Republic SUPREME Manila FIRST DIVISION G.R. No.

159310

of

the

Philippines COURT

February 24, 2009 BORROMEO, Petitioner,

CAMILO F. vs. ANTONIETTA O. DESCALLAR, Respondent. DECISION PUNO, C.J.:

What are the rights of an alien (and his successor-in-interest) who acquired real properties in the country as against his former Filipina girlfriend in whose sole name the properties were registered under the Torrens system? The facts are as follows: Wilhelm Jambrich, an Austrian, arrived in the Philippines in 1983 after he was assigned by his employer, Simmering-Graz Panker A.G., an Austrian company, to work at a project in Mindoro. In 1984, he transferred to Cebu and worked at the Naga II Project of the National Power Corporation. There, he met respondent Antonietta Opalla-Descallar, a separated mother of two boys who was working as a waitress at St. Moritz Hotel. Jambrich befriended respondent and asked her to tutor him in English. In dire need of additional income to support her children, respondent agreed. The tutorials were held in Antoniettas residence at a squatters area in Gorordo Avenue. Jambrich and respondent fell in love and decided to live together in a rented house in Hernan Cortes, Mandaue City. Later, they transferred to their own house and lots at Agro-Macro Subdivision, Cabancalan, Mandaue City. In the Contracts to Sell dated November 18, 1985 1 and March 10, 19862 covering the properties, Jambrich and respondent were referred to as the buyers. A Deed of Absolute Sale dated November 16, 1987 3 was likewise issued in their favor. However, when the Deed of Absolute Sale was presented for registration before the Register of Deeds, registration was refused on the ground that Jambrich was an alien and could not acquire alienable lands of the public domain. Consequently, Jambrichs name was erased from the document. But it could be noted that his signature remained on the left hand margin of page 1, beside

respondents signature as buyer on page 3, and at the bottom of page 4 which is the last page. Transfer Certificate of Title (TCT) Nos. 24790, 24791 and 24792 over the properties were issued in respondents name alone. Jambrich also formally adopted respondents two sons in Sp. Proc. No. 39MAN,4 and per Decision of the Regional Trial Court of Mandaue City dated May 5, 1988.5 However, the idyll lasted only until April 1991. By then, respondent found a new boyfriend while Jambrich began to live with another woman in Danao City. Jambrich supported respondents sons for only two months after the break up. Jambrich met petitioner Camilo F. Borromeo sometime in 1986. Petitioner was engaged in the real estate business. He also built and repaired speedboats as a hobby. In 1989, Jambrich purchased an engine and some accessories for his boat from petitioner, for which he became indebted to the latter for about P150,000.00. To pay for his debt, he sold his rights and interests in the Agro-Macro properties to petitioner for P250,000, as evidenced by a "Deed of Absolute Sale/Assignment."6 On July 26, 1991, when petitioner sought to register the deed of assignment, he discovered that titles to the three lots have been transferred in the name of respondent, and that the subject property has already been mortgaged. On August 2, 1991, petitioner filed a complaint against respondent for recovery of real property before the Regional Trial Court of Mandaue City. Petitioner alleged that the Contracts to Sell dated November 18, 1985 and March 10, 1986 and the Deed of Absolute Sale dated November 16, 1987 over the properties which identified both Jambrich and respondent as buyers do not reflect the true agreement of the parties since respondent did not pay a single centavo of the purchase price and was not in fact a buyer; that it was Jambrich alone who paid for the properties using his exclusive funds; that Jambrich was the real and absolute owner of the properties; and, that petitioner acquired absolute ownership by virtue of the Deed of Absolute Sale/Assignment dated July 11, 1991 which Jambrich executed in his favor. In her Answer, respondent belied the allegation that she did not pay a single centavo of the purchase price. On the contrary, she claimed that she "solely and exclusively used her own personal funds to defray and pay for the purchase price of the subject lots in question," and that Jambrich, being an alien, was prohibited to acquire or own real property in the Philippines. At the trial, respondent presented evidence showing her alleged financial capacity to buy the disputed property with money from a supposed copra

business. Petitioner, in turn, presented Jambrich as his witness and documentary evidence showing the substantial salaries which Jambrich received while still employed by the Austrian company, Simmering-Graz Panker A.G. In its decision, the court a quo found Evidence on hand clearly show that at the time of the purchase and acquisition of [the] properties under litigation that Wilhelm Jambrich was still working and earning much. This fact of Jambrich earning much is not only supported by documentary evidence but also by the admission made by the defendant Antoniet[t]a Opalla. So that, Jambrichs financial capacity to acquire and purchase the properties . . . is not disputed.7 xxx On the other hand, evidence . . . clearly show that before defendant met Jambrich sometime in the latter part of 1984, she was only working as a waitress at the St. Moritz Hotel with an income of P1,000.00 a month and was . . . renting and living only in . . . [a] room at . . . [a] squatter area at Gorordo Ave., Cebu City; that Jambrich took pity of her and the situation of her children that he offered her a better life which she readily accepted. In fact, this miserable financial situation of hers and her two children . . . are all stated and reflected in the Child Study Report dated April 20, 1983 (Exhs. "G" and "G-1") which facts she supplied to the Social Worker who prepared the same when she was personally interviewed by her in connection with the adoption of her two children by Wilhelm Jambrich. So that, if such facts were not true because these are now denied by her . . . and if it was also true that during this time she was already earning as much as P8,000.00 to P9,000.00 as profit per month from her copra business, it would be highly unbelievable and impossible for her to be living only in such a miserable condition since it is the observation of this Court that she is not only an extravagant but also an expensive person and not thrifty as she wanted to impress this Court in order to have a big saving as clearly shown by her actuation when she was already cohabiting and living with Jambrich that according to her . . . the allowance given . . . by him in the amount of $500.00 a month is not enough to maintain the education and maintenance of her children.8 This being the case, it is highly improbable and impossible that she could acquire the properties under litigation or could contribute any amount for their acquisition which according to her is worth more than P700,000.00 when while she was working as [a] waitress at St. Moritz Hotel earning P1,000.00 a month as salary and tips of more or less P2,000.00 she could not even provide [for] the daily needs of her family so much so that it is safe to conclude that she was really in financial distress when she met and accepted the offer of Jambrich to come and

live with him because that was a big financial opportunity for her and her children who were already abandoned by her husband.9 xxx The only probable and possible reason why her name appeared and was included in [the contracts to sell dated November 18, 1985 and March 10, 1986 and finally, the deed of absolute sale dated November 16, 1987] as buyer is because as observed by the Court, she being a scheming and exploitive woman, she has taken advantage of the goodness of Jambrich who at that time was still bewitched by her beauty, sweetness, and good attitude shown by her to him since he could still very well provide for everything she needs, he being earning (sic) much yet at that time. In fact, as observed by this Court, the acquisition of these properties under litigation was at the time when their relationship was still going smoothly and harmoniously.10 [Emphasis supplied.] The dispositive portion of the Decision states: WHEREFORE, . . . Decision is hereby rendered in favor of the plaintiff and against the defendant Antoniet[t]a Opalla by: 1) Declaring plaintiff as the owner in fee simple over the residential house of strong materials and three parcels of land designated as Lot Nos. 1, 3 and 5 which are covered by TCT Nos. 24790, 24791 and 24792 issued by the Register of Deeds of Mandaue City; 2) Declaring as null and void TCT Nos. 24790, 24791 and 24792 issued in the name of defendant Antoniet[t]a Descallar by the Register of Deeds of Mandaue City; 3) Ordering the Register of Deeds of Mandaue City to cancel TCT Nos. 24790, 24791 and 24792 in the name of defendant Antoniet[t]a Descallar and to issue new ones in the name of plaintiff Camilo F. Borromeo; 4) Declaring the contracts now marked as Exhibits "I," "K" and "L" as avoided insofar as they appear to convey rights and interests over the properties in question to the defendant Antoniet[t]a Descallar; 5) Ordering the defendant to pay plaintiff attorneys fees in the amount of P25,000.00 and litigation expenses in the amount of P10,000.00; and, 6) To pay the costs.11

Respondent appealed to the Court of Appeals. In a Decision dated April 10, 2002,12 the appellate court reversed the decision of the trial court. In ruling for the respondent, the Court of Appeals held: We disagree with the lower courts conclusion. The circumstances involved in the case cited by the lower court and similar cases decided on by the Supreme Court which upheld the validity of the title of the subsequent Filipino purchasers are absent in the case at bar. It should be noted that in said cases, the title to the subject property has been issued in the name of the alien transferee (Godinez et al., vs. Fong Pak Luen et al., 120 SCRA 223 citing Krivenko vs. Register of Deeds of Manila, 79 Phils. 461; United Church Board for World Ministries vs. Sebastian, 159 SCRA 446, citing the case of Sarsosa Vda. De Barsobia vs. Cuenco, 113 SCRA 547; Tejido vs. Zamacoma, 138 SCRA 78). In the case at bar, the title of the subject property is not in the name of Jambrich but in the name of defendant-appellant. Thus, Jambrich could not have transferred a property he has no title thereto.13 Petitioners motion for reconsideration was denied. Hence, this petition for review. Petitioner assigns the following errors: I. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING RESPONDENTS JUDICIAL ADMISSION AND OTHER OVERWHELMING EVIDENCE ESTABLISHING JAMBRICHS PARTICIPATION, INTEREST AND OWNERSHIP OF THE PROPERTIES IN QUESTION AS FOUND BY THE HONORABLE TRIAL COURT. II. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT JAMBRICH HAS NO TITLE TO THE PROPERTIES IN QUESTION AND MAY NOT THEREFORE TRANSFER AND ASSIGN ANY RIGHTS AND INTERESTS IN FAVOR OF PETITIONER. III. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE WELL-REASONED DECISION OF THE TRIAL COURT AND IN IMPOSING DOUBLE COSTS AGAINST HEREIN PETITIONER (THEN, PLAINTIFF-APPELLEE).14 First, who purchased the subject properties? The evidence clearly shows, as pointed out by the trial court, who between respondent and Jambrich possesses the financial capacity to acquire the

properties in dispute. At the time of the acquisition of the properties in 1985 to 1986, Jambrich was gainfully employed at Simmering-Graz Panker A.G., an Austrian company. He was earning an estimated monthly salary of P50,000.00. Then, Jambrich was assigned to Syria for almost one year where his monthly salary was approximately P90,000.00. On the other hand, respondent was employed as a waitress from 1984 to 1985 with a monthly salary of not more than P1,000.00. In 1986, when the parcels of land were acquired, she was unemployed, as admitted by her during the pre-trial conference. Her allegations of income from a copra business were unsubstantiated. The supposed copra business was actually the business of her mother and their family, with ten siblings. She has no license to sell copra, and had not filed any income tax return. All the motorized bancas of her mother were lost to fire, and the last one left standing was already scrap. Further, the Child Study Report15 submitted by the Department of Social Welfare and Development (DSWD) in the adoption proceedings of respondents two sons by Jambrich disclosed that: Antonietta tried all types of job to support the children until she was accepted as a waitress at St. Moritz Restaurant in 1984. At first she had no problem with money because most of the customers of St. Moritz are (sic) foreigners and they gave good tips but towards the end of 1984 there were no more foreigners coming because of the situation in the Philippines at that time. Her financial problem started then. She was even renting a small room in a squatters area in Gorordo Ave., Cebu City. It was during her time of great financial distress that she met Wilhelm Jambrich who later offered her a decent place for herself and her children.16 The DSWD Home Study Report17 further disclosed that: [Jambrich] was then at the Restaurant of St. Moritz when he saw Antonietta Descallar, one of the waitresses of the said Restaurants. He made friends with the girl and asked her to tutor him in [the] English language. Antonietta accepted the offer because she was in need of additional income to support [her] 2 young children who were abandoned by their father. Their session was agreed to be scheduled every afternoon at the residence of Antonietta in the squatters area in Gorordo Avenue, Cebu City. The Austrian was observing the situation of the family particularly the children who were malnourished. After a few months sessions, Mr. Jambrich offered to transfer the family into a decent place. He told Antonietta that the place is not good for the children. Antonietta who was miserable and financially distressed at that time accepted the offer for the sake of the children.18

Further, the following additional pieces of evidence point to Jambrich as the source of fund used to purchase the three parcels of land, and to construct the house thereon: (1) Respondent Descallar herself affirmed under oath, during her re-direct examination and during the proceedings for the adoption of her minor children, that Jambrich was the owner of the properties in question, but that his name was deleted in the Deed of Absolute Sale because of legal constraints. Nonetheless, his signature remained in the deed of sale, where he signed as buyer. (2) The money used to pay the subject parcels of land in installments was in postdated checks issued by Jambrich. Respondent has never opened any account with any bank. Receipts of the installment payments were also in the name of Jambrich and respondent. (3) In 1986-1987, respondent lived in Syria with Jambrich and her two children for ten months, where she was completely under the support of Jambrich. (4) Jambrich executed a Last Will and Testament, where he, as owner, bequeathed the subject properties to respondent. Thus, Jambrich has all authority to transfer all his rights, interests and participation over the subject properties to petitioner by virtue of the Deed of Assignment he executed on July 11, 1991. Well-settled is the rule that this Court is not a trier of facts. The findings of fact of the trial court are accorded great weight and respect, if not finality by this Court, subject to a number of exceptions. In the instant case, we find no reason to disturb the factual findings of the trial court. Even the appellate court did not controvert the factual findings of the trial court. They differed only in their conclusions of law. Further, the fact that the disputed properties were acquired during the couples cohabitation also does not help respondent. The rule that co-ownership applies to a man and a woman living exclusively with each other as husband and wife without the benefit of marriage, but are otherwise capacitated to marry each other, does not apply.19 In the instant case, respondent was still legally married to another when she and Jambrich lived together. In such an adulterous relationship, no co-ownership exists between the parties. It is necessary for each of the partners to prove his or her actual contribution to the acquisition of

property in order to be able to lay claim to any portion of it. Presumptions of coownership and equal contribution do not apply.20 Second, we dispose of the issue of registration of the properties in the name of respondent alone. Having found that the true buyer of the disputed house and lots was the Austrian Wilhelm Jambrich, what now is the effect of registration of the properties in the name of respondent? It is settled that registration is not a mode of acquiring ownership. 21 It is only a means of confirming the fact of its existence with notice to the world at large.22 Certificates of title are not a source of right. The mere possession of a title does not make one the true owner of the property. Thus, the mere fact that respondent has the titles of the disputed properties in her name does not necessarily, conclusively and absolutely make her the owner. The rule on indefeasibility of title likewise does not apply to respondent. A certificate of title implies that the title is quiet,23and that it is perfect, absolute and indefeasible.24 However, there are well-defined exceptions to this rule, as when the transferee is not a holder in good faith and did not acquire the subject properties for a valuable consideration.25 This is the situation in the instant case. Respondent did not contribute a single centavo in the acquisition of the properties. She had no income of her own at that time, nor did she have any savings. She and her two sons were then fully supported by Jambrich. Respondent argued that aliens are prohibited from acquiring private land. This is embodied in Section 7, Article XII of the 1987 Constitution, 26 which is basically a reproduction of Section 5, Article XIII of the 1935 Constitution, 27and Section 14, Article XIV of the 1973 Constitution. 28 The capacity to acquire private land is dependent on the capacity "to acquire or hold lands of the public domain." Private land may be transferred only to individuals or entities "qualified to acquire or hold lands of the public domain." Only Filipino citizens or corporations at least 60% of the capital of which is owned by Filipinos are qualified to acquire or hold lands of the public domain. Thus, as the rule now stands, the fundamental law explicitly prohibits non-Filipinos from acquiring or holding title to private lands, except only by way of legal succession or if the acquisition was made by a former natural-born citizen.29 Therefore, in the instant case, the transfer of land from Agro-Macro Development Corporation to Jambrich, who is an Austrian, would have been declared invalid if challenged, had not Jambrich conveyed the properties to petitioner who is a Filipino citizen. In United Church Board for World Ministries v. Sebastian, 30 the Court reiterated the consistent ruling in a number of cases31 that if land is invalidly transferred to an alien who subsequently becomes a Filipino citizen or transfers it to a Filipino, the flaw in the original transaction is considered cured and the title

of the transferee is rendered valid. Applying United Church Board for World Ministries, the trial court ruled in favor of petitioner, viz.: [W]hile the acquisition and the purchase of (sic) Wilhelm Jambrich of the properties under litigation [were] void ab initio since [they were] contrary to the Constitution of the Philippines, he being a foreigner, yet, the acquisition of these properties by plaintiff who is a Filipino citizen from him, has cured the flaw in the original transaction and the title of the transferee is valid. The trial court upheld the sale by Jambrich in favor of petitioner and ordered the cancellation of the TCTs in the name of respondent. It declared petitioner as owner in fee simple of the residential house of strong materials and three parcels of land designated as Lot Nos. 1, 3 and 5, and ordered the Register of Deeds of Mandaue City to issue new certificates of title in his name. The trial court likewise ordered respondent to pay petitioner P25,000 as attorneys fees and P10,000 as litigation expenses, as well as the costs of suit. We affirm the Regional Trial Court. The rationale behind the Courts ruling in United Church Board for World Ministries, as reiterated in subsequent cases,32 is this since the ban on aliens is intended to preserve the nations land for future generations of Filipinos, that aim is achieved by making lawful the acquisition of real estate by aliens who became Filipino citizens by naturalization or those transfers made by aliens to Filipino citizens. As the property in dispute is already in the hands of a qualified person, a Filipino citizen, there would be no more public policy to be protected. The objective of the constitutional provision to keep our lands in Filipino hands has been achieved. IN VIEW WHEREOF, the petition is GRANTED. The Decision of the Court of Appeals in C.A. G.R. CV No. 42929 dated April 10, 2002 and its Resolution dated July 8, 2003 are REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Mandaue City in Civil Case No. MAN-1148 is REINSTATED. SO ORDERED.

Republic SUPREME Manila FIRST DIVISION

of

the

Philippines COURT

G.R. No. L-46079 April 17, 1989 ESTEBAN C. MANUEL, petitioner, vs. THE HON. ERNANI CRUZ PAO as Judge of the Court of First Instance of Rizal, Br. XVIII, Q.C., ANTONIO A. BARANDA, EDSEL LABAYEN and ROLANDO GATMAITAN, respondents.

CRUZ, J.: One wonders why the respondent judge did not immediately grant the petitioner's motion to quash the information on the obvious and valid ground that the facts charged did not constitute an offense. This decisive act could have avoided the needless molestation of one more citizen and cleared the clogged dockets of this Court of still another of the prosecutions big and small so rampant during those days of martial law. More importantly, it would have affirmed once again the freedom of expression guaranteed in the Bill of Rights to which every one was entitled even under the 1973 Constitution. This case goes back to April 21, 1976, when a raid was conducted by the agents of the now defunct Anti-Smuggling Action Center on two rooms in the Tokyo Hotel in Binondo, Manila, pursuant to a warrant of seizure and detention issued by the Acting Collector of Customs of Manila on April 20, 1976. 1 The raid resulted in the seizure of several articles allegedly smuggled into the country by their owners, three of whom were tourists from Hongkong. These articles subsequently became the subject of seizure proceedings in the Bureau of Customs but most of them were ordered released upon proof that the customs duties and other charges thereon had been duly paid as evidenced by the corresponding official receipts. Only a few items "of no commercial value" were ordered confiscated. 2 While the seizure proceedings were pending, the petitioner, as counsel for the owners of the seized articles, sent a letter dated April 19,1976, to the Chairman of the ASAC in which he complained about the conduct of the raid and

demanded that the persons responsible therefore be investigated. The letter follows in full: 3 ESTEBAN C. MANUEL Attorney at Law 643 Carvajal Street Binondo, Manila

April 29,19 The Chairman ASAC, Camp Aguinaldo Quezon City Sir: This is in behalf of my clients, Mrs. Ng Woo Hay and her son, Mr. Lee Kee Ming, who sought my help in reporting to your goodself their I complaint about certain acts committed by ASAC men which, from all appearances, constitute criminal offenses. I am referring to the raid they conducted on April 21, 1976 at about 4:30 in the afternoon at Tokyo Hotel, Ongpin Street, Binondo, Manila, pursuant to a "Warrant of Seizure and Detention" (seizure Identification No. 14922) issued by the Acting Collector of Customs on April 20, 1976. The raiding team, about 10 in number and headed by one Amado enrol, took advantage of the fact that Mrs. Ng Woo Hay was alone in her hotel room. The ASAC agents, despite Mrs. Ng's protest and claim of innocence, forced their way into the room and ransacked the place for alleged untaxed goods. Not only did they take everything they could find in the room, but also forcibly took from her person the wrist watch and jade bracelet (gold plated she was wearing at the time. They also forced open her handbag and divested her of her wallet containing 70 Hongkong dollars, as well as her necklace and her son's wrist watch which she had placed in said handbag. Mrs. Ng was also subjected to the indignities of being searched by a male person. After emptying the room of its contents, the raiding team presented to her a carbon copy of a list purporting to show the goods seized. The list, however, appears not only illegible but does not reflect all the goods that were taken away by the ASAC agents. What is more, said men, likewise taking advantage of the absence of Mrs. Ng's son, owner of some of the articles, falsified the signature of the latter by writing his name on the

space designated as "owner", making it appear that he (Lee Kee Ming) had acknowledged that the list covers all the items seized. The documents and other papers presented to me by my clients reveal that the articles seized were declared at the Manila International Airport upon arrival, and were properly appraised. The corresponding customs charges were likewise paid. It is evident, therefore, that my clients were victims of foul play masterminded by no less than law enforcers who prey on tourists, particularly Chinese, for obvious reasons. I examined the records in the Bureau of Customs and found out that it was on the basis of an affidavit executed by ASAC Agent Rolando Gatmaitan and the letter-request sent by the Vice-Chairman of ASAC Brig. Gen. Ramon Z. Aguirre, to the Collector of Customs that prompted the latter to issue the warrant in question. In this connection, I must state, with all frankness, that there was undue haste in the request for the issuance of the warrant, because it is discernible from a mere reading of the affidavit that its contents are mere pro-forma and hearsay statements of the abovenamed ASAC agent. It could not have, as it now appears, justified the drastic action sought to be accomplished. Needless to state, the incident complained of not only has caused considerable damage to my clients but to our country as well. It is for this reason that we demand for an immediate and full dress investigation of the ASAC officers and men who took part in or caused the issuance of the warrant, as well as those who participated in the raid, with the view of purging the government of undesirables; and that pending such investigation the said officers and men be suspended from further performing their duties. Very truly yours, (SGD.) ESTEBAN C. MANUEL The Chairman of the ASAC ordered the investigation as demanded, but the agents charged were all exonerated in a decision dated August 25, 1976. 4 Not satisfied with what he later described as a "home town decision," the petitioner, on behalf of his clients, filed a complaint for robbery against the same agents with the Office of the City Fiscal of Manila. This was later withdrawn, however, on advice of the inquest fiscal who said that the case might come under the jurisdiction of the military tribunal. 5 The petitioner says he then went to Camp

Aguinaldo but was discouraged from filing the complaint there when lie was told that it would take about a year to complete the preliminary investigation alone.6 The owners of the seized articles then instituted a civil complaint for damages which the petitioner filed for them in the Court of First Instance of Manila on June 7,1976. 7 Three days later, there appeared in the June 10, 1976 issue of the Bulletin Today the following report: 8 TOURISTS SUE AGENTS, OFFICIAL Four Chinese, three of whom were tourists from Hongkong, have filed a case for damages against a customs official and 11 agents of the government's anti-smuggling action center ASAC in connection with a raid conducted in their hotel rooms, more than a month ago. The case was docketed in Manila's court of first instance (CFI) as Civil Case No. 102694. The complaints also alleged they lost assorted materials amounting to P46,003.40. Named respondents in the case were acting customs collector Ramon Z. Aguirre, Rolando Gatmaitan, Antonio Baranda, Amado M. Tirol, Francisco C. Santos, Edsel Labayen, Jose Robles, Nestor Eusebio, Freddie Ocnila, Renato Quiroz, Pedro Cunanan, Jr., and Enrique Perez, all of ASAC The acting customs collector was impleaded in the case in his official capacity for having issued the warrant that led to the criminal offenses complained of. Aquirre, ASAC vice-chairman, was named as defendant for soliciting the issuance of a warrant of seizure and detention reportedly on the basis of charges contained in an affidavit executed by Gatmaitan, another ASAC agent. Esteban Manuel filed the case in behalf of the plaintiffs composed of Manila resident Ng Tee, and Hong Kong visitors Ng Woo Hay, Cheng Pik Ying and Lee Kee Ming who came to the Philippines to visit their relatives and friends.

The agents allegedly subjected Ng Woo Hay to indignities and took her necklace, bracelet and wrist watch. They allegedly seized many articles valued at P27,000 which have remained unaccounted for in the list submitted by the defendants as the inventory of the items confiscated. On the basis of these antecedent facts, an information for libel was filed against the petitioner, Lee Kee Ming and Ng Woo Hay in the Court of First Instance of Rizal. 9 A reading of the information does not show why the two Chinese were included in the charge; all it said was that they were the clients of the petitioner. As for the petitioner himself, it was alleged that he had committed the crime of libel by writing the letter of April 29, 1976 (which was quoted in full) and by causing the publication of the news item in the Bulletin Today. The subject of this petition is the order of the respondent judge dated March 23, 1977, 10 denying the motion to quash filed by the petitioner, who had claimed that his letter to the ASAC Chairman was not actionable because it was a privileged communication; that the news report in the Bulletin Today was not based on the letter-complaint; and that in any case it was a fair and true report of a judicial proceeding and therefore also privileged. 11 His motion for reconsideration having been also denied in the order dated April 27,1977, 12 he now seeks relief from this Court against what he claims as the grave abuse of discretion committed by the respondent judge in sustaining the information. It is perhaps indicative of the weakness of the respondents' position that when asked to comment on the petitioner's motion to quash, the city fiscal never did so during a period of more than ninety days. 13 It was left to a private prosecutor to enter his own appearance thereafter, presumably because the fiscal did not seem to be very enthusiastic about the case, and to file the comment for the private respondents himself 14 Later, when the petitioner came to this Court and we required a comment from the Solicitor General, this official complied only after asking for (and getting) twenty-six extensions for a total of nine months and seven days, and at that the comment was only a half-hearted defense of the challenged orders. 15 Despite the petitioner's effective rebuttal in his reply, the Solicitor General did not ask for leave to file a rejoinder as if he had lost all taste for combat notwithstanding the many points raised by the petitioner that had to be refuted. Perhaps it was just as well. Like a good general, the Solicitor General probably understood that the battle was lost. Indeed it was. In fact, it should never have commenced.

From the purely procedural perspective, there is much to fault about the information. The two Chinese clients who were impleaded with the petitioner were charged with absolutely nothing, prompting the respondent judge to peremptorily dismiss the information as to them. 16 Worse, the information imputed to the remaining accused two different offenses, to wit, writing the allegedly libelous letter and causing the publication of the allegedly libelous news report. This was not allowed under Rule 110, Section 12, of the Rules of Court, providing that "a complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses." 17 If libelous the letter and the news report constituted separate offenses that should have been charged in separate informations. (However, not having been raised in the motion to quash, that ground was deemed waived under Rule 15, Section 8, of the Rules of Court.) 18 From the viewpoint of substantive law, the charge is even more defective, if not ridiculous. Any one with an elementary I knowledge of constitutional law and criminal law would have known that neither the letter nor the news account was libelous. The applicable provision in the Revised Penal Code reads as follows: Article 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. The letter comes under Item 1 as it was addressed by the petitioner to the ASAC Chairman to complain against the conduct of his men when they raided the Chinese tourists' rooms in the Tokyo Hotel. It was sent by the petitioner mainly in his capacity as a lawyer in the discharge of his legal duty to protect his clients. While his principal purpose was to vindicate his clients' interests against the abuses committed by the ASAC agents, he could also invoke his civic duty as a private individual to expose anomalies in the public service. The complaint was addressed to the official who had authority over them and could impose the

proper disciplinary sanctions. Significantly, as an index of good faith, the letter was sent privately directly to the addressee, without any fanfare or publicity. As for the news report, it is difficult to believe that the petitioner, an ordinary citizen without any known ties to the newspapers, could have by himself caused the publication of such an explosive item. There is no prima facieshowing that, by some kind of influence he had over the periodical, he succeeded in having it published to defame the ASAC agents. It does not appear either that the report was paid for like an advertisement. This looks instead to be the result of the resourcefulness of the newspaper in discovering matters of public interest for dutiful disclosure to its readers. It should be presumed that the report was included in the issue as part of the newspaper's coverage of important current events as selected by its editorial staff. At any rate, the news item comes under Item 2 of the abovequoted article as it is a true and fair report of a judicial proceeding, made in good faith and without comments or remarks. This is also privileged. Moreover, it is not correct to say, as the Solicitor General does, that Article 354 is not applicable because the complaint reported as filed would not by itself alone constitute a judicial proceeding even before the issues are joined and trial is begun. The doctrine he invokes is no longer controlling. The case of Choa Tek Hee v. Philippine Publishing Co., 19 which he dies, has been superseded by Cuenco v. Cuenco, 20 where the Court categorically held: We are firmly convinced that the correct rule on the matter should be that a fair and true report of a complaint filed in court without remarks nor comments even before an answer is filed or a decision promulgated should be covered by the privilege. (Emphasis provided) It may also be argued that the complaint, standing by itself, is a public record and may be published as such under Rule 135, Section 2 of the Rules of Court unless the court directs otherwise in the interest of morality or decency. It is true that the matters mentioned in Article 354 as exceptions to the general rule are not absolutely privileged and are still actionable. However, since what is presumed is not malice but in fact lack of malice, it is for the prosecution to overcome that presumption by proof that the accused was actually motivated by malice. Absent such proof, the charge must fail. We are not unmindful of the contention that the information should not be dismissed outright because the prosecution must first be given a chance to introduce evidence to overcome the presumption. This is indeed the normal

procedure. However, where it appears from the allegations in the information itself that the accused acted in good faith and for justifiable ends in making the allegedly libelous imputations, and in pertinent pleadings, there is no need to prolong the proceedings to the i prejudice of the defendant. The Court can and should dismiss the charge without further ado, as we held in People v. Andres: 21 The prosecution claims that the trial court erred in dismissing the case on a mere motion to quash, contending that the trial judge's conclusion on the face of the information that defendant- appellee was prompted only by good motives assumes a fact to be proved, and that the alleged privileged nature of defendant- appellee's publication is a matter of defense and is not a proper ground for dismissal of the complaint for libel (Lu Chu Sing, et al. vs. Lu Tiong Gui 76 Phil. 669). When in the information itself it appears that the communication alleged to be libelous is contained in an appropriate pleading in a court proceeding, the privilege becomes at once apparent and defendant need not wait until the trial and produce evidence before he can raise the question of privilege. And if, added to this, the questioned imputations appear to be really pertinent and relevant to defendant's plea for reconsideration based on complainant's supposed partiality and abuse of power from which defendant has a right to seek relief in vindication of his client's interest as a litigant in complainant's court, it would become evident that the facts thus alleged in the information would not constitute an offense of libel. As has already been said by this Court: As to the degree of relevancy or pertinency necessary to make alleged defamatory matter privileged, the courts are inclined to be liberal. The matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety. Having this in mind, it can not be said that the trial court committed a reversible error in this case of finding that the allegations in the information itself present a case of an absolutely privileged communication justifying the dismissal of the case. The two exceptions provided for under Article 354 are based on the wider guarantee of freedom of expression as an institution of all republican societies. This in turn is predicated on the proposition that the ordinary citizen has a right and a duty to involve himself in matters that affect the public welfare and, for this purpose, to inform himself of such matters.

The vitality of republicanism derives from an alert citizenry that is always ready to participate in the discussion and resolution of public issues. These issues include the conduct of government functionaries who are accountable to the people in the performance of their assigned powers, which after all come from the people themselves. Ever citizen has a right to expect from all public servants utmost fidelity to the trust reposed in them and the maximum of efficiency and integrity in the discharge of their functions. Every citizen has a right to complain and criticize if this hope is betrayed. It is no less important to observe that this vigilance is not only a right but a responsibility of the highest order that should not be shirked for fear of official reprisal or because of mere civic lethargy. Whenever the citizen discovers official anomaly, it is his duty to expose and denounce it, that the culprits may be punished and the public service cleansed even as the rights violated are vindicated or redressed. It can never be overstressed that indifference to ineptness will breed more ineptness and that toleration of corruption will breed more corruption. The sins of the public service are imputable not only to those who actually commit them but also to those who by their silence or inaction permit and encourage their commission. The responsibility to review the conduct of the government functionaries is especially addressed to the lawyer because his training enables him, better than most citizens, to determine if the law has been violated or irregularities have been committed, and to take the needed steps to remedy the wrong and punish the guilty. The respondents contend that the letter was written by the petitioner to influence the seizure proceedings which were then pending. Even assuming that to be true, such purpose did not necessarily make the letter malicious, especially if it is considered that the complaint against the ASAC agents could not be raised in the said proceedings. The ASAC Chairman, not the Collector of Customs, had jurisdiction to discipline the agents. It should also be noted, as further evidence of lack of malice, that even after the seizure proceedings had been concluded in favor of the petitioner's clients, he pursued their complaint against the ASAC agents in the fiscal's office in Manila and then with the military authorities in Camp Aguinaldo, ending with the filing of the civil case for damages in the court of first instance of Manila. It would be a sad day indeed if for denouncing venality in government, the citizen could be called to task and be himself punished on the ground of malicious defamation. If every accuser were himself to be accused for discharging his duty as he sees it, then will the wrong-doer have been granted in effect, and by this

Court no less, an undeserved immunity for his misdeeds or omissions. The private individual would be barred from complaining about public misconduct. Every criticism he makes would be tainted with malice and pronounced as criminal. The next step may well be a conspiracy among those in the government to cover up each other's faults and to insulate themselves from the legitimate efforts of the people to question their conduct. The second exception is justified under the right of every citizen to be informed on matters of public interest, which, significantly, was first recognized in the 1973 Constitution. Even if it were not, the right would still be embraced in the broader safeguard of freedom of expression, for the simple reason that the right to speak intelligently on "matters that touch the existing order" necessarily imports the availability of adequate official information on such matters. Surely, the exercise of such right cannot inspire belief if based only on conjectures and rumors and half-truths because direct access to the facts is not allowed to the ordinary citizen. This right is now effectively enjoyed with the help of the mass media, which have fortunately resumed their roles as an independent conduit of information between the government and the people. It is the recognized duty of the media to report to the public what is going on in the government, including the proceedings in any of its departments or agencies, save only in exceptional cases involving decency or confidentiality when disclosure may be prohibited.To protect them in the discharge of this mission, the law says that as long as the account is a fair and true report of such proceedings, and made without any remarks or comment, it is considered privileged and malice is not presumed. Its publication is encouraged rather than suppressed or punished. This is one reason why the Court looks with disapproval on censorship in general as an unconstitutional abridgment of freedom of expression, Censorship presumes malice at the outset, It prevents inquiry into public affairs and curtails their disclosure and discussion, leaving the people in the dark as to what is happening in the public service. By locking the public portals to the citizen, who can only guess at the goings on in the forbidden precints, censorship separates the people from their government. This certainly should not be permitted. "A free press stands as one of the great interpreters between the government and the people," declared Justice Sutherland of the U.S. Supreme Court. "To allow it to be fettered is to fetter ourselves." It is curious that the ones most obviously responsible for the publication of the allegedly offensive news report, namely, the editorial staff and the periodical itself, were not at all impleaded. The charge was leveled against the petitioner and, "curiouser" still, his clients who had nothing to do with the editorial policies

of the newspaper. There is here a manifest effort to persecute and intimidate the petitioner for his temerity in accusing the ASAC agents who apparently enjoyed special privileges and perhaps also immunities during those oppressive times. The non-inclusion of the periodicals was a transparent hypocrisy, an ostensibly pious if not at all convincing pretense of respect for freedom of expression that was in fact one of the most desecrated liberties during the past despotism. We are convinced that the information against the petitioner should never have been filed at all and that the respondent judge committed grave abuse of discretion in denying the motion to quash the information on the ground that the allegation petitions therein did not constitute an offense. The petitioner is entitled to the relief he seeks from those who in the guise of law and through the instrumentality of the trial court would impose upon him this warrant tyranny. ACCORDINGLY, the petition is GRANTED. The orders of the respondent judge dated March 23, 1977, and April 27, 1977, are SET ASIDE and Criminal Case No. Q-7045, in his court, is DISMISSED. Costs against the respondents. SO ORDERED.