY EXHIBITS IN EVIDENCE
TO ESTABLISH THE IDENTITY OF JOSE PABALE AS THE FATHER OF
RESPONDENTS PABALES.9
It is Alamayris position that given the final and executory Decision, dated 22 June 1988,
of the RTC in SP. PROC. No. 146-86-C finding Nave incompetent since 1980, then the
same fact may no longer be re-litigated in Civil Case No. 675-84-C, based on the
doctrine of res judicata, more particularly, the rule on conclusiveness of judgment.
This Court is not persuaded.
Res judicata literally means "a matter adjudged; a thing judicially acted upon or decided;
a thing or matter settled by judgment." Res judicata lays the rule that an existing final
judgment or decree rendered on the merits, and without fraud or collusion, by a court of
competent jurisdiction, upon any matter within its jurisdiction, is conclusive of the rights
of the parties or their privies, in all other actions or suits in the same or any other judicial
tribunal of concurrent jurisdiction on the points and matters in issue in the first suit. 10
It is espoused in the Rules of Court, under paragraphs (b) and (c) of Section 47, Rule
39, which read:
SEC. 47. Effect of judgments or final orders. The effect of a judgment or final
order rendered by a court of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
xxxx
(b) In other cases, the judgment or final order is, with respect to the matter
directly adjudged or as to any other matter that could have been raised in relation
thereto, conclusive between the parties and their successors in interest by title
subsequent to the commencement of the action or special proceeding, litigating
the same thing and under the same title and in the same capacity; and

(c) In any other litigation between the same parties or their successors in interest,
that only is deemed to have been adjudged in a former judgment or final order
which appears upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto.
The doctrine of res judicata thus lays down two main rules which may be stated as
follows: (1) The judgment or decree of a court of competent jurisdiction on the merits
concludes the parties and their privies to the litigation and constitutes a bar to a new
action or suit involving the same cause of action either before the same or any other
tribunal; and (2) Any right, fact, or matter in issue directly adjudicated or necessarily
involved in the determination of an action before a competent court in which a judgment
or decree is rendered on the merits is conclusively settled by the judgment therein and
cannot again be litigated between the parties and their privies whether or not the claims
or demands, purposes, or subject matters of the two suits are the same. These two
main rules mark the distinction between the principles governing the two typical cases in
which a judgment may operate as evidence.11 In speaking of these cases, the first
general rule above stated, and which corresponds to the afore-quoted paragraph (b) of
Section 47, Rule 39 of the Rules of Court, is referred to as "bar by former judgment";
while the second general rule, which is embodied in paragraph (c) of the same section
and rule, is known as "conclusiveness of judgment."
The Resolution of this Court in Calalang v. Register of Deeds provides the following
enlightening discourse on conclusiveness of judgment:
The doctrine res judicata actually embraces two different concepts: (1) bar by
former judgment and (b) conclusiveness of judgment.
The second concept conclusiveness of judgment states that a fact or
question which was in issue in a former suit and was there judicially passed upon
and determined by a court of competent jurisdiction, is conclusively settled by the
judgment therein as far as the parties to that action and persons in privity with
them are concerned and cannot be again litigated in any future action between
such parties or their privies, in the same court or any other court of concurrent
jurisdiction on either the same or different cause of action, while the judgment
remains unreversed by proper authority. It has been held that in order that a
judgment in one action can be conclusive as to a particular matter in another
action between the same parties or their privies, it is essential that the issue be
identical. If a particular point or question is in issue in the second action, and the
judgment will depend on the determination of that particular point or question, a
former judgment between the same parties or their privies will be final and
conclusive in the second if that same point or question was in issue and
adjudicated in the first suit (Nabus vs. Court of Appeals, 193 SCRA 732 [1991]).
Identity of cause of action is not required but merely identity of issues.
Justice Feliciano, in Smith Bell & Company (Phils.), Inc. vs. Court of
Appeals (197 SCRA 201, 210 [1991]), reiterated Lopez vs. Reyes (76 SCRA 179
[1977]) in regard to the distinction between bar by former judgment which bars
the prosecution of a second action upon the same claim, demand, or cause of
action, and conclusiveness of judgment which bars the relitigation of particular

facts or issues in another litigation between the same parties on a different claim
or cause of action.
The general rule precluding the relitigation of material facts or questions
which were in issue and adjudicated in former action are commonly
applied to all matters essentially connected with the subject matter of the
litigation. Thus, it extends to questions necessarily implied in the final
judgment, although no specific finding may have been made in reference
thereto and although such matters were directly referred to in the
pleadings and were not actually or formally presented. Under this rule, if
the record of the former trial shows that the judgment could not have been
rendered without deciding the particular matter, it will be considered as
having settled that matter as to all future actions between the parties and if
a judgment necessarily presupposes certain premises, they are as
conclusive as the judgment itself.12
Another case, Oropeza Marketing Corporation v. Allied Banking Corporation, further
differentiated between the two rules of res judicata, as follows:
There is "bar by prior judgment" when, as between the first case where the
judgment was rendered and the second case that is sought to be barred, there is
identity of parties, subject matter, and causes of action. In this instance, the
judgment in the first case constitutes an absolute bar to the second action.
Otherwise put, the judgment or decree of the court of competent jurisdiction on
the merits concludes the litigation between the parties, as well as their privies,
and constitutes a bar to a new action or suit involving the same cause of action
before the same or other tribunal.
But where there is identity of parties in the first and second cases, but no
identity of causes of action, the first judgment is conclusive only as to those
matters actually and directly controverted and determined and not as to matters
merely involved therein. This is the concept of res judicata known
as"conclusiveness of judgment." Stated differently, any right, fact, or matter in
issue directly adjudicated or necessarily involved in the determination of an
action before a competent court in which judgment is rendered on the merits is
conclusively settled by the judgment therein and cannot again be litigated
between the parties and their privies whether or not the claim, demand, purpose,
or subject matter of the two actions is the same.13
In sum, conclusiveness of judgment bars the re-litigation in a second case of a fact or
question already settled in a previous case. The second case, however, may still
proceed provided that it will no longer touch on the same fact or question adjudged in
the first case. Conclusiveness of judgment requires only the identity of issues and
parties, but not of causes of action.
Contrary to Alamayris assertion, conclusiveness of judgment has no application to the
instant Petition since there is no identity of parties and issues between SP. PROC. No.
146-86-C and Civil Case No. 675-84-C.
No identity of parties

SP. PROC. No. 146-86-C was a petition filed with the RTC by Atty. Gesmundo for the
appointment of a guardian over the person and estate of his late wife Nave alleging her
incompetence.
A guardian may be appointed by the RTC over the person and estate of a minor or an
incompetent, the latter being described as a person "suffering the penalty of civil
interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to
read and write, those who are of unsound mind, even though they have lucid intervals,
and persons not being of unsound mind, but by reason of age, disease, weak mind, and
other similar causes, cannot, without outside aid, take care of themselves and manage
their property, becoming thereby an easy prey for deceit and exploitation." 14
Rule 93 of the Rules of Court governs the proceedings for the appointment of a
guardian, to wit:
Rule 93
APPOINTMENT OF GUARDIANS
SECTION 1. Who may petition for appointment of guardian for resident. Any
relative, friend, or other person on behalf of a resident minor or incompetent who
has no parent or lawful guardian, or the minor himself if fourteen years of age or
over, may petition the court having jurisdiction for the appointment of a general
guardian for the person or estate, or both, of such minor or incompetent. An
officer of the Federal Administration of the United States in the Philippines may
also file a petition in favor of a ward thereof, and the Director of Health, in favor of
an insane person who should be hospitalized, or in favor of an isolated leper.
SEC. 2. Contents of petition. A petition for the appointment of a general
guardian must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The minority or incompetency rendering the appointment necessary or
convenient;
(c) The names, ages, and residences of the relatives of the minor or
incompetent, and of the persons having him in their care;
(d) The probable value and character of his estate;
(e) The name of the person for whom letters of guardianship are prayed.
The petition shall be verified; but no defect in the petition or verification shall
render void the issuance of letters of guardianship.
SEC. 3. Court to set time for hearing. Notice thereof. When a petition for the
appointment of a general guardian is filed, the court shall fix a time and place for
hearing the same, and shall cause reasonable notice thereof to be given to the
persons mentioned in the petition residing in the province, including the minor if

above 14 years of age or the incompetent himself, and may direct other general
or special notice thereof to be given.
SEC. 4. Opposition to petition. Any interested person may, by filing a written
opposition, contest the petition on the ground of majority of the alleged minor,
competency of the alleged incompetent, or the unsuitability of the person for
whom letters are prayed, and may pray that the petition be dismissed, or that
letters of guardianship issue to himself, or to any suitable person named in the
opposition.
SEC. 5. Hearing and order for letters to issue. At the hearing of the petition the
alleged incompetent must be present if able to attend, and it must be shown that
the required notice has been given. Thereupon the court shall hear the evidence
of the parties in support of their respective allegations, and, if the person in
question is a minor or incompetent it shall appoint a suitable guardian of his
person or estate, or both, with the powers and duties hereinafter specified.
xxxx
SEC. 8. Service of judgment. Final orders or judgments under this rule shall be
served upon the civil registrar of the municipality or city where the minor or
incompetent person resides or where his property or part thereof is situated.
A petition for appointment of a guardian is a special proceeding, without the usual
parties, i.e., petitioner versus respondent, in an ordinary civil case. Accordingly, SP.
PROC. No. 146-86-C bears the title: In re: Guardianship of Nelly S. Nave for
Incompetency, Verdasto Gesmundo y Banayo, petitioner, with no named respondent/s.
Sections 2 and 3 of Rule 93 of the Rules of Court, though, require that the petition
contain the names, ages, and residences of relatives of the supposed minor or
incompetent and those having him in their care, so that those residing within the same
province as the minor or incompetent can be notified of the time and place of the
hearing on the petition.
The objectives of an RTC hearing a petition for appointment of a guardian under Rule
93 of the Rules of Court is to determine, first, whether a person is indeed a minor or an
incompetent who has no capacity to care for himself and/or his properties; and, second,
who is most qualified to be appointed as his guardian. The rules reasonably assume
that the people who best could help the trial court settle such issues would be those
who are closest to and most familiar with the supposed minor or incompetent, namely,
his relatives living within the same province and/or the persons caring for him.
It is significant to note that the rules do not necessitate that creditors of the minor or
incompetent be likewise identified and notified. The reason is simple: because their
presence is not essential to the proceedings for appointment of a guardian. It is almost
a given, and understandably so, that they will only insist that the supposed minor or
incompetent is actually capacitated to enter into contracts, so as to preserve the validity
of said contracts and keep the supposed minor or incompetent obligated to comply
therewith.

Hence, it cannot be presumed that the Pabale siblings were given notice and actually
took part in SP. PROC. No. 146-86-C. They are not Naves relatives, nor are they the
ones caring for her. Although the rules allow the RTC to direct the giving of other
general or special notices of the hearings on the petition for appointment of a guardian,
it was not established that the RTC actually did so in SP. PROC. No. 146-86-C.
Alamayris allegation that the Pabale siblings participated in SP. PROC. No. 146-86-C
rests on two Orders, dated 30 October 198715 and 19 November 1987,16 issued by the
RTC in SP. PROC. No. 146-86-C, expressly mentioning the presence of a Jose Pabale,
who was supposedly the father of the Pabale siblings, during the hearings held on the
same dates. However, the said Orders by themselves cannot confirm that Jose Pabale
was indeed the father of the Pabale siblings and that he was authorized by his children
to appear in the said hearings on their behalf.
Alamayri decries that she was not allowed by the Court of Appeals to submit and mark
additional evidence to prove that Jose Pabale was the father of the Pabale siblings.
It is true that the Court of Appeals has the power to try cases and conduct hearings,
receive evidence and perform any and all acts necessary to resolve factual issues
raised in cases falling within its original and appellate jurisdiction, including the power to
grant and conduct new trials or further proceedings. In general, however, the Court of
Appeals conducts hearings and receives evidence prior to the submission of the case
for judgment.17 It must be pointed out that, in this case, Alamayri filed her Motion to
Schedule Hearing to Mark Exhibits in Evidence on 21 November 2001. She thus
sought to submit additional evidence as to the identity of Jose Pabale, not only after CAG.R. CV No. 58133 had been submitted for judgment, but after the Court of Appeals
had already promulgated its Decision in said case on 10 April 2001.
The parties must diligently and conscientiously present all arguments and available
evidences in support of their respective positions to the court before the case is deemed
submitted for judgment. Only under exceptional circumstances may the court receive
new evidence after having rendered judgment; 18 otherwise, its judgment may never
attain finality since the parties may continually refute the findings therein with further
evidence. Alamayri failed to provide any explanation why she did not present her
evidence earlier. Merely invoking that the ends of justice would have been best served if
she was allowed to present additional evidence is not sufficient to justify deviation from
the general rules of procedure. Obedience to the requirements of procedural rules is
needed if the parties are to expect fair results therefrom, and utter disregard of the rules
cannot justly be rationalized by harking on the policy of liberal construction. 19 Procedural
rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike
are thus enjoined to abide strictly by the rules. And while the Court, in some instances,
allows a relaxation in the application of the rules, this, we stress, was never intended to
forge a bastion for erring litigants to violate the rules with impunity. The liberality in the
interpretation and application of the rules applies only to proper cases and under
justifiable causes and circumstances. While it is true that litigation is not a game of
technicalities, it is equally true that every case must be prosecuted in accordance with
the prescribed procedure to insure an orderly and speedy administration of justice. 20
Moreover, contrary to Alamayris assertion, the Court of Appeals did not deny her Motion
to Schedule Hearing to Mark Exhibits in Evidence merely for being late. In its

Resolution, dated 19 December 2001, the Court of Appeals also denied the said motion
on the following grounds:
While it is now alleged, for the first time, that the [herein respondents Pabale
siblings] participated in the guardianship proceedings considering that the Jose
Pabale mentioned therein is their late father, [herein petitioner Alamayri]
submitting herein documentary evidence to prove their filiation, even though
admitted in evidence at this late stage, cannot bind [the Pabale siblings] as verily,
notice to their father is not notice to them there being no allegation to the effect
that he represented them before the Calamba Court. 21
As the appellate court reasoned, even if the evidence Alamayri wanted to submit do
prove that the Jose Pabale who attended the RTC hearings on 30 October 1987 and 19
November 1987 in SP. PROC. No. 146-86-C was the father of the Pabale siblings, they
would still not confirm his authority to represent his children in the said proceedings.
Worth stressing is the fact that Jose Pabale was not at all a party to the Deed of Sale
dated 20 February 1984 over the subject property, which was executed by Nave in favor
of the Pabale siblings. Without proper authority, Jose Pabales presence at the hearings
in SP. PROC. No. 146-86-C should not bind his children to the outcome of said
proceedings or affect their right to the subject property.
Since it was not established that the Pabale siblings participated in SP. PROC. No. 14686-C, then any finding therein should not bind them in Civil Case No. 675-84-C.
No identity of issues
Neither is there identity of issues between SP. PROC. No. 146-86-C and Civil Case No.
675-84-C that may bar the latter, by conclusiveness of judgment, from ruling on Naves
competency in 1984, when she executed the Deed of Sale over the subject property in
favor the Pabale siblings.
In SP. PROC. No. 146-86-C, the main issue was whether Nave was incompetent at the
time of filing of the petition with the RTC in 1986, thus, requiring the appointment of a
guardian over her person and estate.
In the cross-claim of Nave and Atty. Gesmundo against the Pabale siblings in Civil Case
No. 675-84-C, the issue was whether Nave was an incompetent when she executed a
Deed of Sale of the subject property in favor of the Pabale siblings on 20 February
1984, hence, rendering the said sale void.
While both cases involve a determination of Naves incompetency, it must be
established at two separate times, one in 1984 and the other in 1986. A finding that she
was incompetent in 1986 does not automatically mean that she was so in 1984.
In Carillo v. Jaojoco,22 the Court ruled that despite the fact that the seller was declared
mentally incapacitated by the trial court only nine days after the execution of the
contract of sale, it does not prove that she was so when she executed the contract.
Hence, the significance of the two-year gap herein cannot be gainsaid since Naves
mental condition in 1986 may vastly differ from that of 1984 given the intervening
period.

Capacity to act is supposed to attach to a person who has not previously been declared
incapable, and such capacity is presumed to continue so long as the contrary be not
proved; that is, that at the moment of his acting he was incapable, crazy, insane, or out
of his mind.23 The burden of proving incapacity to enter into contractual relations rests
upon the person who alleges it; if no sufficient proof to this effect is presented, capacity
will be presumed.24
Nave was examined and diagnosed by doctors to be mentally incapacitated only in
1986, when the RTC started hearing SP. PROC. No. 146-86-C; and she was not
judicially declared an incompetent until 22 June 1988 when a Decision in said case was
rendered by the RTC, resulting in the appointment of Atty. Leonardo C. Paner as her
guardian. Thus, prior to 1986, Nave is still presumed to be capacitated and competent
to enter into contracts such as the Deed of Sale over the subject property, which she
executed in favor of the Pabale siblings on 20 February 1984. The burden of proving
otherwise falls upon Alamayri, which she dismally failed to do, having relied entirely on
the 22 June 1988 Decision of the RTC in SP. PROC. No. 146-86-C.
Alamayri capitalizes on the declaration of the RTC in its Decision dated 22 June 1988 in
SP. PROC. No. 146-86-C on Naves condition "having become severe since the year
1980."25 But there is no basis for such a declaration. The medical reports extensively
quoted in said Decision, prepared by: (1) Dr. Nona Jean Alviso-Ramos, dated 14 April
1986,26 and (2) by Dr. Eduardo T. Maaba, dated 20 April 1987, 27 both stated that upon
their examination, Nave was suffering from "organic brain syndrome secondary to
cerebral arteriosclerosis with psychotic episodes," which impaired her judgment. There
was nothing in the said medical reports, however, which may shed light on when Nave
began to suffer from said mental condition. All they said was that it existed at the time
Nave was examined in 1986, and again in 1987. Even the RTC judge was only able to
observe Nave, which made him realize that her mind was very impressionable and
capable of being manipulated, on the occasions when Nave visited the court from 1987
to 1988. Hence, for this Court, the RTC Decision dated 22 June 1988 in SP. PROC. No.
146-86-C may be conclusive as to Naves incompetency from 1986 onwards, but not as
to her incompetency in 1984. And other than invoking the 22 June 1988 Decision of the
RTC in SP. PROC. No. 146-86-C, Alamayri did not bother to establish with her own
evidence that Nave was mentally incapacitated when she executed the 20 February
1984 Deed of Sale over the subject property in favor of the Pabale siblings, so as to
render the said deed void.
All told, there being no identity of parties and issues between SP. PROC. No. 146-86-C
and Civil Case No. 675-84-C, the 22 June 1988 Decision in the former on Naves
incompetency by the year 1986 should not bar, by conclusiveness of judgment, a finding
in the latter case that Nave still had capacity and was competent when she executed on
20 February 1984 the Deed of Sale over the subject property in favor of the Pabale
siblings. Therefore, the Court of Appeals did not commit any error when it upheld the
validity of the 20 February 1984 Deed of Sale.
WHEREFORE, premises considered, the instant Petition for Review is hereby DENIED.
The Decision, dated 10 April 2001, of the Court of Appeals in CA-G.R. CV No. 58133, is
hereby AFFIRMED in toto. Costs against the petitioner Lolita R. Alamayri.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
THIRD DIVISION
G.R. No. 148311. March 31, 2005
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
DECISION
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural father, use the surname of her
natural mother as her middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt
his minor illegitimate childStephanie Nathy Astorga Garcia. He alleged therein, among
others, that Stephanie was born on June 26, 1994; 2 that her mother is Gemma Astorga
Garcia; that Stephanie has been using her mothers middle name and surname; and
that he is now a widower and qualified to be her adopting parent. He prayed that
Stephanies middle name Astorga be changed to "Garcia," her mothers surname, and
that her surname "Garcia" be changed to "Catindig," his surname.
On March 23, 2001,3 the trial court rendered the assailed Decision granting the
adoption, thus:
"After a careful consideration of the evidence presented by the petitioner, and in the
absence of any opposition to the petition, this Court finds that the petitioner possesses
all the qualifications and none of the disqualification provided for by law as an adoptive
parent, and that as such he is qualified to maintain, care for and educate the child to be
adopted; that the grant of this petition would redound to the best interest and welfare of
the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners
care and custody of the child since her birth up to the present constitute more than
enough compliance with the requirement of Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is GRANTED.
Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of
obedience and maintenance with respect to her natural mother, and for civil purposes,
shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189
of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY
CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar
concerned pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for record purposes.
SO ORDERED."4
On April 20, 2001, petitioner filed a motion for clarification and/or
reconsideration5 praying that Stephanie should be allowed to use the surname of her
natural mother (GARCIA) as her middle name.
On May 28, 2001,6 the trial court denied petitioners motion for reconsideration holding
that there is no law or jurisprudence allowing an adopted child to use the surname of his
biological mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child may use the
surname of her mother as her middle name when she is subsequently adopted by her
natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a
consequence of adoption because: (1) there is no law prohibiting an adopted child from
having a middle name in case there is only one adopting parent; (2) it is customary for
every Filipino to have as middle name the surname of the mother; (3) the middle name
or initial is a part of the name of a person; (4) adoption is for the benefit and best
interest of the adopted child, hence, her right to bear a proper name should not be
violated; (5) permitting Stephanie to use the middle name "Garcia" (her mothers
surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as
her middle name is not opposed by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner
that Stephanie should be permitted to use, as her middle name, the surname of her
natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies filiation with her natural
mother because under Article 189 of the Family Code, she remains to be an intestate
heir of the latter. Thus, to prevent any confusion and needless hardship in the future,
her relationship or proof of that relationship with her natural mother should be
maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her
natural mother as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the
surname of the mother. This custom has been recognized by the Civil Code and Family
Code. In fact, the Family Law Committees agreed that"the initial or surname of the
mother should immediately precede the surname of the father so that the second name,
if any, will be before the surname of the mother." 7
We find merit in the petition.
Use Of Surname Is Fixed By Law

For all practical and legal purposes, a man's name is the designation by which he is
known and called in the community in which he lives and is best known. It is defined as
the word or combination of words by which a person is distinguished from other
individuals and, also, as the label or appellation which he bears for the convenience of
the world at large addressing him, or in speaking of or dealing with him. 8 It is both of
personal as well as public interest that every person must have a name.
The name of an individual has two parts: (1) the given or proper name and (2)
the surname or family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The surname
or family name is that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the parents for the child,
but the surname to which the child is entitled is fixed by law.9
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate
the use of surname10 of an individual whatever may be his status in life, i.e., whether he
may be legitimate or illegitimate, an adopted child, a married woman or a previously
married woman, or a widow, thus:
"Art. 364. Legitimate and legitimated children shall principally use the surname of the
father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx
Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
Mrs.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may choose to continue employing her
former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her
name and surnameemployed before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be
obliged to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word Junior can be used only by a son. Grandsons and other direct
male descendants shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
x x x"
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no law regulating the use of a middle
name. Even Article 17611 of the Family Code, as amended by Republic Act No. 9255,
otherwise known as "An Act Allowing Illegitimate Children To Use The Surname Of
Their Father," is silent as to what middle name a child may use.
The middle name or the mothers surname is only considered in Article 375(1), quoted
above, in case there is identity of names and surnames between ascendants and
descendants, in which case, the middle name or the mothers surname shall be added.
Notably, the law is likewise silent as to what middle name an adoptee may use.
Article 365 of the Civil Code merely provides that "an adopted child shall bear the
surname of the adopter." Also, Article 189 of the Family Code, enumerating the legal
effects of adoption, is likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname
of the adopters;
x x x"
However, as correctly pointed out by the OSG, the members of the Civil Code and
Family Law Committees that drafted the Family Code recognized the Filipino custom
of adding the surname of the childs mother as his middle name. In the Minutes of
the Joint Meeting of the Civil Code and Family Law Committees, the members approved
the suggestion that the initial or surname of the mother should immediately
precede the surname of the father, thus
"Justice Caguioa commented that there is a difference between the use by the wife of
the surname and that of the child because the fathers surname indicates the family
to which he belongs, for which reason he would insist on the use of the fathers

surname by the child but that, if he wants to, the child may also use the surname
of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother,
how will his name be written? Justice Caguioa replied that it is up to him but that his
point is that it should be mandatory that the child uses the surname of the father
and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article
364, which reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person
himself precisely because of this misunderstanding. He then cited the following
example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname
is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name
is Gutierrez and his mothers surname is David but they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be modified to the effect
that it shall be mandatory on the child to use the surname of the father but he
may use the surname of the mother by way of an initial or a middle name. Prof.
Balane stated that they take note of this for inclusion in the Chapter on Use of
Surnames since in the proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification suggested by Justice
Caguioa that the surname of the father should always be last because there are so
many traditions like the American tradition where they like to use their second given
name and the Latin tradition, which is also followed by the Chinese wherein they even
include the Clan name.
xxx
Justice Puno suggested that they agree in principle that in the Chapter on the
Use of Surnames, they should say that initial or surname of the mother should
immediately precede the surname of the father so that the second name, if any,
will be before the surname of the mother. Prof. Balane added that this is really the
Filipino way. The Committee approved the suggestion."12 (Emphasis supplied)
In the case of an adopted child, the law provides that "the adopted shall bear the
surname of the adopters."13Again, it is silent whether he can use a middle name. What it
only expressly allows, as a matter of right and obligation, is for the adoptee to bear the
surname of the adopter, upon issuance of the decree of adoption. 14
The Underlying Intent of
Adoption Is In Favor of the

Adopted Child
Adoption is defined as the process of making a child, whether related or not to the
adopter, possess in general, the rights accorded to a legitimate child. 15 It is a juridical
act, a proceeding in rem which creates between two persons a relationship similar to
that which results from legitimate paternity and filiation. 16 The modern trend is to
consider adoption not merely as an act to establish a relationship of paternity and
filiation, but also as an act which endows the child with a legitimate status.17 This was,
indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention
of the Rights of the Child initiated by the United Nations, accepted the principle
that adoption is impressed with social and moral responsibility, and that its
underlying intent is geared to favor the adopted child.18 Republic Act No. 8552,
otherwise known as the "Domestic Adoption Act of 1998,"19 secures these rights and
privileges for the adopted.20
One of the effects of adoption is that the adopted is deemed to be a legitimate child of
the adopter for all intents and purposes pursuant to Article 189 21 of the Family Code and
Section 1722 Article V of RA 8552.23
Being a legitimate child by virtue of her adoption, it follows that Stephanie is
entitled to all the rights provided by law to a legitimate child without
discrimination of any kind, including the right to bear the surname of her father
and her mother, as discussed above. This is consistent with the intention of the
members of the Civil Code and Family Law Committees as earlier discussed. In fact, it
is a Filipino custom that the initial or surname of the mother should immediately precede
the surname of the father.
Additionally, as aptly stated by both parties, Stephanies continued use of her mothers
surname (Garcia) as her middle name will maintain her maternal lineage. It is to be
noted that Article 189(3) of the Family Code and Section 18 24, Article V of RA 8552 (law
on adoption) provide that the adoptee remains an intestate heir of his/her biological
parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural
mother in the future.
Moreover, records show that Stephanie and her mother are living together in the house
built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner
provides for all their needs. Stephanie is closely attached to both her mother and father.
She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence,
to allow Stephanie to use her mothers surname as her middle name will not only
sustain her continued loving relationship with her mother but will also eliminate the
stigma of her illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be liberally
construed to carry out the beneficent purposes of adoption. 25 The interests and welfare
of the adopted child are of primary and paramount consideration, 26 hence, every

reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.27
Lastly, Art. 10 of the New Civil Code provides that:
"In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail."
This provision, according to the Code Commission, "is necessary so that it may tip the
scales in favor of right and justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which may apparently be authorized
by some way of interpreting the law." 28
Hence, since there is no law prohibiting an illegitimate child adopted by her natural
father, like Stephanie, to use, as middle name her mothers surname, we find no reason
why she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in
the sense that Stephanie should be allowed to use her mothers surname "GARCIA" as
her middle name.
Let the corresponding entry of her correct and complete name be entered in the decree
of adoption.
SO ORDERED.
Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 164948

June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is
the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the
Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No.
2733 granting the Petition for Adoption of the petitioner herein.
The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of
America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition 3 for
the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986; 4 Elma
Dizon Ramos, who was born on September 7, 1987; 5 and Eugene Dizon Ramos who
was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos,
petitioners brother, and Amelia Ramos.
Landingin, as petitioner, alleged in her petition that when Manuel died on May 19,
1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their
biological mother, Amelia, went to Italy, re-married there and now has two children by
her second marriage and no longer communicated with her children by Manuel Ramos
nor with her in-laws from the time she left up to the institution of the adoption; the
minors are being financially supported by the petitioner and her children, and relatives
abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the
children; the minors have given their written consent 8 to the adoption; she is qualified to
adopt as shown by the fact that she is a 57-year-old widow, has children of her own who
are already married, gainfully employed and have their respective families; she lives
alone in her own home in Guam, USA, where she acquired citizenship, and works as a
restaurant server. She came back to the Philippines to spend time with the minors; her
children gave their written consent9 to the adoption of the minors. Petitioners brother,

Mariano Ramos, who earns substantial income, signified his willingness and
commitment to support the minors while in petitioners custody.
Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed to this Honorable Court that after
publication and hearing, judgment be rendered allowing the adoption of the minor
children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the
petitioner, and ordering that the minor childrens name follow the family name of
petitioner.
Petitioner prays for such other reliefs, just and equitable under the premises. 10
On March 5, 2002, the court ordered the Department of Social Welfare and
Development (DSWD) to conduct a case study as mandated by Article 34 of
Presidential Decree No. 603, as amended, and to submit a report thereon not later than
April 4, 2002, the date set for the initial hearing of the petition. 11 The Office of the
Solicitor General (OSG) entered its appearance 12 but deputized the City Prosecutor of
Tarlac to appear in its behalf.13Since her petition was unopposed, petitioner was allowed
to present her evidence ex parte.14
The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the
adoptees, to testify on the written consent executed by her and her siblings. 15 The
petitioner marked in evidence the Affidavit of Consent purportedly executed by her
children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized
by a notary public in Guam, USA, as proof of said consent. 16
On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field
Office III, Tarlac, submitted a Child Study Report, with the following recommendation:
In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed
Ramos, eligible for adoption because of the following reasons:
1. Minors surviving parent, the mother has voluntarily consented to their adoption
by the paternal aunt, Diwata Landingin this is in view of her inability to provide
the parental care, guidance and support they need. An Affidavit of Consent was
executed by the mother which is hereto attached.
2. The three minors subject for adoption have also expressed their willingness to
be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit
of consent is hereto attached. The minors developed close attachment to the
petitioners and they regarded her as second parent.
3. The minors are present under the care of a temporary guardian who has also
family to look after. As young adolescents they really need parental love, care,
guidance and support to ensure their protection and well being.
In view of the foregoing, it is hereby respectfully recommended that minors Elaine D.
Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt
Diwata Landingin. Trial custody is hereby further recommended to be dispensed with

considering that they are close relatives and that close attachments was already
developed between the petitioner and the 3 minors. 17
Pagbilao narrated what transpired during her interview, as follows:
The mother of minors came home together with her son John Mario, this May 2002 for 3
weeks vacation. This is to enable her appear for the personal interview concerning the
adoption of her children.
The plan for the adoption of minors by their paternal aunt Diwata Landingin was
conceived after the death of their paternal grandmother and guardian. The paternal
relatives including the petitioner who attended the wake of their mother were very much
concerned about the well-being of the three minors. While preparing for their adoption,
they have asked a cousin who has a family to stay with minors and act as their
temporary guardian.
The mother of minors was consulted about the adoption plan and after weighing the
benefits of adoption to her children, she voluntarily consented. She realized that her
children need parental love, guidance and support which she could not provide as she
already has a second family & residing in Italy. Knowing also that the petitioners & her
children have been supporting her children up to the present and truly care for them,
she believes her children will be in good hands. She also finds petitioners in a better
position to provide a secured and bright future to her children. 18
However, petitioner failed to present Pagbilao as witness and offer in evidence the
voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present
any documentary evidence to prove that Amelia assents to the adoption.
On November 23, 2002, the court, finding merit in the petition for adoption, rendered a
decision granting said petition. The dispositive portion reads:
WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma
Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and
maintenance from their natural parents and that they be declared for all legal intents
and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with
considering that parent-children relationship has long been established between the
children and the adoptive parents. Let the surnames of the children be changed from
"Dizon-Ramos" to "Ramos-Landingin."
Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him
to effect the corresponding changes/amendment in the birth certificates of the abovementioned minors.
SO ORDERED.19
The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its
brief21 for the oppositor-appellant, the OSG raised the following arguments:
I

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER.
II
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS
REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT
THE PROPOSED ADOPTEES.
On April 29, 2004, the CA rendered a decision 22 reversing the ruling of the RTC. It held
that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the
childrens natural mother. Moreover, the affidavit of consent of the petitioners children
could not also be admitted in evidence as the same was executed in Guam, USA and
was not authenticated or acknowledged before a Philippine consular office, and
although petitioner has a job, she was not stable enough to support the children. The
dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the appealed decision dated November 25, 2002
of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby
REVERSED and SET ASIDE.
SO ORDERED.23
Petitioner filed a Motion for Reconsideration 24 on May 21, 2004, which the CA denied in
its Resolution dated August 12, 2004.25
Petitioner, thus, filed the instant petition for review on certiorari 26 on September 7, 2004,
assigning the following errors:
1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND
MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT
AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED
THE RESULT OF THE CASE.
2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT
THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT
THE THREE CHILDREN.27
The issues raised by the parties in their pleadings are the following: (a) whether the
petitioner is entitled to adopt the minors without the written consent of their biological
mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed
by the petitioner-adopters children sufficiently complies with the law; and (c) whether or
not petitioner is financially capable of supporting the adoptees.
The Courts Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in
Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount consideration and are designed to
provide homes, parental care and education for unfortunate, needy or orphaned
children and give them the protection of society and family in the person of the adopter
as well as to allow childless couples or persons to experience the joys of parenthood
and give them legally a child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should thus be sustained to
promote and fulfill these noble and compassionate objectives of the law.29
However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which
this Court treats matters leading to adoption insofar as it carries out the beneficent
purposes of the law to ensure the rights and privileges of the adopted child arising
therefrom, ever mindful that the paramount consideration is the overall benefit and
interest of the adopted child, should be understood in its proper context and
perspective. The Courts position should not be misconstrued or misinterpreted as to
extend to inferences beyond the contemplation of law and jurisprudence. Thus, the
discretion to approve adoption proceedings is not to be anchored solely on best
interests of the child but likewise, with due regard to the natural rights of the parents
over the child.31
Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of
1998, provides: Sec. 9. Whose Consent is Necessary to the Adoption. - After being
properly counseled and informed of his/her right to give or withhold his/her approval of
the adoption, the written consent of the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the
proper government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of
the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter,
if living with said adopter and the latters souse, if any;
(e) The spouse, if any, of the person adopting or to be adopted.
The general requirement of consent and notice to the natural parents is intended to
protect the natural parental relationship from unwarranted interference by interlopers,
and to insure the opportunity to safeguard the best interests of the child in the manner
of the proposed adoption.32
Clearly, the written consent of the biological parents is indispensable for the validity of a
decree of adoption. Indeed, the natural right of a parent to his child requires that his
consent must be obtained before his parental rights and duties may be terminated and
re-established in adoptive parents. In this case, petitioner failed to submit the written
consent of Amelia Ramos to the adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia
Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said
Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is
incredible that the latter would not require Amelia Ramos to execute a Written Consent
to the adoption of her minor children. Neither did the petitioner bother to present Amelia
Ramos as witness in support of the petition.
Petitioner, nonetheless, argues that the written consent of the biological mother is no
longer necessary because when Amelias husband died in 1990, she left for Italy and
never came back. The children were then left to the guidance and care of their paternal
grandmother. It is the paternal relatives, including petitioner, who provided for the
childrens financial needs. Hence, Amelia, the biological mother, had effectively
abandoned the children. Petitioner further contends that it was by twist of fate that after
12 years, when the petition for adoption was pending with the RTC that Amelia and her
child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD
social worker, was able to meet her, and during the meeting, Amelia intimated to the
social worker that she conformed to the adoption of her three children by the petitioner.
Petitioners contention must be rejected. When she filed her petition with the trial court,
Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written
consent of the biological parents cannot be obtained, the written consent of the legal
guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother
of the minors had indeed abandoned them, she should, thus have adduced the written
consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the adoption of his child without his
consent, is a conduct which evinces a settled purpose to forego all parental
duties.33 The term means neglect and refusal to perform the filial and legal obligations of
love and support. If a parent withholds presence, love, care, the opportunity to display
filial affection, and neglects to lend support and maintenance, the parent, in effect,
abandons the child.34
Merely permitting the child to remain for a time undisturbed in the care of others is not
such an abandonment.35To dispense with the requirement of consent, the abandonment
must be shown to have existed at the time of adoption. 36
In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove
her claim that Amelia Ramos had abandoned her children. Petitioners testimony on that
matter follows:
Q Where is the mother of these three children now?
A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there an instance where she
communicated with the family?
A None, sir.
Q How about with her children?

A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married with another man.
Q From whom did you learn that?
A From others who came from Italy, sir.
Q Did you come to know whether she has children by her second marriage?
A Yes, sir, she got two kids.37
Elaine, the eldest of the minors, testified, thus:
Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
Q How old were you when your mother left for Italy in 1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your mother communicate with you?
A No, sir.38
However, the Home Study Report of the DSWD Social Worker also stated the following:
IV. Background of the Case:
xxxx
Since the mother left for Italy, minors siblings had been under the care and custody of
their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of
their deceased father now serves as their guardian. The petitioner, together with her
children and other relatives abroad have been supporting the minor children financially,
even during the time that they were still living with their natural parents. Their mother
also sends financial support but very minimal.39
xxxx
V. Background Information about the Minors Being Sought for Adoption:

xxxx
As the eldest she tries her best to be a role model to her younger siblings. She helps
them in their lessons, works and has fun with them. She also encourages openness on
their problems and concerns and provides petty counseling. In serious problems she
already consult (sic) her mother and petitioner-aunt. 40
xxxx
In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that
they had a happy and comfortable life. After the death of her husband, her in-laws which
include the petitioner had continued providing support for them. However being
ashamed of just depending on the support of her husbands relatives, she decided to
work abroad. Her parents are also in need of financial help as they are undergoing
maintenance medication. Her parents mortgaged their farm land which she used in
going to Italy and worked as domestic helper.
When she left for Italy in November 1990, she entrusted her 3 children to the care &
custody of her mother-in-law who returned home for good, however she died on
November 2000.
While working in Italy, she met Jun Tayag, a married man from Tarlac. They became
live-in partners since 1995 and have a son John Mario who is now 2 years old. The
three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning
to file an annulment of his marriage and his wife is amenable to it. He is providing his
legitimate family regular support.
Amelia also sends financial support ranging from P10,000-P15,000 a month through her
parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The
petitioner and other paternal relatives are continuously providing support for most of the
needs & education of minors up to present. 41
Thus, when Amelia left for Italy, she had not intended to abandon her children, or to
permanently sever their mother-child relationship. She was merely impelled to leave the
country by financial constraints. Yet, even while abroad, she did not surrender or
relinquish entirely her motherly obligations of rearing the children to her now deceased
mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for
serious personal problems. Likewise, Amelia continues to send financial support to the
children, though in minimal amounts as compared to what her affluent in-laws provide.
Let it be emphasized, nevertheless, that the adoption of the minors herein will have the
effect of severing all legal ties between the biological mother, Amelia, and the adoptees,
and that the same shall then be vested on the adopter.42 It would thus be against the
spirit of the law if financial consideration were to be the paramount consideration in
deciding whether to deprive a person of parental authority over his/her children. More
proof has to be adduced that Amelia has emotionally abandoned the children, and that
the latter will not miss her guidance and counsel if they are given to an adopting
parent.43 Again, it is the best interest of the child that takes precedence in adoption.
Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no
evidence which has not been formally offered. The purpose for which the evidence is

offered must be specified. The offer of evidence is necessary because it is the duty of
the Court to rest its findings of fact and its judgment only and strictly upon the evidence
offered by the parties. Unless and until admitted by the court in evidence for the
purpose or purposes for which such document is offered, the same is merely a scrap of
paper barren of probative weight. Mere identification of documents and the markings
thereof as exhibits do not confer any evidentiary weight on documents unless formally
offered.44
Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of
Consent purportedly executed by her children; the authenticity of which she, likewise,
failed to prove. The joint written consent of petitioners children 45 was notarized on
January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same
way as a document notarized in this country it needs to comply with Section 2 of Act No.
2103,46 which states:
Section 2. An instrument or document acknowledged and authenticated in a foreign
country shall be considered authentic if the acknowledgment and authentication are
made in accordance with the following requirements:
(a) The acknowledgment shall be made before (1) an ambassador, minister,
secretary of legation, charg d affaires, consul, vice-consul, or consular agent of
the Republic of the Philippines, acting within the country or place to which he is
accredited, or (2) a notary public or officer duly authorized by law of the country
to take acknowledgments of instruments or documents in the place where the act
is done.
(b) The person taking the acknowledgment shall certify that the person
acknowledging the instrument or document is known to him, and that he is the
same person who executed it, and acknowledged that the same is his free act
and deed. The certificate shall be under his official seal, if he is by law required to
keep a seal, and if not, his certificate shall so state. In case the acknowledgment
is made before a notary public or an officer mentioned in subdivision (2) of the
preceding paragraph, the certificate of the notary public or the officer taking the
acknowledgment shall be authenticated by an ambassador, minister, secretary of
legation, charg de affaires, consul, vice-consul, or consular agent of the
Republic of the Philippines, acting within the country or place to which he is
accredited. The officer making the authentication shall certify under his official
seal that the person who took the acknowledgment was at the time duly
authorized to act as notary public or that he was duly exercising the functions of
the office by virtue of which he assumed to act, and that as such he had authority
under the law to take acknowledgment of instruments or documents in the place
where the acknowledgment was taken, and that his signature and seal, if any,
are genuine.
As the alleged written consent of petitioners legitimate children did not comply with the
afore-cited law, the same can at best be treated by the Rules as a private document
whose authenticity must be proved either by anyone who saw the document executed
or written; or by evidence of the genuineness of the signature or handwriting of the
makers.47

Since, in the instant case, no further proof was introduced by petitioner to authenticate
the written consent of her legitimate children, the same is inadmissible in evidence.
In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to
support the children and is only relying on the financial backing, support and
commitment of her children and her siblings.48 Petitioner contradicts this by claiming that
she is financially capable as she has worked in Guam for 14 years, has savings, a
house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month.
Her children and siblings have likewise committed themselves to provide financial
backing should the need arise. The OSG, again in its comment, banks on the statement
in the Home Study Report that "petitioner has limited income." Accordingly, it appears
that she will rely on the financial backing of her children and siblings in order to support
the minor adoptees. The law, however, states that it is the adopter who should be in a
position to provide support in keeping with the means of the family.
Since the primary consideration in adoption is the best interest of the child, it follows
that the financial capacity of prospective parents should also
be carefully evaluated and considered. Certainly, the adopter should be in a position to
support the would-be adopted child or children, in keeping with the means of the family.
According to the Adoption Home Study Report49 forwarded by the Department of Public
Health & Social Services of the Government of Guam to the DSWD, petitioner is no
longer supporting her legitimate children, as the latter are already adults, have individual
lives and families. At the time of the filing of the petition, petitioner was 57 years old,
employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around
$1,000 a month. Petitioners main intention in adopting the children is to bring the latter
to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same
is still being amortized. Petitioner likewise knows that the limited income might be a
hindrance to the adoption proceedings.
Given these limited facts, it is indeed doubtful whether petitioner will be able to
sufficiently handle the financial aspect of rearing the three children in the US. She only
has a part-time job, and she is rather of age. While petitioner claims that she has the
financial support and backing of her children and siblings, the OSG is correct in stating
that the ability to support the adoptees is personal to the adopter, as adoption only
creates a legal relation between the former and the latter. Moreover, the records do not
prove nor support petitioners allegation that her siblings and her children are financially
able and that they are willing to support the minors herein. The Court, therefore, again
sustains the ruling of the CA on this issue.
While the Court recognizes that petitioner has only the best of intentions for her nieces
and nephew, there are legal infirmities that militate against reversing the ruling of the
CA. In any case, petitioner is not prevented from filing a new petition for adoption of the
herein minors.
WHEREFORE, premises considered, the petition is hereby DENIED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT

EN BANC
G.R. No. 160792 August 25, 2005
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF CAPT. GARY
ALEJANO, PN (MARINES) CAPT. NICANOR FAELDON, PN (MARINES) CAPT.
GERARDO GAMBALA, PA LT. SG JAMES LAYUG, PN CAPT. MILO
MAESTRECAMPO, PA LT. SG ANTONIO TRILLANES IV, PN HOMOBONO ADAZA,
and ROBERTO RAFAEL (ROEL) PULIDO, Petitioners,
vs.
GEN. PEDRO CABUAY, GEN. NARCISO ABAYA, SEC. ANGELO REYES, and SEC.
ROILO GOLEZ,Respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 seeks to nullify the Decision2 of the Court of Appeals dated 17
September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545.
The Court of Appeals Decision and Resolution dismissed the petition for habeas
corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido ("petitioners") on
behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon
(PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo
Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees").
Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"), Chief of the
Intelligence Service of the Armed Forces of the Philippines ("ISAFP"), who has custody
of the detainees. Petitioners impleaded Gen. Narciso Abaya ("Gen. Abaya"), Sec.
Angelo Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed
Forces of the Philippines ("AFP"), Secretary of National Defense and National Security
Adviser, because they have command responsibility over Gen. Cabuay.
Antecedent Facts
Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior
officers, entered and took control of the Oakwood Premier Luxury Apartments
("Oakwood"), an upscale apartment complex, located in the business district of Makati
City. The soldiers disarmed the security officers of Oakwood and planted explosive
devices in its immediate surroundings. The junior officers publicly renounced their
support for the administration and called for the resignation of President Gloria
Macapagal-Arroyo and several cabinet members.
Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the
authorities after several negotiations with government emissaries. The soldiers later
defused the explosive devices they had earlier planted. The soldiers then returned to
their barracks.
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all
the Major Service Commanders to turn over custody of ten junior officers to the ISAFP
Detention Center. The transfer took place while military and civilian authorities were
investigating the soldiers involvement in the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information for coup detat with the
Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27
July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup

detat as defined and penalized under Article 134-A of the Revised Penal Code of the
Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The
trial court later issued the Commitment Orders giving custody of junior officers Lt. SG
Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the Commanding
Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to
take into custody the military personnel under their command who took part in the
Oakwood incident except the detained junior officers who were to remain under the
custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme
Court. On 12 August 2003, the Court issued a Resolution, which resolved to:
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make
a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of
Appeals; (c) refer the case to the Court of Appeals for RAFFLEamong the Justices
thereof for hearing, further proceedings and decision thereon, after which
a REPORT shall be made to this Court within ten (10) days from promulgation of the
decision.3
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing
respondents to make a return of the writ and to appear and produce the persons of the
detainees before the Court of Appeals on the scheduled date for hearing and further
proceedings.
On the same date, the detainees and their other co-accused filed with the Regional Trial
Court of Makati City a Motion for Preliminary Investigation, which the trial court granted.
On 18 August 2003, pursuant to the directives of the Court, respondents submitted their
Return of the Writ and Answer to the petition and produced the detainees before the
Court of Appeals during the scheduled hearing. After the parties filed their memoranda
on 28 August 2003, the appellate court considered the petition submitted for decision.
On 17 September 2003, the Court of Appeals rendered its decision dismissing the
petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of
implementing the regulations in the ISAFP Detention Center, to uphold faithfully the
rights of the detainees in accordance with Standing Operations Procedure No. 0263-04.
The appellate court directed Gen. Cabuay to adhere to his commitment made in court
regarding visiting hours and the detainees right to exercise for two hours a day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court pointed out
that the detainees are already charged of coup detat before the Regional Trial Court of
Makati. Habeas corpus is unavailing in this case as the detainees confinement is under
a valid indictment, the legality of which the detainees and petitioners do not even
question.
The Court of Appeals recognized that habeas corpus may also be the appropriate
remedy to assail the legality of detention if there is a deprivation of a constitutional right.
However, the appellate court held that the constitutional rights alleged to have been
violated in this case do not directly affect the detainees liberty. The appellate court ruled
that the regulation of the detainees right to confer with their counsels is reasonable
under the circumstances.

The appellate court declared that while the opening and reading of Trillanes letter is an
abhorrent violation of his right to privacy of communication, this does not justify the
issuance of a writ of habeas corpus. The violation does not amount to illegal restraint,
which is the proper subject of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the
promise he made in open court to uphold the visiting hours and the right of the
detainees to exercise for two hours a day. The dispositive portion of the appellate
courts decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED.
Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to
uphold the constitutional rights of the detainees in accordance with the Standing
Operations Procedure No. 0263-04 regarding visiting hours and the right of the
detainees to exercise for two (2) hours a day.
SO ORDERED.4
The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION
OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE
CONDITIONS OF THE DETAINED JUNIOR OFFICERS DETENTION.5
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Courts 12 August 2003 Order granted the petition and the
Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners
thus argue that the Courts Order had already foreclosed any question on the propriety
and merits of their petition.
Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that
the Court referred to the Court of Appeals the duty to inquire into the cause of the junior
officers detention. Had the Court ruled for the detainees release, the Court would not
have referred the hearing of the petition to the Court of Appeals. The Court would have
forthwith released the detainees had the Court upheld petitioners cause.
In a habeas corpus petition, the order to present an individual before the court is a
preliminary step in the hearing of the petition. 6 The respondent must produce the person
and explain the cause of his detention. 7 However, this order is not a ruling on the
propriety of the remedy or on the substantive matters covered by the remedy. Thus, the
Courts order to the Court of Appeals to conduct a factual hearing was not an affirmation
of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily
includes the determination of the propriety of the remedy. If a court finds the alleged
cause of the detention unlawful, then it should issue the writ and release the detainees.
In the present case, after hearing the case, the Court of Appeals found that habeas

corpus is inapplicable. After actively participating in the hearing before the Court of
Appeals, petitioners are estopped from claiming that the appellate court had no
jurisdiction to inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper
remedy to address the detainees complaint against the regulations and conditions in
the ISAFP Detention Center. The remedy ofhabeas corpus has one objective: to inquire
into the cause of detention of a person.8 The purpose of the writ is to determine whether
a person is being illegally deprived of his liberty.9 If the inquiry reveals that the detention
is illegal, the court orders the release of the person. If, however, the detention is proven
lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is
thus very limited. It is not a writ of error.10 Neither can it substitute for an appeal.11
Nonetheless, case law has expanded the writs application to circumstances where
there is deprivation of a persons constitutional rights. The writ is available where a
person continues to be unlawfully denied of one or more of his constitutional freedoms,
where there is denial of due process, where the restraints are not merely involuntary but
are also unnecessary, and where a deprivation of freedom originally valid has later
become arbitrary.12
However, a mere allegation of a violation of ones constitutional right is not sufficient.
The courts will extend the scope of the writ only if any of the following circumstances is
present: (a) there is a deprivation of a constitutional right resulting in the unlawful
restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an
excessive penalty is imposed and such sentence is void as to the excess. 13 Whatever
situation the petitioner invokes, the threshold remains high. The violation of
constitutional right must be sufficient to void the entire proceedings. 14
Petitioners admit that they do not question the legality of the detention of the detainees.
Neither do they dispute the lawful indictment of the detainees for criminal and military
offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the
ISAFP Detention Center preventing petitioners as lawyers from seeing the detainees
their clients any time of the day or night. The regulation allegedly curtails the
detainees right to counsel and violates Republic Act No. 7438 ("RA 7438"). 15 Petitioners
claim that the regulated visits made it difficult for them to prepare for the important
hearings before the Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated the
detainees right to privacy of communication when the ISAFP officials opened and read
the personal letters of Trillanes and Capt. Milo Maestrecampo ("Maestrecampo").
Petitioners further claim that the ISAFP officials violated the detainees right against
cruel and unusual punishment when the ISAFP officials prevented the detainees from
having contact with their visitors. Moreover, the ISAFP officials boarded up with iron
bars and plywood slabs the iron grills of the detention cells, limiting the already poor
light and ventilation in the detainees cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement. 16 However,
the fact that the detainees are confined makes their rights more limited than those of the
public.17 RA 7438, which specifies the rights of detainees and the duties of detention
officers, expressly recognizes the power of the detention officer to adopt and implement
reasonable measures to secure the safety of the detainee and prevent his escape.
Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or any

medical doctor or priest or religious minister or by his counsel, from visiting and
conferring privately chosen by him or by any member of his immediate family with him,
or from examining and treating him, or from ministering to his spiritual needs, at any
hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine of
four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may undertake such reasonable
measures as may be necessary to secure his safety and prevent his escape.
(Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a
detainee client "at any hour of the day or, in urgent cases, of the night." However, the
last paragraph of the same Section 4(b) makes the express qualification that
"notwithstanding" the provisions of Section 4(b), the detention officer has the power to
undertake such reasonable measures as may be necessary to secure the safety of the
detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The
regulations governing a detainees confinement must be "reasonable measures x x x to
secure his safety and prevent his escape." Thus, the regulations must be reasonably
connected to the governments objective of securing the safety and preventing the
escape of the detainee. The law grants the detention officer the authority to "undertake
such reasonable measures" or regulations.
Petitioners contend that there was an actual prohibition of the detainees right to
effective representation when petitioners visits were limited by the schedule of visiting
hours. Petitioners assert that the violation of the detainees rights entitle them to be
released from detention.
Petitioners contention does not persuade us. The schedule of visiting hours does not
render void the detainees indictment for criminal and military offenses to warrant the
detainees release from detention. The ISAFP officials did not deny, but merely
regulated, the detainees right to counsel. The purpose of the regulation is not to render
ineffective the right to counsel, but to secure the safety and security of all detainees.
American cases are instructive on the standards to determine whether regulations on
pre-trial confinement are permissible.
In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that regulations must
be reasonably related to maintaining security and must not be excessive in achieving
that purpose. Courts will strike down a restriction that is arbitrary and
purposeless.19 However, Bell v. Wolfish expressly discouraged courts from skeptically
questioning challenged restrictions in detention and prison facilities. 20 The U.S.
Supreme Court commanded the courts to afford administrators "wide-ranging
deference" in implementing policies to maintain institutional security.21
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard
to make regulations in detention centers allowable: "such reasonable measures as
may be necessary to secure the detainees safety and prevent his escape." In the
present case, the visiting hours accorded to the lawyers of the detainees are reasonably
connected to the legitimate purpose of securing the safety and preventing the escape of
all detainees.
While petitioners may not visit the detainees any time they want, the fact that the
detainees still have face-to-face meetings with their lawyers on a daily basis clearly
shows that there is no impairment of detainees right to counsel. Petitioners as counsels

could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00
p.m. The visiting hours are regular business hours, the same hours when lawyers
normally entertain clients in their law offices. Clearly, the visiting hours pass the
standard of reasonableness. Moreover, in urgent cases, petitioners could always seek
permission from the ISAFP officials to confer with their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving
petitioners sufficient time to confer with the detainees. The detainees right to counsel is
not undermined by the scheduled visits. Even in the hearings before the Senate and the
Feliciano Commission,22 petitioners were given time to confer with the detainees, a fact
that petitioners themselves admit.23 Thus, at no point were the detainees denied their
right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and
the boarding of the iron grills in their cells with plywood amount to unusual and
excessive punishment. This argument fails to impress us.Bell v. Wolfish pointed out
that while a detainee may not be punished prior to an adjudication of guilt in accordance
with due process of law, detention inevitably interferes with a detainees desire to live
comfortably.24The fact that the restrictions inherent in detention intrude into the
detainees desire to live comfortably does not convert those restrictions into
punishment.25 It is when the restrictions are arbitrary and purposeless that courts will
infer intent to punish.26 Courts will also infer intent to punish even if the restriction seems
to be related rationally to the alternative purpose if the restriction appears excessive in
relation to that purpose.27 Jail officials are thus not required to use the least restrictive
security measure.28 They must only refrain from implementing a restriction that appears
excessive to the purpose it serves.29
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and respondents concede,
that the "essential objective of pretrial confinement is to insure the detainees presence
at trial." While this interest undoubtedly justifies the original decision to confine an
individual in some manner, we do not accept respondents argument that the
Governments interest in ensuring a detainees presence at trial is the only objective that
may justify restraints and conditions once the decision is lawfully made to confine a
person. "If the government could confine or otherwise infringe the liberty of detainees
only to the extent necessary to ensure their presence at trial, house arrest would in the
end be the only constitutionally justified form of detention." The Government also has
legitimate interests that stem from its need to manage the facility in which the individual
is detained. These legitimate operational concerns may require administrative measures
that go beyond those that are, strictly speaking, necessary to ensure that the detainee
shows up at trial. For example, the Government must be able to take steps to maintain
security and order at the institution and make certain no weapons or illicit drugs reach
detainees. Restraints that are reasonably related to the institutions interest in
maintaining jail security do not, without more, constitute unconstitutional punishment,
even if they are discomforting and are restrictions that the detainee would not have
experienced had he been released while awaiting trial. We need not here attempt to
detail the precise extent of the legitimate governmental interests that may justify
conditions or restrictions of pretrial detention. It is enough simply to recognize that in
addition to ensuring the detainees presence at trial, the effective management of the
detention facility once the individual is confined is a valid objective that may justify
imposition of conditions and restrictions of pretrial detention and dispel any inference
that such restrictions are intended as punishment. 30

An action constitutes a punishment when (1) that action causes the inmate to suffer
some harm or "disability," and (2) the purpose of the action is to punish the
inmate.31 Punishment also requires that the harm or disability be significantly greater
than, or be independent of, the inherent discomforts of confinement. 32
Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket restriction
on contact visits as this practice was reasonably related to maintaining security. The
safety of innocent individuals will be jeopardized if they are exposed to detainees who
while not yet convicted are awaiting trial for serious, violent offenses and may have prior
criminal conviction.34 Contact visits make it possible for the detainees to hold visitors
and jail staff hostage to effect escapes.35 Contact visits also leave the jail vulnerable to
visitors smuggling in weapons, drugs, and other contraband. 36 The restriction on contact
visits was imposed even on low-risk detainees as they could also potentially be enlisted
to help obtain contraband and weapons.37 The security consideration in the imposition
of blanket restriction on contact visits was ruled to outweigh the sentiments of the
detainees.38
Block v. Rutherford held that the prohibition of contact visits bore a rational connection
to the legitimate goal of internal security.39 This case reaffirmed the "hands-off" doctrine
enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that
courts should decline jurisdiction over prison matters in deference to administrative
expertise.40
In the present case, we cannot infer punishment from the separation of the detainees
from their visitors by iron bars, which is merely a limitation on contact visits. The iron
bars separating the detainees from their visitors prevent direct physical contact but still
allow the detainees to have visual, verbal, non-verbal and limited physical contact with
their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict noncontact visitation regulation like in Block v. Rutherford. The limitation on the detainees
physical contacts with visitors is a reasonable, non-punitive response to valid security
concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP
Detention Center. This measure intends to fortify the individual cells and to prevent the
detainees from passing on contraband and weapons from one cell to another. The
boarded grills ensure security and prevent disorder and crime within the facility. The
diminished illumination and ventilation are but discomforts inherent in the fact of
detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the
ISAFP Detention Center are not inhuman, degrading and cruel. Each detainee, except
for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells,
unlike ordinary cramped detention cells. The detainees are treated well and given
regular meals. The Court of Appeals noted that the cells are relatively clean and livable
compared to the conditions now prevailing in the city and provincial jails, which are
congested with detainees. The Court of Appeals found the assailed measures to be
reasonable considering that the ISAFP Detention Center is a high-risk detention facility.
Apart from the soldiers, a suspected New Peoples Army ("NPA") member and two
suspected Abu Sayyaf members are detained in the ISAFP Detention Center.
We now pass upon petitioners argument that the officials of the ISAFP Detention
Center violated the detainees right to privacy when the ISAFP officials opened and read
the letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for
mailing. Petitioners point out that the letters were not in a sealed envelope but simply
folded because there were no envelopes in the ISAFP Detention Center. Petitioners
contend that the Constitution prohibits the infringement of a citizens privacy rights

unless authorized by law. The Solicitor General does not deny that the ISAFP officials
opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read all
incoming and outgoing mail of convicted prisoners to prevent the smuggling of
contraband into the prison facility and to avert coordinated escapes. 41 Even in the
absence of statutes specifically allowing prison authorities from opening and inspecting
mail, such practice was upheld based on the principle of "civil deaths." 42 Inmates were
deemed to have no right to correspond confidentially with anyone. The only restriction
placed upon prison authorities was that the right of inspection should not be used to
delay unreasonably the communications between the inmate and his lawyer.43
Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials
received respect.44 The confidential correspondences could not be censored. 45 The
infringement of such privileged communication was held to be a violation of the inmates
First Amendment rights.46 A prisoner has a right to consult with his attorney in absolute
privacy, which right is not abrogated by the legitimate interests of prison authorities in
the administration of the institution.47 Moreover, the risk is small that attorneys will
conspire in plots that threaten prison security.48
American jurisprudence initially made a distinction between the privacy rights enjoyed
by convicted inmates and pre-trial detainees. The case of Palmigiano v.
Travisono49 recognized that pre-trial detainees, unlike convicted prisoners, enjoy a
limited right of privacy in communication. Censorship of pre-trial detainees mail
addressed to public officials, courts and counsel was held impermissible. While
incoming mail may be inspected for contraband and read in certain instances, outgoing
mail of pre-trial detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,50 involving convicted prisoners, the U.S.
Supreme Court held that prison officials could open in the presence of the inmates
incoming mail from attorneys to inmates. However, prison officials could not read such
mail from attorneys. Explained the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming mail
from attorneys to inmates, has been considerably narrowed in the course of this
litigation. The prison regulation under challenge provided that (a)ll incoming and
outgoing mail will be read and inspected, and no exception was made for attorneyprisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys to inmates,
but contend that they may open all letters from attorneys as long as it is done in the
presence of the prisoners. The narrow issue thus presented is whether letters
determined or found to be from attorneys may be opened by prison authorities in the
presence of the inmate or whether such mail must be delivered unopened if normal
detection techniques fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was from an
attorney before opening it for inspection, a near impossible task of administration would
be imposed. We think it entirely appropriate that the State require any such
communications to be specially marked as originating from an attorney, with his name
and address being given, if they are to receive special treatment. It would also certainly
be permissible that prison authorities require that a lawyer desiring to correspond with a
prisoner, first identify himself and his client to the prison officials, to assure that the
letters marked privileged are actually from members of the bar. As to the ability to open
the mail in the presence of inmates, this could in no way constitute censorship, since

the mail would not be read. Neither could it chill such communications, since the
inmates presence insures that prison officials will not read the mail. The possibility that
contraband will be enclosed in letters, even those from apparent attorneys, surely
warrants prison officials opening the letters. We disagree with the Court of Appeals that
this should only be done in appropriate circumstances. Since a flexible test, besides
being unworkable, serves no arguable purpose in protecting any of the possible
constitutional rights enumerated by respondent, we think that petitioners, by acceding to
a rule whereby the inmate is present when mail from attorneys is inspected, have done
all, and perhaps even more, than the Constitution requires. 51
In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no
reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained
that prisoners necessarily lose many protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the circumscription or loss
of many significant rights. These constraints on inmates, and in some cases the
complete withdrawal of certain rights, are "justified by the considerations underlying our
penal system." The curtailment of certain rights is necessary, as a practical matter, to
accommodate a myriad of "institutional needs and objectives" of prison facilities, chief
among which is internal security. Of course, these restrictions or retractions also serve,
incidentally, as reminders that, under our system of justice, deterrence and retribution
are factors in addition to correction.53
The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned Palmigiano v.
Travisono and made no distinction as to the detainees limited right to privacy. State v.
Dunn noted the considerable jurisprudence in the United States holding that inmate
mail may be censored for the furtherance of a substantial government interest such as
security or discipline. State v. Dunn declared that if complete censorship is permissible,
then the lesser act of opening the mail and reading it is also permissible. We
quote State v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible
with the close and continual surveillance of inmates and their cells required to ensure
institutional security and internal order. We are satisfied that society would insist that the
prisoners expectation of privacy always yield to what must be considered a paramount
interest in institutional security. We believe that it is accepted by our society that "[l]oss
of freedom of choice and privacy are inherent incidents of confinement."
The distinction between the limited privacy rights of a pre-trial detainee and a convicted
inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might
occasionally pose an even greater security risk than convicted inmates. Bell v.
Wolfish reasoned that those who are detained prior to trial may in many cases be
individuals who are charged with serious crimes or who have prior records and may
therefore pose a greater risk of escape than convicted inmates. 55 Valencia v.
Wiggins56 further held that "it is impractical to draw a line between convicted prisoners
and pre-trial detainees for the purpose of maintaining jail security."
American cases recognize that the unmonitored use of pre-trial detainees nonprivileged mail poses a genuine threat to jail security.57 Hence, when a detainee places
his letter in an envelope for non-privileged mail, the detainee knowingly exposes his
letter to possible inspection by jail officials. 58 A pre-trial detainee has no reasonable
expectation of privacy for his incoming mail.59 However, incoming mail from lawyers of
inmates enjoys limited protection such that prison officials can open and inspect the
mail for contraband but could not read the contents without violating the inmates right to
correspond with his lawyer.60 The inspection of privileged mail is limited to physical
contraband and not to verbal contraband. 61

Thus, we do not agree with the Court of Appeals that the opening and reading of the
detainees letters in the present case violated the detainees right to privacy of
communication. The letters were not in a sealed envelope. The inspection of the folded
letters is a valid measure as it serves the same purpose as the opening of sealed letters
for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not confidential
letters between the detainees and their lawyers. The petitioner who received the letters
from detainees Trillanes and Maestrecampo was merely acting as the detainees
personal courier and not as their counsel when he received the letters for mailing. In the
present case, since the letters were not confidential communication between the
detainees and their lawyers, the officials of the ISAFP Detention Center could
read the letters. If the letters are marked confidential communication between the
detainees and their lawyers, the detention officials should not read the letters but only
open the envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a citizens privacy
rights62 is a guarantee that is available only to the public at large but not to persons who
are detained or imprisoned. The right to privacy of those detained is subject to Section 4
of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By
the very fact of their detention, pre-trial detainees and convicted prisoners have a
diminished expectation of privacy rights.
In assessing the regulations imposed in detention and prison facilities that are alleged to
infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts
"balance the guarantees of the Constitution with the legitimate concerns of prison
administrators."63 The deferential review of such regulations stems from the principle
that:
[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny
analysis would seriously hamper their ability to anticipate security problems and to
adopt innovative solutions to the intractable problems of prison administration. 64
The detainees in the present case are junior officers accused of leading 300 soldiers in
committing coup detat, a crime punishable with reclusion perpetua.65 The junior officers
are not ordinary detainees but visible leaders of the Oakwood incident involving an
armed takeover of a civilian building in the heart of the financial district of the country.
As members of the military armed forces, the detainees are subject to the Articles of
War.66
Moreover, the junior officers are detained with other high-risk persons from the Abu
Sayyaf and the NPA. Thus, we must give the military custodian a wider range of
deference in implementing the regulations in the ISAFP Detention Center. The military
custodian is in a better position to know the security risks involved in detaining the junior
officers, together with the suspected Abu Sayyaf and NPA members. Since the
appropriate regulations depend largely on the security risks involved, we should defer to
the regulations adopted by the military custodian in the absence of patent arbitrariness.
The ruling in this case, however, does not foreclose the right of detainees and convicted
prisoners from petitioning the courts for the redress of grievances. Regulations and
conditions in detention and prison facilities that violate the Constitutional rights of the
detainees and prisoners will be reviewed by the courts on a case-by-case basis. The
courts could afford injunctive relief or damages to the detainees and prisoners subjected
to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode
to question conditions of confinement.67 The writ of habeas corpus will only lie if what is
challenged is the fact or duration of confinement. 68

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of

Appeals in CA-G.R. SP No. 78545.
No pronouncement as to costs.
SO ORDERED.
ANTONIO T. CARPIO

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 114046 October 24, 1994

HONORATO GALVEZ and GODOFREDO DIEGO, petitioners,
vs.
COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS
M. VILLA-IGNACIO of Pasig, Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP
P/SR. SUPT. RICARDO F. DE LEON, Camp Commander and Head of the PNP
Custodial Group, Camp Crame, Cubao, Quezon City, respondents.
Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for
petitioners.

REGALADO, J.:
Submitted for resolution in the present special civil action are: (1) the basic petition
for certiorari and mandamuswith a petition for habeas corpus, to review the resolution
issued by respondent Court of Appeals, dated
February 18, 1994, in CA-G.R. SP No. 33261; 1 (2) the Urgent Motion 2 and
Supplemental Urgent Motion 3 for Immediate Action on Petition for Habeas corpus; and
(3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr. and First Assistant
Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings
(with Immediate Prayer for another Cease and Desist Order). 4
On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San
Ildefonso, Bulacan, and one Godofredo Diego were charged in three separate
informations with homicide and two counts of frustrated homicide fot has been the rule
that under the first paragraph of Section 14, Rule 110, the amendment of the
information may also be made even if it may result in altering the nature of the charge
so long as it Regional Trial Court of Malolos, Bulacan, Branch 14, and docketed as
Criminal Cases Nos. 3642-M-93 to 3644-M-93. 5 Both accused posted their respective
cash bail bonds and were subsequently released from detention.
On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion
to Defer Arraignment and Subsequent Proceedings to enable him "to review the
evidence on record and determine once more the proper crimes chargeable against the
accused," 6 which was granted by Judge Villajuan in an order dated November 16,
1993. 7Thereafter, pursuant to Department Order No. 369 of the Department of Justice,
respondent Prosecutor Dennis M. Villa-Ignacio was designated Acting Provincial
Prosecutor of Bulacan and was instructed to conduct a re-investigation of the aforesaid
criminal cases filed against herein petitioners. 8
By virtue of a Manifestation with Ex-parte Motion dated November 23, 1993 9 filed by
respondent prosecutor, the proceedings were again ordered suspended by Judge
Villajuan until after the prosecution's request for change of venue shall have been
resolved by the Supreme Court, and the preliminary investigation being conducted by

the former shall have been terminated. 10 It appears that on December 2, 1993, private
complainants, through their counsel, Atty. Silvestre R. Bello III, had filed with the
Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93 to
3644-M-93, purportedly to safeguard the lives of the victims and their witnesses, and to
prevent a miscarriage of justice. 11
On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos.
3642-M-93 to 3644-M-93, respondent prosecutor filed an Ex
parte Motion to Withdraw Informations in said cases. 12 This motion was granted by
Judge Villajuan also on December 15, 1993 and the cases were considered withdrawn
from the docket of the court. 13 On the same day, Prosecutor Villa-Ignacio filed four new
informations against herein petitioners for murder, two counts of frustrated murder, and
violation of Presidential Decree No. 1866 for illegal possession of firearms 14 which were
subsequently raffled to the sala of Judge Victoria Pornillos of Branch 10, Regional
Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos.
4004-M-93 to 4007-M-93. No bail having been recommended for the crime of murder,
Judge Pornillos ordered the arrest of herein petitioners. 15 On December 23, 1993, said
presiding judge issued an order setting the arraignment of the accused for December
27, 1993. 16
On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset
due to the absence of respondent prosecutor. On even date, petitioners filed before
Judge Villajuan a Motion for Reconsideration of his order of December 15, 1993 which
granted the motion to withdraw the original informations. 17
Thereafter, a Motion to Quash the new informations for lack
of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. 18 At
the court session set for the arraignment of petitioners on January 24, 1994, Judge
Pornillos issued an order denying the motion to quash and, at the same time, directed
that a plea of not guilty be entered for petitioners when the latter refused to enter their
plea. 19
In the meantime, and prior to the arraignment of herein petitioners before Judge
Pornillos, an order was issued on January 20, 1994 by Judge Villajuan granting the
motion for reconsideration filed by petitioners, ordering the reinstatement of Criminal
Cases Nos. 3642-M-93 to 3644-M-93, and setting the arraignment of the accused
therein for February 8, 1994. 20 On said date, however, the arraignment was suspended
and, in the meanwhile, petitioners filed a petition for certiorari, prohibition
and mandamus with respondent Court of Appeals, assailing the order dated January 24,
1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in
Criminal Cases Nos. 4004-M-93 and 4007-M-93. As earlier stated, respondent court
dismissed the petition in its questioned resolution of February 18, 1994, hence this
petition.
I. On the Main Petition
The main issue in this case involves a determination of the set
of informations under which herein petitioners should be tried, that is, (a) the first set of
informations for homicide and frustrated homicide in Criminal
Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder,

frustrated murder, and illegal possession of firearms in Criminal Cases Nos. 4004-M-93
to 4007-M-93. Several corollary but equally important issues have likewise been
addressed to us for resolution, to wit:
1. Whether the ex parte motion to withdraw the original informations is null
and void on the ground that (a) there was no notice and hearing as
required by Sections 4, 5 and 6, Rule 15 of the Rules of Court; and (b) the
appropriate remedy which should have been adopted by the prosecution
was to amend the informations by charging the proper offenses pursuant
to Section 14 of Rule 110;
2. Whether the order granting the withdrawal of the original informations
was immediately final and executory;
3. Whether Judge Pornillos was correct in denying the motion to quash
and thereby acquired jurisdiction over the new informations considering
that (a) the designated public prosecutor allegedly had no authority to file
the second set of informations; and (b) the filing thereof constituted forum
shopping; and
4. Whether the arraignment proceeding held on January 24, 1994 in
Criminal Cases Nos. 4004-M-93 to 4007-M-93 was valid.
We shall discuss these issues seriatim.
1. It is petitioners' submission that the prosecution's failure to serve them a copy of the
motion to withdraw the original informations and to set said motion for hearing
constitutes a violation of their right to be informed of the proceedings against them, as
well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so they
contend, the ex parte motion should be considered as a worthless scrap of paper and
Judge Villajuan had no authority to act on it. Ergo, the order granting the same is null
and void.
Petitioners advance the theory that respondent prosecutor should have amended the
original informations instead of withdrawing the same and filing new ones. They
postulate that the principle of nolle prosequi does not apply in this case since the
withdrawal or dismissal of an information is addressed solely to the sound and judicious
discretion of the court which has the option to grant or deny it and the prosecution
cannot impose its opinion on the court. It is further stressed that in case there is a need
to change the nature of the offense charged, that is, from homicide to murder, by adding
the qualifying circumstance of treachery, the only legal and proper remedy is through
the filing of the corresponding amended information; and that the withdrawal of an
information is allowed only where the new information involves a different offense which
does not include or is not included in the offense originally charged.
Normally, an accused would not object to the dismissal of an information against him
because it is to his best interest not to oppose the same. Contrarily, if the accused
should deem such conditional or provisional dismissal to be unjust and prejudicial to
him, he could object to such dismissal and insist that the case be heard and decided on
the merits. 21 However, considering that in the original cases before Branch 14 of the
trial court petitioners had not yet been placed in jeopardy, and the ex parte motion to

withdraw was filed and granted before they could be arraigned, there would be no
imperative need for notice and hearing thereof. In actuality, the real grievance of herein
accused is not the dismissal of the original three informations but the filing of four new
informations, three of which charge graver offenses and the fourth, an additional
offense. Had these new informations not been filed, there would obviously have been
no cause for the instant petition. Accordingly, their complaint about the supposed
procedural lapses involved in the motion to dismiss filed and granted in Criminal Cases
Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of their
real position.
Petitioners' contention that the dismissal of the original informations and the consequent
filing of the new ones substantially affected their right to bail is too strained and tenuous
an argument. They would want to ignore the fact that had the original informations been
amended so as to charge the capital offense of murder, they still stood to likewise be
deprived of their right to bail once it was shown that the evidence of guilt is strong.
Petitioners could not be better off with amended informations than with the subsequent
ones. It really made no difference considering that where a capital offense is charged
and the evidence of guilt is strong, bail becomes a matter of discretion under either an
amended or a new information.
Contrary to petitioners' submission, the absence of notice and hearing does not divest a
trial court of authority to pass on the merits of the motion. It has been held that
The order of the court granting the motion to dismiss despite absence of a
notice of hearing, or proof of service thereof, is merely an irregularity in the
proceedings. It cannot deprive a competent court of jurisdiction over the
case. The court still retains its authority to pass on the merits of the
motion. The remedy of the aggrieved party in such cases is either to have
the order set aside or the irregularity otherwise cured by the court which
dismissed the complaint, or to appeal from the dismissal and
notcertiorari. 22
Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion
for reconsideration, even assuming the alleged procedural infirmity in his issuance of
the order of dismissal, the same was thereby deemed cured. This is especially so in this
case since, on his order, the original informations were reinstated in Branch 14 of the
trial court.
The rule is now well settled that once a complaint or information is filed in court any
disposition of the case, whether as to its dismissal or the conviction or the acquittal of
the accused, rests in the sound discretion of the court. Although the prosecutor retains
the direction and control of the prosecution of criminal cases even when the case is
already in court, he cannot impose
his opinion upon the tribunal. For while it is true that the prosecutor has the quasijudicial discretion to determine whether or not a criminal case should be filed in court,
once the case had already been brought therein any disposition the prosecutor may
deem proper thereafter should be addressed to the court for its consideration and
approval. 23 The only qualification is that the action of the court must not impair the
substantial rights of the accused or the right of the People to due process of law.

We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul,
etc., et al.: 24
Whether the accused had been arraigned or not and whether it was due to
a reinvestigation by the fiscal or a review by the Secretary of Justice
whereby a motion to dismiss was submitted to the Court, the Court in the
exercise of its discretion may grant the motion or deny it and require that
the trial on the merits proceed for the proper determination of the case.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as to its dismissal
or the conviction or acquittal of the accused rests in the sound discretion
of the Court. Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The court is the best and sole
judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has the
option to grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who
reviewed the records of the investigation.
In such an instance, before a re-investigation of the case may be conducted by the
public prosecutor, the permission or consent of the court must be secured. And, if after
such re-investigation the prosecution finds a cogent basis to withdraw the information or
otherwise cause the dismissal of the case, such proposed course of action may be
taken but shall likewise be addressed to the sound discretion of the court. 25
It is not denied that in the present case, the court granted the motion of respondent
prosecutor for the suspension of the proceedings until the
re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at
a finding that petitioners should have been charged with murder, frustrated murder, and
illegal possession of firearms. This prompted him to file an ex parte motion to withdraw
the original informations for homicide and frustrated homicide. Although the motion did
not state the reasons for the withdrawal of the informations, nevertheless, the court in
the exercise of its discretion granted the same, as a consequence of which a new set of
informations was thereafter filed and raffled to another branch of the court. Petitioners
now question the propriety of the procedure adopted by the prosecution, insisting that
an amendment, not a new information, was required under the circumstances.
It must here be emphasized that respondent prosecutor sought, and was subsequently
granted, permission by the court to dismiss the original informations. It cannot therefore
be validly claimed that the prosecutor exceeded his authority in withdrawing those
informations because the same bore the imprimatur of the court. The issue is thus
focused on whether or not under the given situation the court acted correctly in
dismissing the original informations rather than ordering the amendment thereof.

It has been observed that while the Rules of Court gives the accused the right to move
for the quashal of the information, it is silent with respect to the right of the prosecutor to
ask for a dismissal or withdrawal thereof. 26 A perusal of the 1985 Rules on Criminal
Procedure will show that there are only two provisions concerning the dismissal of an
information other than on motion of the accused, namely, Section 14 of Rule 110 and
Section 11 of Rule 119. But then, it may be contended that these rules speak of a
dismissal by the court when there is a mistake in charging the proper offense, but make
no mention of a dismissal made upon application of the prosecution. That is not
necessarily so.
It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110,
providing as it does that:
Sec. 11. When mistake has been made in charging the proper offense.
When it becomes manifest at any time before judgment, that a mistake
has been made in charging the proper offense, and the accused cannot
be convicted of the offense charged, or of any other offense necessarily
included therein, the accused shall not be discharged, if there appears to
be good cause to detain him. In such case, the court shall commit the
accused to answer for the proper offense and dismiss the original case
upon the filing of the proper information. (Emphasis supplied.)
Rule 119 is the rule specifically governing the trial stage where evidence is necessarily
being presented, hence the trial court is now in a better position to conclude that
manifestly the accused cannot be convicted of the offense charged or of one that it
necessarily includes. It would primarily be the function of the court to motu proprio order
the dismissal of the case and direct the filing of the appropriate information. We do not
discount the possibility of either the prosecution or the defense initiating such dismissal
and substitution at that stage, although, from a realistic point of view, that would be a
rare situation. This provision, therefore, is more directly and principally directed to the
trial court to invest it with the requisite authority to direct by itself the dismissal and
refiling of the informations therein contemplated.
Rule 110, on the other hand, provides the procedural governance for the prosecution of
offenses. Section 14 thereof, quoted infra, provides in its second paragraph the
procedure and requisites for the substitution of a defective information by the correct
one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that
substitution is "at any time before judgment," unlike the latter situation it is sufficient that
"it appears . . . that a mistake has been made in charging the proper offense, . . . ." The
situation under said Section 14 contemplates a longer time span, inclusive of the
period from the filing of the information up to and before trial. Since no evidence has
been presented at that stage, the error would appear or be discoverable from a review
of the records of the preliminary investigation. Of course, that fact may be perceived by
the trial judge himself but, again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be manifest or evident, nor is it
required that such nuances as offenses includible in the offense charged be taken into
account. It necessarily follows, therefore, that the prosecutor can and should institute
remedial measures for the dismissal of the original information and the refiling of the
correct one, otherwise he would be recreant to his duties.

It is interesting to note that in the American jurisdiction, such right is specifically

recognized under Rule 48 (a) of the Federal Rules of Criminal Procedure which
provides that the entry of a nolle prosequi by the Government is a permissible right,
although requiring in all cases the approval of the court in the exercise of its judicial
discretion.27 As a matter of fact, the prosecuting attorney is given the broad power, sole
authority and discretion to enter a nolle prosequi provided he does not act
arbitrarily 28 and subject to the discretion of the court.
In several cases, we have also impliedly recognized the propriety of such a procedure
particularly in those instances where the prosecution is allowed to dismiss or withdraw
an information on the ground of insufficiency of evidence. We have even gone further by
imposing upon the fiscal, as he was then called, the duty to move for the dismissal of
the information if he is convinced that the evidence is insufficient to establish, at
least prima facie, the guilt of the accused. 29
In this case now before us, what is involved is a dismissal effected at the instance of the
prosecutor by reason of a mistake in charging the proper offense, in order that new
informations can be filed. The problem that may be posited, and should now be
resolved, is when the fiscal may be allowed to move to dismiss an information and when
he should merely move to amend it.
Section 14 of Rule 110, which is invoked by petitioners, reads as follows:
Sec. 14. Amendment. The information or complaint may be amended,
in substance or form, without leave of court, at any time before the
accused pleads; and thereafter and during the trial as to all matters of
form, by leave and at the discretion of the court, when the same can be
done without prejudice to the rights of the accused.
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint
or information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
placed thereby in double jeopardy, and may also require the witnesses to
give bail for their appearance at the trial.
The first paragraph provides the rule for amendment of the information or complaint,
while the second paragraph refers to the substitution of the information or complaint.
Under the second paragraph, the court can order the filing of another information to
charge the proper offense, provided the accused would not be placed thereby in double
jeopardy and that could only be true if the offense proved does not necessarily include
or is not necessarily included in the offense charged in the original information.
It has been the rule that under the first paragraph of Section 14, Rule 110, the
amendment of the information may also be made even if it may result in altering the
nature of the charge so long as it can be done without prejudice to the rights of the
accused. Hence, in the case of Dimalibot vs. Salcedo, 30 the accused therein were
originally charged with homicide and were released on bail. However, the then
provincial fiscal, after a review of the affidavits of the witnesses for the prosecution,
discovered that the killing complained of was perpetrated with the qualifying

circumstances of treachery, taking advantage of superior strength, and employing

means to weaken the defense of the victim. Consequently, an amended information for
murder was filed against the accused who were ordered re-arrested without the amount
of bail being fixed, the new charge being a capital offense.
The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule
106 of the 1940 Rules of Court (now Section 14, Rule 110 of the 1985 Rules on
Criminal Procedure), thus:
Here these rules properly apply, since it is undisputed that the herein
accused were not yet arraigned before the competent court when the
complaint for homicide was amended so as to charge the crime of murder.
Upon the authority of said rules, the amendment could therefore be made
even as to substance in order that the proper charge may be made. The
claim that such amendment can only refer to matters of specification
affecting the elements constituting the crime is not correct, for there is
nothing in the rule to show that the nature of the amendment should only
be limited to matters of specification. The change may also be made even
if it may result in altering the nature of the charge so long as it can be
done without prejudice to the rights of the defendant.
Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an
amendment, an information for homicide may also be dismissed before the accused
pleads, to give way to the filing of a new information for murder. This may be deduced
from the pronouncement of the Court in the aforecited case of Dimalibot, to wit:
This clearly appears from the second part of Section 13 of Rule 106 which
says that, if it appears before judgment that a mistake has been made in
charging the proper offense, the court may dismiss the original information
and order the filing of a new one provided the defendant may not be
placed in double jeopardy. If a new information may be ordered at any
time before judgment no reason is seen why the court may not order the
amendment of the information if its purpose is to make it conformable to
the true nature of the crime committed. . . .
In the subsequent case of Teehankee, Jr. vs. Madayag, et al., 31 however, Section 14 of
Rule 110 was clarified to mean as follows:
It may accordingly be posited that both amendment and substitution of the
information may be made before or after the defendant pleads, but they
differ in the following respects:
1. Amendment may involve either formal or substantial changes, while
substitution necessarily involves a substantial change from the original
charge;
2. Amendment before plea has been entered can be effected without
leave of court, but substitution of information must be with leave of court
as the original information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another

preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed
and the accused has to plead anew to the new information; and
4. An amended information refers to the same offense charged in the
original information or to an offense which necessarily includes or is
necessarily included in the original charge, hence substantial amendments
to the information after the plea has been taken cannot be made over the
objection of the accused, for if the original information would be
withdrawn, the accused could invoke double jeopardy. On the other hand,
substitution requires or presupposes that the new information involves a
different offense which does not include or is not necessarily included in
the original charge, hence the accused cannot claim double jeopardy.
In determining, therefore, whether there should be an amendment under
the first paragraph of Section 14, Rule 110, or a substitution of information
under the second paragraph thereof, the rule is that where the second
information involves the same offense, or an offense which necessarily
includes or is necessarily included in the first information, an amendment
of the information is sufficient; otherwise, where the new information
charges an offense which is distinct and different from that initially
charged, a substitution is in order.
In any event, we are inclined to uphold the propriety of the withdrawal of the original
informations, there having been no grave abuse of discretion on the part of the court in
granting the motion and, more importantly, in consideration of the fact that the motion to
withdraw was filed and granted before herein petitioners were arraigned, hence before
they were placed in jeopardy. Thus, even if a substitution was made at such stage,
petitioners cannot validly claim double jeopardy, which is precisely the evil sought to be
prevented under the rule on substitution, for the simple reason that no first jeopardy had
as yet attached. Consequently, we hold that although the offenses charged under the
three new informations necessarily include those charged under the original
informations, the substitution of informations was not a fatal error. A contrary ruling, to
paraphrase from our former pronouncements, would sacrifice substantial justice for
formal nuances on the altar of procedural technicalities. Furthermore, petitioner's right to
speedy trial was never violated since the new informations were filed immediately after
the motion to withdraw the original informations was granted.
2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the
new informations for murder, frustrated murder and illegal possession of firearms, is
grounded on three points of disagreement.
Firstly, it is argued that the new informations were prematurely filed considering that the
order granting the withdrawal of the original informations had not yet become final and
executory and that, as a matter of fact, the same was subsequently reconsidered and
the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge
Pornillos could not acquire jurisdiction over the same offense involving the same
incident and the same accused.

Secondly, petitioners contend that the dismissal of the original informations and the
filing of new ones which were raffled to another branch of the court constituted forum
shopping, and was tainted with malice considering the indecent haste with which the
motion to withdraw the informations was filed, the order granting the same was issued,
and the new informations were filed, all of which took place on the same day. Pursuant
to the doctrinal ruling that the court first acquiring jurisdiction excludes the other courts,
it is theorized that the cognizance of the case taken by Judge Villajuan barred Judge
Pornillos from assuming jurisdiction thereover.
Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then
First Assistant Provincial Prosecutor of Pasig, Rizal) as Acting Provincial Prosecutor of
Bulacan was arbitrary and without any justifiable reason. It follows, therefore, so
petitioners vigorously argue, that in the absence of such authority, the informations
should be considered null and void by reason of which Judge Pornillos did not acquire
jurisdiction over the same.
On the other hand, respondents question the propriety of petitioners' filing of a petition
for certiorari prohibition and mandamus in the Court of Appeals against the order of the
lower court denying petitioners' motion to quash, claiming that the proper remedy was to
proceed to trial on the merits and thereafter raise on appeal, as special defenses, the
grounds invoked in the motion to quash.
It is a general rule that a nolle prosequi or dismissal entered before the accused is
placed on trial and before he is called on to plead is not equivalent
to an acquittal, 32 and does not bar a subsequent prosecution for the same offense. 33 It
is not a final disposition of the case. 34 Rather, it partakes of the nature of a nonsuit or
discontinuance in a civil suit and leaves the matter in the same condition in which it was
before the commencement of the prosecution. 35
A dismissal is different from an acquittal. An order of dismissal which is actually an
acquittal is immediately final and cannot be reconsidered. 36 Furthermore, an acquittal is
always based on the merits, that is, the defendant is acquitted because the evidence
does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does
not decide the case on the merits or that the defendant is not guilty. Dismissals
terminate the proceedings, either because the court is not a court of competent
jurisdiction, or the evidence does not show that the offense was committed within the
territorial jurisdiction of the court, or the complaint or information is not valid or sufficient
in form and substance. 37 For dismissal to be a bar under double jeopardy, it must have
the effect of acquittal.
All these go to show, therefore, that the dismissal of Criminal Cases
Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners.
Consequently, the same did not immediately become final, hence petitioners could still
file a motion for the reconsideration thereof. Moreover, such dismissal does not
constitute a proper basis for a claim of double jeopardy. 38 Since jeopardy had not yet
attached, herein petitioners were not prejudiced by the filing of the new informations
even though the order of dismissal in the prior case had not yet become final. Neither
did it affect the jurisdiction of the court in the subsequent case.

In American legal practice, where a motion for an order of nolle prosequi is made, the
only power to deny the motion would be based on failure of the district attorney to
judiciously exercise his discretion. 39 In most cases, the motion will be readily granted
and should not be refused unless the court has some knowledge that it is based on an
improper reason or a corrupt motive. But such a motion to dismiss will not also be
approved unless the court is satisfied that the administration of justice requires that the
prosecution be ended, or if there appears to be a clear violation of the law. 40 Whatever
may be the reason therefor, a denial of the motion to withdraw should not be construed
as a denigration of the authority of the special prosecutor to control and direct the
prosecution of the case, 41 since the disposition of the case already rests in the sound
discretion of the court.
This brings us to the question as to whether or not an order of dismissal may be
subsequently set aside and the information reinstated. Again, in American
jurisprudence, the authorities differ somewhat as to whether a nolle prosequi may be set
aside and the cause reinstated. 42 Some cases hold that the nolle prosequi may be
recalled and that the accused may be tried on the same information, 43 but before it can
be retraced, set aside, cancelled, or struck off, the permission or assent of the court
must be had and obtained, and such cancellation or retraction must be duly entered.
According to other authorities, however, the entry of an unconditional nolle prosequi, not
on the ground that the information is insufficient on its face, is an end to the prosecution
of that information, and such nolle prosequi cannot afterward be vacated and further
proceedings had in that case. 44
Still in some cases, it has been held that a nolle prosequi may be set aside by leave of
court, so as to reinstate proceedings on the information, or unless it was entered by
mistake. 45 In our jurisdiction, we follow the rule which allows an order of dismissal to be
set aside by leave of court. In one case, it was held that in the absence of any statutory
provision to the contrary, the court may, in the interest of justice, dismiss a criminal case
provisionally, that is, without prejudice to reinstating it before the order becomes final or
to the subsequent filing of a new information for the offense. 46
The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will
retain it to the end to the exclusion of other tribunals, is not to be given unyielding effect
in all cases and it does not apply where the jurisdiction of the first court has come to an
end in any legal way, such as by nolle prosequi. 47 The rule on exclusions is intended to
prevent confusion and conflicts in jurisdiction and to prevent a person from being twice
tried for the same offense, but no accused has a vested right to be tried in any particular
court of concurrent jurisdiction; and when one court of concurrent jurisdiction voluntarily
relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or
logical reason for preventing the other court from proceeding. 48 With much more reason
will this rule apply where only branches of the same court, and not different courts, are
involved in the jurisdictional conflict.
There was no forum shopping in the lower court with respect to the case involved. While
the procedure adopted by the prosecution was somewhat cumbersome, it was not in
bad faith and, accordingly, it did not affect the legality of the proceedings. There is no
showing, and petitioners failed to prove otherwise, that the assignment by raffle of the
new informations to another branch of the same court was intended to prejudice herein

petitioners, or to place them under less favorable circumstances, or to find a court which
would act favorably on the prosecution's case.
The authority of the special prosecutor appointed by the Secretary of Justice to sign and
file informations has long been recognized in this jurisdiction and it has been held that
such information cannot be quashed on that account. There is nothing so sacrosanct in
the signing of complaints, holding of investigations, and conducting prosecutions that
only an officer appointed by the President or one expressly empowered by law be
permitted to assume these functions. 49 And any irregularity in the appointment does not
necessarily invalidate the same if he may be considered a de facto officer. 50
Of course, where the person who signed the information was disqualified from
appointment to such position, the information is invalid and the court does not acquire
jurisdiction to try the accused thereon. 51 Such is not, however, the situation obtaining in
the case at bar. It will be noted that respondent prosecutor was designated by the
Secretary of Justice to handle the re-investigation
and prosecution of the case against petitioners pursuant to Department Order No. 369.
Petitioners failed to show any irregularity in the issuance of said directive.
At any rate, the power of supervision and control vested in the Secretary of Justice
under Presidential Decree No. 1275 had been broadened beyond the confines of the
old law, that is, Section 1679 of the Revised Administrative Code, wherein the power of
the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo, et al.
vs. Domagas, et al., 52 we said:
The Court notes, however; that Department of Justice Order No. 85 was
issued pursuant to, among others, P.D. No. 1275 issued on 11 April 1978
which provides:
Sec. 1. Creation of the National Prosecution Service;
Supervision and Control of the Secretary of Justice. There
is hereby created and established a National Prosecution
Service under the supervision and control of the Secretary of
Justice, to be composed of the Prosecution Staff in the
Office of the Secretary of Justice and such number of
Regional State Prosecution Offices, and Provincial and City
Fiscal's Offices as are hereinafter provided, which shall be
primarily responsible for the investigation and prosecution of
all cases involving violations of penal laws.
The power of supervision and control vested in the Secretary
of Justice includes the authority to act directly on any matter
within the jurisdiction of the Prosecution Staff, the Regional
State Prosecution Office or the Office of the Provincial or
City Fiscal and to review, modify or revoke any decision or
action of the Chief of said staff or office.
The power of supervision and control vested in the Secretary of Justice
under P.D. No. 1275 had thus been broadened beyond the confines of the
old law, i.e., Section 1679 of the Revised Administrative Code of 1917,

where the power of the Secretary of Justice to designate acting fiscals or

prosecutors to handle a particular case was limited to instances "when a
provincial fiscal shall be disqualified by personal interest to act in a
particular case or when for any reason he shall be unable, or shall fail to
discharge any of the duties of his position." Indeed, the limitation upon
which petitioners rely no longer subsisted under P.D. No. 1275.
Having been duly designated in accordance with law, the panel of
prosecutors had complete control of the investigation and prosecution of
the case. . . .
3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994,
when Judge Pornillos entered a plea of not guilty for them after they refused to plead,
without furnishing them copies of the information with the list of witnesses, after merely
reading the informations against them and asking whether they understood the same,
which were allegedly in palpable violation of Section 1, Rule 116. Petitioners aver that
they were requesting for the suspension of the arraignment as they wanted to have a
final copy of the order of January 24, 1994 which was merely read in open court, and to
take the necessary steps to question the same by way of a motion for reconsideration or
an appeal.
In criminal cases, it is the duty of the accused, in addition to the other pleas authorized
by law, to plead whether he is guilty or not of the crime charged. In that way and in that
way only can an issue be created upon which the trial shall proceed. 53 Section 1 (c) of
Rule 116 is quite explicit that where the accused refuses to plead, a plea of not guilty
shall be entered for him. Hence, under such mandatory language, if the accused
refuses to plead, the court must enter a plea of not guilty. The words are so plain and
unambiguous that no construction is necessary. It actually calls for a literal application
thereof. Any explanation or defense which petitioners would want to invoke can be
properly raised during the trial, but they cannot refuse to enter their plea. Nonetheless,
the alleged defect in their arraignment on January 24, 1994 is deemed to have been
cured when they were again arraigned on February 18, 1994 with the assistance of
counsel de oficio, and the information was read to them in the vernacular.
In conclusion, considering that Branch 10 of the same trial court handling Criminal
Cases Nos. 4004-M-93 to 4007-M-93 legally acquired jurisdiction over the new
informations which we have likewise declared valid, petitioners may be prosecuted
thereunder.
II. On the Petition for Habeas corpus
This petition is predicated mainly on petitioners' asseveration that the court which
issued the warrant for their arrest had no jurisdiction over the case, hence their
detention should be deemed illegal.
We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the
new set of informations. Consequently, the warrant of arrest issued on the bases of said
informations filed therein and the subsequent detention of herein petitioners pursuant
thereto are valid. What instead has to be resolved is the corollary issue of whether the

petition for habeas corpus was properly filed together with their present petition
for certiorari andmandamus.
The writs of habeas corpus and certiorari may be ancillary to each other where
necessary to give effect to the supervisory powers of the higher courts. A writ of habeas
corpus reaches the body and the jurisdictional matters, but not the record. A writ
of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be
used with the writ of certiorari for the purpose of review. 54 However, habeas
corpus does not lie where the petitioner has the remedy of appeal or certiorari because
it will not be permitted to perform the functions of a writ of error or appeal for the
purpose of reviewing mere errors or irregularities in the proceedings of a court having
jurisdiction over the person and the subject matter. 55
Neither can we grant the writ at this stage since a writ of habeas corpus is not intended
as a substitute for the functions of the trial court. In the absence of exceptional
circumstances, the orderly course of trial should be pursued and the usual remedies
exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in
advance of trial to determine jurisdictional questions that may arise. 56 It has to be an
exceptional case for the writ of habeas corpus to be available to an accused before
trial. 57 In the absence of special circumstances requiring immediate action, a court will
not grant the writ and discharge the prisoner in advance of a determination of his case
in court. 58 In the case under consideration, petitioners have dismally failed to adduce
any justification or exceptional circumstance which would warrant the grant of the writ,
hence their petition therefor has to be denied.
In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a
right to bail or vindicating its denial. In the case of Enrile vs. Salazar, etc., et al., 59 we
held that:
The criminal case before the respondent Judge was the normal venue for
invoking the petitioner's right to have provisional liberty pending trial and
judgment. The original jurisdiction to grant or deny bail rested with said
respondent. The correct course was for petitioner to invoke that
jurisdiction by filing a petition to be admitted to bail, claiming a right to
bail per se by reason of the weakness of the evidence against him. Only
after that remedy was denied by the trial court should the review
jurisdiction of this Court have been invoked, and even then, not without
first applying to the Court of Appeals if appropriate relief was also
available there.
III. On the Motion to Cite for Contempt
The records show that on February 24, 1994, this Court issued a temporary restraining
order, pursuant to its resolution in Administrative Matter No. 94-1-13-RTC which is a
petition for change of venue filed by the Vinculados, requiring Judges Felipe N. Villajuan
and Victoria Villalon-Pornillos to cease and desist from hearing the criminal cases
involving herein petitioners which were pending before them. 60
Subsequently, another resolution was issued in said cases, dated
March 1, 1994, with the following directive:

ACCORDINGLY, without prejudice to the final determination as to which of

the two (2) sets of information will be upheld or prevail, the Executive
Judge of the Regional Trial Court of Malolos, Bulacan is hereby directed to
transfer all the aforementioned criminal cases filed against Mayor
Honorato Galvez, et al. now in the Regional Trial Court of Malolos,
Bulacan, to the Executive Judge, Regional Trial Court of Quezon City for
raffle as one (1) single case among its branches and for the branch
concerned, after raffle, to proceed with all deliberate dispatch after the
issues raised in CA-G.R. SP No. 33261 have been resolved with finality. 61
As a consequence, the seven informations which were docketed as Criminal Cases
Nos. Q-94-55481 to Q-94-55487 were assigned to and are now pending trial on the
merits before Branch 103 of the Regional Trial Court of Quezon City, presided over by
Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor
Villa-Ignacio proceeded with the trial of the cases despite the aforestated directives in
the above cited resolutions. We find no merit in the motion to cite them for contempt.
The records reveal that there was a manifestation dated May 31, 1994 62 filed by the
Solicitor General wherein the latter manifested his conformity to the agreement made
between the prosecution and the defense before Judge Salazar, the pertinent part of
which agreement is as follows:
1. During the hearing on May 26, 1994, the prosecution, through Senior
State Prosecutor Dennis Villa-Ignacio, the defense through Justice Alfredo
Lazaro, and this Honorable Court agreed that the trial in these cases shall
proceed on condition that: (a) the defense shall not be deemed to have
waived any issue or objection it has raised before the Supreme Court in
G.R. No. 114046; and (b) that the trial shall also be without prejudice to
whatever decision and resolution the Supreme Court may render in the
case before it.
Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement
on the pretension that the same is not the true agreement of the parties, but he failed to
state what they actually agreed upon. Withal, the resolutions of this Court in the petition
for change of venue, as well as the cease and desist order issued therein, are clearly
directed against the two aforenamed regional trial judges in Malolos, Bulacan. By no
stretch of the imagination can we interpret the same to include Judge Jaime N. Salazar,
Jr. of Quezon City.
For that matter, the issues involved in this petition for certiorari do not necessarily
require a suspension of the proceedings before the present trial court considering that
the main petition hinges only on a determination of which set of informations shall
constitute the indictments against petitioners and for which charges they shall stand
trial. Whichever set of informations prevails, the evidence of the prosecution and
defense will more or less be the same and can be utilized for the charges therein.
Hence, no cogent reason exists for the suspension of the proceedings before the court
below.
As a final word, while it may well be that both sets of information validly exist for the
nonce, to allow both of them to subsist will only serve to confuse and complicate the

proceedings in the cases therein. Brushing aside procedural technicalities, therefore, it

becomes exigent to now consider and declare the four informations for murder,
frustrated murder and illegal possession of firearms as having amended and
superseded the original three informations for homicide and frustrated homicide, there
being no substantial rights of herein petitioners which may be affected thereby.
Correspondingly, the three informations for homicide and frustrated homicide should be
ordered withdrawn from the Quezon City trial court's docket.
WHEREFORE, judgment is hereby rendered DISMISSING the petition
for certiorari and mandamus together with the petition for habeas corpus; DENYING, for
lack of merit, the motion to cite respondent judge and prosecutor for contempt and to
annul proceedings; and ORDERING the withdrawal and invalidation of the three
informations for homicide and frustrated homicide against petitioners from the docket of
Branch 103 of the Regional Trial Court of Quezon City.
SO ORDERED.
Narvasa, C.J., Puno and Mendoza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-18871

May 30, 1962

EDUARDO SOTTO, petitioner-appellant,

vs.
THE DIRECTOR OF PRISONS THE SUPERINTENDENT,
SAN RAMON PRISON & PENAL FARM, ZAMBOANGA CITY, respondents-appellees.
Ramon Lledo and Mariano C. Cabato for petitioner-appellant.
Office of the Solicitor General for respondents-appellees.
PAREDES, J.:
Together with Rocindo Brillantes, Eligido Iturralde and Alfredo Valencia, petitioner
Eduardo Sotto was convicted upon a plea of guilty, by the CFI of Zamboanga, for the
crime of robbery, and sentenced to serve an imprisonment of from 12 years and 1 day
to 18 years, 2 months and 21 days of reclusion temporal; to return the articles robbed or
pay the corresponding value of P465.60 to the offended party Leona Kuan Tan, with the
accessories of the law and to pay of the costs (CFI Crim. Case No. 1873,
Zamboanga City). He started serving his sentence on December 17, 1953, and up to
the date of his petition for habeas corpus, filed on December 8, 1958, he has already
served an aggregate term of 4 years, 11 months and 21 days, excluding good conduct
time allowance, earned under article 97 of the Revised Penal Code. He alleged in his
petition that the penalty imposed is excessive and not in accordance with law, as the
proper penalty imposable, for the offense charged in the information should be that of
Article 302 and not article 299 of the Revised Penal Code: that at the time of conviction,
petitioner was a minor, 16 years old, and as such he was entitled to a penalty next lower
than the one prescribed for the crime committed, to wit, arresto mayor in its maximum
period to prision correccional in its minimum period, or from 4 months and 1 day to 2
years and 4 months, and that having served sentence for a period of 4 years, 11 months
and 21 days, he should already be ordered released from custody and control of the
Respondent Director of Prisons or his representative and that he has no other
adequate, legal and speedy remedy in law except the present proceeding. He,
therefore, prayed that the respondent be ordered to release him. Respondent,
answering, alleged in his special defense that admitting, but not granting that the
sentence is not in accordance with law, the petition for habeas corpus, is not the proper
remedy.
The trial court issued an Order the dispositive portion of which runs
The petitioner is seeking relief from that error. This Court believes that the trial
Judge Hon. Pablo Villalobos who imposed the sentence in criminal case No.
1873, was right; and therefore, this case ofhabeas corpus will not lie and same is
here denied.
Petitioner appealed, assigning as error of the trial court in not holding that the penalty
imposed upon the accused was excessive and contrary to law. Considering that the
issues involved are purely of law, the Court of Appeals certified the case to us for
determination. The Solicitor General has not filed any brief.

At the bottom of the petition, the petitioner desires to revise errors of law or fact, if ever
there was such errors, which the trial court had supposedly incurred in the criminal case
aforementioned. It is already a settled rule that when a court has jurisdiction of the
offense charged and the person of the accused, its judgment, order or decree is valid
and is not subject to collateral attack by habeas corpus, for this cannot be made to
perform the function of a writ of error, and this holds true even if the judgment, order or
decree was erroneous (Vda. de Talavera v. Supt., etc., 67 Phil. 538; Cruz v. Martin, et
al., 75 Phil. 11). In a recent case, (Cuenca v. Superintendent, etc., L-17400, Dee. 30,
1961), this Court said
. . . This Court has repeatedly held that a writ of habeas corpus is not a writ of
error, or a writ for the purpose of review (Felipe v. Director of Prisons, 27 Phil.
378; Pomeroy v. Director of Prisons, G.R. Nos. L-14284-14285, prom. Feb. 24,
1960. 1 In the Pomeroy case, we stated that
"With reference to persons in custody pursuant to a final judgment, the
rule is that the writ of habeas corpus can issue only for want of jurisdiction
of the sentencing court, and cannot function as a writ of error. Hence, the
writ will not lie to correct mere mistake of fact or of law which do not nullify
the proceedings taken by a court in the exercise of its functions, if the
court has jurisdiction over the crime and over the person of the
defendant."
xxx

xxx

xxx

. . . The second error, on the other hand, attacks the Municipal Court's appreciation of
the number of appellant's previous convictions for theft.
Again, this is merely an error of judgment by said court, which did not in any way affect
its jurisdiction, or could nullify its proceedings, but was correctible only by a seasonal
appeal.1wph1.t
In the Felipe case, supra, we pointed out:
But the writ of habeas corpus is not a remedy provided for the correction of such
errors. Courts cannot, inhabeas corpus proceedings, review the record in a
criminal case after a judgment of conviction has been rendered, and the
defendants have entered on the execution of the sentence imposed, to ascertain
whether the facts found by the trial court were in accordance with the evidence
disclosed by the record, or in order to pass upon the correctness of the
conclusions of law by the trial court based on the facts thus found. Under the
statute, a commitment in due form based on a final judgment convicting and
sentencing a defendant in a criminal case is conclusive of the legality of his
detention under such commitment, unless it appears that the court exceeded its
jurisdiction in imposing the penalty. Mere errors of law or of fact, which did not
have the effect of depriving the trial court of its jurisdiction over the cause and the
person of the defendant, if corrected at all, must be corrected on appeal in the
form and manner prescribed by law.
Reliance is placed on our ruling in the cases of Cruz v. Director of Prisons (17 Phil. 269)
and Caluag v. Pecson, (82 Phil. 8), but these cases are not in point, for they involved

penalties not provided by law and, therefore, beyond the power or jurisdiction of the trial
court to impose. Thus, in the Pomeroy case, supra, we said:
While this Court has ruled that an excessive sentence or penalty imposed by final
judgment may be corrected by habeas corpus, the cases where such ruling was
applied involved penalties that could not be imposed under any circumstances
for the crime for which the prisoner was convicted: (subsidiary imprisonment for
violation of special acts, in Cruz v. Director of Prisons, 17 Phil. 269, imprisonment
for contempt by refusal to execute a conveyance instead of having the
conveyance executed as provided by Sec. 10 of Rule 39, in Caluag v. Pecson,
82 Phil. 8). . . .
In the case at bar, the trial court undoubtedly had jurisdiction over the cause, over the
person of the accused, and to impose the penalty provided for by law. What is here
questioned is only the correctness of the exercise of that jurisdiction. The mistake
committed by the trial court, if any, refers to the appreciation of the facts and/or in the
appreciation of the law, which, in the light of the authorities heretofore cited, can not be
corrected by habeas corpus.
The writ is denied, and the decision appealed from is affirmed. No costs.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera and Dizon, JJ., concur.
Bengzon, C.J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 139789. May 12, 2000
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K.
ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm
G.R. No. 139808. May 12, 2000
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO,
petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with her in
conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal
dwelling may not be enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or detention, 1 or by
which the rightful custody of a person is withheld from the one entitled thereto. 2 Slx
"Habeas corpus is a writ directed to the person detaining another, commanding him to
produce the body of the prisoner at a designated time and place, with the day and
cause of his capture and detention, to do, submit to, and receive whatsoever the court
or judge awarding the writ shall consider in that behalf." 3
It is a high prerogative, common-law writ, of ancient origin, the great object of which is
the liberation of those who may be imprisoned without sufficient cause. 4 It is issued
when one is deprived of liberty or is wrongfully prevented from exercising legal custody
over another person.5

The petition of Erlinda K. Ilusorio6 is to reverse the decision7 of the Court of Appeals and
its resolution8dismissing the application for habeas corpus to have the custody of her
husband, lawyer Potenciano Ilusorio and enforce consortium as the wife.
On the other hand, the petition of Potenciano Ilusorio 9 is to annul that portion of the
decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband
and to enjoin Erlinda and the Court of Appeals from enforcing the visitation rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at
millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the
Board and President of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and
lived together for a period of thirty (30) years. In 1972, they separated from bed and
board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave.,
Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country Club
when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age
55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age
48); and Shereen (age 39).
On December 30, 1997, upon Potencianos arrival from the United States, he stayed
with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and Erlinda
(Lin), alleged that during this time, their mother gave Potenciano an overdose of 200 mg
instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in New York,
U.S.A. As a consequence, Potencianos health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a
petition10 for guardianship over the person and property of Potenciano Ilusorio due to
the latters advanced age, frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano
Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium,
Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus
to have the custody of lawyer Potenciano Ilusorio. She alleged that
respondents11 refused petitioners demands to see and visit her husband and prohibited
Potenciano from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered decision the
dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby rendered:

"(1) Ordering, for humanitarian consideration and upon petitioners manifestation,

respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap, the administrator of
Cleveland Condominium or anywhere in its place, his guards and Potenciano Ilusorios
staff especially Ms. Aurora Montemayor to allow visitation rights to Potenciano Ilusorios
wife, Erlinda Ilusorio and all her children, notwithstanding any list limiting visitors
thereof, under penalty of contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be recalled and the
herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby
DISMISSED for lack of unlawful restraint or detention of the subject of the petition.
"SO ORDERED."12
Hence, the two petitions, which were consolidated and are herein jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement
or detention,13 or by which the rightful custody of a person is withheld from the one
entitled thereto. It is available where a person continues to be unlawfully denied of one
or more of his constitutional freedoms, where there is denial of due process, where the
restraints are not merely involuntary but are unnecessary, and where a deprivation of
freedom originally valid has later become arbitrary.14 It is devised as a speedy and
effectual remedy to relieve persons from unlawful restraint, as the best and only
sufficient defense of personal freedom.15 Jksm
The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint, and to relieve a person therefrom if such restraint is
illegal.16
To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. 17 The illegal restraint of liberty must be
actual and effective, not merely nominal or moral.18
The evidence shows that there was no actual and effective detention or deprivation of
lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact
that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does not
necessarily render him mentally incapacitated. Soundness of mind does not hinge on
age or medical condition but on the capacity of the individual to discern his actions.
After due hearing, the Court of Appeals concluded that there was no unlawful restraint
on his liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the
administrator of the Cleveland Condominium not to allow his wife and other children
from seeing or visiting him. He made it clear that he did not object to seeing them.
As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that he
was of sound and alert mind, having answered all the relevant questions to the
satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices. In this
case, the crucial choices revolve on his residence and the people he opts to see or live

with. The choices he made may not appeal to some of his family members but these are
choices which exclusively belong to Potenciano. He made it clear before the Court of
Appeals that he was not prevented from leaving his house or seeing people. With that
declaration, and absent any true restraint on his liberty, we have no reason to reverse
the findings of the Court of Appeals.
With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may
not be the subject of visitation rights against his free choice. Otherwise, we will deprive
him of his right to privacy. Needless to say, this will run against his fundamental
constitutional right. Es m
The Court of Appeals exceeded its authority when it awarded visitation rights in a
petition for habeas corpus where Erlinda never even prayed for such right. The ruling is
not consistent with the finding of subjects sanity.
When the court ordered the grant of visitation rights, it also emphasized that the same
shall be enforced under penalty of contempt in case of violation or refusal to comply.
Such assertion of raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of a parent
to visit a minor child but the right of a wife to visit a husband. In case the husband
refuses to see his wife for private reasons, he is at liberty to do so without threat of any
penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with his wife.
Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by
sheriffs or by any other mesne process. That is a matter beyond judicial authority and is
best left to the man and womans free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit.
No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the
Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No
costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.
5/31/00 10:02 AM

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 111876

January 31, 1996

JOHANNA SOMBONG, petitioner,

vs.
COURT OF APPEALS and MARIETTA NERI ALVIAR, LILIBETH NERI and all
persons holding the subject child ARABELA SOMBONG in their
custody, respondents.
DECISION
HERMOSISIMA, JR., J.:
Every so often two women claim to be the legitimate parent of the same child. One or
the other, whether for financial gain or for sheer cupidity, should be an impostor. The
court is consequently called upon to decide as to which of them should have the child's
lawful custody. This is the very nature of this case. The child herein had considerably
grown through the years that this controversy had unbearably lagged. The wisdom of
the ages should be of some help, delicate as the case considerably is. The earliest
recorded decision on the matter is extant in the Bible, I Kings 3. As it appears, King
Solomon in all his glory resolved the controversy posed by two women claiming the
same child:
And the King said, Bring me a sword. And they brought a sword before the King.
And the King said, Divide the living child in two, and give half to the one, and half
to the other.
Then spoke the woman whose the living child was unto the King, for her bowels
yearned upon her son, and she said, O my Lord, give her the living child, and in
no wise slay it. But the other said, Let it be neither mine nor thine, but divide it.
Then the King answered and said, Give her the living child, and in no wise slay it:
she is the mother thereof. (1 Kings, Chapter 3, Verses 25-27)
King Solomon's wisdom, was inspired by God:
And all Israel heard of the judgment which the King had judged; and they feared
the King: for they saw that the wisdom of God was in him, to do judgment. (Ibid,
Verse 28)
We do resolve the herein controversy inspired by God's own beloved King.
The Petition for Review on Certiorari before us seeks the reversal of the decision1 of
respondent Court of Appeals2 which had reversed the decision3 of the Regional Trial
Court4 which granted the Petition for Habeas Corpus filed by petitioner.

The following facts were developed by the evidence presented by the opposing parties:
Petitioner is the mother of Arabella O. Sombong who was born on April 23, 1987 in
Signal Village, Taguig, Metro Manila.5 Some time in November, 1987, Arabella, then only
six months old, was brought to the Sir John Clinic, located at 121 First Avenue,
Kaloocan City, for relief of coughing fits and for treatment of colds. Petitioner did not
have enough money to pay the hospital bill in the amount of P300.00. Arabella could not
be discharged, then, because of the petitioner's failure to pay the bill. Petitioner
surprisingly gave testimony to the effect that she allegedly paid the private respondents
by installments in the total amount of P1,700.00, knowing for a fact that the sum
payable was only P300.00. Despite such alleged payments, the owners of the clinic,
Dra. Carmen Ty and her husband, Mr. Vicente Ty, allegedly refused to turn over Arabella
to her. Petitioner claims that the reason for such a refusal was that she refused to go out
on a date with Mr. Ty, who had been courting her. This allegedly gave Dra. Ty a reason
to be jealous of her, making it difficult for everyone all around.
On the other hand and in contrast to her foregoing allegations, petitioner testified that
she visited Arabella at the clinic only after two years, i.e., in 1989. This time, she did not
go beyond berating the spouses Ty for their refusal to give Arabella to her. Three years
thereafter, i.e., in 1992, petitioner again resurfaced to lay claim to her child. Her pleas
allegedly fell on deaf ears.
Consequently, on May 21, 1992, petitioner filed a petition with the Regional Trial Court
of Quezon City for the issuance of a Writ of Habeas Corpus against the spouses Ty.
She alleged therein that Arabella was being unlawfully detained and imprisoned at No.
121, First Avenue, Grace Park, Kalookan City. The petition was denied due course and
summarily dismissed,6 without prejudice, on the ground of lack of jurisdiction, the
alleged detention having been perpetrated in Kalookan City.
Petitioner, thereafter, filed a criminal complaint 7 with the Office of the City Prosecutor of
Kalookan City against the spouses Ty. Dr. Ty, in her counter-affidavit, admitted that
petitioner's child, Arabella, had for some time been in her custody. Arabella was
discharged from the clinic in April, 1989, and was, in the presence of her clinic staff,
turned over to someone who was properly identified to be the child's guardian.
In the face of the refusal of the spouses Ty to turn over Arabella to her, she had sought
the help of Barangay Captains Alfonso and Bautista of Kalookan City, Mayor Asistio of
the same city, and even Congresswoman Hortensia L. Starke of Negros Occidental.
Their efforts to help availed her nothing.
On September 4, 1992, the Office of the City Prosecutor of Kalookan City, on the basis
of petitioner's complaint, filed an information 8 against the spouses Ty for Kidnapping and
Illegal Detention of a Minor before the Regional Trial Court of Kalookan City.9 On
September 16, 1992, an order for the arrest of the spouses Ty was issued in the
criminal case. Facing arrest, Dra. Ty disclosed the possibility that the child, Arabella,
may be found at No. 23 Jesus Street, San Francisco del Monte, Quezon City. The
agents of the National Bureau of Investigation went to said address and there found a
female child who answered to the name of Cristina Grace Neri. Quite significantly, the
evidence disclosed that the child, Cristina, had been living with respondent Marietta Neri
Alviar since 1988. When she was just a baby, Cristina was abandoned by her parents at

the Sir John Clinic. On April 18, 1988, Dr. Fe Mallonga, a dentist at the Sir John Clinic
and niece of both Dra. Ty and respondent Alviar, called the latter up to discuss the
possibility of turning over to her care one of the several abandoned babies at the said
clinic. Respondent Alviar was told that this baby whose name was unknown had long
been abandoned by her parents and appeared to be very small, very thin, and full of
scabies. Taking pity on the baby, respondent Alviar and her mother, Maura Salacup
Neri, decided to take care of her. This baby was baptized at the Good Samaritan
Church on April 30, 1988. Her Certificate of Baptism 10 indicates her name to be Cristina
Grace S. Neri; her birthday to be April 30, 1987; her birthplace to be Quezon City; and
her foster father and foster mother to be Cicero Neri and Maura Salacup, respectively.
Respondent Alviar was invited by the National Bureau of Investigation for questioning
on September 22, 1992 in the presence of Dra. Ty and petitioner. Cristina was also
brought along by said respondent. At that confrontation, Dra. Ty could not be sure that
Cristina was indeed petitioner's child, Arabella. Neither could petitioner with all certainty
say that Cristina was her long lost daughter.
On October 13, 1992, petitioner filed a petition for the issuance of a Writ of Habeas
Corpus with the Regional Trial Court11 of Quezon City. The trial court conducted a total
of eight (8) hearings, for the period, from October 28, 1992 to December 11, 1992. On
January 15, 1993, it rendered a decision granting the Petition for Habeas Corpusand
ordering respondent Alviar to immediately deliver the person of Cristina Grace Neri to
the petitioner, the court having found Cristina to be the petitioner's long lost child,
Arabella.
The trial court, in justification of its conclusions, discussed that:
On the issue of whether or not the minor child, in question, is the daughter of the
petitioner, there seems to be no question, to the mind of this Court, that the
petitioner, is, indeed, the mother of the child, registered by the name of Arabella
O. Sombong, per her Certificate of Birth . . . and later caused to be baptized as
Cristina Grace S. Nery (sic) . . . For, this child is the same child which was
delivered by the Sir John Clinic at Kalookan City, owned by Dra. Carmen Ty, to
Dra. Fe Mallonga and later given to the custody of the respondents. In fact, Dra.
Carmen Ty, in her testimony admitted that the petitioner is the mother of
Arabella . . .
On the question of whether or not the petitioner has the rightful custody of the
minor child, in question, which is being withheld by the respondents from her, as
will authorize the granting of the petition for habeas corpus . . . there is no
question that the minor . . . is only about five (5) years old . . . it follows that the
child must not be separated from the mother, who is the petitioner, unless, of
course, this Court finds compelling reasons to order otherwise.
Heretofore, under the New Civil Code of the Philippines, the compelling reasons
which may deprive the parents of their authority or suspend exercise thereof are
stated. It was then provided in Article 332, supra, that:
The courts may deprive the parents of their authority . . . if they should
treat their children with excessive harshness . . . or abandon them. . . .
(Emphasis supplied by the RTC)

Unfortunately, the foregoing article, which was under Title XI, parental authority,
was expressly repealed by Article 254 of the Family Code of the Philippines . . .
xxx

xxx

xxx

It can be seen, therefore, that the words "or abandoned them" mentioned in
Article 332 of the New Civil Code . . . is (sic) no longer mentioned in the
amending (of) Art. 231 of the Family Code of the Philippines.
It is clear . . . that under the law presently controlling, abandonment is no longer
considered a compelling reason upon the basis of which the Court may separate
the child below seven (7) years old from the mother.
Conceivably, however, in paragraph 6 of Article 231, supra, the effects of
culpable negligence on the part of the parent may be considered by this Court in
suspending petitioner's parental authority over her daughter, in question . . .
The question, therefore, is whether there is culpable negligence on the part of the
petitioner so that her parental authority over her child, in question, may at least
be suspended by this Court.
This Court is not persuaded that the petitioner is guilty of culpable
negligence vis-a-vis her daughter, in question, upon the bases of the facts
adduced. For, there is no question that from April, 1988 she kept on demanding
from Dra. Carmen Ty . . . the return of her child to her but the latter refused even
to see her or to talk to her. Neither did Vicente Ty, the husband of Dra. Carmen
Ty, respond to her entreaties to return her daughter.
xxx

xxx

xxx

Besides, in the interim, while petitioner was looking for her daughter, she made
representations for her recovery with Barangay Captains Alfonso and Bautista,
and Mayor Asistio, all of Kalookan City, as well as with Congresswoman
Hortensia L. Starke to intervene in her behalf.
It cannot be said, therefore, no matter how remotely, that the petitioner was
negligent, nay culpably, in her efforts for the recovery of her daughter.
xxx

xxx

xxx

Certainly, the respondents have no right to the parental authority of the child,
superior to that of the petitioner as they are not her parents. They have,
therefore, no right to the custody of petitioner's daughter. The Sir John Clinic, or
Dra. Carmen Ty, have (sic) no right to deliver the child, in question, to Dra. Fe
Mallonga. Neither had the latter the right and the authority to gave (sic) the child
to the respondents, whose custody of petitioner's daughter is, consequently,
illegal.12
Herein private respondents filed an appeal from the decision of the Regional Trial Court
to the Court of Appeals. The Appellate Court took cognizance of the following issues: (1)
The propriety of the habeas corpus proceedingvis-a-vis the problem respecting the

identity of the child subject of said proceeding; (2) If indeed petitioner be the mother of
the child in question, what the effect would proof of abandonment be under the
circumstances of the case; and (3) Will the question of the child's welfare be the
paramount consideration in this case which involves child custody.
The Court of Appeals reversed and set aside the decision of the trial court, ruling as it
did that:
. . . the lower court erred in sweepingly concluding that petitioner's child Arabella
Sombong and respondents' foster child Cristina Neri are one and the same
person to warrant the issuance of the writ. . . .
As clearly stated in the facts of this case, not even petitioner herself could
recognize her own child when respondents' foster child Cristina Neri was
presented to her before the NBI and respondent court. Dr. Carmen Ty at the NBI
investigation could not also ascertain whether or not Cristina Neri and petitioner's
missing child are one and the same person.
Before the lower court, petitioner-appellee presented two physicians from the Sir
John Clinic, namely, Dr. Carmen Ty and Dr. Angelina Trono to identify the child in
question. But both witnesses could not positively declare that Cristina Neri is the
same missing child Arabella Sombong of petitioner. Dr. Trono even declared in
court that there were other babies left in the clinic and that she could not be
certain which baby was given to respondents (pp. 48-49, tsn, Nov. 10, 1992). . . .
Petitioner, herself, could not identify her own child, prompting the respondent
court to call for child Cristina Neri to come forward near the bench for comparison
of her physical features with that of her alleged mother, the petitioner (p. 32, tsn,
Nov. 5, 1992). After a comparison of petitioner and Cristina Neri's physical
features, the lower court found no similarity and to which petitioner agreed
claiming that said child looked like her sister-in-law (p. 33, id.). When the lower
court instructed petitioner to bring said sister-in-law in the next hearing, petitioner
stated they were not on good terms (p. 34, id.) No one, therefore, up to this time
has come forward to testify as a witness in order to positively identify
respondents' child Cristina Neri to be one and the same as petitioner's missing
child, Arabella Sombong.
xxx

xxx

xxx

The issuance of a writ of habeas corpus does not lie in this case considering that
petitioner is not entitled to the custody of Cristina Neri because she is not the
mother of the said child, and does not have the right to have custody over said
child.
xxx

xxx

xxx

We do not agree with the lower court that the ground of abandonment of a child
has been repealed by Art. 231 of the Family Code for abandonment can also be
included under the phrase "cases which have resulted from culpable negligence
of the parent" (par. 2, Art. 231 of the Family Code). What can be the worst
culpable negligence of a parent than abandoning her own child. This court does
not believe petitioner-appellee's explanation that she had been negotiating for the

discharge of her child for the past five years. That was too long a time for
negotiation when she could have filed immediately a complaint with the
authorities or the courts . . .
As to the issue of the welfare of the child, petitioner-appellee's capability to give
her child the basic needs and guidance in life appear (sic) to be bleak. Before the
lower court petitioner-appellee filed a motion to litigate as pauper as she had no
fixed income. She also admitted that she had no stable job, and she had been
separated from a man previously married to another woman. She also confessed
that she planned to go abroad and leave her other child Johannes to the care of
the nuns. The child Arabella Sombong wherever she is certainly does not face a
bright prospect with petitioner-appellee.13
This prompted the petitioner to file this petition.
We do not find the petition to be meritorious.
While we sympathize with the plight of petitioner who has been separated from her
daughter for more than eight years, we cannot grant her the relief she is seeking,
because the evidence in this case does not support a finding that the child, Cristina, is
in truth and in fact her child, Arabella; neither is there sufficient evidence to support the
finding that private respondents' custody of Cristina is so illegal as to warrant the grant
of a Writ of Habeas Corpus. In general, the purpose of the writ of habeas corpus is to
determine whether or not a particular person is legally held. A prime specification of an
application for a writ of habeas corpus, in fact, is an actual and effective, and not merely
nominal or moral, illegal restraint of liberty. "The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and
as the best and only sufficient defense of personal freedom. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is
illegal. Any restraint which will preclude freedom of action is sufficient." 14
Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of
liberty must be in the nature of an illegal and involuntary deprivation of freedom of
action. This is the basic requisite under the first part of Section 1, Rule 102, of the
Revised Rules of Court, which provides that "except as otherwise expressly provided by
law, the writ of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty."
In the second part of the same provision, however, Habeas Corpus may be resorted to
in cases where "the rightful custody of any person is withheld from the person entitled
thereto." Thus, although the writ of Habeas Corpus ought not to be issued if the restraint
is voluntary, we have held time and again that the said writ is the proper legal remedy to
enable parents to regain the custody of a minor child even if the latter be in the custody
of a third person of her own free will. 15
It may even be said that in custody cases involving minors, the question of illegal and
involuntary restraint of liberty is not the underlying rationale for the availability of the writ

as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of
determining the right of custody over a child.
The controversy does not involve the question of personal freedom, because an infant
is presumed to be in the custody of someone until he attains majority age. In passing on
the writ in a child custody case, the court deals with a matter of an equitable nature. Not
bound by any mere legal right of parent or guardian, the court gives his or her claim to
the custody of the child due weight as a claim founded on human nature and considered
generally equitable and just. Therefore, these cases are decided, not on the legal right
of the petitioner to be relieved from unlawful imprisonment or detention, as in the case
of adults, but on the court's view of the best interests of those whose welfare requires
that they be in custody of one person or another. Hence, the court is not bound to
deliver a child into the custody of any claimant or of any person, but should, in the
consideration of the facts, leave it in such custody as its welfare at the time appears to
require. In short, the child's welfare is the supreme consideration.
Considering that the child's welfare is an all-important factor in custody cases, the Child
and Youth Welfare Code16 unequivocally provides that in all questions regarding the
care and custody, among others, of the child, his welfare shall be the paramount
consideration.17 In the same vein, the Family Code authorizes the courts to, if the
welfare of the child so demands, deprive the parents concerned of parental authority
over the child or adopt such measures as may be proper under the circumstances. 18
The foregoing principles considered, the grant of the writ in the instant case will all
depend on the concurrence of the following requisites: (1) that the petitioner has the
right of custody over the minor; (2) that the rightful custody of the minor is being
withheld from the petitioner by the respondent; and (3) that it is to the best interest of
the minor concerned to be in the custody of petitioner and not that of the respondent.
Not all of these requisites exist in this case. The dismissal of this petition is thus
warranted.
I
As to the question
of identity.
Petitioner does not have the right of custody over the minor Cristina because, by the
evidence disclosed before the court a quo, Cristina has not been shown to be
petitioner's daughter, Arabella. The evidence adduced before the trial court does not
warrant the conclusion that Arabella is the same person as Cristina. It will be
remembered that, in habeas corpus proceedings, the question of identity is relevant and
material, subject to the usual presumptions including those as to identity of
person.19 These presumptions may yield, however, to the evidence proffered by the
parties.
Identity may be thought of as a quality of a person or thing, the quality of
sameness with another person or thing. The essential assumption is that two
persons or things are first thought of as existing, and that then the one is alleged,
because of common features, to be the same as the other.20

Evidence must necessarily be adduced to prove that two persons, initially thought of to
be distinct and separate from each other, are indeed one and the same. The process is
both logical and analytical.
. . . it operates by comparing common marks found to exist in the two supposed
separate objects of thought, with reference to the possibility of their being the
same. It follows that its force depends on the necessariness of the association
between the mark and a single object. Where a certain circumstance, feature, or
mark, may commonly be found associated with a large number of objects, the
presence of that feature or mark in two supposed objects is little indication of
their identity, because . . . the other conceivable hypotheses are so
numerous, i.e., the objects that possess that mark are numerous and therefore
any two of them possessing it may well be different. But where the objects
possessing the mark are only one or a few, and the mark is found in two
supposed instances, the chances of two being different are "nil" or are
comparatively small.
Hence, in the process of identification of two supposed objects, by a common
mark, the force of the inference depends on the degree of necessariness of
association of that mark with a single object.
For simplicity's sake, the evidential circumstance may thus be spoken of as "a
mark." But in practice it rarely occurs that the evidential mark is a single
circumstance. The evidencing feature is usually a group of circumstances, which
as a whole constitute a feature capable of being associated with a single object.
Rarely can one circumstance alone be so inherently peculiar to a single object. It
is by adding circumstance to circumstance that we obtain a composite feature or
mark which as a whole cannot be supposed to be associated with more than a
single object.
The process of constructing an inference of identity thus consists usually in
adding together a number of circumstances, each of which by itself might be a
feature of many objects, but all of which together make it more probable that they
co-exist in a single object only. Each additional circumstance reduces the
chances of there being more than one object so associated. 21
In the instant case, the testimonial and circumstantial proof establishes the individual
and separate existence of petitioner's child, Arabella, from that of private respondents'
foster child, Cristina.
We note, among others, that Dr. Trono, who is petitioner's own witness, testified in court
that, together with Arabella, there were several babies left in the clinic and so she could
not be certain whether it was Arabella or some other baby that was given to private
respondents. Petitioner's own evidence shows that, after the confinement of Arabella in
the clinic in 1987, she saw her daughter again only in 1989 when she visited the clinic.
This corroborates the testimony of petitioner's own witness, Dra. Ty, that Arabella was
physically confined in the clinic from November, 1987 to April, 1989. This testimony
tallies with her assertion in her counter-affidavit to the effect that Arabella was in the
custody of the hospital until April, 1989. All this, when juxtaposed with the unwavering
declaration of private respondents that they obtained custody of Cristina in April, 1988

and had her baptized at the Good Samaritan Church on April 30, 1988, leads to the
conclusion that Cristina is not Arabella.
Significantly, Justice Lourdes K. Tayao-Jaguros, herself a mother and the ponente of the
herein assailed decision, set the case for hearing on August 30, 1993 primarily for the
purpose of observing petitioner's demeanor towards the minor Cristina. She made the
following personal but relevant manifestation:
The undersigned ponente as a mother herself of four children, wanted to see
how petitioner as an alleged mother of a missing child supposedly in the person
of Cristina Neri would react on seeing again her long lost child. The petitioner
appeared in the scheduled hearing of this case late, and she walked inside the
courtroom looking for a seat without even stopping at her alleged daughter's
seat; without even casting a glance on said child, and without even that tearful
embrace which characterizes the reunion of a loving mother with her missing
dear child. Throughout the proceedings, the undersigned ponente noticed no
signs of endearment and affection expected of a mother who had been deprived
of the embrace of her little child for many years. The conclusion or finding of
undersigned ponente as a mother, herself, that petitioner-appellee is not the
mother of Cristina Neri has been given support by aforestated observation . . . 22
The process of constructing an inference of identity having earlier been explained to
consist of adding one circumstance to another in order to obtain a composite feature or
mark which as a whole cannot be supposed to be associated with more than a single
object, the reverse is also true, i.e., when one circumstance is added to another, and the
result is a fortification of the corporeality of each of the two objects the identity of which
is being sought to be established, the nexus of circumstances correspondingly multiply
the chances of there being more than one object so associated. This is the situation that
confronts us in this case, and so the inevitable but sad conclusion that we must make is
that petitioner has no right of custody over the minor Cristina, because Cristina is not
identical with her missing daughter Arabella.
II
Private respondents
not unlawfully
withholding custody.
Since we hold that petitioner has not been established by evidence to be entitled to the
custody of the minor Cristina on account of mistaken identity, it cannot be said that
private respondents are unlawfully withholding from petitioner the rightful custody over
Cristina. At this juncture, we need not inquire into the validity of the mode by which
private respondents acquired custodial rights over the minor, Cristina. This matter is not
ripe for adjudication in this instant petition for habeas corpus.
III
Private respondents
have the interest of
the child Cristina at
heart.

We find that private respondents are financially, physically and spiritually in a better
position to take case of the child, Cristina. They have the best interest of Cristina at
heart. On the other hand, it is not to the best interest of the minor, Cristina, to be placed
in the custody of petitioner, had the petitioner's custody rights over Cristina been
established. The Court of Appeals gave the reason:
As to the issue of the welfare of the child, petitioner-appellee's capability to give
her child the basic needs and guidance in life appear (sic) to be bleak. Before the
lower court petitioner-appellee filed a motion to litigate as pauper as she had no
fixed income. She also admitted that she had no stable job, and she had been
separated from a man previously married to another woman. She also confessed
that she planned to go abroad and leave her other child Johannes to the care of
the nuns. The child Arabella Sombong wherever she is certainly does not face a
bright prospect with petitioner-appellee.23
In the light of the aforegoing premises, we are constrained to rule that Habeas
Corpus does not lie to afford petitioner the relief she seeks.
WHEREFORE, the appealed decision of the Court of Appeals in CA-G.R. SP No. 30574
is AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.
Padilla, Bellosillo, Vitug and Kapunan, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 154598

August 16, 2004

IN THE MATTER OF APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS

CORPUS
RICHARD BRIAN THORNTON for and in behalf of the minor child SEQUEIRA
JENNIFER DELLE FRANCISCO THORNTON, petitioner,
vs.
ADELFA FRANCISCO THORNTON, respondent.

DECISION

CORONA, J.:
This is a petition to review, under Rule 45 of the Rules of Court, the July 5, 2002
resolution1 of the Court of Appeals, Sixteenth Division, in CA G.R. SP No. 70501
dismissing the petition for habeas corpus on the grounds of lack of jurisdiction and lack
of substance. The dispositive portion2 read:
WHEREFORE, the Court DISMISSES the petition for habeas corpus on the
grounds that: a) this Court has no jurisdiction over the subject matter of the
petition; and b) the petition is not sufficient in substance.
Petitioner, an American, and respondent, a Filipino, were married on August 28, 1998 in
the Catholic Evangelical Church at United Nations Avenue, Manila. A year later,
respondent gave birth to a baby girl whom they named Sequeira Jennifer Delle
Francisco Thornton.
However, after three years, respondent grew restless and bored as a plain housewife.
She wanted to return to her old job as a "guest relations officer" in a nightclub, with the
freedom to go out with her friends. In fact, whenever petitioner was out of the country,
respondent was also often out with her friends, leaving her daughter in the care of the
househelp.
Petitioner admonished respondent about her irresponsibility but she continued her
carefree ways. On December 7, 2001, respondent left the family home with her
daughter Sequiera without notifying her husband. She told the servants that she was
bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan, Basilan Province.
Petitioner filed a petition for habeas corpus in the designated Family Court in Makati
City but this was dismissed, presumably because of the allegation that the child was in
Basilan. Petitioner then went to Basilan to ascertain the whereabouts of respondent and
their daughter. However, he did not find them there and the barangay office of Sta.

Clara, Lamitan, Basilan, issued a certification 3 that respondent was no longer residing
there.
Petitioner gave up his search when he got hold of respondents cellular phone bills
showing calls from different places such as Cavite, Nueva Ecija, Metro Manila and other
provinces. Petitioner then filed another petition for habeas corpus, this time in the Court
of Appeals which could issue a writ of habeas corpus enforceable in the entire country.
However, the petition was denied by the Court of Appeals on the ground that it did not
have jurisdiction over the case. It ruled that since RA 8369 (The Family Courts Act of
1997) gave family courts exclusive original jurisdiction over petitions for habeas corpus,
it impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of
Appeals) and Batas Pambansa 129 (The Judiciary Reorganization Act of 1980):
Under Sec. 9 (1), BP 129 (1981) the Intermediate Appellate Court (now Court of
Appeals) has jurisdiction to issue a writ of habeas corpus whether or not in aid of
its appellate jurisdiction. This conferment of jurisdiction was re-stated in Sec. 1,
RA 7902 (1995), an act expanding the jurisdiction of this Court. This jurisdiction
finds its procedural expression in Sec. 1, Rule 102 of the Rules of Court.
In 1997, RA 8369 otherwise known as Family Courts Act was enacted. It
provides:
Sec. 5. Jurisdiction of Family Court. The Family Courts shall have
exclusive original jurisdiction to hear and decide the following cases:
xxx

xxx

xxx

b. Petition for guardianship, custody of children, habeas corpus in

relation to the latter.
The vital question is, did RA 8369 impliedly repeal BP 129 and RA 7902 insofar
as the jurisdiction of this Court to issue writ of habeas corpus in custody of minor
cases is concerned? The simple answer is, yes, it did, because there is no other
meaning of the word "exclusive" than to constitute the Family Court as the sole
court which can issue said writ. If a court other than the Family Court also
possesses the same competence, then the jurisdiction of the former is not
exclusive but concurrent and such an interpretation is contrary to the simple
and clear wording of RA 8369.
Petitioner argues that unless this Court assumes jurisdiction over a petition for
habeas corpus involving custody of minors, a respondent can easily evade the
service of a writ of habeas corpus on him or her by just moving out of the region
over which the Regional Trial Court issuing the writ has territorial jurisdiction.
That may be so but then jurisdiction is conferred by law. In the absence of a law
conferring such jurisdiction in this Court, it cannot exercise it even if it is
demanded by expediency or necessity.
Whether RA 8369 is a good or unwise law is not within the authority of this Court
or any court for that matter to determine. The enactment of a law on
jurisdiction is within the exclusive domain of the legislature. When there is a
perceived defect in the law, the remedy is not to be sought form the courts but
only from the legislature.
The only issue before us therefore is whether the Court of Appeals has jurisdiction to
issue writs of habeas corpus in cases involving custody of minors in the light of the

provision in RA 8369 giving family courts exclusive original jurisdiction over such
petitions.
In his comment, the Solicitor General points out that Section 20 of the Rule on Custody
of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-0404-SC, effective May 15, 2003) has rendered the issue moot. Section 20 of the rule
provides that a petition for habeas corpus may be filed in the Supreme Court, 4 Court of
Appeals, or with any of its members and, if so granted, the writ shall be enforceable
anywhere in the Philippines.5
The petition is granted.
The Court of Appeals should take cognizance of the case since there is nothing in RA
8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of
minors.
The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129
since, by giving family courts exclusive jurisdiction over habeas corpus cases, the
lawmakers intended it to be the sole court which can issue writs of habeas corpus. To
the court a quo, the word "exclusive" apparently cannot be construed any other way.
We disagree with the CAs reasoning because it will result in an iniquitous situation,
leaving individuals like petitioner without legal recourse in obtaining custody of their
children. Individuals who do not know the whereabouts of minors they are looking for
would be helpless since they cannot seek redress from family courts whose writs are
enforceable only in their respective territorial jurisdictions. Thus, if a minor is being
transferred from one place to another, which seems to be the case here, the petitioner
in a habeas corpus case will be left without legal remedy. This lack of recourse could not
have been the intention of the lawmakers when they passed the Family Courts Act of
1997. As observed by the Solicitor General:
Under the Family Courts Act of 1997, the avowed policy of the State is to "protect
the rights and promote the welfare of children." The creation of the Family Court
is geared towards addressing three major issues regarding childrens welfare
cases, as expressed by the legislators during the deliberations for the law. The
legislative intent behind giving Family Courts exclusive and original jurisdiction
over such cases was to avoid further clogging of regular court dockets, ensure
greater sensitivity and specialization in view of the nature of the case and the
parties, as well as to guarantee that the privacy of the children party to the case
remains protected.
The primordial consideration is the welfare and best interests of the child. We rule
therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of
their jurisdiction over habeas corpus cases involving the custody of minors. Again, to
quote the Solicitor General:
To allow the Court of Appeals to exercise jurisdiction over the petition for habeas
corpus involving a minor child whose whereabouts are uncertain and transient
will not result in one of the situations that the legislature seeks to avoid. First, the
welfare of the child is paramount. Second, the ex parte nature of habeas corpus
proceedings will not result in disruption of the childs privacy and emotional wellbeing; whereas to deprive the appellate court of jurisdiction will result in the evil
sought to be avoided by the legislature: the childs welfare and well being will be
prejudiced.
This is not the first time that this Court construed the word "exclusive" as not foreclosing
resort to another jurisdiction. As correctly cited by the Solicitor General, in Floresca vs.

Philex Mining Corporation,6 the heirs of miners killed in a work-related accident were
allowed to file suit in the regular courts even if, under the Workmens Compensation Act,
the Workmens Compensation Commissioner had exclusive jurisdiction over such
cases.
We agree with the observations of the Solicitor General that:
While Floresca involved a cause of action different from the case at bar. it
supports petitioners submission that the word "exclusive" in the Family Courts
Act of 1997 may not connote automatic foreclosure of the jurisdiction of other
courts over habeas corpus cases involving minors. In the same manner that the
remedies in the Floresca case were selective, the jurisdiction of the Court of
Appeals and Family Court in the case at bar is concurrent. The Family Court can
issue writs of habeas corpus enforceable only within its territorial jurisdiction. On
the other hand, in cases where the territorial jurisdiction for the enforcement of
the writ cannot be determined with certainty, the Court of Appeals can issue the
same writ enforceable throughout the Philippines, as provided in Sec. 2, Rule
102 of the Revised Rules of Court, thus:
The Writ of Habeas Corpus may be granted by the Supreme Court, or any
member thereof, on any day and at any time, or by the Court of Appeals
or any member thereof in the instances authorized by law, and if so
granted it shall be enforceable anywhere in the Philippines, and may be
made returnable before the court or any member thereof, or before a
Court of First Instance, or any judge thereof for hearing and decision on
the merits. It may also be granted by a Court of First Instance, or a judge
thereof, on any day and at any time, and returnable before himself,
enforceable only within his judicial district. (Emphasis supplied)
In ruling that the Commissioners "exclusive" jurisdiction did not foreclose resort to the
regular courts for damages, this Court, in the same Floresca case, said that it was
merely applying and giving effect to the constitutional guarantees of social justice in the
1935 and 1973 Constitutions and implemented by the Civil Code. It also applied the
well-established rule that what is controlling is the spirit and intent, not the letter, of the
law:
"Idolatrous reverence" for the law sacrifices the human being. The spirit of the
law insures mans survival and ennobles him. In the words of Shakespeare, "the
letter of the law killeth; its spirit giveth life."
xxx

xxx

xxx

It is therefore patent that giving effect to the social justice guarantees of the
Constitution, as implemented by the provisions of the New Civil Code, is not an
exercise of the power of law-making, but is rendering obedience to the mandates
of the fundamental law and the implementing legislation aforementioned.
Language is rarely so free from ambiguity as to be incapable of being used in more than
one sense. Sometimes, what the legislature actually had in mind is not accurately
reflected in the language of a statute, and its literal interpretation may render it
meaningless, lead to absurdity, injustice or contradiction. 7 In the case at bar, a literal
interpretation of the word "exclusive" will result in grave injustice and negate the policy
"to protect the rights and promote the welfare of children" 8 under the Constitution and
the United Nations Convention on the Rights of the Child. This mandate must prevail
over legal technicalities and serve as the guiding principle in construing the provisions
of RA 8369.

Moreover, settled is the rule in statutory construction that implied repeals are not
favored:
The two laws must be absolutely incompatible, and a clear finding thereof must
surface, before the inference of implied repeal may be drawn. The rule is
expressed in the maxim, interpretare et concordare leqibus est optimus
interpretendi, i.e., every statute must be so interpreted and brought into accord
with other laws as to form a uniform system of jurisprudence. The fundament is
that the legislature should be presumed to have known the existing laws on the
subject and not have enacted conflicting statutes. Hence, all doubts must be
resolved against any implied repeal, and all efforts should be exerted in order to
harmonize and give effect to all laws on the subject." 9
The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the
Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the
custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092
and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of
Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving
the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with
RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of
Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at
issue.
In any case, whatever uncertainty there was has been settled with the adoption of A.M.
No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation
to Custody of Minors. Section 20 of the rule provides that:
Section 20. Petition for writ of habeas corpus.- A verified petition for a writ
of habeas corpus involving custody of minors shall be filed with the Family Court.
The writ shall be enforceable within its judicial region to which the Family Court
belongs.
xxx

xxx

xxx

The petition may likewise be filed with the Supreme Court, Court of Appeals, or
with any of its members and, if so granted, the writ shall be enforceable
anywhere in the Philippines. The writ may be made returnable to a Family Court
or to any regular court within the region where the petitioner resides or where the
minor may be found for hearing and decision on the merits. (Emphasis Ours)
From the foregoing, there is no doubt that the Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in habeas corpus cases where the
custody of minors is involved.
One final note. Requiring the serving officer to search for the child all over the country
is not an unreasonable availment of a remedy which the Court of Appeals cited as a
ground for dismissing the petition. As explained by the Solicitor General: 10
That the serving officer will have to "search for the child all over the country" does
not represent an insurmountable or unreasonable obstacle, since such a task is
no more different from or difficult than the duty of the peace officer in effecting a
warrant of arrest, since the latter is likewise enforceable anywhere within the
Philippines.
WHEREFORE, the petition is hereby GRANTED. The petition for habeas corpus in CAG.R.-SP-No. 70501 is hereby REINSTATED and REMANDED to the Court of Appeals,
Sixteenth Division.

SO ORDERED.
Panganiban,, J., Chairman, and Carpio Morales, JJ., concur.
Sandoval-Gutierrez, on leave.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 159374

July 12, 2007

FELIPE N. MADRIAN, Petitioner,

vs.
FRANCISCA R. MADRIAN, Respondent.
DECISION
CORONA, J.:
When a family breaks up, the children are always the victims. The ensuing battle for
custody of the minor children is not only a thorny issue but also a highly sensitive and
heart-rending affair. Such is the case here. Even the usually technical subject of
jurisdiction became emotionally charged.
Petitioner Felipe N. Madrian and respondent Francisca R. Madrian were married on
July 7, 1993 in Paraaque City. They resided in San Agustin Village, Brgy. Moonwalk,
Paraaque City.
Their union was blessed with three sons and a daughter: Ronnick, born on January 30,
1994; Phillip, born on November 19, 1996; Francis Angelo, born on May 12, 1998 and
Krizia Ann, born on December 12, 2000.
After a bitter quarrel on May 18, 2002, petitioner allegedly left their conjugal abode and
took their three sons with him to Ligao City, Albay and subsequently to Sta. Rosa,

Laguna. Respondent sought the help of her parents and parents-in-law to patch things
up between her and petitioner to no avail. She then brought the matter to theLupong
Tagapamayapa in their barangay but this too proved futile.
Thus respondent filed a petition for habeas corpus of Ronnick, Phillip and Francis
Angelo in the Court of Appeals, alleging that petitioners act of leaving the conjugal
dwelling and going to Albay and then to Laguna disrupted the education of their children
and deprived them of their mothers care. She prayed that petitioner be ordered to
appear and produce their sons before the court and to explain why they should not be
returned to her custody.
Petitioner and respondent appeared at the hearing on September 17, 2002. They
initially agreed that petitioner would return the custody of their three sons to respondent.
Petitioner, however, had a change of heart 1 and decided to file a memorandum.
On September 3, 2002, petitioner filed his memorandum 2 alleging that respondent was
unfit to take custody of their three sons because she was habitually drunk, frequently
went home late at night or in the wee hours of the morning, spent much of her time at a
beer house and neglected her duties as a mother. He claimed that, after their squabble
on May 18, 2002, it was respondent who left, taking their daughter with her. It was only
then that he went to Sta. Rosa, Laguna where he worked as a tricycle driver. He
submitted a certification from the principal of the Dila Elementary School in Sta. Rosa,
Laguna that Ronnick and Phillip were enrolled there. He also questioned the jurisdiction
of the Court of Appeals claiming that under Section 5(b) of RA 8369 (otherwise known
as the "Family Courts Act of 1997") family courts have exclusive original jurisdiction to
hear and decide the petition for habeas corpus filed by respondent.3
For her part, respondent averred that she did not leave their home on May 18, 2002 but
was driven out by petitioner. She alleged that it was petitioner who was an alcoholic,
gambler and drug addict. Petitioners alcoholism and drug addiction impaired his mental
faculties, causing him to commit acts of violence against her and their children. The
situation was aggravated by the fact that their home was adjacent to that of her in-laws
who frequently meddled in their personal problems. 4
On October 21, 2002, the Court of Appeals5 rendered a decision6 asserting its authority
to take cognizance of the petition and ruling that, under Article 213 of the Family Code,
respondent was entitled to the custody of Phillip and Francis Angelo who were at that
time aged six and four, respectively, subject to the visitation rights of petitioner. With
respect to Ronnick who was then eight years old, the court ruled that his custody should
be determined by the proper family court in a special proceeding on custody of minors
under Rule 99 of the Rules of Court.
Petitioner moved for reconsideration of the Court of Appeals decision but it was denied.
Hence, this recourse.
Petitioner challenges the jurisdiction of the Court of Appeals over the petition for habeas
corpus and insists that jurisdiction over the case is lodged in the family courts under RA
8369. He invokes Section 5(b) of RA 8369:
Section 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive
original jurisdiction to hear and decide the following cases:

xxx

xxx

xxx

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
xxx

xxx

xxx

Petitioner is wrong.
In Thornton v. Thornton,7 this Court resolved the issue of the Court of Appeals
jurisdiction to issue writs ofhabeas corpus in cases involving custody of minors in the
light of the provision in RA 8369 giving family courts exclusive original jurisdiction over
such petitions:
The Court of Appeals should take cognizance of the case since there is nothing in
RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the
custody of minors.
xxx

xxx

xxx

We rule therefore that RA 8369 did not divest the Court of Appeals and the
Supreme Court of their jurisdiction over habeas corpus cases involving the
custody of minors.
xxx

xxx

xxx

The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the
Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the
custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092
[An Act Expanding the Jurisdiction of the Court of Appeals] and BP 129 [The Judiciary
Reorganization Act of 1980] are absolutely incompatible since RA 8369 does not
prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas
corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must
be read in harmony with RA 7029 and BP 129 that family courts have concurrent
jurisdiction with the Court of Appeals and the Supreme Court in petitions
for habeas corpuswhere the custody of minors is at issue.8 (emphases supplied)
The jurisdiction of the Court of Appeals over petitions for habeas corpus was further
affirmed by A.M. No. 03-03-04-SC (April 22, 2004) in Re: Rule on Custody of Minors
and Writ of Habeas Corpus in Relation to Custody of Minors:
In any case, whatever uncertainty there was has been settled with the adoption of
A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus
in Relation to Custody of Minors. Section 20 of the rule provides that:
Section 20. Petition for writ of habeas corpus. A verified petition for a writ of habeas
corpus involving custody of minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court belongs.
xxx

xxx

xxx

The petition may likewise be filed with the Supreme Court, Court of Appeals, or
with any of its membersand, if so granted, the writ shall be enforceable anywhere in
the Philippines. The writ may be made returnable to a Family Court or to any regular
court within the region where the petitioner resides or where the minor may be found for
hearing and decision on the merits.
From the foregoing, there is no doubt that the Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in habeas corpus cases where the
custody of minors is involved.9(emphases supplied)1avvphi1
We note that after petitioner moved out of their Paraaque residence on May 18, 2002,
he twice transferred his sons to provinces covered by different judicial regions. This
situation is what the Thornton interpretation of RA 8369s provision on jurisdiction
precisely addressed:
[The reasoning that by giving family courts exclusive jurisdiction over habeas
corpus cases, the lawmakers intended them to be the sole courts which can issue writs
of habeas corpus] will result in an iniquitous situation, leaving individuals like
[respondent] without legal recourse in obtaining custody of their children. Individuals
who do not know the whereabouts of minors they are looking for would be helpless
since they cannot seek redress from family courts whose writs are enforceable only in
their respective territorial jurisdictions. Thus, if a minor is being transferred from one
place to another, which seems to be the case here, the petitioner in a habeas
corpus case will be left without legal remedy. This lack of recourse could not have
been the intention of the lawmakers when they passed [RA 8369].10
Moreover, a careful reading of Section 5(b) of RA 8369 reveals that family courts are
vested with original exclusive jurisdiction in custody cases, not in habeas corpus cases.
Writs of habeas corpus which may be issued exclusively by family courts under Section
5(b) of RA 8369 pertain to the ancillary remedy that may be availed of in conjunction
with a petition for custody of minors under Rule 99 of the Rules of Court. In other words,
the issuance of the writ is merely ancillary to the custody case pending before the family
court. The writ must be issued by the same court to avoid splitting of jurisdiction,
conflicting decisions, interference by a co-equal court and judicial instability.
The rule therefore is: when by law jurisdiction is conferred on a court or judicial officer,
all auxiliary writs, processes and other means necessary to carry it into effect may be
employed by such court or officer.11 Once a court acquires jurisdiction over the subject
matter of a case, it does so to the exclusion of all other courts, including related
incidents and ancillary matters.
Accordingly, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
RENATO C. CORONA
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 180906

October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED

FORCES OF THE PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the rest of the world
behind secret walls, they are not separated from the constitutional protection of their
basic rights. The constitution is an overarching sky that covers all in its protection. The
case at bar involves the rights to life, liberty and security in the first petition for a writ
of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation
to Section 191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on
both questions of fact and law, the Decision promulgated by the Court of Appeals in
C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and Reynaldo Manalo,
petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed Forces
of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining
Order (TRO)2 filed before this Court by herein respondents (therein petitioners) on
August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers
and agents from depriving them of their right to liberty and other basic rights. Therein
petitioners also sought ancillary remedies, Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs
under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of the
Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary
of the Department of National Defense and the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead, including but not limited to the Citizens
Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined
them from causing the arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took
effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation and

Omnibus Motion to Treat Existing Petition as AmparoPetition, to Admit Supporting

Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the
petition be considered a Petition for the Writ of Amparo under Sec. 266 of
the Amparo Rule; (2) the Court issue the writ commanding therein respondents to make
a verified return within the period provided by law and containing the specific matter
required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and
all other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the
Court, after hearing, render judgment as required in Sec. 18 7 of the Amparo Rule; and
(5) all other just and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
petition under the AmparoRule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring
them to file with the CA (Court of Appeals) a verified written return within five (5)
working days from service of the writ. We REMAND the petition to the CA and
designate the Division of Associate Justice Lucas P. Bersamin to conduct the
summary hearing on the petition on November 8, 2007 at 2:00 p.m. and decide
the petition in accordance with the Rule on the Writ of Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision in favor of therein
petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF
STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from
notice of this decision all official and unofficial reports of the investigation
undertaken in connection with their case, except those already on file
herein;
2. To confirm in writing the present places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald Caigas within five days from notice
of this decision.
3. To cause to be produced to this Court all medical reports, records and
charts, reports of any treatment given or recommended and medicines
prescribed, if any, to the petitioners, to include a list of medical and (sic)
personnel (military and civilian) who attended to them from February 14,
2006 until August 12, 2007 within five days from notice of this decision.
The compliance with this decision shall be made under the signature and oath of
respondent AFP Chief of Staff or his duly authorized deputy, the latter's authority
to be express and made apparent on the face of the sworn compliance with this
directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein
respondents:
Respondent Raymond Manalo recounted that about one or two weeks before February
14, 2006, several uniformed and armed soldiers and members of the CAFGU
summoned to a meeting all the residents of theirbarangay in San Idelfonso, Bulacan.

Respondents were not able to attend as they were not informed of the gathering, but
Raymond saw some of the soldiers when he passed by the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San
Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue
pants and army boots, entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The
armed soldier slapped him on both cheeks and nudged him in the stomach. He was
then handcuffed, brought to the rear of his house, and forced to the ground face down.
He was kicked on the hip, ordered to stand and face up to the light, then forcibly brought
near the road. He told his mother to follow him, but three soldiers stopped her and told
her to stay.12
Among the men who came to take him, Raymond recognized brothers Michael de la
Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as
lookout. They were all members of the CAFGU and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy Mendoza and Rudy Mendoza, also
members of the CAFGU. While he was being forcibly taken, he also saw outside of his
house two barangaycouncilors, Pablo Cunanan and Bernardo Lingasa, with some
soldiers and armed men.13
The men forced Raymond into a white L300 van. Once inside, he was blindfolded.
Before being blindfolded, he saw the faces of the soldiers who took him. Later, in his 18
months of captivity, he learned their names. The one who drove the van was Rizal
Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or older. The
leader of the team who entered his house and abducted him was "Ganata." He was tall,
thin, curly-haired and a bit old. Another one of his abductors was "George" who was tall,
thin, white-skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside the van and made
to sit beside Raymond. Both of them were beaten up. On the road, he recognized the
voice of the person beside him as his brother Reynaldo's. The van stopped several
times until they finally arrived at a house. Raymond and Reynaldo were each brought to
a different room. With the doors of their rooms left open, Raymond saw several soldiers
continuously hitting his brother Reynaldo on the head and other parts of his body with
the butt of their guns for about 15 minutes. After which, Reynaldo was brought to his
(Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room.
The soldiers asked him if he was a member of the New People's Army. Each time he
said he was not, he was hit with the butt of their guns. He was questioned where his
comrades were, how many soldiers he had killed, and how many NPA members he had
helped. Each time he answered none, they hit him. 15
In the next days, Raymond's interrogators appeared to be high officials as the soldiers
who beat him up would salute them, call them "sir," and treat them with respect. He was
in blindfolds when interrogated by the high officials, but he saw their faces when they
arrived and before the blindfold was put on. He noticed that the uniform of the high
officials was different from those of the other soldiers. One of those officials was tall and
thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in
Tagalog and knew much about his parents and family, and a habeas corpus case filed in
connection with the respondents' abduction. 16 While these officials interrogated him,
Raymond was not manhandled. But once they had left, the soldier guards beat him up.
When the guards got drunk, they also manhandled respondents. During this time,
Raymond was fed only at night, usually with left-over and rotten food. 17
On the third week of respondents' detention, two men arrived while Raymond was
sleeping and beat him up. They doused him with urine and hot water, hit his stomach
with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on the

mouth, and burnt some parts of his body with a burning wood. When he could no longer
endure the torture and could hardly breathe, they stopped. They then subjected
Reynaldo to the same ordeal in another room. Before their torturers left, they warned
Raymond that they would come back the next day and kill him. 18
The following night, Raymond attempted to escape. He waited for the guards to get
drunk, then made noise with the chains put on him to see if they were still awake. When
none of them came to check on him, he managed to free his hand from the chains and
jumped through the window. He passed through a helipad and firing range and stopped
near a fishpond where he used stones to break his chains. After walking through a
forested area, he came near a river and an Iglesia ni Kristo church. He talked to some
women who were doing the laundry, asked where he was and the road to Gapan. He
was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers
spotted him, forcing him to run away. The soldiers chased him and caught up with him.
They brought him to another place near the entrance of what he saw was Fort
Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled.
They poured gasoline on him. Then a so-called "Mam" or "Madam" suddenly called,
saying that she wanted to see Raymond before he was killed. The soldiers ceased the
torture and he was returned inside Fort Magsaysay where Reynaldo was detained. 20
For some weeks, the respondents had a respite from all the torture. Their wounds were
treated. When the wounds were almost healed, the torture resumed, particularly when
respondents' guards got drunk.21
Raymond recalled that sometime in April until May 2006, he was detained in a room
enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2
meters, and did everything there, including urinating, removing his bowels, bathing,
eating and sleeping. He counted that eighteen people 22 had been detained in
thatbartolina, including his brother Reynaldo and himself. 23
For about three and a half months, the respondents were detained in Fort Magsaysay.
They were kept in a small house with two rooms and a kitchen. One room was made
into the bartolina. The house was near the firing range, helipad and mango trees. At
dawn, soldiers marched by their house. They were also sometimes detained in what he
only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He checked their body and
eyes, took their urine samples and marked them. When asked how they were feeling,
they replied that they had a hard time urinating, their stomachs were aching, and they
felt other pains in their body. The next day, two ladies in white arrived. They also
examined respondents and gave them medicines, including orasol, amoxicillin and
mefenamic acid. They brought with them the results of respondents' urine test and
advised them to drink plenty of water and take their medicine. The two ladies returned a
few more times. Thereafter, medicines were sent through the "master" of the DTU,
"Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for
about two weeks. While there, he met a soldier named Efren who said that Gen.
Palparan ordered him to monitor and take care of them. 25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren
and several other armed men wearing fatigue suits, went to a detachment in Pinaud,
San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big twostorey house. Hilario and Efren stayed with them. While there, Raymond was beaten up
by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan
on board the Revo. They were detained in a big unfinished house inside the compound
of "Kapitan" for about three months. When they arrived in Sapang, Gen. Palparan talked

to them. They were brought out of the house to a basketball court in the center of the
compound and made to sit. Gen. Palparan was already waiting, seated. He was about
two arms' length away from respondents. He began by asking if respondents felt well
already, to which Raymond replied in the affirmative. He asked Raymond if he knew
him. Raymond lied that he did not. He then asked Raymond if he would be scared if he
were made to face Gen. Palparan. Raymond responded that he would not be because
he did not believe that Gen. Palparan was an evil man. 27
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba
natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na
mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa
magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa
Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na
huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na sa
gobyerno."28
Respondents agreed to do as Gen. Palparan told them as they felt they could not do
otherwise. At about 3:00 in the morning, Hilario, Efren and the former's men - the same
group that abducted them - brought them to their parents' house. Raymond was shown
to his parents while Reynaldo stayed in the Revo because he still could not walk. In the
presence of Hilario and other soldiers, Raymond relayed to his parents what Gen.
Palparan told him. As they were afraid, Raymond's parents acceded. Hilario threatened
Raymond's parents that if they continued to join human rights rallies, they would never
see their children again. The respondents were then brought back to Sapang. 29
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was
talking with the four "masters" who were there: Arman, Ganata, Hilario and
Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He was in a big white
vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to gain back his
strength and be healthy and to take the medicine he left for him and Reynaldo. He said
the medicine was expensive at Php35.00 each, and would make them strong. He also
said that they should prove that they are on the side of the military and warned that they
would not be given another chance.31 During his testimony, Raymond identified Gen.
Palparan by his picture.32
One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named "Alive," was green and yellow. Raymond and Reynaldo
were each given a box of this medicine and instructed to take one capsule a day. Arman
checked if they were getting their dose of the medicine. The "Alive" made them sleep
each time they took it, and they felt heavy upon waking up. 33
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang.
Arman instructed Raymond that while in Sapang, he should introduce himself as
"Oscar," a military trainee from Sariaya, Quezon, assigned in Bulacan. While there, he
saw again Ganata, one of the men who abducted him from his house, and got
acquainted with other military men and civilians. 34
After about three months in Sapang, Raymond was brought to Camp Tecson under the
24th Infantry Battalion. He was fetched by three unidentified men in a big white vehicle.
Efren went with them. Raymond was then blindfolded. After a 30-minute ride, his
blindfold was removed. Chains were put on him and he was kept in the barracks. 35

The next day, Raymond's chains were removed and he was ordered to clean outside
the barracks. It was then he learned that he was in a detachment of the Rangers. There
were many soldiers, hundreds of them were training. He was also ordered to clean
inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna.
She told him that she was a student of the University of the Philippines and was
abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe
torture and raped. She was crying and longing to go home and be with her parents.
During the day, her chains were removed and she was made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival,
two other captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were
put in the room with "Allan" whose name they later came to know as Donald Caigas,
called "master" or "commander" by his men in the 24 th Infantry Battalion. Raymond and
Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were
threatened, and Reynaldo was beaten up. In the daytime, their chains were removed,
but were put back on at night. They were threatened that if they escaped, their families
would all be killed.37
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that
they should be thankful they were still alive and should continue along their "renewed
life." Before the hearing of November 6 or 8, 2006, respondents were brought to their
parents to instruct them not to attend the hearing. However, their parents had already
left for Manila. Respondents were brought back to Camp Tecson. They stayed in that
camp from September 2006 to November 2006, and Raymond was instructed to
continue using the name "Oscar" and holding himself out as a military trainee. He got
acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he
stated in his affidavit.38
On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were
transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were many
huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the
battalion stayed with them. While there, battalion soldiers whom Raymond knew as
"Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn and
Karen also suffered enormous torture in the camp. They were all made to clean, cook,
and help in raising livestock.39
Raymond recalled that when "Operation Lubog" was launched, Caigas and some other
soldiers brought him and Manuel with them to take and kill all sympathizers of the NPA.
They were brought to Barangay Bayan-bayanan, Bataan where he witnessed the killing
of an old man doing kaingin. The soldiers said he was killed because he had a son who
was a member of the NPA and he coddled NPA members in his house. 40 Another time,
in another "Operation Lubog," Raymond was brought to Barangay Orion in a house
where NPA men stayed. When they arrived, only the old man of the house who was sick
was there. They spared him and killed only his son right before Raymond's eyes. 41
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with them.
A retired army soldier was in charge of the house. Like in Limay, the five detainees were
made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until
June 2007.42
In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo,
and Manuel were tasked to bring food to detainees brought to the camp. Raymond
narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si
Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na

kung mayroon man kaming makita o marinig, walang nangyari. Kinaumagahan,

nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong
binuhos sa kanyang katawan at ito'y sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila
sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong
nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya tinamaan.
Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban
ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang
mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod.
Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang
amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila.
Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na
sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil
kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot
pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa istiryo
ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako
sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano
ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang
dalawang babae at si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni
Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo
ang trabaho. Sa gabi, hindi na kami kinakadena. 43
On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan,
ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also farm his
land, in exchange for which, he would take care of the food of their family. They were
also told that they could farm a small plot adjoining his land and sell their produce. They
were no longer put in chains and were instructed to use the names Rommel (for
Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal,
Laguna.44
Respondents started to plan their escape. They could see the highway from where they
stayed. They helped farm adjoining lands for which they were paid Php200.00 or
Php400.00 and they saved their earnings. When they had saved Php1,000.00 each,
Raymond asked a neighbor how he could get a cellular phone as he wanted to
exchange text messages with a girl who lived nearby. A phone was pawned to him, but
he kept it first and did not use it. They earned some more until they had saved
Php1,400.00 between them.

There were four houses in the compound. Raymond and Reynaldo were housed in one
of them while their guards lived in the other three. Caigas entrusted respondents to
Nonong, the head of the guards. Respondents' house did not have electricity. They
used a lamp. There was no television, but they had a radio. In the evening of August 13,
2007, Nonong and his cohorts had a drinking session. At about 1:00 a.m., Raymond
turned up the volume of the radio. When none of the guards awoke and took notice,
Raymond and Reynaldo proceeded towards the highway, leaving behind their sleeping
guards and barking dogs. They boarded a bus bound for Manila and were thus freed
from captivity.45
Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar
as they related to matters they witnessed together. Reynaldo added that when they
were taken from their house on February 14, 2006, he saw the faces of his abductors
before he was blindfolded with his shirt. He also named the soldiers he got acquainted
with in the 18 months he was detained. When Raymond attempted to escape from Fort
Magsaysay, Reynaldo was severely beaten up and told that they were indeed members
of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on
the back and punched in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He was
kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name "Rodel" and to represent himself as a military trainee from
Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One
time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in
the vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black
and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove
the blindfold once outside the province. In one of their trips, they passed by Fort
Magsaysay and Camp Tecson where Reynaldo saw the sign board, "Welcome to Camp
Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected with
the Medical Action Group, an organization handling cases of human rights violations,
particularly cases where torture was involved. He was requested by an NGO to conduct
medical examinations on the respondents after their escape. He first asked them about
their ordeal, then proceeded with the physical examination. His findings showed that the
scars borne by respondents were consistent with their account of physical injuries
inflicted upon them. The examination was conducted on August 15, 2007, two days after
respondents' escape, and the results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul Protocol in
conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction and torture. In
compliance with the October 25, 2007 Resolution of the Court, they filed a Return of the
Writ of Amparo admitting the abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested,
forcibly abducted, detained, held incommunicado, disappeared or under the
custody by the military. This is a settled issue laid to rest in the habeas
corpus case filed in their behalf by petitioners' parents before the Court of
Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie
Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as
Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon,
in his capacity as the Commanding General of the Philippine Army, and members
of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela

Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and
Rudy Mendoza. The respondents therein submitted a return of the writ... On July
4, 2006, the Court of Appeals dropped as party respondents Lt. Gen.
Hermogenes C. Esperon, Jr., then Commanding General of the Philippine Army,
and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then Commanding
General, 7th Infantry Division, Philippine Army, stationed at Fort Magsaysay,
Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to
establish their personal involvement in the taking of the Manalo brothers. In a
Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie
Castillo for lack of evidence establishing his involvement in any capacity in the
disappearance of the Manalo brothers, although it held that the remaining
respondents were illegally detaining the Manalo brothers and ordered them to
release the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent (herein
petitioner) Secretary of National Defense, which attested that he assumed office only on
August 8, 2007 and was thus unaware of the Manalo brothers' alleged abduction. He
also claimed that:
7. The Secretary of National Defense does not engage in actual military
directional operations, neither does he undertake command directions of the AFP
units in the field, nor in any way micromanage the AFP operations. The principal
responsibility of the Secretary of National Defense is focused in providing
strategic policy direction to the Department (bureaus and agencies) including the
Armed Forces of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable Supreme Court
in this case, I have directed the Chief of Staff, AFP to institute immediate action in
compliance with Section 9(d) of the AmparoRule and to submit report of such
compliance... Likewise, in a Memorandum Directive also dated October 31, 2007,
I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP
should adopt the following rules of action in the event the Writ of Amparo is
issued by a competent court against any members of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may aid in the
prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them concerning the
death or disappearance;
(4) to determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have brought
about the death or disappearance;
(5) to identify and apprehend the person or persons involved in the death
or disappearance; and
(6) to bring the suspected offenders before a competent court. 49
Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the
Return of the Writ, attesting that he received the above directive of therein respondent
Secretary of National Defense and that acting on this directive, he did the following:

3.1. As currently designated Chief of Staff, Armed Forces of the Philippines

(AFP), I have caused to be issued directive to the units of the AFP for the
purpose of establishing the circumstances of the alleged disappearance and the
recent reappearance of the petitioners.
3.2. I have caused the immediate investigation and submission of the result
thereof to Higher headquarters and/or direct the immediate conduct of the
investigation on the matter by the concerned unit/s, dispatching Radio Message
on November 05, 2007, addressed to the Commanding General, Philippine Army
(Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio
Message is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be
conducted by the concerned unit relative to the circumstances of the alleged
disappearance of the persons in whose favor the Writ ofAmparo has been sought
for as soon as the same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units relative to
another Petition for the Writ ofAmparo (G.R. No. 179994) filed at the instance of
relatives of a certain Cadapan and Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to
establish the surrounding circumstances of the disappearances of the petitioners
and to bring those responsible, including any military personnel if shown to have
participated or had complicity in the commission of the complained acts, to the
bar of justice, when warranted by the findings and the competent evidence that
may be gathered in the process.50
Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF
(GSC) PA, earlier filed in G.R. No. 179994, another Amparo case in this Court, involving
Cadapan, Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the 24 th Infantry
Batallion detachment as detention area, I immediately went to the 24 th IB
detachment in Limay, Bataan and found no untoward incidents in the area nor
any detainees by the name of Sherlyn Cadapan, Karen Empeo and Manuel
Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24 th IB in
Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the
Philippine National Police, Limay, Bataan regarding the alleged detentions or
deaths and were informed that none was reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the
alleged beachhouse in Iba, Zambales also alleged to be a detention place where
Sherlyn Cadapan, Karen Empeo and Manuel Merino were detained. As per the
inquiry, however, no such beachhouse was used as a detention place found to
have been used by armed men to detain Cadapan, Empeo and Merino. 51
It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of
Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other
persons implicated by therein petitioners could not be secured in time for the
submission of the Return and would be subsequently submitted. 52

Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U.
Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort
Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers
Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the
7th Infantry Division, Maj. Gen. Jovito Palaran, 55 through his Assistant Chief of Staff,56 to
investigate the alleged abduction of the respondents by CAFGU auxiliaries under his
unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo
de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka Madning;
and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of
the abduction of Raymond and Reynaldo Manalo by the alleged elements of the
CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular investigation was initiated not by a complaint
as was the usual procedure, but because the Commanding General saw news about
the abduction of the Manalo brothers on the television, and he was concerned about
what was happening within his territorial jurisdiction. 58
Jimenez summoned all six implicated persons for the purpose of having them execute
sworn statements and conducting an investigation on May 29, 2006. 59 The investigation
started at 8:00 in the morning and finished at 10:00 in the evening. 60 The investigating
officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six
persons on that day. There were no other sworn statements taken, not even of the
Manalo family, nor were there other witnesses summoned and investigated 61 as
according to Jimenez, the directive to him was only to investigate the six persons. 62
Jimenez was beside Lingad when the latter took the statements. 63 The six persons were
not known to Jimenez as it was in fact his first time to meet them. 64 During the entire
time that he was beside Lingad, a subordinate of his in the Office of the Provost
Marshall, Jimenez did not propound a single question to the six persons. 65
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their statements as
the printing of their statements was interrupted by a power failure. Jimenez testified that
the two signed on May 30, 2006, but the jurats of their statements indicated that they
were signed on May 29, 2006.66 When the Sworn Statements were turned over to
Jimenez, he personally wrote his investigation report. He began writing it in the
afternoon of May 30, 2006 and finished it on June 1, 2006. 67 He then gave his report to
the Office of the Chief of Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their
evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO
MANALO who were forcibly taken from their respective homes in Brgy. Buhol na
Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified armed
men and thereafter were forcibly disappeared. After the said incident, relatives of
the victims filed a case for Abduction in the civil court against the herein
suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela
Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the Citizen
Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in
(Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San

Ildefonso, Bulacan doing the concrete building of a church located nearby his
residence, together with some neighbor thereat. He claims that on 15 February
2006, he was being informed by Brgy. Kagawad Pablo Umayan about the
abduction of the brothers Raymond and Reynaldo Manalo. As to the allegation
that he was one of the suspects, he claims that they only implicated him because
he was a CAFGU and that they claimed that those who abducted the Manalo
brothers are members of the Military and CAFGU. Subject vehemently denied
any participation or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May
2006 in (Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a CAA member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo
Manalo being his neighbors are active members/sympathizers of the CPP/NPA
and he also knows their elder Rolando Manalo @ KA BESTRE of being an NPA
Leader operating in their province. That at the time of the alleged abduction of
the two (2) brothers and for accusing him to be one of the suspects, he claims
that on February 14, 2006, he was one of those working at the concrete chapel
being constructed nearby his residence. He claims further that he just came only
to know about the incident on other day (15 Feb 06) when he was being informed
by Kagawad Pablo Kunanan. That subject CAA vehemently denied any
participation about the incident and claimed that they only implicated him
because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in
(Exhibit "O") states that he is a resident of Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato Detachment.
That being a neighbor, he was very much aware about the background of the two
(2) brothers Raymond and Reynaldo as active supporters of the CPP NPA in their
Brgy. and he also knew their elder brother "KUMANDER BESTRE" TN: Rolando
Manalo. Being one of the accused, he claims that on 14 February 2006, he was
at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he
learned only about the incident when he arrived home in their place. He claims
further that the only reason why they implicated him was due to the fact that his
mother has filed a criminal charge against their brother Rolando Manalo @ KA
BESTRE who is an NPA Commander who killed his father and for that reason
they implicated him in support of their brother. Subject CAA vehemently denied
any involvement on the abduction of said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit
"E") states that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims
that Raymond and Reynaldo Manalo are familiar to him being his barriomate
when he was still unmarried and he knew them since childhood. Being one of the
accused, he claims that on 14 February 2006, he was at his residence in Brgy.
Marungko, Angat, Bulacan. He claims that he was being informed only about the
incident lately and he was not aware of any reason why the two (2) brothers were
being abducted by alleged members of the military and CAFGU. The only reason
he knows why they implicated him was because there are those people who are
angry with their family particularly victims of summary execution (killing) done by
their brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims
further that it was their brother @ KA BESTRE who killed his father and he was
living witness to that incident. Subject civilian vehemently denied any
involvement on the abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit
"F") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, a farmer and a former CAA based at Biak na Bato, San

Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to
him being their barrio mate. He claims further that they are active supporters of
CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an NPA
leader. Being one of the accused, he claims that on 14 February 2006, he was in
his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan.
That he vehemently denied any participation of the alleged abduction of the two
(2) brothers and learned only about the incident when rumors reached him by his
barrio mates. He claims that his implication is merely fabricated because of his
relationship to Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in
(Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga,
San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU member based
at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very
well the brothers Raymond and Reynaldo Manalo in their barangay for having
been the Tanod Chief for twenty (20) years. He alleged further that they are
active supporters or sympathizers of the CPP/NPA and whose elder brother
Rolando Manalo @ KA BESTRE is an NPA leader operating within the area.
Being one of the accused, he claims that on 14 Feb 2006 he was helping in the
construction of their concrete chapel in their place and he learned only about the
incident which is the abduction of Raymond and Reynaldo Manalo when one of
the Brgy. Kagawad in the person of Pablo Cunanan informed him about the
matter. He claims further that he is truly innocent of the allegation against him as
being one of the abductors and he considers everything fabricated in order to
destroy his name that remains loyal to his service to the government as a CAA
member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this particular case, the
proof of linking them to the alleged abduction and disappearance of Raymond
and Reynaldo Manalo that transpired on 14 February 2006 at Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged
involvement theretofore to that incident is considered doubtful, hence, no basis to
indict them as charged in this investigation.
Though there are previous grudges between each families (sic) in the past to
quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE
TN: Rolando Manalo, this will not suffice to establish a fact that they were the
ones who did the abduction as a form of revenge. As it was also stated in the
testimony of other accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this would not also mean, however,
that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting
their village from any intervention by the leftist group, hence inside their village,
they were fully aware of the activities of Raymond and Reynaldo Manalo in so far
as their connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges of
abduction committed by the above named respondents has not been established
in this investigation. Hence, it lacks merit to indict them for any administrative
punishment and/or criminal liability. It is therefore concluded that they are
innocent of the charge.
VI. RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz,
Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L.
Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed. 69
In this appeal under Rule 45, petitioners question the appellate court's assessment of
the foregoing evidence and assail the December 26, 2007 Decision on the following
grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN
BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE,
UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED,
REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN
RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN
REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO
THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION
UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE
ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE
PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE
PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS,
RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR
RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO
BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND
CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL
AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 1617, 2007. The Summit was "envisioned to provide a broad and fact-based perspective
on the issue of extrajudicial killings and enforced disappearances," 71 hence
"representatives from all sides of the political and social spectrum, as well as all the
stakeholders in the justice system"72 participated in mapping out ways to resolve the
crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in light of the
prevalence of extralegal killing and enforced disappearances." 73 It was an exercise for
the first time of the Court's expanded power to promulgate rules to protect our people's
constitutional rights, which made its maiden appearance in the 1987 Constitution in
response to the Filipino experience of the martial law regime. 74 As the Amparo Rule was
intended to address the intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to these two instances or
to threats thereof. "Extralegal killings" are "killings committed without due process of
law, i.e., without legal safeguards or judicial proceedings." 75 On the other hand,
"enforced disappearances" are "attended by the following characteristics: an arrest,

detention or abduction of a person by a government official or organized groups or

private individuals acting with the direct or indirect acquiescence of the government; the
refusal of the State to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such persons outside the
protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in
Spanish.77 In 1837, de Tocqueville's Democracy in America became available in Mexico
and stirred great interest. Its description of the practice of judicial review in the U.S.
appealed to many Mexican jurists.78 One of them, Manuel Crescencio Rejn, drafted a
constitutional provision for his native state, Yucatan, 79 which granted judges the power
to protect all persons in the enjoyment of their constitutional and legal rights. This idea
was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise and
preservation of those rights granted to him by this Constitution and by laws
enacted pursuant hereto, against attacks by the Legislative and Executive
powers of the federal or state governments, limiting themselves to granting
protection in the specific case in litigation, making no general declaration
concerning the statute or regulation that motivated the violation. 80
Since then, the protection has been an important part of Mexican constitutionalism. 81 If,
after hearing, the judge determines that a constitutional right of the petitioner is being
violated, he orders the official, or the official's superiors, to cease the violation and to
take the necessary measures to restore the petitioner to the full enjoyment of the right in
question. Amparo thus combines the principles of judicial review derived from the U.S.
with the limitations on judicial power characteristic of the civil law tradition which prevails
in Mexico. It enables courts to enforce the constitution by protecting individual rights in
particular cases, but prevents them from using this power to make law for the entire
nation.82
The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving
into various forms, in response to the particular needs of each country.83 It became, in
the words of a justice of the Mexican Federal Supreme Court, one piece of Mexico's
self-attributed "task of conveying to the world's legal heritage that institution which, as a
shield of human dignity, her own painful history conceived." 84 What began as a
protection against acts or omissions of public authorities in violation of constitutional
rights later evolved for several purposes: (1) Amparo libertad for the protection of
personal freedom, equivalent to the habeas corpus writ; (2)Amparo contra leyes for the
judicial review of the constitutionality of statutes; (3) Amparo casacion for the judicial
review of the constitutionality and legality of a judicial decision; (4) Amparo
administrativo for the judicial review of administrative actions; and (5) Amparo
agrario for the protection of peasants' rights derived from the agrarian reform process. 85
In Latin American countries, except Cuba, the writ of Amparo has been constitutionally
adopted to protect against human rights abuses especially committed in countries under
military juntas. In general, these countries adopted an all-encompassing writ to protect
the whole gamut of constitutional rights, including socio-economic rights. 86Other
countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the
protection of the writ of Amparo only to some constitutional guarantees or fundamental
rights.87
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ
of Amparo, several of the above Amparo protections are guaranteed by our charter. The
second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse
Clause, provides for the judicial power "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any

branch or instrumentality of the Government." The Clause accords a similar general

protection to human rights extended by the Amparo contra leyes, Amparo casacion,
and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas
corpus found in several provisions of the 1987 Constitution. 88 The Clause is an offspring
of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case
of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse Clause through
remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition
for habeas corpus under Rule 102,90 these remedies may not be adequate to address
the pestering problem of extralegal killings and enforced disappearances. However, with
the swiftness required to resolve a petition for a writ of Amparo through summary
proceedings and the availability of appropriate interim and permanent reliefs under
the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out
of the Latin American and Philippine experience of human rights abuses - offers a better
remedy to extralegal killings and enforced disappearances and threats thereof. The
remedy provides rapid judicial relief as it partakes of a summary proceeding that
requires only substantial evidence to make the appropriate reliefs available to the
petitioner; it is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of evidence, or
administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings.91
The writ of Amparo serves both preventive and curative roles in addressing the problem
of extralegal killings and enforced disappearances. It is preventive in that it breaks the
expectation of impunity in the commission of these offenses; it is curative in that it
facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to
subsequent investigation and action. In the long run, the goal of both the preventive and
curative roles is to deter the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and
Temporary Restraining Order"92 to stop petitioners and/or their officers and agents from
depriving the respondents of their right to liberty and other basic rights on August 23,
2007,93 prior to the promulgation of the Amparo Rule. They also sought ancillary
remedies including Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders and other legal and equitable remedies under Article VIII,
Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court.
When the Amparo Rule came into effect on October 24, 2007, they moved to have their
petition treated as an Amparo petition as it would be more effective and suitable to the
circumstances of the Manalo brothers' enforced disappearance. The Court granted their
motion.
With this backdrop, we now come to the arguments of the petitioner. Petitioners' first
argument in disputing the Decision of the Court of Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and giving full
faith and credit to the incredible uncorroborated, contradicted, and obviously
scripted, rehearsed and self-serving affidavit/testimony of herein respondent
Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and refine the ore of
petitioners' cause of action, to determine whether the evidence presented is metalstrong to satisfy the degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for the following causes of
action, viz:

Section 1. Petition. - The petition for a writ of Amparo is a remedy available to

any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or
of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats
thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall
establish their claims bysubstantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall
be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. 95
After careful perusal of the evidence presented, we affirm the findings of the Court of
Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction, detention, torture, and
escape of the respondents were narrated by respondent Raymond Manalo in a clear
and convincing manner. His account is dotted with countless candid details of
respondents' harrowing experience and tenacious will to escape, captured through his
different senses and etched in his memory. A few examples are the following: "Sumilip
ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel." 96 "(N)ilakasan ng
mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang
hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo habang hinihila nila ang
mga bangkay. Naamoy ko iyon nang nililinis ang bakas." 98 "Tumigil ako sa may
palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga
kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell
phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar." 100
We affirm the factual findings of the appellate court, largely based on respondent
Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were sufficiently identified
by the petitioners (herein respondents) to be military personnel and CAFGU
auxiliaries. Raymond recalled that the six armed men who barged into his house
through the rear door were military men based on their attire of fatigue pants and
army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de
la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and
residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza
and Rudy Mendoza, also CAFGU members, served as lookouts during the
abduction. Raymond was sure that three of the six military men were Ganata,
who headed the abducting team, Hilario, who drove the van, and George.
Subsequent incidents of their long captivity, as narrated by the petitioners,
validated their assertion of the participation of the elements of the 7 th Infantry
Division, Philippine Army, and their CAFGU auxiliaries.

We are convinced, too, that the reason for the abduction was the suspicion that
the petitioners were either members or sympathizers of the NPA, considering that
the abductors were looking for Ka Bestre, who turned out to be Rolando, the
brother of petitioners.
The efforts exerted by the Military Command to look into the abduction were, at
best, merely superficial. The investigation of the Provost Marshall of the
7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries
involved. This one-sidedness might be due to the fact that the Provost Marshall
could delve only into the participation of military personnel, but even then the
Provost Marshall should have refrained from outrightly exculpating the CAFGU
auxiliaries he perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established. At the very
least, he was aware of the petitioners' captivity at the hands of men in uniform
assigned to his command. In fact, he or any other officer tendered no
controversion to the firm claim of Raymond that he (Gen. Palparan) met them in
person in a safehouse in Bulacan and told them what he wanted them and their
parents to do or not to be doing. Gen. Palparan's direct and personal role in the
abduction might not have been shown but his knowledge of the dire situation of
the petitioners during their long captivity at the hands of military personnel under
his command bespoke of his indubitable command policy that unavoidably
encouraged and not merely tolerated the abduction of civilians without due
process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth Division
(Justices Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok,
Jr., member/ponente.) found no clear and convincing evidence to establish that
M/Sgt. Rizal Hilario had anything to do with the abduction or the detention.
Hilario's involvement could not, indeed, be then established after Evangeline
Francisco, who allegedly saw Hilario drive the van in which the petitioners were
boarded and ferried following the abduction, did not testify. (See the decision of
the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van
in which the petitioners were brought away from their houses on February 14,
2006. Raymond also attested that Hilario participated in subsequent incidents
during the captivity of the petitioners, one of which was when Hilario fetched
them from Fort Magsaysay on board a Revo and conveyed them to a
detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at
least a week in a house of strong materials (Exhibit D, rollo, p. 205) and then
Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board
the Revo, to an unfinished house inside the compound of Kapitan where they
were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there
where the petitioners came face to face with Gen. Palparan. Hilario and Efren
also brought the petitioners one early morning to the house of the petitioners'
parents, where only Raymond was presented to the parents to relay the
message from Gen. Palparan not to join anymore rallies. On that occasion,
Hilario warned the parents that they would not again see their sons should they
join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205206) Hilario was also among four Master Sergeants (the others being Arman,
Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion
when Gen. Palparan required Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw
that Hilario had a direct hand in their torture.

It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other
military personnel like Arman, Ganata, Cabalse and Caigas, among others, was
similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally involved in
the abduction. We also do, for, indeed, the evidence of their participation is
overwhelming.101
We reject the claim of petitioners that respondent Raymond Manalo's statements were
not corroborated by other independent and credible pieces of evidence. 102 Raymond's
affidavit and testimony were corroborated by the affidavit of respondent Reynaldo
Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino,
and the pictures of the scars left by the physical injuries inflicted on respondents, 103 also
corroborate respondents' accounts of the torture they endured while in detention.
Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay such as
the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be the
"Division Training Unit,"104 firms up respondents' story that they were detained for some
time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human
Rights, the Commission considered similar evidence, among others, in finding that
complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan
government. In this case, Sister Ortiz was kidnapped and tortured in early November
1989. The Commission's findings of fact were mostly based on the consistent and
credible statements, written and oral, made by Sister Ortiz regarding her
ordeal.106 These statements were supported by her recognition of portions of the route
they took when she was being driven out of the military installation where she was
detained.107 She was also examined by a medical doctor whose findings showed that
the 111 circular second degree burns on her back and abrasions on her cheek coincided
with her account of cigarette burning and torture she suffered while in detention. 108
With the secret nature of an enforced disappearance and the torture perpetrated on the
victim during detention, it logically holds that much of the information and evidence of
the ordeal will come from the victims themselves, and the veracity of their account will
depend on their credibility and candidness in their written and/or oral statements. Their
statements can be corroborated by other evidence such as physical evidence left by the
torture they suffered or landmarks they can identify in the places where they were
detained. Where powerful military officers are implicated, the hesitation of witnesses to
surface and testify against them comes as no surprise.
We now come to the right of the respondents to the privilege of the writ of Amparo.
There is no quarrel that the enforced disappearance of both respondents Raymond and
Reynaldo Manalo has now passed as they have escaped from captivity and surfaced.
But while respondents admit that they are no longer in detention and are physically free,
they assert that they are not "free in every sense of the word" 109 as their "movements
continue to be restricted for fear that people they have named in their Judicial Affidavits
and testified against (in the case of Raymond) are still at large and have not been held
accountable in any way. These people are directly connected to the Armed Forces of
the Philippines and are, thus, in a position to threaten respondents' rights to life,
liberty and security."110 (emphasis supplied) Respondents claim that they are
under threat of being once again abducted, kept captive or even killed, which
constitute a direct violation of their right to security of person.111

Elaborating on the "right to security, in general," respondents point out that this right
is "often associated with liberty;" it is also seen as an "expansion of rights based on the
prohibition against torture and cruel and unusual punishment." Conceding that there is
no right to security expressly mentioned in Article III of the 1987 Constitution, they
submit that their rights "to be kept free from torture and from incommunicado detention
and solitary detention places112 fall under the general coverage of the right to security of
person under the writ ofAmparo." They submit that the Court ought to give an expansive
recognition of the right to security of person in view of the State Policy under Article II of
the 1987 Constitution which enunciates that, "The State values the dignity of every
human person and guarantees full respect for human rights." Finally, to justify a liberal
interpretation of the right to security of person, respondents cite the teaching
in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful only if
there is no undue restraint by the State on the exercise of that liberty" 114 such as a
requirement to "report under unreasonable restrictions that amounted to a deprivation of
liberty"115 or being put under "monitoring and surveillance." 116
In sum, respondents assert that their cause of action consists in the threat to their
right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed been
violated as respondents assert. The right to security or the right to security of
person finds a textual hook in Article III, Section 2 of the 1987 Constitution which
provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge...
At the core of this guarantee is the immunity of one's person, including the extensions of
his/her person - houses, papers, and effects - against government intrusion. Section 2
not only limits the state's power over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the person himself. 117 The purpose of
this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX,
Quezon City, viz:118
The purpose of the constitutional guarantee against unreasonable searches and
seizures is to prevent violations of private security in person and property and
unlawful invasion of the security of the home by officers of the law acting under
legislative or judicial sanction and to give remedy against such usurpation when
attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637
[1946]). The right to privacy is an essential condition to the dignity and
happiness and to the peace and security of every individual, whether it be
of home or of persons and correspondence. (Taada and Carreon, Political
Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable searches and seizures must be
deemed absolute as nothing is closer to a man's soul than the serenity of
his privacy and the assurance of his personal security. Any interference
allowable can only be for the best causes and reasons. 119 (emphases supplied)
While the right to life under Article III, Section 1120 guarantees essentially the right to be
alive121 - upon which the enjoyment of all other rights is preconditioned - the right to
security of person is a guarantee of the secure quality of this life, viz: "The life to which
each person has a right is not a life lived in fear that his person and property may be
unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance
that the government he established and consented to, will protect the security of his

person and property. The ideal of security in life and property... pervades the whole
history of man. It touches every aspect of man's existence." 122 In a broad sense, the
right to security of person "emanates in a person's legal and uninterrupted enjoyment of
his life, his limbs, his body, his health, and his reputation. It includes the right to exist,
and the right to enjoyment of life while existing, and it is invaded not only by a
deprivation of life but also of those things which are necessary to the enjoyment of life
according to the nature, temperament, and lawful desires of the individual." 123
A closer look at the right to security of person would yield various permutations of the
exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a world
in which human beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the common people."
(emphasis supplied) Some scholars postulate that "freedom from fear" is not only an
aspirational principle, but essentially an individual international human right. 124 It is the
"right to security of person" as the word "security" itself means "freedom from
fear."125 Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.126 (emphasis
supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the International
Covenant on Civil and Political Rights (ICCPR) also provides for the right to security
of person, viz:
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are
established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any
threat to the rights to life, liberty or security is the actionable wrong. Fear is a state
of mind, a reaction; threat is a stimulus, acause of action. Fear caused by the same
stimulus can range from being baseless to well-founded as people react differently. The
degree of fear can vary from one person to another with the variation of the prolificacy
of their imagination, strength of character or past experience with the stimulus. Thus, in
the Amparo context, it is more correct to say that the "right to security" is actually
the "freedom from threat." Viewed in this light, the "threatened with violation" Clause
in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision. 127
Second, the right to security of person is a guarantee of bodily and psychological
integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a
general rule, one's body cannot be searched or invaded without a search
warrant.128 Physical injuries inflicted in the context of extralegal killings and enforced
disappearances constitute more than a search or invasion of the body. It may constitute
dismemberment, physical disabilities, and painful physical intrusion. As the degree of
physical injury increases, the danger to life itself escalates. Notably, in criminal law,
physical injuries constitute a crime against persons because they are an affront to the
bodily integrity or security of a person. 129
Physical torture, force, and violence are a severe invasion of bodily integrity. When
employed to vitiate the free will such as to force the victim to admit, reveal or fabricate

incriminating information, it constitutes an invasion of both bodily and psychological

integrity as the dignity of the human person includes the exercise of free will. Article III,
Section 12 of the 1987 Constitution more specifically proscribes bodily and
psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which
vitiate the free will shall be used against him (any person under investigation for
the commission of an offense). Secret detention places,
solitary, incommunicado or other similar forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free will although not involving invasion of bodily integrity - nevertheless constitute a violation of
the right to security in the sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under
investigation for the commission of an offense. Victims of enforced disappearances who
are not even under such investigation should all the more be protected from these
degradations.
An overture to an interpretation of the right to security of person as a right against
torture was made by the European Court of Human Rights (ECHR) in the recent case
of Popov v. Russia.130 In this case, the claimant, who was lawfully detained, alleged
that the state authorities had physically abused him in prison, thereby violating his right
to security of person. Article 5(1) of the European Convention on Human Rights
provides, viz: "Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that
"(n)o one shall be subjected to torture or to inhuman or degrading treatment or
punishment." Although the application failed on the facts as the alleged ill-treatment was
found baseless, the ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations to the attention of domestic
authorities at the time when they could reasonably have been expected to take
measures in order to ensure his security and to investigate the circumstances in
question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply with the
procedural obligation under Art.3 to conduct an effective investigation into his
allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against Women has also
made a statement that the protection of the bodily integrity of women may also be
related to the right to security and liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by women of
human rights and fundamental freedoms under general international law or under
specific human rights conventions is discrimination within the meaning of article 1
of the Convention (on the Elimination of All Forms of Discrimination Against
Women). These rights and freedoms include . . . the right to liberty and security
of person.132
Third, the right to security of person is a guarantee of protection of one's rights
by the government. In the context of the writ of Amparo, this right is built into the
guarantees of the right to life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom from threat and

guarantee of bodily and psychological integrity) under Article III, Section 2. The right to
security of person in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section 11 of the 1987
Constitution.133 As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights especially when they
are under threat. Protection includes conducting effective investigations, organization of
the government apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez Rodriguez Case,134 viz:
(The duty to investigate) must be undertaken in a serious manner and not as
a mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or
his family or upon their offer of proof, without an effective search for the truth by
the government.135
This third sense of the right to security of person as a guarantee of government
protection has been interpreted by the United Nations' Human Rights Committee 136 in
not a few cases involving Article 9137 of the ICCPR. While the right to security of person
appears in conjunction with the right to liberty under Article 9, the Committee has ruled
that the right to security of person can exist independently of the right to liberty.
In other words, there need not necessarily be a deprivation of liberty for the right to
security of person to be invoked. In Delgado Paez v. Colombia,138 a case involving
death threats to a religion teacher at a secondary school in Leticia, Colombia, whose
social views differed from those of the Apostolic Prefect of Leticia, the Committee
held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the right to
security arises only in the context of arrest and detention. The travaux
prparatoires indicate that the discussions of the first sentence did indeed focus
on matters dealt with in the other provisions of article 9. The Universal
Declaration of Human Rights, in article 3, refers to the right to life, the right
to liberty and the right to security of the person. These elements have been
dealt with in separate clauses in the Covenant. Although in the Covenant
the only reference to the right of security of person is to be found in article
9, there is no evidence that it was intended to narrow the concept of the
right to security only to situations of formal deprivation of liberty. At the
same time, States parties have undertaken to guarantee the rights
enshrined in the Covenant. It cannot be the case that, as a matter of law,
States can ignore known threats to the life of persons under their
jurisdiction, just because that he or she is not arrested or otherwise
detained. States parties are under an obligation to take reasonable and
appropriate measures to protect them. An interpretation of article 9 which
would allow a State party to ignore threats to the personal security of nondetained persons within its jurisdiction would render totally ineffective the
guarantees of the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist
and prisoner of conscience who continued to be intimidated, harassed, and restricted in
his movements following his release from detention. In a catena of cases, the ruling of
the Committee was of a similar import: Bahamonde v. Equatorial Guinea,141 involving
discrimination, intimidation and persecution of opponents of the ruling party in that
state;Tshishimbi v. Zaire,142 involving the abduction of the complainant's husband who

was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder
of the complainant's partner and the harassment he (complainant) suffered
because of his investigation of the murder; and Chongwe v. Zambia,144involving an
assassination attempt on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to
security" not only as prohibiting the State from arbitrarily depriving liberty, but imposing
a positive duty on the State to afford protection of the right to liberty.145 The ECHR
interpreted the "right to security of person" under Article 5(1) of the European
Convention of Human Rights in the leading case on disappearance of persons, Kurt v.
Turkey.146 In this case, the claimant's son had been arrested by state authorities and
had not been seen since. The family's requests for information and investigation
regarding his whereabouts proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity with
the substantive and procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual it is incumbent on the
authorities to account for his or her whereabouts. For this reason, Article 5 must
be seen as requiring the authorities to take effective measures to safeguard
against the risk of disappearance and to conduct a prompt effective
investigation into an arguable claim that a person has been taken into
custody and has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar, we
now determine whether there is a continuing violation of respondents' right to security.
First, the violation of the right to security as freedom from threat to respondents'
life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their
families, including them, would be killed. In Raymond's narration, he was tortured and
poured with gasoline after he was caught the first time he attempted to escape from Fort
Magsaysay. A call from a certain "Mam," who wanted to see him before he was killed,
spared him.
This time, respondents have finally escaped. The condition of the threat to be killed has
come to pass. It should be stressed that they are now free from captivity not because
they were released by virtue of a lawful order or voluntarily freed by their abductors. It
ought to be recalled that towards the end of their ordeal, sometime in June 2007 when
respondents were detained in a camp in Limay, Bataan, respondents' captors even told
them that they were still deciding whether they should be executed. Respondent
Raymond Manalo attested in his affidavit,viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. 148
The possibility of respondents being executed stared them in the eye while they were in
detention. With their escape, this continuing threat to their life is apparent, moreso now
that they have surfaced and implicated specific officers in the military not only in their
own abduction and torture, but also in those of other persons known to have
disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel Merino, among
others.

Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and security. The
threat vitiates their free will as they are forced to limit their movements or
activities.149 Precisely because respondents are being shielded from the perpetrators of
their abduction, they cannot be expected to show evidence of overt acts of threat such
as face-to-face intimidation or written threats to their life, liberty and security.
Nonetheless, the circumstances of respondents' abduction, detention, torture and
escape reasonably support a conclusion that there is an apparent threat that they will
again be abducted, tortured, and this time, even executed. These constitute threats to
their liberty, security, and life, actionable through a petition for a writ of Amparo.
Next, the violation of the right to security as protection by the government. Apart
from the failure of military elements to provide protection to respondents by themselves
perpetrating the abduction, detention, and torture, they also miserably failed in
conducting an effective investigation of respondents' abduction as revealed by the
testimony and investigation report of petitioners' own witness, Lt. Col. Ruben Jimenez,
Provost Marshall of the 7thInfantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and onesided. He merely relied on the Sworn Statements of the six implicated members of the
CAFGU and civilians whom he met in the investigation for the first time. He was present
at the investigation when his subordinate Lingad was taking the sworn statements, but
he did not propound a single question to ascertain the veracity of their statements or
their credibility. He did not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum
Directive dated October 31, 2007, he issued a policy directive addressed to the AFP
Chief of Staff, that the AFP should adopt rules of action in the event the writ
of Amparo is issued by a competent court against any members of the AFP, which
should essentially include verification of the identity of the aggrieved party; recovery and
preservation of relevant evidence; identification of witnesses and securing statements
from them; determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons involved in the
death or disappearance; and bringing of the suspected offenders before a competent
court.150 Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he
received the above directive of respondent Secretary of National Defense and that
acting on this directive, he immediately caused to be issued a directive to the units of
the AFP for the purpose of establishing the circumstances of the alleged disappearance
and the recent reappearance of the respondents, and undertook to provide results of
the investigations to respondents.151 To this day, however, almost a year after the policy
directive was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which they now
seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion that
there is a violation of respondents' right to security as a guarantee of protection by the
government.
In sum, we conclude that respondents' right to security as "freedom from threat" is
violated by the apparent threat to their life, liberty and security of person. Their right to
security as a guarantee of protection by the government is likewise violated by the
ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners
question.

First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file with
the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or recommended
and medicines prescribed, if any, to the Manalo brothers, to include a list of
medical personnel (military and civilian) who attended to them from February 14,
2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production order
sought by respondents partakes of the characteristics of a search warrant. Thus, they
claim that the requisites for the issuance of a search warrant must be complied with
prior to the grant of the production order, namely: (1) the application must be under oath
or affirmation; (2) the search warrant must particularly describe the place to be
searched and the things to be seized; (3) there exists probable cause with one specific
offense; and (4) the probable cause must be personally determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce.152 In the case at bar, however, petitioners point out that other than the bare,
self-serving and vague allegations made by respondent Raymond Manalo in his
unverified declaration and affidavit, the documents respondents seek to be produced
are only mentioned generally by name, with no other supporting details. They also
argue that the relevancy of the documents to be produced must be apparent, but this is
not true in the present case as the involvement of petitioners in the abduction has not
been shown.
Petitioners' arguments do not hold water. The production order under the Amparo Rule
should not be confused with a search warrant for law enforcement under Article III,
Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the
people from the unreasonable intrusion of the government, not a protection of the
government from the demand of the people such as respondents.
Instead, the Amparo production order may be likened to the production of documents or
things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in
relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which
an action is pending may (a) order any party to produce and permit the
inspection and copying or photographing, by or on behalf of the moving
party, of any designated documents, papers, books of accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or
contain evidence material to any matter involved in the action and which
are in his possession, custody or control...
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under
authority of Rule 27, issued a subpoena duces tecum for the production and inspection
of among others, the books and papers of Material Distributors (Phil.) Inc. The company
questioned the issuance of the subpoena on the ground that it violated the search and
seizure clause. The Court struck down the argument and held that
the subpoenapertained to a civil procedure that "cannot be identified or confused with
unreasonable searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide
results of the investigations conducted or to be conducted by the concerned unit relative
to the circumstances of the alleged disappearance of the persons in whose favor the
Writ of Amparo has been sought for as soon as the same has been furnished Higher
headquarters."
With respect to the second and third reliefs, petitioners assert that the disclosure of
the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald
Caigas, as well as the submission of a list of medical personnel, is irrelevant, improper,
immaterial, and unnecessary in the resolution of the petition for a writ ofAmparo. They
add that it will unnecessarily compromise and jeopardize the exercise of official
functions and duties of military officers and even unwittingly and unnecessarily expose
them to threat of personal injury or even death.
On the contrary, the disclosure of the present places of assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly
implicated as perpetrators behind their abduction and detention, is relevant in ensuring
the safety of respondents by avoiding their areas of territorial jurisdiction. Such
disclosure would also help ensure that these military officers can be served with notices
and court processes in relation to any investigation and action for violation of the
respondents' rights. The list of medical personnel is also relevant in securing information
to create the medical history of respondents and make appropriate medical
interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and security, these rights
are snuffed out from victims of extralegal killings and enforced disappearances. The writ
of Amparo is a tool that gives voice to preys of silent guns and prisoners behind secret
walls.
WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the
Court of Appeals dated December 26, 2007 is affirmed.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 88202 December 14, 1998

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and CYNTHIA VICENCIO, respondents.

QUISUMBING, J.:
This is an interposed by the Republic of the Philippines as represented by the Office of
the Solicitor General (OSG), assailing the decision 1 of the Court of Appeals
promulgated on April 28, 1989, which affirmed the decision 2 of the Regional Trial Court
of Manila, Branch 52, dated August 31, 1987. The appealed decision granted private
respondent Cynthia Vicencio's petition for change of surname, from "Vicencio" to "Yu".
As found by the trial court, hereunder are the facts and circumstances of the case:
Petitioner's evidence is to the effect that she was born on 19 January 1971
at the Capitol Medical Center, Quezon City, to the spouses Pablo Castro
Vicencio and Fe Esperanza de Vega Leabres (Exh. C, also marked Annex
A of Petition); that on 10 January 1972, after a marital spat, Pablo
Vicencio left their conjugal abode then situated at Meycauayan, Bulacan;
that since then Pablo Vicencio never reappeared nor sent support to his
family and it was Ernesto Yu who had come to the aid of Fe Esperanza
Labres (sic) and her children; that on 29 June 1976, Fe Esperanza
Leabres filed a petition in the then Juvenile and Domestic Relations Court
of Manila for dissolution of their conjugal partnership, Civil Case No. E02009, which was granted in a decision rendered by the Hon. Regina C.
Ordoez Benitez on 11 July 1977 (Exhs. D, D-1 to D-3); that sometime in
1983, petitioner's mother filed another petition for change of name, Sp.
Proc No. 83-16346, that is to drop the surname of her husband therefrom,
and after hearing a decision was rendered on 5 July 1983 by the Hon.
Emeterio C. Cui of Branch XXV of this Court approving the petition (Exh.
E); that in 1984, petitioner's mother again filed another petition with this
Court, Sp. Proc. No. 84-22605, for the declaration of Pablo Vicencio as an
absentee, and which petition was granted on 26 April 1984 in a decision
rendered by the Hon. Corona Ibay-Somera (Exh. F & F-1); that on 15 April
1986, petitioner's mother and Ernesto Yu were joined in matrimony in a
ceremony solemnized by Mayor Benjamin S. Abalos of Mandaluyong,
Metro Manila (Exh. G.).
It was also established that even (sic) since her childhood, petitioner had
not known mush less remembered her real father Pablo Vicencio, and her
known father had been and still is Ernesto Yu; that despite of which she
had been using the family name "Vicencio" in her school and other related
activities therein; that in view of such situation, confusion arose as to her
parentage and she had been subjected to inquiries why she is using
Vicencio as her family name, both by her classmates and their neighbors,
causing her extreme embarrassment; that on two (2) occassions when
she ran as a beauty contestant in a Lions Club affair and in Manila Red
Cross pageant, her name was entered as Cynthia L. Yu; that her stepfather had been priorly consulted about this petition and had given his
consent thereto; that in fact Ernesto Yu testified for petitioner and
confirmed his consent to the petition as he had always treated petitioner
as his own daughter ever since. 3

At the hearing of the petition for change of name by the trial court, the OSG manifested
that it was opposing the petition. It participated in the proceedings by cross-examining
the private respondent Cynthia Vicencio, (petitionera quo) and her witnesses.
Disregarding the OSG's contention, the trial court ruled that there is no valid cause for
denying the petition. Further, the trial court stated that it could not compel private
respondent's step-father to adopt her, as adoption is a voluntary act; but failure to resort
to adoption should not be a cause for disallowing private respondent to legally change
her name. 4 Hence, it granted the change of surname of private respondent from
Vicencio to Yu.
The decision of the trial court was affirmed by the appellate court, which held that it is
for the best interest of petitioner that her surname be changed. The appellate court took
into account the testimonies of private respondent and her witnesses that allowing the
change of surname would "give her an opportunity to improve her personality and
welfare." 5 It likewise noted that the discrepancy between her original surname, taken
from her biological father; and the surname of her step-father, who has been socially
recognized as her father, caused her embarrassment and inferiority complex. 6
The main issue before us is whether the appellate court erred in affirming the trial
court's decision allowing the change of private respondent's surname to that of her stepfather's surname.
In Republic vs. Hernandez 7, we have recognized inter alia, the following as sufficient
grounds to warrant a change name: (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce, (b) when the change is a legal consequence of
legitimation or adoption; (c) when the change will avoid confusion; (d) when one has
continuously used and been known since childhood by a Filipino name and was
unaware of alien parentage; (e) when the change is based on a sincere desire to adopt
a Filipino name to erase signs of former alienage, all in good faith and without prejudice
to anybody; and (f) when the surname causes embarrassment and there is no showing
that the desired change of name was far a fraudulent purpose, or that the change of
name would prejudice public interest.
Private respondent asserts that her case falls under one of the justifiable grounds
aforecited. She says that confusion has arisen as to her parentage because ever since
childhood, Ernesto Yu has acted as her father, assuming duties of rearing, caring and
supporting her. Since she is known in society as the daughter of Ernesto Yu, she claims
that she been subjected to inquiries regarding her use of a different surname, causing
her much humiliation and embarrassment. However, it is not denied that private
respondent has used Vicencio as her surname in her school records and related
documents. But she had used the surname of her step-father, Yu, when she participated
in public functions, such as entering beauty contests, namely, with the Lion's Club and
the Manila Red Cross, and when she celebrated her debut at the Manila Hotel. 8
The Solicitor General however argues that there is no proper and reasonable cause to
warrant private respondent's change of surname. Such change might even cause
confusion and give rise to legal complications due to the fact that private respondent's
step-father has two (2) children with her mother. In the event of her step-father's death,
it is possible that private respondent may even claim inheritance rights as a "legitimate"

daughter. In his memorandum, the Solicitor General opines that "Ernesto Yu has no
intention of making Cynthia as an heir because despite the suggestion made before the
petition for change of name was heard by the trial court that the change of family name
to Yu could very easily be achieved by adoption, he has not opted for such a remedy." 9
We find merit in the Solicitor General's contention.
"The touchstone for the grant of a change of name is that there be "proper and
reasonable cause" for which the change is sought." 10 The assailed decision as affirmed
by the appellate court does not persuade us to depart from the applicability of the
general rule on the use of surnames 11, specifically the law which requires that legitimate
children shall principally use the surname of their father 12.
Private respondent Cynthia Vicencio is the legitimate offspring of Fe Leabres and Pablo
Vicencio. As previously stated, a legitimate child generally bears the surname of his or
her father. It must be stressed that a change of name is a privilege, not a matter of right,
addressed to the sound discretion of the court, which has the duty to consider carefully
the consequences of a change of name and to deny the same unless weighty reasons
are shown. 13
Confusion indeed might arise with regard to private respondent's parentage because of
her surname. But even, more confusion with grave legal consequences could arise if we
allow private respondent to bear her step-father's surname, even if she is not legally
adopted by him. While previous decisions have allowed children to bear the surname of
their respective step-fathers even without the benefit of adoption, these instances
should be distinguished from the present case. In Calderon vs. Republic, 14 and Llaneta
vs. Agrava, 15 this Court allowed the concerned child to adopt the surname of the stepfather, but unlike the situation in the present case where private respondent is a
legitimate child, in those cases the children were not of legitimate parentage. In Moore
vs.
Republic, 16 where the circumstances appears to be similar to the present case before
us, the Court upheld the Republic's position:
We find tenable this observation of government's counsel. Indeed, if a
child born out of a lawful wedlock be allowed to bear the surname of the
second husband of the mother, should the first husband die or be
separated by a decree of divorce, there may result a confusion as to his
real paternity. In the long run the change may redound to the prejudice of
the child in the community.
While the purpose which may have animated petitioner is plausible and
may run along the feeling of cordiality and spiritual relationship that
pervades among the members of the Moore family, our hand is deferred
by a legal barrier which we cannot at present overlook or brush aside. 17
Similarly in Padilla vs. Republic, 18 the Court ruled that:
To allow said minors to adopt the surname of their mother's second
husband, who is not their father, could result in confusion in their paternity
It could also create the suspicion that said minors, who were born during

the coverture of their mother with her first husband, were in fact sired by
Edward Padilla, thus bringing their legitimate status into discredit. 19
Private respondent might sincerely wish to be in a position similar to that of her stepfather's legitimate children, a plausible reason the petition for change of name was filed
in the first place. Moreover, it is laudable that Ernesto Yu has treated Cynthia as his very
own daughter, providing for all her needs as a father would his own flesh and blood.
However, legal constraints lead us to reject private respondent's desire to use her
stepfather's surname. Further, there is no assurance the end result would not be even
more detrimental to her person, for instead of bringing a stop to questions, the very
change of name, if granted, could trigger much deeper inquiries regarding her
parentage.
Lastly, when this case was decided by the appellate court, private respondent was
already 18 years old but still considered a minor because Republic Act 6809, 20 lowering
the age of majority, was then in effect. However, regardless of private respondent's age,
our conclusion remains considering the circumstances before us and the lack of any
legally justifiable cause for allowing the change of her surname.
WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE; and the
instant petition is hereby GRANTED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
G.R. No. L-32181 March 5, 1986
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
LEONOR VALENCIA, as Natural mother and guardian of her minor children,
BERNARDO GO and JESSICA GO; and THE HON. AGAPITO HONTANOSAS,
Judge of the COURT OF FIRST INSTANCE OF CEBU, Branch XI.

GUTIERREZ, JR., J.:

This is a petition to review the decision of respondent Judge Agapito Hontanosas of the
Court of First Instance of Cebu, Branch XI who ordered the Local Civil Registrar of
Cebu to make the necessary cancellation and/or correction in the entries of birth of
Bernardo Go and Jessica Go in the Civil Registry of the City of Cebu.

Respondent Leonor Valencia, for and in behalf of her minor children, Bernardo Go and
Jessica Go filed with the Court of First Instance of Cebu a petition for the cancellation
and/or correction of entries of birth of Bernardo Go and Jessica Go in the Civil Registry
of the City of Cebu. The case was docketed as Special Proceedings No. 3043-R.
The Solicitor General filed an opposition to the petition alleging that the petition for
correction of entry in the Civil Registry pursuant to Article 412 of the New Civil Code of
the Philippines in relation to Rule 108 of the Revised Rules of Court, contemplates a
summary proceeding and correction of mere clerical errors, those harmless and
innocuous changes such as the correction of a name that is merely mispelled,
occupation of parents, etc., and not changes or corrections involving civil status,
nationality, or citizenship which are substantial and controversial.
Finding the petition to be sufficient in form and substance, the trial court issued an order
directing the publication of the petition and the date of hearing thereof in the Cebu
Advocate, a newspaper of general circulation in the city and province of Cebu, once a
week for three (3) consecutive weeks, and notice thereof, duly served on the Solicitor
General, the Local Civil Registrar of Cebu City and Go Eng.
Respondent Leonor Valencia, filed her reply to the opposition wherein she admitted that
the present petition seeks substantial changes involving the civil status and nationality
or citizenship of respondents, but alleged that substantial changes in the civil registry
records involving the civil status of parents, their nationality or citizenship may be
allowed if- (1) the proper suit is filed, and (2) evidence is submitted, either to support the
allegations of the petition or to disprove the same; that respondents have complied with
these requirements by filing the present special proceeding for cancellation or correction
of entries in the civil registry pursuant to Rule 108 of the Revised Rules of Court and
that they have caused reasonable notice to be given to the persons named in the
petition and have also caused the order for the hearings of their petition to be published
for three (3) consecutive weeks in a newspaper of general circulation in the province.
Subsequently, the Local Civil Registrar of Cebu City filed a motion to dismiss on the
ground that since the petition seeks to change the nationality or citizenship of Bernardo
Go and Jessica Go from "Chinese" to "Filipino" and their status from "Legitimate" to
Illegitimate", and changing also the status of the mother from "married" to "single" the
corrections sought are not merely clerical but substantial, involving as they do the
citizenship and status of the petitioning minors and the status of their mother.
The lower court denied the motion to dismiss.
After trial on the merits during which the parties were given all the opportunity to present
their evidence and refute the evidence and arguments of the other side, the lower court
rendered a decision the dispositive portion of which reads:
WHEREFORE, Judgment is hereby rendered granting the instant petition
and ordering the Local Civil Registrar of the City of Cebu to make the
necessary cancellation and/or correction on the following entries:
A. In the Record of Birth of BERNARDO GO, to register said Bernardo Go
as 'FILIPINO' instead of 'CHINESE'; as 'ILLEGITIMATE instead of

LEGITIMATE', and his father's (GO ENG) and mother's (LEONOR

VALENCIA) civil status as 'SINGLE instead of MARRIED';
B. In the Record of Birth of JESSICA GO to register said Jessica Go as
'FILIPINO' instead of 'CHINESE'; as 'ILLEGITIMATE' instead of
'LEGITIMATE' and father's (GO ENG) and mother's (LEONOR
VALENCIA) civil status as 'SINGLE instead of MARRIED': and
C. In both Records of Birth of Bernardo Go and Jessica Go to change the
entry on Petitioner's Citizenship from 'CHINESE to FILIPINO'.
Pursuant to Section 6, Rule 103 of the Rules of Court, the Clerk of Court is
hereby directed to furnish a copy of this decision to the Office of the Local
Civil Registrar of Cebu City, who shall forthwith enter the cancellation
and/'or correction of entries of birth of Bernardo Go and Jessica Go in the
Civil Registry as adverted to above.
From the foregoing decision, oppositor-appellant Republic of the Philippines appealed
to us by way of this petition for review on certiorari.
The petitioner Republic of the Philippines raises a lone error for the grant of this petition,
stating that:
THE LOWER COURT ERRED IN ORDERING THE CORRECTION OF
THE PETITIONER'S CITIZENSHIP AND CIVIL STATUS AND THE
CITIZENSHIP AND CIVIL STATUS OF HER MINOR CHILDREN
BERNARDO GO AND JESSICA GO.
The petitioner premises its case on precedents from the 1954 case of Ty Kong Tin v.
Republic (94 Phil. 321) to the 1981 case of Republic v. Caparosso (107 SCRA 67), that
entries which can be corrected under Article 412 of the New Civil Code as implemented
by Rule 108 of the Revised Rules of Court refer to those mistakes that are clerical in
nature or changes that are harmless and innocuous (Wong v. Republic, 115 SCRA 496).
In Republic v. Medina (119 SCRA 270) citing the case of Chua Wee, et al, v.
Republic (38 SCRA 409), there was this dicta:
From the time the New Civil Code took effect on August 30, 1950 until the
promulgation of the Revised Rules of Court on January 1, 1964, there was
no law nor rule of court prescribing the procedure to secure judicial
authorization to effect the desired innocuous rectifications or alterations in
the civil register pursuant to Article 412 of the New Civil Code. Rule 108 of
the Revise Rules of Court now provides for such a procedure which
should be limited solely to the implementation of Article 412, the
substantive law on the matter of correcting entries in the civil register. Rule
108, lie all the other provisions of the Rules of Court, was promulgated by
the Supreme Court pursuant to its rule- making authority under Sec. 13 of
Art. VIII of the Constitution, which directs that such rules of court 'shall not
diminish or increase or modify substantive rights.' If Rule 108 were to be
extended beyond innocuous or harmless changes or corrections of errors
which are visible to the eye or obvious to the understanding, so as to
comprehend substantial and controversial alterations concerning

citizenship, legitimacy or paternity or filiation, or legitimacy of marriage,

said Rule 108 would thereby become unconstitutional for it would be
increasing or modifying substantive rights, which changes are not
authorized under Article 412 of the New Civil Code.
xxx xxx xxx
It is undoubtedly true that if the subject matter of a petition is not for the correction of
clerical errors of a harmless and innocuous nature, but one involving nationality or
citizenship, which is indisputably substantial as well as controverted, affirmative relief
cannot be granted in a proceeding summary in nature. However, it is also true that a
right in law may be enforced and a wrong may be remedied as long as the appropriate
remedy is used. This Court adheres to the principle that even substantial errors in a civil
registry may be corrected and the true facts established provided the parties aggrieved
by the error avail themselves of the appropriate adversary proceeding. As a matter of
fact, the opposition of the Solicitor General dated February 20, 1970 while questioning
the use of Article 412 of the Civil Code in relation to Rule 108 of the Revised Rules of
Court admits that "the entries sought to be corrected should be threshed out in an
appropriate proceeding.
What is meant by "appropriate adversary proceeding?" Black's Law Dictionary defines
"adversary proceeding as follows:
One having opposing parties; contested, as distinguished from an ex parte
application, one of which the party seeking relief has given legal warning
to the other party, and afforded the latter an opportunity to contest it.
Excludes an adoption proceeding." (Platt v. Magagnini, 187 p. 716, 718,
110 Was. 39).
The private respondent distinguishes between summary proceedings contemplated
under Article 412 of the Civil Code and fullblown adversary proceedings which are
conducted under Rule 108 of the Rules of Court.
She states:
It will please be considered that the nature of the matters that may be
changed or corrected are of two kinds. It may either be mistakes that are
clerical in nature or substantial ones. Under the first category are those
'harmless and innocuous changes, such as correction of a name that is
clearly misspelled, occupation of the parents, etc.,' (Ansaldo v. Republic,
No. L-10276, Feb. 14, 1958, 54 O.G. 5886) or 'one' that is visible to the
eyes or obvious to the understanding'. (Black v. Republic, No. L-10869,
Nov. 28, 1958, 104 Phil. 848).
To the second category falls those which affect the civil status or
citizenship or nationality of a party (Ty Kong Tin v. Republic, No. L-5609,
Feb. 5, 1954, 94 Phil. 321: Tan Su v. Republic, No. L-12140, April 29,
1959, 105 Phil. 578: Black v. Republic, No. L-10869, Nov. 28, 1958, 104
Phil. 848; Bantoco Coo v. Republic, No. L-14978, May 23,1961, 2 SCRA
42: Barillo v. Republic, No. L-14823, Dec. 28, 1961, 3 SCRA 725).

Changes or corrections in the entries in the civil registry were governed, at

first, by Act No. 3753 (Civil Registry Law) which placed these matters
exclusively upon the sound judgment and discretion of the civil registrars.
With the effectivity of the New Civil Code on August 30, 1950, these
matters were governed by Article 412 thereof which prescribes judicial
order before an entry in a civil register shall be changed or corrected. This
requirement was deemed necessary to forestall the commission of fraud
or other mischief in these matters.
But even then, it is not any correction that can be considered under Article
412 of he Civil Code. The nature of the corrections sought has to be
considered and if found to refer only to clerical errors the same may be
allowed under said article which was construed to contemplate only a
summary proceeding.
And so in the Ty Kong Tin case, this Honorable Court took occasion to
draw a distinction between what entries in the civil register could be
corrected under Article 412 of the New Civil Code and what could not. In
the process, to our mind, this Honorable Court set down propositions
which hold true not only in that case but also in the subsequent cases for
the latter merely reiterated the Ty Kong Tin decision. These are:
First, that proceedings under Article 412 of the New Civil Code are
summary:
Second, that corrections in the entires in the civil register may refer to
either mere mistakes that are clerical in nature or substantial ones which
affects the civil status or -the nationality or citizenship of the persons
involved; and
Third, that if the change or correction sought refers to mere correction of
mistakes that are clerical in nature the same may be done, under Article
412 of the Civil Code; otherwise, if it refers to a substantial change which
affects the civil status or citizenship of a party. the matter should be
threshed out in a proper action.
To our humble estimation, these propositions do not altogether bar or
preclude substantial changes or corrections involving such details as the
civil status or nationality of a party. As a matter of fact, just three years
after the Ty Kong Tin decision, this Honorable Court allowed a party to
correct mistakes involving such substantial matters as his birthplace and
citizenship in the birth certificates of his two sons. (Lim v. Republic, No. L8932, May 31, 1957, 101 Phil. 1235)
Only that where the correction pertains to matters which are important and
controversial certain conditions sine que non have to be complied with.
Thus it was held:
If it refers to a substantial change which affects the status or citizenship of
a party, the matter should be threshed out in a proper action ... .' (Ty Kong
Tin v. Republic, supra)

. . . . for changes involving the civil status of the parents, their nationality
or citizenship, those are grave and important matters which may have a
bearing and effect on the citizenship and nationality not only of said
parents, but of the offsprings, and to seek said changes, it is not only the
State, but also all parties concerned and affected should be made parties
defendants or respondents, and evidence should be submitted, either to
support the allegations of the petition or complaint, or also to disprove the
same so that any order or decision in the case may be made in the entry
in a civil register that will affect or even determine conclusively the
citizenship or nationality of a person therein involved. (Ansaldo v.
Republic, 54 O.G. 5886; Emphasis supplied; Reiterated in the cases of:
Tan Su v. Republic, supra; Bantoto Coo v. Republic, supra; Barillo v.
Republic, supra; San Luis de Castro v. Republic, L-17431, April 30, 1963;
Ilu Lin v. Republic, L- 18213, Dec. 24, 1963; Reyes v. Republic, No.
L-17642, Nov. 27, 1964; Calicdan Baybayan v. Republic, L-20707, March
18, 1966; Tan v. Republic, L-19847, April 29, 1966).
If at all what is forbidden is, in the words of Mr. Justice J.B.L. Reyes, 'only
the entering of material corrections or amendments in the record of birth
by virtue of a judgment in a summary action against the Civil Registrar.
(Matias v. Republic, No.
L-26982, May 8, 1969.
It will thus be gleaned from the foregoing that corrections involving such
matters as the civil status of the parents, their nationality or citizenship
may be allowed provided the proper suit is filed.
The court's role in hearing the petition to correct certain entries in the civil registry is to
ascertain the truth about the facts recorded therein. Under our system of administering
justice, truth is best ascertained or approximated by trial conducted under the adversary
system,
Excerpts from the Report on Professional Responsibility issued jointly by the
Association of American Law Schools and the American Bar Association explain why:
An adversary presentation seems the only effective means for combatting
this natural human tendency to judge too swiftly in terms of the familiar
that which is not yet fully known. The arguments of counsel hold the case,
as it were, in suspension between two opposing interpretations of it. While
the proper classification of the case is thus kept unresolved, there is time
to explore all of its peculiarities and nuances.
These are the contributions made by partisan advocacy during the public
hearing of the cause. When we take into account the preparation that
must precede the hearing, the essential quality of the advocate's
contribution becomes even more apparent. Preceding the hearing
inquiries must be instituted to determine what facts can be proved or seem
sufficiently established to warrant a formal test of their truth during the
hearing. There must also be a preliminary analysis of the issues, so that
the hearing may have form and direction. These preparatory measures

are indispensable whether or not the parties involved in the controversy

are represented by advocates.
Where that representation is present there is an obvious advantage in the
fact that the area of dispute may be greatly reduced by an exchange of
written pleadings or by stipulations of counsel. Without the participation of
someone who can act responsibly for each of the parties, this essential
narrowing of the issues becomes impossible. But here again the true
significance of partisan advocacy lies deeper, touching once more the
integrity of the adjudicative process itself. It is only through the advocate's
participation that the hearing may remain in fact what it purports to be in
theory; a public trial of the facts and issues. Each advocate comes to the
hearing prepared to present his proofs and arguments, knowing at the
same time that his arguments may fail to persuade and that his proofs
may be rejected as inadequate. It is a part of his role to absorb these
possible disappointments. The deciding tribunal, on the other hand, comes
to the hearing uncommitted. It has not represented to the public that any
fact can be proved, that any argument is sound, or that any particular way
of stating a litigant's case is the most effective expression of its merits.
xxx xxx xxx
These, then, are the reasons for believing that partisan advocacy plays a
vital and essential role in one of the most fundamental procedures of a
democratic society. But if we were to put all of these detailed
considerations to one side, we should still be confronted by the fact that, in
whatever form adjudication may appear, the experienced judge or
arbitrator desires and actively seeks to obtain an adversary presentation
of the issues. Only when he has had the benefit of intelligent and vigorous
advocacy on both sides can he feel fully confident of his decision.
Viewed in this light, the role of the lawyer as a partisan advocate appears,
not as a regrettable necessity, but as an indispensable part of a larger
ordering of affairs. The institution of advocacy is not a concession to the
frailties of human nature, but an expression of human insight in the design
of a social framework within which man's capacity for impartial judgment
can attain its fullest realization. (44 American Bar Association Journal
(1160-1161, 1958)
Provided the trial court has conducted proceedings where all relevant facts have been
fully and properly developed, where opposing counsel have been given opportunity to
demolish the opposite party's case, and where the evidence has been thoroughly
weighed and considered, the suit or proceeding is appropriate.
The pertinent sections of Rule 108 provide:
SEC. 3. Parties When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.

SEC. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an orde, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once in a
week for three (3) consecutive weeks in a newspaper of general
circulation in the province.
SEC, 5. Opposition. The civil registrar and any person having or
claiming any interest under the entry whose cancellation or correction is
sought may, within fifteen (15) days from notice of the petition, or from the
last date of publication of such notice, file his opposition thereto.
Thus, the persons who must be made parties to a proceeding concerning the
cancellation or correction of an entry in the civil register are-(1) the civil registrar, and (2)
all persons who have or claim any interest which would be affected thereby. Upon the
filing of the petition, it becomes the duty of the court to-(l) issue an order fixing the time
and place for the hearing of the petition, and (2) cause the order for hearing to be
published once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province. The following are likewise entitled to oppose the petition: (I)
the civil registrar, and (2) any person having or claiming any interest under the entry
whose cancellation or correction is sought.
If all these procedural requirements have been followed, a petition for correction and/or
cancellation of entries in the record of birth even if filed and conducted under Rule 108
of the Revised Rules of Court can no longer be described as "summary". There can be
no doubt that when an opposition to the petition is filed either by the Civil Registrar or
any person having or claiming any interest in the entries sought to be cancelled and/or
corrected and the opposition is actively prosecuted, the proceedings thereon become
adversary proceedings.
In the instant case, a petition for cancellation and/or correction of entries of birth of
Bernardo Go and Jessica Go in the Civil Registry of the City of Cebu was filed by
respondent Leonor Valencia on January 27, 1970, and pursuant to the order of the trial
court dated February 4, 1970, the said petition was published once a week for three (3)
consecutive weeks in the, Cebu Advocate, a newspaper of general circulation in the City
of Cebu. Notice thereof was duly served on the Solicitor General. the Local Civil
Registrar and Go Eng. The order likewise set the case for hearing and directed the local
civil registrar and the other respondents or any person claiming any interest under the
entries whose corrections were sought, to file their opposition to the said petition. An
opposition to the petition was consequently filed by the Republic on February 26, 1970.
Thereafter a full blown trial followed with respondent Leonor Valencia testifying and
presenting her documentary evidence in support of her petition. The Republic on the
other hand cross-examined respondent Leonor Valencia.
We are of the opinion that the petition filed by the respondent in the lower court by way
of a special proceeding for cancellation and/or correction of entries in the civil register
with the requisite notice and publication and the recorded proceedings that actually took
place thereafter could very well be regarded as that proper suit or appropriate action.
In Matias v. Republic (28 SCRA 31), we held that:

xxx xxx xxx

. . . In the case of petitioner herein, however, the proceedings were not
summary, considering the publication of the petition made by order of the
court in order to give notice to any person that might be interested,
including direct service on the Solicitor General himself. Considering the
peculiar circumstances of this particular case, the fact that no doubt is cast
on the truth of petitioner's allegations, or upon her evidence in support
thereof, the absence of any showing that prejudice would be caused to
any party interested (since petitioner's own father testified in her favor),
and the publicity given to the petition, we are of the opinion that the Ty
Kong Tin doctrine is not controlling this case. "
Only last year, we had occasion to clarify the Ty Kong Tin doctrine, further. In Republic
v. Macli-ing (135 SCRA 367, 370-371), this Court ruled:
The principal ground relied upon in this appeal is that Rule 108 of the
Rules of Court upon which private respondents anchor their Petition is
applicable only to changes contemplated in Article 412 of the Civil Code,
which are clerical or innocuous errors, or to corrections that are not
controversial and are supported by indubitable evidence. (Tiong v.
Republic, 15 SCRA 262 [1965]).
It is true that the change from Esteban Sy to Sy Piao would necessarily
affect the Identity of the father. (Barillo v. Republic, 3 SCRA 725 [1961]) In
that sense, it can be said to be substantial. However, we find indubitable
evidence to support the correction prayed for. . . .
xxx xxx xxx
In the case of Ty Kong Tin v. Republic, 94 Phil. 321 (1954), as well as
subsequent cases predicated thereon, we forbade only the entering of
material corrections in the record of birth by virtue of a judgment in
a summary action. the proceedings below, although filed under Rule 108
of the Rules of Court, were not summary. The Petition was published by
order of the lower Court once a week for three consecutive weeks in a
newspaper of general circulation in accordance with law. The Solicitor
General was served with copy of the Petition as well as with notices of
hearings. He filed his Opposition to the Petition. The Local Civil Registrar
of the City of Baguio was likewise duly served with copy of the Petition. A
Fiscal was always in attendance at the hearings in representation of the
Solicitor General. He participated actively in the proceedings, particularly,
in the cross-examination of witnesses. And, notwithstanding that all
interested persons were cited to appear to show cause why the petition
should not be granted, no one appeared to oppose except the State
through the Solicitor General. But neither did the State present evidence in
support of its Opposition.

To follow the petitioner's argument that Rule 108 is not an appropriate proceeding
without in any way intimatingwhat is the correct proceeding or if such a proceeding
exists at all, would result in manifest injustice.
Apart from Bernardo Go and Jessica Go, there are four (4) other sisters and one (1)
other brother born of the same father and mother. Not only are all five registered as
Filipino citizens but they have pursued careers which require Philippine citizenship as a
mandatory pre-requisite. To emphasize the strict policy of the government regarding
professional examinations, it was the law until recently that to take the board exams for
pharmacist, the applicant should possess natural born citizenship. (See. 18, Republic
Act 5921 and Sec. 1, P.D. 1350)
The sisters and brother are:
1. Sally Go, born on April 29, 1934 was licensed as a Pharmacist after passing the
government board examinations in 1956.
2. Fanny Go, born on July 12, 1936 is a Registered Nurse who passed the government
board examinations in 1960.
3. Corazon Go, born on June 20, 1939, during the trial of this case in 1970 was a fourth
year medical student, qualified to take the government board examinations after
successfully completing the requirements for a career in medicine, and presumably is a
licensed physician now.
4. Antonio Go, born February 14, 1942 was an engineering student during the 1970 trial
of the case and qualified by citizenship to take government board examinations.
5. Remedios Go, born October 4, 1945 was a licensed Optometrist after passing the
government board examinations in 1967.
The above facts were developed and proved during trial. The petitioner failed to refute
the citizenship of the minors Bernardo and Jessica Go.
In this petition, it limits itself to a procedural reason to overcome substantive findings by
arguing that the proper procedure was not followed.
There are other facts on the record. Leonor Valencia is a registered voter and had
always exercised her right of suffrage from the time she reached voting age until the
national elections immediately preceding the filing of her petition. The five other sisters
and brother are also registered voters and likewise exercised the right of suffrage.
An uncle of the mother's side had held positions in the government having been elected
twice as councilor and twice as vice-mayor of Victorias, Negros Occidental. Respondent
Leonor Valencia has purchased and registered two (2) parcels of land as per Transfer
Certificate of Title No. T-46104 and Transfer Certificate of Title No. T-37275. These
allegations are well documented and were never contradicted by the Republic. As
correctly observed by the lower court.
The right of suffrage is one of the important rights of a citizen. This is also
true with respect to the acquisition of a real property. The evidence further

shows that her children had been allowed to take the Board Examinations
given by the Government for Filipino citizens only.
It would be a denial of substantive justice if two children proved by the facts to be
Philippine citizens, and whose five sisters and brother born of the same mother and
father enjoy all the rights of citizens, are denied the same rights on the simple argument
that the "correct procedure" not specified or even intimated has not been followed.
We are, therefore, constrained to deny the petition.
WHEREFORE, the petition is DENIED for lack of merit.
The decision of the lower court is AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32026 January 16, 1986
RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES.
ERLINDA REYNOSO REYES,petitioner,

vs.
HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First Instance of
Cavite, Branch II, Cavite City, respondents.

PATAJO, J.:
This is an appeal from an order of the Court of First Instance of Cavite dismissing the
petition filed by petitioner-appellant Erlinda Reynoso Reyes to have her husband
Roberto Reyes declared an absentee.
In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the declaration of the
absence of her husband Roberto L. Reyes alleging that her husband had been absent
from their conjugal dwelling since April 1962 and since then had not been heard from
and his whereabouts unknown. The petition further alleged that her husband left no will
nor any property in his name nor any debts.
The evidence presented by petitioner in support of her petition established that she and
Roberto L. Reyes were married on March 20, 1960; that sometime in April 1962 her
husband left the conjugal home due to some misunderstanding over personal matters;
that since then petitioner has not received any news about the whereabouts of her
husband; that they have not acquired any properties during their marriage and that they
have no outstanding obligation in favor of anyone; that her only purpose in filing the
petition is to establish the absence of her husband, invoking the provisions of Rule 107
of the New Rules of Court and Article 384 of the Civil Code.
After hearing the Court a quo dismissed the petition on the ground that since Roberto L.
Reyes left no properties there was no necessity to declare him judicially an absentee. It
said:
A perusal of Rule 107 of the Rules of Court on absentees reveals that it is
based on the provisions of Title XIV of the New Civil Code on absence.
And the reason and purpose of the provisions of the New Civil Code on
absence (Arts. 381 to 396) are: (1) The interest of the person himself who
has disappeared; (2) The rights of third parties against the absentee,
especially those who have rights which would depend upon the death of
the absentee; and (3) The general interest of society which may require
that property does not remain abandoned without someone representing it
and without an owner (Civil Code by Francisco, Vol. 2, pp. 930- 931, 1953
Ed.).
It will thus be noted that said provisions of the New Civil Code are
concerned with absence only with reference to its effects on property (2
Manresa, 101-102, Civil Code by Francisco, Vol. 2, p. 932. 1953 Ed.).
Article 384, New Civil Code, which is reproduced from Article 184 of the
old Code, and relied upon by herein petitioner, refers to the second period
or stage of absence, and specifically indicates the precise moment when
the same may begin. Thus, this article provides that after the lapse of two
(2) years without any news about the absentee or since the receipt of the
last news, and five (5) years in case the absentee has left a person in

charge of the administration of his property, his absence may be declared

by the Court. The primordial purpose of this declaration is to provide for an
administrator of the property of the absentee. It cannot be said that
because of the comma (,) between the words 'news' and 'and', the twoyear period mentioned in the first part of the law has no reference to or
bearing on the property of the absentee. Manresa states that the only
reason for the different periods is because in one case (2 years) the
absentee has not left a person in charge of the administration of his
property, and in the other case (5 years) the absentee has provided for his
absence by appointing an administrator of his property dispensing in a
way the giving of news about himself (2 Manresa, 127-128). It is worth to
note, in this connection, that the first period or stage of absence as
covered by Article 381 of the New Civil Code provides for provisional
measures-the appointment by the Court of a person to represent the
absentee' in all that may be necessary'-when a mere presumption of his
absence arises. It should be noted that the appointment of a
'representative' of the absentee is for the protection of the interest of the
latter. This is clear from the provisions of Article 382 which enjoins the
judge to 'take the necessary measures to safeguard the rights and
interests of the absentee. ... Moreover, it is not enough that a person is
declared an absentee. The law (see Articles 381, 382 and 383) requires
the judge to appoint a representative for the absentee precisely to
safeguard the property or interest of the latter. It is thus imperative that the
declaration of absence be for a specific purpose, and that purpose can be
no other than the protection of the interest or property of the absentee.
Castan, in his commentary, emphatically states that there must be an
immediate necessity for the representation of the absentee in some
specific urgent matters (Vol. 1, pp. 182-183).
The same observation and commentary can be said of the corresponding
complimenting provisions of Rule 107 of the Rules of Court, particularly
Sections 6 and 7 thereof which make it mandatory upon the Court to
appoint a representative, trustee or administrator who shall safeguard the
rights and interest of the absentee.
Considering that neither the petition alleges, nor the evidence shows, that
Roberto L. Reyes has any rights, interest or property in the Philippines,
there is no point in judicially declaring him an absentee.
We affirm the order of the lower Court dismissing the petition. As this Court said
in Jones vs. Hortiguela, 64 Phil. 197:
... For the purposes of the civil marriage law, it is not necessary to have
the former spouse judicially declared an absentee. The declaration of
absence made in accordance with the provisions of the Civil Code has for
its sole purpose to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of civil
marriage, however, the law only requires that the former spouse has been
absent for seven consecutive years at the time of the second marriage,
that the spouse present does not know his or her former spouse to he

living, that such former spouse is generally reputed to be dead and the
spouse present so believes at the time of the celebration of the marriage
(section III, paragraph 2, General Orders, No. 68). (On page 183).
The need to have a person judicially declared an absentee is when he has properties
which have to be taken cared of or administered by a representative appointed by the
Court (Article 384, Civil Code); the spouse of the absentee is asking for separation of
property (Article 191, Civil Code) or his wife is asking the Court that the administration
of an classes of property in the marriage be transferred to her (Article 196, Civil Code).
The petition to declare the husband an absentee and the petition to place the
management of the conjugal properties in the hands of the wife may be combined and
adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).
IN VIEW OF THE FOREGOING, judgment is hereby rendered AFFIRMING the order of
the lower Court dismissing the petition to declare Roberto L. Reyes an absentee. With
costs against petitioner-appellant.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova Gutierrez, Jr. and De la
Fuente, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 146963

March 15, 2004

REPUBLIC OF THE PHILIPPINES and THE LOCAL CIVIL REGISTRAR, GUIMBA,

NUEVA ECIJA, petitioners,
vs.
PETRONIO L. BENEMERITO, respondent.

DECISION

VITUG, J.:
The petition before the Court is an appeal from the decision of the Court of Appeals in
CA-G.R. CV No. 62777, promulgated on 29 January 2001, which has affirmed the
decision of the Regional Trial Court of Nueva Ecija, Branch 31, in Special Proclamation
No. 307-G, granting respondent's petition for correction of entry in the Certificate of Live
Birth of Joven Lee S. Benemerito, born on 01 June 1990, by changing the name of his
father appearing therein from Peter Laurente Benemerito to Petronio L. Benemerito,
and the date of marriage of the minors parents from 01 September 1989 to 25 January
1998.
On 29 February 1998, respondent Petronio L. Benemerito, filed a verified petition before
the Regional Trial Court of Nueva Ecija asking for the correction of certain entries in the
record of birth of his son, Joven Lee Benemerito, on file with the Local Civil Registrar of
Guimba, Nueva Ecija. The entries sought to be corrected included (a) a change of the father's name from Peter Laurente Benemerito to Petronio
L. Benemerito; and

(b) the date of marriage of Joven Lees parents, Edna V. Sicat and Petronio L.
Benemerito appearing therein from 01 September 1989 to 25 January 1998.
On 02 March 1998, a notice of hearing was issued by the trial court directing that the
notice be published for three consecutive weeks in a newspaper of general circulation.
The order was published in "Pulso ng Bayan," a newspaper of general circulation for
three (3) consecutive weeks, i.e., on 05, 12 and 19 March 1998.
Respondent testified that he and Edna V. Sicat were married on 25 January 1998. Prior
to their marriage, they had been living together as husband and wife without the benefit
of marriage and during the cohabitation, a son, Joven Lee Benemerito, was born to
them. According to respondent, he was surprised to later discover that his name was
erroneously recorded in the birth certificate of his son as Peter Laurente Benemerito
instead of his correct name Petronio Laurente Benemerito, and that the date of his
marriage with Edna V. Sicat appearing in the birth certificate of Joven Lee as 01
September 1989 instead of 25 January 1998.
On 20 April 1998, the trial court rendered a decision granting the petition filed by
respondent. The Republic appealed the decision to the Court of Appeals, contending
that the petition should not have been granted since indispensable parties themselves
were not notified of the proceedings and that substantial changes, such as the date of
marriage of parents, name of the father, or filiation of the child and whether legitimate or
illegitimate, could only be threshed out in adversarial proceedings.
On 29 January 2001, the Court of Appeals affirmed the trial court's decision stating that
"In the present case, the opportunity to contest the petition was afforded to all
concerned parties through the publication of the petition in `Pulso ng Bayan, a
newspaper of general circulation (Records, pp. 17, 20, and 23). Copies of the
Order dated March 2, 1998 were furnished to the Office of the Solicitor General,
the National Census and Statistics Office, the Provincial Prosecutor, and the
Office of the Local Registrar of Guimba, Nueva Ecija (Records, p. 10). The Public
Prosecutor appeared for the State but did not interpose any objection to the
petition (Rollo, p. 43). Decidedly, what the trial court conducted amounted to an
adversarial proceeding.
"The correction of the spelling of petitioner's name from Peter Laurente
Benemerito to Petronio Laurente Benemerito is an innocuous alteration.
"The change of the date of marriage from September 1, 1989 to reflect the actual
date of marriage as January 25, 1998, is likewise innocuous. Contrary to the
argument of the appellant, its legal effect is merely to change the status of the
child from legitimate to legitimated not illegitimate, as the child is the natural child
of both his parents who were not incapacitated to marry each other at the time of
the child's birth."1
In the instant petition, the Republic asserts that the changes sought by respondent are
substantial and not innocuous as so held by the Court of Appeals. Claiming that an
adversarial proceeding is essential to fully ventilate the allegations of the petition, the
Republic argues that indispensable parties, including the wife of the respondent or the
grandparents of the child, should have themselves been notified or been made parties
to the proceedings to shed light on the supposed discrepancies or errors found in the
birth certificate of Joven Lee Benemerito.
There is merit in the petition.

Rule 108 of the Rules of Court, in relation to Article 412 of the Civil Code, states the
procedure by which an entry in the civil register may be cancelled or corrected. The
proceeding there contemplated may generally be used only to correct clerical, spelling,
typographical and other innocuous errors in the civil registry. A clerical error is one
which is visible to the eyes or obvious to the understanding; an error made by a clerk or
a transcriber; a mistake in copying or writing,2 or a harmless change such as a
correction of name that is clearly misspelled or of a misstatement of the occupation of
the parent.3 On the other hand, substantial or contentious alterations may be allowed
only in adversarial proceedings, in which all interested parties are impleaded and due
process is properly observed.4
The "corrections" sought to be made by respondent in the birth certificate of Joven Lee
could hardly qualify as just clerical errors. In order to effect the desired changes, it
would be essential to establish that Peter Laurente Benemerito, the person named as
being the father of Joven Lee, and Petronio L. Benemerito, herein respondent, refer to
the same person. The intended correction of the date of marriage of the parents of
Joven Lee from 01 September 1989, appearing in his certificate of birth, to 25 January
1998, would, in effect, change the status of the child, Joven Lee, born on 01 June 1990
at a time when he and his wife were not as yet legally married, from being the legitimate
son of Peter Laurente Benemerito to being instead the legitimated child of Petronio L.
Benemerito and a certain Peter Laurente Benemerito.
The changes in the entry in the Certificate of Live Birth of Joven Lee S. Benemerito,
which can possibly affect successional and other rights of persons related to either or
both respondent and his wife, as well as that of Joven Lee himself, are simply too
substantial to be dealt with in summary, instead of the regular adversarial, proceedings,
where all interested parties are impleaded, or at least notified, and allowed to be heard
before the proposed changes in the birth certificate are effected.
Rule 108 of the Rules of Court provides that interested parties may avail themselves of
the appropriate adversarial proceeding to correct substantial errors and to establish the
true facts in the civil registry. A case does not amount to an adversarial proceeding
simply because an opportunity to contest the petition is afforded by the publication of
the petition in a newspaper of general circulation. The corresponding petition should
also implead as respondents the civil registrar and all other persons who may have or
may claim to have any interest that would be affected thereby.5
Apparently, the proceedings conducted by the trial court in the instant case fell much too
short of the requirements. Nowhere in the records would it appear that all possible
indispensable parties were duly notified of the proceedings.
Parenthetically, the recent enactment of Republic Act 9048, otherwise also known as
"An Act Authorizing the City or Municipal Civil Registrar or the Consul General to
Correct a Clerical or Typographical Error in an Entry and/or Change of First Name
or Nickname in the Civil Register Without Need of Judicial Order," only empowers
the City or Municipal Civil Registrar or the Consul General to correct clerical or
typographical errors and to allow a change in the first name or nickname in an entry in
the civil registry without further need of a judicial order. The obvious effect of Republic
Act 9048 is merely to make possible the administrative correction of clerical or
typographical errors or change of first name or nickname in entries in the civil register,
leaving to Rule 108 the correction of substantial changes in the civil registry in
appropriate adversarial proceedings.6
WHEREFORE, the appealed decision is REVERSED and SET ASIDE, without prejudice
on the part of respondent to initiate the appropriate adversarial proceedings such as
may be minded. No costs.

SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 170340

June 29, 2007

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
CARLITO I. KHO, MICHAEL KHO, MERCY NONA KHO-FORTUN, HEDDY MOIRA
KHO-SERRANO, KEVIN DOGMOC KHO (Minor), and KELLY DOGMOC KHO
(Minor), respondents.
DECISION
CARPIO MORALES, J.:
Challenged via petition for review on certiorari is the October 27, 2005 Decision 1 of the
Court of Appeals (CA) in CA-G.R. CV No. 78124 which affirmed the September 4, 2002
Decision2 of the Regional Trial Court (RTC) of Butuan City, Branch 5 granting the prayer
of respondents Carlito I. Kho (Carlito), Michael Kho, Mercy Nona Kho-Fortun, and

Heddy Moira Kho-Serrano for the correction of entries in their birth certificates as well
as those of Carlitos minor children Kevin and Kelly Dogmoc Kho.
The undisputed facts are as follows:
On February 12, 2001, Carlito and his siblings Michael, Mercy Nona and Heddy Moira
filed before the RTC of Butuan City a verified petition for correction of entries in the civil
registry of Butuan City to effect changes in their respective birth certificates. Carlito also
asked the court in behalf of his minor children, Kevin and Kelly, to order the correction of
some entries in their birth certificates.
In the case of Carlito, he requested the correction in his birth certificate of the
citizenship of his mother to "Filipino" instead of "Chinese," as well as the deletion of the
word "married" opposite the phrase "Date of marriage of parents" because his parents,
Juan Kho and Epifania Inchoco (Epifania), were allegedly not legally married.
The same request to delete the "married" status of their parents from their respective
birth certificates was made by Carlitos siblings Michael, Mercy Nona, and Heddy Moira.
With respect to the birth certificates of Carlitos children, he prayed that the date of his
and his wifes marriage be corrected from April 27, 1989 to January 21, 2000, the date
appearing in their marriage certificate.
The Local Civil Registrar of Butuan City was impleaded as respondent.
On April 23, 2001, Carlito et al. filed an Amended Petition 3 in which it was additionally
prayed that Carlitos second name of "John" be deleted from his record of birth; and that
the name and citizenship of Carlitos father in his (Carlitos) marriage certificate be
corrected from "John Kho" to "Juan Kho" and "Filipino" to "Chinese," respectively.
As required, the petition was published for three consecutive weeks 4 in Mindanao Daily
Patrol-CARAGA, a newspaper of general circulation, after which it was set for hearing
on August 9, 2001.
In a letter of June 18, 2001 addressed to the trial court, the city civil registrar 5 stated her
observations and suggestions to the proposed corrections in the birth records of Carlito
and his siblings but interposed no objections to the other amendments.
On the scheduled hearing of the petition on August 9, 2001, only the counsel for
respondents appeared as the Office of the Solicitor General (OSG) had yet to enter its
appearance for the city civil registrar. The trial court thus reset the hearing to October 9,
2001.6 On September 14, 2001,7 the OSG entered its appearance with an authorization
to the city prosecutor of Butuan City to appear in the case and render assistance to it
(the OSG).
On January 31, 2002, respondents presented documentary evidence showing
compliance with the jurisdictional requirements of the petition. They also presented
testimonial evidence consisting of the testimonies of Carlito and his mother, Epifania.
During the same hearing, an additional correction in the birth certificates of Carlitos
children was requested to the effect that the first name of their mother be rectified from
"Maribel" to "Marivel."

By Decision8 of September 4, 2002, the trial court directed the local civil registrar of
Butuan City to correct the entries in the record of birth of Carlito, as follows: (1) change
the citizenship of his mother from "Chinese" to "Filipino"; (2) delete "John" from his
name; and (3) delete the word "married" opposite the date of marriage of his parents.
The last correction was ordered to be effected likewise in the birth certificates of
respondents Michael, Mercy Nona, and Heddy Moira.
Additionally, the trial court ordered the correction of the birth certificates of the minor
children of Carlito to reflect the date of marriage of Carlito and Marivel Dogmoc
(Marivel) as January 21, 2000, instead of April 27, 1989, and the name "Maribel" as
"Marivel."
With respect to the marriage certificate of Carlito and Marivel, the corrections ordered
pertained to the alteration of the name of Carlitos father from "John Kho" to "Juan Kho"
and the latters citizenship from "Filipino" to "Chinese."
Petitioner, Republic of the Philippines, appealed the RTC Decision to the CA, faulting
the trial court in granting the petition for correction of entries in the subject documents
despite the failure of respondents to implead the minors mother, Marivel, as an
indispensable party and to offer sufficient evidence to warrant the corrections with
regard to the questioned "married" status of Carlito and his siblings parents, and the
latters citizenship.
Petitioner also faulted the trial court for ordering the change of the name "Carlito John
Kho" to "Carlito Kho" for non-compliance with jurisdictional requirements for a change of
name under Rule 103 of the Rules of Court.
By the assailed Decision of October 27, 2005, the CA denied petitioners appeal and
affirmed the decision of the trial court.
The CA found that Rule 108 of the Revised Rules of Court, which outlines the proper
procedure for cancellation or correction of entries in the civil registry, was observed in
the case.
Regarding Carlitos minor children Kevin and Kelly, the appellate court held that the
correction of their mothers first name from "Maribel" to "Marivel" was made to rectify an
innocuous error.
As for the change in the date of the marriage of Carlito and Marivel, albeit the CA
conceded that it is a substantial alteration, it held that the date would not affect the
minors filiation from "legitimate" to "illegitimate" considering that at the time of their
respective births in 1991 and 1993, their father Carlitos first marriage was still
subsisting as it had been annulled only in 1999.
In light of Carlitos legal impediment to marry Marivel at the time they were born, their
children Kevin and Kelly were illegitimate. It followed, the CA went on to state, that
Marivel was not an indispensable party to the case, the minors having been represented
by their father as required under Section 5 of Rule 3 9 of the Revised Rules of Court.
Further, the CA ruled that although Carlito failed to observe the requirements of Rule
103 of the Rules of Court, he had complied nonetheless with the jurisdictional

requirements for correction of entries in the civil registry under Rule 108 of the Rules of
Court. The petition for correction of entry in Carlitos birth record, it noted, falls under
letter "o" of the enumeration under Section 2 of Rule 108.
In the present petition, petitioner contends that since the changes sought by
respondents were substantial in nature, they could only be granted through an
adversarial proceeding in which indispensable parties, such as Marivel and
respondents parents, should have been notified or impleaded.
Petitioner further contends that the jurisdictional requirements to change Carlitos name
under Section 2 of Rule 103 of the Rules of Court were not satisfied because the
Amended Petition failed to allege Carlitos prior three-year bona fide residence in
Butuan City, and that the title of the petition did not state Carlitos aliases and his true
name as "Carlito John I. Kho." Petitioner concludes that the same jurisdictional defects
attached to the change of name of Carlitos father.
The petition fails.
It can not be gainsaid that the petition, insofar as it sought to change the citizenship of
Carlitos mother as it appeared in his birth certificate and delete the "married" status of
Carlitos parents in his and his siblings respective birth certificates, as well as change
the date of marriage of Carlito and Marivel involves the correction of not just clerical
errors of a harmless and innocuous nature. 10 Rather, the changes entail substantial and
controversial amendments.
For the change involving the nationality of Carlitos mother as reflected in his birth
certificate is a grave and important matter that has a bearing and effect on the
citizenship and nationality not only of the parents, but also of the offspring. 11
Further, the deletion of the entry that Carlitos and his siblings parents were "married"
alters their filiation from "legitimate" to "illegitimate," with significant implications on their
successional and other rights.
Clearly, the changes sought can only be granted in an adversary proceeding. LabayoRowe v. Republic12explains the raison d etre:
x x x. The philosophy behind this requirement lies in the fact that the books making up
the civil register and all documents relating thereto shall be prima facie evidence of the
facts therein contained. If the entries in the civil register could be corrected or changed
through mere summary proceedings and not through appropriate action wherein all
parties who may be affected by the entries are notified or represented, the door to fraud
or other mischief would be set open, the consequence of which might be detrimental
and far reaching. x x x (Emphasis supplied)
In Republic v. Valencia,13 however, this Court ruled, and has since repeatedly ruled, that
even substantial errors in a civil registry may be corrected through a petition filed under
Rule 108.14
It is undoubtedly true that if the subject matter of a petition is not for the correction of
clerical errors of a harmless and innocuous nature, but one involving nationality or
citizenship, which is indisputably substantial as well as controverted, affirmative relief

cannot be granted in a proceeding summary in nature. However, it is also true that a

right in law may be enforced and a wrong may be remedied as long as the appropriate
remedy is used. This Court adheres to the principle that even substantial errors in a civil
registry may be corrected and the true facts established provided the parties aggrieved
by the error avail themselves of the appropriate adversary proceeding.
xxxx
What is meant by "appropriate adversary proceeding?" Blacks Law Dictionary defines
"adversary proceeding["] as follows:
One having opposing parties; contested, as distinguished from an ex parte application,
one of which the party seeking relief has given legal warning to the other party, and
afforded the latter an opportunity to contest it. x x x 15 (Emphasis, italics and
underscoring supplied)
The enactment in March 2001 of Republic Act No. 9048, otherwise known as "An Act
Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a
Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in
the Civil Register Without Need of Judicial Order," has been considered to lend
legislative affirmation to the judicial precedence that substantial corrections to the civil
status of persons recorded in the civil registry may be effected through the filing of a
petition under Rule 108.16
Thus, this Court in Republic v. Benemerito17 observed that the obvious effect of
Republic Act No. 9048 is to make possible the administrative correction of clerical or
typographical errors or change of first name or nickname in entries in the civil register,
leaving to Rule 108 the correction of substantial changes in the civil registry in
appropriate adversarial proceedings.
When all the procedural requirements under Rule 108 are thus followed, the appropriate
adversary proceeding necessary to effect substantial corrections to the entries of the
civil register is satisfied.18 The pertinent provisions of Rule 108 of the Rules of Court
read:
SEC. 3. Parties. When cancellation or correction of an entry in the civil registrar is
sought, the civil registrar andall persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall also cause the
order to be published once in a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within fifteen
(15) days from notice of the petition, or from the last date of publication of such notice,
file his opposition thereto. (Emphasis and underscoring supplied)

There is no dispute that the trial courts Order19 setting the petition for hearing and
directing any person or entity having interest in the petition to oppose it was posted 20 as
well as published for the required period; that notices of hearings were duly served on
the Solicitor General, the city prosecutor of Butuan and the local civil registrar; and that
trial was conducted on January 31, 2002 during which the public prosecutor, acting in
behalf of the OSG, actively participated by cross-examining Carlito and Epifania.
What surfaces as an issue is whether the failure to implead Marivel and Carlitos
parents rendered the trial short of the required adversary proceeding and the trial
courts judgment void.
A similar issue was earlier raised in Barco v. Court of Appeals. 21 That case stemmed
from a petition for correction of entries in the birth certificate of a minor, June Salvacion
Maravilla, to reflect the name of her real father (Armando Gustilo) and to
correspondingly change her surname. The petition was granted by the trial court.
Barco, whose minor daughter was allegedly fathered also by Gustilo, however, sought
to annul the trial courts decision, claiming that she should have been made a party to
the petition for correction. Failure to implead her deprived the RTC of jurisdiction, she
contended.
In dismissing Barcos petition, this Court held that the publication of the order of hearing
under Section 4 of Rule 108 cured the failure to implead an indispensable party.
The essential requisite for allowing substantial corrections of entries in the civil registry
is that the true facts be established in an appropriate adversarial proceeding. This is
embodied in Section 3, Rule 108 of the Rules of Court, which states:
Section 3. Parties. When cancellation or correction of an entry in the civil register is
sought, the civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
xxxx
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her
interest was affected by the petition for correction, as any judicial determination that
June was the daughter of Armando would affect her wards share in the estate of her
father. x x x.
Yet, even though Barco was not impleaded in the petition, the Court of Appeals correctly
pointed out that the defect was cured by compliance with Section 4, Rule 108, which
requires notice by publication x x x.
xxxx
The purpose precisely of Section 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition. The sweep of the decision would cover even
parties who should have been impleaded under Section 3, Rule 108, but were
inadvertently left out. x x x
xxxx

Verily, a petition for correction is an action in rem, an action against a thing and not
against a person. The decision on the petition binds not only the parties thereto but the
whole world. An in rem proceeding is validated essentially through publication.
Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right
sought to be established. It is the publication of such notice that brings in the whole
world as a party in the case and vests the court with jurisdiction to hear and decide it. 22
Given the above ruling, it becomes unnecessary to rule on whether Marivel or
respondents parents should have been impleaded as parties to the proceeding. It may
not be amiss to mention, however, that during the hearing on January 31, 2002, the city
prosecutor who was acting as representative of the OSG did not raise any objection to
the non-inclusion of Marivel and Carlitos parents as parties to the proceeding.
Parenthetically, it seems highly improbable that Marivel was unaware of the
proceedings to correct the entries in her childrens birth certificates, especially since the
notices, orders and decision of the trial court eHe were all sent to the residence 23 she
shared with Carlito and the children.
It is also well to remember that the role of the court in hearing a petition to correct
certain entries in the civil registry is to ascertain the truth about the facts recorded
therein.24
With respect to the date of marriage of Carlito and Marivel, their certificate of
marriage25 shows that indeed they were married on January 21, 2000, not on April 27,
1989. Explaining the error, Carlito declared that the date "April 27, 1989" was supplied
by his helper, adding that he was not married to Marivel at the time his sons were born
because his previous marriage was annulled only in 1999. 26 Given the evidence
presented by respondents, the CA observed that the minors were illegitimate at birth,
hence, the correction would bring about no change at all in the nature of their filiation.
With respect to Carlitos mother, it bears noting that she declared at the witness stand
that she was not married to Juan Kho who died in 1959. 27 Again, that testimony was not
challenged by the city prosecutor.
The documentary evidence supporting the deletion from Carlitos and his siblings birth
certificates of the entry "Married" opposite the date of marriage of their parents,
moreover, consisted of a certification issued on November 24, 1973 by St. Joseph
(Butuan City) Parish priest Eugene van Vught stating that Juan Kho and Epifania had
been living together as common law couple since 1935 but have never contracted
marriage legally.28
A certification from the office of the city registrar, which was appended to respondents
Amended Petition, likewise stated that it has no record of marriage between Juan Kho
and Epifania.29 Under the circumstances, the deletion of the word "Married" opposite the
"date of marriage of parents" is warranted.
With respect to the correction in Carlitos birth certificate of his name from "Carlito John"
to "Carlito," the same was properly granted under Rule 108 of the Rules of Court. As
correctly pointed out by the CA, the cancellation or correction of entries involving

changes of name falls under letter "o" of the following provision of Section 2 of Rule
108:30
Section 2. Entries subject to cancellation or correction. Upon good and valid grounds,
the following entries in the civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separation; (e) judgments of annulment of marriage; (f)
judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions;
(i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery
of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o)changes of name. (Emphasis and underscoring
supplied)
Hence, while the jurisdictional requirements of Rule 103 (which governs petitions for
change of name) were not complied with, observance of the provisions of Rule 108
suffices to effect the correction sought for.
More importantly, Carlitos official transcript of record from the Urious College in Butuan
City,31 certificate of eligibility from the Civil Service Commission, 32 and voter registration
record33 satisfactorily show that he has been known by his first name only. No prejudice
is thus likely to arise from the dropping of the second name.
The correction of the mothers citizenship from Chinese to Filipino as appearing in
Carlitos birth record was also proper. Of note is the fact that during the cross
examination by the city prosecutor of Epifania, he did not deem fit to question her
citizenship. Such failure to oppose the correction prayed for, which certainly was not
respondents fault, does not in any way change the adversarial nature of the
proceedings.
Also significant to note is that the birth certificates of Carlitos siblings uniformly stated
the citizenship of Epifania as "Filipino." To disallow the correction in Carlitos birth record
of his mothers citizenship would perpetuate an inconsistency in the natal circumstances
of the siblings who are unquestionably born of the same mother and father.
Outside the ambit of substantial corrections, of course, is the correction of the name of
Carlitos wife from "Maribel" to "Marivel." The mistake is clearly clerical or typographical,
which is not only visible to the eyes, but is also obvious to the
understanding34 considering that the name reflected in the marriage certificate of Carlito
and his wife is "Marivel."
Apropos is Yu v. Republic35 which held that changing the appellants Christian name of
"Sincio" to "Sencio" amounts merely to the righting of a clerical error. The change of
name from Beatriz Labayo/Beatriz Labayu to Emperatriz Labayo was also held to be a
mere innocuous alteration, which can be granted through a summary proceeding. 36 The
same ruling holds true with respect to the correction in Carlitos marriage certificate of
his fathers name from "John Kho" to "Juan Kho." Except in said marriage certificate, the
name "Juan Kho" was uniformly entered in the birth certificates of Carlito and of his
siblings.37
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is
AFFIRMED.

SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
Adm. Matter No. 06-7-414-RTC

October 19, 2007

RE: FINAL REPORT ON THE JUDICIAL AUDIT CONDUCTED AT THE REGIONAL

TRIAL COURT, BR. 67, PANIQUI, TARLAC.
DECISION
TINGA, J.:
This administrative matter arose from the judicial audit and physical inventory of cases
conducted on 20-24 June 2005 at the Regional Trial Court (RTC) of Paniqui, Tarlac,
Branch 67, then presided by Judge Cesar M. Sotero who compulsorily retired on 23
February 2006.
As of audit date, the RTC had a total caseload of 523 cases consisting of 309 criminal
cases and 214 civil cases, including 33 unaccounted LRC cases. The Audit Team made
the following observations:
In the conduct of the audit, the Team used the case numbers in the Docket Books from
January 2003 up to [the] present as reference in the inventory of cases. Entries in the

docket books are insufficient especially in the special proceedings cases which merely
indicate the title of the case and the date the case was filed and the word "decided."
During the audit, it was observed by the Team that there was no special proceeding
case records presented. Upon inquiry, Clerk of Court Paulino Saguyod averred that
mostly [sic] of these cases are for Petitions for Correction of Entries in the Civil Registry
and mostly [sic] are already decided and there are only few pending. Considering that
the docket books have insufficient entries, the Team Leader used as reference the case
numbers filed from January 2003 up to [the] present. During the random sampling of
records, the same cannot be produced as the records were already bundled. x x x
COC Saguyod gave the team four (4) [folder] copies of decisions in the special
proceedings cases. Initial findings reveal that the date of filing indicated in the docket
books and the date of decision was so near that it will be highly improbable that the
required publication will be complied with. Hence, the Team demanded for [sic] the
production of 608 case records of special proceeding[s] cases.
In the copies of decisions presented, common in the second paragraph of the pro-forma
decisions, are statements that "finding the petition to be sufficient in form and
substance, the same was set for hearing on x x x. On said date and time, the petition
was announced in open court. Nobody interposed any objection. Accordingly, the
counsel for petitioner presented documentary evidence to prove jurisdictional facts
([Exh.] "A" and series). Thereafter, he moved and was allowed to adduce further
evidence before the Clerk of Court and at [sic] the presence of the Assistant Provincial
Prosecutor who appeared in behalf of the State." However, during the course of the
audit it was observed by the Team that almost all of the petitions are pro-forma and
notarized by COC Saguyod as ex-officio notary public. There are even unsigned,
unverified and not notarized petitions granted by the Court. Further, almost all of them
have no hearings conducted that it will be improbable if not possible that the court
orders be published in a newspaper of general circulation as required by the Rules of
Court. The docketing of cases was not also in sequence as to its date of filing (Annex
"A").
Moreover, there are eighty-six (86) petitions [where] the date of filing were simultaneous
or ahead of the date of [the] alleged hearing/decision (Annex "B") and fifty-eight (58)
petitions [were] found to have either no [c]ourt action or no further action for a
considerable length of time (Annex "C"). Also, nine (9) petitions have similar docket
numbers and three (3) cases with the same docket number (Annex "D") while one
hundred seventy-nine (179) cases [sic] records were not presented to the Team (Annex
"E").
Further, in the reconciliation of the Semestral Docket Inventory for the period JulyDecember 2004 of Land Registration Cases, thirty-three (33) case records are
unaccounted [for] x x x.
The Team also observed that there is no Certificate of Arraignment attached to [the]
criminal case records. Minutes of the Hearing have no summary of what transpired
during the hearing of the case. Docket books for criminal and civil cases are [sic] not
updated. [The] [d]ocket book for special proceedings cases merely indicated the title of

the case and the date it was filed with [a] notation "decided." There is no docket book
shown for land registration cases.
Anent Election Protest No. 001-04, the Court in its order dated 04 June 2004 directed
the protestant to make an initial deposit of [P]500.00 per ballot box (61 ballot boxes) as
compensation for the revisors within five (5) days from notice. There was no receipt
attached to the records of the case. COC Saguyod explained that the receipt was with
the protestant and that the same was not per official receipt and not deposited to [sic]
the Fiduciary Account as the same will be paid to the revisors. He claimed that he will
also render an accounting of the expenses incurred at the end of the hearing.
Likewise noted are the payments made in SP Nos. 1032 and 1033, both undocketed
petitions, [having] the same Official Receipts Numbers which when compared with the
original receipts[,] referred to other cases and/or transactions x x x. 1
In view of its observation, the Audit Team recommended in its Memorandum dated 11
July 20052 that Judge Sotero and Clerk of Court Paulino I. Saguyod be directed to
explain the following within ten (10) days from notice:
(a) why 375 petitions for change of name and/or correction of entries in the civil
registry were granted without the required hearing and publication, in gross
violation of the provisions of Rule 108 of the Rules on Civil Procedure;
(b) why the dates of filing of 86 other petitions were either the same as or ahead
of the date of the alleged hearing/decision;
(c) why 70 petitions had no court action after their filing or no further
action/setting for a considerable length of time after the last order/incident of the
case;
(d) why nine (9) petitions had similar docket numbers and three (3) other cases
had the same docket number; and
(e) why the records of 179 special proceedings and those of 33 land registration
case were not presented to the Audit Team.3
It was also recommended that Clerk of Court Saguyod be required to: (a) explain why
the initial deposit ofP500.00 per ballot box for 61 ballot boxes made by the protestant in
Election Protest No. 001-04 pursuant to the order of 4 June 2004 was not remitted to
the Fiduciary Fund Account; and (b) explain the discrepancy in the official receipts
representing the payment of filing fees for Spec. Proc. Nos. 1028, 1029 and 1030 which
appeared as payment for Spec. Proc. Nos. 1032 and 1033. 4
Judge Sotero and Clerk of Court Saguyod jointly filed an Explanation dated 1 August
2005,5 giving the following reasons for their actions:
(a) As to the petitions for correction of entry/ies without hearing and publication
Judge Sotero and Clerk of Court Saguyod explained that almost all of these petitions
may be covered by Republic Act (R.A.) No. 90486 which authorizes city or municipal civil
registrars to correct clerical or typographical errors in an entry and/or change the first

name or nickname in the civil registry without need for a judicial order. The petitions
were filed before the trial court because there was no incumbent Local Civil Registrar
and the OIC-Civil Registrar could not act on these petitions under R.A. No. 9048. Since
R.A. No. 9048 allows corrections of entries without hearing and publication for as long
as the necessary documents are submitted, the trial court considered the same
procedure as applicable to the petitions for correction of entries filed before it. The Clerk
of Court still held ex parte hearings to receive the evidence. In resolving these petitions
which are summary and non-adversarial in nature, the trial court adopted the procedure
in civil cases where the defendant is declared in default and the court renders judgment
based on the pleadings filed by plaintiff and grants such relief as may be warranted,
following Sec. 3, Rule 9 of the Revised Rules of Court. The trial court adopted this
procedure to expedite the resolution of said petitions to afford the court more time to
devote to the resolution of criminal and civil cases that required more attention.
(b) As to the 86 petitions that were resolved on the same date as the date of filing or
date of hearing
These petitions were for correction of entry/ies and involved innocuous errors that may
be subject of administrative corrections under R.A. No. 9048. The trial court resolved
these petitions with dispatch to accommodate the petitioners need to have their civil
registry documents immediately corrected to conform with their passport applications,
applications to take board examinations and petitions to travel abroad. The petitioners
discovered the errors after they submitted the required documents and yet they were
given a limited period to secure the correction of the erroneous entries. If the corrected
documents were not submitted on time, the applications of the petitioners would be
denied and the denials would mean lost opportunities, particularly for the applicants for
overseas contract work and applicants to take board examinations. Judge Sotero was
more lenient in such instances since in his view no substantial prejudice would ensue.
In any event, he resolved to adopt, henceforth, a stricter policy in cases where no
publication is required, by imposing a ten (10) day period for posting of the petition after
its filing and seeing to it that the petition is set for hearing only after it is so posted.
(c) As to the 70 petitions where no court action was taken for a considerable length of
time after filing
Some are petitions for adoption awaiting the submission of the Home Study and Child
Study Reports by the social welfare officers assigned to the cases. The initial hearing
cannot proceed without the reports being submitted to the court.
Others are petitions for correction of entry/ies where the petitioners have not yet
submitted the required supporting documents. They will be either dismissed for lack of
interest in due time or resolved within the next thirty (30) days.
The rest are petitions for judicial reconstitution of title which are still pending because
the reports and recommendation of the Land Registration Authority have not yet been
submitted to the court.
(d) As to the petitions with similar/same docket numbers

According to the docket clerk, Mr. Ruben A. Gigante, the nine (9) petitions with similar
docket numbers were either cancelled or withdrawn by petitioner/s (they bear the
notation "no action taken").
As to the three (3) cases with the same docket number, Mr. Gigante admitted that he
failed to enter the first filed petition in the docket book, and that he accepted for filing the
succeeding petitions but assigned the same case number without indicating a letter
after the number to distinguish the second and third petitions from the first.
It was admitted that the irregularity was the offshoot of inefficiency in the docketing
system. To avoid similar incidents, the Clerk-in-Charge of Civil Cases was assigned to
take charge of the docket in special proceedings and land registration cases in place of
Mr. Gigante who is only a utility clerk.
(e) As to un-audited records of 179 special proceedings and 33 land registration cases

Judge Sotero and Clerk of Court Saguyod reported that as of the time of the submission
of the explanation, the records of 124 special proceedings and 10 land registration
cases had been accounted for. Thereupon, they requested another 15 days to retrieve
the remaining records which they believe were soaked in floodwater in 2004.
The Office of the Court Administrator (OCA), in its Memorandum dated 8 May
2006,7 deemed the explanation bereft of merit or deserving of scant consideration. The
OCA noted that the petitions for change of name and/or correction of entries in the civil
registry are special proceedings governed either by Rules 103 or 108 of the Revised
Rules of Court. Sec. 3, Rule 103 specifically provides when the order for hearing of
such petitions shall be issued and what the order should contain, thus:
SEC. 3. Order for hearing.If the petition filed is sufficient in form and substance, the
court, by an order reciting the purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be published before the hearing
at least once a week for three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem best. The date set for the
hearing shall not be within thirty (30) days prior to an election or within four (4) months
after the last publication of the notice.
Sec. 4, Rule 108 similarly requires the issuance of an order of hearing and the
publication of the order in petitions for correction of entries in the civil registry, thus:
SEC. 4. Notice and Publication.Upon the filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the person named in the petition. The court shall also cause the
order to be published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
The OCA maintained that the provisions of the Rules of Court on publication of the order
of hearing should have been strictly observed as publication is a jurisdictional
requirement. Hence, the OCA remarked, it is appalling that Judge Sotero and Clerk of
Court Saguyod favorably acted on the petitions even though they were only pro-forma
and notarized by Saguyod as an ex officio notary public and still others were unsigned,

unverified or unnotarized. Some 86 petitions were found to bear dates of filing which are
the same as or ahead of the date of the alleged hearing/decision, clearly belying the
claim of Judge Sotero that hearings on these petitions were conducted or that they were
referred to the Clerk of Court for presentation of evidence ex parte. Said practices,
according to the OCA, constitute a mockery of established procedure under the Rules of
Court, especially since nothing in R.A. No. 9048 or its Implementing Rules and
Regulations would justify the procedure that Judge Sotero and Clerk of Court Saguyod
adopted.
The OCA observed that what R.A. No. 9048 mandates is the administrative proceeding
for change of name/correction of entry in the civil registry which has no application to a
petition for change of name or correction of entry filed in court. Thus, the OCA went on
to say, Judge Soteros ratiocination for adopting the procedure under R.A. No. 9048 or
for treating the petitions in the same manner as ordinary cases where the defendant is
declared in default displays a deplorable lack of grasp or total ignorance of the Rules of
Civil Procedure, notwithstanding his claim that he did so for the purpose of expediting
the resolution of the petitions.
As to the fifty-six (56) petitions where no action was taken by Judge Sotero for almost
one year, the OCA found him to be decidedly remiss in the performance of his duties
and responsibilities. As court manager, it was incumbent upon Judge Sotero to adopt a
system of record management since the prompt disposition of the courts business is
attained only through proper and efficient court management, the OCA added.
The OCA recommended that Judge Sotero be fined for gross ignorance of the law and
gross inefficiency in the amount of P100,000.00, to be deducted from his retirement
benefits, and that the amount of P50,000.00 be withheld from such benefits pending the
outcome of the financial audit.8
As to Clerk of Court Saguyod, the OCA recommended that he be directed to submit a
report of the actions taken on the civil and criminal cases then pending before the RTC
which Judge Sotero was directed to either decide with dispatch or immediately act
upon. Saguyod complied with the submission of his Report dated 22 September 2006
which was in turn referred to the OCA for further action. 9
After careful consideration of the findings and recommendations of the OCA, the Court
agrees that indeed Judge Sotero is guilty of gross ignorance of the law.
Articles 37610 and 41211 of the New Civil Code are the substantive laws covering the
alteration or correction of entries in the civil registry. Civil registry records are public
documents and are accepted as prima facie evidence of the facts contained
therein,12 which is why prior to the enactment of R.A. No. 9048, changes or corrections
thereof could be made only upon judicial authorization. Rules 103 and 108 of the
Revised Rules of Court provide the procedure for such alterations in the civil registry.
The procedure for change of name under Rule 103 is a proceeding in rem and as such
strict compliance with all jurisdictional requirements, particularly on publication, is
essential in order to vest the court with jurisdiction. 13 The reason for this is that a change
of name is a matter of public interest.14

Petitions for cancellation or correction of entries in the civil registry are governed by
Rule 108. This rule covers petitions for corrections of clerical errors of a harmless or
innocuous nature, as well as petitions which seek to effect substantial changes or
corrections in entries for as long as all the procedural requirements in said rule are
followed. In Republic v. Bautista,15 citing Republic v. Valencia,16 it was declared that the
proceedings under Rule 108 may either be summary or adversarial in nature. If the
correction sought to be made in the civil registry is clerical, the procedure to be adopted
is summary. If the rectification affects the civil status, citizenship or nationality of a party,
it is deemed substantial and the procedure to be adopted is adversarial. 17 The
procedure under Rule 108 becomes the appropriate adversarial proceeding to effect
substantial changes in the registry only if the procedural requirements therein are
complied with.18
R.A. No. 9048, enacted in 2001, substantially amended Articles 376 and 412 of the New
Civil Code, to wit:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First
Name or Nickname.No entry in a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
Thus, under this new law, clerical or typographical errors and change of first name or
nickname may be corrected or effected by the concerned city or municipal registrar or
consul general, without need of any judicial order.
At first glance, the seeming effect of the amendment is to remove from the ambit of Rule
108 the correction of clerical or typographical errors or change of entries in the civil
register and to make Rule 108 apply only to substantial changes and corrections to
entries in the civil register. Hence, we clarified in Republic v. Benemerito19that the
obvious effect of R.A. No. 9048 is merely to make possible the administrative correction
of clerical or typographical errors in entries and the administrative change of first name
or nickname in the civil register, leaving to Rule 108 the correction of substantial
changes in the civil registry in appropriate adversarial proceedings. Hence, the question
that now arises is whether trial courts still have jurisdiction
over petitions for correction of clerical errors and change of first name and nickname in
the civil registry. Assuming that the trial courts retain such authority, the corollary
question is whether the summary procedure prescribed in R.A. No. 9048 should be
adopted in cases filed before the courts, or should the adversarial proceeding under
Rule 108 be followed.
The answers to these queries are central to the resolution of the case at bar, as they
determine whether Judge Sotero had indeed acted with gross ignorance of the law or
whether his liability, if any, can be tempered as he acted in good faith on a doubtful
question of law.
A review of the deliberations on R.A. No. 9048 clearly shows that it was enacted to give
the people an option to have the erroneous entries in their civil records corrected via an

administrative proceeding before the local civil registrar that is less expensive and more
expeditious. In his sponsorship speech at the Senate, the main proponent mentioned in
particular that the judicial process under Rule 108 of the Revised Rules of Court for the
correction of clerical errors is tedious and expensive. To address the problem, it was
proposed that Article 412 of the Civil Code be amended by providing, by way of an
exception thereto, that clerical or typographical errors be corrected by the city or
municipal civil registrar. The sponsor specified that the errors that may be corrected
under the proposal are only those "committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil register that is harmless and
innocuous, such as a misspelled name or place of birth which is visible to the eyes or
obvious to the understanding, and can be corrected or changed only by reference to
other existing records," and that "in no case may the correction involve the change of
nationality, age, status or gender of a person." 20 Further debate led to the proposal to
include change of first name or nickname which was approved. However, such change
of first name or nickname would only be allowed if based on some reasonable ground
such as when the name to be changed is ridiculous. 21
Subsequent deliberations revolved around specific provisions of the bill. Thus, under the
bill, any person who wants an entry corrected needs only to file a verified petition
supported by certain documents with the local civil registry office of the city or
municipality where the records sought to be corrected are kept and, in case the
petitioner has already migrated to another place, the petition may be filed with the local
civil registrar where he resides. Publication of the petition for correction of entry is
dispensed with and in lieu of publication, the petition needs only to be posted in a
conspicuous place in the office of the local civil registrar for ten (10) consecutive
working days. However, regarding petitions for change of first name, the petition has to
be published once a week for two (2) consecutive weeks in a newspaper of general
circulation, with the petitioner also submitting a certification that he has no pending case
or prior criminal record. The local civil registrar is mandated to decide the petition not
later than five (5) working days after the prescribed posting period. The decision of the
local registrar is subject to the automatic review of the Civil Registrar General who shall
act within ten (10) working days from receipt of the decision. If the Civil Registrar
General finds that the correction is not clerical or typographical in nature or that it affects
the civil status of the person, he shall set aside the decision and advise the petitioner to
file the necessary petition with the RTC in accordance with the Revised Rules of Court.
The authority or jurisdiction of the trial courts over petitions for correction of entries and
change of first name or nickname was never taken up at the deliberations. In contrast, it
is quite clear from the deliberations that the local civil registrar is given the authority to
act on such petitions filed before his office, yet there was nary a mention or even
insinuation that such petitions can no longer be filed with the regular courts. In fact, it
was clarified that the grounds upon which the administrative process before the local
civil registrar may be availed of are limited under the law; hence, outside of such limited
grounds, the judicial process should be availed of. Indeed, there was no intent on the
part of the lawmakers to remove the authority of the trial courts to make judicial
corrections of entries in the civil registry. It can thus be concluded that the local civil
registrar has primary, not exclusive, jurisdiction over such petitions for correction of
clerical errors and change of first name or nickname, with R.A. No. 9048 prescribing the
procedure that the petitioner and local civil registrar should follow.

Since R.A. No. 9048 refers specifically to the administrative summary proceeding before
the local civil registrar it would be inappropriate to apply the same procedure to petitions
for the correction of entries in the civil registry before the courts. The promulgation of
rules of procedure for courts of justice is the exclusive domain of the Supreme
Court.22 Moreover, as observed by the OCA, there is nothing in R.A. No. 9048 and its
Implementing Rules and Regulations that warrants the adoption of the procedure set
therein for petitions before the courts even for the purpose of expediting the resolution
of said petitions.
Thus, there should be recourse to the procedure prescribed for the courts as if R.A. No.
9048 were not enacted at all. In other words, the procedure provided in the Revised
Rules of Court for such petitions remains binding and should be followed by the courts.
The procedural requirements laid down in Rules 103 and 108 still have to be complied
with. In the case at hand, Judge Sotero should have applied the procedure prescribed in
Rules 103 and 108 in resolving the petitions before him, not the procedure prescribed in
R.A. No. 9048 or the procedure provided in Section 3, Rule 9 which applies in civil
cases where the defendant is declared in default.
Under Rule 103, the petition for change of name should be signed and verified by the
person desiring a change of name, and set forth compliance with the residency
requirement, the cause for which the change of name is sought, and the new name
asked for. The court, after finding the petition to be sufficient in form and substance,
shall issue an order reciting the purpose of the petition and fixing the date and place for
the hearing of the petition, and direct the publication of the order before the hearing at
least once a week for three (3) consecutive weeks in a newspaper of general circulation
in the province. Any interested person may appear at the hearing and oppose the
petition, with the Solicitor General or city fiscal appearing on behalf of the Government.
The court shall grant the petition only when satisfactory proof has been presented in
open court that the order had been published as directed, the allegations in the petition
are true, and proper and reasonable causes appear for changing the name of the
petitioner.23
Rule 108 requires publication of the verified petition for cancellation or correction of
entry once a week for three (3) consecutive weeks in a newspaper of general circulation
in the province; and that the civil registrar and all persons who claim any interest and
who would be affected by the petition be made parties to the proceeding and be allowed
to file their opposition to the said cancellation or correction within fifteen (15) days from
notice of the petition or from the last date of publication. It is only after a hearing that the
court may either dismiss or grant the petition.24 Whether the proceeding under this rule
is summary or adversarial, depending on the type of errors to be corrected, the
procedural requirements under this rule still need to be complied with, the nature of the
proceeding becoming adversarial only when any opposition to the petition is filed and
actively prosecuted.
Petitions for change of name and correction of entries in the civil registry are actions in
rem, the decision on the petition being binding not only on the parties thereto but on the
whole world. An in rem proceeding is validated essentially through publication.
Publication gives notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right

sought to be established. It is the publication of such notice that brings in the whole
world as a party to the case and vests the court with jurisdiction to hear and decide it. 25
In the case at bar, the more than 300 cases for correction of entries filed before the RTC
of Paniqui and decided by Judge Sotero do not fall within the purview of R.A. No. 9048.
In other words, not all of said petitions pertain to the change of first name or nickname
or the correction of typographical errors in the entries of the registry. Some of said
petitions involve substantial changes in the registry such as change of age, sex, status,
and nationality, and even of middle names and surnames of the petitioners. Judge
Soteros conduct in acting on the petitions, without full compliance with the procedural
requirements under Rules 103 and 108 of the Revised Rules of Court, is appalling. He
explained that since R.A. No. 9048 allows corrections of entries without need of hearing
and publication for as long as the necessary documents are submitted, the same
procedure under R.A. No. 9048 is applicable to the petitions filed before the court. The
explanation does not impress. The records of the cases show that Judge Sotero did not
comply with the administrative procedure under the said law. Thus, while R.A. No. 9048
requires that the petition for correction of entries be posted in a conspicuous place for
ten (10) consecutive days, the records show that some of the petitions were decided
less than ten (10) days from the date of filing. Clearly then, there was no way that the
10-day posting requirement could have been accomplished. The petitions for change of
name were also granted even without publication of the order of hearing in a newspaper
of general circulation.
Observance of the procedure under R.A. No. 9048 does not excuse Judge Soteros
blunders.1wphi1 It appears though that he could have acted under the false
impression that the petitions could be filed only with the local civil registrar and not with
the courts. Verily, he claims that he resolved the petitions with dispatch in order to
accommodate the need of the petitioners to have their civil registry documents
corrected with immediacy and that he was more lenient since no substantial prejudice
would ensue. His misapprehension affords him no justification or extenuation. Moreover,
his concern and compassion for the petitioners are misplaced. As a member of the
bench, he should be equipped with the basic knowledge of rules of procedure, including
Rules 103 and 108, which govern the disposition of the petitions. Judge Soteros
actuations clearly exposed a deplorable deficiency in his grasp of the basic principles of
law and rudimentary rules of procedure, for which he should be held administratively
liable.
As an advocate of justice and a visible representation of the law, a judge is expected to
be proficient in the interpretation and application of our laws. Competence and diligence
are prerequisites to the due performance of judicial office. 26 When the law is sufficiently
basic, a judge owes it to his office to simply apply it, and anything less than that would
be constitutive of gross ignorance of the law. In short, when the law is so elementary,
not to be aware of it constitutes gross ignorance of the law.27
Judge Soteros ignorance of the law is aggravated by his gross inefficiency in failing to
take prompt action on some of the petitions for almost one year. Proper and efficient
court management is ultimately the judges responsibility since he is the administrator of
the court. Canon 3, Rule 3.0828 and Rule 3.09,29 of the Code of Judicial
Conduct30 requires judges to manage their dockets in such manner that the work of their
courts is accomplished with reasonable dispatch.31 Inefficiency implies negligence,

incompetence, ignorance and carelessness. There is inexcusable inefficiency on the

part of a judge when he fails to observe
in the performance of his duties that degree of diligence, prudence, and circumspection
which the law requires in the rendition of any public service. When the inefficiency
springs from a failure to consider so basic and elemental a rule, a law or a principle in
the discharge of his duties, a judge is either too incompetent and undeserving of the
position and title he holds or he is too vicious that the oversight or omission was
deliberately done in bad faith and in grave abuse of authority.32
Gross ignorance of the law is classified as a serious charge under Section 8 of A.M. No.
01-8-10-SC, amending Rule 140 of the Rules of Court on the Discipline of Justices and
Judges, which took effect on October 1, 2001. It is penalized either by dismissal from
service, suspension from office without salary and other benefits for more than three (3)
but not exceeding six (6) months, or a fine of more than P20,000.00 but not
exceeding P40,000.00. The serious infractions would have required the imposition of
dismissal as penalty had respondent judge not retired. So, instead, we now impose a
fine in the maximum, i.e., P40,000.00, as the infractions which correspond to the sheer
number of the petitions decided by Judge Sotero all in disregard of basic rules of
procedure, are treated as aggravating circumstances.
WHEREFORE, the Court finds respondent retired Judge Cesar M. Sotero of the
Regional Trial Court of Paniqui, Tarlac, Branch 67, GUILTY of gross ignorance of the
law and FINES him in the
amount of Forty Thousand Pesos (P40,000.00) to be deducted from the One Hundred
Thousand Pesos (P100,000.00) withheld from him pursuant to the Courts Resolution
dated 27 March 2007. The remainder of the withheld amount is ordered released to him.
SO ORDERED.
DANTE O. TINGA
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
REPUBLIC OF THE PHILIPPINES, G.R. No. 166676
Petitioner,

Present:
- versus -

Quisumbing, J., Chairperson,

JENNIFER B. CAGANDAHAN,
Respondent.

Carpio Morales,
Tinga,
VELASCO, JR., and
BRION, JJ.
Promulgated:
September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
This is a petition for review under Rule 45 of the Rules of Court raising purely
questions of law and seeking a reversal of the Decision[1] dated January 12,
2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which
granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer
B. Cagandahan and ordered the following changes of entries in Cagandahans
birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff
Cagandahan" and (2) gender from "female" to "male."
The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for

Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of
Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she
developed secondary male characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) which is a condition where persons
thus afflicted possess both male and female characteristics. She further
alleged that she was diagnosed to have clitoral hyperthropy in her early years
and at age six, underwent an ultrasound where it was discovered that she has
small ovaries. At age thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no breast or menstrual
development. She then alleged that for all interests and appearances as well
as in mind and emotion, she has become a male person. Thus, she prayed
that her birth certificate be corrected such that her gender be changed from
female to male and her first name be changed from Jennifer to Jeff.
The petition was published in a newspaper of general circulation for three (3)
consecutive weeks and was posted in conspicuous places by the sheriff of the
court. The Solicitor General entered his appearance and authorized the
Assistant Provincial Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of the PhilippinesPhilippine General Hospital. Dr. Sionzon issued a medical certificate stating
that respondents condition is known as CAH. He explained that genetically
respondent is female but because her body secretes male hormones, her
female organs did not develop normally and she has two sex organs female
and male. He testified that this condition is very rare, that respondents uterus
is not fully developed because of lack of female hormones, and that she has
no monthly period. He further testified that respondents condition is permanent
and recommended the change of gender because respondent has made up
her mind, adjusted to her chosen role as male, and the gender change would
be advantageous to her.
The RTC granted respondents petition in a Decision dated January 12, 2005
which reads:
The Court is convinced that petitioner has satisfactorily shown that he is
entitled to the reliefs prayed [for]. Petitioner has adequately presented to the
Court very clear and convincing proofs for the granting of his petition. It was
medically proven that petitioners body produces male hormones, and first his
body as well as his action and feelings are that of a male. He has chosen to be
male. He is a normal person and wants to be acknowledged and identified as a
male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is
hereby ordered to make the following corrections in the birth [c]ertificate of

Jennifer Cagandahan upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN;
and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioners school records, voters registry, baptismal
certificate, and other pertinent records are hereby amended to conform with
the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG) seeking a
reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE
OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE
RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE."4
Simply stated, the issue is whether the trial court erred in ordering the
correction of entries in the birth certificate of respondent to change her sex or
gender, from female to male, on the ground of her medical condition known as
CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of the
Rules of Court.
The OSG contends that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because while the
local civil registrar is an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules of Court,
respondents petition before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondents petition is fatally defective
since it failed to state that respondent is abona fide resident of the province
where the petition was filed for at least three (3) years prior to the date of such
filing as mandated under Section 2(b), Rule 103 of the Rules of Court. 6 The
OSG argues that Rule 108 does not allow change of sex or gender in the birth
certificate and respondents claimed medical condition known as CAH does not

make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar
of Pakil, Laguna was not formally named a party in the Petition for Correction
of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy
of the Petition, the Order to publish on December 16, 2003 and all pleadings,
orders or processes in the course of the proceedings, 8 respondent is actually a
male person and hence his birth certificate has to be corrected to reflect his
true sex/gender,9change of sex or gender is allowed under Rule 108, 10 and
respondent substantially complied with the requirements of Rules 103 and 108
of the Rules of Court.11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
Section 1. Venue. A person desiring to change his name shall present the
petition to the Regional Trial Court of the province in which he resides, [or, in
the City of Manila, to the Juvenile and Domestic Relations Court].
Sec. 2. Contents of petition. A petition for change of name shall be signed
and verified by the person desiring his name changed, or some other person
on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where the
petition is filed for at least three (3) years prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.
Sec. 3. Order for hearing. If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition, shall fix a
date and place for the hearing thereof, and shall direct that a copy of the order
be published before the hearing at least once a week for three (3) successive
weeks in some newspaper of general circulation published in the province, as
the court shall deem best. The date set for the hearing shall not be within thirty
(30) days prior to an election nor within four (4) months after the last
publication of the notice.
Sec. 4. Hearing. Any interested person may appear at the hearing and
oppose the petition. The Solicitor General or the proper provincial or city fiscal
shall appear on behalf of the Government of the Republic.
Sec. 5. Judgment. Upon satisfactory proof in open court on the date fixed in
the order that such order has been published as directed and that the
allegations of the petition are true, the court shall, if proper and reasonable
cause appears for changing the name of the petitioner, adjudge that such

name be changed in accordance with the prayer of the petition.

Sec. 6. Service of judgment. Judgments or orders rendered in connection
with this rule shall be furnished the civil registrar of the municipality or city
where the court issuing the same is situated, who shall forthwith enter the
same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
Section 1. Who may file petition. Any person interested in any act, event,
order or decree concerning the civil status of persons which has been recorded
in the civil register, may file a verified petition for the cancellation or correction
of any entry relating thereto, with the Regional Trial Court of the province
where the corresponding civil registry is located.
Sec. 2. Entries subject to cancellation or correction. Upon good and valid
grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages void
from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship;
(l) civil interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.
Sec. 3. Parties. When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
Sec. 4. Notice and publication. Upon the filing of the petition, the court shall,
by an order, fix the time and place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.
Sec. 5. Opposition. The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last date of publication
of such notice, file his opposition thereto.
Sec. 6. Expediting proceedings. The court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties pending
such proceedings.
Sec. 7. Order. After hearing, the court may either dismiss the petition or issue
an order granting the cancellation or correction prayed for. In either case, a

certified copy of the judgment shall be served upon the civil registrar
concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because respondents petition
did not implead the local civil registrar. Section 3, Rule 108 provides that the
civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceedings. Likewise, the local
civil registrar is required to be made a party in a proceeding for the correction
of name in the civil registry. He is an indispensable party without whom no final
determination of the case can be had.[12] Unless all possible indispensable
parties were duly notified of the proceedings, the same shall be considered as
falling much too short of the requirements of the rules. 13 The corresponding
petition should also implead as respondents the civil registrar and all other
persons who may have or may claim to have any interest that would be
affected thereby.14 Respondent, however, invokes Section 6,[15] Rule 1 of the
Rules of Court which states that courts shall construe the Rules liberally to
promote their objectives of securing to the parties a just, speedy and
inexpensive disposition of the matters brought before it. We agree that there is
substantial compliance with Rule 108 when respondent furnished a copy of the
petition to the local civil registrar.
The determination of a persons sex appearing in his birth certificate is a legal
issue and the court must look to the statutes. In this connection, Article 412 of
the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without a
judicial order.
Together with Article 376[16] of the Civil Code, this provision was amended by
Republic Act No. 9048[17] in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect,
Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors. Rule 108 now applies only to substantial changes
and corrections in entries in the civil register.18
Under Rep. Act No. 9048, a correction in the civil registry involving the change
of sex is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court. 19
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of
the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of

marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil
Code include even those that occur after birth. 20
Respondent undisputedly has CAH. This condition causes the early or
"inappropriate" appearance of male characteristics. A person, like respondent,
with this condition produces too much androgen, a male hormone. A newborn
who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris
with the urethral opening at the base, an ambiguous genitalia often appearing
more male than female; (2) normal internal structures of the female
reproductive tract such as the ovaries, uterus and fallopian tubes; as the child
grows older, some features start to appear male, such as deepening of the
voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to
18,000 children are born with CAH.
CAH is one of many conditions[21] that involve intersex anatomy. During the
twentieth century, medicine adopted the term "intersexuality" to apply to human
beings who cannot be classified as either male or female.[22] The term is now
of widespread use. According to Wikipedia, intersexuality "is the state of a
living thing of a gonochoristic species whose sex chromosomes, genitalia,
and/or secondary sex characteristics are determined to be neither exclusively
male nor female. An organism with intersex may have biological characteristics
of both male and female sexes."
Intersex individuals are treated in different ways by different cultures. In most
societies, intersex individuals have been expected to conform to either a male
or female gender role.[23] Since the rise of modern medical science in
Western societies, some intersex people with ambiguous external genitalia
have had their genitalia surgically modified to resemble either male or female
genitals.[24] More commonly, an intersex individual is considered as suffering
from a "disorder" which is almost always recommended to be treated, whether
by surgery and/or by taking lifetime medication in order to mold the individual
as neatly as possible into the category of either male or female.
In deciding this case, we consider the compassionate calls for recognition of
the various degrees of intersex as variations which should not be subject to
outright denial. "It has been suggested that there is some middle ground
between the sexes, a no-mans land for those individuals who are neither truly
male nor truly female."[25] The current state of Philippine statutes apparently
compels that a person be classified either as a male or as a female, but this
Court is not controlled by mere appearances when nature itself fundamentally
negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there is no
basis for a change in the birth certificate entry for gender. But if we determine,

based on medical testimony and scientific development showing the

respondent to be other than female, then a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently and
categorically female nor consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However, respondents body
system naturally produces high levels of male hormones (androgen). As a
result, respondent has ambiguous genitalia and the phenotypic features of a
male.
Ultimately, we are of the view that where the person is biologically or naturally
intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of himself as a male and
considering that his body produces high levels of male hormones (androgen)
there is preponderant biological support for considering him as being male.
Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. And
accordingly, he has already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like taking lifelong
medication,[26] to force his body into the categorical mold of a female but he
did not. He chose not to do so. Nature has instead taken its due course in
respondents development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as ones sexuality and lifestyle
preferences, much less on whether or not to undergo medical treatment to
reverse the male tendency due to CAH. The Court will not consider respondent
as having erred in not choosing to undergo treatment in order to become or
remain as a female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of a female, as society
commonly currently knows this gender of the human species. Respondent is
the one who has to live with his intersex anatomy. To him belongs the human
right to the pursuit of happiness and of health. Thus, to him should belong the
primordial choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent is an
"incompetent"[27] and in the absence of evidence to show that classifying
respondent as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid and justified the
respondents position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and
(2) how an individual deals with what nature has handed out. In other words,
we respect respondents congenital condition and his mature decision to be a

male. Life is already difficult for the ordinary person. We cannot but respect
how respondent deals with his unordinary state and thus help make his life
easier, considering the unique circumstances in this case.
As for respondents change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the consequences that will
follow.[28] The trial courts grant of respondents change of name from Jennifer
to Jeff implies a change of a feminine name to a masculine name. Considering
the consequence that respondents change of name merely recognizes his
preferred gender, we find merit in respondents change of name. Such a
change will conform with the change of the entry in his birth certificate from
female to male.
WHEREFORE, the Republics petition is DENIED. The Decision dated January
12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna,
is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SPECIAL THIRD DIVISION
G.R. No. 182645

December 15, 2010

In the Matter of the Heirship (Intestate Estates) of the Late Hermogenes

Rodriguez, Antonio Rodriguez, Macario J. Rodriguez, Delfin Rodriguez, and
Consuelo M. Rodriguez and Settlement of their Estates,
RENE B. PASCUAL, Petitioner,
vs.
JAIME M. ROBLES, Respondent.
RESOLUTION
PERALTA, J.:
Before the Court is the Very Urgent Motion for Reconsideration of Jaime M. Robles
(Robles) seeking to set aside this Court's Decision dated December 4, 2009 which
nullified the April 16, 2002 Decision of the Court of Appeals (CA) in CA-G.R. SP No.
57417 and the February 27, 2007 Order of the Regional Trial Court (RTC) of Iriga City,
Branch 34 in SP No. IR-1110 and reinstated the August 13, 1999 Amended Decision of
the same RTC in the same case.
Robles' Motion is based on the following arguments:

A.) THE HEREIN MOVANT JAIME M. ROBLES, BEING A REAL PARTY-ININTEREST WAS NEVER IMPLEADED AS RESPONDENT IN THE PETITION
FOR CERTIORARI (WITH PRAYER TO CLARIFY JUDGMENT) DATED MAY 10,
2008 WHICH WAS FILED BEFORE THIS HONORABLE SUPREME COURT ON
MAY 13, 2008 - - - BY PETITIONER-RENE B. PASCUAL;
B.) THE DECISION DATED DECEMBER 04, 2009 ISSUED BY THIS
HONORABLE SUPREME COURT IN G.R. NO. 182645 WAS RENDERED
BASED ON A PETITION FOR CERTIORARI AND MEMORANDUM DATED
APRIL 7, 2009, WHOSE COPIES THEREOF WERE NEVER SERVED UPON
THE HEREIN MOVANT;
C.) THE NAME OF HEREIN MOVANT-JAIME M. ROBLES APPEARS AS
RESPONDENT IN THE TITLE OF THIS CASE AS CAPTIONED IN THE
HONORABLE SUPREME COURT'S ASSAILED DECISION DATED DECEMBER
04, 2009. HOWEVER, HE WAS NOT REQUIRED TO FILE COMMENT NOR
ANSWER TO THE PETITION, A CLEAR VIOLATION TO (sic) THE RULES OF
COURT AND TO (sic) THE CONSTITUTION.
D.) THE PUBLIC RESPONDENT COURT OF APPEALS PRESENTED THE
SALIENT CIRCUMSTANCES THAT WOULD JUSTIFY THE RELAXATION OF
THE RULES ON THE PERFECTION OF AN APPEAL AND THE RULE THAT
CERTIORARI IS NOT A SUBSTITUTE FOR A LOST APPEAL. THE DECISION
ISSUED BY THE PUBLIC RESPONDENT HONORABLE COURT OF APPEALS
DATED APRIL 16, 2002 HAS ALREADY ATTAINED FINALITY BY WAY OF AN
ENTRY OF JUDGMENT ISSUED BY THIS HONORABLE COURT ON
NOVEMBER 10, 2005, IN G.R. NO. 168648 ENTITLED JAIME M. ROBLES
PETITIONER, VS. HENRY F. RODRIGUEZ, ET. AL., AS RESPONDENTS. 1
Robles prays for the reversal of the presently assailed Decision and the entry of a new
judgment requiring him to file his comment and memorandum to the petition. Robles
also seeks the reinstatement of the December 15, 1994 Order of the RTC declaring him
as the only forced heir and next of kin of Hermogenes Rodriguez.
For a clearer discussion and resolution of the instant Motion, it bears to restate the
relevant antecedent facts as stated in the assailed Decision of this Court, to wit:
On 14 September 1989, a petition for Declaration of Heirship and Appointment of
Administrator and Settlement of the Estates of the Late Hermogenes Rodriguez
(Hermogenes) and Antonio Rodriguez (Antonio) was filed before the RTC [of Iriga City].
The petition, docketed as Special Proceeding No. IR-1110, was filed by Henry F.
Rodriguez (Henry), Certeza F. Rodriguez (Certeza), and Rosalina R. Pellosis
(Rosalina). Henry, Certeza and Rosalina sought that they be declared the sole and
surviving heirs of the late Antonio Rodriguez and Hermogenes Rodriguez. They alleged
they are the great grandchildren of Antonio based on the following genealogy: that
Henry and Certeza are the surviving children of Delfin M. Rodriguez (Delfin) who died
on 8 February 1981, while Rosalina is the surviving heir of Consuelo M. Rodriguez
(Consuelo); that Delfin and Consuelo were the heirs of Macario J. Rodriguez (Macario)
who died in 1976; that Macario and Flora Rodriguez were the heirs of Antonio; that
Flora died without an issue in 1960 leaving Macario as her sole heir.

Henry, Certeza and Rosalina's claim to the intestate estate of the late Hermogenes
Rodriguez, a former gobernadorcillo, is based on the following lineage: that Antonio and
Hermogenes were brothers and the latter died in 1910 without issue, leaving Antonio as
his sole heir.
At the initial hearing of the petition on 14 November 1989, nobody opposed the petition.
Having no oppositors to the petition, the RTC entered a general default against the
whole world, except the Republic of the Philippines. After presentation of proof of
compliance with jurisdictional requirements, the RTC allowed Henry, Certeza and
Rosalina to submit evidence before a commissioner in support of the petition. After
evaluating the evidence presented, the commissioner found that Henry, Certeza and
Rosalina are the grandchildren in the direct line of Antonio and required them to present
additional evidence to establish the alleged fraternal relationship between Antonio and
Hermogenes.
Taking its cue from the report of the commissioner, the RTC rendered a Partial
Judgment dated 31 May 1990 declaring Henry, Certeza and Rosalina as heirs in the
direct descending line of the late Antonio, Macario and Delfin and appointing Henry as
regular administrator of the estate of the decedents Delfin, Macario and Antonio, and as
special administrator to the estate of Hermogenes.
Henry filed the bond and took his oath of office as administrator of the subject estates.
Subsequently, six groups of oppositors entered their appearances either as a group or
individually, namely:
(1) The group of Judith Rodriguez;
(2) The group of Carola Favila-Santos;
(3) Jaime Robles;
(4) Florencia Rodriguez;
(5) Victoria Rodriguez; and
(6) Bienvenido Rodriguez
Only the group of Judith Rodriguez had an opposing claim to the estate of Antonio,
while the rest filed opposing claims to the estate of Hermogenes.
In his opposition, Jamie Robles likewise prayed that he be appointed regular
administrator to the estates of Antonio and Hermogenes and be allowed to sell a certain
portion of land included in the estate of Hermogenes covered by OCT No. 12022
located at Barrio Manggahan, Pasig, Rizal.
After hearing on Jamie Robles' application for appointment as regular administrator, the
RTC issued an Order dated 15 December 1994 declaring him to be an heir and next of
kin of decedent Hermogenes and thus qualified to be the administrator. Accordingly, the
said order appointed Jaime Robles as regular administrator of the entire estate of

Hermogenes and allowed him to sell the property covered by OCT No. 12022 located at
Barrio Manggahan, Pasig Rizal.
On 27 April 1999, the RTC rendered a decision declaring Carola Favila-Santos and her
co-heirs as heirs in the direct descending line of Hermogenes and reiterated its ruling in
the partial judgment declaring Henry, Certeza and Rosalina as heirs of Antonio. The
decision dismissed the oppositions of Jamie Robles, Victoria Rodriguez, Bienvenido
Rodriguez, and Florencia Rodriguez, for their failure to substantiate their respective
claims of heirship to the late Hermogenes.
On 13 August 1999, the RTC issued an Amended Decision reversing its earlier finding
as to Carola Favila-Santos. This time, the RTC found Carola Favila-Santos and
company not related to the decedent Hermogenes. The RTC further decreed that Henry,
Certeza and Rosalina are the heirs of Hermogenes. The RTC also re-affirmed its earlier
verdict dismissing the oppositions of Jaime Robles, Victoria Rodriguez, Bienvenido
Rodriguez, and Florencia Rodriguez.2
Robles then appealed the August 13, 1999 Decision of the RTC by filing a Notice of
Appeal, but the same was denied by the trial court in its Order dated November 22,
1999 for Robles' failure to file a record on appeal.
Robles questioned the denial of his appeal by filing a petition for review on certiorari
with this Court.
In a Resolution dated February 14, 2000, this Court referred the petition to the CA for
consideration and adjudication on the merits on the ground that the said court has
jurisdiction concurrent with this Court and that no special and important reason was
cited for this Court to take cognizance of the said case in the first instance.
On April 16, 2002, the CA rendered judgment annulling the August 13, 1999 Amended
Decision of the RTC.
Henry Rodriguez (Rodriguez) and his group moved for the reconsideration of the CA
decision, but the same was denied in a Resolution dated January 21, 2004. Rodriguez
and his co-respondents did not appeal the Decision and Resolution of the CA.
On the other hand, Robles filed an appeal with this Court assailing a portion of the CA
Decision. On August 1, 2005, this Court issued a Resolution denying the petition of
Robles and, on November 10, 2005, the said Resolution became final and executory.
On May 13, 2008, the instant petition was filed.
On December 4, 2009, this Court rendered the presently assailed Decision which held
as follows:
In special proceedings, such as the instant proceeding for settlement of estate, the
period of appeal from any decision or final order rendered therein is 30 days, a notice of
appeal and a record on appeal being required. x x x
xxxx

The appeal period may only be interrupted by the filing of a motion for new trial or
reconsideration. Once the appeal period expires without an appeal being perfected, the
decision or order becomes final, x x x
xxxx
In the case under consideration, it was on 13 August 1999 that the RTC issued an
Amended Decision. On 12 October 1999, Jaime Robles erroneously filed a notice of
appeal instead of filing a record on appeal. The RTC, in an order dated 22 November
1999, denied this for his failure to file a record on appeal as required by the Rules of
Court. Petitioner failed to comply with the requirements of the rule; hence, the 13 August
1999 Amended Decision of the RTC lapsed into finality. It was, therefore, an error for the
Court of Appeals to entertain the case knowing that Jaime Robles' appeal was not
perfected and had lapsed into finality.
This Court has invariably ruled that perfection of an appeal in the manner and within the
period laid down by law is not only mandatory but also jurisdictional. The failure to
perfect an appeal as required by the rules has the effect of defeating the right to appeal
of a party and precluding the appellate court from acquiring jurisdiction over the case.
The right to appeal is not a natural right nor a part of due process; it is merely a
statutory privilege, and may be exercised only in the manner and in accordance with the
provisions of law. x x x Failure to meet the requirements of an appeal deprives the
appellate court of jurisdiction to entertain any appeal. There are exceptions to this rule,
unfortunately respondents did not present any circumstances that would justify the
relaxation of said rule.3
The basic contention of Robles in the instant Motion is that he is a party-in-interest who
stands to be adversely affected or injured or benefited by the judgment in the instant
case. He also argues that the failure of service upon him of a copy of the instant petition
as well as petitioner's memorandum, and the fact that he was not required or given the
opportunity to file his comment or answer to the said petition nor served with any order,
resolution or any other process issued by this Court in the instant petition, is a clear
denial of his right to due process.
In his Comment and Opposition, petitioner contends that Robles has no legal standing
to participate in the instant petition. Petitioner argues that in an original action for
certiorari, the parties are the aggrieved party against the lower court and the prevailing
party. Petitioner claims, however, that Robles was never impleaded, because he was
not the prevailing party in the assailed Decision of the CA as well as the questioned
Order of the RTC. Petitioner further avers that the inclusion of Robles' name as
respondent in the caption of the instant petition was a result of a clerical error which was
probably brought about by numerous cases filed with this Court involving Robles and
the subject estate.
The Court finds partial merit in the instant motion.
Petitioner admitted in his Comment and Opposition to Robles' Motion that in the instant
petition he filed, only the CA and the RTC were impleaded as respondents.
Section 5, Rule 65 of the Rules of Court provides:

Section 5. Respondents and costs in certain cases. When the petition filed relates to
the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall join as private respondent or
respondents with such public respondent or respondents, the person or persons
interested in sustaining the proceedings in the court; and it shall be the duty of
such private respondents to appear and defend, both in his or their own behalf
and in behalf of the public respondent or respondents affected by the
proceedings, and the costs awarded in such proceedings in favor of the petitioner shall
be against the private respondents only, and not against the judge, court, quasi-judicial
agency, tribunal, corporation, board, officer or person impleaded as public respondent or
respondents.
Unless otherwise specifically directed by the court where the petition is pending, the
public respondents shall not appear in or file an answer or comment to the petition or
any pleading therein. If the case is elevated to a higher court by either party, the public
respondents shall be included therein as nominal parties. However, unless otherwise
specifically directed by the court, they shall not appear or participate in the proceedings
therein.4
In Lotte Phil. Co., Inc. v. Dela Cruz,5 this Court ruled as follows:
An indispensable party is a party-in-interest without whom no final determination can be
had of an action, and who shall be joined either as plaintiffs or defendants. The joinder
of indispensable parties is mandatory. The presence of indispensable parties is
necessary to vest the court with jurisdiction, which is "the authority to hear and
determine a cause, the right to act in a case." Thus, without the presence of
indispensable parties to a suit or proceeding, judgment of a court cannot attain real
finality. The absence of an indispensable party renders all subsequent actions of the
court null and void for want of authority to act, not only as to the absent parties but even
as to those present.6
In the case at bar, Robles is an indispensable party. He stands to be injured or benefited
by the outcome of the petition. He has an interest in the controversy that a final decree
would necessarily affect his rights, such that the courts cannot proceed without his
presence.7 Moreover, as provided for under the aforequoted Section 5, Rule 65 of the
Rules of Court, Robles is interested in sustaining the assailed CA Decision, considering
that he would benefit from such judgment. As such, his non-inclusion would render the
petition for certiorari defective.8
Petitioner, thus, committed a mistake in failing to implead Robles as respondent.
The rule is settled that the non-joinder of indispensable parties is not a ground for the
dismissal of an action.9 The remedy is to implead the non-party claimed to be
indispensable.10 Parties may be added by order of the court on motion of the party or on
its own initiative at any stage of the action and/or at such times as are just. 11 If petitioner
refuses to implead an indispensable party despite the order of the court, the latter may
dismiss the complaint/petition for the plaintiffs/petitioner's failure to comply therewith. 12
Based on the foregoing, and in the interest of fair play, the Court finds it proper to set
aside its decision and allow Robles to file his comment on the petition.1avvphi1

WHEREFORE, the Motion for Reconsideration is PARTLY GRANTED. The Decision

dated December 4, 2009 is SET ASIDE. Petitioner is ORDERED to furnish Robles a
copy of his petition for certiorari within a period of five (5) days from receipt of this
Resolution. Thereafter, Robles is DIRECTED to file his comment on the petition within a
period of ten (10) days from notice.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice