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G.R. No. 88694 January 11, 1993
ALBENSON ENTERPRISES CORP., JESSE YAP, AND BENJAMIN
MENDIONA, petitioners,
vs.
THE COURT OF APPEALS AND EUGENIO S. BALTAO, respondents.
BIDIN, J.:
This petition assails the decision of respondent Court of Appeals in
CA-GR CV No. 14948 entitled "Eugenio S. Baltao, plaintiff-appellee vs.
Albenson Enterprises Corporation, et al, defendants-appellants", which
modified the judgment of the Regional Trial Court of Quezon City, Branch
XCVIII in Civil Case No. Q-40920 and ordered petitioner to pay private
respondent, among others, the sum of P500,000.00 as moral damages and
attorney's fees in the amount of P50,000.00.
The facts are not disputed.
In September, October, and November 1980, petitioner Albenson
Enterprises Corporation (Albenson for short) delivered to Guaranteed
Industries, Inc. (Guaranteed for short) located at 3267 V. Mapa Street, Sta.
Mesa, Manila, the mild steel plates which the latter ordered. As part
payment thereof, Albenson was given Pacific Banking Corporation Check
No. 136361 in the amount of P2,575.00 and drawn against the account of
E.L. Woodworks (Rollo, p. 148).
When presented for payment, the check was dishonored for the reason
"Account Closed." Thereafter, petitioner Albenson, through counsel, traced
the origin of the dishonored check. From the records of the Securities and
Exchange Commission (SEC), Albenson discovered that the president of
Guaranteed, the recipient of the unpaid mild steel plates, was one "Eugenio
S. Baltao." Upon further inquiry, Albenson was informed by the Ministry of
Trade and Industry that E.L. Woodworks, a single proprietorship business,
was registered in the name of one "Eugenio Baltao". In addition, upon
verification with the drawee bank, Pacific Banking Corporation, Albenson
was advised that the signature appearing on the subject check belonged to
one "Eugenio Baltao."
After obtaining the foregoing information, Albenson, through counsel, made
an extrajudicial demand upon private respondent Eugenio S. Baltao,
president of Guaranteed, to replace and/or make good the dishonored
check.
Respondent Baltao, through counsel, denied that he issued the check, or
that the signature appearing thereon is his. He further alleged that
Guaranteed was a defunct entity and hence, could not have transacted
business with Albenson.
On February 14, 1983, Albenson filed with the Office of the Provincial
Fiscal of Rizal a complaint against Eugenio S. Baltao for violation of Batas
Pambansa Bilang 22. Submitted to support said charges was an affidavit of
petitioner Benjamin Mendiona, an employee of Albenson. In said affidavit,
the above-mentioned circumstances were stated.
It appears, however, that private respondent has a namesake, his son
Eugenio Baltao III, who manages a business establishment, E.L.
Woodworks, on the ground floor of the Baltao Building, 3267 V. Mapa
Street, Sta. Mesa, Manila, the very same business address of Guaranteed.
On September 5, 1983, Assistant Fiscal Ricardo Sumaway filed an
information against Eugenio S. Baltao for Violation of Batas Pambansa
Bilang 22. In filing said information, Fiscal Sumaway claimed that he had
given Eugenio S. Baltao opportunity to submit controverting evidence, but
the latter failed to do so and therefore, was deemed to have waived his
right.
Respondent Baltao, claiming ignorance of the complaint against him,
immediately filed with the Provincial Fiscal of Rizal a motion for
reinvestigation, alleging that it was not true that he had been given an
1

opportunity to be heard in the preliminary investigation conducted by
Fiscal Sumaway, and that he never had any dealings with Albenson or
Benjamin Mendiona, consequently, the check for which he has been
accused of having issued without funds was not issued by him and the
signature in said check was not his.
On January 30, 1984, Provincial Fiscal Mauro M. Castro of Rizal reversed
the finding of Fiscal Sumaway and exonerated respondent Baltao. He also
instructed the Trial Fiscal to move for dismissal of the information filed
against Eugenio S. Baltao. Fiscal Castro found that the signature in PBC
Check No. 136361 is not the signature of Eugenio S. Baltao. He also found
that there is no showing in the records of the preliminary investigation that
Eugenio S. Baltao actually received notice of the said investigation. Fiscal
Castro then castigated Fiscal Sumaway for failing to exercise care and
prudence in the performance of his duties, thereby causing injustice to
respondent who was not properly notified of the complaint against him and
of the requirement to submit his counter evidence.
Because of the alleged unjust filing of a criminal case against him for
allegedly issuing a check which bounced in violation of Batas Pambansa
Bilang 22 for a measly amount of P2,575.00, respondent Baltao filed before
the Regional Trial Court of Quezon City a complaint for damages against
herein petitioners Albenson Enterprises, Jesse Yap, its owner, and
Benjamin Mendiona, its employee.
In its decision, the lower court observed that "the check is drawn against
the account of "E.L. Woodworks," not of Guaranteed Industries of which
plaintiff used to be President. Guaranteed Industries had been inactive and
had ceased to exist as a corporation since 1975. . . . . The possibility is that
it was with Gene Baltao or Eugenio Baltao III, a son of plaintiff who had a
business on the ground floor of Baltao Building located on V. Mapa Street,
that the defendants may have been dealing with . . . ." (Rollo, pp. 41-42).
The dispositive portion of the trial court 's decision reads:
2
WHEREFORE, judgment is hereby rendered in favor of
plaintiff and against defendants ordering the latter to pay
plaintiff jointly and severally:
1. actual or compensatory damages of P133,350.00;
2. moral damages of P1,000,000.00 (1 million pesos);
3. exemplary damages of P200,000.00;
4. attorney's fees of P100,000.00;
5 costs.
Defendants' counterclaim against plaintiff and claim for
damages against Mercantile Insurance Co. on the bond for
the issuance of the writ of attachment at the instance of
plaintiff are hereby dismissed for lack of merit. (Rollo, pp.
38-39).
On appeal, respondent court modified the trial court's decision as follows:
WHEREFORE, the decision appealed from is MODIFIED by
reducing the moral damages awarded therein from
P1,000,000.00 to P500,000.00 and the attorney's fees from
P100,000.00 to P50,000.00, said decision being hereby
affirmed in all its other aspects. With costs against
appellants. (Rollo, pp. 50-51)
Dissatisfied with the above ruling, petitioners Albenson Enterprises Corp.,
Jesse Yap, and Benjamin Mendiona filed the instant Petition, alleging that
the appellate court erred in:

1. Concluding that private respondent's cause of action is
not one based on malicious prosecution but one for abuse of
rights under Article 21 of the Civil Code notwithstanding the
fact that the basis of a civil action for malicious prosecution
is Article 2219 in relation to Article 21 or Article 2176 of the
Civil Code . . . .
2. Concluding that "hitting at and in effect maligning (private
respondent) with an unjust criminal case was, without more,
a plain case of abuse of rights by misdirection" and "was
therefore, actionable by itself," and which "became
inordinately blatant and grossly aggravated when . . .
(private respondent) was deprived of his basic right to notice
and a fair hearing in the so-called preliminary investigation .
..."
3. Concluding that petitioner's "actuations in this case were
coldly deliberate and calculated", no evidence having been
adduced to support such a sweeping statement.
4. Holding the petitioner corporation, petitioner Yap and
petitioner Mendiona jointly and severally liable without
sufficient basis in law and in fact.
5. Awarding respondents —
5.1. P133,350.00 as actual or compensatory
damages, even in the absence of sufficient
evidence to show that such was actually
suffered.
5.2. P500,000.00 as moral damages
considering that the evidence in this
connection merely involved private
respondent's alleged celebrated status as a
3
businessman, there being no showing that
the act complained of adversely affected
private respondent's reputation or that it
resulted to material loss.
5.3. P200,000.00 as exemplary damages
despite the fact that petitioners were duly
advised by counsel of their legal recourse.
5.4. P50,000.00 as attorney's fees, no
evidence having been adduced to justify such
an award (Rollo, pp. 4-6).
Petitioners contend that the civil case filed in the lower court was one for
malicious prosecution. Citing the case of Madera vs. Lopez (102 SCRA 700
[1981]), they assert that the absence of malice on their part absolves them
from any liability for malicious prosecution. Private respondent, on the
other hand, anchored his complaint for Damages on Articles 19, 20, and
21 ** of the Civil Code.
Article 19, known to contain what is commonly referred to as the principle
of abuse of rights, sets certain standards which may be observed not only
in the exercise of one's rights but also in the performance of one's duties.
These standards are the following: to act with justice; to give everyone his
due; and to observe honesty and good faith. The law, therefore, recognizes
the primordial limitation on all rights: that in their exercise, the norms of
human conduct set forth in Article 19 must be observed. A right, though by
itself legal because recognized or granted by law as such, may nevertheless
become the source of some illegality. When a right is exercised in a manner
which does not conform with the norms enshrined in Article 19 and results
in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. Although the requirements of each
provision is different, these three (3) articles are all related to each other.
As the eminent Civilist Senator Arturo Tolentino puts it: "With this article
(Article 21), combined with articles 19 and 20, the scope of our law on civil
wrongs has been very greatly broadened; it has become much more supple

and adaptable than the Anglo-American law on torts. It is now difficult to
conceive of any malevolent exercise of a right which could not be checked
by the application of these articles" (Tolentino, 1 Civil Code of the
Philippines 72).
There is however, no hard and fast rule which can be applied to determine
whether or not the principle of abuse of rights may be invoked. The
question of whether or not the principle of abuse of rights has been
violated, resulting in damages under Articles 20 and 21 or other applicable
provision of law, depends on the circumstances of each case. (Globe
Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778
[1989]).
The elements of an abuse of right under Article 19 are the following: (1)
There is a legal right or duty; (2) which is exercised in bad faith; (3) for the
sole intent of prejudicing or injuring another. Article 20 speaks of the
general sanction for all other provisions of law which do not especially
provide for their own sanction (Tolentino, supra, p. 71). Thus, anyone who,
whether willfully or negligently, in the exercise of his legal right or duty,
causes damage to another, shall indemnify his victim for injuries suffered
thereby. Article 21 deals with acts contra bonus mores, and has the
following elements: 1) There is an act which is legal; 2) but which is
contrary to morals, good custom, public order, or public policy; 3) and it is
done with intent to injure.
Thus, under any of these three (3) provisions of law, an act which causes
injury to another may be made the basis for an award of damages.
There is a common element under Articles 19 and 21, and that is, the act
must be intentional. However, Article 20 does not distinguish: the act may
be done either "willfully", or "negligently". The trial court as well as the
respondent appellate court mistakenly lumped these three (3) articles
together, and cited the same as the bases for the award of damages in the
civil complaint filed against petitioners, thus:
4
With the foregoing legal provisions (Articles 19, 20, and 21)
in focus, there is not much difficulty in ascertaining the
means by which appellants' first assigned error should be
resolved, given the admitted fact that when there was an
attempt to collect the amount of P2,575.00, the defendants
were explicitly warned that plaintiff Eugenio S. Baltao is not
the Eugenio Baltao defendants had been dealing with (supra,
p. 5). When the defendants nevertheless insisted and
persisted in filing a case — a criminal case no less — against
plaintiff, said defendants ran afoul of the legal provisions
(Articles 19, 20, and 21 of the Civil Code) cited by the lower
court and heretofore quoted (supra).
Defendants, not having been paid the amount of P2,575.00,
certainly had the right to complain. But that right is limited
by certain constraints. Beyond that limit is the area of
excess, of abuse of rights. (Rollo, pp.
44-45).
Assuming, arguendo, that all the three (3) articles, together and not
independently of each one, could be validly made the bases for an award of
damages based on the principle of "abuse of right", under the
circumstances, We see no cogent reason for such an award of damages to
be made in favor of private respondent.
Certainly, petitioners could not be said to have violated the aforestated
principle of abuse of right. What prompted petitioners to file the case for
violation of Batas Pambansa Bilang 22 against private respondent was their
failure to collect the amount of P2,575.00 due on a bounced check which
they honestly believed was issued to them by private respondent.
Petitioners had conducted inquiries regarding the origin of the check, and
yielded the following results: from the records of the Securities and
Exchange Commission, it was discovered that the President of Guaranteed
(the recipient of the unpaid mild steel plates), was one "Eugenio S. Baltao";
an inquiry with the Ministry of Trade and Industry revealed that E.L.
Woodworks, against whose account the check was drawn, was registered in

the name of one "Eugenio Baltao"; verification with the drawee bank, the
Pacific Banking Corporation, revealed that the signature appearing on the
check belonged to one "Eugenio Baltao".
In a letter dated December 16, 1983, counsel for petitioners wrote private
respondent demanding that he make good the amount of the check.
Counsel for private respondent wrote back and denied, among others, that
private respondent ever transacted business with Albenson Enterprises
Corporation; that he ever issued the check in question. Private
respondent's counsel even went further: he made a warning to defendants
to check the veracity of their claim. It is pivotal to note at this juncture that
in this same letter, if indeed private respondent wanted to clear himself
from the baseless accusation made against his person, he should have
made mention of the fact that there are three (3) persons with the same
name, i.e.: Eugenio Baltao, Sr., Eugenio S. Baltao, Jr. (private respondent),
and Eugenio Baltao III (private respondent's son, who as it turned out later,
was the issuer of the check). He, however, failed to do this. The last two
Baltaos were doing business in the same building — Baltao Building —
located at 3267 V. Mapa Street, Sta. Mesa, Manila. The mild steel plates
were ordered in the name of Guaranteed of which respondent Eugenio S.
Baltao is the president and delivered to Guaranteed at Baltao building.
Thus, petitioners had every reason to believe that the Eugenio Baltao who
issued the bouncing check is respondent Eugenio S. Baltao when their
counsel wrote respondent to make good the amount of the check and upon
refusal, filed the complaint for violation of BP Blg. 22.
Private respondent, however, did nothing to clarify the case of mistaken
identity at first hand. Instead, private respondent waited in ambush and
thereafter pounced on the hapless petitioners at a time he thought was
propitious by filing an action for damages. The Court will not countenance
this devious scheme.
The criminal complaint filed against private respondent after the latter
refused to make good the amount of the bouncing check despite demand
was a sincere attempt on the part of petitioners to find the best possible
means by which they could collect the sum of money due them. A person
5
who has not been paid an obligation owed to him will naturally seek ways
to compel the debtor to pay him. It was normal for petitioners to find
means to make the issuer of the check pay the amount thereof. In the
absence of a wrongful act or omission or of fraud or bad faith, moral
damages cannot be awarded and that the adverse result of an action does
not per se make the action wrongful and subject the actor to the payment
of damages, for the law could not have meant to impose a penalty on the
right to litigate (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]).
In the case at bar, private respondent does not deny that the mild steel
plates were ordered by and delivered to Guaranteed at Baltao building and
as part payment thereof, the bouncing check was issued by one Eugenio
Baltao. Neither had private respondent conveyed to petitioner that there are
two Eugenio Baltaos conducting business in the same building — he and
his son Eugenio Baltao III. Considering that Guaranteed, which received
the goods in payment of which the bouncing check was issued is owned by
respondent, petitioner acted in good faith and probable cause in filing the
complaint before the provincial fiscal.
To constitute malicious prosecution, there must be proof that the
prosecution was prompted by a sinister design to vex and humiliate a
person, and that it was initiated deliberately by the defendant knowing that
his charges were false and groundless. Concededly, the mere act of
submitting a case to the authorities for prosecution does not make one
liable for malicious prosecution. (Manila Gas Corporation vs. Court of
Appeals, 100 SCRA 602 [1980]). Still, private respondent argues that
liability under Articles 19, 20, and 21 of the Civil Code is so encompassing
that it likewise includes liability for damages for malicious prosecution
under Article 2219 (8). True, a civil action for damages for malicious
prosecution is allowed under the New Civil Code, more specifically Articles
19, 20, 26, 29, 32, 33, 35, and 2219 (8) thereof. In order that such a case
can prosper, however, the following three (3) elements must be present, to
wit: (1) The fact of the prosecution and the further fact that the defendant
was himself the prosecutor, and that the action was finally terminated with
an acquittal; (2) That in bringing the action, the prosecutor acted without

probable cause; (3) The prosecutor was actuated or impelled by legal malice
(Lao vs. Court of Appeals, 199 SCRA 58, [1991]).
Thus, a party injured by the filing of a court case against him, even if he is
later on absolved, may file a case for damages grounded either on the
principle of abuse of rights, or on malicious prosecution. As earlier stated,
a complaint for damages based on malicious prosecution will prosper only
if the three (3) elements aforecited are shown to exist. In the case at bar,
the second and third elements were not shown to exist. It is well-settled
that one cannot be held liable for maliciously instituting a prosecution
where one has acted with probable cause. "Probable cause is the existence
of such facts and circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted. In
other words, a suit will lie only in cases where a legal prosecution has been
carried on without probable cause. The reason for this rule is that it would
be a very great discouragement to public justice, if prosecutors, who had
tolerable ground of suspicion, were liable to be sued at law when their
indictment miscarried" (Que vs. Intermediate Appellate Court, 169 SCRA
137 [1989]).
The presence of probable cause signifies, as a legal consequence, the
absence of malice. In the instant case, it is evident that petitioners were not
motivated by malicious intent or by sinister design to unduly harass
private respondent, but only by a well-founded anxiety to protect their
rights when they filed the criminal complaint against private respondent.
To constitute malicious prosecution, there must be proof
that the prosecution was prompted by a sinister design to
vex and humiliate a person, that it was initiated deliberately
by the defendant knowing that his charges were false and
groundless. Concededly, the mere act of submitting a case to
the authorities for prosecution does not make one liable for
malicious prosecution. Proof and motive that the institution
of the action was prompted by a sinister design to vex and
6
humiliate a person must be clearly and preponderantly
established to entitle the victims to damages (Ibid.).
In the case at bar, there is no proof of a sinister design on the part of
petitioners to vex or humiliate private respondent by instituting the
criminal case against him. While petitioners may have been negligent to
some extent in determining the liability of private respondent for the
dishonored check, the same is not so gross or reckless as to amount to bad
faith warranting an award of damages.
The root of the controversy in this case is founded on a case of mistaken
identity. It is possible that with a more assiduous investigation, petitioners
would have eventually discovered that private respondent Eugenio S.
Baltao is not the "Eugenio Baltao" responsible for the dishonored check.
However, the record shows that petitioners did exert considerable effort in
order to determine the liability of private respondent. Their investigation
pointed to private respondent as the "Eugenio Baltao" who issued and
signed the dishonored check as the president of the debtor-corporation
Guaranteed Enterprises. Their error in proceeding against the wrong
individual was obviously in the nature of an innocent mistake, and cannot
be characterized as having been committed in bad faith. This error could
have been discovered if respondent had submitted his counter-affidavit
before investigating fiscal Sumaway and was immediately rectified by
Provincial Fiscal Mauro Castro upon discovery thereof, i.e., during the
reinvestigation resulting in the dismissal of the complaint.
Furthermore, the adverse result of an action does not per se make the act
wrongful and subject the actor to the payment of moral damages. The law
could not have meant to impose a penalty on the right to litigate, such right
is so precious that moral damages may not be charged on those who may
even exercise it erroneously. And an adverse decision does not ipso
facto justify the award of attorney's fees to the winning party (Garcia vs.
Gonzales, 183 SCRA 72 [1990]).
Thus, an award of damages and attorney's fees is unwarranted where the
action was filed in good faith. If damage results from a person's exercising
 7

his legal rights, it is damnum absque injuria (Ilocos Norte Electric Company
vs. Court of Appeals, 179 SCRA 5 [1989]).
Coming now to the claim of private respondent for actual or compensatory
damages, the records show that the same was based solely on his
allegations without proof to substantiate the same. He did not present
proof of the cost of the medical treatment which he claimed to have
undergone as a result of the nervous breakdown he suffered, nor did he
present proof of the actual loss to his business caused by the unjust
litigation against him. In determining actual damages, the court cannot
rely on speculation, conjectures or guesswork as to the amount. Without
the actual proof of loss, the award of actual damages becomes erroneous
(Guilatco vs. City of Dagupan, 171 SCRA 382 [1989]).
Actual and compensatory damages are those recoverable because of
pecuniary loss — in business, trade, property, profession, job or occupation
— and the same must be proved, otherwise, if the proof is flimsy and
unsubstantiated, no damages will be given (Rubio vs. Court of Appeals, 141
SCRA 488 [1986]). For these reasons, it was gravely erroneous for
respondent court to have affirmed the award of actual damages in favor of
private respondent in the absence of proof thereof.
In the final analysis, there is no proof or showing that petitioners acted
maliciously or in bad faith in the filing of the case against private
respondent. Consequently, in the absence of proof of fraud and bad faith
committed by petitioners, they cannot be held liable for damages (Escritor,
Jr. vs. Intermediate Appellate Court, 155 SCRA 577 [1987]). No damages
can be awarded in the instant case, whether based on the principle of
abuse of rights, or for malicious prosecution. The questioned judgment in
the instant case attests to the propensity of trial judges to award damages
without basis. Lower courts are hereby cautioned anew against awarding
unconscionable sums as damages without bases therefor.
WHEREFORE, the petition is GRANTED and the decision of the Court of
Appeals in C.A. G.R. C.V. No. 14948 dated May 13, 1989, is hereby
REVERSED and SET ASIDE. Costs against respondent Baltao.
SO ORDERED.

Where there is no evidence of the other party having acted in wanton,

fraudulent or reckless, or oppressive manner, neither may exemplary
damages be awarded (Dee Hua Liong Electrical Equipment Corporation vs.
Reyes, 145 SCRA 488 [1986]).

As to the award of attorney's fees, it is well-settled that the same is the

exception rather than the general rule. Needless to say, the award of
attorney's fees must be disallowed where the award of exemplary damages
is eliminated (Article 2208, Civil Code; Agustin vs. Court of Appeals, 186
SCRA 375 [1990]). Moreover, in view of the fact that there was no malicious
prosecution against private respondent, attorney's fees cannot be awarded
him on that ground.

G.R. No. 161921 July 17, 2013
JOYCE V. ARDIENTE, PETITIONER,
vs.
SPOUSES JAVIER AND MA. THERESA PASTORFIDE, CAGAYAN
DE ORO WATER DISTRICT AND GASPAR
GONZALEZ,* JR., RESPONDENTS.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45
of the Rules of Court seeking to reverse and set aside the
Decision1 and Resolution2 of the Court of Appeals (CA), dated August
28, 2003 and December 17, 2003, respectively, in CA-G.R. CV No.
73000. The CA Decision affirmed with modification the August 15,
2001 Decision3of the Regional Trial Court (RTC) of Cagayan de Oro
City, Branch 24, while the CA Resolution denied petitioner's Motion
for Reconsideration.
The facts, as summarized by the CA, are as follows:
[Herein petitioner] Joyce V. Ardiente and her husband Dr. Roberto
S. Ardiente are owners of a housing unit at Emily Homes, Balulang,
Cagayan de Oro City with a lot area of one hundred fifty-three (153)
square meters and covered by Transfer Certificate of Title No. 69905.
On June 2, 1994, Joyce Ardiente entered into a Memorandum of
Agreement (Exh. "B", pp. 470-473, Records) selling, transferring and
conveying in favor of [respondent] Ma. Theresa Pastorfide all their
rights and interests in the housing unit at Emily Homes in
8
consideration of ₱70,000.00. The Memorandum of Agreement
carries a stipulation:
"4. That the water and power bill of the subject property shall be for
the account of the Second Party (Ma. Theresa Pastorfide) effective
June 1, 1994." (Records, p. 47)
vis-a-vis Ma. Theresa Pastorfide's assumption of the payment of the
mortgage loan secured by Joyce Ardiente from the National Home
Mortgage (Records, Exh. "A", pp. 468-469)
For four (4) years, Ma. Theresa's use of the water connection in the
name of Joyce Ardiente was never questioned nor perturbed (T.S.N.,
October 31, 2000, pp. 7-8) until on March 12, 1999, without notice,
the water connection of Ma. Theresa was cut off. Proceeding to the
office of the Cagayan de Oro Water District (COWD) to complain, a
certain Mrs. Madjos told Ma. Theresa that she was delinquent for
three (3) months corresponding to the months of December 1998,
January 1999, and February 1999. Ma. Theresa argued that the due
date of her payment was March 18, 1999 yet (T.S.N., October 31,
2000, pp. 11-12). Mrs. Madjos later told her that it was at the
instance of Joyce Ardiente that the water line was cut off (T.S.N.,
February 5, 2001, p. 31).
On March 15, 1999, Ma. Theresa paid the delinquent bills (T.S.N.,
October 31, 2000, p. 12). On the same date, through her lawyer, Ma.
Theresa wrote a letter to the COWD to explain who authorized the
cutting of the water line (Records, p. 160).
On March 18, 1999, COWD, through the general manager,
[respondent] Gaspar Gonzalez, Jr., answered the letter dated March
15, 1999 and reiterated that it was at the instance of Joyce Ardiente
that the water line was cut off (Records, p. 161).

Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide [and her
husband] filed [a] complaint for damages [against petitioner, COWD
and its manager Gaspar Gonzalez] (Records, pp. 2-6).
In the meantime, Ma. Theresa Pastorfide's water line was only
restored and reconnected when the [trial] court issued a writ of
preliminary mandatory injunction on December 14, 1999 (Records,
p. 237).4
After trial, the RTC rendered judgment holding as follows:
xxxx
In the exercise of their rights and performance of their duties,
defendants did not act with justice, gave plaintiffs their due and
observe honesty and good faith. Before disconnecting the water
supply, defendants COWD and Engr. Gaspar Gonzales did not even
send a disconnection notice to plaintiffs as testified to by Engr.
Bienvenido Batar, in-charge of the Commercial Department of
defendant COWD. There was one though, but only three (3) days
after the actual disconnection on March 12, 1999. The due date for
payment was yet on March 15. Clearly, they did not act with justice.
Neither did they observe honesty.
They should not have been swayed by the prodding of Joyce V.
Ardiente. They should have investigated first as to the present
ownership of the house. For doing the act because Ardiente told
them, they were negligent. Defendant Joyce Ardiente should have
requested before the cutting off of the water supply, plaintiffs to pay.
While she attempted to tell plaintiffs but she did not have the
patience of seeing them. She knew that it was plaintiffs who had
been using the water four (4) years ago and not hers. She should
have been very careful. x x x5
9
The dispositive portion of the trial court's Decision reads, thus:
WHEREFORE, premises considered, judgment is hereby rendered
ordering defendants [Ardiente, COWD and Gonzalez] to pay jointly
and severally plaintiffs, the following sums:
(a) ₱200,000.00 for moral damages;
(b) 200,000.00 for exemplary damages; and
(c) 50,000.00 for attorney's fee.
The cross-claim of Cagayan de Oro Water District and Engr. Gaspar
Gonzales is hereby dismissed. The Court is not swayed that the
cutting off of the water supply of plaintiffs was because they were
influenced by defendant Joyce Ardiente. They were negligent too for
which they should be liable.
SO ORDERED.6
Petitioner, COWD and Gonzalez filed an appeal with the CA.
On August 28, 2003, the CA promulgated its assailed Decision
disposing as follows:
IN VIEW OF ALL THE FOREGOING, the appealed decision is
AFFIRMED, with the modification that the awarded damages is
reduced to ₱100,000.00 each for moral and exemplary damages,
while attorney's fees is lowered to ₱25,000.00. Costs against
appellants.
SO ORDERED.7

The CA ruled, with respect to petitioner, that she has a "legal duty to
honor the possession and use of water line by Ma. Theresa
Pastorfide pursuant to their Memorandum of Agreement" and "that
when [petitioner] applied for its disconnection, she acted in bad faith
causing prejudice and [injury to] Ma. Theresa Pastorfide."8
As to COWD and Gonzalez, the CA held that they "failed to give a
notice of disconnection and derelicted in reconnecting the water line
despite payment of the unpaid bills by the [respondent spouses
Pastorfide]."9
Petitioner, COWD and Gonzalez filed their respective Motions for
Reconsideration, but these were denied by the CA in its Resolution
dated December 17, 2003.
COWD and Gonzalez filed a petition for review on certiorari with this
Court, which was docketed as G.R. No. 161802. However, based on
technical grounds and on the finding that the CA did not commit
any reversible error in its assailed Decision, the petition was denied
via a Resolution10 issued by this Court on March 24, 2004. COWD
and Gonzalez filed a motion for reconsideration, but the same was
denied with finality through this Court's Resolution 11 dated June 28,
2004.
Petitioner, on the other hand, timely filed the instant petition with
the following Assignment of Errors:
7.1 HONORABLE COURT OF APPEALS (ALTHOUGH IT HAS
REDUCED THE LIABILITY INTO HALF) HAS STILL
COMMITTED GRAVE AND SERIOUS ERROR WHEN IT
UPHELD THE JOINT AND SOLIDARY LIABILITY OF
PETITIONER JOYCE V. ARDIENTE WITH CAGAYAN DE ORO
WATER DISTRICT (COWD) AND ENGR. GASPAR D.
10
GONZALES FOR THE LATTER'S FAILURE TO SERVE NOTICE
UPON RESPONDENTS SPOUSES PASTORFIDE PRIOR TO
THE ACTUAL DISCONNECTION DESPITE EVIDENCE
ADDUCED DURING TRIAL THAT EVEN WITHOUT
PETITIONER'S REQUEST, COWD WAS ALREADY SET TO
EFFECT DISCONNECTION OF RESPONDENTS' WATER
SUPPLY DUE TO NON-PAYMENT OF ACCOUNT FOR THREE
(3) MONTHS.
7.2 THE HONORABLE COURT OF APPEALS COMMITTED
GRAVE AND SERIOUS ERROR WHEN IT RULED TOTALLY
AGAINST PETITIONER AND FAILED TO FIND THAT
RESPONDENTS ARE GUILTY OF CONTRIBUTORY
NEGLIGENCE WHEN THEY FAILED TO PAY THEIR WATER
BILLS FOR THREE MONTHS AND TO MOVE FOR THE
TRANSFER OF THE COWD ACCOUNT IN THEIR NAME,
WHICH WAS A VIOLATION OF THEIR MEMORANDUM OF
AGREEMENT WITH PETITIONER JOYCE V. ARDIENTE.
RESPONDENTS LIKEWISE DELIBERATELY FAILED TO
EXERCISE DILIGENCE OF A GOOD FATHER OF THE
FAMILY TO MINIMIZE THE DAMAGE UNDER ART. 2203 OF
THE NEW CIVIL CODE.
7.3 THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED WHEN IT DISREGARDED THE FACT THAT
RESPONDENT SPOUSES PASTORFIDE ARE LIKEWISE
BOUND TO OBSERVE ARTICLE 19 OF THE NEW CIVIL
CODE, i.e., IN THE EXERCISE OF THEIR RIGHTS AND IN
THE PERFORMANCE OF THEIR DUTIES TO ACT WITH
JUSTICE, GIVE EVERYONE HIS DUE AND OBSERVE
HONESTY AND GOOD FAITH.

7.4 THE HONORABLE COURT OF APPEALS GRAVELY
ERRED WHEN IT GRANTED AN AWARD OF MORAL AND
EXEMPLARY DAMAGES AND ATTORNEY'S FEES AS
AGAINST PETITIONER ARDIENTE.12
At the outset, the Court noticed that COWD and Gonzalez, who were
petitioner's co-defendants before the RTC and her co-appellants in
the CA, were impleaded as respondents in the instant petition. This
cannot be done. Being her co-parties before the RTC and the CA,
petitioner cannot, in the instant petition for review on certiorari,
make COWD and Gonzalez, adversary parties. It is a grave mistake
on the part of petitioner's counsel to treat COWD and Gonzalez as
respondents. There is no basis to do so, considering that, in the first
place, there is no showing that petitioner filed a cross-claim against
COWD and Gonzalez. Under Section 2, Rule 9 of the Rules of Court,
a cross-claim which is not set up shall be barred. Thus, for failing to
set up a cross-claim against COWD and Gonzalez before the RTC,
petitioner is already barred from doing so in the present petition.
More importantly, as shown above, COWD and Gonzalez's petition
for review on certiorari filed with this Court was already denied with
finality on June 28, 2004, making the presently assailed CA
Decision final and executory insofar as COWD and Gonzalez are
concerned. Thus, COWD and Gonzalez are already precluded from
participating in the present petition. They cannot resurrect their lost
cause by filing pleadings this time as respondents but, nonetheless,
reiterating the same prayer in their previous pleadings filed with the
RTC and the CA.
As to the merits of the instant petition, the Court likewise noticed
that the main issues raised by petitioner are factual and it is settled
that the resolution of factual issues is the function of lower courts,
whose findings on these matters are received with respect and
11
considered binding by the Supreme Court subject only to certain
exceptions, none of which is present in this instant petition.13 This is
especially true when the findings of the RTC have been affirmed by
the CA as in this case.14
In any case, a perusal of the records at hand would readily show
that the instant petition lacks merit.
Petitioner insists that she should not be held liable for the
disconnection of respondent spouses' water supply, because she had
no participation in the actual disconnection. However, she admitted
in the present petition that it was she who requested COWD to
disconnect the Spouses Pastorfide's water supply. This was
confirmed by COWD and Gonzalez in their cross-claim against
petitioner. While it was COWD which actually discontinued
respondent spouses' water supply, it cannot be denied that it was
through the instance of petitioner that the Spouses Pastorfide's
water supply was disconnected in the first place.
It is true that it is within petitioner's right to ask and even require
the Spouses Pastorfide to cause the transfer of the former's account
with COWD to the latter's name pursuant to their Memorandum of
Agreement. However, the remedy to enforce such right is not to
cause the disconnection of the respondent spouses' water supply.
The exercise of a right must be in accordance with the purpose for
which it was established and must not be excessive or unduly
harsh; there must be no intention to harm another.15 Otherwise,
liability for damages to the injured party will attach.16 In the present
case, intention to harm was evident on the part of petitioner when
she requested for the disconnection of respondent spouses’ water
supply without warning or informing the latter of such request.
Petitioner claims that her request for disconnection was based on
the advise of COWD personnel and that her intention was just to

compel the Spouses Pastorfide to comply with their agreement that
petitioner's account with COWD be transferred in respondent
spouses' name. If such was petitioner's only intention, then she
should have advised respondent spouses before or immediately after
submitting her request for disconnection, telling them that her
request was simply to force them to comply with their obligation
under their Memorandum of Agreement. But she did not. What
made matters worse is the fact that COWD undertook the
disconnection also without prior notice and even failed to reconnect
the Spouses Pastorfide’s water supply despite payment of their
arrears. There was clearly an abuse of right on the part of petitioner,
COWD and Gonzalez. They are guilty of bad faith.
The principle of abuse of rights as enshrined in Article 19 of the Civil
Code provides that every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith.
In this regard, the Court's ruling in Yuchengco v. The Manila
Chronicle Publishing Corporation17 is instructive, to wit:
xxxx
This provision of law sets standards which must be observed in the
exercise of one’s rights as well as in the performance of its duties, to
wit: to act with justice; give everyone his due; and observe honesty
and good faith.
In Globe Mackay Cable and Radio Corporation v. Court of Appeals, it
was elucidated that while Article 19 "lays down a rule of conduct for
the government of human relations and for the maintenance of
social order, it does not provide a remedy for its violation. Generally,
12
an action for damages under either Article 20 or Article 21 would be
proper." The Court said:
One of the more notable innovations of the New Civil Code is the
codification of "some basic principles that are to be observed for the
rightful relationship between human beings and for the stability of
the social order." [REPORT ON THE CODE COMMISSION ON THE
PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers
of the Code, seeking to remedy the defect of the old Code which
merely stated the effects of the law, but failed to draw out its spirit,
incorporated certain fundamental precepts which were "designed to
indicate certain norms that spring from the fountain of good
conscience" and which were also meant to serve as "guides for
human conduct [that] should run as golden threads through society,
to the end that law may approach its supreme ideal, which is the
sway and dominance of justice." (Id.) Foremost among these
principles is that pronounced in Article 19 x x x.
xxxx
This article, known to contain what is commonly referred to as the
principle of abuse of rights, sets certain standards which must be
observed not only in the exercise of one's rights, but also in the
performance of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to observe honesty
and good faith. The law, therefore, recognizes a primordial limitation
on all rights; that in their exercise, the norms of human conduct set
forth in Article 19 must be observed. A right, though by itself legal
because recognized or granted by law as such, may nevertheless
become the source of some illegality. When a right is exercised in a
manner which does not conform with the norms enshrined in Article
19 and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be held responsible. But

while Article 19 lays down a rule of conduct for the government of
human relations and for the maintenance of social order, it does not
provide a remedy for its violation. Generally, an action for damages
under either Article 20 or Article 21 would be proper.
Corollarilly, Article 20 provides that "every person who, contrary to
law, willfully or negligently causes damage to another shall
indemnify the latter for the same." It speaks of the general sanctions
of all other provisions of law which do not especially provide for its
own sanction. When a right is exercised in a manner which does not
conform to the standards set forth in the said provision and results
in damage to another, a legal wrong is thereby committed for which
the wrongdoer must be responsible. Thus, if the provision does not
provide a remedy for its violation, an action for damages under
either Article 20 or Article 21 of the Civil Code would be proper.
The question of whether or not the principle of abuse of rights has
been violated resulting in damages under Article 20 or other
applicable provision of law, depends on the circumstances of each
case. x x x18
To recapitulate, petitioner's acts which violated the abovementioned
provisions of law is her unjustifiable act of having the respondent
spouses' water supply disconnected, coupled with her failure to
warn or at least notify respondent spouses of such intention. On the
part of COWD and Gonzalez, it is their failure to give prior notice of
the impending disconnection and their subsequent neglect to
reconnect respondent spouses' water supply despite the latter's
settlement of their delinquent account.
On the basis of the foregoing, the Court finds no cogent reason to
depart from the ruling of both the RTC and the CA that petitioner,
COWD and Gonzalez are solidarily liable.
13
The Spouses Pastorfide are entitled to moral damages based on the
provisions of Article 2219,19 in connection with Articles 2020 and
2121 of the Civil Code.
As for exemplary damages, Article 2229 provides that exemplary
damages may be imposed by way of example or correction for the
public good. Nonetheless, exemplary damages are imposed not to
enrich one party or impoverish another, but to serve as a deterrent
against or as a negative incentive to curb socially deleterious
actions.22 In the instant case, the Court agrees with the CA in
sustaining the award of exemplary damages, although it reduced the
amount granted, considering that respondent spouses were deprived
of their water supply for more than nine (9) months, and such
deprivation would have continued were it not for the relief granted
by the RTC.
With respect to the award of attorney's fees, Article 2208 of the Civil
Code provides, among others, that such fees may be recovered when
exemplary damages are awarded, when the defendant's act or
omission has compelled the plaintiff to litigate with third persons or
to incur expenses to protect his interest, and where the defendant
acted in gross and evident bad faith in refusing to satisfy the
plaintiffs’ plainly valid, just and demandable claim.
WHEREFORE, instant petition for review on certiorari is DENIED.
The Decision and Resolution of the Court of Appeals, dated August
28, 2003 and December 17, 2003, respectively, in CA-G.R. CV No.
73000 are AFFIRMED.
SO ORDERED.

G.R. No. 154259 February 28, 2005
NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,
vs.
ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel
Manila Garden (Hotel Nikko)1 and Ruby Lim assail the Decision2 of
the Court of Appeals dated 26 November 2001 reversing the
Decision3 of the Regional Trial Court (RTC) of Quezon City, Branch
104, as well as the Resolution4 of the Court of Appeals dated 09 July
2002 which denied petitioners’ motion for reconsideration.
The cause of action before the trial court was one for damages
brought under the human relations provisions of the New Civil
Code. Plaintiff thereat (respondent herein) Roberto Reyes, more
popularly known by the screen name "Amay Bisaya," alleged that at
around 6:00 o’clock in the evening of 13 October 1994, while he was
having coffee at the lobby of Hotel Nikko,5 he was spotted by his
friend of several years, Dr. Violeta Filart, who then approached
him.6 Mrs. Filart invited him to join her in a party at the hotel’s
penthouse in celebration of the natal day of the hotel’s manager, Mr.
Masakazu Tsuruoka.7 Mr. Reyes asked if she could vouch for him for
which she replied: "of course."8Mr. Reyes then went up with the
party of Dr. Filart carrying the basket of fruits which was the latter’s
present for the celebrant.9 At the penthouse, they first had their
picture taken with the celebrant after which Mr. Reyes sat with the
party of Dr. Filart.10 After a couple of hours, when the buffet dinner
was ready, Mr. Reyes lined-up at the buffet table but, to his great
14
shock, shame and embarrassment, he was stopped by petitioner
herein, Ruby Lim, who claimed to speak for Hotel Nikko as
Executive Secretary thereof.11 In a loud voice and within the
presence and hearing of the other guests who were making a queue
at the buffet table, Ruby Lim told him to leave the party ("huwag ka
nang kumain, hindi ka imbitado, bumaba ka na lang").12 Mr. Reyes
tried to explain that he was invited by Dr. Filart.13 Dr. Filart, who
was within hearing distance, however, completely ignored him thus
adding to his shame and humiliation.14 Not long after, while he was
still recovering from the traumatic experience, a Makati policeman
approached and asked him to step out of the hotel.15 Like a common
criminal, he was escorted out of the party by the
policeman.16 Claiming damages, Mr. Reyes asked for One Million
Pesos actual damages, One Million Pesos moral and/or exemplary
damages and Two Hundred Thousand Pesos attorney’s fees.17
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave
the party but not under the ignominious circumstance painted by
the latter. Ms. Lim narrated that she was the Hotel’s Executive
Secretary for the past twenty (20) years.18 One of her functions
included organizing the birthday party of the hotel’s former General
Manager, Mr. Tsuruoka.19 The year 1994 was no different. For Mr.
Tsuruoka’s party, Ms. Lim generated an exclusive guest list and
extended invitations accordingly.20 The guest list was limited to
approximately sixty (60) of Mr. Tsuruoka’s closest friends and some
hotel employees and that Mr. Reyes was not one of those
invited.21 At the party, Ms. Lim first noticed Mr. Reyes at the bar
counter ordering a drink.22 Mindful of Mr. Tsuruoka’s wishes to keep
the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain
waiter," to inquire as to the presence of Mr. Reyes who was not
invited.23 Mr. Miller replied that he saw Mr. Reyes with the group of
Dr. Filart.24 As Dr. Filart was engaged in conversation with another
guest and as Ms. Lim did not want to interrupt, she inquired instead

from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that
Dr. Filart did not invite Mr. Reyes.25 Ms. Lim then requested Ms.
Fruto to tell Mr. Reyes to leave the party as he was not invited.26 Mr.
Reyes, however, lingered prompting Ms. Lim to inquire from Ms.
Fruto who said that Mr. Reyes did not want to leave.27 When Ms. Lim
turned around, she saw Mr. Reyes conversing with a Captain
Batung whom she later approached.28 Believing that Captain Batung
and Mr. Reyes knew each other, Ms. Lim requested from him the
same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes
to leave the party as he was not invited.29 Still, Mr. Reyes lingered.
When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to
speak to him herself as there were no other guests in the immediate
vicinity.30However, as Mr. Reyes was already helping himself to the
food, she decided to wait.31 When Mr. Reyes went to a corner and
started to eat, Ms. Lim approached him and said: "alam ninyo, hindo
ho kayo dapat nandito. Pero total nakakuha na ho kayo ng pagkain,
ubusin na lang ninyo at pagkatapos kung pwede lang po umalis na
kayo."32 She then turned around trusting that Mr. Reyes would show
enough decency to leave, but to her surprise, he began screaming
and making a big scene, and even threatened to dump food on
her.33 1awphi1.nét
Dr. Violeta Filart, the third defendant in the complaint before the
lower court, also gave her version of the story to the effect that she
never invited Mr. Reyes to the party.34 According to her, it was Mr.
Reyes who volunteered to carry the basket of fruits intended for the
celebrant as he was likewise going to take the elevator, not to the
penthouse but to Altitude 49.35 When they reached the penthouse,
she reminded Mr. Reyes to go down as he was not properly dressed
and was not invited.36 All the while, she thought that Mr. Reyes
already left the place, but she later saw him at the bar talking to
Col. Batung.37 Then there was a commotion and she saw Mr. Reyes
15
shouting.38 She ignored Mr. Reyes.39 She was embarrassed and did
not want the celebrant to think that she invited him.40
After trial on the merits, the court a quo dismissed the
complaint,41 giving more credence to the testimony of Ms. Lim that
she was discreet in asking Mr. Reyes to leave the party. The trial
court likewise ratiocinated that Mr. Reyes assumed the risk of being
thrown out of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a
guest of Mr. Tsuruoka, the birthday celebrant. He assumed the risk
of being asked to leave for attending a party to which he was not
invited by the host. Damages are pecuniary consequences which the
law imposes for the breach of some duty or the violation of some
right. Thus, no recovery can be had against defendants Nikko Hotel
and Ruby Lim because he himself was at fault (Garciano v. Court of
Appeals, 212 SCRA 436). He knew that it was not the party of
defendant Violeta Filart even if she allowed him to join her and took
responsibility for his attendance at the party. His action against
defendants Nikko Hotel and Ruby Lim must therefore fail.42
On appeal, the Court of Appeals reversed the ruling of the trial court
as it found more commanding of belief the testimony of Mr. Reyes
that Ms. Lim ordered him to leave in a loud voice within hearing
distance of several guests:
In putting appellant in a very embarrassing situation, telling him
that he should not finish his food and to leave the place within the
hearing distance of other guests is an act which is contrary to
morals, good customs . . ., for which appellees should compensate
the appellant for the damage suffered by the latter as a consequence
therefore (Art. 21, New Civil Code). The liability arises from the acts
which are in themselves legal or not prohibited, but contrary to

morals or good customs. Conversely, even in the exercise of a formal
right, [one] cannot with impunity intentionally cause damage to
another in a manner contrary to morals or good customs.43
The Court of Appeals likewise ruled that the actuation of Ms. Lim in
approaching several people to inquire into the presence of Mr. Reyes
exposed the latter to ridicule and was uncalled for as she should
have approached Dr. Filart first and both of them should have
talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been
done by appellee Lim was to approach appellee Mrs. Filart and
together they should have told appellant Reyes in private that the
latter should leave the party as the celebrant only wanted close
friends around. It is necessary that Mrs. Filart be the one to
approach appellant because it was she who invited appellant in that
occasion. Were it not for Mrs. Filart’s invitation, appellant could not
have suffered such humiliation. For that, appellee Filart is equally
liable.
...
The acts of [appellee] Lim are causes of action which are predicated
upon mere rudeness or lack of consideration of one person, which
calls not only protection of human dignity but respect of such
dignity. Under Article 20 of the Civil Code, every person who violates
this duty becomes liable for damages, especially if said acts were
attended by malice or bad faith. Bad faith does not simply connote
bad judgment or simple negligence. It imports a dishonest purpose
or some moral obliquity and conscious doing of a wrong, a breach of
a known duty to some motive or interest or ill-will that partakes of
the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603).44
16
Consequently, the Court of Appeals imposed upon Hotel Nikko,
Ruby Lim and Dr. Violeta Filart the solidary obligation to pay Mr.
Reyes (1) exemplary damages in the amount of Two Hundred
Thousand Pesos (P200,000); (2) moral damages in the amount of
Two Hundred Thousand Pesos (P200,000); and (3) attorney’s fees in
the amount of Ten Thousand Pesos (P10,000).45 On motion for
reconsideration, the Court of Appeals affirmed its earlier decision as
the argument raised in the motion had "been amply discussed and
passed upon in the decision sought to be reconsidered."46
Thus, the instant petition for review. Hotel Nikko and Ruby Lim
contend that the Court of Appeals seriously erred in –
I.
… NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT
INJURIA CONSIDERING THAT BY ITS OWN FINDINGS, AMAY
BISAYA WAS A GATE-CRASHER
II.
… HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND
SEVERALLY LIABLE WITH DR. FILART FOR DAMAGES SINCE BY
ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE SUFFERED
SUCH HUMILIATION," "WERE IT NOT FOR DR. FILART’S
INVITATION"
III.
… DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL
COURT AS REGARDS THE CIRCUMSTANCES THAT ALLEGEDLY
CAUSED THE HUMILIATION OF AMAY BISAYA

IV.
… IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY
BECAUSE OF HIS POVERTY, CONSIDERING THAT THIS WAS
NEVER AN ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS
REGARD
V.
… IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF
THE APPELLANT’S BRIEF, THEREBY DEPARTING FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the
doctrine of volenti non fit injuria, they cannot be made liable for
damages as respondent Reyes assumed the risk of being asked to
leave (and being embarrassed and humiliated in the process) as he
was a "gate-crasher."
The doctrine of volenti non fit injuria ("to which a person assents is
not esteemed in law as injury"47 ) refers to self-inflicted injury48 or to
the consent to injury49 which precludes the recovery of damages by
one who has knowingly and voluntarily exposed himself to danger,
even if he is not negligent in doing so.50 As formulated by petitioners,
however, this doctrine does not find application to the case at bar
because even if respondent Reyes assumed the risk of being asked
to leave the party, petitioners, under Articles 19 and 21 of the New
Civil Code, were still under obligation to treat him fairly in order not
to expose him to unnecessary ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted
abusively in asking Roberto Reyes, a.k.a. "Amay Bisaya," to leave the
17
party where he was not invited by the celebrant thereof thereby
becoming liable under Articles 19 and 21 of the Civil Code.
Parenthetically, and if Ruby Lim were so liable, whether or not Hotel
Nikko, as her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and
irreconcilable conclusions concerning the same facts and evidence of
the case, this Court is left without choice but to use its latent power
to review such findings of facts. Indeed, the general rule is that we
are not a trier of facts as our jurisdiction is limited to reviewing and
revising errors of law.51 One of the exceptions to this general rule,
however, obtains herein as the findings of the Court of Appeals are
contrary to those of the trial court.52 The lower court ruled that Ms.
Lim did not abuse her right to ask Mr. Reyes to leave the party as
she talked to him politely and discreetly. The appellate court, on the
other hand, held that Ms. Lim is liable for damages as she
needlessly embarrassed Mr. Reyes by telling him not to finish his
food and to leave the place within hearing distance of the other
guests. Both courts, however, were in agreement that it was Dr.
Filart’s invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the
lower court’s findings of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel,53 for-
invitation-only, thrown for the hotel’s former Manager, a Japanese
national. Then came a person who was clearly uninvited (by the
celebrant)54 and who could not just disappear into the crowd as his
face is known by many, being an actor. While he was already

spotted by the organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the celebrant was
aware of his presence. Ms. Lim, mindful of the celebrant’s
instruction to keep the party intimate, would naturally want to get
rid of the "gate-crasher" in the most hush-hush manner in order not
to call attention to a glitch in an otherwise seamless affair and, in
the process, risk the displeasure of the celebrant, her former boss.
To unnecessarily call attention to the presence of Mr. Reyes would
certainly reflect badly on Ms. Lim’s ability to follow the instructions
of the celebrant to invite only his close friends and some of the
hotel’s personnel. Mr. Reyes, upon whom the burden rests to prove
that indeed Ms. Lim loudly and rudely ordered him to leave, could
not offer any satisfactory explanation why Ms. Lim would do that
and risk ruining a formal and intimate affair. On the contrary, Mr.
Reyes, on cross-examination, had unwittingly sealed his fate by
admitting that when Ms. Lim talked to him, she was very close.
Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached
you while you were at the buffet table? How close was she
when she approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was that
close and she shouted?
A: Yes. She said, "wag kang kumain, hindi ka imbitado dito,
bumaba ka na lang."
Q: So, you are testifying that she did this in a loud voice?
18
...
A: Yes. If it is not loud, it will not be heard by many.55
In the absence of any proof of motive on the part of Ms. Lim to
humiliate Mr. Reyes and expose him to ridicule and shame, it is
highly unlikely that she would shout at him from a very close
distance. Ms. Lim having been in the hotel business for twenty years
wherein being polite and discreet are virtues to be emulated, the
testimony of Mr. Reyes that she acted to the contrary does not
inspire belief and is indeed incredible. Thus, the lower court was
correct in observing that –
Considering the closeness of defendant Lim to plaintiff when the
request for the latter to leave the party was made such that they
nearly kissed each other, the request was meant to be heard by him
only and there could have been no intention on her part to cause
embarrassment to him. It was plaintiff’s reaction to the request that
must have made the other guests aware of what transpired between
them. . .
Had plaintiff simply left the party as requested, there was no need
for the police to take him out.56
Moreover, another problem with Mr. Reyes’s version of the story is
that it is unsupported. It is a basic rule in civil cases that he who
alleges proves. Mr. Reyes, however, had not presented any witness
to back his story up. All his witnesses – Danny Rodinas, Pepito
Guerrero and Alexander Silva - proved only that it was Dr. Filart
who invited him to the party.57

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the
party to which he was not invited, cannot be made liable to pay for
damages under Articles 19 and 21 of the Civil Code. Necessarily,
neither can her employer, Hotel Nikko, be held liable as its liability
springs from that of its employee.58
Article 19, known to contain what is commonly referred to as the
principle of abuse of rights,59 is not a panacea for all human hurts
and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.1awphi1.nét
Elsewhere, we explained that when "a right is exercised in a manner
which does not conform with the norms enshrined in Article 19 and
results in damage to another, a legal wrong is thereby committed for
which the wrongdoer must be responsible."60 The object of this
article, therefore, is to set certain standards which must be observed
not only in the exercise of one’s rights but also in the performance of
one’s duties.61 These standards are the following: act with justice,
give everyone his due and observe honesty and good faith.62 Its
antithesis, necessarily, is any act evincing bad faith or intent to
injure. Its elements are the following: (1) There is a legal right or
duty; (2) which is exercised in bad faith; (3) for the sole intent of
prejudicing or injuring another.63 When Article 19 is violated, an
action for damages is proper under Articles 20 or 21 of the Civil
Code. Article 20 pertains to damages arising from a violation of
law64 which does not obtain herein as Ms. Lim was perfectly within
her right to ask Mr. Reyes to leave. Article 21, on the other hand,
states:
19
Art. 21. Any person who willfully causes loss or injury to another in
a manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
Article 2165 refers to acts contra bonus mores and has the following
elements: (1) There is an act which is legal; (2) but which is contrary
to morals, good custom, public order, or public policy; and (3) it is
done with intent to injure.66
A common theme runs through Articles 19 and 21,67 and that is, the
act complained of must be intentional.68
As applied to herein case and as earlier discussed, Mr. Reyes has
not shown that Ms. Lim was driven by animosity against him. These
two people did not know each other personally before the evening of
13 October 1994, thus, Mr. Reyes had nothing to offer for an
explanation for Ms. Lim’s alleged abusive conduct except the
statement that Ms. Lim, being "single at 44 years old," had a "very
strong bias and prejudice against (Mr. Reyes) possibly influenced by
her associates in her work at the hotel with foreign
businessmen."69 The lameness of this argument need not be
belabored. Suffice it to say that a complaint based on Articles 19
and 21 of the Civil Code must necessarily fail if it has nothing to
recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to
leave was likewise acceptable and humane under the circumstances.
In this regard, we cannot put our imprimatur on the appellate
court’s declaration that Ms. Lim’s act of personally approaching Mr.
Reyes (without first verifying from Mrs. Filart if indeed she invited
Mr. Reyes) gave rise to a cause of action "predicated upon mere
rudeness or lack of consideration of one person, which calls not only
protection of human dignity but respect of such dignity." 70 Without
 20

proof of any ill-motive on her part, Ms. Lim’s act of by-passing Mrs.
Filart cannot amount to abusive conduct especially because she did
inquire from Mrs. Filart’s companion who told her that Mrs. Filart
did not invite Mr. Reyes.71 If at all, Ms. Lim is guilty only of bad
judgment which, if done with good intentions, cannot amount to bad
faith.
Not being liable for both actual and moral damages, neither can
petitioners Lim and Hotel Nikko be made answerable for exemplary
damages72 especially for the reason stated by the Court of Appeals.
The Court of Appeals held –
Not a few of the rich people treat the poor with contempt because of
the latter’s lowly station in life.l^vvphi1.net This has to be limited
somewhere. In a democracy, such a limit must be established.
Social equality is not sought by the legal provisions under
consideration, but due regard for decency and propriety (Code
Commission, pp. 33-34). And by way of example or correction for
public good and to avert further commission of such acts, exemplary
damages should be imposed upon appellees.73
social and economic standing of petitioner Ruby Lim. Consequently,
the conclusion reached by the appellate court cannot withstand
scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any
damage which Mr. Reyes might have suffered through Ms. Lim’s
exercise of a legitimate right done within the bounds of propriety
and good faith, must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim
and Nikko Hotel Manila Garden is GRANTED. The Decision of the
Court of Appeals dated 26 November 2001 and its Resolution dated
09 July 2002 are hereby REVERSED and SET ASIDE. The Decision
of the Regional Trial Court of Quezon City, Branch 104, dated 26
April 1999 is hereby AFFIRMED. No costs.
SO ORDERED.

The fundamental fallacy in the above-quoted findings is that it runs

counter with the very facts of the case and the evidence on
hand.l^vvphi1.net It is not disputed that at the time of the incident
in question, Mr. Reyes was "an actor of long standing; a co-host of a
radio program over DZRH; a Board Member of the Music Singer
Composer (MUSICO) chaired by popular singer Imelda Papin; a
showbiz Coordinator of Citizen Crime Watch; and 1992 official
candidate of the KBL Party for Governor of Bohol; and an awardee of
a number of humanitarian organizations of the
Philippines."74 During his direct examination on rebuttal, Mr. Reyes
stressed that he had income75 and nowhere did he say otherwise. On
the other hand, the records are bereft of any information as to the

G.R. No. 128690 January 21, 1999
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
HONORABLE COURT OF APPEALS, REPUBLIC BROADCASTING
CORP, VIVA PRODUCTION, INC., and VICENTE DEL
ROSARIO, respondents.
DAVIDE, JR., CJ.:
In this petition for review on certiorari, petitioner ABS-CBN
Broadcasting Corp. (hereafter ABS-CBN) seeks to reverse and set
aside the decision 1 of 31 October 1996 and the resolution 2 of 10
March 1997 of the Court of Appeals in CA-G.R. CV No. 44125. The
former affirmed with modification the decision 3 of 28 April 1993 of
the Regional Trial Court (RTC) of Quezon City, Branch 80, in Civil
Case No. Q-92-12309. The latter denied the motion to reconsider the
decision of 31 October 1996.
The antecedents, as found by the RTC and adopted by the Court of
Appeals, are as follows:
In 1990, ABS-CBN and Viva executed a Film Exhibition
Agreement (Exh. "A") whereby Viva gave ABS-CBN an
exclusive right to exhibit some Viva films. Sometime in
December 1991, in accordance with paragraph 2.4 [sic]
of said agreement stating that —.
1.4 ABS-CBN shall have the right of first refusal to the
next twenty-four (24) Viva films for TV telecast under
such terms as may be agreed upon by the parties
21
hereto, provided, however, that such right shall be
exercised by ABS-CBN from the actual offer in writing.
Viva, through defendant Del Rosario, offered ABS-CBN,
through its vice-president Charo Santos-Concio, a list
of three(3) film packages (36 title) from which ABS-CBN
may exercise its right of first refusal under the afore-
said agreement (Exhs. "1" par, 2, "2," "2-A'' and "2-B"-
Viva). ABS-CBN, however through Mrs. Concio, "can
tick off only ten (10) titles" (from the list) "we can
purchase" (Exh. "3" - Viva) and therefore did not accept
said list (TSN, June 8, 1992, pp. 9-10). The titles ticked
off by Mrs. Concio are not the subject of the case at bar
except the film ''Maging Sino Ka Man."
For further enlightenment, this rejection letter dated
January 06, 1992 (Exh "3" - Viva) is hereby quoted:
6 January 1992
Dear Vic,
This is not a very formal business letter I am writing to
you as I would like to express my difficulty in
recommending the purchase of the three film packages
you are offering ABS-CBN.
From among the three packages I can only tick off 10
titles we can purchase. Please see attached. I hope you
will understand my position. Most of the action
pictures in the list do not have big action stars in the
cast. They are not for primetime. In line with this I

wish to mention that I have not scheduled for telecast
several action pictures in out very first contract
because of the cheap production value of these movies
as well as the lack of big action stars. As a film
producer, I am sure you understand what I am trying
to say as Viva produces only big action pictures.
In fact, I would like to request two (2) additional runs
for these movies as I can only schedule them in our
non-primetime slots. We have to cover the amount that
was paid for these movies because as you very well
know that non-primetime advertising rates are very
low. These are the unaired titles in the first contract.
1. Kontra Persa [sic].
2. Raider Platoon.
3. Underground guerillas
4. Tiger Command
5. Boy de Sabog
6. Lady Commando
7. Batang Matadero
8. Rebelyon
I hope you will consider this request of mine.
22
The other dramatic films have been offered to us before
and have been rejected because of the ruling of MTRCB
to have them aired at 9:00 p.m. due to their very adult
themes.
As for the 10 titles I have choosen [sic] from the 3
packages please consider including all the other Viva
movies produced last year. I have quite an attractive
offer to make.
Thanking you and with my warmest regards.
Signed)
Charo Santos-Concio
On February 27, 1992, defendant Del Rosario
approached ABS-CBN's Ms. Concio, with a list
consisting of 52 original movie titles (i.e. not yet aired
on television) including the 14 titles subject of the
present case, as well as 104 re-runs (previously aired
on television) from which ABS-CBN may choose
another 52 titles, as a total of 156 titles, proposing to
sell to ABS-CBN airing rights over this package of 52
originals and 52 re-runs for P60,000,000.00 of which
P30,000,000.00 will be in cash and P30,000,000.00
worth of television spots (Exh. "4" to "4-C" Viva; "9" -
Viva).
On April 2, 1992, defendant Del Rosario and ABS-CBN
general manager, Eugenio Lopez III, met at the
Tamarind Grill Restaurant in Quezon City to discuss

the package proposal of Viva. What transpired in that
lunch meeting is the subject of conflicting versions. Mr.
Lopez testified that he and Mr. Del Rosario allegedly
agreed that ABS-CRN was granted exclusive film rights
to fourteen (14) films for a total consideration of P36
million; that he allegedly put this agreement as to the
price and number of films in a "napkin'' and signed it
and gave it to Mr. Del Rosario (Exh. D; TSN, pp. 24-26,
77-78, June 8, 1992). On the other hand, Del Rosario
denied having made any agreement with Lopez
regarding the 14 Viva films; denied the existence of a
napkin in which Lopez wrote something; and insisted
that what he and Lopez discussed at the lunch meeting
was Viva's film package offer of 104 films (52 originals
and 52 re-runs) for a total price of P60 million. Mr.
Lopez promising [sic]to make a counter proposal which
came in the form of a proposal contract Annex "C" of
the complaint (Exh. "1"·- Viva; Exh. "C" - ABS-CBN).
On April 06, 1992, Del Rosario and Mr. Graciano
Gozon of RBS Senior vice-president for Finance
discussed the terms and conditions of Viva's offer to
sell the 104 films, after the rejection of the same
package by ABS-CBN.
On April 07, 1992, defendant Del Rosario received
through his secretary, a handwritten note from Ms.
Concio, (Exh. "5" - Viva), which reads: "Here's the draft
of the contract. I hope you find everything in order," to
which was attached a draft exhibition agreement (Exh.
"C''- ABS-CBN; Exh. "9" - Viva, p. 3) a counter-proposal
covering 53 films, 52 of which came from the list sent
by defendant Del Rosario and one film was added by
23
Ms. Concio, for a consideration of P35 million. Exhibit
"C" provides that ABS-CBN is granted films right to 53
films and contains a right of first refusal to "1992 Viva
Films." The said counter proposal was however rejected
by Viva's Board of Directors [in the] evening of the
same day, April 7, 1992, as Viva would not sell
anything less than the package of 104 films for P60
million pesos (Exh. "9" - Viva), and such rejection was
relayed to Ms. Concio.
On April 29, 1992, after the rejection of ABS-CBN and
following several negotiations and meetings defendant
Del Rosario and Viva's President Teresita Cruz, in
consideration of P60 million, signed a letter of
agreement dated April 24, 1992. granting RBS the
exclusive right to air 104 Viva-produced and/or
acquired films (Exh. "7-A" - RBS; Exh. "4" - RBS)
including the fourteen (14) films subject of the present
case. 4
On 27 May 1992, ABS-CBN filed before the RTC a complaint for
specific performance with a prayer for a writ of preliminary
injunction and/or temporary restraining order against private
respondents Republic Broadcasting Corporation 5 (hereafter RBS ),
Viva Production (hereafter VIVA), and Vicente Del Rosario. The
complaint was docketed as Civil Case No. Q-92-12309.
On 27 May 1992, RTC issued a temporary restraining
order 6 enjoining private respondents from proceeding with the
airing, broadcasting, and televising of the fourteen VIVA films
subject of the controversy, starting with the film Maging Sino Ka
Man, which was scheduled to be shown on private respondents RBS'
channel 7 at seven o'clock in the evening of said date.

On 17 June 1992, after appropriate proceedings, the RTC issued an
order 7 directing the issuance of a writ of preliminary injunction
upon ABS-CBN's posting of P35 million bond. ABS-CBN moved for
the reduction of the bond, 8 while private respondents moved for
reconsideration of the order and offered to put up a counterbound. 9
In the meantime, private respondents filed separate answers with
counterclaim. 10 RBS also set up a cross-claim against VIVA..
On 3 August 1992, the RTC issued an order 11 dissolving the writ of
preliminary injunction upon the posting by RBS of a P30 million
counterbond to answer for whatever damages ABS-CBN might suffer
by virtue of such dissolution. However, it reduced petitioner's
injunction bond to P15 million as a condition precedent for the
reinstatement of the writ of preliminary injunction should private
respondents be unable to post a counterbond.
At the pre-trial 12 on 6 August 1992, the parties, upon suggestion of
the court, agreed to explore the possibility of an amicable
settlement. In the meantime, RBS prayed for and was granted
reasonable time within which to put up a P30 million counterbond
in the event that no settlement would be reached.
As the parties failed to enter into an amicable settlement RBS posted
on 1 October 1992 a counterbond, which the RTC approved in its
Order of 15 October 1992.13
On 19 October 1992, ABS-CBN filed a motion for
reconsideration 14 of the 3 August and 15 October 1992 Orders,
which RBS opposed. 15
On 29 October 1992, the RTC conducted a pre-trial. 16
24
Pending resolution of its motion for reconsideration, ABS-CBN filed
with the Court of Appeals a petition17challenging the RTC's Orders of
3 August and 15 October 1992 and praying for the issuance of a
writ of preliminary injunction to enjoin the RTC from enforcing said
orders. The case was docketed as CA-G.R. SP No. 29300.
On 3 November 1992, the Court of Appeals issued a temporary
restraining order18 to enjoin the airing, broadcasting, and televising
of any or all of the films involved in the controversy.
On 18 December 1992, the Court of Appeals promulgated a
decision 19 dismissing the petition in CA -G.R. No. 29300 for being
premature. ABS-CBN challenged the dismissal in a petition for
review filed with this Court on 19 January 1993, which was
docketed as G.R. No. 108363.
In the meantime the RTC received the evidence for the parties in
Civil Case No. Q-192-1209. Thereafter, on 28 April 1993, it rendered
a decision 20 in favor of RBS and VIVA and against ABS-CBN
disposing as follows:
WHEREFORE, under cool reflection and prescinding
from the foregoing, judgments is rendered in favor of
defendants and against the plaintiff.
(1) The complaint is hereby dismissed;
(2) Plaintiff ABS-CBN is ordered to pay
defendant RBS the following:
a) P107,727.00, the amount
of premium paid by RBS to

the surety which issued
defendant RBS's bond to lift
the injunction;
b) P191,843.00 for the
amount of print
advertisement for "Maging
Sino Ka Man" in various
newspapers;
c) Attorney's fees in the
amount of P1 million;
d) P5 million as and by way
of moral damages;
e) P5 million as and by way
of exemplary damages;
(3) For defendant VIVA, plaintiff ABS-CBN
is ordered to pay P212,000.00 by way of
reasonable attorney's fees.
(4) The cross-claim of defendant RBS
against defendant VIVA is dismissed.
(5) Plaintiff to pay the costs.
According to the RTC, there was no meeting of minds on the price
and terms of the offer. The alleged agreement between Lopez III and
Del Rosario was subject to the approval of the VIVA Board of
Directors, and said agreement was disapproved during the meeting
25
of the Board on 7 April 1992. Hence, there was no basis for ABS-
CBN's demand that VIVA signed the 1992 Film Exhibition
Agreement. Furthermore, the right of first refusal under the 1990
Film Exhibition Agreement had previously been exercised per Ms.
Concio's letter to Del Rosario ticking off ten titles acceptable to
them, which would have made the 1992 agreement an entirely new
contract.
On 21 June 1993, this Court denied21 ABS-CBN's petition for review
in G.R. No. 108363, as no reversible error was committed by the
Court of Appeals in its challenged decision and the case had
"become moot and academic in view of the dismissal of the main
action by the court a quo in its decision" of 28 April 1993.
Aggrieved by the RTC's decision, ABS-CBN appealed to the Court of
Appeals claiming that there was a perfected contract between ABS-
CBN and VIVA granting ABS-CBN the exclusive right to exhibit the
subject films. Private respondents VIVA and Del Rosario also
appealed seeking moral and exemplary damages and additional
attorney's fees.
In its decision of 31 October 1996, the Court of Appeals agreed with
the RTC that the contract between ABS-CBN and VIVA had not been
perfected, absent the approval by the VIVA Board of Directors of
whatever Del Rosario, it's agent, might have agreed with Lopez III.
The appellate court did not even believe ABS-CBN's evidence that
Lopez III actually wrote down such an agreement on a "napkin," as
the same was never produced in court. It likewise rejected ABS-
CBN's insistence on its right of first refusal and ratiocinated as
follows:
As regards the matter of right of first refusal, it may be
true that a Film Exhibition Agreement was entered into

between Appellant ABS-CBN and appellant VIVA under
Exhibit "A" in 1990, and that parag. 1.4 thereof
provides:
1.4 ABS-CBN shall have the right of first
refusal to the next twenty-four (24) VIVA
films for TV telecast under such terms as
may be agreed upon by the parties
hereto, provided, however, that such right
shall be exercised by ABS-CBN within a
period of fifteen (15) days from the actual
offer in writing (Records, p. 14).
[H]owever, it is very clear that said right of first refusal
in favor of ABS-CBN shall still be subject to such terms
as may be agreed upon by the parties thereto, and that
the said right shall be exercised by ABS-CBN within
fifteen (15) days from the actual offer in writing.
Said parag. 1.4 of the agreement Exhibit "A" on the
right of first refusal did not fix the price of the film
right to the twenty-four (24) films, nor did it specify the
terms thereof. The same are still left to be agreed upon
by the parties.
In the instant case, ABS-CBN's letter of rejection
Exhibit 3 (Records, p. 89) stated that it can only tick
off ten (10) films, and the draft contract Exhibit "C"
accepted only fourteen (14) films, while parag. 1.4 of
Exhibit "A'' speaks of the next twenty-four (24) films.
The offer of V1VA was sometime in December 1991
(Exhibits 2, 2-A. 2-B; Records, pp. 86-88; Decision, p.
26
11, Records, p. 1150), when the first list of VIVA films
was sent by Mr. Del Rosario to ABS-CBN. The Vice
President of ABS-CBN, Ms. Charo Santos-Concio, sent
a letter dated January 6, 1992 (Exhibit 3, Records, p.
89) where ABS-CBN exercised its right of refusal by
rejecting the offer of VIVA.. As aptly observed by the
trial court, with the said letter of Mrs. Concio of
January 6, 1992, ABS-CBN had lost its right of first
refusal. And even if We reckon the fifteen (15) day
period from February 27, 1992 (Exhibit 4 to 4-C) when
another list was sent to ABS-CBN after the letter of
Mrs. Concio, still the fifteen (15) day period within
which ABS-CBN shall exercise its right of first refusal
has already expired.22
Accordingly, respondent court sustained the award of actual
damages consisting in the cost of print advertisements and the
premium payments for the counterbond, there being adequate proof
of the pecuniary loss which RBS had suffered as a result of the filing
of the complaint by ABS-CBN. As to the award of moral damages,
the Court of Appeals found reasonable basis therefor, holding that
RBS's reputation was debased by the filing of the complaint in Civil
Case No. Q-92-12309 and by the non-showing of the film "Maging
Sino Ka Man." Respondent court also held that exemplary damages
were correctly imposed by way of example or correction for the
public good in view of the filing of the complaint despite petitioner's
knowledge that the contract with VIVA had not been perfected, It
also upheld the award of attorney's fees, reasoning that with ABS-
CBN's act of instituting Civil Case No, Q-92-1209, RBS was
"unnecessarily forced to litigate." The appellate court, however,
reduced the awards of moral damages to P2 million, exemplary
damages to P2 million, and attorney's fees to P500, 000.00.

On the other hand, respondent Court of Appeals denied VIVA and
Del Rosario's appeal because it was "RBS and not VIVA which was
actually prejudiced when the complaint was filed by ABS-CBN."
Its motion for reconsideration having been denied, ABS-CBN filed
the petition in this case, contending that the Court of Appeals
gravely erred in
I as the elements thereof, namely, consent, object, and consideration
. . . RULING THAT THERE WAS NO PERFECTED
CONTRACT BETWEEN PETITIONER AND PRIVATE
RESPONDENT VIVA NOTWITHSTANDING
PREPONDERANCE OF EVIDENCE ADDUCED BY
PETITIONER TO THE CONTRARY.
II
. . . IN AWARDING ACTUAL AND COMPENSATORY
DAMAGES IN FAVOR OF PRIVATE RESPONDENT
RBS.
III
. . . IN AWARDING MORAL AND EXEMPLARY
DAMAGES IN FAVOR OF PRIVATE RESPONDENT
RBS.
IV
. . . IN AWARDING ATTORNEY'S FEES IN FAVOR OF
RBS.
27
ABS-CBN claims that it had yet to fully exercise its right of first
refusal over twenty-four titles under the 1990 Film Exhibition
Agreement, as it had chosen only ten titles from the first list. It
insists that we give credence to Lopez's testimony that he and Del
Rosario met at the Tamarind Grill Restaurant, discussed the terms
and conditions of the second list (the 1992 Film Exhibition
Agreement) and upon agreement thereon, wrote the same on a paper
napkin. It also asserts that the contract has already been effective,
were established. It then concludes that the Court of Appeals'
pronouncements were not supported by law and jurisprudence, as
per our decision of 1 December 1995 in Limketkai Sons Milling, Inc.
v. Court of Appeals, 23 which cited Toyota Shaw, Inc. v. Court of
Appeals, 24 Ang Yu Asuncion v. Court of Appeals, 25 and Villonco
Realty Company v. Bormaheco. Inc.26
Anent the actual damages awarded to RBS, ABS-CBN disavows
liability therefor. RBS spent for the premium on the counterbond of
its own volition in order to negate the injunction issued by the trial
court after the parties had ventilated their respective positions
during the hearings for the purpose. The filing of the counterbond
was an option available to RBS, but it can hardly be argued that
ABS-CBN compelled RBS to incur such expense. Besides, RBS had
another available option, i.e., move for the dissolution or the
injunction; or if it was determined to put up a counterbond, it could
have presented a cash bond. Furthermore under Article 2203 of the
Civil Code, the party suffering loss or injury is also required to
exercise the diligence of a good father of a family to minimize the
damages resulting from the act or omission. As regards the cost of
print advertisements, RBS had not convincingly established that
this was a loss attributable to the non showing "Maging Sino Ka
Man"; on the contrary, it was brought out during trial that with or

without the case or the injunction, RBS would have spent such an
amount to generate interest in the film.
ABS-CBN further contends that there was no clear basis for the
awards of moral and exemplary damages. The controversy involving
ABS-CBN and RBS did not in any way originate from business
transaction between them. The claims for such damages did not
arise from any contractual dealings or from specific acts committed
by ABS-CBN against RBS that may be characterized as wanton,
fraudulent, or reckless; they arose by virtue only of the filing of the
complaint, An award of moral and exemplary damages is not
warranted where the record is bereft of any proof that a party acted
maliciously or in bad faith in filing an action. 27 In any case, free
resort to courts for redress of wrongs is a matter of public policy.
The law recognizes the right of every one to sue for that which he
honestly believes to be his right without fear of standing trial for
damages where by lack of sufficient evidence, legal technicalities, or
a different interpretation of the laws on the matter, the case would
lose ground. 28 One who makes use of his own legal right does no
injury. 29 If damage results front the filing of the complaint, it
is damnum absque injuria. 30 Besides, moral damages are generally
not awarded in favor of a juridical person, unless it enjoys a good
reputation that was debased by the offending party resulting in
social humiliation.31
As regards the award of attorney's fees, ABS-CBN maintains that the
same had no factual, legal, or equitable justification. In sustaining
the trial court's award, the Court of Appeals acted in clear disregard
of the doctrines laid down in Buan v. Camaganacan 32 that the text
of the decision should state the reason why attorney's fees are being
awarded; otherwise, the award should be disallowed. Besides, no
bad faith has been imputed on, much less proved as having been
committed by, ABS-CBN. It has been held that "where no sufficient
28
showing of bad faith would be reflected in a party' s persistence in a
case other than an erroneous conviction of the righteousness of his
cause, attorney's fees shall not be recovered as cost." 33
On the other hand, RBS asserts that there was no perfected contract
between ABS-CBN and VIVA absent any meeting of minds between
them regarding the object and consideration of the alleged contract.
It affirms that the ABS-CBN's claim of a right of first refusal was
correctly rejected by the trial court. RBS insist the premium it had
paid for the counterbond constituted a pecuniary loss upon which it
may recover. It was obliged to put up the counterbound due to the
injunction procured by ABS-CBN. Since the trial court found that
ABS-CBN had no cause of action or valid claim against RBS and,
therefore not entitled to the writ of injunction, RBS could recover
from ABS-CBN the premium paid on the counterbond. Contrary to
the claim of ABS-CBN, the cash bond would prove to be more
expensive, as the loss would be equivalent to the cost of money RBS
would forego in case the P30 million came from its funds or was
borrowed from banks.
RBS likewise asserts that it was entitled to the cost of
advertisements for the cancelled showing of the film "Maging Sino
Ka Man" because the print advertisements were put out to announce
the showing on a particular day and hour on Channel 7, i.e., in its
entirety at one time, not a series to be shown on a periodic basis.
Hence, the print advertisement were good and relevant for the
particular date showing, and since the film could not be shown on
that particular date and hour because of the injunction, the
expenses for the advertisements had gone to waste.
As regards moral and exemplary damages, RBS asserts that ABS-
CBN filed the case and secured injunctions purely for the purpose of
harassing and prejudicing RBS. Pursuant then to Article 19 and 21

of the Civil Code, ABS-CBN must be held liable for such
damages. Citing Tolentino,34 damages may be awarded in cases of
abuse of rights even if the act done is not illicit and there is abuse of
rights were plaintiff institutes and action purely for the purpose of
harassing or prejudicing the defendant.
In support of its stand that a juridical entity can recover moral and
exemplary damages, private respondents RBS cited People
v. Manero,35 where it was stated that such entity may recover moral
and exemplary damages if it has a good reputation that is debased
resulting in social humiliation. it then ratiocinates; thus:
There can be no doubt that RBS' reputation has been
debased by ABS-CBN's acts in this case. When RBS
was not able to fulfill its commitment to the viewing
public to show the film "Maging Sino Ka Man" on the
scheduled dates and times (and on two occasions that
RBS advertised), it suffered serious embarrassment
and social humiliation. When the showing was
canceled, late viewers called up RBS' offices and
subjected RBS to verbal abuse ("Announce kayo nang
announce, hindi ninyo naman ilalabas," "nanloloko
yata kayo") (Exh. 3-RBS, par. 3). This alone was not
something RBS brought upon itself. it was exactly what
ABS-CBN had planned to happen.
The amount of moral and exemplary damages cannot
be said to be excessive. Two reasons justify the amount
of the award.
The first is that the humiliation suffered by RBS is
national extent. RBS operations as a broadcasting
company is [sic] nationwide. Its clientele, like that of
29
ABS-CBN, consists of those who own and watch
television. It is not an exaggeration to state, and it is a
matter of judicial notice that almost every other person
in the country watches television. The humiliation
suffered by RBS is multiplied by the number of
televiewers who had anticipated the showing of the film
"Maging Sino Ka Man" on May 28 and November 3,
1992 but did not see it owing to the cancellation.
Added to this are the advertisers who had placed
commercial spots for the telecast and to whom RBS
had a commitment in consideration of the placement to
show the film in the dates and times specified.
The second is that it is a competitor that caused RBS
to suffer the humiliation. The humiliation and injury
are far greater in degree when caused by an entity
whose ultimate business objective is to lure customers
(viewers in this case) away from the competition. 36
For their part, VIVA and Vicente del Rosario contend that the
findings of fact of the trial court and the Court of Appeals do not
support ABS-CBN's claim that there was a perfected contract. Such
factual findings can no longer be disturbed in this petition for review
under Rule 45, as only questions of law can be raised, not questions
of fact. On the issue of damages and attorneys fees, they adopted
the arguments of RBS.
The key issues for our consideration are (1) whether there was a
perfected contract between VIVA and ABS-CBN, and (2) whether
RBS is entitled to damages and attorney's fees. It may be noted that
the award of attorney's fees of P212,000 in favor of VIVA is not
assigned as another error.

I.
The first issue should be resolved against ABS-CBN. A contract is a
meeting of minds between two persons whereby one binds himself to
give something or to render some service to another 37 for a
consideration. there is no contract unless the following requisites
concur: (1) consent of the contracting parties; (2) object certain
which is the subject of the contract; and (3) cause of the obligation,
which is established.38 A contract undergoes three stages:
(a) preparation, conception, or generation, which is the
period of negotiation and bargaining, ending at the
moment of agreement of the parties;
(b) perfection or birth of the contract, which is the
moment when the parties come to agree on the terms
of the contract; and
(c) consummation or death, which is the fulfillment or
performance of the terms agreed upon in the
contract. 39
Contracts that are consensual in nature are perfected upon mere
meeting of the minds, Once there is concurrence between the offer
and the acceptance upon the subject matter, consideration, and
terms of payment a contract is produced. The offer must be certain.
To convert the offer into a contract, the acceptance must be absolute
and must not qualify the terms of the offer; it must be plain,
unequivocal, unconditional, and without variance of any sort from
the proposal. A qualified acceptance, or one that involves a new
proposal, constitutes a counter-offer and is a rejection of the original
offer. Consequently, when something is desired which is not exactly
what is proposed in the offer, such acceptance is not sufficient to
30
generate consent because any modification or variation from the
terms of the offer annuls the offer.40
When Mr. Del Rosario of VIVA met with Mr. Lopez of ABS-CBN at
the Tamarind Grill on 2 April 1992 to discuss the package of films,
said package of 104 VIVA films was VIVA's offer to ABS-CBN to enter
into a new Film Exhibition Agreement. But ABS-CBN, sent, through
Ms. Concio, a counter-proposal in the form of a draft contract
proposing exhibition of 53 films for a consideration of P35 million.
This counter-proposal could be nothing less than the counter-offer
of Mr. Lopez during his conference with Del Rosario at Tamarind
Grill Restaurant. Clearly, there was no acceptance of VIVA's offer,
for it was met by a counter-offer which substantially varied the
terms of the offer.
ABS-CBN's reliance in Limketkai Sons Milling, Inc. v. Court of
Appeals 41 and Villonco Realty Company v. Bormaheco, Inc., 42 is
misplaced. In these cases, it was held that an acceptance may
contain a request for certain changes in the terms of the offer and
yet be a binding acceptance as long as "it is clear that the meaning
of the acceptance is positively and unequivocally to accept the offer,
whether such request is granted or not." This ruling was, however,
reversed in the resolution of 29 March 1996, 43 which ruled that the
acceptance of all offer must be unqualified and absolute, i.e., it
"must be identical in all respects with that of the offer so as to
produce consent or meeting of the minds."
On the other hand, in Villonco, cited in Limketkai, the alleged
changes in the revised counter-offer were not material but merely
clarificatory of what had previously been agreed upon. It cited the
statement in Stuart v. Franklin Life Insurance Co.44 that "a vendor's
change in a phrase of the offer to purchase, which change does not
essentially change the terms of the offer, does not amount to a

rejection of the offer and the tender of a counter-offer." 45However,
when any of the elements of the contract is modified upon
acceptance, such alteration amounts to a counter-offer.
In the case at bar, ABS-CBN made no unqualified acceptance of
VIVA's offer. Hence, they underwent a period of bargaining. ABS-
CBN then formalized its counter-proposals or counter-offer in a draft
contract, VIVA through its Board of Directors, rejected such
counter-offer, Even if it be conceded arguendo that Del Rosario had
accepted the counter-offer, the acceptance did not bind VIVA, as
there was no proof whatsoever that Del Rosario had the specific
authority to do so.
Under Corporation Code,46 unless otherwise provided by said Code,
corporate powers, such as the power; to enter into contracts; are
exercised by the Board of Directors. However, the Board may
delegate such powers to either an executive committee or officials or
contracted managers. The delegation, except for the executive
committee, must be for specific purposes, 47 Delegation to officers
makes the latter agents of the corporation; accordingly, the general
rules of agency as to the bindings effects of their acts would
apply. 48 For such officers to be deemed fully clothed by the
corporation to exercise a power of the Board, the latter must
specially authorize them to do so. That Del Rosario did not have the
authority to accept ABS-CBN's counter-offer was best evidenced by
his submission of the draft contract to VIVA's Board of Directors for
the latter's approval. In any event, there was between Del Rosario
and Lopez III no meeting of minds. The following findings of the trial
court are instructive:
A number of considerations militate against ABS-CBN's
claim that a contract was perfected at that lunch
meeting on April 02, 1992 at the Tamarind Grill.
31
FIRST, Mr. Lopez claimed that what was agreed upon
at the Tamarind Grill referred to the price and the
number of films, which he wrote on a napkin. However,
Exhibit "C" contains numerous provisions which, were
not discussed at the Tamarind Grill, if Lopez testimony
was to be believed nor could they have been physically
written on a napkin. There was even doubt as to
whether it was a paper napkin or a cloth napkin. In
short what were written in Exhibit "C'' were not
discussed, and therefore could not have been agreed
upon, by the parties. How then could this court compel
the parties to sign Exhibit "C" when the provisions
thereof were not previously agreed upon?
SECOND, Mr. Lopez claimed that what was agreed
upon as the subject matter of the contract was 14
films. The complaint in fact prays for delivery of 14
films. But Exhibit "C" mentions 53 films as its subject
matter. Which is which If Exhibits "C" reflected the
true intent of the parties, then ABS-CBN's claim for 14
films in its complaint is false or if what it alleged in the
complaint is true, then Exhibit "C" did not reflect what
was agreed upon by the parties. This underscores the
fact that there was no meeting of the minds as to the
subject matter of the contracts, so as to preclude
perfection thereof. For settled is the rule that there can
be no contract where there is no object which is its
subject matter (Art. 1318, NCC).
THIRD, Mr. Lopez [sic] answer to question 29 of his
affidavit testimony (Exh. "D") states:

We were able to reach an agreement.
VIVA gave us the exclusive license to
show these fourteen (14) films, and we
agreed to pay Viva the amount of
P16,050,000.00 as well as grant Viva
commercial slots worth P19,950,000.00.
We had already earmarked this P16,
050,000.00.
which gives a total consideration of P36 million
(P19,950,000.00 plus P16,050,000.00. equals
P36,000,000.00).
On cross-examination Mr. Lopez testified:
Q. What was written in this napkin?
A. The total price, the breakdown the
known Viva movies, the 7 blockbuster
movies and the other 7 Viva movies
because the price was broken down
accordingly. The none [sic] Viva and the
seven other Viva movies and the sharing
between the cash portion and the
concerned spot portion in the total
amount of P35 million pesos.
Now, which is which? P36 million or P35 million? This
weakens ABS-CBN's claim.
FOURTH. Mrs. Concio, testifying for ABS-CBN stated
that she transmitted Exhibit "C" to Mr. Del Rosario
32
with a handwritten note, describing said Exhibit "C" as
a "draft." (Exh. "5" - Viva; tsn pp. 23-24 June 08,
1992). The said draft has a well defined meaning.
Since Exhibit "C" is only a draft, or a tentative,
provisional or preparatory writing prepared for
discussion, the terms and conditions thereof could not
have been previously agreed upon by ABS-CBN and
Viva Exhibit "C'' could not therefore legally bind Viva,
not having agreed thereto. In fact, Ms. Concio admitted
that the terms and conditions embodied in Exhibit "C"
were prepared by ABS-CBN's lawyers and there was no
discussion on said terms and conditions. . . .
As the parties had not yet discussed the proposed
terms and conditions in Exhibit "C," and there was no
evidence whatsoever that Viva agreed to the terms and
conditions thereof, said document cannot be a binding
contract. The fact that Viva refused to sign Exhibit "C"
reveals only two [sic] well that it did not agree on its
terms and conditions, and this court has no authority
to compel Viva to agree thereto.
FIFTH. Mr. Lopez understand [sic] that what he and
Mr. Del Rosario agreed upon at the Tamarind Grill was
only provisional, in the sense that it was subject to
approval by the Board of Directors of Viva. He testified:
Q. Now, Mr. Witness, and after that
Tamarind meeting ... the second meeting
wherein you claimed that you have the
meeting of the minds between you and
Mr. Vic del Rosario, what happened?

A. Vic Del Rosario was supposed to call
us up and tell us specifically the result of
the discussion with the Board of
Directors.
Q. And you are referring to the so-called
agreement which you wrote in [sic] a piece
of paper?
A. Yes, sir.
Q. So, he was going to forward that to the
board of Directors for approval?
A. Yes, sir. (Tsn, pp. 42-43, June 8, 1992)
Q. Did Mr. Del Rosario tell you that he
will submit it to his Board for approval?
A. Yes, sir. (Tsn, p. 69, June 8, 1992).
The above testimony of Mr. Lopez shows beyond doubt
that he knew Mr. Del Rosario had no authority to bind
Viva to a contract with ABS-CBN until and unless its
Board of Directors approved it. The complaint, in fact,
alleges that Mr. Del Rosario "is the Executive Producer
of defendant Viva" which "is a corporation." (par. 2,
complaint). As a mere agent of Viva, Del Rosario could
not bind Viva unless what he did is ratified by its
Board of Directors. (Vicente vs. Geraldez, 52 SCRA
210; Arnold vs. Willetsand Paterson, 44 Phil. 634). As a
mere agent, recognized as such by plaintiff, Del Rosario
33
could not be held liable jointly and severally with Viva
and his inclusion as party defendant has no legal
basis. (Salonga vs. Warner Barner [sic] , COLTA , 88
Phil. 125; Salmon vs. Tan, 36 Phil. 556).
The testimony of Mr. Lopez and the allegations in the
complaint are clear admissions that what was
supposed to have been agreed upon at the Tamarind
Grill between Mr. Lopez and Del Rosario was not a
binding agreement. It is as it should be because
corporate power to enter into a contract is lodged in
the Board of Directors. (Sec. 23, Corporation Code).
Without such board approval by the Viva board,
whatever agreement Lopez and Del Rosario arrived at
could not ripen into a valid contract binding upon Viva
(Yao Ka Sin Trading vs. Court of Appeals, 209 SCRA
763). The evidence adduced shows that the Board of
Directors of Viva rejected Exhibit "C" and insisted that
the film package for 140 films be maintained (Exh. "7-
1" - Viva ). 49
The contention that ABS-CBN had yet to fully exercise its right of
first refusal over twenty-four films under the 1990 Film Exhibition
Agreement and that the meeting between Lopez and Del Rosario was
a continuation of said previous contract is untenable. As observed
by the trial court, ABS-CBN right of first refusal had already been
exercised when Ms. Concio wrote to VIVA ticking off ten films, Thus:
[T]he subsequent negotiation with ABS-CBN two (2)
months after this letter was sent, was for an entirely
different package. Ms. Concio herself admitted on
cross-examination to having used or exercised the right
of first refusal. She stated that the list was not

acceptable and was indeed not accepted by ABS-CBN,
(TSN, June 8, 1992, pp. 8-10). Even Mr. Lopez himself
admitted that the right of the first refusal may have
been already exercised by Ms. Concio (as she had).
(TSN, June 8, 1992, pp. 71-75). Del Rosario himself
knew and understand [sic] that ABS-CBN has lost its
rights of the first refusal when his list of 36 titles were
rejected (Tsn, June 9, 1992, pp. 10-11) 50
II
However, we find for ABS-CBN on the issue of damages. We shall
first take up actual damages. Chapter 2, Title XVIII, Book IV of the
Civil Code is the specific law on actual or compensatory damages.
Except as provided by law or by stipulation, one is entitled to
compensation for actual damages only for such pecuniary loss
suffered by him as he has duly proved. 51 The indemnification shall
comprehend not only the value of the loss suffered, but also that of
the profits that the obligee failed to obtain. 52 In contracts and quasi-
contracts the damages which may be awarded are dependent on
whether the obligor acted with good faith or otherwise, It case of
good faith, the damages recoverable are those which are the natural
and probable consequences of the breach of the obligation and
which the parties have foreseen or could have reasonably foreseen at
the time of the constitution of the obligation. If the obligor acted with
fraud, bad faith, malice, or wanton attitude, he shall be responsible
for all damages which may be reasonably attributed to the non-
performance of the obligation. 53 In crimes and quasi-delicts, the
defendant shall be liable for all damages which are the natural and
probable consequences of the act or omission complained of,
whether or not such damages has been foreseen or could have
reasonably been foreseen by the defendant.54
34
Actual damages may likewise be recovered for loss or impairment of
earning capacity in cases of temporary or permanent personal
injury, or for injury to the plaintiff's business standing or
commercial credit.55
The claim of RBS for actual damages did not arise from contract,
quasi-contract, delict, or quasi-delict. It arose from the fact of filing
of the complaint despite ABS-CBN's alleged knowledge of lack of
cause of action. Thus paragraph 12 of RBS's Answer with
Counterclaim and Cross-claim under the heading COUNTERCLAIM
specifically alleges:
12. ABS-CBN filed the complaint knowing fully well
that it has no cause of action RBS. As a result thereof,
RBS suffered actual damages in the amount of
P6,621,195.32. 56
Needless to state the award of actual damages cannot be
comprehended under the above law on actual damages. RBS could
only probably take refuge under Articles 19, 20, and 21 of the Civil
Code, which read as follows:
Art. 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good
faith.
Art. 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify
the latter for tile same.

Art. 21. Any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter
for the damage.
It may further be observed that in cases where a writ of preliminary
injunction is issued, the damages which the defendant may suffer
by reason of the writ are recoverable from the injunctive bond. 57 In
this case, ABS-CBN had not yet filed the required bond; as a matter
of fact, it asked for reduction of the bond and even went to the Court
of Appeals to challenge the order on the matter, Clearly then, it was
not necessary for RBS to file a counterbond. Hence, ABS-CBN
cannot be held responsible for the premium RBS paid for the
counterbond.
Neither could ABS-CBN be liable for the print advertisements for
"Maging Sino Ka Man" for lack of sufficient legal basis. The RTC
issued a temporary restraining order and later, a writ of preliminary
injunction on the basis of its determination that there existed
sufficient ground for the issuance thereof. Notably, the RTC did not
dissolve the injunction on the ground of lack of legal and factual
basis, but because of the plea of RBS that it be allowed to put up a
counterbond.
As regards attorney's fees, the law is clear that in the absence of
stipulation, attorney's fees may be recovered as actual or
compensatory damages under any of the circumstances provided for
in Article 2208 of the Civil Code. 58
The general rule is that attorney's fees cannot be recovered as part
of damages because of the policy that no premium should be placed
on the right to litigate.59 They are not to be awarded every time a
party wins a suit. The power of the court to award attorney's fees
35
under Article 2208 demands factual, legal, and equitable
justification.60Even when claimant is compelled to litigate with third
persons or to incur expenses to protect his rights, still attorney's
fees may not be awarded where no sufficient showing of bad faith
could be reflected in a party's persistence in a case other than
erroneous conviction of the righteousness of his cause. 61
As to moral damages the law is Section 1, Chapter 3, Title XVIII,
Book IV of the Civil Code. Article 2217 thereof defines what are
included in moral damages, while Article 2219 enumerates the cases
where they may be recovered, Article 2220 provides that moral
damages may be recovered in breaches of contract where the
defendant acted fraudulently or in bad faith. RBS's claim for moral
damages could possibly fall only under item (10) of Article 2219,
thereof which reads:
(10) Acts and actions referred to in Articles 21, 26, 27,
28, 29, 30, 32, 34, and 35.
Moral damages are in the category of an award designed to
compensate the claimant for actual injury suffered. and not to
impose a penalty on the wrongdoer.62 The award is not meant to
enrich the complainant at the expense of the defendant, but to
enable the injured party to obtain means, diversion, or amusements
that will serve to obviate then moral suffering he has undergone. It
is aimed at the restoration, within the limits of the possible, of the
spiritual status quo ante, and should be proportionate to the
suffering inflicted.63 Trial courts must then guard against the award
of exorbitant damages; they should exercise balanced restrained and
measured objectivity to avoid suspicion that it was due to passion,
prejudice, or corruption on the part of the trial court. 64

The award of moral damages cannot be granted in favor of a
corporation because, being an artificial person and having existence
only in legal contemplation, it has no feelings, no emotions, no
senses, It cannot, therefore, experience physical suffering and
mental anguish, which call be experienced only by one having a
nervous system. 65 The statement in People
v. Manero 66 and Mambulao Lumber Co. v. PNB 67 that a corporation
may recover moral damages if it "has a good reputation that is
debased, resulting in social humiliation" is an obiter dictum. On this
score alone the award for damages must be set aside, since RBS is a
corporation.
The basic law on exemplary damages is Section 5, Chapter 3, Title
XVIII, Book IV of the Civil Code. These are imposed by way of
example or correction for the public good, in addition to moral,
temperate, liquidated or compensatory damages. 68 They are
recoverable in criminal cases as part of the civil liability when the
crime was committed with one or more aggravating
circumstances; 69 in quasi-contracts, if the defendant acted with
gross negligence; 70 and in contracts and quasi-contracts, if the
defendant acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner.71
It may be reiterated that the claim of RBS against ABS-CBN is not
based on contract, quasi-contract, delict, or quasi-delict, Hence, the
claims for moral and exemplary damages can only be based on
Articles 19, 20, and 21 of the Civil Code.
The elements of abuse of right under Article 19 are the following: (1)
the existence of a legal right or duty, (2) which is exercised in bad
faith, and (3) for the sole intent of prejudicing or injuring another.
Article 20 speaks of the general sanction for all other provisions of
law which do not especially provide for their own sanction; while
36
Article 21 deals with acts contra bonus mores, and has the following
elements; (1) there is an act which is legal, (2) but which is contrary
to morals, good custom, public order, or public policy, and (3) and it
is done with intent to injure. 72
Verily then, malice or bad faith is at the core of Articles 19, 20, and
21. Malice or bad faith implies a conscious and intentional design to
do a wrongful act for a dishonest purpose or moral obliquity. 73 Such
must be substantiated by evidence. 74
There is no adequate proof that ABS-CBN was inspired by malice or
bad faith. It was honestly convinced of the merits of its cause after it
had undergone serious negotiations culminating in its formal
submission of a draft contract. Settled is the rule that the adverse
result of an action does not per se make the action wrongful and
subject the actor to damages, for the law could not have meant to
impose a penalty on the right to litigate. If damages result from a
person's exercise of a right, it is damnum absque injuria.75
WHEREFORE, the instant petition is GRANTED. The challenged
decision of the Court of Appeals in CA-G.R. CV No, 44125 is hereby
REVERSED except as to unappealed award of attorney's fees in
favor of VIVA Productions, Inc.1âwphi1.nêt
No pronouncement as to costs.
SO ORDERED.

G.R. No. 143958 July 11, 2003
ALFRED FRITZ FRENZEL, petitioner,
vs.
EDERLINA P. CATITO, respondent.
CALLEJO, SR., J.:
Before us is a petition for review of the Decision 1 of the Court of
Appeals in CA-G.R. CV No. 53485 which affirmed the Decision2 of
the Regional Trial Court of Davao City, Branch 14, in Civil Case No.
17,817 dismissing the petitioner's complaint, and the resolution of
the Court of Appeals denying his motion for reconsideration of the
said decision.
The Antecedents3
As gleaned from the evidence of the petitioner, the case at bar
stemmed from the following factual backdrop:
Petitioner Alfred Fritz Frenzel is an Australian citizen of German
descent. He is an electrical engineer by profession, but worked as a
pilot with the New Guinea Airlines. He arrived in the Philippines in
1974, started engaging in business in the country two years
thereafter, and married Teresita Santos, a Filipino citizen. In 1981,
Alfred and Teresita separated from bed and board without obtaining
a divorce.
Sometime in February 1983, Alfred arrived in Sydney, Australia for a
vacation. He went to King's Cross, a night spot in Sydney, for a
massage where he met Ederlina Catito, a Filipina and a native of
Bajada, Davao City. Unknown to Alfred, she resided for a time in
37
Germany and was married to Klaus Muller, a German national. She
left Germany and tried her luck in Sydney, Australia, where she
found employment as a masseuse in the King's Cross nightclub. She
was fluent in German, and Alfred enjoyed talking with her. The two
saw each other again; this time Ederlina ended up staying in Alfred's
hotel for three days. Alfred gave Ederlina sums of money for her
services.4
Alfred was so enamored with Ederlina that he persuaded her to stop
working at King's Cross, return to the Philippines, and engage in a
wholesome business of her own. He also proposed that they meet in
Manila, to which she assented. Alfred gave her money for her plane
fare to the Philippines. Within two weeks of Ederlina's arrival in
Manila, Alfred joined her. Alfred reiterated his proposal for Ederlina
to stay in the Philippines and engage in business, even offering to
finance her business venture. Ederlina was delighted at the idea and
proposed to put up a beauty parlor. Alfred happily agreed.
Alfred told Ederlina that he was married but that he was eager to
divorce his wife in Australia. Alfred proposed marriage to Ederlina,
but she replied that they should wait a little bit longer.
Ederlina found a building at No. 444 M.H. del Pilar corner Arquiza
Street, Ermita, Manila, owned by one Atty. Jose Hidalgo who offered
to convey his rights over the property for P18,000.00. Alfred and
Ederlina accepted the offer. Ederlina put up a beauty parlor on the
property under the business name Edorial Beauty Salon, and had it
registered with the Department of Trade and Industry under her
name. Alfred paid Atty. Hidalgo P20,000.00 for his right over the
property and gave P300,000.00 to Ederlina for the purchase of
equipment and furniture for the parlor. As Ederlina was going to
Germany, she executed a special power of attorney on December 13,
19835 appointing her brother, Aser Catito, as her attorney-in-fact in

managing the beauty parlor business. She stated in the said deed
that she was married to Klaus Muller. Alfred went back to Papua
New Guinea to resume his work as a pilot.
When Alfred returned to the Philippines, he visited Ederlina in her
Manila residence and found it unsuitable for her. He decided to
purchase a house and lot owned by Victoria Binuya Steckel in San
Francisco del Monte, Quezon City, covered by Transfer Certificate of
Title No. 218429 for US$20,000.00. Since Alfred knew that as an
alien he was disqualified from owning lands in the Philippines, he
agreed that only Ederlina's name would appear in the deed of sale as
the buyer of the property, as well as in the title covering the same.
After all, he was planning to marry Ederlina and he believed that
after their marriage, the two of them would jointly own the property.
On January 23, 1984, a Contract to Sell was entered into between
Victoria Binuya Steckel as the vendor and Ederlina as the sole
vendee. Alfred signed therein as a witness.6 Victoria received from
Alfred, for and in behalf of Ederlina, the amount of US$10,000.00 as
partial payment, for which Victoria issued a receipt.7 When Victoria
executed the deed of absolute sale over the property on March 6,
1984,8 she received from Alfred, for and in behalf of Ederlina, the
amount of US$10,000.00 as final and full payment. Victoria likewise
issued a receipt for the said amount.9 After Victoria had vacated the
property, Ederlina moved into her new house. When she left for
Germany to visit Klaus, she had her father Narciso Catito and her
two sisters occupy the property.
Alfred decided to stay in the Philippines for good and live with
Ederlina. He returned to Australia and sold his fiber glass pleasure
boat to John Reid for $7,500.00 on May 4, 1984.10 He also sold his
television and video business in Papua New Guinea for K135,000.00
to Tekeraoi Pty. Ltd.11 He had his personal properties shipped to the
Philippines and stored at No. 14 Fernandez Street, San Francisco
38
del Monte, Quezon City. The proceeds of the sale were deposited in
Alfred's account with the Hong Kong Shanghai Banking Corporation
(HSBC), Kowloon Branch under Bank Account No. 018-2-
807016.12 When Alfred was in Papua New Guinea selling his other
properties, the bank sent telegraphic letters updating him of his
account.13 Several checks were credited to his HSBC bank account
from Papua New Guinea Banking Corporation, Westpac Bank of
Australia and New Zealand Banking Group Limited and Westpac
Bank-PNG-Limited. Alfred also had a peso savings account with
HSBC, Manila, under Savings Account No. 01-725-183-01.14
Once, when Alfred and Ederlina were in Hong Kong, they opened
another account with HSBC, Kowloon, this time in the name of
Ederlina, under Savings Account No. 018-0-807950.15 Alfred
transferred his deposits in Savings Account No. 018-2-807016 with
the said bank to this new account. Ederlina also opened a savings
account with the Bank of America Kowloon Main Office under
Account No. 30069016.16
On July 28, 1984, while Alfred was in Papua New Guinea, he
received a Letter dated December 7, 1983 from Klaus Muller who
was then residing in Berlin, Germany. Klaus informed Alfred that he
and Ederlina had been married on October 16, 1978 and had a
blissful married life until Alfred intruded therein. Klaus stated that
he knew of Alfred and Ederlina's amorous relationship, and
discovered the same sometime in November 1983 when he arrived in
Manila. He also begged Alfred to leave Ederlina alone and to return
her to him, saying that Alfred could not possibly build his future on
his (Klaus') misfortune.17
Alfred had occasion to talk to Sally MacCarron, a close friend of
Ederlina. He inquired if there was any truth to Klaus' statements
and Sally confirmed that Klaus was married to Ederlina. When

Alfred confronted Ederlina, she admitted that she and Klaus were,
indeed, married. But she assured Alfred that she would divorce
Klaus. Alfred was appeased. He agreed to continue the amorous
relationship and wait for the outcome of Ederlina's petition for
divorce. After all, he intended to marry her. He retained the services
of Rechtsanwaltin Banzhaf with offices in Berlin, as her counsel who
informed her of the progress of the proceedings.18 Alfred paid for the
services of the lawyer.
In the meantime, Alfred decided to purchase another house and lot,
owned by Rodolfo Morelos covered by TCT No. 92456 located in Peña
Street, Bajada, Davao City.19 Alfred again agreed to have the deed of
sale made out in the name of Ederlina. On September 7, 1984,
Rodolfo Morelos executed a deed of absolute sale over the said
property in favor of Ederlina as the sole vendee for the amount of
P80,000.00.20 Alfred paid US$12,500.00 for the property.
Alfred purchased another parcel of land from one Atty. Mardoecheo
Camporedondo, located in Moncado, Babak, Davao, covered by TCT
No. 35251. Alfred once more agreed for the name of Ederlina to
appear as the sole vendee in the deed of sale. On December 31,
1984, Atty. Camporedondo executed a deed of sale over the property
for P65,000.00 in favor of Ederlina as the sole vendee.21 Alfred,
through Ederlina, paid the lot at the cost of P33,682.00 and
US$7,000.00, respectively, for which the vendor signed
receipts.22 On August 14, 1985, TCT No. 47246 was issued to
Ederlina as the sole owner of the said property.23
Meanwhile, Ederlina deposited on December 27, 1985, the total
amount of US$250,000 with the HSBC Kowloon under Joint Deposit
Account No. 018-462341-145.24
39
The couple decided to put up a beach resort on a four-hectare land
in Camudmud, Babak, Davao, owned by spouses Enrique and
Rosela Serrano. Alfred purchased the property from the spouses for
P90,000.00, and the latter issued a receipt therefor.25 A draftsman
commissioned by the couple submitted a sketch of the beach
resort.26 Beach houses were forthwith constructed on a portion of
the property and were eventually rented out by Ederlina's father,
Narciso Catito. The rentals were collected by Narciso, while Ederlina
kept the proceeds of the sale of copra from the coconut trees in the
property. By this time, Alfred had already spent P200,000.00 for the
purchase, construction and upkeep of the property.
Ederlina often wrote letters to her family informing them of her life
with Alfred. In a Letter dated January 21, 1985, she wrote about
how Alfred had financed the purchases of some real properties, the
establishment of her beauty parlor business, and her petition to
divorce Klaus.27
Because Ederlina was preoccupied with her business in Manila, she
executed on July 8, 1985, two special powers of
attorney28 appointing Alfred as attorney-in-fact to receive in her
behalf the title and the deed of sale over the property sold by the
spouses Enrique Serrano.
In the meantime, Ederlina's petition for divorce was denied because
Klaus opposed the same. A second petition filed by her met the same
fate. Klaus wanted half of all the properties owned by Ederlina in the
Philippines before he would agree to a divorce. Worse, Klaus
threatened to file a bigamy case against Ederlina.29
Alfred proposed the creation of a partnership to Ederlina, or as an
alternative, the establishment of a corporation, with Ederlina owning
30% of the equity thereof. She initially agreed to put up a

corporation and contacted Atty. Armando Dominguez to prepare the
necessary documents. Ederlina changed her mind at the last minute
when she was advised to insist on claiming ownership over the
properties acquired by them during their coverture.
Alfred and Ederlina's relationship started deteriorating. Ederlina had
not been able to secure a divorce from Klaus. The latter could charge
her for bigamy and could even involve Alfred, who himself was still
married. To avoid complications, Alfred decided to live separately
from Ederlina and cut off all contacts with her. In one of her letters
to Alfred, Ederlina complained that he had ruined her life. She
admitted that the money used for the purchase of the properties in
Davao were his. She offered to convey the properties deeded to her
by Atty. Mardoecheo Camporedondo and Rodolfo Morelos, asking
Alfred to prepare her affidavit for the said purpose and send it to her
for her signature.30 The last straw for Alfred came on September 2,
1985, when someone smashed the front and rear windshields of
Alfred's car and damaged the windows. Alfred thereafter executed an
affidavit-complaint charging Ederlina and Sally MacCarron with
malicious mischief.31
On October 15, 1985, Alfred wrote to Ederlina's father, complaining
that Ederlina had taken all his life savings and because of this, he
was virtually penniless. He further accused the Catito family of
acquiring for themselves the properties he had purchased with his
own money. He demanded the return of all the amounts that
Ederlina and her family had "stolen" and turn over all the properties
acquired by him and Ederlina during their coverture.32
Shortly thereafter, Alfred filed a Complaint33 dated October 28,
1985, against Ederlina, with the Regional Trial Court of Quezon
City, for recovery of real and personal properties located in Quezon
City and Manila. In his complaint, Alfred alleged, inter alia, that
40
Ederlina, without his knowledge and consent, managed to transfer
funds from their joint account in HSBC Hong Kong, to her own
account with the same bank. Using the said funds, Ederlina was
able to purchase the properties subject of the complaints. He also
alleged that the beauty parlor in Ermita was established with his
own funds, and that the Quezon City property was likewise acquired
by him with his personal funds.34
Ederlina failed to file her answer and was declared in default. Alfred
adduced his evidence ex parte.
In the meantime, on November 7, 1985, Alfred also filed a
complaint35 against Ederlina with the Regional Trial Court, Davao
City, for specific performance, declaration of ownership of real and
personal properties, sum of money, and damages. He alleged, inter
alia, in his complaint:
4. That during the period of their common-law relationship,
plaintiff solely through his own efforts and resources acquired
in the Philippines real and personal properties valued more or
less at P724,000.00; The defendant's common-law wife or
live-in partner did not contribute anything financially to the
acquisition of the said real and personal properties. These
properties are as follows:
I. Real Properties
a. TCT No. T-92456 located at Bajada, Davao City,
consisting of 286 square meters, (with residential
house) registered in the name of the original title owner
Rodolfo M. Morelos but already fully paid by plaintiff.
Valued at P342,000.00;

b. TCT No. T-47246 (with residential house) located at
Babak, Samal, Davao, consisting of 600 square meters,
registered in the name of Ederlina Catito, with the
Register of Deeds of Tagum, Davao del Norte valued at
P144,000.00;
c. A parcel of agricultural land located at Camudmud,
Babak, Samal, Davao del Norte, consisting of 4.2936
hectares purchased from Enrique Serrano and Rosela
B. Serrano. Already paid in full by plaintiff. Valued at
P228,608.32;
II. Personal Properties:
a. Furniture valued at P10,000.00.
...
5. That defendant made no contribution at all to the
acquisition, of the above-mentioned properties as all the
monies (sic) used in acquiring said properties belonged solely
to plaintiff;36
Alfred prayed that after hearing, judgment be rendered in his favor:
WHEREFORE, in view of the foregoing premises, it is
respectfully prayed that judgment be rendered in favor of
plaintiff and against defendant:
a) Ordering the defendant to execute the corresponding deeds
of transfer and/or conveyances in favor of plaintiff over those
41
real and personal properties enumerated in Paragraph 4 of
this complaint;
b) Ordering the defendant to deliver to the plaintiff all the
above real and personal properties or their money value,
which are in defendant's name and custody because these
were acquired solely with plaintiffs money and resources
during the duration of the common-law relationship between
plaintiff and defendant, the description of which are as
follows:
(1) TCT No. T-92456 (with residential house) located at
Bajada, Davao City, consisting of 286 square meters,
registered in the name of the original title owner
Rodolfo Morelos but already fully paid by plaintiff.
Valued at P342,000.00;
(2) TCT No. T-47246 (with residential house) located at
Babak, Samal, Davao, consisting of 600 square meters,
registered in the name of Ederlina Catito, with the
Register of Deeds of Tagum, Davao del Norte, valued at
P144,000.00;
(3) A parcel of agricultural land located at Camudmud,
Babak, Samal, Davao del Norte, consisting of 4.2936
hectares purchased from Enrique Serrano and Rosela
B. Serrano. Already fully paid by plaintiff. Valued at
P228,608.32;
c) Declaring the plaintiff to be the sole and absolute owner of
the above-mentioned real and personal properties;

d) Awarding moral damages to plaintiff in an amount deemed
reasonable by the trial court;
e) To reimburse plaintiff the sum of P12,000.00 as attorney's
fees for having compelled the plaintiff to litigate;
f) To reimburse plaintiff the sum of P5,000.00 incurred as
litigation expenses also for having compelled the plaintiff to
litigate; and
g) To pay the costs of this suit;
Plaintiff prays other reliefs just and equitable in the
premises.37
In her answer, Ederlina denied all the material allegations in the
complaint, insisting that she acquired the said properties with her
personal funds, and as such, Alfred had no right to the same. She
alleged that the deeds of sale, the receipts, and certificates of titles of
the subject properties were all made out in her name.38 By way of
special and affirmative defense, she alleged that Alfred had no cause
of action against her. She interposed counterclaims against the
petitioner.39
In the meantime, the petitioner filed a Complaint dated August 25,
1987, against the HSBC in the Regional Trial Court of Davao
City40 for recovery of bank deposits and damages.41 He prayed that
after due proceedings, judgment be rendered in his favor, thus:
WHEREFORE, plaintiff respectfully prays that the Honorable
Court adjudge defendant bank, upon hearing the evidence
that the parties might present, to pay plaintiff:
42
1. ONE HUNDRED TWENTY SIX THOUSAND TWO HUNDRED
AND THIRTY U.S. DOLLARS AND NINETY EIGHT CENTS
(US$126,230.98) plus legal interests, either of Hong Kong or
of the Philippines, from 20 December 1984 up to the date of
execution or satisfaction of judgment, as actual damages or in
restoration of plaintiffs lost dollar savings;
2. The same amount in (1) above as moral damages;
3. Attorney's fees in the amount equivalent to TWENTY FIVE
PER CENT (25%) of (1) and (2) above;
4. Litigation expenses in the amount equivalent to TEN PER
CENT (10%) of the amount in (1) above; and
5. For such other reliefs as are just and equitable under the
circumstances.42
On April 28, 1986, the RTC of Quezon City rendered its decision in
Civil Case No. Q-46350, in favor of Alfred, the decretal portion of
which reads as follows:
WHEREFORE, premises considered, judgment is hereby
rendered ordering the defendant to perform the following:
(1) To execute a document waiving her claim to the house and
lot in No. 14 Fernandez St., San Francisco Del Monte, Quezon
City in favor of plaintiff or to return to the plaintiff the
acquisition cost of the same in the amount of $20,000.00, or
to sell the said property and turn over the proceeds thereof to
the plaintiff;

(2) To deliver to the plaintiff the rights of ownership and
management of the beauty parlor located at 444 Arquiza St.,
Ermita, Manila, including the equipment and fixtures therein;
(3) To account for the earnings of rental of the house and lot
in No. 14 Fernandez St., San Francisco Del Monte, Quezon
City, as well as the earnings in the beauty parlor at 444
Arquiza St., Ermita, Manila and turn over one-half of the net
earnings of both properties to the plaintiff;
(4) To surrender or return to the plaintiff the personal
properties of the latter left in the house at San Francisco Del
Monte, to wit:
"(1) Mamya automatic camera
(1) 12 inch "Sonny" T.V. set, colored with remote
control.
(1) Micro oven
(1) Electric fan (tall, adjustable stand)
(1) Office safe with (2) drawers and safe
(1) Electric Washing Machine
(1) Office desk and chair
(1) Double bed suits
(1) Mirror/dresser
43
(1) Heavy duty voice/working mechanic
(1) "Sony" Beta-Movie camera
(1) Suitcase with personal belongings
(1) Cardboard box with belongings
(1) Guitar Amplifier
(1) Hanger with men's suit (white)."
To return to the plaintiff, (1) Hi-Fi Stereo equipment left at
444 Arquiza Street, Ermita, Manila, as well as the Fronte
Suzuki car.
(4) To account for the monies (sic) deposited with the joint
account of the plaintiff and defendant (Account No. 018-0-
807950); and to restore to the plaintiff all the monies (sic)
spent by the defendant without proper authority;
(5) To pay the amount of P5,000.00 by way of attorney's fees,
and the costs of suit.
SO ORDERED.43
However, after due proceedings in the RTC of Davao City, in Civil
Case No. 17,817, the trial court rendered judgment on September
28, 1995 in favor of Ederlina, the dispositive portion of which reads:

WHEREFORE, the Court cannot give due course to the
complaint and hereby orders its dismissal. The counterclaims
of the defendant are likewise dismissed.
SO ORDERED.44
The trial court ruled that based on documentary evidence, the
purchaser of the three parcels of land subject of the complaint was
Ederlina. The court further stated that even if Alfred was the buyer
of the properties; he had no cause of action against Ederlina for the
recovery of the same because as an alien, he was disqualified from
acquiring and owning lands in the Philippines. The sale of the three
parcels of land to the petitioner was null and void ab initio. Applying
the pari delicto doctrine, the petitioner was precluded from
recovering the properties from the respondent.
Alfred appealed the decision to the Court of Appeals 45 in which the
petitioner posited the view that although he prayed in his complaint
in the court a quo that he be declared the owner of the three parcels
of land, he had no intention of owning the same permanently. His
principal intention therein was to be declared the transient owner
for the purpose of selling the properties at public auction, ultimately
enabling him to recover the money he had spent for the purchase
thereof.
On March 8, 2000, the CA rendered a decision affirming in toto the
decision of the RTC. The appellate court ruled that the petitioner
knowingly violated the Constitution; hence, was barred from
recovering the money used in the purchase of the three parcels of
land. It held that to allow the petitioner to recover the money used
for the purchase of the properties would embolden aliens to violate
the Constitution, and defeat, rather than enhance, the public
policy.46
44
Hence, the petition at bar.
The petitioner assails the decision of the court contending that:
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING
THE RULE OF IN PARI DELICTO IN THE INSTANT CASE
BECAUSE BY THE FACTS AS NARRATED IN THE DECISION
IT IS APPARENT THAT THE PARTIES ARE NOT EQUALLY
GUILTY BUT RATHER IT WAS THE RESPONDENT WHO
EMPLOYED FRAUD AS WHEN SHE DID NOT INFORM
PETITIONER THAT SHE WAS ALREADY MARRIED TO
ANOTHER GERMAN NATIONAL AND WITHOUT SUCH
FRAUDULENT DESIGN PETITIONER COULD NOT HAVE
PARTED WITH HIS MONEY FOR THE PURCHASE OF THE
PROPERTIES.47
and
THE HONORABLE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE INTENTION OF THE PETITIONER IS
NOT TO OWN REAL PROPERTIES IN THE PHILIPPINES BUT
TO SELL THEM AT PUBLIC AUCTION TO BE ABLE TO
RECOVER HIS MONEY USED IN PURCHASING THEM.48
Since the assignment of errors are intertwined with each other, the
Court shall resolve the same simultaneously.
The petitioner contends that he purchased the three parcels of land
subject of his complaint because of his desire to marry the
respondent, and not to violate the Philippine Constitution. He was,
however, deceived by the respondent when the latter failed to
disclose her previous marriage to Klaus Muller. It cannot, thus, be

said that he and the respondent are "equally guilty;" as such,
the pari delicto doctrine is not applicable to him. He acted in good
faith, on the advice of the respondent's uncle, Atty. Mardoecheo
Camporedondo. There is no evidence on record that he was aware of
the constitutional prohibition against aliens acquiring real property
in the Philippines when he purchased the real properties subject of
his complaint with his own funds. The transactions were not
illegal per se but merely prohibited, and under Article 1416 of the
New Civil Code, he is entitled to recover the money used for the
purchase of the properties. At any rate, the petitioner avers, he filed
his complaint in the court a quo merely for the purpose of having
him declared as the owner of the properties, to enable him to sell the
same at public auction. Applying by analogy Republic Act No.
13349 as amended by Rep. Act No. 4381 and Rep. Act No. 4882, the
proceeds of the sale would be remitted to him, by way of refund for
the money he used to purchase the said properties. To bar the
petitioner from recovering the subject properties, or at the very least,
the money used for the purchase thereof, is to allow the respondent
to enrich herself at the expense of the petitioner in violation of
Article 22 of the New Civil Code.
The petition is bereft of merit.
Section 14, Article XIV of the 1973 Constitution provides, as follows:
Save in cases of hereditary succession, no private land shall
be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold
lands in the public domain.50
Lands of the public domain, which include private lands, may be
transferred or conveyed only to individuals or entities qualified to
acquire or hold private lands or lands of the public domain. Aliens,
45
whether individuals or corporations, have been disqualified from
acquiring lands of the public domain. Hence, they have also been
disqualified from acquiring private lands.51
Even if, as claimed by the petitioner, the sales in question were
entered into by him as the real vendee, the said transactions are in
violation of the Constitution; hence, are null and void ab initio.52 A
contract that violates the Constitution and the law, is null and void
and vests no rights and creates no obligations. It produces no legal
effect at all.53 The petitioner, being a party to an illegal contract,
cannot come into a court of law and ask to have his illegal objective
carried out. One who loses his money or property by knowingly
engaging in a contract or transaction which involves his own moral
turpitude may not maintain an action for his losses. To him who
moves in deliberation and premeditation, the law is
unyielding.54 The law will not aid either party to an illegal contract
or agreement; it leaves the parties where it finds them.55 Under
Article 1412 of the New Civil Code, the petitioner cannot have the
subject properties deeded to him or allow him to recover the money
he had spent for the purchase thereof.56 Equity as a rule will follow
the law and will not permit that to be done indirectly which, because
of public policy, cannot be done directly.57 Where the wrong of one
party equals that of the other, the defendant is in the stronger
position . . . it signifies that in such a situation, neither a court of
equity nor a court of law will administer a remedy.58 The rule is
expressed. in the maxims: EX DOLO ORITUR ACTIO and IN PARI
DELICTO POTIOR EST CONDITIO DEFENDENTIS.59
The petitioner cannot feign ignorance of the constitutional
proscription, nor claim that he acted in good faith, let alone assert
that he is less guilty than the respondent. The petitioner is charged
with knowledge of the constitutional prohibition.60 As can be gleaned
from the decision of the trial court, the petitioner was fully aware
 46

that he was disqualified from acquiring and owning lands under Q. In whose name was the house placed?
Philippine law even before he purchased the properties in question;
and, to skirt the constitutional prohibition, the petitioner had the A. Ederlina Catito because I was informed being not a
deed of sale placed under the respondent's name as the sole vendee Filipino, I cannot own the property. (tsn, p. 11, August 27,
thereof: 1986).

Such being the case, the plaintiff is subject to the xxx xxx xxx
constitutional restrictions governing the acquisition of real
properties in the Philippines by aliens. COURT:

From the plaintiff's complaint before the Regional Trial Court, Q. So you understand that you are a foreigner that you
National Capital Judicial Region, Branch 84, Quezon City in cannot buy land in the Philippines?
Civil Case No. Q-46350 he alleged:
A. That is correct but as she would eventually be my
x x x "That on account that foreigners are not allowed wife that would be owned by us later on. (tsn, p. 5, September
by the Philippine laws to acquire real properties in 3, 1986)
their name as in the case of my vendor Miss Victoria
Vinuya (sic) although married to a foreigner, we agreed xxx xxx xxx
and I consented in having the title to subject property
placed in defendant's name alone although I paid for Q. What happened after that?
the whole price out of my own exclusive funds."
(paragraph IV, Exhibit "W.") A. She said you foreigner you are using Filipinos to buy
property.
and his testimony before this Court which is hereby quoted:
Q. And what did you answer?
ATTY. ABARQUEZ:
A: I said thank you very much for the property I bought
Q. In whose name the said house and lot placed, by the because I gave you a lot of money (tsn., p. 14, ibid).
way, where is his house and lot located?
It is evident that the plaintiff was fully aware that as a non-citizen of
A. In 14 Fernandez St., San Francisco, del Monte, the Philippines, he was disqualified from validly purchasing any
Manila. land within the country.61

The petitioner's claim that he acquired the subject properties
because of his desire to marry the respondent, believing that both of
them would thereafter jointly own the said properties, is belied by
his own evidence. It is merely an afterthought to salvage a lost
cause. The petitioner admitted on cross-examination that he was all
along legally married to Teresita Santos Frenzel, while he was having
an amorous relationship with the respondent:
ATTY. YAP:
Q When you were asked to identify yourself on direct
examination you claimed before this Honorable Court that
your status is that of being married, do you confirm that?
A Yes, sir.
Q To whom are you married?
A To a Filipina, since 1976.
Q Would you tell us who is that particular person you
are married since 1976?
A Teresita Santos Frenzel.
Q Where is she now?
A In Australia.
Q Is this not the person of Teresita Frenzel who became
an Australian citizen?
47
A I am not sure, since 1981 we were separated.
Q You were only separated, in fact, but not legally
separated?
A Thru my counsel in Australia I filed a separation case.
Q As of the present you are not legally divorce[d]?
A I am still legally married.62
The respondent was herself married to Klaus Muller, a German
citizen. Thus, the petitioner and the respondent could not lawfully
join in wedlock. The evidence on record shows that the petitioner in
fact knew of the respondent's marriage to another man, but
nonetheless purchased the subject properties under the name of the
respondent and paid the purchase prices therefor. Even if it is
assumed gratia arguendi that the respondent and the petitioner
were capacitated to marry, the petitioner is still disqualified to own
the properties in tandem with the respondent.63
The petitioner cannot find solace in Article 1416 of the New Civil
Code which reads:
Art. 1416. When the agreement is not illegal per se but is
merely prohibited, and the prohibition by the law is designed
for the protection of the plaintiff, he may, if public policy is
thereby enhanced, recover what he has paid or delivered.64
The provision applies only to those contracts which are merely
prohibited, in order to benefit private interests. It does not apply to
contracts void ab initio. The sales of three parcels of land in favor of

the petitioner who is a foreigner is illegal per se. The transactions
are void ab initio because they were entered into in violation of the
Constitution. Thus, to allow the petitioner to recover the properties
or the money used in the purchase of the parcels of land would be
subversive of public policy.
Neither may the petitioner find solace in Rep. Act No. 133, as
amended by Rep. Act No. 4882, which reads:
SEC. 1. Any provision of law to the contrary notwithstanding,
private real property may be mortgaged in favor of any
individual, corporation, or association, but the mortgagee or
his successor-in-interest, if disqualified to acquire or hold
lands of the public domain in the Philippines, shall not take
possession of the mortgaged property during the existence of
the mortgage and shall not take possession of mortgaged
property except after default and for the sole purpose of
foreclosure, receivership, enforcement or other proceedings
and in no case for a period of more than five years from
actual possession and shall not bid or take part in any sale of
such real property in case of foreclosure: Provided, That said
mortgagee or successor-in-interest may take possession of
said property after default in accordance with the prescribed
judicial procedures for foreclosure and receivership and in no
case exceeding five years from actual possession.65
From the evidence on record, the three parcels of land subject of the
complaint were not mortgaged to the petitioner by the owners
thereof but were sold to the respondent as the vendee, albeit with
the use of the petitioner's personal funds.
Futile, too, is petitioner's reliance on Article 22 of the New Civil Code
which reads:
48
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into
possession of something at the expense of the latter without
just or legal ground, shall return the same to him.66
The provision is expressed in the maxim: "MEMO CUM ALTERIUS
DETER DETREMENTO PROTEST" (No person should unjustly enrich
himself at the expense of another). An action for recovery of what
has been paid without just cause has been designated as an accion
in rem verso.67 This provision does not apply if, as in this case, the
action is proscribed by the Constitution or by the application of
the pari delicto doctrine. 68 It may be unfair and unjust to bar the
petitioner from filing an accion in rem verso over the subject
properties, or from recovering the money he paid for the said
properties, but, as Lord Mansfield stated in the early case of Holman
vs. Johnson:69 "The objection that a contract is immoral or illegal as
between the plaintiff and the defendant, sounds at all times very ill
in the mouth of the defendant. It is not for his sake, however, that
the objection is ever allowed; but it is founded in general principles
of policy, which the defendant has the advantage of, contrary to the
real justice, as between him and the plaintiff."
IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED. The
decision of the Court of Appeals is AFFIRMED in toto.
Costs against the petitioner.
SO ORDERED.

G.R. No. 188767 July 24, 2013
SPOUSES ARGOVAN AND FLORIDA GADITANO, Petitioners,
vs.
SAN MIGUEL CORPORATION, Respondent.
DECISION
PEREZ, J.:
For review on certiorari are the Decision dated 11 March 2008 and
Resolution dated 16 July 2009 of the Court of Appeals in CA-G.R. SP No.
88431 which reversed the Resolutions issued by the Secretary of Justice,
suspending the preliminary investigation of I.S. No. 01-4205 on the ground
of prejudicial question.
Petitioner Spouses Argovan Gaditano (Argovan) and Florida Gadiano
(Florida), who were engaged in the business of buying and selling beer and
softdrinks products, purchased beer products from San Miguel Corporation
(SMC) in the amount of ₱285, 504.00 on 7 April 2000. Petitioners paid
through a check signed by Florida and drawn against Argovan’s Asia Trust
Bank Current Account. When said check was presented for payment on 13
April 2000, the check was dishonored for having been drawn against
insufficient funds. Despite three (3) written demands, 1petitioner failed to
make good of the check. This prompted SMC to file a criminal case for
violation of Batas Pambansa Blg. 22 and estafa against petitioners,
docketed as I.S. No. 01-4205 with the Office of the Prosecutor in Quezon
City on 14 March 2001.
In their Counter-Affidavit, petitioners maintained that their checking
account was funded under an automatic transfer arrangement, whereby
funds from their joint savings account with AsiaTrust Bank were
automatically transferred to their checking account with said bank
whenever a check they issued was presented for payment. Petitioners
narrated that sometime in 1999, Fatima Padua (Fatima) borrowed
49
₱30,000.00 from Florida. On 28 February 2000, Fatima delivered Allied
Bank Check No. 82813 dated 18 February 2000 payable to Florida in the
amount of ₱378,000.00. Said check was crossed and issued by AOWA
Electronics. Florida pointed out that the amount of the check was in excess
of the loan but she was assured by Fatima that the check was in order and
the proceeds would be used for the payroll of AOWA Electronics. Thus,
Florida deposited said check to her joint AsiaTrust Savings Account which
she maintained with her husband, Argovan. The check was cleared on 6
March 2000 and petitioners’ joint savings account was subsequently
credited with the sum of ₱378,000.00. Florida initially paid ₱83,000.00 to
Fatima. She then withdrew ₱295,000.00 from her joint savings account
and turned over the amount to Fatima. Fatima in turn paid her loan to
Florida.
Petitioners claimed that on 7 April 2000, the date when they issued the
check to SMC, their joint savings account had a balance of
₱330,353.17.2 As of 13 April 2000, petitioners’ balance even amounted to
₱412,513.17.3
On 13 April 2000, Gregorio Guevarra (Guevarra), the Bank Manager of
AsiaTrust Bank, advised Florida that the Allied Bank Check No. 82813 for
₱378,000.00, the same check handed to her by Fatima, was not cleared
due to a material alteration in the name of the payee. Guevarra explained
further that the check was allegedly drawn payable to LG Collins
Electronics, and not to her, contrary to Fatima’s representation. AsiaTrust
Bank then garnished the ₱378,000.00 from the joint savings account of
petitioners without any court order. Consequently, the check issued by
petitioners to SMC was dishonored having been drawn against insufficient
funds.
On 23 October 2000, petitioners filed an action for specific performance
and damages against AsiaTrust Bank, Guevarra, SMC and Fatima,
docketed as Civil Case No. Q-00-42386. Petitioners alleged that AsiaTrust
Bank and Guevarra unlawfully garnished and debited their bank accounts;
that their obligation to SMC had been extinguished by payment; and that
Fatima issued a forged check.

Petitioners assert that the issues they have raised in the civil action
constitute a bar to the prosecution of the criminal case for violation of
Batas Pambansa Blg. 22 and estafa.
On 29 January 2002, the Office of the Prosecutor recommended that the
criminal proceedings be suspended pending resolution of Civil Case No. Q-
00-42386. SMC thereafter filed a motion for reconsideration before the
Office of the Prosecutor but it was denied for lack of merit on 19 September
2002.
SMC filed with the Department of Justice (DOJ) a petition for review
challenging the Resolutions of the Office of the Prosecutor. In a Resolution
dated 3 June 2004, the DOJ dismissed the petition. SMC filed a motion for
reconsideration, which the DOJ Secretary denied in a Resolution dated 15
December 2004.
Undaunted, SMC went up to the Court of Appeals by filling a petition for
certiorari, docketed as CA-G.R. SP No. 88431. On 11 March 2008, the
Court of Appeals rendered a Decision granting the petition as follows:
IN THE LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Resolutions of the Department of Justice dated June 3, 2004 and
December 15, 2004 are SET ASIDE. In view thereof, let the suspension of
the preliminary investigation of the case docketed as I.S. No. 01-4205 with
the Office of the Prosecutor of Quezon City be LIFTED. Accordingly, the
continuation of the preliminary investigation until completed is ordered
and if probable cause exists, let the corresponding information against the
respondents be filed.4
The Court of Appeals drew a distinction between the civil case which is an
action for specific performance and damages involving petitioners’ joint
savings account, and the criminal case which is an action for
estafa/violation of Batas Pambansa Blg. 22 involving Argovan’s current
account. The Court of Appeals belied the claim of petitioners about an
50
automatic fund transfer arrangement from petitioners’ joint savings
account to Argovan’s current account.
By petition for review, petitioners assail the ruling of the Court of Appeals
on the following grounds:
I. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
AND EXCEEDED THE BOUNDS OF ITS JURISDICTION IN GIVING
DUE COURSE TO RESPONDENT’S PETITION FOR CERTIORARI.
II. THE COURT OF APPEALS ERRED IN REVERSING THE
RESOLUTIONS DATED JUNE 3, 2004 AND DECEMBER 15, 2004
OF THE DOJ, THERE BEING NO GRAVE ABUSE OF DISCRETION.
III. THE COURT OF APPEALS ERRED IN RULING THAT THERE
WAS NO PREJUDICIAL QUESTION BELOW BECAUSE TWO
DIFFERENT BANK ACCOUNTS ARE INVOLVED IN THE CIVIL AND
CRIMINAL CASES.
IV. THE APPELLATE COURT ERRED IN REQUIRING PETITIONERS
TO PRESENT EVIDENCE TO PROVE THE PREJUDICIAL QUESTION
DURING THE PRELIMINARY INVESTIGATION.5
The issues raised by petitioners are divided into the procedural issue of
whether certiorari is the correct mode of appeal to the Court of Appeals and
the substantive issue of whether a prejudicial question exists to warrant
the suspension of the criminal proceedings.
On the procedural issue, petitioners contend that SMC’s resort to certiorari
under Rule 65 was an improper remedy because the DOJ’s act of
sustaining the investigating prosecutor’s resolution to suspend the criminal
proceedings due to a valid prejudicial question was an error in judgment
and not of jurisdiction. Petitioners further assert that nevertheless, an error
of judgment is not correctible by certiorari when SMC had a plain, speedy

and adequate remedy, which was to file an appeal to the Office of the
President.
The procedure taken up by petitioner was correct.
The Court of Appeals is clothed with jurisdiction to review the resolution
issued by the Secretary of the DOJ through a petition for certiorari under
Rule 65 of the Rules of Court albeit solely on the ground that the Secretary
of Justice committed grave abuse of his discretion amounting to excess or
lack of jurisdiction.6
In Alcaraz v. Gonzalez,7 we stressed that the resolution of the Investigating
Prosecutor is subject to appeal to the Justice Secretary who exercises the
power of control and supervision over said Investigating Prosecutor; and
who may affirm, nullify, reverse, or modify the ruling of such prosecutor.
Thus, while the Court of Appeals may review the resolution of the Justice
Secretary, it may do so only in a petition for certiorari under Rule 65 of the
Rules of Court, solely on the ground that the Secretary of Justice
committed grave abuse of his discretion amounting to excess of lack of
jurisdiction.8
Also, in Tan v. Matsuura,9 we held that while the findings of prosecutors
are reviewable by the DOJ, this does not preclude courts from intervening
and exercising our own powers of review with respect to the DOJ’s findings.
In the exceptional case in which grave abuse of discretion is committed, as
when a clear sufficiency or insufficiency of evidence to support a finding of
probable cause is ignored, the Court of Appeals may take cognizance of the
case via a petition under Rule 65 of the Rules of Court. 10
We agree with the Court of Appeals that the DOJ abused its discretion
when it affirmed the prosecutor’s suspension of the criminal investigation
due to the existence of an alleged prejudicial question.
We expound.
51
Petitioners insist that the Court of Appeals erroneously ruled against the
existence of a prejudicial question by separately treating their joint savings
account and Argovan’s current account, and concluding therefrom that the
civil and criminal cases could proceed independently of each other.
It is argued that the appellate court overlooked the fact that petitioners had
an automatic transfer arrangement with AsiaTrust Bank, such that funds
from the savings account were automatically transferred to their checking
account whenever a check they issued was presented for payment.
Petitioners maintain that since the checking account was funded by the
monies deposited in the savings account, what mattered was the
sufficiency of the funds in the savings account. Hence, petitioners’ separate
action against AsiaTrust Bank for unlawfully garnishing their savings
account, which eventually resulted in the dishonor of their check to SMC,
poses a prejudicial question in the instant criminal proceedings.
Moreover, petitioners argue that they were not required to fully and
exhaustively present evidence to prove their claims. The presentation of
their passbook, which confirmed numerous withdrawals made on the
savings account and indicated as "FT" or "Fund Transfer," proved the
existence of fund transfer from their savings account to the checking
account.
A prejudicial question generally comes into play in a situation where a civil
action and a criminal action are both pending and there exists in the
former an issue which must be preemptively resolved before the latter may
proceed, because howsoever the issue raised in the civil action is resolved
would be determinative juris et de jure of the guilt or innocence of the
accused in the criminal case. The rationale behind the principle of
prejudicial question is to avoid two conflicting decisions.11
Section 7, Rule 111 of the 2000 Rules of Criminal Procedure states the two
elements necessary for a civil case to be considered a prejudicial question,
to wit:

Section 7. Elements of prejudicial question. – The elements of a prejudicial
question are: (a) the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the subsequent criminal
action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed. (Emphasis supplied).
If both civil and criminal cases have similar issues, or the issue in one is
intimately related to the issues raised in the other, then a prejudicial
question would likely exist, provided that the other element or
characteristic is satisfied. It must appear not only that the civil case
involves the same facts upon which the criminal prosecution would be
based, but also that the resolution of the issues raised in the civil action
would be necessarily determinative of the guilt or innocence of the accused.
If the resolution of the issue in the civil action will not determine the
criminal responsibility of the accused in the criminal action based on the
same facts, or if there is no necessity that the civil case be determined first
before taking up the criminal case, the civil case does not involve a
prejudicial question. Neither is there a prejudicial question if the civil and
the criminal action can, according to law, proceed independently of each
other.12
The issue in the criminal case is whether the petitioner is guilty of estafa
and violation of Batas Pambansa Blg. 22, while in the civil case, it is
whether AsiaTrust Bank had lawfully garnished the ₱378,000.00 from
petitioners’ savings account.
The subject of the civil case is the garnishment by AsiaTrust Bank of
petitioner’s savings account.1âwphi1 Based on petitioners’ account, they
deposited the check given to them by Fatima in their savings account. The
amount of said check was initially credited to petitioners’ savings account
but the Fatima check was later on dishonored because there was an alleged
alteration in the name of the payee. As a result, the bank debited the
amount of the check from petitioners’ savings account. Now, petitioners
seek to persuade us that had it not been for the unlawful garnishment, the
funds in their savings account would have been sufficient to cover a check
they issued in favor of SMC.
52
The material facts surrounding the civil case bear no relation to the
criminal investigation being conducted by the prosecutor. The prejudicial
question in the civil case involves the dishonor of another check. SMC is
not privy to the nature of the alleged materially altered check leading to its
dishonor and the eventual garnishment of petitioners’ savings account. The
source of the funds of petitioners’ savings account is no longer SMC’s
concern. The matter is between petitioners and Asia Trust Bank. On the
other hand, the issue in the preliminary investigation is whether petitioners
issued a bad check to SMC for the payment of beer products.
The gravamen of the offense punished by Batas Pambansa Blg. 22 is the
act of making and issuing a worthless check or a check that is dishonored
upon its presentation for payment.13 Batas Pambansa Blg. 22 punishes the
mere act of issuing a worthless check. The law did not look either at the
actual ownership of the check or of the account against which it was made,
drawn, or issued, or at the intention of the drawee, maker or issuer. 14 The
thrust of the law is to prohibit the making of worthless checks and putting
them into circulation.15
Even if the trial court in the civil case declares Asia Trust Bank liable for
the unlawful garnishment of petitioners’ savings account, petitioners
cannot be automatically adjudged free from criminal liability for violation of
Batas Pambansa Blg. 22, because the mere issuance of worthless checks
with knowledge of the insufficiency of funds to support the checks is in
itself the offense.16
Furthermore, three notices of dishonor were sent to petitioners, who then,
should have immediately funded the check. When they did not, their
liabilities under the bouncing checks law attached. Such liability cannot be
affected by the alleged prejudicial question because their failure to fund the
check upon notice of dishonour is itself the offense.
In the crime of estafa under Article 315, paragraph 2(d) of the Revised
Penal Code, deceit and damage are additional and essential elements of the
offense. It is the fraud or deceit employed by the accused in issuing a
worthless check that is penalized.17 A prima facie presumption of deceit
 53

arises when a check is dishonored for lack or insufficiency of

funds.18 Records show that a notice of dishonor as well as demands for
payment, were sent to petitioners. The presumption of deceit applies, and
petitioners must overcome this presumption through substantial evidence.
These issues may only be threshed out in a criminal investigation which
must proceed independently of the civil case.

Based on the foregoing, we rule that the resolution or the issue raised in
the civil action is not determinative or the guilt or innocence of the accused
in the criminal investigation against them. There is no necessity that the
civil case be determined firrst before taking up the criminal complaints.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court

of Appeals dated 11 March 2008 and its Resolution dated 16 July 2000, in
CA-G.R. SP No. 88431, are hereby AFFIRMED.

SO ORDERED.

[A.C. NO. 5499 : August 16, 2005]
WILSON PO CHAM, Complainant, v. ATTY. EDILBERTO D.
PIZARRO, Respondent.
DECISION
CARPIO MORALES, J.:
Before this Court is an administrative complaint for disbarment filed
by Wilson Po Cham (complainant) against Atty. Edilberto D. Pizarro
(respondent) for commission of falsehood and misrepresentations in
violation of a lawyer's oath.
Complainant gives the following account of the facts that spawned
the filing of the present administrative complaint.
Sometime in July 1995, Emelita Cañete (Cañete), Elenita Alipio
(Alipio), and now deceased Mario Navarro (Navarro) who was then
the Municipal Assessor of Morong, Bataan, offered for sale to him a
parcel of land with an area of approximately forty (40) hectares,
identified as Lot 1683 of Cad. Case No. 262, situated at Sitio Gatao,
Nagbalayong, Morong, Bataan (the property).
He having expressed interest in the offer, Cañete and Navarro
arranged a meeting between him and respondent at the latter's
residence in Balanga, Bataan1 where respondent categorically
represented to him that the property being offered for sale was
alienable and disposable.2 Respondent in fact presented to him 1)
Real Property Tax Order of Payment3 dated July 10, 1995 covering
the property signed by Edna P. Pizarro as Municipal Treasurer and
Navarro as Municipal Assessor; 2) a Deed of Absolute Sale 4 dated
54
July 25, 1995 purportedly executed by the alleged previous actual
occupant of the property, one Jose R. Monzon (Monzon), transferring
all his rights, interest and possession thereover in favor of Virgilio
Banzon (Banzon), Rolando B. Zabala (Zabala) and respondent for an
agreed consideration of P500,000.00; and 3) Special Power of
Attorney5 dated July 25, 1995 executed by Banzon and Zabala
authorizing him (respondent) to:
1. x x x offer to sell [their] rights over a certain parcel of land, which
is more particularly described as follows:
AREA: 40 has. more or less
situated at Pook Batangas, Nagbalayong, Morong, Bataan covered by
Tax Declaration No. 6066 PIN #108-08-044-05-126
2. x x x negotiate and enter into a contract for the
consumation (sic) of sale of the subject property; and to sign the
same.
3. x x x receive proceeds thereof with obligation to distribute the
corresponding share of each co-owner;
x x x6 (Underscoring supplied)ςrαlαωlιbrαrÿ
On July 25, 1995, he as buyer and respondent as seller executed an
Option to Buy,7 the pertinent portions of which provide:
WHEREAS, the SELLER is the owner and Attorney-In-Fact of his co-
owners of rights with planted trees (improvements) containing an
area of FORTY THREE (43) hectares, situated in Pook Batangas,

Nagbalayong, Morong, Bataan; (Portion of Lot 1683, Cad. 262,
Morong Cadastre), covered by Tax Declaration 6066.
WHEREAS, the BUYER is interested to buy the same for a total price
of THREE MILLION AND SEVEN HUNDRED THOUSAND PESOS
(P3,700,000.00) payable in two (2) gives (sic), as follows:
a) Earnest money of P10,000.00 upon signing of this contract and
the balance of full payment within three (3) weeks from date hereof
which offer the SELLER accepts;
NOW THEREFORE, for and in consideration of the foregoing
premises and the terms and conditions hereunder specified the
parties have agreed on the following:
1) That the Buyer shall give an option money and earnest (sic)
of P10,000.00 upon signing of this contract, which shall form part of
the contract price if and when the buyer comply (sic) with his
obligation to pay in full within three (3) weeks from date hereof,
otherwise should the BUYER fails (sic) to comply with his obligation
to pay in full on the scheduled period the P10,000.00 earnest money
shall be forfeited in favor of the SELLER and the Option to Buy is
automatically cancelled.
2) That the SELLER upon full payment of the price shall execute a
final Deed of Sale and shall surrender all documents, plans and
paper relative to the properties subject of sale;
3) That the SELLER shall warrants (sic) their rights and claims over
the above stated properties including the trees planted on it as
against the rights of third party except that of the
55
government.8 (Emphasis and underscoring
supplied)ςrαlαωlιbrαrÿ
In accordance with the terms of the Option to Buy, he paid
respondent the amount of P10,000.00 for which respondent issued
the corresponding Receipt9 reading:
Received the sum of TEN THOUSAND PESOS (P10,000.00) from MR.
WILSON CHAM, representing earnest/option money for Lot 1683 of
Cad. Case No. 262 situated at Boundaries:
NORTH : Right of Catalino Agujo
SOUTH : National Road-Bagac-Morong
WEST : Right of Nicasio Canta
EAST : Sapang Batang Panao
including the trees and improvement situated thereon.
Full payment shall be paid within three (3) weeks from date
hereof.10 (Underscoring supplied)ςrαlαωlιbrαrÿ
On August 21, 1995, respondent executed a Deed of Absolute
Sale11 over the property in his favor, the pertinent portions of which
read as follows:
For and in consideration of the sum of THREE MILLION THREE
HUNDRED SEVENTY TWO THOUSAND FIVE HUNDRED THIRTY
THREE (P3,372,533.00), Philippine Currency, the receipt whereof is
hereby acknowledged from the BUYER to the entire satisfaction of

the SELLERS, the said SELLERS do by these presents SELL,
TRANSFER and CONVEY, in manner absolute and irrevocable, in
favor of the said BUYER, his heirs and assigns, all their rights,
interest and participation over that certain real estate destined for,
and in actual use as fruit land, situated at Pook Batangas,
Nagbalayong, Morong, Bataan and more particularly described as
follows:
Location : Pook Batangas, Nagbalayong, Morong, Bataan
Area : That portion of Lot 1683, Cad. 262, Morong Cadastre,
containing an area of 392,155 square meters more or less.
Boundaries : North : Right of Catalino Agujo
South : National Road, Bagac-Morong
West : Right of Nicasio Canta
East : Sapang Batang Panao
The SELLERS do hereby declare that the boundaries of the foregoing
land are visible by means of monuments, creeks and trees; that the
land including the permanent improvements existing thereon
consist of fruit-bearing trees assessed for the current year at TWO
HUNDRED SIXTY TWO THOUSAND FOUR HUNDRED P262,400.00
as per Tax Declaration No. 5010; and that the property is presently
in the possession of the SELLERS.
The SELLERS hereby agree with the BUYER that they are the
absolute owners of the rights over the said property; that they have
the perfect right to convey the same; that they acquired their rights
56
over the said property by absolute deed of sale from Jose R. Monzon
who acquired his rights over the property from Marianito Holgado;
that Marianito Holgado acquired his right from Pedro de Leon who,
in turn, acquired his right from Julian Agujo who was the original
owner who cleared the land and who was in possession of the same
immediately after the Second World War.
The SELLERS warrant their rights and claims over the
aforedescribed real estate including the trees planted thereon and
they undertake to defend the same unto said Vendee, his heirs and
assigns against the claims of any third person
whomsoever.12 (Emphasis and underscoring
supplied)ςrαlαωlιbrαrÿ
Respondent thereafter furnished him with a copy of Tax Declaration
No. 501013 with Property Index No. 018-08-004-05-126 issued in his
(respondent's) name and his alleged co-owners, and Real Property
Tax Receipt No. 02520114 dated August 17, 1995 issued in his
(respondent's) name.
He thus gave respondent two checks dated August 21, 1995
representing the purchase price of the rights over the property,
Asian Bank Corporation Check No. GA06321015 in the amount
of P168,627.00 payable to respondent, and Asian Bank Manager's
Check No. 004639GA16 in the amount of P3,193,906.00 payable to
respondent, Banzon and Zabala.
He subsequently took possession of the property and installed a
barbed wire fence at its front portion. Soon after, however, a forest
guard approached him and informed him that the property could
not be fenced as it was part of the Bataan National Park.17

Upon investigation, he discovered that the property is not an
alienable or disposable land susceptible of private ownership. He
thus secured a Certification18 from the Community Environment
and Natural Resources Office (CENR) in Bagac, Bataan of the
Department of Environment and Natural Resources (DENR) dated
July 2, 1998, signed by CENR Officer Laurino D. Macadangdang,
reading:
This pertains to your request for a certification as to the status of
land claimed by spouses Perfecto and Purificacion, Jose Monson, et.
al, Virgilio Banzon and Edilberto Pizarro, all located at Nagbalayong,
Morong, Bataan.
Please be informed that per verification conducted by the personnel
of this Office, said lands fall within the Bataan Natural Park per L.C.
Map/N.P. Map No. 34 as certified on December 1, 1945. Under the
Public Land Law, lands within this category are not subject for
disposition.19 (Underscoring supplied)ςrαlαωlιbrαrÿ
He also obtained a Letter-directive20 dated August 31, 1995 issued
by Officer-in-Charge Ricardo R. Alarcon of the Provincial
Environment and Natural Resources Office (PENR) of Balanga,
Bataan to the Municipal Assessor, the pertinent portions of which
read:
Please be informed that it comes to our attention that there
are some forest occupants that are securing land tax
declarations from your office in (sic) the pretext that the area
they occupied (sic) were (sic) within alienable and disposable
lands. Presently, this tax declaration is being used in the illegal
selling of right [of] possession within the Bataan Natural Park
which is prohibited under our laws.
57
xxx
In this regard, I would like to request for your assistance by way of
informing us and in controlling this land rush and massive selling
and buying of rights of possession within prohibited areas as stated
above.21 (Emphasis and underscoring supplied)ςrαlαωlιbrαrÿ
Upon his request, the PENR issued a Certification22 dated March 14,
1996 stating that those named by respondent as prior owners of
rights over the property from whom respondent and his alleged co-
owners acquired their alleged rights were not among those
inventoried as occupants per the PENR's 1978 to 1994 Forest
Occupancy Census (IFO) Survey.
Despite repeated demands, respondent refused to return the
purchase price of the rights over the property.23
In his present complaint24 dated September 10, 2001, complainant
charges respondent to have violated his oath as a member of the Bar
in committing manifest falsehood and evident misrepresentation by
employing fraudulent means to lure him into buying rights over the
property which property he represented to be disposable and
alienable.25
In his Comment26 dated January 12, 2002, respondent denied
having employed deceit or having pretended to co-own rights over
the property or having represented that it was alienable and
disposable. He claimed that complainant, being engaged in
speculation in the purchase of property, knew exactly the character
and nature of the object of his purchase;27 and that despite
complainant's awareness that he was merely "buying rights to forest
land," he just the same voluntarily entered into the transaction
because of the property's proximity to the Subic Bay Economic Zone.

Respondent surmised that complainant bought the rights over the
property in the hope that lands belonging to the public domain in
Morong "would be eventually declared alienable and disposable to
meet the rising demand for economic zones."28
By Resolution29 of February 6, 2002, this Court referred the case to
the Integrated Bar of the Philippines (IBP) for investigation, report
and recommendation or decision within ninety (90) days from notice.
On May 6, 2002, complainant filed before the IBP his Reply30 to
respondent's Comment, maintaining that the sale of rights over the
property was attended with deceit as respondent deliberately did not
disclose that the property was within the confines of the Bataan
National Park.31 And he denied being engaged in speculation, he
claiming that with his purchase of the property, he would venture
into low-cost housing for the employees of the nearby Subic Bay
area.32
To complainant's Reply, respondent filed his Rejoinder on June 21,
2002.33
Complainant later filed his Affidavit34 and Position Paper35 on June
21, 2002 and September 17, 2001, respectively, reiterating his
assertions in his previous pleadings.
The record shows that complainant filed a criminal complaint for
estafa against respondent, Banzon, Zabala, Cañete, Alipio and
Navarro in 199936 arising from the questioned sale of rights. The
complaint was twice dismissed by the City Prosecutor of Quezon
City. On Petition for Review , however, the Department of Justice,
through then Secretary Hernando B. Perez, by Resolution 37 of March
6, 2002, reversed the dismissal of the complaint as it found probable
cause to indict respondent et al. in court. An information for estafa
58
was thereupon filed against respondent et al. before the Regional
Trial Court (RTC) of Quezon City, docketed as Criminal Case No. Q-
00-94232.
By Report and Recommendation of April 20, 2004, the IBP
Commission on Bar Discipline (CBD), through Commissioner Lydia
A. Navarro, finding respondent to have violated his oath as a
member of the Bar to do no falsehood and misrepresentations,
recommended his suspension from the practice of law for three (3)
months, subject to the approval of the members of the Board of
Governors. Pertinent portions of the Report and Recommendation
read:
. . . [I]t is evident that as early as of (sic) 1992, the Implementing
Rules and Regulations of NIPAS ACT38prohibited the illegal selling of
rights or possession of the areas occupied within the Bataan Natural
Park, the subject property not excluded as per letter of OIC CENRO
Laurino D. Mapadanig [illegible], Bagac, Bataan per L.C. map/N.P.
Map No. 34 to the Municipal Assessor therein and certified on
December 1, 1945 that subject property which is within this
category was not subject for disposition; a fact supposed to be
known by the respondent being a resident of Balanga, Bataan and
was in the practice of his profession also in said area.
Aside from the fact that the alleged original owner Monzon was not
among those inventoried occupants as per Forest Occupancy (IFO)
Survey since 1978 up to the latest census in 1994 from whom
respondent allegedly bought the subject property; the Absolute Deed
of Sale executed between the complainant Wilson Po Cham and the
respondent relative to the same subject property was not
notarized which partook the nature of a private and not official
document.

Although respondent furnished complainant the foregoing
documents to prove their rights, interest and possession to the
subject property, respondent and his co-owners failed to show a
permit from the government conferring upon them rights or
concessions over the subject property, which formed part of the
Bataan Natural Park classified as public and not subject to
disposition, therefore respondent and his co-owners have no rights
and interests whatsoever over the subject property and
their representations to complainant were simply not true but a
falsehood.
Respondent being extensively conversant and knowledgeable about
the law took advantage of his versatility in the practice of law and
committed misrepresentations that he and his co-owners have
irrevocable rights, interests and possession over the subject property
which convinced complainant into purchasing subject property
unmindful that the same is not alienable or disposable being a
portion of the public domain; whereby respondent violated his
solemn oath as member of the Philippine Bar for having committed
such falsehood and misrepresentations to the
complainant.39 (Underscoring supplied).
By CBD Resolution No. XVI-2004-407 of October 7, 2004, the IBP
Board of Governors adopted and approved the April 20, 2004
Committee Report and Recommendation.
The case was forwarded to this Court for final action pursuant to
Rule 139-B of the Rules of Court.40
The IBP findings are well-taken.
The Bar is enjoined to maintain a high standard of not only legal
proficiency but of honesty and fair dealing.41 Thus, a member should
59
refrain from doing any act which might lessen in any degree the
confidence and trust reposed by the public in the fidelity, honesty
and integrity of the legal profession.42
The misconduct of a lawyer, whether in his professional or private
capacity, which shows him to be wanting in moral character,
honesty, probity and good demeanor to thus render him unworthy of
the privileges which his license and the law confer upon him, may
be sanctioned with disbarment or suspension.43
Thus, under Section 27, Rule 138 of the Revised Rules of Court, a
member of the Bar may be disbarred or suspended from his office as
attorney on the following grounds: 1) deceit; 2) malpractice or other
gross misconduct in office; 3) grossly immoral conduct; 4) conviction
of a crime involving moral turpitude; 5) violation of the lawyer's
oath; 6) willful disobedience to any lawful order of a superior court;
and 7) willfully appearing as an attorney for a party without
authority.
And he may be faulted under Canon 1 of the Code of Professional
Responsibility which mandates a member of the Bar to obey the
laws of the land and promote respect for the law. Rule 1.01 of the
Code specifically enjoins him not to engage in unlawful, dishonest,
immoral or deceitful conduct. "Conduct," as used in this rule, is not
limited to conduct exhibited in connection with the performance of
professional duties.44
In the case at bar, as reflected above, complainant presented
certifications from the DENR that the property is part of the public
domain and not disposable as it is within the Bataan National Park.
Indeed, by virtue of Proclamation No. 2445 issued on December 1,
1945, all properties of the public domain therein designated as part

of the Bataan National Park were withdrawn from sale, settlement or
other disposition, subject to private rights.
On the other hand, respondent has utterly failed to substantiate his
documented claim of having irrevocable rights and interests over the
property which he could have conveyed to complainant. E.g., he
could have presented any document issued by the government
conferring upon him and his alleged co-owners, or even upon his
alleged predecessors-in-interest, with any such right or interest, but
he presented none. He merely presented a Deed of Absolute Sale
purportedly executed by a certain Jose R. Monzon in his, Banzon's
and Zabala's favor on July 25, 1995, a month shy of the execution
on August 21, 1995 of the Deed of Absolute Sale in favor of
complainant.
The tax declaration and receipt which respondent presented do not
help his cause any as neither tax receipts nor realty tax declarations
are sufficient evidence of the right of possession over realty unless
supported by other effective proof.46 The presentation of a tax
declaration must indeed have been a "pretext," as observed by the
PENR in its earlier-quoted portion of its letter-directive to the
Balanga Municipal Assessor "that the area occupied . . . [is] within
alienable and disposable land."
Respondent must thus be faulted for fraudulently inducing
complainant to purchase, for P3,372,533.00, non-existent
"irrevocable rights, interest and participation" over an inalienable
property.
In Lizaso v. Amante47 where therein respondent lawyer enticed the
therein complainant to invest in the casino business with the
proposition that her investment would yield her substantial profit,
but therein respondent not only failed to deliver the promised return
60
on the investment but also the principal thereof, this Court took
occasion to expound on sanctioning lawyers for committing fraud,
deceit or falsehood in their private dealings:
It is true, of course, that there was no attorney-client relationship
between respondent Amante and complainant Cuyugan-Lizaso. The
transaction that complainant entered into with respondent did not
require respondent to perform professional legal services for
complainant nor did that transaction relate to the rendition of
professional services by respondent to any other person.
As early as 1923, however, the Court laid down in In Re Vicente
Pelaez the principle that it can exercise its power to discipline
lawyers for causes which do not involve the relationship of an
attorney and client. x x x
"x x x [A]s a general rule, a court will not assume jurisdiction to
discipline one of its officers for misconduct alleged to have been
committed in his private capacity. But this is a general rule with
many exceptions. The courts sometimes stress the point that the
attorney has shown, through misconduct outside of his professional
dealings, a want of such professional honesty as render him
unworthy of public confidence, and an unfit and unsafe person to
manage the legal business of others. The reason why such a
distinction can be drawn is because it is the court which admits an
attorney to the bar, and the court requires for such admission the
possession of a good moral character.
x x x"
The rationale of the rule that misconduct, indicative of moral
unfitness, whether relating to professional or non-professional
matters, justifies suspension or disbarment, was expressed by Mr.

Chief Justice Prentice in In Re Disbarment of Peck, with eloquence
and restraint:
"As important as it is that an attorney be competent to deal with the
oftentimes intricate matters which may be intrusted to him, it is
infinitely more so that he be upright and trustworthy. Unfortunately,
it is not easy to limit membership in the profession to those who
satisfy the standard of test of fitness. But scant progress in that
direction can be hoped for if, in the determination of the
qualification of professional fitness, non-professional dishonor and
dishonesty in whatsoever path of life is to be ignored. Professional
honesty and honor are not to be expected as the accompaniment of
dishonesty and dishonor in other relations. x x x misconduct,
indicative of moral unfitness for the profession, whether it be
professional or non-professional, justifies dismission as well as
exclusion from the bar."
The rule in this jurisdiction was stated by Mr. Justice Malcolm
in Piatt v. Abordo x xx:
"The courts are not curators of the morals of the bar. At the same
time the profession is not compelled to harbor all persons whatever
their character, who are fortunate enough to keep out of prison. As
good character is an essential qualification for admission of an
attorney to practice, when the attorney's character is bad in such
respects as to show that he is unsafe and unfit to be entrusted with
the powers of an attorney, the courts retain the power to discipline
him."48 (Italics in the original)
This Lizaso ruling was reiterated in Co v. Bernardino49 and Lao v.
Medel.50
61
To be sure, complainant is not entirely blameless. Had he exhibited
a modicum of prudence before entering into the transaction with
respondent, he would have spared himself from respondent's sham.
It is jurisprudentially established though that in a disbarment
proceeding, it is immaterial that the complainant is not blameless or
is in pari delicto as this is not a proceeding to grant relief to the
complainant, but one to purge the law profession of unworthy
members to protect the public and the courts.51
The record does not disclose the status of the estafa case against
respondent. His conviction or acquittal is not, however, essential
insofar as the present administrative case against him is
concerned.52
Administrative cases against lawyers belong to a class of their own.
They are distinct from and they may proceed independently of x x x
criminal cases.
The burden of proof for these types of cases differ. In a criminal
case, proof beyond reasonable doubt is necessary; in an
administrative case for disbarment or suspension, "clearly
preponderant evidence" is all that is required. Thus, a criminal
prosecution will not constitute a prejudicial question even if the
same facts and circumstances are attendant in the administrative
proceedings.
It should be emphasized that a finding of guilt in the criminal case
will not necessarily result in a finding of liability in the
administrative case. Conversely, respondent's acquittal does not
necessarily exculpate him administratively.53 (Emphasis
supplied)ςrαlαωlιbrαrÿ
 62

It is not thus sound judicial policy to await the final resolution of a

criminal case before a complaint against a lawyer may be acted
upon; otherwise, this Court will be rendered helpless from vigorously
applying the rules on admission to and continuing membership in
the legal profession during the whole period that the criminal case is
pending final disposition when the objectives of the two proceedings
are vastly disparate.54

While the facts and circumstances of the case do not warrant the
imposition of so severe a penalty as disbarment, the inherent power
of this Court to discipline an errant member of the Bar must,
nonetheless, be exercised as it cannot be denied that respondent
violated his solemn oath as a lawyer not to engage in unlawful,
dishonest or deceitful conduct.55

The penalty of suspension for three (3) months recommended by the

IBP is not, however, commensurate to the gravity of the wrong
committed by respondent. This Court finds that respondent's
suspension from the practice of law for One (1) Year is warranted.

WHEREFORE, respondent, Atty. Edilberto D. Pizarro, is

SUSPENDED from the practice of law for One (1) Year and STERNLY
WARNED that a repetition of the same or similar offense will merit a
more severe penalty.

Let copies of this Decision be entered in the personal record of

respondent as a member of the Bar and furnished the Office of the
Bar Confidant, the Integrated Bar of the Philippines, and the Court
Administrator for circulation to all courts of the country.

SO ORDERED.

G.R. No. L-770 April 27, 1948
ANGEL T. LIMJOCO, petitioner,
vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE,
deceased, respondent.
HILADO, J.:
Under date of May 21, 1946, the Public Service Commission,
through Deputy Commissioner Fidel Ibañez, rendered its decision in
case No. 4572 of Pedro O. Fragante, as applicant for a certificate of
public convenience to install, maintain and operate an ice plant in
San Juan, Rizal, whereby said commission held that the evidence
therein showed that the public interest and convenience will be
promoted in a proper and suitable manner "by authorizing the
operation and maintenance of another ice plant of two and one-half
(2-½) tons in the municipality of San Juan; that the original
applicant Pedro O. Fragante was a Filipino Citizen at the time of his
death; and that his intestate estate is financially capable of
maintaining the proposed service". The commission, therefore,
overruled the opposition filed in the case and ordered "that under
the provisions of section 15 of Commonwealth Act No. 146, as
amended a certificate of public convenience be issued to the
Intestate Estate of the deceased Pedro Fragante, authorizing said
Intestate Estate through its Special or Judicial Administrator,
appointed by the proper court of competent jurisdiction, to maintain
and operate an ice plant with a daily productive capacity of two and
one-half (2-1/2) tons in the Municipality of San Juan and to sell the
ice produced from said plant in the said Municipality of San Juan
and in the Municipality of Mandaluyong, Rizal, and in Quezon City",
subject to the conditions therein set forth in detail (petitioner's brief,
pp. 33-34).
63
Petitioner makes four assignments of error in his brief as follows:
1. The decision of the Public Service Commission is not in
accordance with law.
2. The decision of the Public Service Commission is not
reasonably supported by evidence.
3. The Public Service Commission erred in not giving
petitioner and the Ice and Cold Storage Industries of the
Philippines, Inc., as existing operators, a reasonable
opportunity to meet the increased demand.
4. The decision of the Public Service Commission is an
unwarranted departure from its announced policy with
respect to the establishment and operation of ice plant. (Pp.
1-2, petitioner's brief.)
In his argument petitioner contends that it was error on the part of
the commission to allow the substitution of the legal representative
of the estate of Pedro O. Fragante for the latter as party applicant in
the case then pending before the commission, and in subsequently
granting to said estate the certificate applied for, which is said to be
in contravention of law.
If Pedro O. Fragante had not died, there can be no question that he
would have had the right to prosecute his application before the
commission to its final conclusion. No one would have denied him
that right. As declared by the commission in its decision, he had
invested in the ice plant in question P 35,000, and from what the
commission said regarding his other properties and business, he
would certainly have been financially able to maintain and operate

said plant had he not died. His transportation business alone was
netting him about P1,440 a month. He was a Filipino citizen and
continued to be such till his demise. The commission declared in its
decision, in view of the evidence before it, that his estate was
financially able to maintain and operate the ice plant. The aforesaid
right of Pedro O. Fragante to prosecute said application to its
conclusion was one which by its nature did not lapse through his
death. Hence, it constitutes a part of the assets of his estate, for
which a right was property despite the possibility that in the end the
commission might have denied application, although under the facts
of the case, the commission granted the application in view of the
financial ability of the estate to maintain and operate the ice plant.
Petitioner, in his memorandum of March 19, 1947, admits (page 3)
that the certificate of public convenience once granted "as a rule,
should descend to his estate as an asset". Such certificate would
certainly be property, and the right to acquire such a certificate, by
complying with the requisites of the law, belonged to the decedent in
his lifetime, and survived to his estate and judicial administrator
after his death.
If Pedro O. Fragrante had in his lifetime secured an option to buy a
piece of land and during the life of the option he died, if the option
had been given him in the ordinary course of business and not out
of special consideration for his person, there would be no doubt that
said option and the right to exercise it would have survived to his
estate and legal representatives. In such a case there would also be
the possibility of failure to acquire the property should he or his
estate or legal representative fail to comply with the conditions of the
option. In the case at bar Pedro O. Fragrante's undoubted right to
apply for and acquire the desired certificate of public convenience —
the evidence established that the public needed the ice plant — was
under the law conditioned only upon the requisite citizenship and
economic ability to maintain and operate the service. Of course,
64
such right to acquire or obtain such certificate of public convenience
was subject to failure to secure its objective through nonfulfillment
of the legal conditions, but the situation here is no different from the
legal standpoint from that of the option in the illustration just given.
Rule 88, section 2, provides that the executor or administrator may
bring or defend actions, among other cases, for the protection of the
property or rights of the deceased which survive, and it says that
such actions may be brought or defended "in the right of the
deceased".
Rule 82, section 1, paragraph (a), mentions among the duties of the
executor or administrator, the making of an inventory of all goods,
chattels, rights, credits, and estate of the deceased which shall come
to his possession or knowledge, or to the possession of any other
person for him.
In his commentaries on the Rules of Court (Volume II, 2nd ed.,
pages 366, 367) the present chief Justice of this Court draws the
following conclusion from the decisions cited by him:
Therefore, unless otherwise expressly provided by law, any
action affecting the property or rights (emphasis supplied) of a
deceased person which may be brought by or against him if
he were alive, may likewise be instituted and prosecuted by or
against the administrator, unless the action is for recovery of
money, debt or interest thereon, or unless, by its very nature,
it cannot survive, because death extinguishes the right . . . .
It is true that a proceeding upon the application for a certificate of
public convenience before the Public Service Commission is not an
"action". But the foregoing provisions and citations go to prove that
the decedent's rights which by their nature are not extinguished by

death go to make up a part and parcel of the assets of his estate
which, being placed under the control and management of the
executor or administrator, can not be exercised but by him in
representation of the estate for the benefit of the creditors, devisees
or legatees, if any, and the heirs of the decedent. And if the right
involved happens to consist in the prosecution of an unfinished
proceeding upon an application for a certificate of public
convenience of the deceased before the Public Service Commission,
it is but logical that the legal representative be empowered and
entitled in behalf of the estate to make the right effective in that
proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and
article 336 of the Civil Code, respectively, consider as immovable and
movable things rights which are not material. The same eminent
commentator says in the cited volume (p. 45) that article 336 of the
Civil Code has been deficiently drafted in that it is not sufficiently
expressive of all incorporeal rights which are also property for
juridical purposes.
Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the
term, property includes, among other things, "an option", and "the
certificate of the railroad commission permitting the operation of a
bus line", and on page 748 of the same volume we read:
However, these terms (real property, as estate or interest)
have also been declared to include every species of
title, inchoate or complete, and embrace rights which lie in
contract, whether executory or executed. (Emphasis
supplied.)
65
Another important question raised by petitioner is whether the
estate of Pedro O. Fragrante is a "person" within the meaning of the
Public Service Act.
Words and Phrases, First Series, (Vol. 6, p, 5325), states the
following doctrine in the jurisdiction of the State of Indiana:
As the estate of the decedent is in law regarded as a person, a
forgery committed after the death of the man whose name
purports to be signed to the instrument may be prosecuted as
with the intent to defraud the estate. Billings vs. State, 107
Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited above had before
it a case of forgery committed after the death of one Morgan for the
purpose of defrauding his estate. The objection was urged that the
information did not aver that the forgery was committed with the
intent to defraud any person. The Court, per Elliott, J., disposed of
this objection as follows:
. . . The reason advanced in support of this proposition is that
the law does not regard the estate of a decedent as a person.
This intention (contention) cannot prevail. The estate of the
decedent is a person in legal contemplation. "The word
"person" says Mr. Abbot, "in its legal signification, is a generic
term, and includes artificial as well as natural persons," 2
Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304;
Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in
another work that 'persons are of two kinds: natural and
artificial. A natural person is a human being. Artificial
persons include (1) a collection or succession of natural
persons forming a corporation; (2) a collection of property to
which the law attributes the capacity of having rights and

duties. The latter class of artificial persons is recognized only
to a limited extent in our law. "Examples are the estate of a
bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954.
Our own cases inferentially recognize the correctness of the
definition given by the authors from whom we have quoted,
for they declare that it is sufficient, in pleading a claim
against a decedent's estate, to designate the defendant as the
estate of the deceased person, naming him. Ginn vs. Collins,
43 Ind. 271. Unless we accept this definition as correct, there
would be a failure of justice in cases where, as here, the
forgery is committed after the death of a person whose name
is forged; and this is a result to be avoided if it can be done
consistent with principle. We perceive no difficulty in avoiding
such a result; for, to our minds, it seems reasonable that the
estate of a decedent should be regarded as an artificial
person. It is the creation of law for the purpose of enabling a
disposition of the assets to be properly made, and, although
natural persons as heirs, devises, or creditors, have an
interest in the property, the artificial creature is a distinct
legal entity. The interest which natural persons have in it is
not complete until there has been a due administration; and
one who forges the name of the decedent to an instrument
purporting to be a promissory note must be regarded as
having intended to defraud the estate of the decedent, and
not the natural persons having diverse interests in it, since
ha cannot be presumed to have known who those persons
were, or what was the nature of their respective interest. The
fraudulent intent is against the artificial person, — the estate
— and not the natural persons who have direct or contingent
interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.)
In the instant case there would also be a failure of justice unless the
estate of Pedro O. Fragrante is considered a "person", for quashing
66
of the proceedings for no other reason than his death would entail
prejudicial results to his investment amounting to P35,000.00 as
found by the commission, not counting the expenses and
disbursements which the proceeding can be presumed to have
occasioned him during his lifetime, let alone those defrayed by the
estate thereafter. In this jurisdiction there are ample precedents to
show that the estate of a deceased person is also considered as
having legal personality independent of their heirs. Among the most
recent cases may be mentioned that of "Estate of Mota vs.
Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was
the estate of the deceased Lazaro Mota, and this Court gave
judgment in favor of said estate along with the other plaintiffs in
these words:
. . . the judgment appealed from must be affirmed so far as it
holds that defendants Concepcion and Whitaker are indebted
to he plaintiffs in the amount of P245,804.69 . . . .
Under the regime of the Civil Code and before the enactment of the
Code of Civil Procedure, the heirs of a deceased person were
considered in contemplation of law as the continuation of his
personality by virtue of the provision of article 661 of the first Code
that the heirs succeed to all the rights and obligations of the
decedent by the mere fact of his death. It was so held by this Court
in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of
the Code of Civil Procedure, article 661 of the Civil Code was
abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13,
22. In that case, as well as in many others decided by this Court
after the innovations introduced by the Code of Civil Procedure in
the matter of estates of deceased persons, it has been the constant
doctrine that it is the estate or the mass of property, rights and
assets left by the decedent, instead of the heirs directly, that

becomes vested and charged with his rights and obligations which
survive after his demise.
The heirs were formerly considered as the continuation of the
decedent's personality simply by legal fiction, for they might not
have been flesh and blood — the reason was one in the nature of a
legal exigency derived from the principle that the heirs succeeded to
the rights and obligations of the decedent. Under the present legal
system, such rights and obligations as survive after death have to be
exercised and fulfilled only by the estate of the deceased. And if the
same legal fiction were not indulged, there would be no juridical
basis for the estate, represented by the executor or administrator, to
exercise those rights and to fulfill those obligations of the deceased.
The reason and purpose for indulging the fiction is identical and the
same in both cases. This is why according to the Supreme Court of
Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary,
954, among the artificial persons recognized by law figures "a
collection of property to which the law attributes the capacity of
having rights and duties", as for instance, the estate of a bankrupt
or deceased person.
Petitioner raises the decisive question of whether or not the estate of
Pedro O. Fragrante can be considered a "citizen of the Philippines"
within the meaning of section 16 of the Public Service Act, as
amended, particularly the proviso thereof expressly and categorically
limiting the power of the commission to issue certificates of public
convenience or certificates of public convenience and necessity "only
to citizens of the Philippines or of the United States or to
corporations, copartnerships, associations, or joint-stock companies
constituted and organized under the laws of the Philippines", and
the further proviso that sixty per centum of the stock or paid-up
capital of such entities must belong entirely to citizens of the
Philippines or of the United States.
67
Within the Philosophy of the present legal system, the underlying
reason for the legal fiction by which, for certain purposes, the estate
of the deceased person is considered a "person" is the avoidance of
injustice or prejudice resulting from the impossibility of exercising
such legal rights and fulfilling such legal obligations of the decedent
as survived after his death unless the fiction is indulged.
Substantially the same reason is assigned to support the same rule
in the jurisdiction of the State of Indiana, as announced in
Billings vs. State, supra, when the Supreme Court of said State said:
. . . It seems reasonable that the estate of a decedent should
be regarded as an artificial person. it is the creation of law for
the purpose of enabling a disposition of the assets to be
properly made . . . .
Within the framework and principles of the constitution itself, to cite
just one example, under the bill of rights it seems clear that while
the civil rights guaranteed therein in the majority of cases relate to
natural persons, the term "person" used in section 1 (1) and (2)
must be deemed to include artificial or juridical persons, for
otherwise these latter would be without the constitutional guarantee
against being deprived of property without due process of law, or the
immunity from unreasonable searches and seizures. We take it that
it was the intendment of the framers to include artificial or juridical,
no less than natural, persons in these constitutional immunities
and in others of similar nature. Among these artificial or juridical
persons figure estates of deceased persons. Hence, we hold that
within the framework of the Constitution, the estate of Pedro O.
Fragrante should be considered an artificial or juridical person for
the purposes of the settlement and distribution of his estate which,
of course, include the exercise during the judicial administration
thereof of those rights and the fulfillment of those obligations of his
which survived after his death. One of those rights was the one

involved in his pending application before the Public Service
Commission in the instant case, consisting in the prosecution of
said application to its final conclusion. As stated above, an injustice
would ensue from the opposite course.
How about the point of citizenship? If by legal fiction his personality
is considered extended so that any debts or obligations left by, and
surviving, him may be paid, and any surviving rights may be
exercised for the benefit of his creditors and heirs, respectively, we
find no sound and cogent reason for denying the application of the
same fiction to his citizenship, and for not considering it as likewise
extended for the purposes of the aforesaid unfinished proceeding
before the Public Service Commission. The outcome of said
proceeding, if successful, would in the end inure to the benefit of the
same creditors and the heirs. Even in that event petitioner could not
allege any prejudice in the legal sense, any more than he could have
done if Fragrante had lived longer and obtained the desired
certificate. The fiction of such extension of his citizenship is
grounded upon the same principle, and motivated by the same
reason, as the fiction of the extension of personality. The fiction is
made necessary to avoid the injustice of subjecting his estate,
creditors and heirs, solely by reason of his death to the loss of the
investment amounting to P35,000, which he has already made in
the ice plant, not counting the other expenses occasioned by the
instant proceeding, from the Public Service Commission of this
Court.
We can perceive no valid reason for holding that within the intent of
the constitution (Article IV), its provisions on Philippine citizenship
exclude the legal principle of extension above adverted to. If for
reasons already stated our law indulges the fiction of extension of
personality, if for such reasons the estate of Pedro O. Fragrante
should be considered an artificial or juridical person herein, we can
68
find no justification for refusing to declare a like fiction as to the
extension of his citizenship for the purposes of this proceeding.
Pedro O. Fragrante was a Filipino citizen, and as such, if he had
lived, in view of the evidence of record, he would have obtained from
the commission the certificate for which he was applying. The
situation has suffered but one change, and that is, his death. His
estate was that of a Filipino citizen. And its economic ability to
appropriately and adequately operate and maintain the service of an
ice plant was the same that it received from the decedent himself. In
the absence of a contrary showing, which does not exist here, his
heirs may be assumed to be also Filipino citizens; and if they are
not, there is the simple expedient of revoking the certificate or
enjoining them from inheriting it.
Upon the whole, we are of the opinion that for the purposes of the
prosecution of said case No. 4572 of the Public Service Commission
to its final conclusion, both the personality and citizenship of Pedro
O. Fragrante must be deemed extended, within the meaning and
intent of the Public Service Act, as amended, in harmony with the
constitution: it is so adjudged and decreed.
Decision affirmed, without costs. So ordered.

G.R. No. 26795 July 31, 1970
CARMEN QUIMIGUING, Suing through her parents, ANTONIO
QUIMIGUING and JACOBA CABILIN, plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.
REYES, J.B.L., J.:
Appeal on points of law from an order of the Court of First Instance
of Zamboanga del Norte (Judge Onofre Sison Abalos, presiding), in
its Civil Case No. 1590, dismissing a complaint for support and
damages, and another order denying amendment of the same
pleading.
The events in the court of origin can be summarized as follows:
Appellant, Carmen Quimiguing, assisted by her parents, sued Felix
Icao in the court below. In her complaint it was averred that the
parties were neighbors in Dapitan City, and had close and
confidential relations; that defendant Icao, although married,
succeeded in having carnal intercourse with plaintiff several times
by force and intimidation, and without her consent; that as a result
she became pregnant, despite efforts and drugs supplied by
defendant, and plaintiff had to stop studying. Hence, she claimed
support at P120.00 per month, damages and attorney's fees.
Duly summoned, defendant Icao moved to dismiss for lack of cause
of action since the complaint did not allege that the child had been
born; and after hearing arguments, the trial judge sustained
defendant's motion and dismissed the complaint.
69
Thereafter, plaintiff moved to amend the complaint to allege that as
a result of the intercourse, plaintiff had later given birth to a baby
girl; but the court, sustaining defendant's objection, ruled that no
amendment was allowable, since the original complaint averred no
cause of action. Wherefore, the plaintiff appealed directly to this
Court.
We find the appealed orders of the court below to be untenable. A
conceived child, although as yet unborn, is given by law a
provisional personality of its own for all purposes favorable to it, as
explicitly provided in Article 40 of the Civil Code of the Philippines.
The unborn child, therefore, has a right to support from its
progenitors, particularly of the defendant-appellee (whose paternity
is deemed admitted for the purpose of the motion to dismiss), even if
the said child is only "en ventre de sa mere;" just as a conceived
child, even if as yet unborn, may receive donations as prescribed by
Article 742 of the same Code, and its being ignored by the parent in
his testament may result in preterition of a forced heir that annuls
the institution of the testamentary heir, even if such child should be
born after the death of the testator Article 854, Civil Code).
ART. 742. Donations made to conceived and unborn
children may be accepted by those persons who would
legally represent them if they were already born.
ART. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of 'representation.
It is thus clear that the lower court's theory that Article 291 of the
Civil Code declaring that support is an obligation of parents and
illegitimate children "does not contemplate support to children as
yet unborn," violates Article 40 aforesaid, besides imposing a
condition that nowhere appears in the text of Article 291. It is true
that Article 40 prescribing that "the conceived child shall be
considered born for all purposes that are favorable to it" adds
further "provided it be born later with the conditions specified in the
following article" (i.e., that the foetus be alive at the time it is
completely delivered from the mother's womb). This proviso,
however, is not a condition precedent to the right of the conceived
child; for if it were, the first part of Article 40 would become entirely
useless and ineffective. Manresa, in his Commentaries (5th Ed.) to
the corresponding Article 29 of the Spanish Civil Code, clearly points
this out:
Los derechos atribuidos al nasciturus no son
simples expectativas, ni aun en el sentido tecnico que
la moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados
'derechos en estado de pendenci'; el nacimiento del
sujeto en las condiciones previstas por el art. 30, no
determina el nacimiento de aquellos derechos (que ya
existian de antemano), sino que se trata de un hecho
que tiene efectos declarativos. (1 Manresa, Op. cit.,
page 271)
A second reason for reversing the orders appealed from is that for a
married man to force a woman not his wife to yield to his lust (as
70
averred in the original complaint in this case) constitutes a clear
violation of the rights of his victim that entitles her to claim
compensation for the damage caused. Says Article 21 of the Civil
Code of the Philippines:
ART. 21. Any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter
for the damage.
The rule of Article 21 is supported by Article 2219 of the same Code:
ART 2219. Moral damages may be recovered in the
following and analogous cases:
(3) Seduction, abduction, rape or other lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in Articles 21, 26, 27,
28 ....
Thus, independently of the right to Support of the child she was
carrying, plaintiff herself had a cause of action for damages under
the terms of the complaint; and the order dismissing it for failure to
state a cause of action was doubly in error.
WHEREFORE, the orders under appeal are reversed and set aside.
Let the case be remanded to the court of origin for further
proceedings conformable to this decision. Costs against appellee
Felix Icao. So ordered.

G.R. No. L-39110 November 28, 1933
ANTONIA L. DE JESUS, ET AL., plaintiff-appellant,
vs.
CESAR SYQUIA, defendant-appellant.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by
Antonia Loanco de Jesus in her own right and by her mother, Pilar
Marquez, as next friend and representative of Ismael and Pacita
Loanco, infants, children of the first-named plaintiff, for the purpose
of recovering from the defendant, Cesar Syquia, the sum of thirty
thousand pesos as damages resulting to the first-named plaintiff
from breach of a marriage promise, to compel the defendant to
recognize Ismael and Pacita as natural children begotten by him
with Antonia, and to pay for the maintenance of the three the
amount of five hundred pesos per month, together with costs. Upon
hearing the cause, after answer of the defendant, the trial court
erred a decree requiring the defendant to recognize Ismael Loanco as
his natural child and to pay maintenance for him at the rate of fifty
pesos per month, with costs, dismissing the action in other respects.
From this judgment both parties appealed, the plaintiffs from so
much of the decision as denied part of the relief sought by them,
and the defendant from that feature of the decision which required
him to recognize Ismael Loanco and to pay for his maintenance.
At the time with which we are here concerned, the defendant, Cesar
Syquia was of the age of twenty-three years, and an unmarried scion
of the prominent family in Manila, being possessed of a considerable
property in his own right. His brother-in-law, Vicente Mendoza is the
owner of a barber shop in Tondo, where the defendant was
accustomed to go for tonsorial attention. In the month of June
71
Antonia Loanco, a likely unmarried girl of the age of twenty years,
was taken on as cashier in this barber shop. Syquia was not long in
making her acquaintance and amorous relations resulted, as a
consequence of which Antonia was gotten with child and a baby boy
was born on June 17, 1931. The defendant was a constant visitor at
the home of Antonia in the early months of her pregnancy, and in
February, 1931, he wrote and placed in her hands a note directed to
the padre who has expected to christen the baby. This note was as
follows:
Saturday, 1:30 p. m.
February 14, 1931
Rev. FATHER,
The baby due in June is mine and I should like for my name to be
given to it.
CESAR SYQUIA
The occasion for writing this note was that the defendant was on the
eve of his departure on a trip to China and Japan; and while he was
abroad on this visit he wrote several letters to Antonia showing a
paternal interest in the situation that had developed with her, and
cautioning her to keep in good condition in order
that "junior" (meaning the baby to be, "Syquia, Jr.") might be strong,
and promising to return to them soon. The baby arrived at the time
expected, and all necessary anticipatory preparations were made by
the defendant. To this he employed his friend Dr. Crescenciano
Talavera to attend at the birth, and made arrangements for the
hospitalization of the mother in Saint Joseph's Hospital of the City
of Manila, where she was cared for during confinement.

When Antonio was able to leave the hospital, Syquia took her, with
her mother and the baby, to a house at No. 551 Camarines Street,
Manila, where they lived together for about a year in regular family
style, all household expenses, including gas and electric light, being
defrayed by Syquia. In course of time, however, the defendant's
ardor abated and, when Antonia began to show signs of a second
pregnancy the defendant decamped, and he is now married to
another woman. A point that should here be noted is that when the
time came for christening the child, the defendant, who had charge
of the arrangement for this ceremony, caused the name Ismael
Loanco to be given to him, instead of Cesar Syquia, Jr., as was at
first planned.
The first question that is presented in the case is whether the note
to the padre, quoted above, in connection with the letters written by
the defendant to the mother during pregnancy, proves an
acknowledgment of paternity, within the meaning of subsection 1 of
article 135 of the Civil Code. Upon this point we have no hesitancy
in holding that the acknowledgment thus shown is sufficient. It is a
universal rule of jurisprudence that a child, upon being conceived,
becomes a bearer of legal rights and capable of being dealt with as a
living person. The fact that it is yet unborn is no impediment to the
acquisition of rights. The problem here presented of the recognition
of unborn child is really not different from that presented in the
ordinary case of the recognition of a child already born and bearing
a specific name. Only the means and resources of identification are
different. Even a bequest to a living child requires oral evidence to
connect the particular individual intended with the name used.
It is contended however, in the present case that the words of
description used in the writings before us are not legally sufficient to
indemnify the child now suing as Ismael Loanco. This contention is
not, in our opinion, well founded. The words of recognition
72
contained in the note to the padre are not capable of two
constructions. They refer to a baby then conceived which was
expected to be born in June and which would thereafter be
presented for christening. The baby came, and though it was in the
end given the name of Ismael Loanco instead of Cesar Syquia, Jr.,
its identity as the child which the defendant intended to
acknowledge is clear. Any doubt that might arise on this point is
removed by the letters Exhibit F, G, H, and J. In these letters the
defendant makes repeated reference to junior as the baby which
Antonia, to whom the letters were addressed, was then carrying in
her womb, and the writer urged Antonia to eat with good appetite in
order that junior might be vigorous. In the last letter (Exhibit J)
written only a few days before the birth of the child, the defendant
urged her to take good care of herself and ofjunior also.
It seems to us that the only legal question that can here arise as to
the sufficiency of acknowledgment is whether the acknowledgment
contemplated in subsection 1 of article 135 of the Civil Code must
be made in a single document or may be made in more than one
document, of indubitable authenticity, written by the recognizing
father. Upon this point we are of the opinion that the recognition
can be made out by putting together the admissions of more than
one document, supplementing the admission made in one letter by
an admission or admissions made in another. In the case before us
the admission of paternity is contained in the note to the padre and
the other letters suffice to connect that admission with the child
then being carried by Antonia L. de Jesus. There is no requirement
in the law that the writing shall be addressed to one, or any
particular individual. It is merely required that the writing shall be
indubitable.
The second question that presents itself in this case is whether the
trial court erred in holding that Ismael Loanco had been in the
 73

uninterrupted possession of the status of a natural child, justified could be based requiring the defendant to recognize the second
by the conduct of the father himself, and that as a consequence, the baby, Pacita Loanco.
defendant in this case should be compelled to acknowledge the said
Ismael Loanco, under No. 2 of article 135 of the Civil Code. The facts Finally, we see no necessity or propriety in modifying the judgment
already stated are sufficient, in our opinion, to justify the conclusion as to the amount of the maintenance which the trial court allowed to
of the trial court on this point, and we may add here that our Ismael Loanco. And in this connection we merely point out that, as
conclusion upon the first branch of the case that the defendant had conditions change, the Court of First Instance will have jurisdiction
acknowledged this child in writings above referred to must be taken to modify the order as to the amount of the pension as
in connection with the facts found by the court upon the second circumstances will require.
point. It is undeniable that from the birth of this child the defendant
supplied a home for it and the mother, in which they lived together The judgment appealed from is in all respects affirmed, without
with the defendant. This situation continued for about a year, and costs. So ordered.
until Antonia became enciente a second time, when the idea entered
the defendant's head of abandoning her. The law fixes no period
during which a child must be in the continuous possession of the
status of a natural child; and the period in this case was long
enough to evince the father's resolution to concede the status. The
circumstance that he abandoned the mother and child shortly
before this action was started is unimportant. The word
"continuous" in subsection 2 of article 135 of the Civil Code does not
mean that the concession of status shall continue forever, but only
that it shall not be of an intermittent character while it continues.

What has been said disposes of the principal feature of the

defendant's appeal. With respect to the appeal of the plaintiffs, we
are of the opinion that the trial court was right in refusing to give
damages to the plaintiff, Antonia Loanco, for supposed breach of
promise to marry. Such promise is not satisfactorily proved, and we
may add that the action for breach of promise to marry has no
standing in the civil law, apart from the right to recover money or
property advanced by the plaintiff upon the faith of such promise.
This case exhibits none of the features necessary to maintain such
an action. Furthermore, there is no proof upon which a judgment

G.R. No. L-16439 July 20, 1961
ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question whether the
husband of a woman, who voluntarily procured her abortion, could
recover damages from physician who caused the same.
The litigation was commenced in the Court of First Instance of
Manila by respondent Oscar Lazo, the of Nita Villanueva, against
petitioner Antonio Geluz, a physician. Convinced of the merits of the
complaint upon the evidence adduced, the trial court rendered
judgment favor of plaintiff Lazo and against defendant Geluz,
ordering the latter to pay P3,000.00 as damages, P700.00 attorney's
fees and the costs of the suit. On appeal, Court of Appeals, in a
special division of five, sustained the award by a majority vote of
three justices as against two, who rendered a separate dissenting
opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio Geluz)
for the first time in 1948 — through her aunt Paula Yambot.
In 1950 she became pregnant by her present husband before
they were legally married. Desiring to conceal her pregnancy
from her parent, and acting on the advice of her aunt, she
had herself aborted by the defendant. After her marriage with
the plaintiff, she again became pregnant. As she was then
74
employed in the Commission on Elections and her pregnancy
proved to be inconvenient, she had herself aborted again by
the defendant in October 1953. Less than two years later, she
again became pregnant. On February 21, 1955, accompanied
by her sister Purificacion and the latter's daughter Lucida,
she again repaired to the defendant's clinic on Carriedo and
P. Gomez streets in Manila, where the three met the
defendant and his wife. Nita was again aborted, of a two-
month old foetus, in consideration of the sum of fifty pesos,
Philippine currency. The plaintiff was at this time in the
province of Cagayan, campaigning for his election to the
provincial board; he did not know of, nor gave his consent, to
the abortion.
It is the third and last abortion that constitutes plaintiff's basis in
filing this action and award of damages. Upon application of the
defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of
damages in the sum of P3,000.06 upon the provisions of the initial
paragraph of Article 2206 of the Civil Code of the Philippines. This
we believe to be error, for the said article, in fixing a minimum
award of P3,000.00 for the death of a person, does not cover the
case of an unborn foetus that is not endowed with personality.
Under the system of our Civil Code, "la criatura abortiva no alcanza
la categoria de persona natural y en consscuencia es un ser no
nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de
Derecho Privado", Vol. 1, p. 49), being incapable of having rights and
obligations.
Since an action for pecuniary damages on account of personal injury
or death pertains primarily to the one injured, it is easy to see that if
no action for such damages could be instituted on behalf of the

unborn child on account of the injuries it received, no such right of
action could derivatively accrue to its parents or heirs. In fact, even
if a cause of action did accrue on behalf of the unborn child, the
same was extinguished by its pre-natal death, since no transmission
to anyone can take place from on that lacked juridical personality
(or juridical capacity as distinguished from capacity to act). It is no
answer to invoke the provisional personality of a conceived child
(conceptus pro nato habetur) under Article 40 of the Civil Code,
because that same article expressly limits such provisional
personality by imposing the condition that the child should be
subsequently born alive: "provided it be born later with the condition
specified in the following article". In the present case, there is no
dispute that the child was dead when separated from its mother's
womb.
The prevailing American jurisprudence is to the same effect; and it is
generally held that recovery can not had for the death of an unborn
child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich
vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in
the editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any
damages at all. But such damages must be those inflicted directly
upon them, as distinguished from the injury or violation of the
rights of the deceased, his right to life and physical integrity.
Because the parents can not expect either help, support or services
from an unborn child, they would normally be limited to moral
damages for the illegal arrest of the normal development of the spes
hominis that was the foetus, i.e., on account of distress and anguish
attendant to its loss, and the disappointment of their parental
expectations (Civ. Code Art. 2217), as well as to exemplary damages,
if the circumstances should warrant them (Art. 2230). But in the
case before us, both the trial court and the Court of Appeals have
75
not found any basis for an award of moral damages, evidently
because the appellee's indifference to the previous abortions of his
wife, also caused by the appellant herein, clearly indicates that he
was unconcerned with the frustration of his parental hopes and
affections. The lower court expressly found, and the majority opinion
of the Court of Appeals did not contradict it, that the appellee was
aware of the second abortion; and the probabilities are that he was
likewise aware of the first. Yet despite the suspicious repetition of
the event, he appeared to have taken no steps to investigate or
pinpoint the causes thereof, and secure the punishment of the
responsible practitioner. Even after learning of the third abortion,
the appellee does not seem to have taken interest in the
administrative and criminal cases against the appellant. His only
concern appears to have been directed at obtaining from the doctor
a large money payment, since he sued for P50,000.00 damages and
P3,000.00 attorney's fees, an "indemnity" claim that, under the
circumstances of record, was clearly exaggerated.
The dissenting Justices of the Court of Appeals have aptly remarked
that:
It seems to us that the normal reaction of a husband who
righteously feels outraged by the abortion which his wife has
deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary
concern would be to see to it that the medical profession was
purged of an unworthy member rather than turn his wife's
indiscretion to personal profit, and with that idea in mind to
press either the administrative or the criminal cases he had
filed, or both, instead of abandoning them in favor of a civil
action for damages of which not only he, but also his wife,
would be the beneficiaries.
 76

It is unquestionable that the appellant's act in provoking the

abortion of appellee's wife, without medical necessity to warrant it,
was a criminal and morally reprehensible act, that can not be too
severely condemned; and the consent of the woman or that of her
husband does not excuse it. But the immorality or illegality of the
act does not justify an award of damage that, under the
circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered

dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice

and the Board of Medical Examiners for their information and such
investigation and action against the appellee Antonio Geluz as the
facts may warrant.

G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
RESOLUTION
FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the
Regional Trial Court of Antique, Branch 10, a petition for the
declaration of presumptive death of his wife Janet Monica Parker,
invoking Article 41 of the Family Code. The petition prayed that
respondent's wife be declared presumptively dead or, in the
alternative, that the marriage be declared null and void.1
The Republic of the Philippines opposed the petition through the
Provincial Prosecutor of Antique who had been deputized to assist
the Solicitor-General in the instant case. The Republic argued, first,
that Nolasco did not possess a "well-founded belief that the absent
spouse was already dead,"2 and second, Nolasco's attempt to have
his marriage annulled in the same proceeding was a "cunning
attempt" to circumvent the law on marriage.3
During trial, respondent Nolasco testified that he was a seaman and
that he had first met Janet Monica Parker, a British subject, in a
bar in England during one of his ship's port calls. From that chance
meeting onwards, Janet Monica Parker lived with respondent
Nolasco on his ship for six (6) months until they returned to
77
respondent's hometown of San Jose, Antique on 19 November 1980
after his seaman's contract expired. On 15 January 1982,
respondent married Janet Monica Parker in San Jose, Antique, in
Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of
San Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a seaman
and left his wife with his parents in San Jose, Antique. Sometime in
January 1983, while working overseas, respondent received a letter
from his mother informing him that Janet Monica had given birth to
his son. The same letter informed him that Janet Monica had left
Antique. Respondent claimed he then immediately asked permission
to leave his ship to return home. He arrived in Antique in November
1983.
Respondent further testified that his efforts to look for her himself
whenever his ship docked in England proved fruitless. He also
stated that all the letters he had sent to his missing spouse at No.
38 Ravena Road, Allerton, Liverpool, England, the address of the bar
where he and Janet Monica first met, were all returned to him. He
also claimed that he inquired from among friends but they too had
no news of Janet Monica.
On cross-examination, respondent stated that he had lived with and
later married Janet Monica Parker despite his lack of knowledge as
to her family background. He insisted that his wife continued to
refuse to give him such information even after they were married. He
also testified that he did not report the matter of Janet Monica's
disappearance to the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his
witness. She testified that her daughter-in-law Janet Monica had

expressed a desire to return to England even before she had given
birth to Gerry Nolasco on 7 December 1982. When asked why her
daughter-in-law might have wished to leave Antique, respondent's
mother replied that Janet Monica never got used to the rural way of
life in San Jose, Antique. Alicia Nolasco also said that she had tried
to dissuade Janet Monica from leaving as she had given birth to her
son just fifteen days before, but when she (Alicia) failed to do so, she
gave Janet Monica P22,000.00 for her expenses before she left on 22
December 1982 for England. She further claimed that she had no
information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12
October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family
Code of the Philippines (Executive Order No. 209, July
6, 1987, as amended by Executive Order No. 227, July
17, 1987) this Court hereby declares as presumptively
dead Janet Monica Parker Nolasco, without prejudice
to her reappearance.4
The Republic appealed to the Court of Appeals contending that the
trial court erred in declaring Janet Monica Parker presumptively
dead because respondent Nolasco had failed to show that there
existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that
respondent had sufficiently established a basis to form a belief that
his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this
Court on a Petition for Review where the following allegations are
made:
78
1. The Court of Appeals erred in affirming the trial
court's finding that there existed a well-founded belief
on the part of Nolasco that Janet Monica Parker was
already dead; and
2. The Court of Appeals erred in affirming the trial
Court's declaration that the petition was a proper case
of the declaration of presumptive death under Article
41, Family Code.5
The issue before this Court, as formulated by petitioner is "[w]hether
or not Nolasco has a well-founded belief that his wife is already
dead."6
The present case was filed before the trial court pursuant to Article
41 of the Family Code which provides that:
Art. 41. A marriage contracted by any person during
the subsistence of a previous marriage shall be null
and void, unless before the celebration of the
subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse
present had a well-founded belief that the absent
spouse was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provision of Article 391
of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of

presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
(Emphasis supplied).
When Article 41 is compared with the old provision of the Civil Code,
which it superseded,7 the following crucial differences emerge.
Under Article 41, the time required for the presumption to arise has
been shortened to four (4) years; however, there is need for a judicial
declaration of presumptive death to enable the spouse present to
remarry.8 Also, Article 41 of the Family Code imposes a stricter
standard than the Civil Code: Article 83 of the Civil Code merely
requires either that there be no news that such absentee is still alive;
or the absentee is generally considered to be dead and believed to be
so by the spouse present, or is presumed dead under Article 390 and
391 of the Civil Code.9 The Family Code, upon the other hand,
prescribes as "well founded belief" that the absentee is already
dead before a petition for declaration of presumptive death can be
granted.
As pointed out by the Solicitor-General, there are four (4) requisites
for the declaration of presumptive death under Article 41 of the
Family Code:
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief
that the absentee is dead; and
79
4. That the present spouse files a summary proceeding
for the declaration of presumptive death of the
absentee. 10
Respondent naturally asserts that he had complied with all these
requirements.11
Petitioner's argument, upon the other hand, boils down to this: that
respondent failed to prove that he had complied with the third
requirement, i.e., the existence of a "well-founded belief" that the
absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a
search for his missing wife with such diligence as to give rise to a
"well-founded belief" that she is dead.
United States v. Biasbas, 12 is instructive as to degree of diligence
required in searching for a missing spouse. In that case, defendant
Macario Biasbas was charged with the crime of bigamy. He set-up
the defense of a good faith belief that his first wife had already died.
The Court held that defendant had not exercised due diligence to
ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made
inquiries concerning the whereabouts of his wife, he
fails to state of whom he made such inquiries. He did
not even write to the parents of his first wife, who lived
in the Province of Pampanga, for the purpose of
securing information concerning her whereabouts. He
admits that he had a suspicion only that his first wife
was dead. He admits that the only basis of his
suspicion was the fact that she had been absent. . . . 13

In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to ascertain Janet
Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When
he arrived in San Jose, Antique after learning of Janet Monica's
departure, instead of seeking the help of local authorities or of the
British Embassy, 14 he secured another seaman's contract and went
to London, a vast city of many millions of inhabitants, to look for her
there.
Q After arriving here in San Jose,
Antique, did you exert efforts to inquire
the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship
and we had a trip to London and I went to
London to look for her I could not find
her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused London
for Liverpool and this casts doubt on his supposed efforts to locate
his wife in England. The Court of Appeal's justification of the
mistake, to wit:
. . . Well, while the cognoscente (sic) would readily
know the geographical difference between London and
80
Liverpool, for a humble seaman like Gregorio the two
places could mean one — place in England, the port
where his ship docked and where he found Janet. Our
own provincial folks, every time they leave home to visit
relatives in Pasay City, Kalookan City, or Parañaque,
would announce to friends and relatives, "We're going
to Manila." This apparent error in naming of places of
destination does not appear to be fatal. 16
is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool, on the
other, which, as pointed out by the Solicitor-General, are around
three hundred fifty (350) kilometers apart. We do not consider that
walking into a major city like Liverpool or London with a simple
hope of somehow bumping into one particular person there — which
is in effect what Nolasco says he did — can be regarded as a
reasonably diligent search.
The Court also views respondent's claim that Janet Monica declined
to give any information as to her personal background even after she
had married respondent 17 too convenient an excuse to justify his
failure to locate her. The same can be said of the loss of the alleged
letters respondent had sent to his wife which respondent claims
were all returned to him. Respondent said he had lost these
returned letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare
assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify those
friends in his testimony. The Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during trial, it is good
evidence. But this kind of evidence cannot, by its nature, be
rebutted. In any case, admissibility is not synonymous with

credibility. 18 As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence, said
testimony merely tended to show that the missing spouse had
chosen not to communicate with their common acquaintances, and
not that she was dead.
Respondent testified that immediately after receiving his mother's
letter sometime in January 1983, he cut short his employment
contract to return to San Jose, Antique. However, he did not explain
the delay of nine (9) months from January 1983, when he allegedly
asked leave from his captain, to November 1983 when be finally
reached San Jose. Respondent, moreover, claimed he married Janet
Monica Parker without inquiring about her parents and their place
of residence. 19 Also, respondent failed to explain why he did not
even try to get the help of the police or other authorities in London
and Liverpool in his effort to find his wife. The circumstances of
Janet Monica's departure and respondent's subsequent behavior
make it very difficult to regard the claimed belief that Janet Monica
was dead a well-founded one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of
which in its purity the public is deeply interested. It is
a relationship for life and the parties cannot terminate it
at any shorter period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the
simple expedient of agreeing that one of them leave the conjugal
abode and never to return again, to circumvent the policy of the
laws on marriage. The Court notes that respondent even tried to
81
have his marriage annulled before the trial court in the same
proceeding.
In In Re Szatraw, 22 the Court warned against such collusion
between the parties when they find it impossible to dissolve the
marital bonds through existing legal means.
While the Court understands the need of respondent's young son,
Gerry Nolasco, for maternal care, still the requirements of the law
must prevail. Since respondent failed to satisfy the clear
requirements of the law, his petition for a judicial declaration of
presumptive death must be denied. The law does not view marriage
like an ordinary contract. Article 1 of the Family Code emphasizes
that.
. . . Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life. It is the foundation of the familyand
an inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the
need to protect.
. . . the basic social institutions of marriage and the
family in the preservation of which the State bas the
strongest interest; the public policy here involved is of
the most fundamental kind. In Article II, Section 12 of
 82

the Constitution there is set forth the following basic

state policy:

The State recognizes the sanctity of family

life and shall protect and strengthen the
family as a basic autonomous social
institution. . . .

The same sentiment bas been expressed in the Family

Code of the Philippines in Article 149:

The family, being the foundation of the

nation, is a basic social institution which
public policy cherishes and protects.
Consequently, family relations are
governed by law and no custom, practice
or agreement destructive of the family
shall be recognized or given effect. 24

In fine, respondent failed to establish that he had the well-founded

belief required by law that his absent wife was already dead that
would sustain the issuance of a court order declaring Janet Monica
Parker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23

February 1990, affirming the trial court's decision declaring Janet
Monica Parker presumptively dead is hereby REVERSED and both
Decisions are hereby NULLIFIED and SET ASIDE. Costs against
respondent.

G.R. No. 198760
ATTY. ALLAN S. HILBERO, Petitioner,
vs.
FLORENCIO A. MORALES, JR., Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
Petitioner Atty. Allan S. Hilbero, through the instant Petition for
Review on Certiorari under Rule 45 of the Revised Rules of Court,
assails the Decision1 dated June 7, 2011 of the Court of Appeals in
CA-G.R. SP No. 111191, which (a) modified the Resolution2 dated
September 30, 2009 of the Department of Justice (DOJ) in LS. No.
1428-07 finding probable cause to charge respondent Florencio A.
Morales, Jr., along with Primo J. Lopez (Primo), Lorenzo M.
Pamplona (Lorenzo), and Sandy M. Pamplona (Sandy), with the
murder of petitioner's father, Atty. Demetrio L. Hilbero (Demetrio);
and (b) ordered the dropping of the criminal charge against
respondent.
The antecedent facts are as follows:
Based on the initial criminal investigations conducted by the
Calamba City Police Station,3 on June 16, 2007, Demetrio and his
wife, Estela S. Hilbero (Estela), had just attended the Saturday
evening anticipated mass at the Calarnba Catholic Church. Spouses
Demetrio and Estela then proceeded to Demetrio's law office located
along Gen. Lim St., Barangay 5, Calamba City, arriving at said office
around 7:45 p.m. Estela alighted first from their car and
immediately went inside the office, while Demetrio went to a nearby
83
store to buy cigarettes. When Demetrio was about to enter the gate
of his office, two armed men on-board a motorcycle suddenly
appeared and shot Demetrio several times. The gunmen escaped
towards the adjacent Mabini Street.
Estela thought that the gunshots were mere firecrackers, but when
she checked, she found Demetrio sprawled on the ground. Estela
cried for help. Demetrio was rushed to the Calamba Medical Center
where he was pronounced dead on arrival. Initial medico-legal
findings revealed that Demetrio sustained three gunshot wounds on
the left side of his body.
Three spent shells and one deformed slug of a .45 caliber pistol were
recovered from the crime scene. A cartographic sketch of one of
Demetrio' s assailants was made based on the descriptions given by
eyewitnesses to the shooting incident. Demetrio's relatives also
informed police investigators that Demetrio was heard having a
heated argument on the telephone with an unknown caller inside
his office at around 12:30 p.m. on June 16, 2007. Demetrio seemed
bothered and anxious after said telephone conversation.
On December 26, 2007, P/Supt. Mariano Nachor Manaog, Jr. of the
Laguna Criminal Investigation and Detection Team (CIDT-Laguna)
forwarded to the Calamba City Prosecution Office (CCPO) the
records of the investigation relative to Demetrio' s killing. Among the
documents submitted was a Sinumpaang Salaysay4dated December
26, 2007 executed by Reynaldo M. Leyva (Reynaldo), an alleged
eyewitness to the shooting of Demetrio. In his Sinumpaang
Salaysay, Reynaldo recounted:
SINUMPAANG SALAYSAY

AKO, si Reynaldo M. Leyva, may sapat na gulang, at nakatira sa
Brgy. Real Calamba City, matapos manumpa na naayon sa batas ay
nagsasalaysay ng mga sumusunod:
NA noong Hunyo 16, 2007 angoras sa pagitan ng 7:00 at 8:00 ng
gabi, ako noon ay papunta sa Mercury Drug sa may lumang
palengke Calamba upang bumili ng gamot para sa aking ubo
pagkatapos ko manggaling sa simbahan sa bayan ng Calamba,
Laguna. Habang binabaybay ko ang Gen. Lim St., Calamba City,
Laguna, papuntang Mercury Drug sa lumang palengke, ako ay
napadaan sa Morales-Alihan Tax Accounting Firm at doon ay
napansin ko ang isang motorsiklo na nakaparada na katabi ang
dalawang tao na nag-uusap. Agad kong nakilala ang dalawang tao
na iyon na sina Sandy Pamplona at Florencio Morales, Jr. Nakilala
ko sila dahil si Florencio Morales, Jr. ay ka-barangay ko sa Real
samantalang si Sandy Pamplona naman ay madalas ko rin makita
sa Real.
AKO ay nagpatuloy sa paglalakad papuntang Mercury Drug sa
lurnang palengke. Pagkatapos kong makabili ng gamot, ay nagpasya
ako na burnili ng okoy sa may Gen. Lim St., Calamba City. Habang
ako ay nandoon sa tindahan, may nakita akong kotseng kulay gray
na pumarada sa isang bahay na halos katapat ng tindahan ng okoy
na pinagbibilihan ko. Nakita ko ang isang babae na bumaba sa
sasakyan at pumasok sa gate ng bahay. Hang sandali pa, ang lalaki
na nasa kotse naman ang bumaba ngunit hindi siya pumasok sa
gate ng bahay. Namukhaan ko agad ang matandang lalaki na si
Atty. Demetrio Hilbero dahil maliwanag naman sa lugar na kanyang
kinatatayuan dahil sa ilaw sa bahay.
NA may bigla akong napansin na dalawang lalaki na nakasakay sa
motorsiklo na biglang lumapit kay Atty. Hilbero habang siya ay
nakatalikod. Isa sa mga lalaki ang biglang bumaba ng motorsiklo at
84
bumunot ng baril at pinaputukan si Atty. Hilbero. Nakita kong
burnagsak si Atty. Hilbero habang ang bumaril na lalaki ay agad
sumakay sa motorsiklo, samantalang ang lalaki na naiwan sa
motorsiklo ay nagpaputok rin ng baril pataas. Nakilala ko agad ang
nasabing lalaki na si Lorie Pamplona dahil siya ay kabarangay ko
din sa Real. Subalit ang lalaki na burnaril kay Atty. Hilbero ay hindi
ko kakilala bagamat nakita ko ang kanyang mukha at kung
makikita ko muli yung burnaril ay makikilala ko siya. Agad agad na
umalis ang motorsiklo na lulan ang dalawang lalaki at sinundan sila
ng isa pang motorsiklo na una kong nakita na nakaparada sa
Morales-Alihan Accounting Firm na nadaanan ko kanina papuntang
Mercury Drug pagkatapos silang senyasan ng bumaril kay Atty.
Hilbero. Sakay sa nasabing motorsiklo si Sandy Pamplona na
angkas naman si Florencio Morales, Jr.
NA, dahil sa pagkabigla sa aking nasaksihan ako ay hindi agad
nakakilos sa aking kinalagyan. Nakita ko na lang ang asawa ni Atty.
Hilbero na nagsisigaw at hurnihingi ng tulong. Ilang sandali pa, may
mga tao ng tumulong at isang tricycle ang dumating at doon
isinakay si Atty. Hilbero.
NA, dahil sa kalituhan ay agad agad ako na pumuntang palengke at
surnakay sa tricycle pauwi ng Real.
Nang ako ay makauwi sa Real, wala akong pinagsabihan na tao sa
aking nasaksihan. Natakot ako sa maaaring mangyari sa akin at sa
aking mga anak kung irereport ko ang nakita ko sa pulisya ng
Calamba.
NA, hindi ko nireport ang aking nasaksihan sa pulisya ng Calamba
sa kadahilanan na ako ay nangangamba na si Lorie Pamplona ay
maari akong balikan dahil alam ko na siya ay miyembro ng
KALADRO na hawak ng isang pulis Calamba.

Ngunit habang tumatagal ang araw ay ako ay nababagabag ng aking
kunsyensya. Lagi kong naiisip ang aking nasaksihan. Hanggang sa
ako'y magpasya na pumunta na sa pulisya at ireport ang mga
nakita ko. Pinili kong puntahan ang CIDG sa Cabuyao noong
Disyembre 26, 2007 at sinabi sa kanila ang aking nasaksihan. May
pinakitang mga larawan ang CIDG sa akin at doon ko nakilala at
itinuro ang lalaki na burnaril kay Atty. Hilbero. Sinabi sa akin ng
CIDG na ang pangalan ng aking itinuro ay si Primo Lopez na isa
ring miyembro ng KALADRO. Si Primo Lopez ang aking nakita na
bumaril kay Atty. Hilbero kasama sina Lorie Pamplona, Sandy
Pamplona, at Florencio Morales, Jr.
NA ginawa ko itong salaysay na ito upang tumestigo laban kina
Primo Lopez, Lorie Pamplona, Florencio Morales, Jr., at Sandy
Pamplona at iba pang sangkot sa pagpaslang kay Atty. Demetria
Hilbero.
The CCPO docketed the preliminary investigation of Demetrio's
killing as LS. No. 1428-07.
The Preliminary Investigation in I.S. No.1428-07 by the ORSP-
Laguna and the appeals before the DOJ
Acting on the voluntary inhibition of Prosecutor Miguel Noel T.
Ocampo of the CCPO, Regional State Prosecutor Ernesto C. Mendoza
officially designated Assistant Regional State Prosecutor Dominador
A. Leyros (Leyros) as the Acting City Prosecutor of Calamba City in
charge of LS. No. 1428-07.5 Prosecutors Oscar T. Co and Elnora L.
Nombrado of the Office of the Regional State Prosecutor of Region IV,
San Pablo City, Laguna (ORSP-Laguna) joined Prosecutor Leyros in
conducting the preliminary investigation.
85
In a Resolution6 dated May 6, 2008, the ORSP-Laguna stated that
there was well-founded belief that Primo and Lorenzo were
responsible for the murder of Demetrio and ordered that an
information for murder under Article 248 of the Revised Penal Code,
attended by the qualifying aggravating circumstance of night time,
be filed against them. In the same Resolution, the ORSP-Laguna
directed that the case against Sandy and respondent be dismissed
for lack of sufficient evidence. The ORSP-Laguna evaluated the
evidence before it, thus:
Primo Lopez was positively identified by the eyewitness Reynaldo M.
Leyva as the gunman who shot Atty. [Demetria] Hilbero, while x x x
Lorenzo Pamplona was positively identified by the same eyewitness
as the driver of the motorcycle where the gunman alighted before
shooting Atty. [Demetria] Hilbero and mounted the same after the
shooting and sped away.
The defense of alibi presented by Lorenzo Pamplona cannot
overcome the positive, clear and convincing identification made by
the eyewitness as narrated in his sworn statement. His self-serving
declaration that the witness has erred in identifying him affords him
no respite. Neither the sworn statement of his witness purportedly
seeing him and with him in a place other than the place of the
shooting at the given time nor the production and submission of
pictures and/or photographs depicting that he was in Baguio City
on the fateful day of the shooting incident could extricate him from
being indicted. They have no probative value to overcome the
testimony of the eyewitness pointing to his possible participation in
the commission of the crime. The quantum of evidence necessary to
put up a finding of probable cause is not proof beyond reasonable
doubt or moral certainty for purposes of charging the respondent in
criminal information before the courts. We can only restate the time
honored principle that alibi is inherently weak and easily contrived.

Furthermore, in the case before us there had been a positive
identification made by the witness that x x x Primo Lopez and
Lorenzo Pamplona are the perpetrators of the crime.
xxxx
With regard to x x x Sandy Pamplona and [respondent] Florencio
Morales, Jr., we find no evidence had been introduced that may tend
to establish their direct or indirect participation or cooperation in
the commission of the crime. Even if we assume that what was
stated by the witness Reynaldo M. Leyva in his sworn statement, in
so far as x x x Sandy and [respondent] Florencio were concerned,
was factual, still that would not be enough basis to include them in
the indictment in the absence of any other independent
evidence. For such alleged "thumb's-up sign" allegedly executed by
the gunman Primo Lopez immediately after shooting Atty. [Demetrio]
Hilbero, and which the witness perceived to be a signal intended for
the other two persons on board a motorcycle, that immediately sped
off does not necessarily or absolutely mean that the two persons
(Sandy and [respondent] Florencio) riding in tandem on a motorcycle
were co-plotters in the crime committed. We cannot reasonably draw
the inference from such events and conclusively assert that x x x
Sandy Pamplona and [respondent] Florencio Morales, Jr., who
happened to be there- if indeed they were there!, had anything to do
with the murder of Atty. [Demetrio] Hilbero. What we have here is at
best a suspicion, which is tantamount to doubt or skepticism. For
that alleged "thumb's-up sign" could be at risk to varying
interpretation. It could be taken as a boastful expression for
achieving an objective. It could also be a demonstration directed to
nobody or such did not happen at all and was just perceived to be
so. The speeding off of the other motorcycle after the shooting
incident is just but a natural reaction of persons fleeing from
danger. It is noteworthy to mention that other than the speeding off
86
of the other motorcycle, which was allegedly boarded by x x x Sandy
and [respondent] Florencio, no evidence was proffered to show that
the latter participated or conspired before, during and after the
commission of the crime of murder against Atty. [Demetrio] Hilbero.
One could always speculate, however, but it is not evidence.
Lastly, the evidence for the prosecution in its entirety strongly
implies the presence of all the elements of the crime of Murder
perpetrated by x x x Primo Lopez and Lorenzo Pamplona.
Accordingly, an Information7 for murder against Primo and Lorenzo
was filed before the Regional Trial Court (RTC) of Calamba City on
May 15, 2008, docketed as Criminal Case No. 15782-2008-C.
Petitioner challenged before the DOJ the Resolution dated May 6,
2008 of the ORSP-Laguna in LS. No. 1428-07 insofar as it found no
sufficient evidence to indict Sandy and respondent for the murder of
Demetrio. Primo and Lorenzo likewise assailed before the DOJ the
same Resolution of the ORSP-Laguna for finding that there was
probable cause to charge them for the murder of Demetrio.
The DOJ, through Secretary Raul M. Gonzalez (Gonzalez), issued a
Resolution8 dated March 18, 2009, which (a) granted the appeal of
Primo and Lorenzo and denied the appeal of petitioner; (b) reversed
and set aside the Resolution dated May 6, 2008 of the ORSP-Laguna
in I.S. No. 1428-07; and (c) directed the ORSP-Laguna to withdraw
the Information against Primo and Lorenzo filed with the R TC and
inform the DOJ of the action taken. DOJ Secretary Gonzalez
reasoned in his Resolution that:
Culled from the records, it is undeniable that the entire case of the
[petitioner] rests upon the statement of alleged eyewitness Reynaldo

Leyva. Simply put, without his statement, there is nothing to hold
[Primo, Lorenzo, Sandy, and respondent] for trial.
Thus, the bone of contention is whether or not such statement of
Reynaldo Leyva is sufficient for purposes of indicting [Primo,
Lorenzo, Sandy, and respondent].
After a thorough evaluation of the evidence on record, this Office is
not convinced that probable cause exists to indict [Primo, Lorenzo,
Sandy, and respondent] for the offense levelled against them.
While it is true that positive identification ordinarily prevails over
alibi, it admits of qualifications as held in the case of People v.
Ondalok, to wit:
"Positive identification where categorical and consistent and without
any showing of ill motive on the part of the eyewitness testifying on
the matter prevails over the alibi and denial which if not
substantiated by clear and convincing evidence are negative and
self-serving evidence undeserving of weight in law." (G.R. Nos.
95682-83, May 27, 1997)
In the instant case, [Primo, Lorenzo, Sandy, and respondent] allege
that Reynaldo Leyva not only works for the [petitioner] but a relative
as well. In addition, they claimed that said witness has an ax to
grind against Florencio Morales, Sr. [father of respondent] the latter
having impounded his motorcycle for having been involved in a
crime.
Such allegations are imputations of motive on the part of the said
witness to lie and the failure of the [petitioner] to refute the same
bodes ill to the credibility of his witness. Had said witness really
87
been present at the time of the incident, had he really been a relative
and at the employ of the [petitioner], it behoves this Office why he
did not rush to the aid of the victim even after the assailants had
already left, why he waited more than six (6) months before corning
out with what he supposedly know.
In addition, there appears to be other pieces of evidence which had
they been presented, would either corroborate or damage the
statement of the said witness, among which is a picture from the
CIDG where [Primo] was supposed to have been identified from by
Reynaldo Leyva.
This Office is not oblivious to the jurisprudential declaration that "a
finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed
by the suspect" (Webb v. De Leon, 247 SCRA 652). However, we
should also be mindful that the instant case is for the crime of
murder, a non-bailable offense where a person stands to be deprived
of his liberty. If in the first place we are not certain that the person
committed the act imputed, it would not only be unwise but
downright reckless for us to indict him in court.
To the mind of this Office, the statement of Reynaldo Leyva still
leaves much to be desired with to convince us that [Primo, Lorenzo,
Sandy, and respondent] were the ones who committed the crime.
Petitioner filed with the DOJ a Motion for Declaration of Nullity of
the DOJ Resolution, or In the Alternative, For its
Reconsideration. Petitioner alleged in his Motion that neither he
9
nor his counsel were furnished a copy of DOJ Secretary Gonzalez's
Resolution dated March 18, 2009; petitioner only learned three days
earlier that the CCPO had long received a copy of said Resolution
(apparently forwarded by the ORSP-Laguna); and petitioner merely

photocopied the copy of said Resolution of the CCPO. According to
petitioner, there was a clandestine and deliberate design by some
operators at the DOJ to conceal from petitioner the issuance of DOJ
Secretary Gonzalez's Resolution dated March 18, 2009, which
invalidated the said Resolution. In the alternative, petitioner sought
reconsideration of DOJ Secretary Gonzalez's Resolution dated March
18, 2009 because: (a) based on Reynaldo's testimony during the
preliminary investigation before the ORSP-Laguna, Primo, Lorenzo,
Sandy, and respondent were companions and confederates in the
perpetration of the murder of Demetrio; (b) the preliminary
investigation was not a trial on the merits; (c) Primo, Lorenzo,
Sandy, and respondent were all positively identified; (d) the
allegations of Primo, Lorenzo, Sandy, and respondent that Reynado
is a relative of petitioner, worked for petitioner, and had an ax to
grind against respondent's father, were baseless and
unsubstantiated; (e) Reynaldo's supposed delay in coming forward
as eyewitness did not affect his credibility as he explained that it
was because he feared for his life and the safety of his family; (t)
Reynaldo's behavior after witnessing the murder of
Demetrio, i.e., failing to aid Demetrio and waiting six months before
coming forward, was natural as there is no standard form of human
behavioral response to a strange or frightful experience; (g) the
allegations of Primo, Lorenzo, Sandy, and respondent were purely
evidentiary, which should be tested in a full-blown trial; (h) the
appeals of Primo and Lorenzo, who were fugitives from justice,
should have been dismissed; and (i) there was no basis for
dismissing the criminal complaint against Primo, Lorenzo, Sandy,
and respondent without any evaluation of the issue of conspiracy.
Respondent, in his Comment & Opposition to Motion for
Reconsideration filed by Allan S. Hilbero, 10 defended DOJ Secretary
Gonzalez's Resolution dated March 18, 2009. Respondent contended
that Reynaldo's averments in his Sinumpaang Salaysay were lies
88
and fabrications. Respondent presented for the first time the Kusang
Loob na Salaysay dated March 7, 2008 executed by Lydia M. Leyva-
Alcaide (Lydia), purportedly Reynaldo's sister, who claimed that a
certain Jesus Bengco repeatedly visited Lydia's home trying to
convince Lydia's husband to present himself as an eyewitness to the
killing of Demetrio in exchange for money, but Lydia's husband
refused; if Lydia's husband truly witnessed the killing of Demetria,
he would not hesitate to come forward as a witness since Demetrio
was their relative; Reynaldo was convinced to testify and identify
Primo, Lorenzo, Sandy, and respondent as Demetrio's killers
because Demetrio was their relative and Reynaldo received a sum of
money; and Lydia was aware that Reynaldo had a grudge against
respondent's family because respondent's father refused to help
Reynaldo when Reynaldo's tricycle was impounded. Respondent
additionally asserted that Reynaldo's statements on the killing of
Demetrio were insufficient to hold Sandy and respondent liable for
the crime, as their mere presence at the scene, assuming it to be
true, was not evidence of conspiracy with the killers.
The DOJ, this time through Acting Secretary Agnes VST De
Vanadera (De Vanadera), in its Resolution dated September 30,
2009, granted petitioner's motion for reconsideration and set aside
DOJ Secretary Gonzalez's Resolution dated March 18, 2009. Acting
DOJ Secretary De Vanadera held that petitioner and/or his counsel
were indeed not furnished with a copy of DOJ Secretary Gonzalez's
Resolution dated March 18, 2009, which amounts to a denial of
petitioner's right to file a motion for reconsideration. Nevertheless,
Acting DOJ Secretary De Vanadera deemed it best to disregard the
procedural issue, and dwell on the actual merits of the case, thus:
Clearly, the DOJ resolution [dated March 18, 2009] dwelt on the
evaluation and interpretation of the probative value of the testimony
of eyewitness Reynaldo Leyva even if such matter is not within the

ambit of the prosecution's duty of finding probable cause. The
matter is certainly evidentiary in nature and is best addressed to the
trial court whose proximate contact with witnesses places it in a
more competent position to discriminate between true and false
testimony.
Perforce, we are not in the position to depart from the settled rule
that positive identification, when categorical and consistent on the
part of the eyewitness, prevails over the defense of alibi and
denial (People v. Dela Tonga, 534 SCRA 135 [2007]). As between the
self-serving testimony of the accused [(Primo, Lorenzo, Sandy, and
respondent)], and the positive identification by the prosecution
witnesses, the latter deserves greater credence (People v.
Ducabo, 534 SCRA 458 [2007]). Indeed, a witness who testifies that
an event occurred is more credible and trustworthy than a witness
who testifies to the non-happening of such event. An eyewitness'
account is sterling since its accuracy and authenticity may be
tested. In contrast, denials and alibi are inherently weak defenses
for they are easy to concoct and difficult to disprove. Even if we
assume for argument's sake that eyewitness Reynaldo Leyva's
statement is tainted by improper motive, still, it is incumbent upon
[Primo, Lorenzo, Sandy, and respondent] to show by clear and
convincing evidence that their alibis and denials are feasible in the
present case. Otherwise, their defenses cannot stand against the
positive testimony of eyewitness Reynaldo Leyva. Likewise, [Primo,
Lorenzo, Sandy, and respondent's] denials must be buttressed by
strong evidence of non-culpability in order to merit credibility.
Priscinding (sic) from these premises, [Primo, Lorenzo, Sandy, and
respondent] have certainly failed to discharge such burden.
Moreover, it must be admitted that we overlooked the fact that the
criminal information against x x x the persons of Primo Lopez and
Lorenzo Pamplona was already filed with the Regional Trial Court of
89
Calamba City, Laguna, and the corresponding warrants of arrest
against them were already issued by said court. The said warrants
of arrest were issued upon a judicial determination of probable
cause by the judge assigned to handle the case. The finding of
probable cause made by a judge is independent of any
pronouncement in regard to probable cause made by the public
prosecutor in the preliminary investigation. With this in mind,
judicial determination of probable cause made by the judge should
be accorded with respect and should not be disturbed as a matter of
courtesy. On this score alone, the petitions for review of Primo Lopez
and Lorenzo Pamplona must necessarily fail.
Again, we respect the doctrine enunciated in the case of Crespo v.
Mogul (G.R. No. L-53373, June 30, 1987) that:
"In order therefore to avoid such a situation whereby the opinion of
the Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far
as practicable, refrain from entertaining a petition for review or appeal
from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the
determination the Court. "
As regards Sandy Pamplona and [respondent] Florencio Morales, Jr.
who were earlier cleared by the Office of the Regional State
Prosecutor of Region IV for insufficiency of evidence, we find that
there exists probable cause to indict them for murder. It is
incontrovertible that a crime has been committed and the only
question that remains unanswered would be the identity of the
perpetrators. This fact was established by eyewitness Reynaldo
Leyva when he positively identified x x x Pamplona and [respondent]
as among the perpetrators.

In this case, [Primo, Lorenzo, Sandy, and respondent] appear to
have conspired with each other in the commission of the crime. x x x
xxxx
A revisit of the statement of the eyewitness reveals that [respondent
and Sandy] were not mere bystanders at the scene of the crime but,
rather, they were active participants whose actions were indicative of
a meeting of the minds towards a common criminal goal. They acted
as lookouts to ensure the execution of the crime and the
identification of the victim. It is highly unusual for mere bystanders
to wait for the victim at the scene of the crime before its occurrence,
stay there without budging from their positions while the crime is
being executed and then finally leave the crime scene only after the
crime was consummated and upon a signal from the gunman for
them to flee. This theory of conspiracy by [petitioner] was further
reinforced by the action of [respondent and Sandy] in fleeing from
the crime scene together with Primo Lopez, the gunman, and
Lorenzo Pamplona, riding in tandem in two motorcycles, at the same
time and in the same direction. From all indications, [Primo,
Lorenzo, Sandy, and respondent] acted in a synchronized and
coordinated manner in carrying out the criminal enterprise, thus
evincing the existence of conspiracy among them. 11
Acting DOJ Secretary De Vanadera decreed in the end:
WHEREFORE, premises considered, the motion for reconsideration
is hereby GRANTED. The DOJ resolution [dated March 18, 2009]
(Resolution 212, series of 2009) is hereby RECONSIDERED and SET
ASIDE. Accordingly, the Office of the Regional State Prosecutor of
Region IV, San Pablo City, is directed to file the necessary
information for murder against x x x Primo Lopez, Lorenzo
Pamplona, [respondent] Florencio Morales, Jr. and Sandy Pamplona,
90
should the information filed earlier against x x x Primo Lopez and
Lorenzo Pamplona was already withdrawn, otherwise, to cause the
amendment thereof to include x x x Sandy Pamplona and
[respondent] Florencio Morales, Jr. in the information as co-
accused, and report the action taken hereon within ten (10) days
from receipt hereof. 12
In compliance with Acting DOJ Secretary De Vanadera's Resolution
dated September 30, 2009, Assistant City Prosecutor Joyce B.
Martinez-Barut filed before the RTC a Motion to Admit Amended
Information13 in Criminal Case No. 15782-2008-C. The Amended
Information also charged Sandy and respondent for the murder of
Demetrio:
AMENDED INFORMATION
The undersigned Assistant City Prosecutor-Designate accuses
PRIMO LOPEZ y JAVIER, LORENZO P AMPLONA y MANA GA alias
LORIE, FLORENCIO MORALES, JR. and SANDY PAMPLONA [y
MAIQUEZ], of the crime of Murder committed as follows:
That on or about 8:00 p.m. of 16 June 2007, at Gen. Lim St.,
Calamba City, and within the jurisdiction of this Honorable Court,
the above-named accused conspiring and confederating, without
justifiable cause, with intent to kill, treachery and abuse of superior
strength, did then and there intentionally, willfully, unlawfully, and
feloniously shoot Atty. Demetrio L. Hilbero causing the death of the
latter, to the damage and prejudice of the heirs of the said victim.
That in the commission of the offense, the qualifying circumstances
of treachery and abuse of superior strength were attendant. 14

In its Order 15 dated December 2, 2009, the RTC admitted the
Amended Information and ordered the issuance of warrant of arrest
against Primo, Lorenzo, Sandy, and respondent. The Warrant of
Arrest16 for the four named accused was subsequently issued on
June 10, 2010.
Respondent's Special Civil Action
for Certiorari under Rule 65 of the
Rules of Court in CA-G.R. SP No.
111191 before the Court of Appeals
Respondent assailed Acting DOJ Secretary De Vanadera' s
Resolution dated September 30, 2009 directly before the Court of
Appeals via a Petition for Certiorari17under Rule 65 of the Revised
Rules of Court, without first filing a motion for reconsideration of the
said resolution. Respondent's Petition was docketed as CA-G.R. SP
No. 111191.
Respondent explained that he dispensed with the filing of a motion
for reconsideration before the DOJ because that would just be an
exercise in futility. Respondent argued that Acting DOJ Secretary De
Vanadera's Resolution dated September 30, 2009 was "a patent
nullity rendered in excess of or want of jurisdiction; the [question]
being raised having been duly raised and erroneously passed upon
by the [DOJ]; and there [being] an extreme urgency of resolving the
issues raised as the [respondent] will surely be deprived of due
process and liberty since an Information will be railroaded and the
warrant of arrest issued without properly determining probable
cause."18Respondent pointed out that Acting DOJ Secretary De
Vanadera acted without or in excess of her jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction,
in still finding probable cause to indict respondent for the murder of
91
Demetrio even when Reynaldo's Sinumpaang Salaysay was duly
refuted by his sister Lydia's Kusang Loob na Salaysay. 19
Petitioner, in his Comment, 20 prayed for the outright dismissal of
respondent's Petition due to the latter's failure to file a motion for
reconsideration of Acting DOJ Secretary De Vanadera's Resolution
dated September 30, 2009, when the filing of such a motion was a
condition precedent for a petition for certiorari under Rule 65 of the
Revised Rules of Court. Petitioner likewise pointed out that if
respondent's motion for reconsideration was denied, respondent still
had the remedy of an appeal to the Office of the President (OP).
Alternatively, petitioner insisted that Acting DOJ Secretary De
Vanadera did not commit grave abuse of discretion in finding
probable cause to charge respondent, along with Primo, Lorenzo,
and Sandy, for the murder of Demetrio. Petitioner posited that
Lydia's Kusang Loob na Salaysay deserved no probative value since
it was never presented during the preliminary investigation, as it
was executed only after the preliminary investigation had been
submitted for resolution.
On June 7, 2011, the Court of Appeals rendered its Decision. On
procedural issues, the appellate court adjudged that the filing of a
motion for reconsideration may be dispensed with in this case
because "there [was] an urgent necessity for the resolution of the
question and any further delay would prejudice the interests of the
Government or of the [respondent]" and "public interest [was]
involved."21
The Court of Appeals likewise ruled in respondent's favor on the
substantive issues, finding grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of Acting DOJ Secretary De
Vanadera in her issuance of the Resolution dated September 30,
2009 considering that there was not enough evidence to establish

that respondent conspired with Primo, Lorenzo, and Sandy to kill
Demetrio. The appellate court opined that:
There is conspiracy when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. The essence of conspiracy is the unity of action and
purpose. When there is conspiracy, the act of one is the act of
all (Rosie Quidet vs. People of the Philippines, G.R. No. 170289, April
8, 2010.)
It should be remembered nonetheless that conspiracy is not
presumed. Like the physical acts constituting the crime itself,
the elements of conspiracy must be proven beyond reasonable
doubt. While conspiracy need not be established by direct evidence,
for it may be inferred from the conduct of the accused before, during
and after the commission of the crime, all taken together,
however, the evidence therefor must reasonably be strong
enough to show a community of criminal design.(Hermenegildo
M. Magcusi v. The Hon. Sandiganbayan, G.R. No. L-101545 January
3, 1995.)
In order to hold an accused liable by reason of conspiracy, he must
be shown to have performed an overt act in pursuance or in
furtherance of conspiracy. (People of the Philippines v. Jessie
Ballesta, G.R. No. 181632 September 25, 2008.) The raison detre for
the law requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has
never ceased to be equivocal; and this is necessarily so, irrespective
of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or
before any fragment of the crime itself has been committed, and this
is so for the reason that so long as the equivocal quality remains,
92
no one can say with certainty what the intent of the accused
is. (Felix Rait v. People of the Philippines, G.R. No. 180425 July 31,
2008.)
[Respondent] Morales has been thrown into a conspiracy net with
Primo Lopez and Lorenzo Pamplona for no evident reason except
that he happened to be in the scene of the crime. The [petitioner]
ought to be reminded that mere presence at the scene of the
incident, knowledge of the plan and acquiescence thereto are
not sufficient grounds to hold a person liable as a
conspirator. (People of the Philippines v. Jessie Ballesta,
supra.) Also, We are not in agreement with the September 30, 2009
ruling of the DOJ that the theory of conspiracy "was further
reinforced by the action of [respondent] Morales and [Sandy] in
fleeing from the crime scene together with x x x Primo Lopez, x x x,
and Lorenzo Pamplona, x x x, at the same time and the same
direction." In determining whether conspiracy exists, it is not
sufficient that the attack be joint and simultaneous for
simultaneousness does not of itself demonstrate the
concurrence of will or unity of action and purpose. It cannot be
used as basis. (Rosie Quidet v. People of the Philippines, supra.)
Looking at the facts on record, it is very patent that criminal intent
cannot be inferred from the actuations of [respondent] Morales on
the day that Atty. Demetrio Hilbero was assailed. Otherwise, a
person may be indicted for a crime even when he is doing merely the
most innocent acts. This is a dangerous doctrine. It is,
consequently, clear that a grave abuse of discretion was committed
by the then Acting Secretary of Justice in issuing the challenged
Resolution of September 30, 2009.22
The dispositive portion of the Court of Appeals Decision reads:

WHEREFORE, premises considered, the petition is partly
GRANTED. The Resolution relative to LS. No. 1428-07 issued by the
Department of Justice on September 30, 2009 is hereby MODIFIED.
The order directing the filing of a necessary information for murder
against Florencio Morales, Jr. or to amend an existing information to
include him as co-accsued is REVERSED and SET ASIDE. Let
Florencio Morales, Jr. be DROPPED by the Regional Trial Court of
Calamba City, Branch 37, as a party in Criminal Case No. 15782-
08-C.23
Petitioner filed a Motion for Reconsideration 24 of the foregoing
judgment of the Court of Appeals.
Sandy also filed before the Court of Appeals a Motion (For Leave of
Court to Intervene),25 praying that he be allowed to intervene in CA-
G.R. SP No. 111191 and that his attached pleading-in-intervention
be admitted. In his Intervention, Sandy claimed that the evidence
presented against respondent, which the Court of Appeals deemed
inadequate to support a finding of probable cause to charge
respondent for murder, was the very same evidence against him, so
he asked of the appellate court to likewise apply to him its Decision
dated June 7, 2011, in so far as favorable to him, by ordering the
RTC to drop Sandy as an accused in Criminal Case No. 15782-2008-
C.
In a Resolution dated September 14, 2011, 26 the Court of Appeals
denied for lack of merit petitioner's Motion for Reconsideration of its
Decision dated June 7, 2011 and Sandy's Motion (For Leave of Court
to Intervene).
Respondent, in the meantime, filed with the Court of Appeals a
Motion to Furnish the Regional Trial Court with Copy of the Decision
and Resolution. 27 On October 7, 2011, the appellate court sent a
93
Notice of Judgment dated June 7, 2011 and Notice of Resolution
dated September 14, 2011 to the RTC of Calamba City, Branches 35
and 37.28
On November 24, 2011, respondent filed a Manifestation29 before the
Court of Appeals relaying that the RTC, acting upon respondent's
motion and over the objection of the prosecution, issued a
Resolution 30dated October 17, 2011 in Criminal Case No. 15782-
2008-C which already excluded respondent from the charge for the
murder of Demetrio. The RTC, declaring that the findings and
conclusion of the Court of Appeals in its Decision dated June 7,
2011 in CA-G.R. SP No. 111191 was binding upon it, accordingly
resolved as follows:
WHEREFORE, premises considered, the Motion to
Resolve "Manifestation with Omnibus Motion - to Drop Florencio
Morales, Jr. as accused in Criminal Case No. 15782-08-C dated June
16, 2011" is hereby GRANTED. Let the name of accused Florencio
Morales, Jr. be dropped from the herein case, the warrant of arrest
dated 2 December 2009, and from the hold departure or watch list
order of the Department of Justice and/or Bureau of Immigration.
In the same Manifestation before the Court of Appeals, respondent
moved that the CCPO and/or Assistant City Prosecutor Edizer J.
Resurrecion be ordered to explain or show cause why they should
not be cited in contempt for defying the Decision dated June 7, 2011
of the appellate court when they opposed his exclusion from
Criminal Case No. 15782-2008-C.
The Court of Appeals, in its Resolution31 dated January 19, 2012,
simply noted respondent's aforementioned Manifestation since its
Decision dated June 7, 2011 and Resolution dated September 14,

2011 were already the subject of a Petition for Review filed before
this Court.
The Present Petition
Petitioner raises the following issues and errors for review of the
Court:
ONE: RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
GIVING DUE COURSE TO RESPONDENT FLORENCIO MORALES
JR.'S PETITION DESPITE THE VERY GLARING AND SERIOUS
PROCEDURAL DEFECTS IN SAID RESPONDENT'S PETITION,
NAMELY:
(1) SAID RESPONDENT FAILED TO IMPLEAD THE OFFICE OF
SOLICITOR GENERAL AS COUNSEL FOR THE DEPARTMENT OF
JUSTICE (DOJ);
(2) SAID RESPONDENT FAILED TO FILE A MOTION FOR
RECONSIDERATION BEFORE THE DEPARTMENT OF JUSTICE.32
TWO: THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING
THAT PETITIONER (sic) DOJ SECRETARY GRAVELY ABUSED ITS
DISCRETION IN FINDING PROBABLE CAUSE FOR THE CRIME OF
MURDER AGAINST RESPONDENT FLORENCIO MORALES, JR.33
THREE: THE RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN DROPPING THE NAME OF RESPONDENT
FLORENCIO MORALES, JR. FROM THE INFORMATION, GIVEN
THAT SAID RESPONDENT COURT OF APPEALS NEVER TOUCHED,
94
LET ALONE EVER DISPUTED, THE FINDINGS OF PROBABLE
CAUSE RENDERED BY THE REGIONAL TRIAL COURT.34
FOURTH: RESPONDENT COURT OF APPEALS SERIOUSLY ERRED
IN GRANTING AFFIRMATIVE RELIEF TO RESPONDENT-ACCUSED
FLORENCIO MORALES, JR. WHO WAS (AND UNTIL NOW) A
FUGITIVE FROM JUSTICE, AND AS SUCH, HAS ABSOLUTELY NO
PERSONALITY NOR ANY RIGHT TO ASK FOR ANY AFFIRMATIVE
RELIEF FROM RESPONDENT COURT OF APPEALS.35
Respondent, in his Comment filed on March 23, 2012,36 countered
the petition with these arguments:
I.
THE COURT OF APPEALS, THE DEPARTMENT OF JUSTICE THRU
JUSTICE SECRETARY RAUL M. GONZALEZ AND THE PANEL OF
PROSECUTORS CORRECTLY RULED AND DID NOT COMMIT
GRAVE ABUSE OF DISCRETION OR ACTED IN EXCESS OR WANT
OF JURISDICTION IN ORDERING THE DISMISSAL OF THE CASE
FOR WANT OF EVIDENCE AGAINST THE RESPONDENT
FLORENCIO MORALES, JR.
II.
THE PETITIONER AND HIS FABRICATED AND DISCREDITED
WITNESS WERE NOT ABLE TO ESTABLISH ANY IOTA OR
EVIDENCE TO SHOW AND PROVE THAT FLORENCIO MORALES,
JR. IS A CO-CONSPIRATOR IN THE SHOOTING OF THE VICTIM.
THE MERE PRESENCE OF THE RESPONDENT FLORENCIO
MORALES, JR. ASSUMING THAT TO BE TRUE DOES NOT MAKE
HIM A CO-CONSPIRA TOR.37

III.
THE DECISION OF THE HONORABLE COURT OF APPEALS IN THE
CASE OF "LUISITO Q. GONZALES, ET AL. VS. ACTING SECRETARY
OF JUSTICE AGNES VST DE VANADERA, ET AL.," WHICH
DECISION OF THE COURT OF APPEALS IS IN ALL FOURS WITH
THE FACTUAL SETTINGS IN THE CASE AT BAR SHOULD BE
APPLIED IN THE CASE AT BAR. 38
IV.
THE ATTACHMENTS SUBMITTED BY THE PETITIONER HILBERO
IN HIS PLEADINGS, SPECIALLY BEFORE THE DEPARTMENT OF
JUSTICE EVEN SHOWS THAT THE ALLEGED EYE WITNESS
REYNALDO LEYVA IS FABRICATING AND LYING WHEN HE
CLAIMED THAT HE WAS ABLE TO IDENTIFY THE GUNMAN.39
V.
THE ELEMENTS OF THE CRIME OF MURDER WAS NEVER
ESTABLISHED EVEN ON PRELIMINARY INVESTIGATION.40
VI.
THE ACTING SECRETARY DE VANADERA COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR WANT OF
JURISDICTION IN CHARGING THE FOUR ACCUSED, SPECIALLY
THE PETITIONER HEREIN ABSENT THE AGGRAVATING
CIRCUMSTANCE OF NIGHTIME, TREACHERY AND ABUSE OF
SUPERIOR STRENGTH WHICH ARE NOT PRESENT IN THE CASE
AT BAR AS PRESENTED BY THE LONE FABRICATED
EYEWITNESS.41
95
VII.
THE PETITIONER AND HIS COUNSEL ARE GUILTY OF "FORUM
SHOPPING" FOR WHICH THE PRESENT PETITION AND THE
PETITION FILED WITH THE COURT OF APPEALS MUST BOTH BE
DISMISSED.42
VIII.
THE SOLICITOR GENERAL IS NOT A PARTY TO BE IMPLEADED AS
A PARTY IN THE CASE AT BAR.
IX.
THE RESPONDENT COMPLIED WITH THE PROCEDURAL RULES
AND IS NOT A FUGITIVE FROM JUSTICE.43
X.
THE REGIONAL TRIAL COURT FINDING OF PROBABLE CAUSE
FOR THE ISSUANCE OF A WARRANT OF ARREST WAS BASED ON
THE ERRONEOUS FINDINGS OF THEN ACTING SECRETARY
AGNES VST DEV AN AD ERA, THUS, CLEARLY THERE WAS NO
JUDICIAL FINDINGS OF PROBABLE CAUSE FOR THE ISSUANCE
OF A WARRANT OF ARREST WHICH WAS ACTUALLY SET ASIDE
BY THE COURT A QUO IN ITS SUBSEQUENT ORDER.44
The Court, at the outset, finds no merit in petitioner's assertion that
respondent's failure to implead the Office of the Solicitor General
(OSG) as a public respondent in his Petition for Certiorari in CA-G.R.
SP No. 111191 before the Court of Appeals and the lack of

participation of the OSG in the said proceedings as counsel for the
DOJ warrant the outright dismissal of CA-G.R. SP No. 111191.
As petitioner himself pointed out, the OSG merely represents the
government, its agencies and instrumentalities, and its officials and
agents, and generally acts as the government's counsel in any
litigation, proceeding, investigation, or matter requiring the services
of a lawyer.45 The OSG is not the actual party in any of the cases it
handles in representation of the government. Therefore, respondent
need not implead the OSG as a public respondent in CA-G.R. SP No.
111191.
Section 5, Rule 65 of the Revised Rules of Court further 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
96
parties. However, unless otherwise specifically directed by the
court, they shall not appear or participate in the proceedings
therein. (Emphases supplied.)
Irrefragably, the duty to appear for and defend Acting DOJ Secretary
De Vanadera's Resolution dated September 30, 2009 before the
Court of Appeals in CA-G.R. SP No. 111191 lay with petitioner, the
private respondent in said case, and his counsel; and not upon the
DOJ, the public respondent, and the OSG, as counsel of the DOJ.
The DOJ, whether per se or by counsel, was a nominal party and did
not have to actively participate in CA-G.R. SP No. 111191, unless
specifically directed by the Court of Appeals. In a Resolution dated
March 18, 2011, the Court of Appeals simply noted the
Manifestation 46of the OSG that it was not filing a memorandum in
CA-G.R. SP No. 111191 on behalf of the DOJ since it had no
participation therein.
Nonetheless, the Court agrees with petitioner that the Court of
Appeals should have dismissed respondent's Petition for Certiorari in
CA-G.R. SP No. 111191 for being the wrong remedy. The proper
remedies respondent should have availed himself to assail Acting
DOJ Secretary De Vanadera's Resolution dated September 30, 2009
was to file a motion for reconsideration of said Resolution with the
DOJ and, in case such motion is denied, then to file an appeal
before the OP.
A petition for certiorari under Rule 65 of the Revised Rules of Court
is a special civil action that may be resorted to only in the absence of
appeal or any plain, speedy, and adequate remedy in the ordinary
course of law. 47 It is adopted to correct errors of jurisdiction
committed by the lower court or quasi-judicial agency, or when
there is grave abuse of discretion on the part of such court or agency
amounting to lack or excess of jurisdiction. An extraordinary

remedy, a petition for certiorari may be filed only if appeal is not
available. If appeal is available, an appeal must be taken even if the
ground relied upon is grave abuse of discretion.48
Memorandum Circular (MC) No. 58,49 issued by the OP on June 30,
1993, clearly identifies the instances when appeal from or a petition
for review of the decisions, orders, or resolutions of the Secretary of
Justice on preliminary investigations of criminal cases may be filed
before the OP:
In the interest of the speedy administration of justice, the guidelines
enunciated in Memorandum Circular No. 1266 (4 November 1983)
on the review by the Office of the President of
resolutions/orders/decisions issued by the Secretary of Justice
concerning preliminary investigations of criminal cases are
reiterated and clarified.
No appeal from or petition for review of decisions/orders/
resolutions of the Secretary of Justice on preliminary investigations
of criminal cases shall be entertained by the Office of the
President, except those involving offenses punishable
by reclusion perpetua to death wherein new and material issues
are raised which were not previously presented before the
Department of Justice and were not ruled upon in the subject
decision/order/resolution, in which case the President may order
the Secretary of Justice to reopen/review the case, provided, that,
the prescription of the offense is not due to lapse within six (6)
months from notice of the questioned resolution/order/decision,
and provided further, that, the appeal or petition for review is filed
within thirty (30) days from such notice. (Emphasis supplied.)
In Acting DOJ Secretary De Vanadera's Resolution dated September
30, 2009, she found probable cause that respondent was criminally
97
liable, together with Primo, Lorenzo, and Sandy, for the murder of
Demetrio. Murder is a crime punishable by reclusion perpetua to
death. 50 Moreover, Lydia's Kusang Loob na Salaysay was not
presented during the preliminary investigation nor the appeal
proceedings before DOJ Secretary Gonzalez and, therefore, could not
have been considered by the ORSP-Laguna in its Resolution dated
May 6, 2008 nor by DOJ Secretary Gonzalez in his Resolution dated
March 18, 2009.1âwphi1 Respondent mentioned for the first time
and attached Lydia's Kusang Loob na Salaysay to his Comment and
Opposition to petitioner's Motion for Reconsideration of DOJ
Secretary Gonzalez's Resolution dated March 18, 2009. Even then,
Acting DOJ Secretary De Vanadera's Resolution dated September
30, 2009 was silent as to Lydia's Kusang Loob na Salaysay. A
cursory reading of respondent's Petition for Certiorari in CA-G.R. SP
No. 111191 reveals that respondent fundamentally relied on
Lydia's Kusang Loob na Salaysay to refute eyewitness
Reynaldo's Sinumpaang Salaysay; and such was a new and material
issue, not previously ruled upon by the DOJ, which should have
been raised in an appeal before the OP rather than a Petition
for Certiorari before the Court of Appeals.
Based on MC No. 58, Acting DOJ Secretary De Vanadera's
Resolution dated September 30, 2009 is appealable administratively
to the Office of the President since the crime of murder, with which
respondent is charged, is punishable by reclusion perpetua to death.
From the Office of the President, the aggrieved party may file an
appeal with the Court of Appeals pursuant to Rule 43 of the Revised
Rules of Court.51
The Court further highlights the fact that respondent did not file a
motion for reconsideration of Acting DOJ Secretary De Vanadera's
Resolution dated September 30, 2009 prior to filing his Petition
for Certiorari in CA-G.R. SP No. 111191 before the Court of Appeals,

which was likewise fatal to the said Petition. Again, the
unquestioned rule in this jurisdiction is that certiorari will lie only if
there is no appeal or any other plain, speedy, and adequate remedy
in the ordinary course of law against the acts of the adverse party.
In the present case, the plain and adequate remedy of a motion for
reconsideration of Acting DOJ Secretary De Vanadera's Resolution
dated September 30, 2009 was available to respondent under
Section 13 of DOJ Department Circular No. 70, the National
Prosecution Service Rule on Appeal, dated July 3, 2000.52 The filing
of a motion for reconsideration is intended to afford public
respondent DOJ an opportunity to correct any actual or fancied
error attributed to it by way of a reexamination of the legal and
factual aspects of the case. Respondent's failure to file a motion for
reconsideration is tantamount to a deprivation of the right and
opportunity of the public respondent DOJ to cleanse itself of an
error unwittingly committed or to vindicate itself of an act unfairly
imputed.53
While there are well-recognized exceptions to the rule that a motion
for reconsideration is a condition sine qua non for the filing of a
petition for certiorari,54none applies to respondent's case. Contrary
to the findings of the Court of Appeals, respondent's claims that
Acting DOJ Secretary De Vanadera's Resolution dated September
30, 2009 was a "patent nullity rendered in excess of or want of
jurisdiction" and that there was "an extreme urgency of resolving the
issues raised as [respondent] will surely be deprived of due process
and liberty since an Information will be railroaded and the warrant
of arrest issued without properly determining probable
cause," 55 were unavailing.
Respondent failed to establish that Acting DOJ Secretary De
Vanadera committed grave abuse of discretion, amounting to lack or
excess of jurisdiction, in finding probable cause to charge him for
98
the murder of Demetrio. In Aguilar v. Department of Justice, 56 the
Court laid down the guiding principles in determining whether the
public prosecutor committed grave abuse of discretion in the
exercise of his/her function:
A public prosecutor's determination of probable cause - that is,
one made for the purpose of filing an information in court - is
essentially an executive function and, therefore, generally lies
beyond the pale of judicial scrutiny. The exception to this rule
is when such determination is tainted with grave abuse of
discretion and perforce becomes correctible through the
extraordinary writ of certiorari. It is fundamental that the
concept of grave abuse of discretion transcends mere
judgmental error as it properly pertains to a jurisdictional
aberration. While defying precise definition, grave abuse of
discretion generally refers to a "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction." Corollary, the
abuse of discretion must be patent and gross so as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law. To note,
the underlying principle behind the courts' power to review a
public prosecutor's determination of probable cause is to ensure
that the latter acts within the permissible bounds of his
authority or does not gravely abuse the same. This manner of
judicial review is a constitutionally-enshrined form of check and
balance which underpins the very core of our system of government.
As aptly edified in the recent case of Alberto v. CA:
It is well-settled that courts of law are precluded from disturbing the
findings of public prosecutors and the DOJ on the existence or non-
existence of probable cause for the purpose of filing criminal
informations, unless such findings are tainted with grave abuse of
discretion, amounting to lack or excess of jurisdiction. The rationale

behind the general rule rests on the principle of separation of
powers, dictating that the determination of probable cause for the
purpose of indicting a suspect is properly an executive function;
while the exception hinges on the limiting principle of checks and
balances, whereby the judiciary, through a special civil action
of certiorari, has been tasked by the present Constitution "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." x x x.
In the foregoing context, the Court observes that grave abuse of
discretion taints a public prosecutor's resolution if he
arbitrarily disregards the jurisprudential parameters of probable
cause. In particular, case law states that probable cause, for the
purpose of filing a criminal information, exists when the facts are
sufficient to engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof. It
does not mean "actual and positive cause" nor does it import
absolute certainty. Rather, it is merely based on opinion and
reasonable belief and, as such, does not require an inquiry into
whether there is sufficient evidence to procure a conviction; it is
enough that it is believed that the act or omission complained of
constitutes the offense charged. As pronounced in Reyes v.
Pearlbank Securities, Inc.:
A finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed
by the suspects. It need not be based on clear and convincing
evidence of guilt, not on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining probable cause, the
average man weighs facts and circumstances without resorting to
the calibrations of the rules of evidence of which he has no technical
99
knowledge. He relies on common sense. What is determined is
whether there is sufficient ground to engender a well-founded belief
that a crime has been committed, and that the accused is probably
guilty thereof and should be held for trial. It does not require an
inquiry as to whether there is sufficient evidence to secure a
conviction.
Apropos thereto, for the public prosecutor to determine if there
exists a well-founded belief that a crime has been committed, and
that the suspect is probably guilty of the same, the elements of the
crime charged should, in all reasonable likelihood, be present. This
is based on the principle that every crime is defined by its elements,
without which there should be, at the most, no criminal offense.
(Emphases supplied.)
Acting DOJ Secretary De Vanadera, in her Resolution dated
September 30, 2009, found probable cause to charge respondent for
the murder of Demetrio based on eyewitness Reynaldo's credible
narration of the circumstances surrounding the shooting of
Demetrio and his positive identification of the culprits. Aside from
respondent's general and sweeping allegations, there was no basis
for concluding that Secretary De Vanadera issued her Resolution
dated September 30, 2009 capriciously, whimsically, arbitrarily, or
despotically, by reason of passion and hostility, as to constitute
abuse of discretion; and that such abuse of discretion was so patent
and gross that it was tantamount to lack or excess of jurisdiction.
Respondent had already discussed and argued extensively his
defenses to the charge of murder, which, as Acting DOJ Secretary
De Vanadera correctly ruled, should be properly threshed out and
ventilated in the course of the trial of Criminal Case No. 15782-
2008-C before the RTC. Thus, the Court of Appeals should not have
disturbed the findings of Acting DOJ Secretary De Vanadera in her
Resolution dated September 30, 2009, absent a clear showing of
 100

grave abuse of discretion, amounting to lack or excess of

jurisdiction.

WHEREFORE, in view of the foregoing, the Petition

is GRANTED. The Decision dated June 7, 2011 of the Court of
Appeals in CA-G.R. SP No. 111191 is REVERSED and SET ASIDE.
The Resolution dated September 30, 2009 of the Department of
Justice in LS. No. 1428-07 directing the inclusion of Florencio A.
Morales, Jr. as an accused in the Information for the murder of Atty.
Demetrio L. Hilbero is REINSTATED.

SO ORDERED.

G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God;
He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and
she heard voices coming from inside the bamboo. "Oh North
Wind! North Wind! Please let us out!," the voices said. She
pecked the reed once, then twice. All of a sudden, the bamboo
cracked and slit open. Out came two human beings; one was a
male and the other was a female. Amihan named the man
"Malakas" (Strong) and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In
particular, does the law recognize the changes made by a physician
using scalpel, drugs and counseling with regard to a person’s sex?
May a person successfully petition for a change of name and sex
appearing in the birth certificate to reflect the result of a sex
reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio
filed a petition for the change of his first name and sex in his birth
certificate in the Regional Trial Court of Manila, Branch 8. The
101
petition, docketed as SP Case No. 02-105207, impleaded the civil
registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of
Manila to the spouses Melecio Petines Silverio and Anita Aquino
Dantes on April 4, 1962. His name was registered as "Rommel
Jacinto Dantes Silverio" in his certificate of live birth (birth
certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a female" and that
he had always identified himself with girls since childhood. 1 Feeling
trapped in a man’s body, he consulted several doctors in the United
States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform
himself to a "woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to
be married. He then sought to have his name in his birth certificate
changed from "Rommel Jacinto" to "Mely," and his sex from "male"
to "female."
An order setting the case for initial hearing was published in the
People’s Journal Tonight, a newspaper of general circulation in
Metro Manila, for three consecutive weeks.3 Copies of the order were
sent to the Office of the Solicitor General (OSG) and the civil
registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as
witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of
petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to
the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition
would be more in consonance with the principles of justice
and equity. With his sexual [re-assignment], petitioner, who
has always felt, thought and acted like a woman, now
possesses the physique of a female. Petitioner’s misfortune to
be trapped in a man’s body is not his own doing and should
not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or]
prejudice will be caused to anybody or the community in
granting the petition. On the contrary, granting the petition
102
would bring the much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization of their dreams.
Finally, no evidence was presented to show any cause or
ground to deny the present petition despite due notice and
publication thereof. Even the State, through the [OSG] has
not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the
petition and ordering the Civil Registrar of Manila to change
the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto"
to MELY and petitioner’s gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru
the OSG, filed a petition for certiorari in the Court of Appeals. 6 It
alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in
favor of the Republic. It ruled that the trial court’s decision lacked
legal basis. There is no law allowing the change of either name or
sex in the certificate of birth on the ground of sex reassignment
through surgery. Thus, the Court of Appeals granted the Republic’s
petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in
his birth certificate is allowed under Articles 407 to 413 of the Civil
Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his
petition for change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of
a female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and
entities for purposes of identification.11 A change of name is a
privilege, not a right.12 Petitions for change of name are controlled by
statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname
without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error
Law). In particular, Section 1 of RA 9048 provides:
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
103
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.
RA 9048 now governs the change of first name.14 It vests the power
and authority to entertain petitions for change of first name to the
city or municipal civil registrar or consul general concerned. Under
the law, therefore, jurisdiction over applications for change of first
name is now primarily lodged with the aforementioned
administrative officers. The intent and effect of the law is to exclude
the change of first name from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently
denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily
administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first
name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. –
The petition for change of first name or nickname may be
allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to
write or pronounce;

(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his
sex reassignment. He intended to make his first name compatible
with the sex he thought he transformed himself into through
surgery. However, a change of name does not alter one’s legal
capacity or civil status.18 RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioner’s first name for his declared purpose
may only create grave complications in the civil registry and the
public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by
the use of his true and official name.20 In this case, he failed to
show, or even allege, any prejudice that he might suffer as a result
of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the
change of petitioner’s first name was not within that court’s primary
jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an
improper remedy because the proper remedy was administrative,
that is, that provided under RA 9048. It was also filed in the wrong
venue as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it had
no merit since the use of his true and official name does not
prejudice him at all. For all these reasons, the Court of Appeals
104
correctly dismissed petitioner’s petition in so far as the change of his
first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As
To Sex On the Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth certificate
is a legal issue and the court must look to the statutes.21 In this
connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 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, RA 9048 removed from the ambit of Rule
108 of the Rules of Court the correction of such errors.22 Rule 108
now applies only to substantial changes and corrections in entries in
the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical
error" is:
SECTION 2. Definition of Terms. – As used in this Act, the
following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake
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
misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only
by reference to other existing record or
records: Provided, however, That no correction must
involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied)
Under RA 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.
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:24
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.
105
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth.25 However,
no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground of sex
reassignment.
To correct simply means "to make or set aright; to remove the faults
or error from" while to change means "to replace something with
something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error.
All entries therein, including those corresponding to his first name
and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry
of certain acts (such as legitimations, acknowledgments of
illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as
legal separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and
nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation
(that is, the sum total of capacities and incapacities) of a person in
view of his age, nationality and his family membership.27
The status of a person in law includes all his personal
qualities and relations, more or less permanent in nature,

not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The
comprehensive term status… include such matters as the
beginning and end of legal personality, capacity to have rights
in general, family relations, and its various aspects, such as
birth, legitimation, adoption, emancipation, marriage, divorce,
and sometimes even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family
relations. It is a part of a person’s legal capacity and civil status. In
this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of
civil status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The
declaration of the physician or midwife in attendance at the
birth or, in default thereof, the declaration of either parent of
the newborn child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local
civil registrar not later than thirty days after the birth, by the
physician or midwife in attendance at the birth or by either
parent of the newborn child.
In such declaration, the person above mentioned shall certify
to the following facts: (a) date and hour of birth; (b) sex and
106
nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother
alone; (d) civil status of parents; (e) place where the infant
was born; and (f) such other data as may be required in the
regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record
of the facts as they existed at the time of birth.29Thus, the sex of a
person is determined at birth, visually done by the birth attendant
(the physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at the time
of his or her birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary
legislative intent. The words "sex," "male" and "female" as used in
the Civil Register Law and laws concerning the civil registry (and
even all other laws) should therefore be understood in their common
and ordinary usage, there being no legislative intent to the contrary.
In this connection, sex is defined as "the sum of peculiarities of
structure and function that distinguish a male from a female" 32 or
"the distinction between male and female."33Female is "the sex that
produces ova or bears young"34 and male is "the sex that has organs
to produce spermatozoa for fertilizing ova."35 Thus, the words "male"
and "female" in everyday understanding do not include persons who
have undergone sex reassignment. Furthermore, "words that are
employed in a statute which had at the time a well-known meaning
are presumed to have been used in that sense unless the context
compels to the contrary."36 Since the statutory language of the Civil
Register Law was enacted in the early 1900s and remains

unchanged, it cannot be argued that the term "sex" as used then is
something alterable through surgery or something that allows a
post-operative male-to-female transsexual to be included in the
category "female."
For these reasons, while petitioner may have succeeded in altering
his body and appearance through the intervention of modern
surgery, no law authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis for his petition
for the correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or
Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It believed that
allowing the petition would cause no harm, injury or prejudice to
anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. First, even the trial court itself
found that the petition was but petitioner’s first step towards his
eventual marriage to his male fiancé. However, marriage, one of the
most sacred social institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential requisites
is the legal capacity of the contracting parties who must be a male
and a female.38 To grant the changes sought by petitioner will
substantially reconfigure and greatly alter the laws on marriage and
family relations. It will allow the union of a man with another man
who has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal
107
Code40 and the presumption of survivorship in case of calamities
under Rule 131 of the Rules of Court,41 among others. These laws
underscore the public policy in relation to women which could be
substantially affected if petitioner’s petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or
court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the law." However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to
apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it
choose to do so, to determine what guidelines should govern the
recognition of the effects of sex reassignment. The need for
legislative guidelines becomes particularly important in this case
where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of
first name and for correction or change of entries in the civil
registry, where they may be filed, what grounds may be invoked,
what proof must be presented and what procedures shall be
observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and
sex to conform with his reassigned sex, it has to enact legislation
laying down the guidelines in turn governing the conferment of that
privilege.
It might be theoretically possible for this Court to write a protocol on
when a person may be recognized as having successfully changed
his sex. However, this Court has no authority to fashion a law on
that matter, or on anything else. The Court cannot enact a law
where no law exists. It can only apply or interpret the written word
of its co-equal branch of government, Congress.
 108

Petitioner pleads that "[t]he unfortunates are also entitled to a life of

happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the
commonly recognized parameters of social convention and that, at
least for them, life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public policy to be addressed
solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

[ G.R. No. 166676, September 12, 2008 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. JENNIFER
B. CAGANDAHAN, RESPONDENT.
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
Cagandahan's 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 Certificate [2] 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,
109
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 Philippines-Philippine General Hospital. Dr. Sionzon issued a
medical certificate stating that respondent's 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 respondent's uterus is not fully
developed because of lack of female hormones, and that she
has no monthly period. He further testified that respondent's
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 respondent's 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
 110

presented to the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that petitioner's
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:
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW
CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE,
WHILE RESPONDENT'S 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.

a) By changing the name from Jennifer Cagandahan to JEFF The OSG contends that the petition below is fatally defective for non-
CAGANDAHAN; and compliance with Rules 103 and 108 of the Rules of Court because
while the local civil registrar is an indispensable party in a petition
b) By changing the gender from female to MALE. for cancellation or correction of entries under Section 3, Rule 108 of
the Rules of Court, respondent's petition before the court a quo did
It is likewise ordered that petitioner's school records, voter's registry, not implead the local civil registrar.[5] The OSG further contends
baptismal certificate, and other pertinent records are hereby respondent's petition is fatally defective since it failed to state that
amended to conform with the foregoing corrected data. respondent is a bona fide resident of the province where the petition
was filed for at least three (3) years prior to the date of such filing as
SO ORDERED.[3] mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The
Thus, this petition by the Office of the Solicitor General (OSG) OSG argues that Rule 108 does not allow change of sex or gender in
seeking a reversal of the abovementioned ruling. the birth certificate and respondent's claimed medical condition
known as CAH does not make her a male.[7]
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION On the other hand, respondent counters that although the Local
CONSIDERING THAT: Civil Registrar of Pakil, Laguna was not formally named a party in
I. the Petition for Correction of Birth Certificate, nonetheless the Local
Civil Registrar was furnished a copy of the Petition, the Order to
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF publish on December 16, 2003 and all pleadings, orders or
COURT HAVE NOT BEEN COMPLIED WITH; AND, processes in the course of the proceedings,[8] respondent is actually
a male person and hence his birth certificate has to be corrected to
 111

reflect his true sex/gender,[9] change of sex or gender is allowed (30) days prior to an election nor within four (4) months after the
under Rule 108,[10] and respondent substantially complied with the last publication of the notice.
requirements of Rules 103 and 108 of the Rules of Court.[11]
SEC. 4. Hearing. - Any interested person may appear at the hearing
Rules 103 and 108 of the Rules of Court provide: and oppose the petition. The Solicitor General or the proper
Rule 103 provincial or city fiscal shall appear on behalf of the Government of
CHANGE OF NAME the Republic.

SECTION 1. Venue. - A person desiring to change his name shall SEC. 5. Judgment. - Upon satisfactory proof in open court on the
present the petition to the Regional Trial Court of the province in date fixed in the order that such order has been published as
which he resides, [or, in the City of Manila, to the Juvenile and directed and that the allegations of the petition are true, the court
Domestic Relations Court]. shall, if proper and reasonable cause appears for changing the name
of the petitioner, adjudge that such name be changed in accordance
SEC. 2. Contents of petition. - A petition for change of name shall be with the prayer of the petition.
signed and verified by the person desiring his name changed, or
some other person on his behalf, and shall set forth: SEC. 6. Service of judgment. - Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar of the
(a) That the petitioner has been a bona fide resident of the province municipality or city where the court issuing the same is situated,
where the petition is filed for at least three (3) years prior to the date who shall forthwith enter the same in the civil register.
of such filing;
Rule 108
(b) The cause for which the change of the petitioner's name is CANCELLATION OR CORRECTION OF ENTRIES
sought; IN THE CIVIL REGISTRY

(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
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
 112

cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal prayed for. In either case, a certified copy of the judgment shall be
separations; (e) judgments of annulments of marriage; (f) judgments served upon the civil registrar concerned who shall annotate the
declaring marriages void from the beginning; (g) legitimations; (h) same in his record.
adoptions; (i) acknowledgments of natural children; (j) The OSG argues that the petition below is fatally defective for non-
naturalization; (k) election, loss or recovery of citizenship; (l) civil compliance with Rules 103 and 108 of the Rules of Court because
interdiction; (m) judicial determination of filiation; (n) voluntary respondent's petition did not implead the local civil registrar. Section
emancipation of a minor; and (o) changes of name. 3, Rule 108 provides that the civil registrar and all persons who
have or claim any interest which would be affected thereby shall be
SEC. 3. Parties. - When cancellation or correction of an entry in the made parties to the proceedings. Likewise, the local civil registrar is
civil register is sought, the civil registrar and all persons who have required to be made a party in a proceeding for the correction of
or claim any interest which would be affected thereby shall be made name in the civil registry. He is an indispensable party without
parties to the proceeding. whom no final determination of the case can be had.[12] Unless all
possible indispensable parties were duly notified of the proceedings,
SEC. 4. Notice and publication. - Upon the filing of the petition, the the same shall be considered as falling much too short of the
court shall, by an order, fix the time and place for the hearing of the requirements of the rules.[13] The corresponding petition should also
same, and cause reasonable notice thereof to be given to the persons implead as respondents the civil registrar and all other persons who
named in the petition. The court shall also cause the order to be may have or may claim to have any interest that would be affected
published once a week for three (3) consecutive weeks in a thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the
newspaper of general circulation in the province. Rules of Court which states that courts shall construe the Rules
liberally to promote their objectives of securing to the parties a just,
SEC. 5. Opposition. - The civil registrar and any person having or speedy and inexpensive disposition of the matters brought before it.
claiming any interest under the entry whose cancellation or We agree that there is substantial compliance with Rule 108 when
correction is sought may, within fifteen (15) days from notice of the respondent furnished a copy of the petition to the local civil
petition, or from the last date of publication of such notice, file his registrar.
opposition thereto.
The determination of a person's sex appearing in his birth certificate
SEC. 6. Expediting proceedings. - The court in which the is a legal issue and the court must look to the statutes. In this
proceedings is brought may make orders expediting the proceedings, connection, Article 412 of the Civil Code provides:
and may also grant preliminary injunction for the preservation of the ART. 412. No entry in a civil register shall be changed or corrected
rights of the parties pending such proceedings. without a judicial order.
Together with Article 376[16] of the Civil Code, this provision was
SEC. 7. Order. - After hearing, the court may either dismiss the amended by Republic Act No. 9048[17] in so far as clerical or
petition or issue an order granting the cancellation or correction 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
113
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-man's 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
subject's 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, respondent's 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.
114
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 respondent's
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 one's
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 respondent's 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 respondent's congenital
 115

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 respondent's 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 court's grant of
respondent's change of name from Jennifer to Jeff implies a change
of a feminine name to a masculine name. Considering the
consequence that respondent's change of name merely recognizes
his preferred gender, we find merit in respondent's change of name.
Such a change will conform with the change of the entry in his birth
certificate from female to male.

WHEREFORE, the Republic's 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.

G.R. No. 97336 February 19, 1993
GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T.
GONZALES, respondents.
DAVIDE, JR., J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court
seeking to review and set aside the Decision1 of the respondent
Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the
16 October 1939 Decision of Branch 38 (Lingayen) of the Regional
Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented
is the issue of whether or not damages may be recovered for a
breach of promise to marry on the basis of Article 21 of the Civil
Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of
counsel, filed with the aforesaid trial court a complaint2 for damages
against the petitioner for the alleged violation of their agreement to
get married. She alleges in said complaint that: she is twenty-two
(22) years old, single, Filipino and a pretty lass of good moral
character and reputation duly respected in her community;
petitioner, on the other hand, is an Iranian citizen residing at the
Lozano Apartments, Guilig, Dagupan City, and is an exchange
student taking a medical course at the Lyceum Northwestern
Colleges in Dagupan City; before 20 August 1987, the latter courted
and proposed to marry her; she accepted his love on the condition
that they would get married; they therefore agreed to get married
after the end of the school semester, which was in October of that
116
year; petitioner then visited the private respondent's parents in
Bañaga, Bugallon, Pangasinan to secure their approval to the
marriage; sometime in 20 August 1987, the petitioner forced her to
live with him in the Lozano Apartments; she was a virgin before she
began living with him; a week before the filing of the complaint,
petitioner's attitude towards her started to change; he maltreated
and threatened to kill her; as a result of such maltreatment, she
sustained injuries; during a confrontation with a representative of
the barangay captain of Guilig a day before the filing of the
complaint, petitioner repudiated their marriage agreement and
asked her not to live with him anymore and; the petitioner is already
married to someone living in Bacolod City. Private respondent then
prayed for judgment ordering the petitioner to pay her damages in
the amount of not less than P45,000.00, reimbursement for actual
expenses amounting to P600.00, attorney's fees and costs, and
granting her such other relief and remedies as may be just and
equitable. The complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim,3 petitioner admitted only the
personal circumstances of the parties as averred in the complaint
and denied the rest of the allegations either for lack of knowledge or
information sufficient to form a belief as to the truth thereof or
because the true facts are those alleged as his Special and
Affirmative Defenses. He thus claimed that he never proposed
marriage to or agreed to be married with the private respondent; he
neither sought the consent and approval of her parents nor forced
her to live in his apartment; he did not maltreat her, but only told
her to stop coming to his place because he discovered that she had
deceived him by stealing his money and passport; and finally, no
confrontation took place with a representative of the barangay
captain. Insisting, in his Counterclaim, that the complaint is
baseless and unfounded and that as a result thereof, he was
unnecessarily dragged into court and compelled to incur expenses,

and has suffered mental anxiety and a besmirched reputation, he
prayed for an award of P5,000.00 for miscellaneous expenses and
P25,000.00 as moral damages.
After conducting a pre-trial on 25 January 1988, the trial court
issued a Pre-Trial Order4 embodying the stipulated facts which the
parties had agreed upon, to wit:
1. That the plaintiff is single and resident (sic) of
Bañaga, Bugallon, Pangasinan, while the defendant is
single, Iranian citizen and resident (sic) of Lozano
Apartment, Guilig, Dagupan City since September 1,
1987 up to the present;
2. That the defendant is presently studying at Lyceum
Northwestern, Dagupan City, College of Medicine,
second year medicine proper;
3. That the plaintiff is (sic) an employee at Mabuhay
Luncheonette , Fernandez Avenue, Dagupan City since
July, 1986 up to the present and a (sic) high school
graduate;
4. That the parties happened to know each other when
the manager of the Mabuhay Luncheonette, Johhny
Rabino introduced the defendant to the plaintiff on
August 3, 1986.
After trial on the merits, the lower court, applying Article 21 of the
Civil Code, rendered on 16 October 1989 a decision5 favoring the
private respondent. The petitioner was thus ordered to pay the latter
117
damages and attorney's fees; the dispositive portion of the decision
reads:
IN THE LIGHT of the foregoing consideration, judgment
is hereby rendered in favor of the plaintiff and against
the defendant.
1. Condemning (sic) the defendant to pay the plaintiff
the sum of twenty thousand (P20,000.00) pesos as
moral damages.
2. Condemning further the defendant to play the
plaintiff the sum of three thousand (P3,000.00) pesos
as atty's fees and two thousand (P2,000.00) pesos at
(sic) litigation expenses and to pay the costs.
3. All other claims are denied.6
The decision is anchored on the trial court's findings and
conclusions that (a) petitioner and private respondent were lovers,
(b) private respondent is not a woman of loose morals or
questionable virtue who readily submits to sexual advances, (c)
petitioner, through machinations, deceit and false pretenses,
promised to marry private respondent, d) because of his persuasive
promise to marry her, she allowed herself to be deflowered by him,
(e) by reason of that deceitful promise, private respondent and her
parents — in accordance with Filipino customs and traditions —
made some preparations for the wedding that was to be held at the
end of October 1987 by looking for pigs and chickens, inviting
friends and relatives and contracting sponsors, (f) petitioner did not
fulfill his promise to marry her and (g) such acts of the petitioner,
who is a foreigner and who has abused Philippine hospitality, have
offended our sense of morality, good customs, culture and

traditions. The trial court gave full credit to the private respondent's
testimony because, inter alia, she would not have had the temerity
and courage to come to court and expose her honor and reputation
to public scrutiny and ridicule if her claim was false.7
The above findings and conclusions were culled from the detailed
summary of the evidence for the private respondent in the foregoing
decision, digested by the respondent Court as follows:
According to plaintiff, who claimed that she was a
virgin at the time and that she never had a boyfriend
before, defendant started courting her just a few days
after they first met. He later proposed marriage to her
several times and she accepted his love as well as his
proposal of marriage on August 20, 1987, on which
same day he went with her to her hometown of
Bañaga, Bugallon, Pangasinan, as he wanted to meet
her parents and inform them of their relationship and
their intention to get married. The photographs Exhs.
"A" to "E" (and their submarkings) of defendant with
members of plaintiff's family or with plaintiff, were
taken that day. Also on that occasion, defendant told
plaintiffs parents and brothers and sisters that he
intended to marry her during the semestral break in
October, 1987, and because plaintiff's parents thought
he was good and trusted him, they agreed to his
proposal for him to marry their daughter, and they
likewise allowed him to stay in their house and sleep
with plaintiff during the few days that they were in
Bugallon. When plaintiff and defendant later returned
to Dagupan City, they continued to live together in
defendant's apartment. However, in the early days of
October, 1987, defendant would tie plaintiff's hands
118
and feet while he went to school, and he even gave her
medicine at 4 o'clock in the morning that made her
sleep the whole day and night until the following day.
As a result of this live-in relationship, plaintiff became
pregnant, but defendant gave her some medicine to
abort the fetus. Still plaintiff continued to live with
defendant and kept reminding him of his promise to
marry her until he told her that he could not do so
because he was already married to a girl in Bacolod
City. That was the time plaintiff left defendant, went
home to her parents, and thereafter consulted a lawyer
who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother,
and a barangay tanod sent by the barangay captain
went to talk to defendant to still convince him to marry
plaintiff, but defendant insisted that he could not do so
because he was already married to a girl in Bacolod
City, although the truth, as stipulated by the parties at
the pre-trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that
after defendant had informed them of his desire to
marry Marilou, he already looked for sponsors for the
wedding, started preparing for the reception by looking
for pigs and chickens, and even already invited many
relatives and friends to the forthcoming wedding. 8
Petitioner appealed the trial court's decision to the respondent Court
of Appeals which docketed the case as CA-G.R. CV No. 24256. In his
Brief,9 he contended that the trial court erred (a) in not dismissing
the case for lack of factual and legal basis and (b) in ordering him to
pay moral damages, attorney's fees, litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the
challenged decision 10 affirming in toto the trial court's ruling of 16
October 1989. In sustaining the trial court's findings of fact,
respondent Court made the following analysis:
First of all, plaintiff, then only 21 years old when she
met defendant who was already 29 years old at the
time, does not appear to be a girl of loose morals. It is
uncontradicted that she was a virgin prior to her
unfortunate experience with defendant and never had
boyfriend. She is, as described by the lower court, a
barrio lass "not used and accustomed to trend of
modern urban life", and certainly would (sic) not have
allowed
"herself to be deflowered by the defendant if there was
no persuasive promise made by the defendant to marry
her." In fact, we agree with the lower court that plaintiff
and defendant must have been sweethearts or so the
plaintiff must have thought because of the deception of
defendant, for otherwise, she would not have allowed
herself to be photographed with defendant in public in
so (sic) loving and tender poses as those depicted in the
pictures Exhs. "D" and "E". We cannot believe,
therefore, defendant's pretense that plaintiff was a
nobody to him except a waitress at the restaurant
where he usually ate. Defendant in fact admitted that
he went to plaintiff's hometown of Bañaga, Bugallon,
Pangasinan, at least thrice; at (sic) the town fiesta on
February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a
beach party together with the manager and employees
of the Mabuhay Luncheonette on March 3, 1987 (p. 50,
tsn id.), and on April 1, 1987 when he allegedly talked
to plaintiff's mother who told him to marry her
119
daughter (pp. 55-56, tsn id.). Would defendant have
left Dagupan City where he was involved in the serious
study of medicine to go to plaintiff's hometown in
Bañaga, Bugallon, unless there was (sic) some kind of
special relationship between them? And this special
relationship must indeed have led to defendant's
insincere proposal of marriage to plaintiff,
communicated not only to her but also to her parents,
and (sic) Marites Rabino, the owner of the restaurant
where plaintiff was working and where defendant first
proposed marriage to her, also knew of this love affair
and defendant's proposal of marriage to plaintiff, which
she declared was the reason why plaintiff resigned
from her job at the restaurant after she had accepted
defendant's proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to be a
man of good moral character and must think so low
and have so little respect and regard for Filipino
women that he openly admitted that when he studied
in Bacolod City for several years where he finished his
B.S. Biology before he came to Dagupan City to study
medicine, he had a common-law wife in Bacolod City.
In other words, he also lived with another woman in
Bacolod City but did not marry that woman, just like
what he did to plaintiff. It is not surprising, then, that
he felt so little compunction or remorse in pretending
to love and promising to marry plaintiff, a young,
innocent, trustful country girl, in order to satisfy his
lust on her. 11
and then concluded:

In sum, we are strongly convinced and so hold that it
was defendant-appellant's fraudulent and deceptive
protestations of love for and promise to marry plaintiff
that made her surrender her virtue and womanhood to
him and to live with him on the honest and sincere
belief that he would keep said promise, and it was
likewise these (sic) fraud and deception on appellant's
part that made plaintiff's parents agree to their
daughter's living-in with him preparatory to their
supposed marriage. And as these acts of appellant are
palpably and undoubtedly against morals, good
customs, and public policy, and are even gravely and
deeply derogatory and insulting to our women, coming
as they do from a foreigner who has been enjoying the
hospitality of our people and taking advantage of the
opportunity to study in one of our institutions of
learning, defendant-appellant should indeed be made,
under Art. 21 of the Civil Code of the Philippines, to
compensate for the moral damages and injury that he
had caused plaintiff, as the lower court ordered him to
do in its decision in this case. 12
Unfazed by his second defeat, petitioner filed the instant petition on
26 March 1991; he raises therein the single issue of whether or not
Article 21 of the Civil Code applies to the case at bar. 13
It is petitioner's thesis that said Article 21 is not applicable because
he had not committed any moral wrong or injury or violated any
good custom or public policy; he has not professed love or proposed
marriage to the private respondent; and he has never maltreated
her. He criticizes the trial court for liberally invoking Filipino
customs, traditions and culture, and ignoring the fact that since he
is a foreigner, he is not conversant with such Filipino customs,
120
traditions and culture. As an Iranian Moslem, he is not familiar with
Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is
excusable or tolerable because of his Moslem upbringing; he then
alludes to the Muslim Code which purportedly allows a Muslim to
take four (4) wives and concludes that on the basis thereof, the trial
court erred in ruling that he does not posses good moral character.
Moreover, his controversial "common law life" is now his legal wife as
their marriage had been solemnized in civil ceremonies in the
Iranian Embassy. As to his unlawful cohabitation with the private
respondent, petitioner claims that even if responsibility could be
pinned on him for the live-in relationship, the private respondent
should also be faulted for consenting to an illicit arrangement.
Finally, petitioner asseverates that even if it was to be
assumed arguendo that he had professed his love to the private
respondent and had also promised to marry her, such acts would
not be actionable in view of the special circumstances of the case.
The mere breach of promise is not actionable. 14
On 26 August 1991, after the private respondent had filed her
Comment to the petition and the petitioner had filed his Reply
thereto, this Court gave due course to the petition and required the
parties to submit their respective Memoranda, which they
subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's
arguments in support of his thesis, it is clear that questions of fact,
which boil down to the issue of the credibility of witnesses, are also
raised. It is the rule in this jurisdiction that appellate courts will not
disturb the trial court's findings as to the credibility of witnesses,
the latter court having heard the witnesses and having had the
opportunity to observe closely their deportment and manner of
testifying, unless the trial court had plainly overlooked facts of

substance or value which, if considered, might affect the result of
the case. 15
Petitioner has miserably failed to convince Us that both the
appellate and trial courts had overlooked any fact of substance or
values which could alter the result of the case.
Equally settled is the rule that only questions of law may be raised
in a petition for review on certiorari under Rule 45 of the Rules of
Court. It is not the function of this Court to analyze or weigh all over
again the evidence introduced by the parties before the lower court.
There are, however, recognized exceptions to this rule. Thus,
in Medina vs.Asistio, Jr., 16 this Court took the time, again, to
enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely
on speculation, surmises or conjectures (Joaquin v.
Navarro, 93 Phil. 257 [1953]); (2) When the inference
made is manifestly mistaken, absurb or impossible
(Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is
a grave abuse of discretion (Buyco v. People, 95 Phil.
453 [1955]); (4) When the judgment is based on a
misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact
are conflicting (Casica v. Villaseca, L-9590 Ap. 30,
1957; unrep.) (6) When the Court of Appeals, in
making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both
appellate and appellee (Evangelista v. Alto Surety and
Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to
121
those of the trial court (Garcia v. Court of Appeals, 33
SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA
593 [1986]); (8) When the findings of fact are
conclusions without citation of specific evidence on
which they are based (Ibid.,); (9) When the facts set
forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondents
(Ibid.,); and (10) The finding of fact of the Court of
Appeals is premised on the supposed absence of
evidence and is contradicted by the evidence on record
(Salazar v. Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any
of the above quoted exceptions in this case. Consequently, the
factual findings of the trial and appellate courts must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not
an actionable wrong. 17 Congress deliberately eliminated from the
draft of the New Civil Code the provisions that would have made it
so. The reason therefor is set forth in the report of the Senate
Committees on the Proposed Civil Code, from which We quote:
The elimination of this chapter is proposed. That
breach of promise to marry is not actionable has been
definitely decided in the case of De Jesus vs.
Syquia. 18 The history of breach of promise suits in the
United States and in England has shown that no other
action lends itself more readily to abuse by designing
women and unscrupulous men. It is this experience
which has led to the abolition of rights of action in the

so-called Heart Balm suits in many of the American
states. . . . 19
This notwithstanding, the said Code contains a provision, Article 21,
which is designed to expand the concept of torts or quasi-delict in
this jurisdiction by granting adequate legal remedy for the untold
number of moral wrongs which is impossible for human foresight to
specifically enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the
sphere of wrongs defined or determined by positive law.
Fully sensible that there are countless gaps in the
statutes, which leave so many victims of moral wrongs
helpless, even though they have actually suffered
material and moral injury, the Commission has
deemed it necessary, in the interest of justice, to
incorporate in the proposed Civil Code the following
rule:
Art. 23. Any person who wilfully causes
loss or injury to another in a manner that
is contrary to morals, good customs or
public policy shall compensate the latter
for the damage.
An example will illustrate the purview of the foregoing
norm: "A" seduces the nineteen-year old daughter of
"X". A promise of marriage either has not been made,
or can not be proved. The girl becomes pregnant.
Under the present laws, there is no crime, as the girl is
above nineteen years of age. Neither can any civil
122
action for breach of promise of marriage be filed.
Therefore, though the grievous moral wrong has been
committed, and though the girl and family have
suffered incalculable moral damage, she and her
parents cannot bring action for damages. But under
the proposed article, she and her parents would have
such a right of action.
Thus at one stroke, the legislator, if the forgoing rule is
approved, would vouchsafe adequate legal remedy for
that untold number of moral wrongs which it is
impossible for human foresight to provide for
specifically in the statutes. 21
Article 2176 of the Civil Code, which defines a quasi-delict thus:
Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions
of this Chapter.
is limited to negligent acts or omissions and excludes the
notion of willfulness or intent. Quasi-delict, known in Spanish
legal treatises as culpa aquiliana, is a civil law concept
while torts is an Anglo-American or common law
concept. Torts is much broader than culpa aquiliana because
it includes not only negligence, but international criminal acts
as well such as assault and battery, false imprisonment and
deceit. In the general scheme of the Philippine legal system
envisioned by the Commission responsible for drafting the
New Civil Code, intentional and malicious acts, with certain

exceptions, are to be governed by the Revised Penal Code
while negligent acts or omissions are to be covered by Article
2176 of the Civil Code. 22 In between these opposite
spectrums are injurious acts which, in the absence of Article
21, would have been beyond redress. Thus, Article 21 fills
that vacuum. It is even postulated that together with Articles
19 and 20 of the Civil Code, Article 21 has greatly broadened
the scope of the law on civil wrongs; it has become much
more supple and adaptable than the Anglo-American law on
torts. 23
In the light of the above laudable purpose of Article 21, We are of the
opinion, and so hold, that where a man's promise to marry is in fact
the proximate cause of the acceptance of his love by a woman and
his representation to fulfill that promise thereafter becomes the
proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her
and that the promise was only a subtle scheme or deceptive device
to entice or inveigle her to accept him and to obtain her consent to
the sexual act, could justify the award of damages pursuant to
Article 21 not because of such promise to marry but because of the
fraud and deceit behind it and the willful injury to her honor and
reputation which followed thereafter. It is essential, however, that
such injury should have been committed in a manner contrary to
morals, good customs or public policy.
In the instant case, respondent Court found that it was the
petitioner's "fraudulent and deceptive protestations of love for and
promise to marry plaintiff that made her surrender her virtue and
womanhood to him and to live with him on the honest and sincere
belief that he would keep said promise, and it was likewise these
fraud and deception on appellant's part that made plaintiff's parents
agree to their daughter's living-in with him preparatory to their
123
supposed marriage." 24 In short, the private respondent surrendered
her virginity, the cherished possession of every single Filipina, not
because of lust but because of moral seduction — the kind
illustrated by the Code Commission in its example earlier adverted
to. The petitioner could not be held liable for criminal seduction
punished under either Article 337 or Article 338 of the Revised Penal
Code because the private respondent was above eighteen (18) years
of age at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be
applied in a breach of promise to marry where the woman is a victim
of moral seduction. Thus, in Hermosisima vs. Court of Appeals,25 this
Court denied recovery of damages to the woman because:
. . . we find ourselves unable to say that petitioner
is morally guilty of seduction, not only because he is
approximately ten (10) years younger than the
complainant — who was around thirty-six (36) years of
age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be
— when she became intimate with petitioner, then a
mere apprentice pilot, but, also, because the court of
first instance found that, complainant "surrendered
herself" to petitioner because, "overwhelmed by her
love" for him, she "wanted to bind" him by having a fruit
of their engagement even before they had the benefit of
clergy.
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted
at possible recovery if there had been moral seduction, recovery was
eventually denied because We were not convinced that such
seduction existed. The following enlightening disquisition and
conclusion were made in the said case:

The Court of Appeals seem to have overlooked that the
example set forth in the Code Commission's
memorandum refers to a tort upon a minor who had
been seduced. The essential feature is seduction, that
in law is more than mere sexual intercourse, or a
breach of a promise of marriage; it connotes essentially
the idea of deceit, enticement, superior power or abuse
of confidence on the part of the seducer to which the
woman has yielded (U.S. vs. Buenaventura, 27 Phil.
121; U.S. vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that
— such
To constitute seduction there must in all
cases be some sufficient promise or
inducement and the woman must yield
because of the promise or other
inducement. If she consents merely from
carnal lust and the intercourse is from
mutual desire, there is no seduction (43
Cent. Dig. tit. Seduction, par. 56) She
must be induced to depart from the path
of virtue by the use of some species of
arts, persuasions and wiles, which are
calculated to have and do have that
effect, and which result in her person to
ultimately submitting her person to the
sexual embraces of her seducer (27 Phil.
123).
And in American Jurisprudence we find:
124
On the other hand, in an action by the
woman, the enticement, persuasion or
deception is the essence of the injury; and
a mere proof of intercourse is insufficient
to warrant a recovery.
Accordingly it is not seduction where the
willingness arises out of sexual desire of
curiosity of the female, and the defendant
merely affords her the needed opportunity
for the commission of the act. It has been
emphasized that to allow a recovery in all
cases would tend to the
demoralization of the female sex, and
would be a reward for unchastity by
which a class of adventuresses would be
swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand
out that for one whole year, from 1958 to 1959, the
plaintiff-appellee, a woman of adult age, maintain
intimate sexual relations with appellant, with repeated
acts of intercourse. Such conduct is incompatible with
the idea of seduction. Plainly there is here
voluntariness and mutual passion; for had the
appellant been deceived, had she surrendered
exclusively because of the deceit, artful persuasions
and wiles of the defendant, she would not have again
yielded to his embraces, much less for one year,
without exacting early fulfillment of the alleged
promises of marriage, and would have cut short all

sexual relations upon finding that defendant did not
intend to fulfill his defendant did not intend to fulfill
his promise. Hence, we conclude that no case is made
under article 21 of the Civil Code, and no other cause
of action being alleged, no error was committed by the
Court of First Instance in dismissing the complaint. 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L.
Paras, who recently retired from this Court, opined that in a breach
of promise to marry where there had been carnal knowledge, moral
damages may be recovered:
. . . if there be criminal or moral seduction, but not if
the intercourse was due to mutual lust. (Hermosisima
vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-
14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56
(sic); Beatriz Galang vs. Court of Appeals, et al., L-
17248, Jan. 29, 1962). (In other words, if the CAUSE
be the promise to marry, and the EFFECT be the
carnal knowledge, there is a chance that there
was criminal or moral seduction, hence recovery of
moral damages will prosper. If it be the other way
around, there can be no recovery of moral damages,
because here mutual lust has intervened). . . .
together with "ACTUAL damages, should there be any, such
as the expenses for the wedding presentations (See
Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino 29 is also of the same persuasion:
125
It is submitted that the rule in Batarra
vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article in the Code. The
31
example given by the Code Commission is correct, if
there was seduction, not necessarily in the legal sense,
but in the vulgar sense of deception. But when the
sexual act is accomplished without any deceit or
qualifying circumstance of abuse of authority or
influence, but the woman, already of age, has
knowingly given herself to a man, it cannot be said
that there is an injury which can be the basis for
indemnity.
But so long as there is fraud, which is characterized by
willfulness (sic), the action lies. The court, however,
must weigh the degree of fraud, if it is sufficient to
deceive the woman under the circumstances, because
an act which would deceive a girl sixteen years of age
may not constitute deceit as to an experienced woman
thirty years of age. But so long as there is a wrongful
act and a resulting injury, there should be civil
liability, even if the act is not punishable under the
criminal law and there should have been an acquittal
or dismissal of the criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition
to the effect that granting, for argument's sake, that he did promise
to marry the private respondent, the latter is nevertheless also at
fault. According to him, both parties are in pari delicto; hence,
pursuant to Article 1412(1) of the Civil Code and the doctrine laid
down in Batarra vs. Marcos, 32 the private respondent cannot recover
damages from the petitioner. The latter even goes as far as stating

that if the private respondent had "sustained any injury or damage
in their relationship, it is primarily because of her own doing, 33 for:
. . . She is also interested in the petitioner as the latter
will become a doctor sooner or later. Take notice that
she is a plain high school graduate and a mere
employee . . . (Annex "C") or a waitress (TSN, p. 51,
January 25, 1988) in a luncheonette and without
doubt, is in need of a man who can give her economic
security. Her family is in dire need of financial
assistance. (TSN, pp. 51-53, May 18, 1988). And this
predicament prompted her to accept a proposition that
may have been offered by the petitioner. 34
These statements reveal the true character and motive of the
petitioner. It is clear that he harbors a condescending, if not
sarcastic, regard for the private respondent on account of the latter's
ignoble birth, inferior educational background, poverty and, as
perceived by him, dishonorable employment. Obviously then, from
the very beginning, he was not at all moved by good faith and an
honest motive. Marrying with a woman so circumstances could not
have even remotely occurred to him. Thus, his profession of love and
promise to marry were empty words directly intended to fool, dupe,
entice, beguile and deceive the poor woman into believing that
indeed, he loved her and would want her to be his life's partner. His
was nothing but pure lust which he wanted satisfied by a Filipina
who honestly believed that by accepting his proffer of love and
proposal of marriage, she would be able to enjoy a life of ease and
security. Petitioner clearly violated the Filipino's concept of morality
and brazenly defied the traditional respect Filipinos have for their
women. It can even be said that the petitioner committed such
deplorable acts in blatant disregard of Article 19 of the Civil Code
which directs every person to act with justice, give everyone his due
126
and observe honesty and good faith in the exercise of his rights and
in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws,
customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the
private respondent may not have been impelled by the purest of
intentions, she eventually submitted to the petitioner in sexual
congress not out of lust, but because of moral seduction. In fact, it
is apparent that she had qualms of conscience about the entire
episode for as soon as she found out that the petitioner was not
going to marry her after all, she left him. She is not, therefore,
in pari delicto with the petitioner. Pari delicto means "in equal fault;
in a similar offense or crime; equal in guilt or in legal fault." 35At
most, it could be conceded that she is merely in delicto.
Equity often interferes for the relief of the less guilty of
the parties, where his transgression has been brought
about by the imposition of undue influence of the party
on whom the burden of the original wrong principally
rests, or where his consent to the transaction was itself
procured by
fraud. 36
In Mangayao vs. Lasud, 37 We declared:
Appellants likewise stress that both parties being at
fault, there should be no action by one against the
other (Art. 1412, New Civil Code). This rule, however,
has been interpreted as applicable only where the fault
on both sides is, more or less, equivalent. It does not
apply where one party is literate or intelligent and the
 127

other one is not. (c.f. Bough vs. Cantiveros, 40 Phil.

209).

We should stress, however, that while We find for the private

respondent, let it not be said that this Court condones the
deplorable behavior of her parents in letting her and the petitioner
stay together in the same room in their house after giving approval
to their marriage. It is the solemn duty of parents to protect the
honor of their daughters and infuse upon them the higher values of
morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision,

the instant petition is hereby DENIED, with costs against the
petitioner.

SO ORDERED.

G.R. No. 175581 March 28, 2008
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179474
FELISA TECSON-DAYOT, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
DECISION
CHICO-NAZARIO, J.:
Before us are two consolidated petitions. G.R. No. 175581 and G.R.
No. 179474 are Petitions for Review under Rule 45 of the Rules of
Court filed by the Republic of the Philippines and Felisa Tecson-
Dayot (Felisa), respectively, both challenging the Amended
Decision1 of the Court of Appeals, dated 7 November 2006, in CA-
G.R. CV No. 68759, which declared the marriage between Jose
Dayot (Jose) and Felisa void ab initio.
The records disclose that on 24 November 1986, Jose and Felisa
were married at the Pasay City Hall. The marriage was solemnized
by Rev. Tomas V. Atienza.2 In lieu of a marriage license, Jose and
Felisa executed a sworn affidavit,3 also dated 24 November 1986,
attesting that both of them had attained the age of maturity, and
that being unmarried, they had lived together as husband and wife
for at least five years.
On 7 July 1993, Jose filed a Complaint4 for Annulment and/or
Declaration of Nullity of Marriage with the Regional Trial Court
(RTC), Biñan, Laguna, Branch 25. He contended that his marriage
with Felisa was a sham, as no marriage ceremony was celebrated
128
between the parties; that he did not execute the sworn affidavit
stating that he and Felisa had lived as husband and wife for at least
five years; and that his consent to the marriage was secured through
fraud.
In his Complaint, Jose gave his version of the events which led to
his filing of the same. According to Jose, he was introduced to Felisa
in 1986. Immediately thereafter, he came to live as a boarder in
Felisa’s house, the latter being his landlady. Some three weeks later,
Felisa requested him to accompany her to the Pasay City Hall,
ostensibly so she could claim a package sent to her by her brother
from Saudi Arabia. At the Pasay City Hall, upon a pre-arranged
signal from Felisa, a man bearing three folded pieces of paper
approached them. They were told that Jose needed to sign the
papers so that the package could be released to Felisa. He initially
refused to do so. However, Felisa cajoled him, and told him that his
refusal could get both of them killed by her brother who had learned
about their relationship. Reluctantly, he signed the pieces of paper,
and gave them to the man who immediately left. It was in February
1987 when he discovered that he had contracted marriage with
Felisa. He alleged that he saw a piece of paper lying on top of the
table at the sala of Felisa’s house. When he perused the same, he
discovered that it was a copy of his marriage contract with Felisa.
When he confronted Felisa, the latter feigned ignorance.
In opposing the Complaint, Felisa denied Jose’s allegations and
defended the validity of their marriage. She declared that they had
maintained their relationship as man and wife absent the legality of
marriage in the early part of 1980, but that she had deferred
contracting marriage with him on account of their age difference.5 In
her pre-trial brief, Felisa expounded that while her marriage to Jose
was subsisting, the latter contracted marriage with a certain Rufina
Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa filed

an action for bigamy against Jose. Subsequently, she filed an
administrative complaint against Jose with the Office of the
Ombudsman, since Jose and Rufina were both employees of the
National Statistics and Coordinating Board.6 The Ombudsman found
Jose administratively liable for disgraceful and immoral conduct,
and meted out to him the penalty of suspension from service for one
year without emolument.7
On 26 July 2000, the RTC rendered a Decision8 dismissing the
Complaint. It disposed:
WHEREFORE, after a careful evaluation and analysis of the
evidence presented by both parties, this Court finds and so holds
that the [C]omplaint does not deserve a favorable consideration.
Accordingly, the above-entitled case is hereby ordered DISMISSED
with costs against [Jose].9
The RTC ruled that from the testimonies and evidence presented,
the marriage celebrated between Jose and Felisa on 24 November
1986 was valid. It dismissed Jose’s version of the story as
implausible, and rationalized that:
Any person in his right frame of mind would easily suspect any
attempt to make him or her sign a blank sheet of paper. [Jose] could
have already detected that something was amiss, unusual, as they
were at Pasay City Hall to get a package for [Felisa] but it [was] he
who was made to sign the pieces of paper for the release of the said
package. Another indirect suggestion that could have put him on
guard was the fact that, by his own admission, [Felisa] told him that
her brother would kill them if he will not sign the papers. And yet it
took him, more or less, three months to "discover" that the pieces of
paper that he signed was [sic] purportedly the marriage contract.
129
[Jose] does not seem to be that ignorant, as perceived by this Court,
to be "taken in for a ride" by [Felisa.]
[Jose’s] claim that he did not consent to the marriage was belied by
the fact that he acknowledged Felisa Tecson as his wife when he
wrote [Felisa’s] name in the duly notarized statement of assets and
liabilities he filled up on May 12, 1988, one year after he discovered
the marriage contract he is now claiming to be sham and false.
[Jose], again, in his company I.D., wrote the name of [Felisa] as the
person to be contacted in case of emergency. This Court does not
believe that the only reason why her name was written in his
company I.D. was because he was residing there then. This is just
but a lame excuse because if he really considers her not his lawfully
wedded wife, he would have written instead the name of his sister.
When [Jose’s] sister was put into the witness stand, under oath, she
testified that she signed her name voluntarily as a witness to the
marriage in the marriage certificate (T.S.N., page 25, November 29,
1996) and she further testified that the signature appearing over the
name of Jose Dayot was the signature of his [sic] brother that he
voluntarily affixed in the marriage contract (page 26 of T.S.N. taken
on November 29, 1996), and when she was asked by the Honorable
Court if indeed she believed that Felisa Tecson was really chosen by
her brother she answered yes. The testimony of his sister all the
more belied his claim that his consent was procured through
fraud.10
Moreover, on the matter of fraud, the RTC ruled that Jose’s action
had prescribed. It cited Article 8711 of the New Civil Code which
requires that the action for annulment of marriage must be
commenced by the injured party within four years after the
discovery of the fraud. Thus:

That granting even for the sake of argument that his consent was
obtained by [Felisa] through fraud, trickery and machinations, he
could have filed an annulment or declaration of nullity of marriage
at the earliest possible opportunity, the time when he discovered the
alleged sham and false marriage contract. [Jose] did not take any
action to void the marriage at the earliest instance. x x x.12
Undeterred, Jose filed an appeal from the foregoing RTC Decision to
the Court of Appeals. In a Decision dated 11 August 2005, the Court
of Appeals found the appeal to be without merit. The dispositive
portion of the appellate court’s Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.13
The Court of Appeals applied the Civil Code to the marriage between
Jose and Felisa as it was solemnized prior to the effectivity of the
Family Code. The appellate court observed that the circumstances
constituting fraud as a ground for annulment of marriage under
Article 8614 of the Civil Code did not exist in the marriage between
the parties. Further, it ruled that the action for annulment of
marriage on the ground of fraud was filed beyond the prescriptive
period provided by law. The Court of Appeals struck down Jose’s
appeal in the following manner:
Nonetheless, even if we consider that fraud or intimidation was
employed on Jose in giving his consent to the marriage, the action
for the annulment thereof had already prescribed. Article 87 (4) and
(5) of the Civil Code provides that the action for annulment of
marriage on the ground that the consent of a party was obtained by
fraud, force or intimidation must be commenced by said party
within four (4) years after the discovery of the fraud and within four
(4) years from the time the force or intimidation ceased. Inasmuch
as the fraud was allegedly discovered by Jose in February, 1987
130
then he had only until February, 1991 within which to file an action
for annulment of marriage. However, it was only on July 7, 1993
that Jose filed the complaint for annulment of his marriage to
Felisa.15
Likewise, the Court of Appeals did not accept Jose’s assertion that
his marriage to Felisa was void ab initio for lack of a marriage
license. It ruled that the marriage was solemnized under Article
7616 of the Civil Code as one of exceptional character, with the
parties executing an affidavit of marriage between man and woman
who have lived together as husband and wife for at least five years.
The Court of Appeals concluded that the falsity in the affidavit to the
effect that Jose and Felisa had lived together as husband and wife
for the period required by Article 76 did not affect the validity of the
marriage, seeing that the solemnizing officer was misled by the
statements contained therein. In this manner, the Court of Appeals
gave credence to the good-faith reliance of the solemnizing officer
over the falsity of the affidavit. The appellate court further noted that
on the dorsal side of said affidavit of marriage, Rev. Tomas V.
Atienza, the solemnizing officer, stated that he took steps to
ascertain the ages and other qualifications of the contracting parties
and found no legal impediment to their marriage. Finally, the Court
of Appeals dismissed Jose’s argument that neither he nor Felisa was
a member of the sect to which Rev. Tomas V. Atienza belonged.
According to the Court of Appeals, Article 5617 of the Civil Code did
not require that either one of the contracting parties to the marriage
must belong to the solemnizing officer’s church or religious sect. The
prescription was established only in Article 718 of the Family Code
which does not govern the parties’ marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion
for Reconsideration thereof.1avvphi1 His central opposition was that
the requisites for the proper application of the exemption from a

marriage license under Article 76 of the Civil Code were not fully
attendant in the case at bar. In particular, Jose cited the legal
condition that the man and the woman must have been living
together as husband and wife for at least five years before the
marriage. Essentially, he maintained that the affidavit of marital
cohabitation executed by him and Felisa was false.
The Court of Appeals granted Jose’s Motion for Reconsideration and
reversed itself. Accordingly, it rendered an Amended Decision, dated
7 November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11, 2005 is RECALLED
and SET ASIDE and another one entered declaring the marriage
between Jose A. Dayot and Felisa C. Tecson void ab initio.
Furnish a copy of this Amended Decision to the Local Civil Registrar
of Pasay City.19
In its Amended Decision, the Court of Appeals relied on the ruling of
this Court in Niñal v. Bayadog,20 and reasoned that:
In Niñal v. Bayadog, where the contracting parties to a marriage
solemnized without a marriage license on the basis of their affidavit
that they had attained the age of majority, that being unmarried,
they had lived together for at least five (5) years and that they
desired to marry each other, the Supreme Court ruled as follows:
"x x x In other words, the five-year common-law cohabitation period,
which is counted back from the date of celebration of marriage,
should be a period of legal union had it not been for the absence of
the marriage. This 5-year period should be the years immediately
before the day of the marriage and it should be a period of
131
cohabitation characterized by exclusivity – meaning no third party
was involved at any time within the 5 years and continuity – that is
unbroken. Otherwise, if that continuous 5-year cohabitation is
computed without any distinction as to whether the parties were
capacitated to marry each other during the entire five years, then
the law would be sanctioning immorality and encouraging parties to
have common law relationships and placing them on the same
footing with those who lived faithfully with their spouse. Marriage
being a special relationship must be respected as such and its
requirements must be strictly observed. The presumption that a
man and a woman deporting themselves as husband and wife is
based on the approximation of the requirements of the law. The
parties should not be afforded any excuse to not comply with every
single requirement and later use the same missing element as a pre-
conceived escape ground to nullify their marriage. There should be
no exemption from securing a marriage license unless the
circumstances clearly fall within the ambit of the exception. It
should be noted that a license is required in order to notify the
public that two persons are about to be united in matrimony and
that anyone who is aware or has knowledge of any impediment to
the union of the two shall make it known to the local civil registrar.
Article 80(3) of the Civil Code provides that a marriage solemnized
without a marriage license, save marriages of exceptional character,
shall be void from the beginning. Inasmuch as the marriage between
Jose and Felisa is not covered by the exception to the requirement of
a marriage license, it is, therefore, void ab initio because of the
absence of a marriage license.21
Felisa sought reconsideration of the Amended Decision, but to no
avail. The appellate court rendered a Resolution22 dated 10 May
2007, denying Felisa’s motion.

Meanwhile, the Republic of the Philippines, through the Office of the
Solicitor General (OSG), filed a Petition for Review before this Court
in G.R. No. 175581, praying that the Court of Appeals’ Amended
Decision dated 7 November 2006 be reversed and set aside for lack
of merit, and that the marriage between Jose and Felisa be declared
valid and subsisting. Felisa filed a separate Petition for Review,
docketed as G.R. No. 179474, similarly assailing the appellate
court’s Amended Decision. On 1 August 2007, this Court resolved to
consolidate the two Petitions in the interest of uniformity of the
Court rulings in similar cases brought before it for resolution.23
The Republic of the Philippines propounds the following arguments
for the allowance of its Petition, to wit:
I
RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION
OF THE VALIDITY OF HIS MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE COURT WITH CLEAN
HANDS AND SHOULD NOT BE ALLOWED TO PROFIT FROM
HIS OWN FRAUDULENT CONDUCT.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE
LEGALITY OF HIS MARRIAGE FOR LACK OF MARRIAGE
LICEN[S]E.24
132
Correlative to the above, Felisa submits that the Court of Appeals
misapplied Niñal.25 She differentiates the case at bar from Niñal by
reasoning that one of the parties therein had an existing prior
marriage, a circumstance which does not obtain in her cohabitation
with Jose. Finally, Felisa adduces that Jose only sought the
annulment of their marriage after a criminal case for bigamy and an
administrative case had been filed against him in order to avoid
liability. Felisa surmises that the declaration of nullity of their
marriage would exonerate Jose from any liability.
For our resolution is the validity of the marriage between Jose and
Felisa. To reach a considered ruling on the issue, we shall jointly
tackle the related arguments vented by petitioners Republic of the
Philippines and Felisa.
The Republic of the Philippines asserts that several circumstances
give rise to the presumption that a valid marriage exists between
Jose and Felisa. For her part, Felisa echoes the claim that any doubt
should be resolved in favor of the validity of the marriage by citing
this Court’s ruling in Hernandez v. Court of Appeals.26 To buttress
its assertion, the Republic points to the affidavit executed by Jose
and Felisa, dated 24 November 1986, attesting that they have lived
together as husband and wife for at least five years, which they used
in lieu of a marriage license. It is the Republic’s position that the
falsity of the statements in the affidavit does not affect the validity of
the marriage, as the essential and formal requisites were complied
with; and the solemnizing officer was not required to investigate as
to whether the said affidavit was legally obtained. The Republic
opines that as a marriage under a license is not invalidated by the
fact that the license was wrongfully obtained, so must a marriage
not be invalidated by the fact that the parties incorporated a
fabricated statement in their affidavit that they cohabited as
husband and wife for at least five years. In addition, the Republic

posits that the parties’ marriage contract states that their marriage
was solemnized under Article 76 of the Civil Code. It also bears the
signature of the parties and their witnesses, and must be considered
a primary evidence of marriage. To further fortify its Petition, the
Republic adduces the following documents: (1) Jose’s notarized
Statement of Assets and Liabilities, dated 12 May 1988 wherein he
wrote Felisa’s name as his wife; (2) Certification dated 25 July 1993
issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay
City, attesting that Jose and Felisa had lived together as husband
and wife in said barangay; and (3) Jose’s company ID card, dated 2
May 1988, indicating Felisa’s name as his wife.
The first assignment of error compels this Court to rule on the issue
of the effect of a false affidavit under Article 76 of the Civil Code. A
survey of the prevailing rules is in order.
It is beyond dispute that the marriage of Jose and Felisa was
celebrated on 24 November 1986, prior to the effectivity of the
Family Code. Accordingly, the Civil Code governs their union. Article
53 of the Civil Code spells out the essential requisites of marriage as
a contract:
ART. 53. No marriage shall be solemnized unless all these requisites
are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the marriage; and
133
(4) A marriage license, except in a marriage of exceptional
character. (Emphasis ours.)
Article 5827 makes explicit that no marriage shall be solemnized
without a license first being issued by the local civil registrar of the
municipality where either contracting party habitually resides, save
marriages of an exceptional character authorized by the Civil Code,
but not those under Article 75.28 Article 80(3)29 of the Civil Code
makes it clear that a marriage performed without the corresponding
marriage license is void, this being nothing more than the legitimate
consequence flowing from the fact that the license is the essence of
the marriage contract.30 This is in stark contrast to the old Marriage
Law,31 whereby the absence of a marriage license did not make the
marriage void. The rationale for the compulsory character of a
marriage license under the Civil Code is that it is the authority
granted by the State to the contracting parties, after the proper
government official has inquired into their capacity to contract
marriage.32
Under the Civil Code, marriages of exceptional character are covered
by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these
marriages are: (1) marriages in articulo mortis or at the point of
death during peace or war, (2) marriages in remote places, (2)
consular marriages,33 (3) ratification of marital cohabitation, (4)
religious ratification of a civil marriage, (5) Mohammedan or pagan
marriages, and (6) mixed marriages.34
The instant case pertains to a ratification of marital cohabitation
under Article 76 of the Civil Code, which provides:
ART. 76. No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least five

years, desire to marry each other. The contracting parties shall state
the foregoing facts in an affidavit before any person authorized by
law to administer oaths. The official, priest or minister who
solemnized the marriage shall also state in an affidavit that he took
steps to ascertain the ages and other qualifications of the
contracting parties and that he found no legal impediment to the
marriage.
The reason for the law,35 as espoused by the Code Commission, is
that the publicity attending a marriage license may discourage such
persons who have lived in a state of cohabitation from legalizing
their status.36
It is not contested herein that the marriage of Jose and Felisa was
performed without a marriage license. In lieu thereof, they executed
an affidavit declaring that "they have attained the age of maturity;
that being unmarried, they have lived together as husband and wife
for at least five years; and that because of this union, they desire to
marry each other."37 One of the central issues in the Petition at bar
is thus: whether the falsity of an affidavit of marital cohabitation,
where the parties have in truth fallen short of the minimum five-year
requirement, effectively renders the marriage void ab initio for lack
of a marriage license.
We answer in the affirmative.
Marriages of exceptional character are, doubtless, the exceptions to
the rule on the indispensability of the formal requisite of a marriage
license. Under the rules of statutory construction, exceptions, as a
general rule, should be strictly38 but reasonably construed.39 They
extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the
exception.40 Where a general rule is established by statute with
134
exceptions, the court will not curtail the former or add to the latter
by implication.41 For the exception in Article 76 to apply, it is a sine
qua non thereto that the man and the woman must have attained
the age of majority, and that, being unmarried, they have lived
together as husband and wife for at least five years.
A strict but reasonable construction of Article 76 leaves us with no
other expediency but to read the law as it is plainly written. The
exception of a marriage license under Article 76 applies only to those
who have lived together as husband and wife for at least five years
and desire to marry each other. The Civil Code, in no ambiguous
terms, places a minimum period requirement of five years of
cohabitation. No other reading of the law can be had, since the
language of Article 76 is precise. The minimum requisite of five years
of cohabitation is an indispensability carved in the language of the
law. For a marriage celebrated under Article 76 to be valid, this
material fact cannot be dispensed with. It is embodied in the law not
as a directory requirement, but as one that partakes of a mandatory
character. It is worthy to mention that Article 76 also prescribes that
the contracting parties shall state the requisite facts42 in an affidavit
before any person authorized by law to administer oaths; and that
the official, priest or minister who solemnized the marriage shall
also state in an affidavit that he took steps to ascertain the ages and
other qualifications of the contracting parties and that he found no
legal impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived
together for five years at the time they executed their sworn affidavit
and contracted marriage. The Republic admitted that Jose and
Felisa started living together only in June 1986, or barely five
months before the celebration of their marriage.43 The Court of
Appeals also noted Felisa’s testimony that Jose was introduced to
her by her neighbor, Teresita Perwel, sometime in February or

March 1986 after the EDSA Revolution.44 The appellate court also
cited Felisa’s own testimony that it was only in June 1986 when
Jose commenced to live in her house.45
Moreover, it is noteworthy that the question as to whether they
satisfied the minimum five-year requisite is factual in nature. A
question of fact arises when there is a need to decide on the truth or
falsehood of the alleged facts.46Under Rule 45, factual findings are
ordinarily not subject to this Court’s review.47 It is already well-
settled that:
The general rule is that the findings of facts of the Court of Appeals
are binding on this Court. A recognized exception to this rule is
when the Court of Appeals and the trial court, or in this case the
administrative body, make contradictory findings. However, the
exception does not apply in every instance that the Court of Appeals
and the trial court or administrative body disagree. The factual
findings of the Court of Appeals remain conclusive on this Court if
such findings are supported by the record or based on substantial
evidence.48
Therefore, the falsity of the affidavit dated 24 November 1986,
executed by Jose and Felisa to exempt them from the requirement of
a marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of
the statements in the parties’ affidavit will not affect the validity of
marriage, since all the essential and formal requisites were complied
with. The argument deserves scant merit. Patently, it cannot be
denied that the marriage between Jose and Felisa was celebrated
without the formal requisite of a marriage license. Neither did Jose
and Felisa meet the explicit legal requirement in Article 76, that they
should have lived together as husband and wife for at least five
135
years, so as to be excepted from the requirement of a marriage
license.
Anent petitioners’ reliance on the presumption of marriage, this
Court holds that the same finds no applicability to the case at bar.
Essentially, when we speak of a presumption of marriage, it is with
reference to the prima facie presumption that a man and a woman
deporting themselves as husband and wife have entered into a
lawful contract of marriage.49 Restated more explicitly, persons
dwelling together in apparent matrimony are presumed, in the
absence of any counter-presumption or evidence special to the case,
to be in fact married.50 The present case does not involve an
apparent marriage to which the presumption still needs to be
applied. There is no question that Jose and Felisa actually entered
into a contract of marriage on 24 November 1986, hence, compelling
Jose to institute a Complaint for Annulment and/or Declaration of
Nullity of Marriage, which spawned the instant consolidated
Petitions.
In the same vein, the declaration of the Civil Code 51 that every
intendment of law or fact leans towards the validity of marriage will
not salvage the parties’ marriage, and extricate them from the effect
of a violation of the law. The marriage of Jose and Felisa was entered
into without the requisite marriage license or compliance with the
stringent requirements of a marriage under exceptional
circumstance. The solemnization of a marriage without prior license
is a clear violation of the law and would lead or could be used, at
least, for the perpetration of fraud against innocent and unwary
parties, which was one of the evils that the law sought to prevent by
making a prior license a prerequisite for a valid marriage.52 The
protection of marriage as a sacred institution requires not just the
defense of a true and genuine union but the exposure of an invalid
one as well.53 To permit a false affidavit to take the place of a

marriage license is to allow an abject circumvention of the law. If
this Court is to protect the fabric of the institution of marriage, we
must be wary of deceptive schemes that violate the legal measures
set forth in our laws.
Similarly, we are not impressed by the ratiocination of the Republic
that as a marriage under a license is not invalidated by the fact that
the license was wrongfully obtained, so must a marriage not be
invalidated by a fabricated statement that the parties have cohabited
for at least five years as required by law. The contrast is flagrant.
The former is with reference to an irregularity of the marriage
license, and not to the absence of one. Here, there is no marriage
license at all. Furthermore, the falsity of the allegation in the sworn
affidavit relating to the period of Jose and Felisa’s cohabitation,
which would have qualified their marriage as an exception to the
requirement for a marriage license, cannot be a mere irregularity, for
it refers to a quintessential fact that the law precisely required to be
deposed and attested to by the parties under oath. If the essential
matter in the sworn affidavit is a lie, then it is but a mere scrap of
paper, without force and effect. Hence, it is as if there was no
affidavit at all.
In its second assignment of error, the Republic puts forth the
argument that based on equity, Jose should be denied relief because
he perpetrated the fabrication, and cannot thereby profit from his
wrongdoing. This is a misplaced invocation. It must be stated that
equity finds no room for application where there is a law. 54 There is
a law on the ratification of marital cohabitation, which is set in
precise terms under Article 76 of the Civil Code. Nonetheless, the
authorities are consistent that the declaration of nullity of the
parties’ marriage is without prejudice to their criminal liability.55
136
The Republic further avers in its third assignment of error that Jose
is deemed estopped from assailing the legality of his marriage for
lack of a marriage license. It is claimed that Jose and Felisa had
lived together from 1986 to 1990, notwithstanding Jose’s
subsequent marriage to Rufina Pascual on 31 August 1990, and
that it took Jose seven years before he sought the declaration of
nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of marriage is
imprescriptible.56 Jose and Felisa’s marriage was celebrated sans a
marriage license. No other conclusion can be reached except that it
is void ab initio. In this case, the right to impugn a void marriage
does not prescribe, and may be raised any time.
Lastly, to settle all doubts, jurisprudence has laid down the rule that
the five-year common-law cohabitation period under Article 76
means a five-year period computed back from the date of celebration
of marriage, and refers to a period of legal union had it not been for
the absence of a marriage.57 It covers the years immediately
preceding the day of the marriage, characterized by exclusivity -
meaning no third party was involved at any time within the five
years - and continuity that is unbroken.58
WHEREFORE, the Petitions are DENIED. The Amended Decision of
the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No.
68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot
void ab initio, is AFFIRMED, without prejudice to their criminal
liability, if any. No costs.
SO ORDERED.

[ G.R. No. 105308, September 25, 1998 ]
HERBERT CANG, PETITIONER, VS. COURT OF APPEALS AND
SPOUSES RONALD V. CLAVANO AND MARIA CLARA CLAVANO,
RESPONDENTS.
DECISION
ROMERO, J.:
Can minor children be legally adopted without the written consent of
a natural parent on the ground that the latter has abandoned them?
The answer to this interesting query, certainly not one of first
impression, would have to be reached, not solely on the basis of law
and jurisprudence, but also the hard reality presented by the facts
of the case.
This is the question posed before this Court in this petition for
review on certiorari of the Decision[1] of the Court of Appeals
affirming the decree of adoption issued by the Regional Trial Court
of Cebu City, Branch 14,[2] in Special Proceedings No. 1744-CEB, "In
the Matter of the Petition for Adoption of the minors Keith,
Charmaine and Joseph Anthony, all surnamed Cang, Spouses
Ronald V. Clavano and Maria Clara Diago Clavano, petitioners."
Petitioner Herbert Cang and Anna Marie Clavano who were married
on January 27, 1973, begot three children, namely: Keith, born on
July 3, 1973; Charmaine, born on January 23, 1977, and Joseph
Anthony, born on January 3, 1981.
During the early years of their marriage, the Cang couple’s
relationship was undisturbed. Not long thereafter, however, Anna
137
Marie learned of her husband’s alleged extramarital affair with
Wilma Soco, a family friend of the Clavanos.
Upon learning of her husband’s alleged illicit liaison, Anna Marie
filed a petition for legal separation with alimony pendente lite[3] with
the then Juvenile and Domestic Relations Court of Cebu[4] which
rendered a decision[5] approving the joint manifestation of the Cang
spouses providing that they agreed to "live separately and apart or
from bed and board." They further agreed:
"(c) That the children of the parties shall be entitled to a monthly
support of ONE THOUSAND PESOS (P1,000.00) effective from the
date of the filing of the complaint. This shall constitute a first lien on
the net proceeds of the house and lot jointly owned by the parties
situated at Cinco Village, Mandaue City;
(d) That the plaintiff shall be entitled to enter into any contract or
agreement with any person or persons, natural or juridical without
the written consent of the husband; or any undertaking or acts that
ordinarily requires husband’s consent as the parties are by this
agreement legally separated;"[6]
Petitioner then left for the United States where he sought a divorce
from Anna Marie before the Second Judicial District Court of the
State of Nevada. Said court issued the divorce decree that also
granted sole custody of the three minor children to Anna Marie,
reserving "rights of visitation at all reasonable times and places" to
petitioner.[7]
Thereafter, petitioner took an American wife and thus became a
naturalized American citizen. In 1986, he divorced his American wife
and never remarried.
While in the United States, petitioner worked in Tablante Medical
Clinic earning P18,000.00 to P20,000.00 a month[8] a portion of
 138

which was remitted to the Philippines for his children’s expenses
and another, deposited in the bank in the name of his children.
Meanwhile, on September 25, 1987, private respondents Ronald V.
Clavano and Maria Clara Diago Clavano, respectively the brother
and sister-in-law of Anna Marie, filed Special Proceedings No. 1744-
CEB for the adoption of the three minor Cang children before the
Regional Trial Court of Cebu. The petition bears the signature of
then 14-year-old Keith signifying consent to his adoption. Anna
Marie likewise filed an affidavit of consent alleging that her husband
had "evaded his legal obligation to support" his children; that her
brothers and sisters including Ronald V. Clavano, had been helping
her in taking care of the children; that because she would be going
to the United States to attend to a family business, "leaving the
children would be a problem and would naturally hamper (her) job-
seeking venture abroad;" and that her husband had "long forfeited
his parental rights" over the children for the following reasons:
1. The decision in Civil Case No. JD-707 allowed her to enter into
any contract without the written consent of her husband;
2. Her husband had left the Philippines to be an illegal alien in the
United States and had been transferring from one place to another
to avoid detection by Immigration authorities, and
Pending resolution of the petition for adoption, petitioner moved to
reacquire custody over his children alleging that Anna Marie had
transferred to the United States thereby leaving custody of their
children to private respondents. On January 11, 1988, the Regional
Trial Court of Cebu City, Branch 19, issued an order finding that
Anna Marie had, in effect, relinquished custody over the children
and, therefore, such custody should be transferred to the father. The
court then directed the Clavanos to deliver custody over the minors
to petitioner.
On March 27, 1990, the Regional Trial Court of Cebu City, Branch
14, issued a decree of adoption with a dispositive portion reading as
follows:
"WHEREFORE, premises considered, the petition for adoption of the
minors Keith, Charmaine and Joseph Anthony all surnamed Cang,
by the petitioners-spouses Ronald V. Clavano and Maria Clara Diago
Clavano is hereby granted and approved. These children shall
henceforth be known and called as Keith D. Clavano, Charmaine D.
Clavano and Joseph Anthony D. Clavano respectively. Moreover, this
Decree of Adoption shall:
(1) Confer upon the adopted children the same rights and duties
as though they were in fact the legitimate children of the petitioners;

3. Her husband had divorced her. (2) Dissolve the authority vested in the parents by nature, of the
Upon learning of the petition for adoption, petitioner immediately children; and,
returned to the Philippines and filed an opposition thereto, alleging
that, although private respondents Ronald and Maria Clara Clavano (3) Vest the same authority in the petitioners.
were financially capable of supporting the children while his
finances were "too meager" compared to theirs, he could not "in Furnish the Local Civil Registrar of Cebu City, Philippines with a
conscience, allow anybody to strip him of his parental authority over copy of this Decree of Adoption for registration purposes.
his beloved children."
SO ORDERED."

In so ruling, the lower court was "impelled" by these reasons:
(1) The Cang children had, since birth, developed "close filial ties
with the Clavano family, especially their maternal uncle," petitioner
Ronald Clavano.
(2) Ronald and Maria Clara Clavano were childless and, with their
printing press, real estate business, export business and gasoline
station and mini-mart in Rosemead, California, U.S.A., had
substantial assets and income.
(3) The natural mother of the children, Anna Marie, nicknamed
"Menchu," approved of the adoption because of her heart ailment,
near-fatal accident in 1981, and the fact that she could not provide
them a secure and happy future as she "travels a lot."
(4) The Clavanos could provide the children moral and spiritual
direction as they would go to church together and had sent the
children to Catholic schools.
(5) The children themselves manifested their desire to be adopted by
the Clavanos - Keith had testified and expressed the wish to be
adopted by the Clavanos while the two younger ones were observed
by the court to have "snuggled" close to Ronald even though their
natural mother was around.
On the other hand, the lower court considered the opposition of
petitioner to rest on "a very shaky foundation" because of its
findings that:
(1) Petitioner was "morally unfit to be the father of his children" on
account of his being "an improvident father of his family" and an
"undisguised Lothario." This conclusion is based on the testimony of
his alleged paramour, mother of his two sons and close friend of
139
Anna Marie, Wilma Soco, who said that she and petitioner lived as
husband and wife in the very house of the Cangs in Opao, Mandaue
City.
(2) The alleged deposits of around $10,000 that were of
"comparatively recent dates" were "attempts at verisimilitude" as
these were joint deposits the authenticity of which could not be
verified.
(3) Contrary to petitioner’s claim, the possibility of his reconciliation
with Anna Marie was "dim if not nil" because it was petitioner who
"devised, engineered and executed the divorce proceedings at the
Nevada Washoe County court."
(4) By his naturalization as a U.S. citizen, petitioner "is now an alien
from the standpoint of Philippine laws" and therefore, how his "new
attachments and loyalties would sit with his (Filipino) children is an
open question."
Quoting with approval the evaluation and recommendation of the
RTC Social Worker in her Child Study Report, the lower court
concluded as follows:
"Simply put, the oppositor Herbert Cang has abandoned his
children. And abandonment of a child by its (sic) parent is
commonly specified by statute as a ground for dispensing with his
consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann.
[As. 1914A, 214]). Indeed, in such case, adoption will be allowed not
only without the consent of the parent, but even against his
opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep.
80; Re Camp. 131 Cal. 469, 63 P. 736, 82 Am. St. Rep. 371; Graham
v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170
Iowa, 561, 153 N.W. 160, citing R.C.L.; Stearns v. Allen, 183 Mass.
404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483,
 140

53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo. 173, 33 P. obliges him to pay the children P1,000.00 a month. The second is
23, 20 L.R.A. 199, 62 Am. St. Rep. 17.)"[9] mandated by the divorce decree of the Nevada, U.S.A. Federal Court
Before the Court of Appeals, petitioner contended that the lower which orders him to pay monthly support of US$50.00 for each
court erred in holding that it would be in the best interest of the child. Oppositor has not submitted any evidence to show compliance
three children if they were adopted by private respondents Ronald with the decision in JD-101 CEB, but he has submitted 22 cancelled
and Maria Clara Clavano. He asserted that the petition for adoption dollar checks (Exhs. 24 to 45) drawn in the children’s names
was fatally defective and tailored to divest him of parental authority totalling $2,126.98. The last remittance was on October 6, 1987
because: (a) he did not have a written consent to the adoption; (b) he (Exh. 45). His obligation to provide support commenced under the
never abandoned his children; (c) Keith and Charmaine did not divorce decree on May 5, 1982 so that as of October 6, 1987,
properly give their written consent; and (d) the petitioners for oppositor should have made 53 remittances of $150.00, or a total of
adoption did not present as witness the representative of the $7,950.00. No other remittances were shown to have been made
Department of Social Welfare and Development who made the case after October 6, 1987, so that as of this date, oppositor was woefully
study report required by law. in arrears under the terms of the divorce decree. And since he was
The Court of Appeals affirmed the decree of adoption stating: totally in default of the judgment in JD-707 CEB, the inevitable
conclusion is oppositor had not really been performing his duties as
"Article 188 of the Family Code requires the written consent of the a father, contrary to his protestations.
natural parents of the child to be adopted. It has been held however
that the consent of the parent who has abandoned the child is not True, it has been shown that oppositor had opened three accounts
necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 in different banks, as follows -
SCRA 344). The question therefore is whether or not oppositor may
be considered as having abandoned the children. In adoption cases, Acct. No. Date Opened Balance Name of Bank
abandonment connotes any conduct on the part of the parent to
forego parental duties and relinquish parental claims to the child, or 1) 118-606437-4 July 23, 1985 $5,018.50 Great
the neglect or refusal to perform the natural and legal obligations Western
which parents owe their children (Santos vs. Ananzanso, supra), or Oct. 29, 1987 Savings, Daly City,
the withholding of the parent’s presence, his care and the Cal., U.S. A.
opportunity to display voluntary affection. The issue of 2) 73-166-8 March 5, 1986 3,129.00 Matewan National
abandonment is amply covered by the discussion of the first error. Bank
Oct.26, 1987 of Williamson, West
Oppositor argues that he has been sending dollar remittances to the 3) 564-146883 December 31, 1986 2,622.19 Virginia, U.S.A.
children and has in fact even maintained bank accounts in their Oct. 29, 1987 Security Pacific
names. His duty to provide support comes from two judicial National Bank, Daly City, Cal.,
pronouncements. The first, the decision in JD-707 CEB, supra, U.S.A.
 141

Mandaue City seven (7) kilometers away from the Clavanos who
The first and third accounts were opened however in oppositor’s were residents of Cebu City. Petitioner insisted that the testimony of
name as trustee for Charmaine Cang and Joseph Anthony Cang, Wilma Soco should not have been given weight for it was only during
respectively. In other words, the accounts are operated and the the hearing of the petition for adoption that Jose Clavano, a brother
amounts withdrawable by oppositor himself and it cannot be said of Ronald, came to know her and went to her residence in Iligan City
that they belong to the minors. The second is an `or’ account, in the to convince her to be a witness for monetary considerations. Lastly,
names of Herbert Cang or Keith Cang. Since Keith is a minor and in petitioner averred that it would be hypocritical of the Clavanos to
the Philippines, said account is operable only by oppositor and the claim that they could love the children much more than he could.[11]
funds withdrawable by him alone.
His motion for reconsideration having been denied, petitioner is now
The bank accounts do not really serve what oppositor claimed in his before this Court, alleging that the petition for adoption was fatally
offer of evidence `the aim and purpose of providing for a better defective as it did not have his written consent as a natural father as
future and security of his family.’"[10] required by Article 31 (2) of Presidential Decree No. 603, the Child
Petitioner moved to reconsider the decision of the Court of Appeals. and Youth Welfare Code, and Article 188 (2) of the Family Code.
He emphasized that the decree of legal separation was not based on Article 31 of P.D. No. 603 provides -
the merits of the case as it was based on a manifestation amounting
to a compromise agreement between him and Anna Marie. That he "ART. 31. Whose Consent is Necessary. - The written consent of the
and his wife agreed upon the plan for him to leave for the United following to the adoption shall be necessary:
States was borne out by the fact that prior to his departure to the
United States, the family lived with petitioner’s parents. Moreover, (1) The person to be adopted, if fourteen years of age or over;
he alone did not instigate the divorce proceedings as he and his wife (2) The natural parents of the child or his legal guardian of the
initiated the "joint complaint" for divorce. Department of Social Welfare or any duly licensed child placement
agency under whose care the child may be;
Petitioner argued that the finding that he was not fit to rear and care (3) The natural children, fourteen years and above, of the adopting
for his children was belied by the award to him of custody over the parents." (Underscoring supplied)
children in Civil Case No. JD-707. He took exception to the appellate On December 17, 1986, then President Corazon C. Aquino issued
court’s findings that as an American citizen he could no longer lay Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35
claim to custody over his children because his citizenship would not of the Child and Youth Welfare Code. As thus amended, Article 31
take away the fact that he "is still a father to his children." As read:
regards his alleged illicit relationship with another woman, he had "ART. 31. Whose Consent is Necessary. - The written consent of the
always denied the same both in Civil Case No. JD-707 and the following to the adoption shall be necessary:
instant adoption case. Neither was it true that Wilma Soco was a
neighbor and family friend of the Clavanos as she was residing in (1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian after
receiving counselling and appropriate social services from the
Ministry of Social Services and Development or from a duly licensed
child-placement agency;
(3) The Ministry of Social Services and Development or any duly
licensed child-placement agency under whose care and legal custody
the child may be;
(4) The natural children, fourteen years and above, of the adopting
parents." (Underscoring supplied)
Jurisdiction being a matter of substantive law, the established rule
is that the statute in force at the time of the commencement of the
action determines the jurisdiction of the court.[12] As such, when
private respondents filed the petition for adoption on September 25,
1987, the applicable law was the Child and Youth Welfare Code, as
amended by Executive Order No. 91.
During the pendency of the petition for adoption or on August 3,
1988, the Family Code which amended the Child and Youth Welfare
Code took effect. Article 256 of the Family Code provides for its
retroactivity "insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws." As
amended by the Family Code, the statutory provision on consent for
adoption now reads:
"Art. 188. The written consent of the following to the adoption shall
be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the
proper government instrumentality;
(3) The legitimate and adopted children, ten years of age or over, of
the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the adopting
parents, if living with said parent and the latter’s spouse, if any; and
142
(5) The spouse, if any, of the person adopting or to be adopted."
(Underscoring supplied)
Based on the foregoing, it is thus evident that notwithstanding the
amendments to the law, the written consent of the natural parent to
the adoption has remained a requisite for its validity. Notably, such
requirement is also embodied in Rule 99 of the Rules of Court as
follows:
"SEC. 3. Consent to adoption. - There shall be filed with the petition
a written consent to the adoption signed by the child, if fourteen
years of age or over and not incompetent, and by the child’s spouse,
if any, and by each of its known living parents who is not insane or
hopelessly intemperate or has not abandoned the child, or if there
are no such parents by the general guardian or guardian ad litem of
the child, or if the child is in the custody of an orphan asylum,
children’s home, or benevolent society or person, by the proper
officer or officers of such asylum, home, or society, or by such
persons; but if the child is illegitimate and has not been recognized,
the consent of its father to the adoption shall not be required."
(Underscoring supplied)
As clearly inferred from the foregoing provisions of law, the written
consent of the natural parent is indispensable for the validity of the
decree of adoption. Nevertheless, the requirement of written consent
can be dispensed with if the parent has abandoned the child[13] or
that such parent is "insane or hopelessly intemperate." The court
may acquire jurisdiction over the case even without the written
consent of the parents or one of the parents provided that the
petition for adoption alleges facts sufficient to warrant exemption
from compliance therewith. This is in consonance with the liberality
with which this Court treats the procedural aspect of adoption.
Thus, the Court declared:
"x x x. The technical rules of pleading should not be stringently
applied to adoption proceedings, and it is deemed more important
that the petition should contain facts relating to the child and its

parents, which may give information to those interested, than that it
should be formally correct as a pleading. Accordingly, it is generally
held that a petition will confer jurisdiction if it substantially
complies with the adoption statute, alleging all facts necessary to
give the court jurisdiction."[14]
In the instant case, only the affidavit of consent of the natural
mother was attached to the petition for adoption. Petitioner’s
consent, as the natural father is lacking. Nonetheless, the petition
sufficiently alleged the fact of abandonment of the minors for
adoption by the natural father as follows:
"3. That the children’s mother, sister of petitioner RONALD V.
CLAVANO, has given her express consent to this adoption, as shown
by Affidavit of Consent, Annex `A’. Likewise, the written consent of
Keith Cang, now 14 years of age appears on page 2 of this petition;
However, the father of the children, Herbert Cang, had already left
his wife and children and had already divorced the former, as
evidenced by the xerox copy of the DECREE OF DIVORCE issued by
the County of Washoe, State of Nevada, U.S.A. (Annex `B’) which
was filed at the instance of Mr. Cang, not long after he abandoned
his family to live in the United States as an illegal immigrant." [15]
The allegations of abandonment in the petition for adoption, even
absent the written consent of petitioner, sufficiently vested the lower
court with jurisdiction since abandonment of the child by his
natural parents is one of the circumstances under which our
statutes and jurisprudence[16] dispense with the requirement of
written consent to the adoption of their minor children.
However, in cases where the father opposes the adoption primarily
because his consent thereto was not sought, the matter of whether
he had abandoned his child becomes a proper issue for
determination. The issue of abandonment by the oppositor natural
parent is a preliminary issue that an adoption court must first
confront. Only upon failure of the oppositor natural father to prove
143
to the satisfaction of the court that he did not abandon his child
may the petition for adoption be considered on its merits.
As a rule, factual findings of the lower courts are final and binding
upon this Court.[17] This Court is not expected nor required to
examine or contrast the oral and documentary evidence submitted
by the parties.[18] However, although this Court is not a trier of facts,
it has the authority to review and reverse the factual findings of the
lower courts if it finds that these do not conform to the evidence on
record.[19]
In Reyes v. Court of Appeals,[20] this Court has held that the
exceptions to the rule that factual findings of the trial court are final
and conclusive and may not be reviewed on appeal are the following:
(1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of discretion; (3) when
the finding is grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the Court of Appeals is based
on misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of
the Court of Appeals are contrary to those of the trial court; (8) when
the findings of fact are conclusions without citation of specific
evidence on which they are based; (9) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different
conclusion and (10) when the findings of fact of the Court of Appeals
are premised on the absence of evidence and are contradicted by the
evidence on record.
This Court finds that both the lower court and the Court of Appeals
failed to appreciate facts and circumstances that should have

elicited a different conclusion[21] on the issue of whether petitioner
has so abandoned his children, thereby making his consent to the
adoption unnecessary.
In its ordinary sense, the word "abandon" means to forsake entirely,
to forsake or renounce utterly. The dictionaries trace this word to
the root idea of "putting under a ban." The emphasis is on the
finality and publicity with which a thing or body is thus put in the
control of another, hence, the meaning of giving up absolutely, with
intent never to resume or claim one’s rights or interests.[22] In
reference to abandonment of a child by his parent, the act of
abandonment imports "any conduct of the parent which evinces a
settled purpose to forego all parental duties and relinquish all
parental claims to the child." It means "neglect or refusal to perform
the natural and legal obligations of care and support which parents
owe their children."[23]
In the instant case, records disclose that petitioner’s conduct did not
manifest a settled purpose to forego all parental duties and
relinquish all parental claims over his children as to constitute
abandonment. Physical estrangement alone, without financial and
moral desertion, is not tantamount to abandonment.[24] While
admittedly, petitioner was physically absent as he was then in the
United States, he was not remiss in his natural and legal obligations
of love, care and support for his children. He maintained regular
communication with his wife and children through letters and
telephone. He used to send packages by mail and catered to their
whims.
Petitioner’s testimony on the matter is supported by documentary
evidence consisting of the following handwritten letters to him of
both his wife and children:
144
1. Exh. 1 - a 4-page undated letter of Menchu (Anna Marie)
addressed to "Dear Bert" on a C.Westates Carbon Phil. Corp.
stationery. Menchu stated therein that it had been "a long time since
the last time you’ve heard from me excluding that of the phone
conversation we’ve had." She discussed petitioner’s intention to buy
a motorbike for Keith, expressing apprehension over risks that could
be engendered by Keith’s use of it. She said that in the "last phone
conversation" she had with petitioner on the birthday of "Ma," she
forgot to tell petitioner that Keith’s voice had changed; he had
become a "bagito" or a teen-ager with many "fans" who sent him
Valentine’s cards. She told him how Charmaine had become quite a
talkative "almost dalaga" who could carry on a conversation with her
angkong and how pretty she was in white dress when she won
among the candidates in the Flores de Mayo after she had prayed so
hard for it. She informed him, however, that she was worried
because Charmaine was vain and wont to extravagance as she loved
clothes. About Joeton (Joseph Anthony), she told petitioner that the
boy was smart for his age and "quite spoiled" being the youngest of
the children in Lahug. Joeton was mischievous but Keith was his
idol with whom he would sleep anytime. She admitted having said
so much about the children because they might not have informed
petitioner of "some happenings and spices of life" about themselves.
She said that it was "just very exciting to know how they’ve grown
up and very pleasant, too, that each of them have (sic) different
characters." She ended the letter with the hope that petitioner was
"at the best of health." After extending her regards "to all," she
signed her name after the word "Love." This letter was mailed on
July 9, 1986 from Cebu to petitioner whose address was P.O. Box
2445, Williamson, West Virginia 25661 (Exh. 1-D).
2. Exh. 2 - letter dated 11/13/84 on a green stationery with golden
print of "a note from Menchu" on the left upper corner. Anna Marie
stated that "we" wrote to petitioner on Oct. 2, 1984 and that Keith

and Joeton were very excited when petitioner "called up last time."
She told him how Joeton would grab the phone from Keith just so
petitioner would know what he wanted to order. Charmaine, who
was asleep, was so disappointed that she missed petitioner’s call
because she also wanted something that petitioner should buy.
Menchu told petitioner that Charmaine wanted a pencil sharpener,
light-colored T-shirts for her walking shorts and a (k)nap sack. Anna
Marie informed petitioner that the kids were growing up and so were
their needs. She told petitioner to be "very fatherly" about the
children’s needs because those were expensive here. For herself,
Anna Marie asked for a subscription of Glamour and Vogue
magazines and that whatever expenses he would incur, she would
"replace" these. As a postscript, she told petitioner that Keith wanted
a size 6 khaki-colored "Sperry topsider shoes."
3. Exh. 3 - an undated note on a yellow small piece of paper that
reads:
"Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a wonderful
one.
By the way thanks for the shoes, it was a nice one. It’s nice to be
thought of at X’mas. Thanks again.
Sincerely,
Menchu"
4. Exh. 4 - a two-page undated letter of Keith on stationery of Jose
Clavano, Inc. addressed to "Dear Dad." Keith told his father that
they tried to tell their mother "to stay for a little while, just a few
weeks after classes start(s)" on June 16. He informed petitioner that
145
Joeton would be in Kinder I and that, about the motorbike, he had
told his mother to write petitioner about it and "we’ll see what you’re
(sic) decision will be." He asked for chocolates, nuts, basketball shirt
and shorts, rubber shoes, socks, headband, some clothes for outing
and perfume. He told petitioner that they had been going to Lahug
with their mother picking them up after Angkong or Ama had
prepared lunch or dinner. From her aerobics, his mother would go
for them in Lahug at about 9:30 or 10:00 o’clock in the evening. He
wished his father "luck and the best of health" and that they prayed
for him and their other relatives. The letter was ended with "Love
Keith."
5. Exh. 5 - another undated long letter of Keith. He thanked his
father for the Christmas card "with $40.00, $30.00 and $30.00" and
the "card of Joeton with $5.00 inside." He told petitioner the
amounts following his father’s instructions and promise to send
money through the mail. He asked his father to address his letter
directly to him because he wanted to open his own letters. He
informed petitioner of activities during the Christmas season - that
they enjoyed eating, playing and giving surprises to their mother. He
apprised him of his daily schedule and that their mother had been
closely supervising them, instructing them to fold their blankets and
pile up their pillows. He informed petitioner that Joeton had become
very smart while Charmaine, who was also smart, was very
demanding of their mother. Because their mother was leaving for the
United States on February 5, they would be missing her like they
were missing petitioner. He asked for his "things" and $200.00. He
told petitioner more anecdotes about Joeton like he would make the
sign of the cross even when they would pass by the Iglesia ni Cristo
church and his insistence that Aquino was not dead because he had
seen him on the betamax machine. For Keith, Charmaine had
become "very maldita" who was not always satisfied with her dolls
and things but Joeton was full of surprises. He ended the letter with

"Love your son, Keith." The letter was mailed on February 6, 1985
(Exh. 5-D).
6. Exh. 6 - an undated letter Charmaine. She thanked petitioner for
the bathing suit, key chain, pencil box, socks, half shirt, pencil
sharpener and $50.00. She reminded him of of her birthday on
January 23 when she would turn 9 years old. She informed him that
she wore size 10 and the size of her feet was IM. They had fun at
Christmas in Lahug but classes would start on January 9 although
Keith’s classes had started on January 6. They would feel sad again
because Mommy would be leaving soon. She hoped petitioner would
keep writing them. She signed, "Love, Charmaine."
7. Exh . 7 - an undated letter of Keith. He explained to petitioner
that they had not been remiss in writing letters to him. He informed
him of their trip to Manila - they went to Malacañang, Tito Doy
Laurel’s house, the Ministry of Foreign Affairs, the executive house,
Tagaytay for three days and Baguio for one week. He informed him
that he got "honors," Charmaine was 7th in her class and Joeton
had excellent grades. Joeton would be enrolled in Sacred Heart soon
and he was glad they would be together in that school. He asked for
his "reward" from petitioner and so with Charmaine and Joeton. He
asked for a motorbike and dollars that he could save. He told
petitioner that he was saving the money he had been sending them.
He said he missed petitioner and wished him the best. He added
that petitioner should call them on Sundays.
8. Exh. 8 - a letter from Joeton and Charmaine but apparently
written by the latter. She asked for money from petitioner to buy
something for the school and "something else." She promised not to
spend so much and to save some. She said she loved petitioner and
missed him. Joeton said "hi!" to petitioner. After ending the letter
with "Love, Joeton and Charmaine," she asked for her prize for her
146
grades as she got seventh place.
9. Exh. 9 - undated letter of Keith. He assured petitioner that he had
been writing him; that he would like to have some money but he
would save them; that he learned that petitioner had called them up
but he was not around; that he would be going to Manila but would
be back home May 3; that his Mommy had just arrived Thursday
afternoon, and that he would be the "official altar boy." He asked
petitioner to write them soon.
10. Exh. 10 - Keith thanked petitioner for the money he sent. He
told petitioner that he was saving some in the bank and he was
proud because he was the only one in his group who saved in the
bank. He told him that Joeton had become naughty and would claim
as his own the shirts sent to Keith by petitioner. He advised
petitioner to send pants and shirts to Joeton, too, and asked for a
pair of topsider shoes and candies. He informed petitioner that he
was a member of the basketball team and that his mom would drive
for his group. He asked him to call them often like the father of Ana
Christie and to write them when he would call so that they could
wait for it. He informed petitioner that they had all grown bigger and
heavier. He hoped petitioner would be happy with the letter that had
taken him so long to write because he did not want to commit any
mistakes. He asked petitioner to buy him perfume (Drakkar) and,
after thanking petitioner, added that the latter should buy
something for Mommy.
11. Exh. 11 - a Christmas card "For My Wonderful Father" dated
October 8, 1984 from Keith, Charmaine and Joeton.
12. Exh. 12 - another Christmas card, "Our Wish For You" with the
year ’83 written on the upper right hand corner of the inside page,
from Keith, Charmaine and Joeton.

13. Exh. 13 - a letter of Keith telling petitioner that he had written
him even when their Mom "was there" where she bought them
clothes and shoes. Keith asked petitioner for $300.00. Because his
mother would not agree to buy him a motorbike, he wanted a
Karaoke unit that would cost P12,000.00. He informed petitioner
that he would go to an afternoon disco with friends but their grades
were all good with Joeton receiving "stars" for excellence. Keith
wanted a bow and arrow Rambo toys and G.I. Joe. He expressed his
desire that petitioner would come and visit them someday.
14. Exh. 14 - a letter of Keith with one of the four pages bearing the
date January 1986. Keith told his father that they had received the
package that the latter sent them. The clothes he sent, however,
fitted only Keith but not Charmaine and Joeton who had both grown
bigger. Keith asked for grocery items, toys and more clothes. He
asked, in behalf of his mother, for low-heeled shoes and a dress to
match, jogging pants, tights and leotards that would make her look
sexy. He intimated to petitioner that he had grown taller and that he
was already ashamed to be asking for things to buy in the grocery
even though his mother had told him not to be shy about it.
Aside from these letters, petitioner also presented certifications of
banks in the U.S.A. showing that even prior to the filing of the
petition for adoption, he had deposited amounts for the benefit of
his children.[25] Exhibits 24 to 45 are copies of checks sent by
petitioner to the children from 1985 to 1989.
These pieces of evidence are all on record. It is, therefore, quite
surprising why the courts below simply glossed over these, ignoring
not only evidence on financial support but also the emotional
exchange of sentiments between petitioner and his family. Instead,
the courts below emphasized the meagerness of the amounts he
sent to his children and the fact that, as regards the bank deposits,
147
these were "withdrawable by him alone." Simply put, the courts
below attached a high premium to the prospective adopters’
financial status but totally brushed aside the possible repercussion
of the adoption on the emotional and psychological well-being of the
children.
True, Keith had expressed his desire to be adopted by his uncle and
aunt. However, his seeming steadfastness on the matter as shown
by his testimony is contradicted by his feelings towards his father as
revealed in his letters to him. It is not at all farfetched to conclude
that Keith’s testimony was actually the effect of the filing of the
petition for adoption that would certainly have engendered
confusion in his young mind as to the capability of his father to
sustain the lifestyle he had been used to.
The courts below emphasized respondents’ emotional attachment to
the children. This is hardly surprising for, from the very start of
their young lives, the children were used to their presence. Such
attachment had persisted and certainly, the young ones’ act of
snuggling close to private respondent Ronald Clavano was not
indicative of their emotional detachment from their father. Private
respondents, being the uncle and aunt of the children, could not but
come to their succor when they needed help as when Keith got sick
and private respondent Ronald spent for his hospital bills.
In a number of cases, this Court has held that parental authority
cannot be entrusted to a person simply because he could give the
child a larger measure of material comfort than his natural parent.
Thus, in David v. Court of Appeals,[26] the Court awarded custody of
a minor illegitimate child to his mother who was a mere secretary
and market vendor instead of to his affluent father who was a
married man, not solely because the child opted to go with his
mother. The Court said:

"Daisie and her children may not be enjoying a life of affluence that
private respondent promises if the child lives with him. It is enough,
however, that petitioner is earning a decent living and is able to
support her children according to her means."
In Celis v. Cafuir[27] where the Court was confronted with the issue of
whether to award custody of a child to the natural mother or to a
foster mother, this Court said:
"This court should avert the tragedy in the years to come of having
deprived mother and son of the beautiful associations and tender,
imperishable memories engendered by the relationship of parent
and child. We should not take away from a mother the opportunity
of bringing up her own child even at the cost of extreme sacrifice
due to poverty and lack of means; so that afterwards, she may be
able to look back with pride and a sense of satisfaction at her
sacrifices and her efforts, however humble, to make her dreams of
her little boy come true. We should not forget that the relationship
between a foster mother and a child is not natural but artificial. If
the child turns out to be a failure or forgetful of what its foster
parents had done for him, said parents might yet count and
appraise (sic) all that they have done and spent for him and with
regret consider all of it as a dead loss, and even rue the day they
committed the blunder of taking the child into their hearts and their
home. Not so with a real natural mother who never counts the cost
and her sacrifices, ever treasuring memories of her associations with
her child, however unpleasant and disappointing. Flesh and blood
count. x x x."
In Espiritu v. Court of Appeals,[28] the Court stated that "(I)n
ascertaining the welfare and best interests of the child, courts are
mandated by the Family Code to take into account all relevant
considerations." Thus, in awarding custody of the child to the father,
the Court said:
"A scrutiny of the pleadings in this case indicates that Teresita, or at
least, her counsel are more intent on emphasizing the `torture and
148
agony’ of a mother separated from her children and the humiliation
she suffered as a result of her character being made a key issue in
court rather than the feelings and future, the best interests and
welfare of her children. While the bonds between a mother and her
small child are special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived of custody. One
cannot say that his or her suffering is greater than that of the other
parent. It is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the paramount
consideration." (Italics supplied)[29]
Indeed, it would 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 children.
There should be a holistic approach to the matter, taking into
account the physical, emotional, psychological, mental, social and
spiritual needs of the child.[30] The conclusion of the courts below
that petitioner abandoned his family needs more evidentiary support
other than his inability to provide them the material comfort that his
admittedly affluent in-laws could provide. There should be proof that
he had so emotionally abandoned them that his children would not
miss his guidance and counsel if they were given to adopting
parents. The letters he received from his children prove that
petitioner maintained the more important emotional tie between him
and his children. The children needed him not only because he
could cater to their whims but also because he was a person they
could share with their daily activities, problems and triumphs.
The Court is thus dismayed that the courts below did not look
beyond petitioner’s "meager" financial support to ferret out other
indications on whether petitioner had in fact abandoned his family.
The omission of said courts has led us to examine why the children
were subjected to the process of adoption, notwithstanding the
proven ties that bound them to their father. To our consternation,

the record of the case bears out the fact that the welfare of the
children was not exactly the "paramount consideration" that
impelled Anna Marie to consent to their adoption.
In her affidavit of consent, Anna Marie expressly said that leaving
the children in the country, as she was wont to travel abroad often,
was a problem that would naturally hamper her job-seeking abroad.
In other words, the adoption appears to be a matter of convenience
for her because Anna Marie herself is financially capable of
supporting her children.[31] In his testimony, private respondent
Ronald swore that Anna Marie had been out of the country for two
years and came home twice or three times,[32] thereby manifesting
the fact that it was she who actually left her children to the care of
her relatives. It was bad enough that their father left their children
when he went abroad, but when their mother followed suit for her
own reasons, the situation worsened. The Clavano family must have
realized this. Hence, when the family first discussed the adoption of
the children, they decided that the prospective adopter should be
Anna Marie’s brother Jose. However, because he had children of his
own, the family decided to devolve the task upon private
respondents.[33]
This couple, however, could not always be in Cebu to care for the
children. A businessman, private respondent Ronald Clavano
commutes between Cebu and Manila while his wife, private
respondent Maria Clara, is an international flight
stewardess.[34] Moreover, private respondent Ronald claimed that he
could "take care of the children while their parents are
away,"[35] thereby indicating the evanescence of his intention. He
wanted to have the children’s surname changed to Clavano for the
reason that he wanted to take them to the United States as it would
be difficult for them to get a visa if their surname were different from
his.[36] To be sure, he also testified that he wanted to spare the
149
children the stigma of being products of a broken home.
Nevertheless, a close analysis of the testimonies of private
respondent Ronald, his sister Anna Marie and their brother Jose
points to the inescapable conclusion that they just wanted to keep
the children away from their father. One of the overriding
considerations for the adoption was allegedly the state of Anna
Marie’s health - she was a victim of an almost fatal accident and
suffers from a heart ailment. However, she herself admitted that her
health condition was not that serious as she could still take care of
the children.[37] An eloquent evidence of her ability to physically care
for them was her employment at the Philippine Consulate in Los
Angeles[38]- she could not have been employed if her health were
endangered. It is thus clear that the Clavanos’ attempt at depriving
petitioner of parental authority apparently stemmed from their
notion that he was an inveterate womanizer. Anna Marie in fact
expressed fear that her children would "never be at ease with the
wife of their father."[39]
Petitioner, who described himself as single in status, denied being a
womanizer and father to the sons of Wilma Soco.[40] As to whether he
was telling the truth is beside the point. Philippine society, being
comparatively conservative and traditional, aside from being
Catholic in orientation, it does not countenance womanizing on the
part of a family man, considering the baneful effects such
irresponsible act visits on his family. Neither may the Court place a
premium on the inability of a man to distinguish between siring
children and parenting them. Nonetheless, the actuality that
petitioner carried on an affair with a paramour cannot be taken as
sufficient basis for the conclusion that petitioner was necessarily an
unfit father.[41] Conventional wisdom and common human
experience show that a "bad" husband does not necessarily make a
"bad" father. That a husband is not exactly an upright man is not,

strictly speaking, a sufficient ground to deprive him as a father of
his inherent right to parental authority over the
children. Petitioner has demonstrated his love and concern for his
[42]
children when he took the trouble of sending a telegram[43] to the
lower court expressing his intention to oppose the adoption
immediately after learning about it. He traveled back to this country
to attend to the case and to testify about his love for his children
and his desire to unite his family once more in the United States.[44]
Private respondents themselves explained why petitioner failed to
abide by the agreement with his wife on the support of the children.
Petitioner was an illegal alien in the United States. As such, he
could not have procured gainful employment. Private respondents
failed to refute petitioner’s testimony that he did not receive his
share from the sale of the conjugal home,[45] pursuant to their
manifestation/compromise agreement in the legal separation case.
Hence, it can be reasonably presumed that the proceeds of the sale
redounded to the benefit of his family, particularly his children. The
proceeds may not have lasted long but there is ample evidence to
show that thereafter, petitioner tried to abide by his agreement with
his wife and sent his family money, no matter how "meager."
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 Court’s
position should not be misconstrued or misinterpreted as to extend
to inferences beyond the contemplation of law and
jurisprudence.[46] 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.[47]
150
In this regard, this Court notes private respondents’ reliance on the
manifestation/compromise agreement between petitioner and Anna
Marie which became the basis of the decree of legal separation.
According to private respondents’ counsel,[48] the authority given to
Anna Marie by that decree to enter into contracts as a result of the
legal separation was "all embracing"[49] and, therefore, included
giving her sole consent to the adoption. This conclusion is however,
anchored on the wrong premise that the authority given to the
innocent spouse to enter into contracts that obviously refer to their
conjugal properties, shall include entering into agreements leading
to the adoption of the children. Such conclusion is as devoid of a
legal basis as private respondents’ apparent reliance on the decree of
legal separation for doing away with petitioner’s consent to the
adoption.
The transfer of custody over the children to Anna Marie by virtue of
the decree of legal separation did not, of necessity, deprive petitioner
of parental authority for the purpose of placing the children up for
adoption. Article 213 of the Family Code states: ". . . in case of legal
separation of parents, parental authority shall be exercised by the
parent designated by the court." In awarding custody, the court
shall take into account "all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen
is unfit."
It should be noted, however, that the law only confers on the
innocent spouse the "exercise" of parental authority. Having custody
of the child, the innocent spouse shall implement the sum of
parental rights with respect to his rearing and care. The innocent
spouse shall have the right to the child’s services and earnings, and
the right to direct his activities and make decisions regarding his
care and control, education, health and religion.[50]

In a number of cases, this Court has considered parental authority,
the joint exercise of which is vested by the law upon the
parents,[51] as
"x x x a mass of rights and obligations which the law grants to
parents for the purpose of the children’s physical preservation and
development, as well as the cultivation of their intellect and the
education of their hearts and senses. As regards parental authority,
`there is no power, but a task; no complex of rights, but a sum of
duties; no sovereignty but a sacred trust for the welfare of the
minor.’
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. The
right attached to parental authority, being purely personal, the law
allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a children’s home or an orphan
institution. When a parent entrusts the custody of a minor to
another, such as a friend or godfather, even in a document, what is
given is merely temporary custody and it does not constitute a
renunciation of parental authority. Even if a definite renunciation is
manifest, the law still disallows the same.
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep them
in their custody and company."[52] (Italics supplied)
As such, in instant case, petitioner may not be deemed as having
been completely deprived of parental authority, notwithstanding the
award of custody to Anna Marie in the legal separation case. To
reiterate, that award was arrived at by the lower court on the basis
of the agreement of the spouses.
While parental authority may be waived, as in law it may be subject
151
to a compromise,[53] there was no factual finding in the legal
separation case that petitioner was such an irresponsible person
that he should be deprived of custody of his children or that there
are grounds under the law that could deprive him of parental
authority. In fact, in the legal separation case, the court thereafter
ordered the transfer of custody over the children from Anna Marie
back to petitioner. The order was not implemented because of Anna
Marie’s motion for reconsideration thereon. The Clavano family also
vehemently objected to the transfer of custody to the petitioner,
such that the latter was forced to file a contempt charge against
them.[54]
The law is clear that either parent may lose parental authority over
the child only for a valid reason. No such reason was established in
the legal separation case. In the instant case for adoption, the issue
is whether or not petitioner had abandoned his children as to
warrant dispensation of his consent to their adoption. Deprivation of
parental authority is one of the effects of a decree of adoption.[55] But
there cannot be a valid decree of adoption in this case precisely
because, as this Court has demonstrated earlier, the finding of the
courts below on the issue of petitioner’s abandonment of his family
was based on a misappreciation that was tantamount to non-
appreciation, of facts on record.
As regards the divorce obtained in the United States, this Court has
ruled in Tenchavez v. Escaño[56] that a divorce obtained by Filipino
citizens after the effectivity of the Civil Code is not recognized in this
jurisdiction as it is contrary to State policy. While petitioner is now
an American citizen, as regards Anna Marie who has apparently
remained a Filipino citizen, the divorce has no legal effect.
Parental authority is a constitutionally protected State policy borne
out of established customs and tradition of our people. Thus,

in Silva v. Court of Appeals,[57] a case involving the visitorial rights of
an illegitimate parent over his child, the Court expressed the opinion
that:
"Parents have the natural right, as well as the moral and legal duty,
to care for their children, see to their upbringing and safeguard their
best interest and welfare. This authority and responsibility may not
be unduly denied the parents; neither may it be renounced by them.
Even when the parents are estranged and their affection for each
other is lost, the attachment and feeling for their offsprings
invariably remain unchanged. Neither the law nor the courts allow
this affinity to suffer absent, of course, any real, grave and imminent
threat to the well-being of the child."
Since the incorporation of the law concerning adoption in the Civil
Code, there has been a pronounced trend to place emphasis in
adoption proceedings, not so much on the need of childless couples
for a child, as on the paramount interest of a child who needs the
love and care of parents. After the passage of the Child and Youth
Welfare Code and the Family Code, the discernible trend has
impelled the enactment of Republic Act No. 8043 on Intercountry
Adoption[58] and Republic Act No. 8552 establishing the rules on the
domestic adoption of Filipino children.[59]
The case at bar applies the relevant provisions of these recent laws,
such as the following policies in the "Domestic Adoption Act of
1998":
(a) To ensure that every child remains under the care and custody of
his/her parent(s) and be provided with love, care, understanding
and security towards the full and harmonious development of
his/her personality.[60]
(b) In all matters relating to the care, custody and adoption of a
child, his/her interest shall be the paramount consideration in
accordance with the tenets set forth in the United Nations (UN)
152
Convention on the Rights of the Child.[61]
(c) To prevent the child from unnecessary separation from his/her
biological parent(s).[62]
Inasmuch as the Philippines is a signatory to the United Nations
Convention on the Rights of the Child, the government and its
officials are duty bound to comply with its mandates. Of particular
relevance to instant case are the following provisions:
"States Parties shall respect the responsibilities, rights and duties of
parents . . . to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the
exercise by the child of the rights recognized in the present
Convention."[63]
"States Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct
contact with both parents on a regular basis, except if it is contrary
to the child’s best interests."[64]
"A child whose parents reside in different States shall have the right
to maintain on a regular basis, save in exceptional circumstances
personal relations and direct contacts with both parents . . ."[65]
"States Parties shall respect the rights and duties of the parents . . .
to provide direction to the child in the exercise of his or her right in
a manner consistent with the evolving capacities of the child."[66]
Underlying the policies and precepts in international conventions
and the domestic statutes with respect to children is the overriding
principle that all actuations should be in the best interests of the
child. This is not, however, to be implemented in derogation of the
primary right of the parent or parents to exercise parental authority
over him. The rights of parents vis-à-vis that of their children are
not antithetical to each other, as in fact, they must be respected and
 153

harmonized to the fullest extent possible.

Keith, Charmaine and Joseph Anthony have all grown up. Keith and
Charmaine are now of legal age while Joseph Anthony is
approaching eighteen, the age of majority. For sure, they shall be
endowed with the discretion to lead lives independent of their
parents. This is not to state that this case has been rendered moot
and academic, for their welfare and best interests regarding their
adoption, must be determined as of the time that the petition for
adoption was filed.[67] Said petition must be denied as it was filed
without the required consent of their father who, by law and under
the facts of the case at bar, has not abandoned them.

WHEREFORE, the instant petition for review on certiorari is

hereby GRANTED. The questioned Decision and Resolution of the
Court of Appeals, as well as the decision of the Regional Trial Court
of Cebu, are SET ASIDE thereby denying the petition for adoption of
Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the
spouse respondents Ronald and Maria Clara Clavano. This Decision
is immediately executory.

SO ORDERED.
 154

G.R. No. 221029 Entry of marriage in the Civil Registry of San Juan , Metro Manila,
by virtueof a judgment of divorce Japanese court.
REPUBLIC OF THE PHILIPPINES, Petitioner
vs Finding the petition to be sufficient in form and in substance,
MARELYN TANEDO MANALO, Respondent Branch 43 of the Regional Trial Court (RTC) of Dagupan City set the
case for initial hearing on April 25, 2012. The petition and the notice
RESOLUTION of initial hearing were published once a week for three consecutive
weeks in newspaper of general circulation. During the initial
peralta, J.: hearing, counsel for Manalo marked the documentary evidence
(consisting of the trial courts Order dated January 25, 2012,
This petition for review on certiorari under Rule 45 of the Rules of affidavit of publication, and issues of the Northern Journal dated
Court (Rules) seeks to reverse and set aside the September 18, 2014 February 21-27, 2012, February 28 - March 5, 2012, and March 6-
Decision1 and October 12, 2015 Resolution2 of the Court of Appeals 12, 2012) for purposes of compliance with the jurisdictional
(CA) in CA-G.R. CV No. 100076. The dispositive portion of the requirements.
Decision states:
The Office of the Solicitor General (OSG) entered its appearance for
WHEREFORE, the instant appeal is GRANTED. The Decision dated petitioner Republic of the Philippines authorizing the Office of the
15 October 2012 of the Regional Trial Court of Dagupan City, First City Prosecutor of Dagupan to appear on its behalf. Likewise, a
Judicial Region, Branch 43, in SPEC. PROC. NO. 2012-0005 Manifestation and Motion was filed questioning the title and/or
is REVERSED and SET ASIDE. caption of the petition considering that based on the allegations
therein, the proper action should be a petition for recognition and
Let a copy of this Decision be served on the Local Civil Registrar of enforcement of a foreign judgment.
San Juan, Metro Manila.
As a result, Manalo moved to admit an Amended Petition, which the
SO ORDERED.3 court granted. The Amended Petition, which captioned that if it is
also a petition for recognition and enforcement of foreign judgment
The facts are undisputed. alleged:

2. That petitioner is previously married in the Philippines to a

On January 10, 2012, respondent Marelyn Tanedo Manalo (Manalo)
filed a petition for cancellation of Japanese national named YOSHINO MINORO as shown by their
Marriage Contract xxx;

3. That recently, a case for divorce was filed by herein [petitioner] in
Japan and after die proceedings, a divorce decree dated December 6,
2011 was rendered by the Japanese Court x x x;
4. That at present, by virtue of the said divorce decree, petitioner
and her divorce Japanese husband are no longer living together and
in fact, petitioner and her daughter are living separately from said
Japanese former husband;
5. That there is an imperative need to have the entry of marriage in
Civil Registry of San Juan, Metro Manila cancelled, where the
petitioner and the former Japanese husband's marriage was
previously registered, in order that it would not appear anymore that
petitioner is still married to the said Japanese national who is no
longer her husband or is no longer married to her, she shall not be
bothered and disturbed by aid entry of marriage;
6. That this petition is filed principally for the purpose of causing
the cancellation of entry of the marriage between the petitioner and
the said Japanese national, pursuant to Rule 108 of the Revised
Rules of Court, which marriage was already dissolved by virtue of
the aforesaid divorce decree; [and]
7. That petitioner prays, among others, that together with the
cancellation of the said entry of her marriage, that she be allowed to
return and use her maiden surname, MANALO.4
Manalo was allowed to testify in advance as she was scheduled to
leave for Japan for her employment. Among the documents that
were offered and admitted were:
155
1. Court Order dated January 25, 2012, finding the petition and its
attachments to be sufficient in form and in substance;
2. Affidavit of Publication;
3. Issues of the Northern Journal dated February 21-27, 2012,
February 28 - March 5, 2012, and March 6-12, 2012;
4. Certificate of Marriage between Manalo and her former Japanese
husband;
5. Divorce Decree of Japanese court;
6. Authentication/Certificate issued by the Philippine Consulate
General in Osaka, Japan of the Notification of Divorce; and
7. Acceptance of Certificate of Divorce.5
The OSG did not present any controverting evidence to rebut the
allegations of Manalo.
On October 15, 2012, the trial court denied the petition for lack of
merit. In ruling that the divorce obtained by Manalo in Japan should
not be recognized, it opined that, based on Article 15 of the New
Civil Code, the Philippine law "does not afford Filipinos the right to
file for a divorce whether they are in the country or living abroad, if
they are married to Filipinos or to foreigners, or if they celebrated
their marriage in the Philippines or in another country" and that
unless Filipinos "are naturalized as citizens of another country,
Philippine laws shall have control over issues related to Filipinos'
family rights and duties, together with the determination of their

condition and legal capacity to enter into contracts and civil
relations, inclusing marriages."6
On appeal, the CA overturned the RTC decision. It held that Article
26 of the Family Code of the Philippines (Family Code) is applicable
even if it was Manalo who filed for divorce against her Japanese
husband because the decree may obtained makes the latter no
longer married to the former, capacitating him to remarry.
Conformably with Navarro, et al. V. Exec. Secretary Ermita, et
al.7 ruling that the meaning of the law should be based on the intent
of the lawmakers and in view of the legislative intent behind Article
26, it would be height of injustice to consider Manalo as still married
to the Japanese national, who, in turn, is no longer married to her.
For the appellate court, the fact that it was Manalo who filed the
divorce case is inconsequential. Cited as similar to this case was
Van Dorn v. Judge Romilo, Jr.8 where the mariage between a
foreigner an a Filipino was dissolved filed abroad by the latter.
The OSG filed a motion for reconsideration, but it was denied;
hence, this petition.
We deny the petition and partially affirm the CA decision.
Divorce, the legal dissolution of a lawful union for a cause arising
after the marriage, are of two types: (1) absolute divorce or a vinculo
matrimonii, which terminates the marriage, and (2) limited divorce
or a mensa et thoro, which suspends it and leaves the bond in full
force.9 In this jurisdiction, the following rules exist:
1. Philippine law does not provide for absolute divorce; hence,
our courts cannot grant it.10
156
2. Consistent with Articles 1511 and 1712 of the New Civil
Code, the marital bond between two Filipinos cannot be
dissolved even by an absolute divorce obtained abroad.13
3. An absolute divorce obtained abroad by a couple, who both
aliens, may be recognized in the Philippines, provided it is
consistent with their respective national laws.14
4. In mixed marriages involving a Filipino and a foreigner, the
former is allowed to contract a subsequent marriage in case
the absolute divorce is validly obtained abroad by the alien
spouse capacitating him or her to remarry.15
On July 6, 1987, then President Corazon C. Aquino signed into law
Executive Order (E.O.) No. 209, otherwise known as the Family Code
of the Philippines, which took effect on August 3, 1988.16 Shortly
thereafter , E.O. No. 227 was issued on July 17, 1987.17 Aside from
amending Articles 36 and 39 of the Family Code, a second
paragraph was added to Article 26.18 This provision was originally
deleted by the Civil Code Revision Committee (Committee),but it was
presented and approved at a Cabinet meeting after Pres. Aquino
signed E.O. No. 209.19 As modified, Article 26 now states:
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the where country where they
were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6),
36, 37 and 38.
Where a marriage between Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him her to remarry under Philippine law.

Paragraph 2 of Article 26 confers jurisdiction on Philippine courts to
extend the effect of a foreign divorce decree to a Filipino spouse
without undergoing trial to determine the validity of the dissolution
of the marriage.20 It authorizes our courts to adopt the effects of a
foreign divorce decree precisely because the Philippines does not
allow divorce.21 Philippine courts cannot try the case on the merits
because it is tantamount to trying a divorce case.22Under the
principles of comity, our jurisdiction recognizes a valid divorce
obtained by the spouse of foreign nationality, but the legal effects
thereof, e.g., on custody, care and support of the children or
property relations of the spouses, must still be determined by our
courts.23
According to Judge Alicia Sempio-Diy, a member of the Committee,
the idea of the amendment is to avoid the absurd situation of a
Filipino as still being married to his or her alien spouse, although
the latter is no longer married to the former because he or she had
obtained a divorce abroad that is recognized by his or national
law.24 The aim was that it would solved the problem of many Filipino
women who, under the New Civil Code, are still considered married
to their alien husbands even after the latter have already validly
divorced them under their (the husbands') national laws and
perhaps have already married again.25
In 2005, this Court concluded that Paragraph 2 of Article 26 applies
to a case where, at the time of the celebration of the marriage, the
parties were Filipino citizens, but later on, one of them acquired
foreign citizenship by naturalization, initiated a divorce proceeding,
and obtained a favorable decree. We held in Republic of the Phils. v.
Orbecido III:26
The jurisprudential answer lies latent in the 1998 case of Quita v.
Court of Appeals. In Quita, the parties were, as in this case, Filipino
157
citizens when they got married. The wife became naturalized
American citizen n 1954 and obtained a divorce in the same year.
The court therein hinted, by the way of obiter dictum, that a Filipino
divorced by his naturalized foreign spouse is no longer married
under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying
the rule of reason, we hold that Paragraph 2 of Article 26 should be
interpreted to include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of
them becomes naturalized as foreign citizen and obtains divorce
decree. The Filipino spouse should likewise be allowed to remarry as
if the other party were foreigner at the time of the solemnization of
the marriage. To rule otherwise would be to sanction absurdity and
injustice. x x x
If we are to give meaning to the legislative intent to avoid the absurd
situation where the Filipino spouse remains married to the alien
spouse who after obtaining a divorce is no longer married to the
Filipino spouse, then the instant case must be deemed as coming
within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between a
Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time
of the celebration of marriage, but their citizenship at the time valid
divorced obtained abroad by the alien spouse capacitating the latter
to remarry.
Now, the Court is tasked to resolve whether, under the same
provision, a Filipino citizen has the capacity to remarry under
Philippine law after initiating a divorce proceeding abroad and
obtaining a favorable judgment against his or her alien spouse who
is capacitated to remarry. Specifically, Manalo pleads for the
recognition of enforcement of the divorced decree rendered by the
Japanese court and for the cancellation of the entry of marriage in
the local civil registry " in order that it would not appear anymore
that she is still married to the said Japanese national who is no
longer her husband or is no longer married to her; [and], in the
event that [she] decides to be remarried, she shall not be bothered
and disturbed by said entry of marriage," and to use her maiden
surname.
We rule in the affirmative.
Both Dacasin v. Dacasin28 and Van Dorn29 already recognized a
foreign divorce decree that was initiated and obtained by the Filipino
spouse and extended its legal effects on the issues of child custody
and property relation,respectively.
In Dacasin, post-divorce, the former spouses executed an Agreement
for the joint custody of their minor daughter. Later on, the husband
who is a US citizen, sued his Filipino wife enforce the Agreement,
alleging that it was only the latter who exercised sole custody of
their child. The trial court dismissed the action for lack of
jurisdiction, on the ground, among others, that the divorce decree is
binding following the "nationality rule" prevailing in this jurisdiction.
158
The husband moved to reconsider, arguing that the divorce decree
obtained by his former wife is void, but it was denied. In ruling that
the trial court has jurisdiction to entertain the suit bu not to enforce
the Agreement, which is void, this Court said:
Nor can petitioner rely on the divorce decree's alleged invalidity - not
because the Illinois court lacked jurisdiction or that the divorced
decree violated Illinois law, but because the divorce was obtained by
his Filipino spouse - to support the Agreement's enforceability . The
argument that foreigners in this jurisdiction are not bound by
foreign divorce decrees is hardly novel. Van Dron v. Romillo settled
the matter by holding that an alien spouse of a Filipino is bound by
a divorce decree obtained abroad. There, we dismissed the alien
divorcee's Philippine suit for accounting of alleged post-divorce
conjugal property and rejected his submission that the foreign
divorce (obtained by the Filipino spouse) is not valid in this
jurisdiction x x x.30
Van Dorn was decided before the Family Code took into effect. There,
a complaint was filed by the ex-husband , who is a US citizen,
against his Filipino wife to render an accounting of a business that
was alleged to be a conjugal property and to be declared with right
to manage the same. Van Dorn moved to dismiss the case on the
ground that the cause of action was barred by previous judgment in
the divorce proceedings that she initiated, but the trial court denied
the motion. On his part, her ex-husband averred that the divorce
decree issued by the Nevada court could not prevail over the
prohibitive laws of the Philippines and its declared national policy;
that the acts and declaration of a foreign court cannot, especially if
the same is contrary to public policy, divest Philippine courts of
jurisdiction to entertain matters within its jurisdiction . In
dismissing the case filed by the alien spouse, the Court discussed

the effect of the foreign divorce on the parties and their conjugal
property in the Philippines. Thus:
There can be no question as to the validity of that Nevada divorce in
any of the States of the United States. The decree is binding on
private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of
the Union. What he is contending in this case is that the divorce is
not valid and binding in this jurisdiction, the same being contrary to
local law and public policy.
Is it true that owing to the nationality principle embodied in Article
15 of the Civil Code, only Philippine nationals are covered by the
policy and morality. However, aliens may obtain divorce abroad,
which may be recognized in the Philippines, provided they are valid
according to their national law. In this case, the divorce in Nevada
released private respondent from the marriage from standards of
American law, under which divorce dissolves the marriage. As
stated by the Federal Supreme Court of the United States
in Atherton vs. Atherton, 45 L. Ed. 794,799:
"The purpose and effect of a decree of divorce from the bond of
matrimony by a court of competent jurisdiction are to change the
existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie, when thus severed as
stone party, ceases to bind either. A husband without a wife, or a
wife without a husband, is unknown to the law. When the law
provides in the nature of penalty, that the guilty party shall not
marry again, that party, as well as the other, is still absolutely feed
from the bond of the former marriage."
Thus, pursuant to his national law, private respondent is no longer
the husband of petitioner. He would have no standing to sue in the
159
case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is estopped by his own representation before
said court from asserting his right over the alleged conjugal
property.
To maintain, as private respondent does, that under our laws,
petitioner has to be considered still married to private respondent
and still subject to a wife's obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her
heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to
be served.31
In addition, the fact that a validity obtained foreign divorce initiated
by the Filipino spouse can be recognized and given legal effects in
the Philippines is implied from Our rulings in Fujiki v. Marinay, et
al.32 and Medina v. Koike.33
In Fujiki, the Filipino wife, with the help of her husband, who is a
Japanese national, was able to obtain a judgment from Japan's
family court. Which declared the marriage between her and her
second husband, who is a Japanese national, void on the ground of
bigamy. In resolving the issue of whether a husband or wife of a
prior marriage can file a petition to recognize a foreign judgment
nullifying the subsequent marriage between his her spouse and a
foreign citizen on the ground of bigamy, We ruled:
Fujiki has the personality to file a petition to recognize the Japanese
Family Court judgment nullifying the marriage between Marinay and
Maekara on the ground of bigamy because the judgment concerns
his civil status as married to Marinay. For the same reason he has

the personality to file a petition under Rule 108 to cancel the entry
of marriage between Marinay and Maekara in the civil registry on
the basis of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and material
interest in maintaining the integrity of the marriage he contracted
and the property relations arising from it. There is also no doubt
that he is interested in the cancellation of an entry of a bigamous
marriage in the civil registry, which compromises the public record
of his marriage. The interest derives from the substantive right of
the spouse not only to preserve (or dissolve, in limited instances) his
most intimate human relation, but also to protect his property
interests that arise by operation of law the moment he contracts
marriage. These property interests in marriage included the right to
be supported "in keeping with the financial capacity of the family"
and preserving the property regime of the marriage.
Property rights are already substantive rights protected by the
Constitution, but a spouse's right in a marriage extends further to
relational rights recognized under Title III ("Rights and Obligations
between Husband and Wife") of the Family Code. x x x34
On the other hand, in Medina, the Filipino wife and her Japanese
husband jointly filed for divorce, which was
granted.1âwphi1 Subsequently, she filed a petition before the RTC
for judicial recognition of foreign divorce and declaration of capacity
to remarry pursuant to Paragraph 2 of Article 26. The RTC denied
the petition on the ground that the foreign divorce decree and the
national law of the alien spouse recognizing his capacity to obtain a
divorce must be proven in accordance with Sections 24 and 25 of
Rule 132 of the Revised Rules on Evidence. This Court agreed and
ruled that, consistent with Corpuz v. Sto. Tomas, et al.35 and Garcia
v. Recio,36 the divorce decree and the national law of the alien
160
spouse must be proven. Instead of dismissing the case, We referred
it to the CA for appropriate action including the reception of
evidence to determine and resolve the pertinent factual issues.
There is no compelling reason to deviate from the above-mentioned
rulings. When this Court recognized a foreign divorce decree that
was initiated and obtained by the Filipino spouse and extended its
legal effects on the issues of child custody and property relation, it
should not stop short in a likewise acknowledging that one of the
usual and necessary consequences of absolute divorce is the right to
remarry. Indeed, there is no longer a mutual obligation to live
together and observe fidelity. When the marriage tie is severed and
ceased to exist, the civil status and the domestic relation of the
former spouses change as both of them are freed from the marital
bond.
The dissent is of the view that, under the nationality principle,
Manalo's personal status is subject to Philippine law, which
prohibits absolute divorce. Hence, the divorce decree which she
obtained under Japanese law cannot be given effect, as she is,
without dispute, a national not of Japan, bit of the Philippines. It is
said that that a contrary ruling will subvert not only the intention of
the framers of the law, but also that of the Filipino peopl, as
expressed in the Constitution. The Court is, therefore, bound to
respect the prohibition until the legislature deems it fit to lift the
same.
We beg to differ.
Paragraph 2 of Artilce 26 speaksof "a divorce x x x validly obtained
abroad by the alien spouse capacitating him or her to remarry." Based
on a clear and plain reading of the provision, it only requires that
there be a divorce validly obtained abroad. The letter of the law does

not demand that the alien spouse should be the one who initiated
the proceeding wherein the divorce decree was granted. It does not
distinguish whether the Filipino spouse is the petitioner or the
respondent in the foreign divorce proceeding. The Court is bound by
the words of the statute; neither can We put words in the mouth of
lawmakers.37 The legislature is presumed to know the meaning of
the words to have used words advisely and to have expressed its
intent by the use of such words as are found in the statute. Verba
legis non est recedendum, or from the words if a statute there should
be departure."38
Assuming, for the sake of argument, that the word "obtained" should
be interpreted to mean that the divorce proceeding must be actually
initiated by the alien spouse, still, the Court will not follow the letter
of the statute when to do so would depart from the true intent of the
legislature or would otherwise yield conclusions inconsistent with
the general purpose of the act.39 Law have ends to achieve, and
statutes should be so construed as not to defeat but to carry out
such ends and purposes.40 As held in League of Cities of the Phils. et
al. v. COMELEC et. al.:41
The legislative intent is not at all times accurately reflected in the
manner in which the resulting law is couched. Thus, applying
a verba legis or strictly literal interpretation of a statute may render
it meaningless and lead to inconvience, an absurd situation or
injustice. To obviate this aberration, and bearing in mind the
principle that the intent or the spirit of the law is the law itself,
resort should be to the rule that the spirit of the law control its
letter.
To reiterate, the purpose of Paragraph 2 of Article 26 is to avoid the
absurd situation where the Filipino spouse remains married to the
alien spouse who, after a foreign divorce decree that is effective in
161
the country where it was rendered, is no longer married to the
Filipino spouse. The provision is a corrective measure is free to
marry under the laws of his or her countr.42 Whether the Filipino
spouse initiated the foreign divorce proceeding or not, a favorable
decree dissolving the marriage bond and capacitating his or her
alien spouse to remarry will have the same result: the Filipino
spouse will effectively be without a husband or wife. A Filipino who
initiated a foreign divorce proceeding is in the same place and in like
circumstances as a Filipino who is at the receiving end of an alien
initiated proceeding. Therefore, the subject provision should not
make a distinction. In both instance, it is extended as a means to
recognize the residual effect of the foreign divorce decree on a
Filipinos whose marital ties to their alien spouses are severed by
operations of their alien spouses are severed by operation on the
latter's national law.
Conveniently invoking the nationality principle is erroneous. Such
principle, found under Article 15 of the City Code, is not an absolute
and unbending rule. In fact, the mer e existence of Paragraph 2 of
Article 26 is a testament that the State may provide for an exception
thereto. Moreover, blind adherence to the nationality principle must
be disallowed if it would cause unjust discrimination and oppression
to certain classes of individuals whose rights are equally protected
by law. The courts have the duty to enforce the laws of divorce as
written by the Legislature only if they are constitutional.43
While the Congress is allowed a wide leeway in providing for a valid
classification and that its decision is accorded recognition and
respect by the court of justice, such classification may be subjected
to judicial review.44 The deference stops where the classification
violates a fundamental right, or prejudices persons accorded special
protection by the Constitution.45 When these violations arise, this
Court must discharge its primary role as the vanguard of

constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations.46 If a legislative classification
impermissibly interferes with the exercise of a fundamental right or
operates to the peculiar disadvantage of a suspect
class strict judicial scrutiny is required since it is presumed
unconstitutional, and the burden is upon the government to prove
that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such
interest.47
"Fundamental rights" whose infringement leads to strict scrutiny
under the equal protection clause are those basic liberties explicitly
or implicitly guaranteed in the Constitution.48 It includes the right to
free speech, political expression, press, assembly, and forth, the
right to travel, and the right to vote.49 On the other hand, what
constitutes compelling state interest is measured by the scale rights
and powers arrayed in the Constitution and calibrated by
history.50 It is akin to the paramount interest of the state for which
some individual liberties must give way, such as the promotion of
public interest, public safety or the general welfare.51 It essentially
involves a public right or interest that, because of its primacy,
overrides individual rights, and allows the former to take precedence
over the latter.52
Although the Family Code was not enacted by the Congress, the
same principle applies with respect to the acts of the President
which have the force and effect of law unless declared otherwise by
the court. In this case, We find that Paragraph 2 of Article 26
violates one of the essential requisites53 of the equal protection
clause.54 Particularly, the limitation of the provision only to a foreign
divorce decree initiated by the alien spouse is unreasonable as it is
based on superficial, arbitrary, and whimsical classification.
162
A Filipino who is married to another Filipino is not similarly situated
with a Filipino who is married to a foreign citizen. There are real,
material and substantial differences between them. Ergo, they
should not be treated alike, both as to rights conferred and liabilities
imposed. Without a doubt, there are political, economic cultural,
and religious dissimilarities as well as varying legal systems and
procedures, all too unfamiliar, that a Filipino national who is
married to an alien spouse has to contend with. More importantly,
while a divorce decree obtained abroad by a Filipino against another
Filipino is null and void, a divorce decree obtained by an alien
against his her Filipino spouse is recognized if made in accordance
with the national law of the foreigner.55
On the contrary, there is no real and substantial difference between
a Filipino who initiated a foreign divorce proceedings a Filipino who
obtained a divorce decree upon the instance of his or her alien
spouse . In the eyes of the Philippine and foreign laws, both are
considered as Filipinos who have the same rights and obligations in
a alien land. The circumstances surrounding them are alike. Were it
not for Paragraph 2 of Article 26, both are still married to their
foreigner spouses who are no longer their wives/husbands. Hence,
to make a distinction between them based merely on the superficial
difference of whether they initiated the divorce proceedings or not is
utterly unfair. Indeed, the treatment gives undue favor to one and
unjustly discriminate against the other.
Further, the differentiation in Paragraph 2 Article 26 is arbitrary.
There is inequality in treatment because a foreign divorce decree
that was initiated and obtained by a Filipino citizen against his or
her alien spouse would not be recognized even if based on grounds
similar to Articles 35, 36, 37 and 38 of the Family Code.56 In filing
for divorce based on these grounds, the Filipino spouse cannot be
accused of invoking foreign law at whim, tantamount to insisting

that he or she should be governed with whatever law he or she
chooses. The dissent's comment that Manalo should be "reminded
that all is not lost, for she may still pray for the severance of her
martial ties before the RTC in accordance with the mechanism now
existing under the Family Code" is anything but comforting. For the
guidance of the bench and the bar, it would have been better if the
dissent discussed in detail what these "mechanism" are and how
they specifically apply in Manalo's case as well as those who are
similarly situated. If the dissent refers to a petition for declaration of
nullity or annulment of marriage, the reality is that there is no
assurance that our courts will automatically grant the same.
Besides, such proceeding is duplicitous, costly, and protracted. All
to the prejudice of our kababayan.
It is argued that the Court's liberal interpretation of Paragraph 2 of
Artilce 26 encourages Filipinos to marry foreigners, opening the
floodgate to the indiscriminate practice of Filipinos marrying foreign
nationals or initiating divorce proceedings against their alien
spouses.
The supposition is speculative and unfounded.
First, the dissent falls into a hasty generalization as no data
whatsoever was sworn to support what he intends to prove. Second,
We adhere to the presumption of good faith in this jurisdiction.
Under the rules on evidence, it is disputable presumed (i.e.,
satisfactory if uncontradicted and overcome by other evidence) that
a person is innocent of crime or wrong,57 that a person takes
ordinary care of his concerns,59 that acquiescence resulted from a
belief that the thing acquiesced in was conformable to the law and
fact, 60 that a man and woman deporting themselves as husband
and wife have entered into a lawful contract of marriage,61 and that
the law has been obeyed.62 It is whimsical to easily attribute any
163
illegal, irregular or immoral conduct on the part of a Filipino just
because he or she opted to marry a foreigner instead of a fellow
Filipino. It is presumed that interracial unions are entered into out
of genuine love and affection, rather than prompted by pure lust or
profit. Third, We take judicial notice of the fact that Filipinos are
relatively more forbearing and conservative in nature and that they
are more often the victims or losing end of mixed marriages.
And Fourth, it is not for Us to prejudge the motive behind Filipino's
decision to marry an alien national. In one case, it was said:
Motive for entering into a marriage are varied and complex. The
State does not and cannot dictated on the kind of life that a couple
chooses to lead. Any attempt to regulate their lifestyle would go into
the realm of their right to privacy and would raise serious
constitutional questions. The right marital privacy allows married
couples to structure their marriages in almost any way they see it
fit, to live together or live apart, to have children or no children, to
love one another or not, and so on. Thus, marriages entered into for
other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they comply
with all the legal requisites, are equally valid. Love, though the ideal
consideration in a marriage contract, is not the only valid cause for
marriage. Other considerations, not precluded by law, may validly
support a marriage.63
The 1987 Constitution expresses that marriage, as an inviolable
social institution, is the foundation of the family and shall be
protected by the State.64 Nevertheless, it was not meant to be a
general prohibition on divorce because Commissioner Jose Luis
Martin C. Gascon, in response to a question by Father Joaquin G.
Bernas during the deliberations of the 1986 Constitutional
Commission, was categorical about this point.65 Their exchange
reveal as follows:

MR. RAMA. Mr. Presiding Officer, may I ask that Commissioner
Bernas be recognized.
THE PRESIDING OFFICER (Mr. Colayco). Commissioner Bernas is
recognized.
FR. BERNAS. Just one question, and I am not sure if it has been
categorically answered. I refer specifically to the proposal of
Commissioner Gascon. Is this be understood as a prohibition of a
general law on divorce? His intention is to make this a prohibition so
that the legislature cannot pass a divorce law.
MR. GASCON. Mr. Presding Officer, that was not primarily my
intention. My intention was primarily to encourage the social
institution of marriage, but not necessarily discourage divorce. But
now that the mentioned the issue of divorce, my personal opinion is
to discourage it. Mr. Presiding Officer.
FR. BERNAS. No my question is more categorical. Does this carry
the meaning of prohibiting a divorce law?
MR. GASCON. No Mr. Presiding Officer.
FR. BERNAS. Thank you.66
Notably, a law on absolute divorce is not new in our country.
Effectivity March 11, 1917, Philippine courts could grant an
absolute divorce in the grounds of adultery on the part of the wife or
concubinage on the part of the husband by virtue of Act No. 2710 of
the Philippine Legislature.67 On March 25, 1943, pursuant to the
authority conferred upon him by the Commander-in-Chief fo the
Imperial Japanese Forces in the Philippines and with the approval of
164
the latter, the Chairman of the Philippine Executive Commission
promulgated an E.O. No. 141 ("New Divorce Law"), which repealed
Act No. 2710 and provided eleven ground for absolute divorce, such
as intentional or unjustified desertion continuously for at least one
year prior to the filing of the action, slander by deed or gross insult
by one spouse against the other to such an extent as to make
further living together impracticable, and a spouse's incurable
insanity.68 When the Philippines was liberated and the
Commonwealth Government was restored, it ceased to have force
and effect and Act No. 2710 again prevailed.69 From August 30,
1950, upon the effectivity of Republic Act No. 836 or the New Civil
Code, an absolute divorce obatined by Filipino citizens, whether here
or abroad, is no longer recognized.70
Through the years, there has been constant clamor from various
sectors of the Philippine society to re-institute absolute divorce. As a
matte of fcat, in the currnet 17th Congress, House Bill (H.B.) Nos.
11671 106272 238073 and 602774 were filed in the House of
representatives. In substitution of these bills, H.B. No. 7303
entitled "An Act Instituting Absolute Divorce and Dissolution of
Marriage in the Philippines" or the Absolute Divorce Act of 2018 was
submitted by the House Committee on Population
And Family Relations of February 8, 2018. It was approved on
March 19, 2018 on Third Reading - with 134 in favor, 57 against,
and 2 absentations. Under the bill, the grounds for a judicial decree
of absolute divorce are as follows:
1. The grounds for legal separation under Article 55 of the Family
Code, modified or amended, as follows:

a. Physical violence or grossly abusive conduct directed
against the petitioner, a common child, or a child of the
petitioner;
b. Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
c. Attempt of respondent to corrupt or induce the petitioner, a
common child, or a child of a petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
d. Final judgment sentencing the respondent to imprisonment
of more than six (6) years, even if pardoned;
e. Drug addiction or habitual alchoholism ro chronic
gambling of respondent;
f. Homosexuality of the respondent;
g. Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
h. Marital infidelity or perversion or having a child with
another person other than one's spouse during the marriage,
except when upon the mutual agreement of the spouses, a
child is born to them by in vitro or a similar procedure or
when the wife bears a child after being a victim of rape;
i. attempt by the respondent against the life of the petitioner,
a common child or a child of a petitioner; and
165
j. Abandonment of petitioner by respondent without
justifiable cause for more than one (1) year.
When the spouses are legally separated by judicial decree for more
thath two (2) years, either or both spouses can petition the proper
court for an absolute divorce based on said judicial decree of legal
separation.
1. Grounds for annulment of marriage under Article 45 of the Family
Code restated as follows:
a. The party in whose behalf it is sought to have the marriage
annulled was eighteen (18) years of age or over but below
twety-one (21), and the marriage was solemnized without the
consent of the parents guradian or personl having substitute
parental authority over the party, in that order, unless after
attaining the age of twenty-one (21) such party freely
cohabited with the other and both lived together as husband
and wife;
b. either party was of unsound mind, unless such party after
coming to reason, freely cohabited with the other as husband
and wife;
c. The consent of either party was obtained by fraud, unless
such party afterwards with full knowledge of the facts
constituting the fraud, freely cohabited with the other
husband and wife;
d. consent of either party was obtained by force, intimidation
or undue influence, unless the same having disappeared or

ceased, such party thereafter freely cohabited with the other
as husband and wife;
e. Either party was physically incapable of consummating the
marriage with the other and such incapacity continues or
appears to be incurable; and
f. Either part was afflicted with the sexually transmissible
infection found to be serious or appears to be incurable.
Provided, That the ground mentioned in b, e and f existed either at
the time of the marriage or supervening after the marriage.
1. When the spouses have been separated in fact for at least five (5)
years at the time the petition for absolute divorce is filed, and the
reconciliation is highly improbable;
2. Psychological incapacity of either spouse as provided for in Article
36 of the Family Code, whether or not the incapacity was present at
the time of the celebration of the marriage or later;
3. When one of the spouses undergoes a gender reassignment
surgery or transition from one sex to another, the other spouse is
entitled to petition for absolute divorce with the transgender or
transsexual as respondent, or vice-versa;
4. Irreconcilable marital differences and conflicts which have
resulted in the total breakdown of the marriage beyond repair,
despite earnest and repeated efforts at reconciliation.
To be sure, a good number of Filipinos led by the Roman Catholic
Church react adversely to any attempt to enact a law on absolute
166
divorce, viewing it as contrary to our customs, morals, and
traditions that has looked upon marriage and family as an
institution and their nature of permanence,
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects
can or cannot do. They can neither cause the government to adopt
their particular doctrines as policy for everyone, nor can they cause
the government to restrict other groups. To do so, in simple terms,
would cause the State to adhere to a particular religion and, thus
establish a state religion.76
The Roman Catholic Church can neither impose its beliefs and
convictions on the State and the rest of the citizenry nor can it
demand that the nation follow its beliefs, even if it is sincerely
believes that they are good for country.77While marriage is
considered a sacrament, it has civil and legal consequences which
are governed by the Family Code.78 It is in this aspect, bereft of any
ecclesiastical overtone, that the State has a legitimate right and
interest to regulate.
The declared State policy that marriage, as an inviolable social
institution, is a foundation of the family and shall be protected by
the State, should not be read in total isolation but must be
harmonized with other constitutional provision. Aside from
strengthening the solidarity of the Filipino family, the State is
equally mandated to actively promote its total development.79 It is
also obligated to defend, among others, the right of children to
special protection from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial to their
development.80 To Our mind, the State cannot effectively enforce
these obligation s if We limit the application of Paragraph 2 or
Article 26 only those foreign divorce initiated by the alien spouse. It

is not amiss to point that the women and children are almost always
the helpless victims of all forms of domestic abuse and violence. In
fact, among the notable legislation passed in order to minimize, if
not eradicate, the menace are R.A. No. 9262 ("Anti-Violence Against
Women and Their Children Act of 2004") R.A. No. 9710 ("The Magna
Carta of Women"), R.A. No 10354 ("The Responsible Parenthood and
Reproductive Health Act of 2012") and R.A. No 9208 ("Anti-Trafficking
in Person Act of 2003"), as amended by R.A. No.
10364 ("ExpandedAnti-Trafficking in Persons Act of 2012").Moreover,
in protecting and strengthening the Filipino family as a basic
autonomous social institution, the Court must not lose sight of the
constitutional mandate to value the dignity of every human person,
guarantee full respect for human rights, and ensure the
fundamental equality before the law of women and men.81
A prohibitive view of Paragraph 2 of Article 26 would do more harm
than good. If We disallow a Filipino citizen who initiated and
obtained a foreign divorce from the coverage of Paragraph 2 Article
26 and still require him or her to first avail of the existing
"mechanisms" under the Family Code, any subsequent relationship
that he or she would enter in the meantime shall be considered as
illicit in the eyes of the Philippine law. Worse, any child born out
such "extra-marital" affair has to suffer the stigma of being branded
as illegitimate. Surely, these are just but a few of the adverse
consequences, not only to the parent but also to the child, if We are
to hold a restrictive interpretation of the subject provision. The irony
is that the principle of inviolability of marriage under Section 2,
Article XV of the Constitution is meant to be tilted in favor of
marriage and against unions not formalized by marriage, but
without denying State protection and assistance to live-in
arrangements or to families formed according to indigenous
customs.82
167
This Court should not turn a blind eye to the realities of the present
time. With the advancement of communication and information
technology, as well as the improvement of the transportation system
that almost instantly connect people from all over the world, mixed
marriages have become not too uncommon. Likewise, it is
recognized that not all marriages are made in heaven and that
imperfect humans more often than not create imperfect
unions.83 Living in a flawed world, the unfortunate reality for some
is that the attainment of the individual's full human potential and
self fulfillment is not found and achieved in the context of a
marriage. Thus it is hypocritical to safeguard the quantity of existing
marriages and, at the same time, brush aside the truth that some of
them are rotten quality.
Going back, we hold that marriage, being a mutual and shared
commitment between two parties, cannot possibly be productive of
any good to the society where one is considered released from the
marital bond while the other remains bound to it.84 In reiterating
that the Filipino spouse should not be discriminated against in his
or her own country if the ends of justice are to be served, San Luis v.
San Luis85 quoted:
x x x In Alonzo v. Intermediate Applellate Court, the Court stated:
But as has also been aptly observed, we test a law by its results: and
likewise, we may add, by its purposes. It is a cardinal rule that, in
seeking the meaning of the law, the first concern of the judge should
be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way
as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good
motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in
consonance with justice. Law and justice are inseparable, and we
must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular
case because only of our nature and functions, to apply them just
the same, in slavish obedience to their language. What we do
instead is find a balance between the sord and the will, that justice
may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not
unfeelingly apply the law as it worded, yielding like robots to the
literal command without regard to its cause and consequence.
"Courts are apt to err by sticking too closely to the words of law," so
we are warned, by Justice Holmes agaian, "where these words
import a policy that goes beyond them."
xxxx
More that twenty centuries ago, Justinian defined justice "as the
constant and perpetual wish to render every one of his due." That
wish continues to motivate this Court when it assesses the facts and
the law in ever case brought to it for decisions. Justice is always an
essential ingredient of its decisions. Thus when the facts warrant,
we interpret the law in a way that will render justice, presuming that
it was the intention if the lawmaker, to begin with, that the law be
dispensed with justice.86
Indeed, where the interpretation of a statute according to its exact
and literal import would lead to mischievous results or contravene
the clear purpose of the legislature, it should be construed according
to its spirit and reason, disregarding as far as necessary the letter of
the law.87 A statute may therefore, be extended to cases not within
168
the literal meaning of its terms, so long as they come within its spirit
or intent.88
The foregoing notwithstanding, We cannot yet write finis to this
controversy by granting Manalo's petition to recognize and enforce
the divorce decree rendered by the Japanese court and to cancel the
entry of marriage in the Civil Registry of San Juan, Metro Manila.
Jurisprudence has set guidelines before the Philippine courts
recognize a foreign judgment relating to the status of a marriage
where one of the parties is a citizen of foreign country. Presentation
solely of the divorce decree will not suffice.89 The fact of divorce must
still first be proven.90 Before a a foreign divorce decree can be
recognized by our courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law
allowing it.91
x x x Before a foreign judgment is given presumptive evidentiary
value, the document must first be presented and admitted in
evidence. A divorce obtained abroad is proven by the divorce decree
itself. The decree purports to be written act or record of an act of an
official body or tribunal of foreign country.
Under Sections 24 and 25 of Rule 132, on the other hand, a writing
or document may be proven as a public or official record of a foreign
country by either (1) an official publication or (2) a copy thereof
attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b)authenticated by
the seal of his office.92
 169

In granting Manalo's petition, the CA noted:
In this case, Petitioner was able to submit before the court a quo the
1) Decision of the Japanese Court allowing the divorce; 2)
the Authentication/Certificate issued by the Philippines Consulate
General in Osaka, Japan of the Decree of Divorce; and 3) Acceptance
of Certificate of Divorce byu the Petitioner and the Japanese
national. Under Rule 132, Sections 24 and 25, in relation to Rule
39, Section 48 (b) of the Rules of Court, these documents sufficiently
prove the subject Divorce Decree as a fact. Thus, We are constrained
to recognize the Japanese Court's judgment decreeing the divorce.93
If the opposing party fails to properly object, as in this case, the
divorce decree is rendered admissible a a written act of the foreign
court.94 As it appears, the existence of the divorce decree was not
denied by the OSG; neither was the jurisdiction of the divorce court
impeached nor the validity of its proceedings challenged on the
ground of collusion, fraud, or clear mistake of fact or law, albeit an
opportunity to do so.95
Since the divorce was raised by Manalo, the burden of proving the
pertinent Japanese law validating it, as well as her former
husband's capacity to remarry, fall squarely upon her. Japanese
laws on persons and family relations are not among those matters
that Filipino judges are supposed to know by reason of their judicial
function.
WHEREFORE, the petition for review on certiorari is DENIED. The
September 18, 2014 Decision and October 12, 2015 Resolution if
the Court of Appeals in CA G.R. CV. No. 100076, are AFFIRMED IN
PART. The case is REMANDED to the court of origin for further
proceedings and reception of evidence as to the relevant Japanese
law on divorce.
SO ORDERED

Nonetheless, the Japanese law on divorce must still be proved.

x x x The burden of proof lies with the "party who alleges the
existence of a fact or thing necessary in the prosecution or defense
of an action." In civil cases, plaintiffs have the burden of proving the
material defendants have the burden of proving the material
allegations in their answer when they introduce new matters. x x x

It is well-settled in our jurisdiction that our courts cannot take

judicial notice of foreign laws. Like any other facts, they must
alleged and proved. x x x The power of judicial notice must be
exercise d with caution, and every reasonable doubt upon the
subject should be resolved in the negative.96

G.R. No. 136490 October 19, 2000
BRENDA B. MARCOS, petitioner,
vs.
WILSON G. MARCOS, respondent.
DECISION
PANGANIBAN, J.:
Psychological incapacity, as a ground for declaring the nullity of a
marriage, may be established by the totality of evidence presented.
There is no requirement, however, that the respondent should be
examined by a physician or a psychologist as a conditio sine qua
non for such declaration.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the July 24, 1998 Decision1 of the Court of
Appeals (CA) in CA-GR CV No. 55588, which disposed as follows:
"WHEREFORE, the contested decision is set aside and the marriage
between the parties is hereby declared valid."2
Also challenged by petitioner is the December 3, 1998 CA Resolution
denying her Motion for Reconsideration.
Earlier, the Regional Trial Court (RTC) had ruled thus:
"WHEREFORE, the marriage between petitioner Brenda B. Marcos
and respondent Wilson G. Marcos, solemnized on September 6,
170
1982 in Pasig City is declared null and void ab initio pursuant to Art.
36 of the Family Code. The conjugal properties, if any, is dissolved
[sic] in accordance with Articles 126 and 129 of the same Code in
relation to Articles 50, 51 and 52 relative to the delivery of the
legitime of [the] parties' children. In the best interest and welfare of
the minor children, their custody is granted to petitioner subject to
the visitation rights of respondent.
"Upon finality of this Decision, furnish copy each to the Office of the
Civil Registrar of Pasig City where the marriage was solemnized, the
National Census and Statistics Office, Manila and the Register of
Deeds of Mandaluyong City for their appropriate action consistent
with this Decision.
"SO ORDERED."
The Facts
The facts as found by the Court of Appeals are as follows:
"It was established during the trial that the parties were married
twice: (1) on September 6, 1982 which was solemnized by Judge
Eriberto H. Espiritu at the Municipal Court of Pasig (Exh. A); and (2)
on May 8, 1983 which was solemnized by Rev. Eduardo L. Eleazar,
Command Chaplain, at the Presidential Security Command Chapel
in Malacañang Park, Manila (Exh. A-1). Out of their marriage, five
(5) children were born (Exhs. B, C, D, E and F).
"Appellant Wilson G. Marcos joined the Armed Forces of the
Philippines in 1973. Later on, he was transferred to the Presidential
Security Command in Malacañang during the Marcos Regime.
Appellee Brenda B. Marcos, on the other hand, joined the Women's

Auxilliary Corps under the Philippine Air Force in 1978. After the
Edsa Revolution, both of them sought a discharge from the military
service.
"They first met sometime in 1980 when both of them were assigned
at the Malacañang Palace, she as an escort of Imee Marcos and he
as a Presidential Guard of President Ferdinand Marcos. Through
telephone conversations, they became acquainted and eventually
became sweethearts.
"After their marriage on September 6, 1982, they resided at No.
1702 Daisy Street, Hulo Bliss, Mandaluyong, a housing unit which
she acquired from the Bliss Development Corporation when she was
still single.
"After the downfall of President Marcos, he left the military service in
1987 and then engaged in different business ventures that did not
however prosper. As a wife, she always urged him to look for work so
that their children would see him, instead of her, as the head of the
family and a good provider. Due to his failure to engage in any
gainful employment, they would often quarrel and as a consequence,
he would hit and beat her. He would even force her to have sex with
him despite her weariness. He would also inflict physical harm on
their children for a slight mistake and was so severe in the way he
chastised them. Thus, for several times during their cohabitation, he
would leave their house. In 1992, they were already living
separately.
"All the while, she was engrossed in the business of selling "magic
uling" and chickens. While she was still in the military, she would
first make deliveries early in the morning before going to
Malacañang. When she was discharged from the military service,
she concentrated on her business. Then, she became a supplier in
171
the Armed Forces of the Philippines until she was able to put up a
trading and construction company, NS Ness Trading and
Construction Development Corporation.
"The 'straw that broke the camel's back' took place on October 16,
1994, when they had a bitter quarrel. As they were already living
separately, she did not want him to stay in their house anymore. On
that day, when she saw him in their house, she was so angry that
she lambasted him. He then turned violent, inflicting physical harm
on her and even on her mother who came to her aid. The following
day, October 17, 1994, she and their children left the house and
sought refuge in her sister's house.
"On October 19, 1994, she submitted herself [to] medical
examination at the Mandaluyong Medical Center where her injuries
were diagnosed as contusions (Exh. G, Records, 153).
"Sometime in August 1995, she together with her two sisters and
driver, went to him at the Bliss unit in Mandaluyong to look for their
missing child, Niko. Upon seeing them, he got mad. After knowing
the reason for their unexpected presence, he ran after them with a
samurai and even [beat] her driver.
"At the time of the filing of this case, she and their children were
renting a house in Camella, Parañaque, while the appellant was
residing at the Bliss unit in Mandaluyong.
"In the case study conducted by Social Worker Sonia C. Millan, the
children described their father as cruel and physically abusive to
them (Exh. UU, Records, pp. 85-100).

"The appellee submitted herself to psychologist Natividad A. Dayan,
Ph.D., for psychological evaluation (Exh. YY, Records, pp. 207-216),
while the appellant on the other hand, did not.
"The court a quo found the appellant to be psychologically
incapacitated to perform his marital obligations mainly because of
his failure to find work to support his family and his violent attitude
towards appellee and their children, x x x."3
Ruling of the Court of Appeals
Reversing the RTC, the CA held that psychological incapacity had
not been established by the totality of the evidence presented. It
ratiocinated in this wise:
"Essential in a petition for annulment is the allegation of the root
cause of the spouse's psychological incapacity which should also be
medically or clinically identified, sufficiently proven by experts and
clearly explained in the decision. The incapacity must be proven to
be existing at the time of the celebration of the marriage and shown
to be medically or clinically permanent or incurable. It must also be
grave enough to bring about the disability of the parties to assume
the essential obligations of marriage as set forth in Articles 68 to 71
and Articles 220 to 225 of the Family Code and such non-complied
marital obligations must similarly be alleged in the petition,
established by evidence and explained in the decision.
"In the case before us, the appellant was not subjected to any
psychological or psychiatric evaluation. The psychological findings
about the appellant by psychiatrist Natividad Dayan were based only
on the interviews conducted with the appellee. Expert evidence by
qualified psychiatrists and clinical psychologists is essential if only
to prove that the parties were or any one of them was mentally or
172
psychically ill to be truly incognitive of the marital obligations he or
she was assuming, or as would make him or her x x x unable to
assume them. In fact, he offered testimonial evidence to show that
he [was] not psychologically incapacitated. The root cause of his
supposed incapacity was not alleged in the petition, nor medically or
clinically identified as a psychological illness or sufficiently proven
by an expert. Similarly, there is no evidence at all that would show
that the appellant was suffering from an incapacity which [was]
psychological or mental - not physical to the extent that he could
not have known the obligations he was assuming: that the
incapacity [was] grave, ha[d] preceded the marriage and [was]
incurable."4
Hence, this Petition.5
Issues
In her Memorandum,6 petitioner presents for this Court's
consideration the following issues:
"I. Whether or not the Honorable Court of Appeals could set
aside the findings by the Regional Trial Court of psychological
incapacity of a respondent in a Petition for declaration of
nullity of marriage simply because the respondent did not
subject himself to psychological evaluation.
II. Whether or not the totality of evidence presented and the
demeanor of all the witnesses should be the basis of the
determination of the merits of the Petition."7
The Court's Ruling

We agree with petitioner that the personal medical or psychological
examination of respondent is not a requirement for a declaration of
psychological incapacity. Nevertheless, the totality of the evidence
she presented does not show such incapacity.
Preliminary Issue: Need for Personal Medical Examination
Petitioner contends that the testimonies and the results of various
tests that were submitted to determine respondent's psychological
incapacity to perform the obligations of marriage should not have
been brushed aside by the Court of Appeals, simply because
respondent had not taken those tests himself. Petitioner adds that
the CA should have realized that under the circumstances, she had
no choice but to rely on other sources of information in order to
determine the psychological capacity of respondent, who had
refused to submit himself to such tests.
In Republic v. CA and Molina,8 the guidelines governing the
application and the interpretation of psychological
incapacity referred to in Article 36 of the Family Code 9 were laid
down by this Court as follows:
"1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the marriage and against
its dissolution and nullity. This is rooted in the fact that both
our Constitution and our laws cherish the validity of marriage
and unity of the family. Thus, our Constitution devotes an
entire Article on the Family, recognizing it 'as the foundation
of the nation.' It decrees marriage as legally 'inviolable,'
thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be 'protected' by
the state.
173
xxx xxx xxx
2) The root cause of the psychological incapacity must be: (a)
medically or clinically identified, (b) alleged in the complaint,
(c) sufficiently proven by experts and (d) clearly explained in
the decision. Article 36 of the Family Code requires that the
incapacity must be psychological - not physical, although its
manifestations and/or symptoms may be physical. The
evidence must convince the court that the parties, or one of
them, was mentally or psychically ill to such an extent that
the person could not have known the obligations he was
assuming, or knowing them, could not have given valid
assumption thereof. Although no example of such incapacity
need be given here so as not to limit the application of the
provision under the principle of ejusdem generis, nevertheless
such root cause must be identified as a psychological illness
and its incapacitating nature fully explained. Expert evidence
may be given by qualified psychiatrists and clinical
psychologists.
3) The incapacity must be proven to be existing at 'the time of
the celebration' of the marriage. The evidence must show that
the illness was existing when the parties exchanged their 'I
do's.' The manifestation of the illness need not be perceivable
at such time, but the illness itself must have attached at such
moment, or prior thereto.
4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those

not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to
cure them but not be psychologically capacitated to procreate,
bear and raise his/her own children as an essential obligation
of marriage.
5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, 'mild characteriological peculiarities, mood
changes, occasional emotional outbursts cannot be accepted
as root causes. The illness must be shown as downright
incapacity or inability, not a refusal, neglect or difficulty,
much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
6) The essential marital obligations must be those embraced
by Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the
decision.
7) Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our
courts.
xxx xxx xxx
174
(8) The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the
state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition. The
Solicitor General, along with the prosecuting attorney, shall
submit to the court such certification within fifteen (15) days
from the date the case is deemed submitted for resolution of
the court. The Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon
1095."10
The guidelines incorporate the three basic requirements earlier
mandated by the Court in Santos v. Court of
Appeals:11 "psychological incapacity must be characterized by (a)
gravity (b) juridical antecedence, and (c) incurability." The foregoing
guidelines do not require that a physician examine the person to be
declared psychologically incapacitated. In fact, the root cause may
be "medically or clinically identified." What is important is the
presence of evidence that can adequately establish the
party's psychological condition. For indeed, if the totality of evidence
presented is enough to sustain a finding of psychological incapacity,
then actual medical examination of the person concerned need not
be resorted to.
Main Issue: Totality of Evidence Presented
The main question, then, is whether the totality of the evidence
presented in the present case -- including the testimonies of
petitioner, the common children, petitioner's sister and the social
worker -- was enough to sustain a finding that respondent was
psychologically incapacitated.
 175

We rule in the negative. Although this Court is sufficiently convinced
that respondent failed to provide material support to the family and
may have resorted to physical abuse and abandonment, the totality
of his acts does not lead to a conclusion of psychological incapacity
on his part. There is absolutely no showing that his "defects" were
already present at the inception of the marriage or that they are
incurable.
Verily, the behavior of respondent can be attributed to the fact that
he had lost his job and was not gainfully employed for a period of
more than six years. It was during this period that he became
intermittently drunk, failed to give material and moral support, and
even left the family home.
Thus, his alleged psychological illness was traced only to said period
and not to the inception of the marriage. Equally important, there is
no evidence showing that his condition is incurable, especially now
that he is gainfully employed as a taxi driver.1âwphi1
petitioner refers only to grounds for legal separation, not for
declaring a marriage void.
Because Article 36 has been abused as a convenient divorce law,
this Court laid down the procedural requirements for its invocation
in Molina. Petitioner, however, has not faithfully observed them.
In sum, this Court cannot declare the dissolution of the marriage for
failure of petitioner to show that the alleged psychological incapacity
is characterized by gravity, juridical antecedence and incurability;
and for her failure to observe the guidelines outlined in Molina.
WHEREFORE, the Petition is DENIED and assailed
Decision AFFIRMED, except that portion requiring personal medical
examination as a conditio sine qua non to a finding of psychological
incapacity. No costs.
SO ORDERED.

Article 36 of the Family Code, we stress, is not to be confused with a

divorce law that cuts the marital bond at the time the causes
therefor manifest themselves. It refers to a serious psychological
illness afflicting a party even before the celebration of the marriage.
It is a malady so grave and so permanent as to deprive one of
awareness of the duties and responsibilities of the matrimonial bond
one is about to assume. These marital obligations are those provided
under Articles 68 to 71, 220, 221 and 225 of the Family Code.

Neither is Article 36 to be equated with legal separation, in which

the grounds need not be rooted in psychological incapacity but on
physical violence, moral pressure, moral corruption, civil
interdiction, drug addiction, habitual alcoholism, sexual infidelity,
abandonment and the like.12 At best, the evidence presented by

G.R. No. 82606 December 18, 1992
PRIMA PARTOSA-JO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and HO HANG (with
aliases JOSE JO and CONSING), respondents.
CRUZ, J.:
The herein private respondent, Jose Jo, admits to having cohabited
with three women and fathered fifteen children. The first of these
women, the herein petitioner, claims to be his legal wife whom he
begot a daughter, Monina Jo. The other women and their respective
offspring are not parties of these case.
In 1980, the petitioner filed a complaint against Jo for judicial
separation of conjugal property, docketed as Civil Case No. 51, in
addition to an earlier action for support, also against him and
docketed as Civil Case No. 36, in the Regional Trial Court of Negros
Oriental, Branch 35.
The two cases were consolidated and tried jointly. On November 29,
1983, Judge German G. Lee, Jr. rendered an extensive decision, the
dispositive portion of which read:
WHEREFORE, in view of all the foregoing arguments
and considerations, this court hereby holds that the
plaintiff Prima Partosa was legally married to Jose Jo
alias Ho Hang, alias Consing, and, therefore, is entitled
to support as the lawfully wedded wife and the
176
defendant is hereby ordered to give a monthly support
of P500.00 to the plaintiff Prima Partosa, to be paid on
or before the 5th day of every month, and to give to the
plaintiff the amount of P40,000.00 for the construction
of the house in Zamboanguita, Negros Oriental where
she may live separately from the defendant being
entitled under the law to separate maintenance being
the innocent spouse and to pay the amount of
P19,200.00 to the plaintiff by way of support in arrears
and to pay the plaintiff the amount of P3,000.00 in the
concept of attorney's fees.
As will be noticed, there was a definite disposition of the complaint
for support but none of the complaint for judicial separation of
conjugal property.
Jo elevated the decision to the Court of Appeals, which affirmed the
ruling of the trial court in the complaint for support. 1 The complaint
for judicial separation of conjugal property was dismissed for lack of
a cause of action and on the ground that separation by agreement
was not covered by Article 178 of the Civil Code.
When their motions for reconsideration were denied, both parties
came to this Court for relief. The private respondent's petition for
review on certiorari was dismissed for tardiness in our resolution
dated February 17, 1988, where we also affirmed the legality of the
marriage between Jose and Prima and the obligation of the former to
support her and her daughter.
This petition deals only with the complaint for judicial separation of
conjugal property.

It is here submitted that the Court of Appeals erred in holding that:
a) the judicial separation of conjugal property sought was not
allowed under Articles 175, 178 and 191 of the Civil Code; and b) no
such separation was decreed by the trial court in the dispositive
portion of its decision.
The private respondent contends that the decision of the trial court
can longer be reviewed at this time because it has a long since
become final and executory. As the decretal portion clearly made no
disposition of Civil Case No. 51, that case should be considered
impliedly dismissed. The petitioner should have called the attention
of the trial court to the omission so that the proper rectification
could be made on time. Not having done so, she is now concluded by
the said decision, which can no longer be corrected at this late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case No. 51 in
the dispositive portion of the decision of the trial court, the
petitioner argues that a disposition of the case was nonetheless
made in the penultimate paragraph of the decision reading as
follows:
It is, therefore, hereby ordered that all properties in
question are considered properties of Jose Jo, the
defendant in this case, subject to separation of
property under Article 178, third paragraph of the Civil
Code, which is subject of separate proceedings as
enunciated herein.
The petitioner says she believed this to be disposition enough and so
did not feel it was necessary for her to appeal, particularly since the
order embodied in that paragraph was in her favor. It was only when
177
the respondent court observed that there was no dispositive portion
regarding that case and so ordered its dismissal that she found it
necessary to come to this Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete
insofar as it carried no ruling on the complaint for judicial
separation of conjugal property although it was extensively
discussed in the body of the decision. The drafting of the decision
was indeed not exactly careful. The petitioner's counsel, noting this,
should have taken immediate steps for the rectification for the
omission so that the ruling expressed in the text of the decision
could have been embodied in the decretal portion. Such alertness
could have avoided this litigation on a purely technical issue.
Nevertheless, the technicality invoked in this case should not be
allowed to prevail over considerations of substantive justive. After
all, the technical defect is not insuperable. We have said time and
again that where there is an ambiguity caused by an omission or a
mistake in the dispositive portion of the decision, this Court may
clarify such an ambiguity by an amendment even after the judgment
have become final. 2 In doing so, the Court may resort to the
pleading filed by the parties and the findings of fact and the
conclusions of law expressed in the text or body of the decision. 3
The trial court made definite findings on the complaint for judicial
separation of conjugal property, holding that the petitioner and the
private respondent were legally married and that the properties
mentioned by the petitioner were acquired by Jo during their
marriage although they were registered in the name of the apparent
dummy.

There is no question therefore that the penultimate paragraph of the
decision of the trial court was a ruling based upon such findings
and so should have been embodied in the dispositive portion. The
respondent court should have made the necessary modification
instead of dismissing Civil Case No. 51 and thus upholding mere
form over substance.
In the interest of substantive justice, and to expedite these
proceedings, we hereby make such modification.
And now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the ground that
the separation of the parties was due to their agreement and not
because of abondonment. The respondent court relied mainly on the
testimony of the petitioner, who declared under oath that she left
Dumaguete City, where she and Jo were living together "because
that was our agreement." It held that a agreement to live separately
without just cause was void under Article 221 of the Civil Code and
could not sustain any claim of abandonment by the aggrieved
spouse. Its conclusion was that the only remedy availabe to the
petitioner was legal separation under Article 175 of the Civil
Code, 4 by virtue of which the conjugal partnership of property
would be terminated.
The petitioner contends that the respondent court has
misinterpreted Articles 175, 178 and 191 of the Civil Code. She
submits that the agreement between her and the private respondent
was for her to temporarily live with her parents during the initial
period of her pregnancy and for him to visit and support her. They
never agreed to separate permanently. And even if they did, this
arrangement was repudiated and ended in 1942, when she returned
to him at Dumaguete City and he refused to accept her.
178
The petitioner invokes Article 178 (3) of the Civil Code, which reads:
Art. 178. The separation in fact between husband and
wife without judicial approval, shall not affect the
conjugal partnership, except that:
xxx xxx xxx
(3) If the husband has abandoned the wife without just
cause for at least one year, she may petition the court
for a receivership, or administration by her of the
conjugal partnership property or separation of
property.
The above-quoted provision has been superseded by Article 128 of
the Family Code, which states:
Art. 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligations to
the family, the aggrieved spouse may petition the court
for receivership, for judicial separation of property, of
for authority to be the sole administrator of the
conjugal partnership property, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the
preceding paragraph refer to martial, parental or
property relations.
A spouse is deemed to have abondoned the other when
he or she has left the conjugal dwelling without any
intention of returning. The spouse who has left the

conjugal dwelling for a period of three months or has
failed within the same period to give any information as
to his or her whereabouts shall be prima
facie presumed to have no intention of returning to the
conjugal dwelling.
Under the this provision, the aggrieved spouse may petition for
judicial separation on either of these grounds:
1. Abondonment by a spouse of the other without just
cause; and
2. Failure of one spouse to comply with his or her
obligations to the family without just cause, even if she
said spouse does not leave the other spouse.
Abandonment implies a departure by one spouse with the avowed
intent never to return, followed by prolonged absence without just
cause, and without in the meantime providing in the least for one's
family although able to do so. 5 There must be absolute cessation of
marital relations, duties and rights, with the intention of perpetual
separation. 6 This idea is clearly expressed in the above-quoted
provision, which states that "a spouse is deemed to have abandoned
the other when he or she has left the conjugal dwelling without any
intention of returning."
The record shows that as early as 1942, the private respondent had
already rejected the petitioner, whom he denied admission to their
conjugal home in Dumaguete City when she returned from
Zamboanguita. The fact that she was not accepted by Jo
demonstrates all too clearly that he had no intention of resuming
their conjugal relationship. Moreover, beginning 1968 until the
determination by this Court of the action for support in 1988, the
179
private respondent refused to give financial support to the petitioner.
The physical separation of the parties, coupled with the refusal by
the private respondent to give support to the petitioner, sufficed to
constitute abandonment as a ground for the judicial separation of
their conjugal property.
In addition, the petitioner may also invoke the second ground
allowed by Article 128, for the fact is that he has failed without just
cause to comply with his obligations to the family as husband or
parent. Apart form refusing to admit his lawful wife to their conjugal
home in Dumaguete City, Jo has freely admitted to cohabiting with
other women and siring many children by them. It was his refusal to
provide for the petitioner and their daughter that prompted her to
file the actions against him for support and later for separation of
the conjugal property, in which actions, significantly, he even denied
being married to her. The private respondent has not established
any just cause for his refusal to comply with his obligations to his
wife as dutiful husband.
Their separation thus falls also squarely under Article 135 of the
Family Code, providing as follows:
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
xxx xxx xxx
(6) That at the time of the petition, the spouse have
been separated in fact for at least one year and
reconciliation is highly improbable.
 180

The amendments introduced in the Family Code are applicable to decided in favor the plaintiff, the petitioner herein, and the conjugal
the case before us although they became effective only on August 3, property of the petitioner and the private respondent is hereby
1988. As we held in Ramirez v. Court of Appeals: 7 ordered divided between them, share and share alike. This division
shall be implemented by the trial court after determination of all the
The greater weight of authority is inclined to the view properties pertaining to the said conjugal partnership, including
that an appellate court, in reviewing a judgment on those that may have been illegally registered in the name of the
appeal, will dispose of a question according to the law persons.
prevailing at the term of such disposition, and not
according to the law prevailing at the time of rendition SO ORDERED.
of the appealed judgement. The court will therefore
reverse a judgement which was correct at the time it
was originally rendered where, by statute, there has
been an intermediate change in the law which renders
such judgement erroneous at the time the case was
finally disposed of on appeal.

The order of judicial separation of the properties in question is

based on the finding of both the trial and respondent courts that the
private respondent is indeed their real owner. It is these properties
that should now be divided between him and the petitioner, on the
assumption that they were acquired during coverture and so belong
to the spouses half and half. As the private respondent is a Chinese
citizen, the division must include such properties properly belonging
to the conjugal partnership as may have been registered in the name
of other persons in violation of the Anti-Dummy Law.

The past has caught up with the private respondent. After his
extramarital flings and a succession of illegitimate children, he must
now make an accounting to his lawful wife of the properties he
denied her despite his promise to their of his eternal love and care.

WHEREFORE, the petition is GRANTED and the assailed decision of

the respondent court is MODIFIED. Civil Case No. 51 is hereby

G.R. No. 4883 September 27, 1910
NARCISO MARIGSA, plaintiff-appellee,
vs.
ILDEFONSA MACABUNTOC, ET AL., defendants-appellants.
Benito Gimenez Zoboli, for appellants.
Pedro Carmen, for appellee.
ARELLANO, C.J.:
Narciso Marigsa, as the administrator of the intestate estate of
Esteban Marigsa, demands from Ildefonsa Macabuntoc, the widow of
the said Esteban Marigsa, certain property for administration, on
the ground that it belonged exclusively to the deceased.
The property specified in the complaint consists of six carabaos,
which, on the death of Esteban Marigsa, were sold by his widow —
two, to Anatalia Isidro, for P120 each; one, to Agapito Mercado, for
P150; one, to Agustin Deliso, also for P150; one, to Sabas Doro, for
the same price; and the other, to Gaspar Umipig, for P120.
The plaintiff endeavored to prove the alleged exclusive ownership of
Esteban Marigsa, by means of the certificates of transfer issued in
the municipality of Cuyapo, Province of Nueva Ecija, which read:
Record of transfer of large cattle.—Province of Nueva Ecija.—
Municipality of Cuyapo.—July 12, 1906.—This record certifies
that Mr. Esteban Marigsa (deceased), represented by his wife,
Ildefonsa Macabuntoc, a resident . . . as owner, transferred by
sale to X., a resident . . . as purchaser, for the sum of one
181
hundred and twenty pesos (P120), one carabao cow, the
description of which, . . .
The defendants attempted to prove that the carabaos belonged
exclusively to the widow as paraphernal property brought on her
second marriage to her husband, Esteban Marigsa, whom she
married thirty years before, and that the husband brought nothing
to the conjugal partnership. These facts were averred by the widow
and two other witnesses. The widow moreover testified that there
was no issue by her marriage with Marigsa, and that she no longer
had any ascendants, nor knew of any collateral relative of her
deceased husband; that the plaintiff himself was named Marigsa
only as a nickname, his father's family name being Magcuayan, and
that the carabaos had been registered in the name of Esteban
Marigsa because the latter was her husband.
The Court of First Instance of Nueva Ecija, in accordance with the
petition appearing in the complaint, declared that the six animals
specified therein belonged exclusively to the intestate estate of
Esteban Marigsa and were subject to the plaintiff's administration,
and ordered the defendants to return them to Narciso Marigsa as
such administrator. The court also declared rescinded and invalid
the sales made by the defendant, Ildefonsa Macabuntoc, to her
codefendants, with one-sixth of the costs of the trial against each of
the defendants. The latter appealed from the said judgment and
alleged the following assignments of error:
First. That the court found that the plaintiff had fully proved the
allegations of his complaint by means of the certificates of ownership
issued by the municipality of Cuyapo.
Second. That the court found that the carabaos sued for belonged
exclusively to the intestate Esteban Marigsa, formed a part of his

estate under administration, and adjudged their return to the
defendants; and
Third. That the court declared the sales made by the defendant,
Ildefonsa Macabuntoc, to her codefendants to be rescinded and
invalid.
This court has already decided the initiation of intestate proceeding
must not disturb the possession, either of the surviving spouse, or
of the legitimate heirs, much less that of a third party.
In the registration of animals belonging to husband and wife, the
record thereof is often made out only in the name of the husband on
account of his being the administrator of the conjugal partnership;
so that registration herein concerned is not conclusive evidence of
the exclusive ownership of the husband. Other kind of proof is
necessary to destroy the presumption implied by article 1407 of the
Civil Code, which provides:
All the property of the marriage shall be considered as
partnership property until it is proven that it belongs
exclusively to the husband or to the wife.
Although the property appears as registered in the name of the
husband, if it was acquired for a valuable consideration during the
marriage it has the inherent character of partnership property,
whether the acquisition is made for the partnership or for one of the
spouses only. (Art. 1401, par. 1, Civil Code.)
The marriage of Marigsa with Macabuntoc having lasted for more
than thirty years, according to the testimony, and some of the
carabaos being the offspring of others which were purchased, as
182
stated by the defendant, during the marriage, such animals are not
paraphernal property of the widow, as she claims, for even such
offspring is considered as community property, according to
paragraph 3 of the said article 1401; nor were they the private
property of the deceased husband.
The community property of the marriage, at the dissolution of this
bond by the death of one of the spouses, ceases to belong to the
legal partnership and becomes the property of a community, by
operation of law, between the surviving spouse and the heirs of the
deceased spouse, or the exclusive property of the widower or the
widow if he or she be the heir of the deceased spouse. In the present
suit, no proof was adduced to show what right the plaintiff has to
call himself coowner with the defendant widow, the only action
which could appertain to him in order that he might interfere with
the acts of a person who, in the exercise of her rights with respect to
property of which she is a coowner, or perhaps an absolute owner,
disposed of such property by transferring the same, without the
need therefor of any authorization whatever. Although it were upon
no other basis than that of coownership, which coownership is
irrefutably shown to have existed by the evidence in this case, the
surviving widow acted perfectly within her rights in transferring the
property in question. Whenever it shall be shown that there is
another coowner as the heir of the deceased husband, then there
will be occasion to prosecute an action for the annulment of the sale
with respect to one-half of the said property, in order that it may be
inventoried as belonging to the estate or intestate succession of the
predecessor in interest.
ART. 399. Every coowner shall have full ownership of his part
and in the fruits and benefits derived therefrom, and he
therefore may alienate, assigns, or mortgage it, and even
substitute another person in its enjoyment, unless personal
 183

rights are in question. But the effect of the alienation or
mortgage, with regard to the coowners, shall be limited to the
share which may be awarded him in the division on the
dissolution of the community. (Civil Code.)
SEC. 6845. Community Property.—One-half the community
property, as determined by the law in force in the Philippine
Islands before the thirteenth day of August, eighteen hundred
and ninety-eight, belonging to a husband and wife, shall be
deemed to belong to the deceased husband or wife, and shall
be inventoried and accounted for, and distributed as a part of
the estate, in the same manner as all other property
belonging to the estate. (Code of Civil Procedure.)
the legal presumption that has until now prevailed, only a one-half
interest that might have pertained to the deceased husband in the
said property, presumptively the community property of the
dissolved marriage, can, in principle, be considered as subject
thereto, until proof to the contrary be adduced. Consequently, this
finding must also be disapproved.
The judgment appealed from is reversed, without special finding as
to costs.

From the proceeding premises it is concluded:

First. That sufficient grounds have not been shown in this suit to
adjudge that the property in question was the private property of the
deceased spouse, as against the legal presumption that it was the
community property of both spouses; and, consequently, the first
part of the first finding of the judgment appealed from, declaring it
to be such, is improper and should be reversed.

Second. That the second finding of the said judgment is premature,

in so far as it declares the sales made by the defendant, Ildefonsa
Macabuntoc, to be rescinded and in valid, as this could be done only
after it had been proven, in a proper action, that there is another
coowner as heir of the deceased husband of the vendor; and,
consequently, this finding also should be reversed.

Third. That the second part of the first finding, in so far as it

declares all the animals claimed to be subject to the intestate estate
of Esteban Marigsa, is likewise improper, inasmuch as, by virtue of
 184

[ G.R. NO. 153802, March 11, 2005 ] the amount of P300,000.00 from petitioner. As security therefor,
Gesmundo executed on the same day a Real Estate Mortgage
HOMEOWNERS SAVINGS & LOAN BANK, PETITIONER, VS. constituted on the subject property in favor of petitioner. The
MIGUELA C. DAILO, RESPONDENT. abovementioned transactions, including the execution of the SPA in
favor of Gesmundo, took place without the knowledge and consent
DECISION of respondent.[4]

Upon maturity, the loan remained outstanding. As a result,

TINGA, J.:
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court, assailing the Decision[1] of the Court of
Appeals in CA-G.R. CV No. 59986 rendered on June 3, 2002, which
affirmed with modification the October 18, 1997 Decision [2] of the
Regional Trial Court, Branch 29, San Pablo City, Laguna in Civil
Case No. SP-4748 (97).
The following factual antecedents are undisputed.
Respondent Miguela C. Dailo and Marcelino Dailo, Jr. were married
on August 8, 1967. During their marriage, the spouses purchased a
house and lot situated at Barangay San Francisco, San Pablo City
from a certain Sandra Dalida. The subject property was declared for
tax assessment purposes under Assessment of Real Property No. 94-
051-2802. The Deed of Absolute Sale, however, was executed only in
favor of the late Marcelino Dailo, Jr. as vendee thereof to the
exclusion of his wife.[3]
On December 1, 1993, Marcelino Dailo, Jr. executed a Special Power
of Attorney (SPA) in favor of one Lilibeth Gesmundo, authorizing the
latter to obtain a loan from petitioner Homeowners Savings and
Loan Bank to be secured by the spouses Dailo’s house and lot in
San Pablo City. Pursuant to the SPA, Gesmundo obtained a loan in
petitioner instituted extrajudicial foreclosure proceedings on the
mortgaged property. After the extrajudicial sale thereof, a Certificate
of Sale was issued in favor of petitioner as the highest bidder. After
the lapse of one year without the property being redeemed,
petitioner, through its vice-president, consolidated the ownership
thereof by executing on June 6, 1996 an Affidavit of Consolidation of
Ownership and a Deed of Absolute Sale.[5]
In the meantime, Marcelino Dailo, Jr. died on December 20, 1995.
In one of her visits to the subject property, respondent learned that
petitioner had already employed a certain Roldan Brion to clean its
premises and that her car, a Ford sedan, was razed because Brion
allowed a boy to play with fire within the premises.
Claiming that she had no knowledge of the mortgage constituted on
the subject property, which was conjugal in nature, respondent
instituted with the Regional Trial Court, Branch 29, San Pablo City,
Civil Case No. SP-2222 (97) for Nullity of Real Estate Mortgage and
Certificate of Sale, Affidavit of Consolidation of Ownership, Deed of
Sale, Reconveyance with Prayer for Preliminary Injunction and
Damages against petitioner. In the latter’s Answer with
Counterclaim, petitioner prayed for the dismissal of the complaint on
the ground that the property in question was the exclusive property
of the late Marcelino Dailo, Jr.
 185

After trial on the merits, the trial court rendered a Decision on

October 18, 1997. The dispositive portion thereof reads as follows:
WHEREFORE, the plaintiff having proved by the preponderance of
evidence the allegations of the Complaint, the Court finds for the
plaintiff and hereby orders:
ON THE FIRST CAUSE OF ACTION:
1. The declaration of the following documents as null and void:
(a) The Deed of Real Estate Mortgage dated
December 1, 1993 executed before Notary Public
Romulo Urrea and his notarial register entered as
Doc. No. 212; Page No. 44, Book No. XXI, Series of
1993.
2. The defendant is ordered to reconvey the property subject of
this complaint to the plaintiff.
ON THE SECOND CAUSE OF ACTION
1. The defendant to pay the plaintiff the sum of
P40,000.00 representing the value of the car which
was burned.
ON BOTH CAUSES OF ACTION
1. The defendant to pay the plaintiff the sum of
P25,000.00 as attorney’s fees;

(b) The Certificate of Sale executed by Notary 2. The defendant to pay plaintiff P25,000.00 as moral
Public Reynaldo Alcantara on April 20, 1995. damages;

(c) The Affidavit of Consolidation of Ownership 3. The defendant to pay the plaintiff the sum of
executed by the defendant P10,000.00 as exemplary damages;

(c) The Affidavit of Consolidation of Ownership 4. To pay the cost of the suit.
executed by the defendant over the residential lot
located at Brgy. San Francisco, San Pablo City, The counterclaim is dismissed.
covered by ARP No. 95-091-1236 entered as
Doc. No. 406; Page No. 83, Book No. III, Series of SO ORDERED.[6]
1996 of Notary Public Octavio M. Zayas.
Upon elevation of the case to the Court of Appeals, the appellate
court affirmed the trial court’s finding that the subject property was
conjugal in nature, in the absence of clear and convincing evidence
(d) The assessment of real property No. 95-051- to rebut the presumption that the subject property acquired during
1236. the marriage of spouses Dailo belongs to their conjugal

partnership.[7] The appellate court declared as void the mortgage on
the subject property because it was constituted without the
knowledge and consent of respondent, in accordance with Article
124 of the Family Code. Thus, it upheld the trial court’s order to
reconvey the subject property to respondent.[8] With respect to the
damage to respondent’s car, the appellate court found petitioner to
be liable therefor because it is responsible for the consequences of
the acts or omissions of the person it hired to accomplish the
assigned task.[9] All told, the appellate court affirmed the trial court’s
Decision, but deleted the award for damages and attorney’s fees for
lack of basis.[10]
Hence, this petition, raising the following issues for this Court’s
consideration:
1. WHETHER OR NOT THE MORTGAGE CONSTITUTED BY THE
LATE MARCELINO DAILO, JR. ON THE SUBJECT PROPERTY
AS CO-OWNER THEREOF IS VALID AS TO HIS UNDIVIDED
SHARE.
2. WHETHER OR NOT THE CONJUGAL PARTNERSHIP IS
LIABLE FOR THE PAYMENT OF THE LOAN OBTAINED BY
THE LATE MARCELINO DAILO, JR. THE SAME HAVING
REDOUNDED TO THE BENEFIT OF THE FAMILY.[11]
First, petitioner takes issue with the legal provision applicable to the
factual milieu of this case. It contends that Article 124 of the Family
Code should be construed in relation to Article 493 of the Civil Code,
which states:
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
186
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.
Article 124 of the Family Code provides in part:
ART. 124. The administration and enjoyment of the conjugal
partnership property shall belong to both spouses jointly. . . .
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the
other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance
which must have the authority of the court or the written consent of
the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. . . .
Petitioner argues that although Article 124 of the Family Code
requires the consent of the other spouse to the mortgage of conjugal
properties, the framers of the law could not have intended to curtail
the right of a spouse from exercising full ownership over the portion
of the conjugal property pertaining to him under the concept of co-
ownership.[12] Thus, petitioner would have this Court uphold the
validity of the mortgage to the extent of the late Marcelino Dailo,
Jr.’s share in the conjugal partnership.
In Guiang v. Court of Appeals,[13] it was held that the sale of a
conjugal property requires the consent of both the husband and
wife.[14] In applying Article 124 of the Family Code, this Court
declared that the absence of the consent of one renders the entire
sale null and void, including the portion of the conjugal property
pertaining to the husband who contracted the sale. The same
principle in Guiang squarely applies to the instant case. As shall be

discussed next, there is no legal basis to construe Article 493 of the
Civil Code as an exception to Article 124 of the Family Code.
Respondent and the late Marcelino Dailo, Jr. were married on
August 8, 1967. In the absence of a marriage settlement, the system
of relative community or conjugal partnership of gains governed the
property relations between respondent and her late
husband. With the effectivity of the Family Code on August 3,
[15]
1988, Chapter 4 on Conjugal Partnership of Gains in the Family
Code was made applicable to conjugal partnership of gains already
established before its effectivity unless vested rights have already
been acquired under the Civil Code or other laws.[16]
The rules on co-ownership do not even apply to the property
relations of respondent and the late Marcelino Dailo, Jr. even in a
suppletory manner. The regime of conjugal partnership of gains is a
special type of partnership, where the husband and wife place in a
common fund the proceeds, products, fruits and income from their
separate properties and those acquired by either or both spouses
through their efforts or by chance.[17] Unlike the absolute community
of property wherein the rules on co-ownership apply in a suppletory
manner,[18] the conjugal partnership shall be governed by the rules
on contract of partnership in all that is not in conflict with what is
expressly determined in the chapter (on conjugal partnership of
gains) or by the spouses in their marriage settlements.[19] Thus, the
property relations of respondent and her late husband shall be
governed, foremost, by Chapter 4 on Conjugal Partnership of Gains of
the Family Code and, suppletorily, by the rules on partnership
under the Civil Code. In case of conflict, the former prevails because
the Civil Code provisions on partnership apply only when the Family
Code is silent on the matter.
The basic and established fact is that during his lifetime, without
187
the knowledge and consent of his wife, Marcelino Dailo, Jr.
constituted a real estate mortgage on the subject property, which
formed part of their conjugal partnership. By express provision of
Article 124 of the Family Code, in the absence of (court) authority or
written consent of the other spouse, any disposition or encumbrance
of the conjugal property shall be void.
The aforequoted provision does not qualify with respect to the share
of the spouse who makes the disposition or encumbrance in the
same manner that the rule on co-ownership under Article 493 of the
Civil Code does. Where the law does not distinguish, courts should
not distinguish.[20] Thus, both the trial court and the appellate court
are correct in declaring the nullity of the real estate mortgage on the
subject property for lack of respondent’s consent.
Second, petitioner imposes the liability for the payment of the
principal obligation obtained by the late Marcelino Dailo, Jr. on the
conjugal partnership to the extent that it redounded to the benefit of
the family.[21]
Under Article 121 of the Family Code, “[T]he conjugal partnership
shall be liable for: . . . (3) Debts and obligations contracted by either
spouse without the consent of the other to the extent that the family
may have been benefited; . . . .” For the subject property to be held
liable, the obligation contracted by the late Marcelino Dailo, Jr. must
have redounded to the benefit of the conjugal partnership. There
must be the requisite showing then of some advantage which clearly
accrued to the welfare of the spouses. Certainly, to make a conjugal
partnership respond for a liability that should appertain to the
husband alone is to defeat and frustrate the avowed objective of the
new Civil Code to show the utmost concern for the solidarity and
well-being of the family as a unit.[22]
 188

The burden of proof that the debt was contracted for the benefit of
the conjugal partnership of gains lies with the creditor-party litigant
claiming as such.[23] Ei incumbit probatio qui dicit, non qui negat (he
who asserts, not he who denies, must prove).[24] Petitioner’s
sweeping conclusion that the loan obtained by the late Marcelino
Dailo, Jr. to finance the construction of housing units without a
doubt redounded to the benefit of his family, without adducing
adequate proof, does not persuade this Court. Other than
petitioner’s bare allegation, there is nothing from the records of the
case to compel a finding that, indeed, the loan obtained by the late
Marcelino Dailo, Jr. redounded to the benefit of the family.
Consequently, the conjugal partnership cannot be held liable for the
payment of the principal obligation.

In addition, a perusal of the records of the case reveals that during

the trial, petitioner vigorously asserted that the subject property was
the exclusive property of the late Marcelino Dailo, Jr. Nowhere in the
answer filed with the trial court was it alleged that the proceeds of
the loan redounded to the benefit of the family. Even on appeal,
petitioner never claimed that the family benefited from the proceeds
of the loan. When a party adopts a certain theory in the court below,
he will not be permitted to change his theory on appeal, for to permit
him to do so would not only be unfair to the other party but it would
also be offensive to the basic rules of fair play, justice and due
process.[25] A party may change his legal theory on appeal only when
the factual bases thereof would not require presentation of any
further evidence by the adverse party in order to enable it to
properly meet the issue raised in the new theory.[26]

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

[ G.R. No. 155043, September 30, 2004 ]
ARTURO R. ABALOS, PETITIONER, VS. DR. GALICANO S.
MACATANGAY, JR., RESPONDENT.
DECISION
TINGA, J.:
The instant petition seeks a reversal of the Decision of the Court of
Appeals in CA-G.R. CV No. 48355 entitled “Dr. Galicano S.
Macatangay, Jr. v. Arturo R. Abalos and Esther Palisoc-Abalos,”
promulgated on March 14, 2002. The appellate court reversed the
trial court’s decision which dismissed the action for specific
performance filed by respondent, and ordered petitioner and his wife
to execute in favor of herein respondent a deed of sale over the
subject property.
Spouses Arturo and Esther Abalos are the registered owners of a
parcel of land with improvements located at Azucena St., Makati
City consisting of about three hundred twenty-seven (327) square
meters, covered by Transfer Certificate of Title (TCT) No. 145316 of
the Registry of Deeds of Makati.
Armed with a Special Power of Attorney dated June 2, 1988,
purportedly issued by his wife, Arturo executed a Receipt and
Memorandum of Agreement (RMOA) dated October 17, 1989, in favor
of respondent, binding himself to sell to respondent the subject
property and not to offer the same to any other party within thirty
(30) days from date. Arturo acknowledged receipt of a check from
respondent in the amount of Five Thousand Pesos (P5,000.00),
representing earnest money for the subject property, the amount of
which would be deducted from the purchase price of One Million
189
Three Hundred Three Hundred Thousand Pesos (P1,300,000.00).
Further, the RMOA stated that full payment would be effected as
soon as possession of the property shall have been turned over to
respondent.
Subsequently, Arturo’s wife, Esther, executed a Special Power of
Attorney dated October 25, 1989, appointing her sister, Bernadette
Ramos, to act for and in her behalf relative to the transfer of the
property to respondent. Ostensibly, a marital squabble was brewing
between Arturo and Esther at the time and to protect his interest,
respondent caused the annotation of his adverse claim on the title of
the spouses to the property on November 14, 1989.
On November 16, 1989, respondent sent a letter to Arturo and
Esther informing them of his readiness and willingness to pay the
full amount of the purchase price. The letter contained a demand
upon the spouses to comply with their obligation to turn over
possession of the property to him. On the same date, Esther,
through her attorney-in-fact, executed in favor of respondent, a
Contract to Sell the property to the extent of her conjugal interest
therein for the sum of six hundred fifty thousand pesos
(P650,000.00) less the sum already received by her and Arturo.
Esther agreed to surrender possession of the property to respondent
within twenty (20) days from November 16, 1989, while the latter
promised to pay the balance of the purchase price in the amount
of one million two hundred ninety thousand pesos (P1,290,000.00)
after being placed in possession of the property. Esther also
obligated herself to execute and deliver to respondent a deed of
absolute sale upon full payment.
In a letter dated December 7, 1989, respondent informed the
spouses that he had set aside the amount of One Million Two
Hundred Ninety Thousand Pesos (P1,290,000.00) as evidenced by

Citibank Check No. 278107 as full payment of the purchase price.
He reiterated his demand upon them to comply with their obligation
to turn over possession of the property. Arturo and Esther failed to
deliver the property which prompted respondent to cause the
annotation of another adverse claim on TCT No. 145316. On
January 12, 1990, respondent filed a complaint for specific
performance with damages against petitioners. Arturo filed his
answer to the complaint while his wife was declared in default.
The Regional Trial Court (RTC) dismissed the complaint for specific
performance. It ruled that the Special Power of Attorney (SPA)
ostensibly issued by Esther in favor of Arturo was void as it was
falsified. Hence, the court concluded that the SPA could not have
authorized Arturo to sell the property to respondent. The trial court
also noted that the check issued by respondent to cover the earnest
money was dishonored due to insufficiency of funds and while it
was replaced with another check by respondent, there is no showing
that the second check was issued as payment for the earnest money
on the property.
On appeal taken by respondent, the Court of Appeals reversed the
decision of the trial court. It ruled that the SPA in favor of Arturo,
assuming that it was void, cannot affect the transaction between
Esther and respondent. The appellate court ratiocinated that it was
by virtue of the SPA executed by Esther, in favor of her sister, that
the sale of the property to respondent was effected. On the other
hand, the appellate court considered the RMOA executed by Arturo
in favor of respondent valid to effect the sale of Arturo’s conjugal
share in the property.
Dissatisfied with the appellate court’s disposition of the case,
petitioner seeks a reversal of its decision alleging that:
I.
190
The Court of Appeals committed serious and manifest error when it
decided on the appeal without affording petitioner his right to due
process.
II.
The Court of Appeals committed serious and manifest error in
reversing and setting aside the findings of fact by the trial court.
III.
The Court of Appeals erred in ruling that a contract to sell is a
contract of sale, and in ordering petitioner to execute a registrable
form of deed of sale over the property in favor of respondent.[1]
Petitioner contends that he was not personally served with copies of
summons, pleadings, and processes in the appeal proceedings nor
was he given an opportunity to submit an appellee’s brief. He
alleges that his counsel was in the United States from 1994 to
June 2000, and he never received any news or communication
from him after the proceedings in the trial court were terminated.
Petitioner submits that he was denied due process because he was
not informed of the appeal proceedings, nor given the chance to have
legal representation before the appellate court.
We are not convinced. The essence of due process is an opportunity
to be heard. Petitioner’s failure to participate in the appeal
proceedings is not due to a cause imputable to the appellate court
but because of petitioner’s own neglect in ascertaining the status of
his case. Petitioner’s counsel is equally negligent in failing to inform
his client about the recent developments in the appeal proceedings.
Settled is the rule that a party is bound by the conduct, negligence
and mistakes of his counsel.[2] Thus, petitioner’s plea of denial of

due process is downright baseless.
Petitioner also blames the appellate court for setting aside the
factual findings of the trial court and argues that factual findings of
the trial court are given much weight and respect when supported
by substantial evidence. He asserts that the sale between him and
respondent is void for lack of consent because the SPA purportedly
executed by his wife Esther is a forgery and therefore, he could not
have validly sold the subject property to respondent.
Next, petitioner theorizes that the RMOA he executed in favor of
respondent was not perfected because the check representing the
earnest money was dishonored. He adds that there is no evidence on
record that the second check issued by respondent was intended to
replace the first check representing payment of earnest money.
Respondent admits that the subject property is co-owned by
petitioner and his wife, but he objects to the allegations in the
petition bearing a relation to the supposed date of the marriage of
the vendors. He contends that the alleged date of marriage between
petitioner and his wife is a new factual issue which was not raised
nor established in the court a quo. Respondent claims that there
is no basis to annul the sale freely and voluntarily entered into by
the husband and the wife.
The focal issue in the instant petition is whether petitioner may be
compelled to convey the property to respondent under the terms of
the RMOA and the Contract to Sell. At bottom, the resolution of the
issue entails the ascertainment of the contractual nature of the two
documents and the status of the contracts contained therein.
Contracts, in general, require the presence of three essential
elements: (1) consent of the contracting parties; (2) object certain
191
which is the subject matter of the contract; and (3) cause of the
obligation which is established.[3]
Until the contract is perfected, it cannot, as an independent source
of obligation, serve as a binding juridical relation.[4] In a contract of
sale, the seller must consent to transfer ownership in exchange for
the price, the subject matter must be determinate, and the price
must be certain in money or its equivalent.[5] Being essentially
consensual, a contract of sale is perfected at the moment there is a
meeting of the minds upon the thing which is the object of the
contract and upon the price.[6] However, ownership of the thing sold
shall not be transferred to the vendee until actual or constructive
delivery of the property.[7]
On the other hand, an accepted unilateral promise which specifies
the thing to be sold and the price to be paid, when coupled with a
valuable consideration distinct and separate from the price, is
what may properly be termed a perfected contract of option.[8] An
option merely grants a privilege to buy or sell within an agreed time
and at a determined price. It is separate and distinct from that
which the parties may enter into upon the consummation of the
option.[9] A perfected contract of option does not result in the
perfection or consummation of the sale; only when the option is
exercised may a sale be perfected.[10] The option must, however, be
supported by a consideration distinct from the price.[11]
Perusing the RMOA, it signifies a unilateral offer of Arturo to sell the
property to respondent for a price certain within a period of thirty
days. The RMOA does not impose upon respondent an obligation to
buy petitioner’s property, as in fact it does not even bear his
signature thereon. It is quite clear that after the lapse of the thirty-
day period, without respondent having exercised his option, Arturo
is free to sell the property to another. This shows that the intent of

Arturo is merely to grant respondent the privilege to buy the
property within the period therein stated. There is nothing in the
RMOA which indicates that Arturo agreed therein to transfer
ownership of the land which is an essential element in a contract of
sale. Unfortunately, the option is not binding upon the promissory
since it is not supported by a consideration distinct from the
price.[12]
As a rule, the holder of the option, after accepting the promise and
before he exercises his option, is not bound to buy. He is free either
to buy or not to buy later. In Sanchez v. Rigos[13] we ruled that in an
accepted unilateral promise to sell, the promissor is not bound by
his promise and may, accordingly, withdraw it, since there may
be no valid contract without a cause or consideration. Pending
notice of its withdrawal, his accepted promise partakes of the nature
of an offer to sell which, if acceded or consented to, results in a
perfected contract of sale.
Even conceding for the nonce that respondent had accepted the offer
within the period stated and, as a consequence, a bilateral contract
of purchase and sale was perfected, the outcome would be the
same. To benefit from such situation, respondent would have to pay
or at least make a valid tender of payment of the price for only then
could he exact compliance with the undertaking of the other
party.[14] This respondent failed to do. By his own admission, he
merely informed respondent spouses of his readiness and
willingness to pay. The fact that he had set aside a check in the
amount of One Million Two Hundred Ninety Thousand Pesos
(P1,290,000.00) representing the balance of the purchase price
could not help his cause. Settled is the rule that tender of payment
must be made in legal tender. A check is not legal tender, and
therefore cannot constitute a valid tender of payment.[15] Not having
made a valid tender of payment, respondent’s action for specific
192
performance must fail.
With regard to the payment of Five Thousand Pesos (P5,000.00), the
Court is of the view that the amount is not earnest money as the
term is understood in Article 1482 which signifies proof of the
perfection of the contract of sale, but merely a guarantee that
respondent is really interested to buy the property. It is not the
giving of earnest money, but the proof of the concurrence of all the
essential elements of the contract of sale which establishes the
existence of a perfected sale.[16] No reservation of ownership on the
part of Arturo is necessary since, as previously stated, he has never
agreed to transfer ownership of the property to respondent.
Granting for the sake of argument that the RMOA is a contract of
sale, the same would still be void not only for want of consideration
and absence of respondent’s signature thereon, but also for lack of
Esther’s conformity thereto. Quite glaring is the absence of the
signature of Esther in the RMOA, which proves that she did not give
her consent to the transaction initiated by Arturo. The husband
cannot alienate any real property of the conjugal partnership
without the wife’s consent.[17]
However, it was the Contract to Sell executed by Esther through her
attorney-in-fact which the Court of Appeals made full use of.
Holding that the contract is valid, the appellate court explained that
while Esther did not authorize Arturo to sell the property, her
execution of the SPA authorizing her sister to sell the land to
respondent clearly shows her intention to convey her interest in
favor of respondent. In effect, the court declared that the lack of
Esther’s consent to the sale made by Arturo was cured by her
subsequent conveyance of her interest in the property through her
attorney-in-fact.

We do not share the ruling.
The nullity of the RMOA as a contract of sale emanates not only
from lack of Esther’s consent thereto but also from want of
consideration and absence of respondent’s signature thereon. Such
nullity cannot be obliterated by Esther’s subsequent confirmation of
the putative transaction as expressed in the Contract to Sell. Under
the law, a void contract cannot be ratified[18] and the action or
defense for the declaration of the inexistence of a contract does not
prescribe.[19] A void contract produces no effect either against or in
favor of anyone–it cannot create, modify or extinguish the juridical
relation to which it refers.[20]
True, in the Contract to Sell, Esther made reference to the earlier
RMOA executed by Arturo in favor of respondent. However, the
RMOA which Arturo signed is different from the deed which Esther
executed through her attorney-in-fact. For one, the first is sought to
be enforced as a contract of sale while the second is purportedly a
contract to sell only. For another, the terms and conditions as to
the issuance of title and delivery of possession are divergent.
The congruence of the wills of the spouses is essential for the valid
disposition of conjugal property. Where the conveyance is
contained in the same document which bears the conformity of both
husband and wife, there could be no question on the validity of the
transaction. But when there are two documents on which the
signatures of the spouses separately appear, textual concordance of
the documents is indispensable. Hence, in this case where the wife’s
putative consent to the sale of conjugal property appears in a
separate document which does not, however, contain the same
terms and conditions as in the first document signed by the
husband, a valid transaction could not have arisen.
193
Quite a bit of elucidation on the conjugal partnership of gains is in
order.
Arturo and Esther appear to have been married before the effectivity
of the Family Code. There being no indication that they have
adopted a different property regime, their property relations would
automatically be governed by the regime of conjugal partnership of
gains.[21]
The subject land which had been admittedly acquired during the
marriage of the spouses forms part of their conjugal partnership.[22]
Under the Civil Code, the husband is the administrator of the
conjugal partnership. This right is clearly granted to him by
law.[23] More, the husband is the sole administrator. The wife is not
entitled as of right to joint administration.[24]
The husband, even if he is statutorily designated as administrator of
the conjugal partnership, cannot validly alienate or encumber any
real property of the conjugal partnership without the wife’s
consent.[25] Similarly, the wife cannot dispose of any property
belonging to the conjugal partnership without the conformity of the
husband. The law is explicit that the wife cannot bind the conjugal
partnership without the husband’s consent, except in cases
provided by law.[26]
More significantly, it has been held that prior to the liquidation of
the conjugal partnership, the interest of each spouse in the conjugal
assets is inchoate, a mere expectancy, which constitutes neither a
legal nor an equitable estate, and does not ripen into title until it
appears that there are assets in the community as a result of the
liquidation and settlement. The interest of each spouse is limited to
the net remainder or “remanente liquido” (haber ganancial) resulting

from the liquidation of the affairs of the partnership after its
dissolution.[27] Thus, the right of the husband or wife to one-half of
the conjugal assets does not vest until the dissolution and
liquidation of the conjugal partnership, or after dissolution of the
marriage, when it is finally determined that, after settlement of
conjugal obligations, there are net assets left which can be divided
between the spouses or their respective heirs.[28]
In not a few cases, we ruled that the sale by the husband of property
belonging to the conjugal partnership without the consent of the
wife when there is no showing that the latter is incapacitated is
void ab initio because it is in contravention of the mandatory
requirements of Article 166 of the Civil Code.[29] Since Article 166 of
the Civil Code requires the consent of the wife before the husband
may alienate or encumber any real property of the conjugal
partnership, it follows that acts or transactions executed against
this mandatory provision are void except when the law itself
authorizes their validity.[30]
Quite recently, in San Juan Structural and Steel Fabricators, Inc. v.
Court of Appeals,[31] we ruled that neither spouse could alienate in
favor of another, his or her interest in the partnership or in any
property belonging to it, or ask for partition of the properties before
the partnership itself had been legally dissolved. Nonetheless,
alienation of the share of each spouse in the conjugal partnership
could be had after separation of property of the spouses during the
marriage had been judicially decreed, upon their petition for any of
the causes specified in Article 191[32] of the Civil Code in relation to
Article 214[33] thereof.
As an exception, the husband may dispose of conjugal property
without the wife’s consent if such sale is necessary to answer for
conjugal liabilities mentioned in Articles 161 and 162 of the Civil
Code.[34] In Tinitigan v. Tinitigan, Sr.,[35] the Court ruled that the
194
husband may sell property belonging to the conjugal partnership
even without the consent of the wife if the sale is necessary to
answer for a big conjugal liability which might endanger the family’s
economic standing. This is one instance where the wife’s consent is
not required and, impliedly, no judicial intervention is necessary.
Significantly, the Family Code has introduced some changes
particularly on the aspect of the administration of the conjugal
partnership. The new law provides that the administration of the
conjugal partnership is now a joint undertaking of the husband and
the wife. In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
partnership, the other spouse may assume sole powers of
administration. However, the power of administration does not
include the power to dispose or encumber property belonging to the
conjugal partnership.[36] In all instances, the present law specifically
requires the written consent of the other spouse, or authority of the
court for the disposition or encumbrance of conjugal partnership
property without which, the disposition or encumbrance shall be
void.[37]
Inescapably, herein petitioner’s action for specific performance must
fail. Even on the supposition that the parties only disposed of their
respective shares in the property, the sale, assuming that it exists,
is still void for as previously stated, the right of the husband or the
wife to one-half of the conjugal assets does not vest until the
liquidation of the conjugal partnership. Nemo dat qui non
habet. No one can give what he has not.
WHEREFORE, the appealed Decision is hereby REVERSED and SET
ASIDE. The complaint in Civil Case No. 90-106 of the Regional Trial
Court of Makati is ordered DISMISSED. No pronouncement as to
costs.
SO ORDERED.

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 child Stephanie Nathy
Astorga Garcia. He alleged therein, among others, that Stephanie
was born on June 26, 1994;2that her mother is Gemma Astorga
Garcia; that Stephanie has been using her mother’s middle name
and surname; and that he is now a widower and qualified to be her
adopting parent. He prayed that Stephanie’s middle name Astorga
be changed to "Garcia," her mother’s surname, and that her
surname "Garcia" be changed to "Catindig," his surname.
On March 23, 2001,3 the trial court rendered the assailed Decision
granting the adoption, thus:
"After a careful consideration of the evidence presented by the
petitioner, and in the absence of any opposition to the petition, this
195
Court finds that the petitioner possesses all the qualifications and
none of the disqualification provided for by law as an adoptive
parent, and that as such he is qualified to maintain, care for and
educate the child to be adopted; that the grant of this petition would
redound to the best interest and welfare of the minor Stephanie
Nathy Astorga Garcia. The Court further holds that the petitioner’s
care and custody of the child since her birth up to the present
constitute more than enough compliance with the requirement of
Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same
is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby
freed from all obligations of obedience and maintenance with respect
to her natural mother, and for civil purposes, shall henceforth be
the petitioner’s legitimate child and legal heir. Pursuant to Article
189 of the Family Code of the Philippines, the minor shall be known
as STEPHANIE NATHY CATINDIG.
Upon finality of this Decision, let the same be entered in the Local
Civil Registrar concerned pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office
for record purposes.
SO ORDERED."4
On April 20, 2001, petitioner filed a motion for clarification and/or
reconsideration5 praying that Stephanie should be allowed to use
the surname of her natural mother (GARCIA) as her middle name.
On May 28, 2001,6 the trial court denied petitioner’s motion for
reconsideration holding that there is no law or jurisprudence

allowing an adopted child to use the surname of his biological
mother as his middle name.
Hence, the present petition raising the issue of whether an
illegitimate child may use the surname of her mother as her middle
name when she is subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie
of a middle name as a consequence of adoption because: (1) there is
no law prohibiting an adopted child from having a middle name in
case there is only one adopting parent; (2) it is customary for every
Filipino to have as middle name the surname of the mother; (3) the
middle name or initial is a part of the name of a person; (4) adoption
is for the benefit and best interest of the adopted child, hence, her
right to bear a proper name should not be violated; (5) permitting
Stephanie to use the middle name "Garcia" (her mother’s surname)
avoids the stigma of her illegitimacy; and; (6) her continued use of
"Garcia" as her middle name is not opposed by either the Catindig or
Garcia families.
The Republic, through the Office of the Solicitor General (OSG),
agrees with petitioner that Stephanie should be permitted to use, as
her middle name, the surname of her natural mother for the
following reasons:
First, it is necessary to preserve and maintain Stephanie’s filiation
with her natural mother because under Article 189 of the Family
Code, she remains to be an intestate heir of the latter. Thus, to
prevent any confusion and needless hardship in the future, her
relationship or proof of that relationship with her natural mother
should be maintained.
196
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 surname 10 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:
197
(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 surname employed 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 mother’s surname is only considered in
Article 375(1), quoted above, in case there is identity of names and
surnames between ascendants and descendants, in which case, the
middle name or the mother’s surname shall be added.
Notably, the law is likewise silent as to what middle name an
adoptee may use. Article 365 of the Civil Code merely provides that
"an adopted child shall bear the surname of the adopter." Also, Article
189 of the Family Code, enumerating the legal effects of adoption, is
likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be
a legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship of
parent and child, including the right of the adopted to use the
surname of the adopters;
x x x"
However, as correctly pointed out by the OSG, the members of the
Civil Code and Family Law Committees that drafted the Family
Code recognized the Filipino custom of adding the surname of
the child’s mother as his middle name. In the Minutes of the
Joint Meeting of the Civil Code and Family Law Committees, the
members approved the suggestion that the initial or surname of
the mother should immediately precede the surname of the
father, thus
198
"Justice Caguioa commented that there is a difference between the
use by the wife of the surname and that of the child because the
father’s surname indicates the family to which he belongs, for
which reason he would insist on the use of the father’s surname
by the child but that, if he wants to, the child may also use the
surname of the mother.
Justice Puno posed the question: If the child chooses to use the
surname of the mother, how will his name be written? Justice
Caguioa replied that it is up to him but that his point is that it
should be mandatory that the child uses the surname of the
father and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioa’s point is covered by
the present Article 364, which reads:
Legitimate and legitimated children shall principally use the
surname of the father.
Justice Puno pointed out that many names change through no
choice of the person himself precisely because of this
misunderstanding. He then cited the following example: Alfonso
Ponce Enrile’s correct surname is Ponce since the mother’s surname
is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez
David’s family name is Gutierrez and his mother’s surname is David
but they all call him Justice David.
Justice Caguioa suggested that the proposed Article (12) be
modified to the effect that it shall be mandatory on the child to
use the surname of the father but he may use the surname of
the mother by way of an initial or a middle name. Prof. Balane
stated that they take note of this for inclusion in the Chapter on Use
of Surnames since in the proposed Article (10) they are just

enumerating the rights of legitimate children so that the details can
be covered in the appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification
suggested by Justice Caguioa that the surname of the father should
always be last because there are so many traditions like the
American tradition where they like to use their second given name
and the Latin tradition, which is also followed by the Chinese
wherein they even include the Clan name.
xxx
Justice Puno suggested that they agree in principle that in the
Chapter on the Use of Surnames, they should say that initial or
surname of the mother should immediately precede the
surname of the father so that the second name, if any, will be
before the surname of the mother. Prof. Balane added that this
is really the Filipino way. The Committee approved the
suggestion."12 (Emphasis supplied)
In the case of an adopted child, the law provides that "the adopted
shall bear the surname of the adopters."13 Again, 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
199
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 18921 of the Family Code and Section 1722 Article V of RA
8552.23
Being a legitimate child by virtue of her adoption, it follows
that Stephanie is entitled to all the rights provided by law to a
legitimate child without discrimination of any kind, including
the right to bear the surname of her father and her mother, as
discussed above. This is consistent with the intention of the
members of the Civil Code and Family Law Committees as earlier
discussed. In fact, it is a Filipino custom that the initial or surname
of the mother should immediately precede the surname of the
father.

Additionally, as aptly stated by both parties, Stephanie’s continued
use of her mother’s surname (Garcia) as her middle name will
maintain her maternal lineage. It is to be noted that Article 189(3) of
the Family Code and Section 1824, Article V of RA 8552 (law on
adoption) provide that the adoptee remains an intestate heir of
his/her biological parent. Hence, Stephanie can well assert or claim
her hereditary rights from her natural mother in the future.
Moreover, records show that Stephanie and her mother are living
together in the house built by petitioner for them at 390 Tumana,
San Jose, Baliuag, Bulacan. Petitioner provides for all their needs.
Stephanie is closely attached to both her mother and father. She
calls them "Mama" and "Papa". Indeed, they are one normal happy
family. Hence, to allow Stephanie to use her mother’s surname as
her middle name will not only sustain her continued loving
relationship with her mother but will also eliminate the stigma of her
illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption –
It is a settled rule that adoption statutes, being humane and
salutary, should be liberally construed to carry out the beneficent
purposes of adoption.25 The interests and welfare of the adopted
child are of primary and paramount consideration,26 hence, every
reasonable intendment should be sustained to promote and fulfill
these noble and compassionate objectives of the law.27
Lastly, Art. 10 of the New Civil Code provides that:
200
"In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to
prevail."
This provision, according to the Code Commission, "is necessary so
that it may tip the scales in favor of right and justice when the law is
doubtful or obscure. It will strengthen the determination of the
courts to avoid an injustice which may apparently be authorized by
some way of interpreting the law."28
Hence, since there is no law prohibiting an illegitimate
child adopted by her natural father, like Stephanie, to use, as
middle name her mother’s surname, we find no reason why she
should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is
partly MODIFIED in the sense that Stephanie should be allowed to
use her mother’s surname "GARCIA" as her middle name.
Let the corresponding entry of her correct and complete name be
entered in the decree of adoption.
SO ORDERED.

G.R. No. L-57062 January 24, 1992
MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners,
vs.
HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN
MARIATEGUI and PAULINA MARIATEGUI, respondents.
BIDIN, J.:
This is a petition for review on certiorari of the decision * of the Court
of Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled
"Jacinto Mariategui, et al. v. Maria del Rosario Mariategui, et al.,"
reversing the judgment of the then Court of First Instance of Rizal,
Branch VIII ** at Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for
respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui
contracted three (3) marriages. With his first wife, Eusebia
Montellano, who died on November 8, 1904, he begot four (4)
children, namely: Baldomera, Maria del Rosario, Urbana and Ireneo.
Baldomera died and was survived by her children named Antero,
Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all
surnamed Espina. Ireneo also died and left a son named Ruperto.
With his second wife, Flaviana Montellano, he begot a daughter
named Cresenciana who was born on May 8, 1910 (Rollo, Annex "A",
p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married
sometime in 1930. They had three children, namely: Jacinto, born
on July 3, 1929, Julian, born on February 16, 1931 and Paulina,
201
born on April 19, 1938. Felipa Velasco Mariategui died in 1941
(Rollo, Ibid).
At the time of his death, Lupo Mariategui left certain properties
which he acquired when he was still unmarried (Brief for
respondents, Rollo, pp. 116; 4). These properties are described in the
complaint as Lots Nos. 163, 66, 1346 and 156 of the Muntinglupa
Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and second
marriages, namely, Maria del Rosario, Urbana, Ruperto, Cresencia,
all surnamed Mariategui and Antero, Rufina, Catalino, Maria,
Gerardo, Virginia and Federico, all surnamed Espina, executed a
deed of extrajudicial partition whereby they adjudicated unto
themselves Lot No. 163 of the Muntinglupa Estate. Thereafter, Lot
No. 163 was the subject of a voluntary registration proceedings filed
by the adjudicatees under Act No. 496, and the land registration
court issued a decree ordering the registration of the lot. Thus, on
April 1, 1971, OCT No. 8828 was issued in the name of the above-
mentioned heirs. Subsequently, the registered owners caused the
subdivision of the said lot into Lots Nos. 163-A to 163-H, for which
separate transfer certificates of title were issued to the respective
parties (Rollo, ibid).
On April 23, 1973, Lupo's children by his third marriage with Felipa
Velasco (Jacinto, Julian and Paulina) filed with the lower court an
amended complaint claiming that Lot No. 163 together with Lots
Nos. 669, 1346 and 154 were owned by their common father, Lupo
Mariategui, and that, with the adjudication of Lot No. 163 to their
co-heirs, they (children of the third marriage) were deprived of their
respective shares in the lots. Plaintiffs pray for partition of the estate
of their deceased father and annulment of the deed of extrajudicial
partition dated December 2, 1967 (Petition, Rollo, p. 10). Cresencia

Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos
were impleaded in the complaint as unwilling defendants as they
would not like to join the suit as plaintiffs although they
acknowledged the status and rights of the plaintiffs and agreed to
the partition of the parcels of land as well as the accounting of their
fruits (Ibid., Rollo, p. 8; Record on Appeal, p. 4).
The defendants (now petitioners) filed an answer with counterclaim
(Amended Record on Appeal, p. 13). Thereafter, they filed a motion
to dismiss on the grounds of lack of cause of action and
prescription. They specifically contended that the complaint was one
for recognition of natural children. On August 14, 1974, the motion
to dismiss was denied by the trial court, in an order the dispositive
portion of which reads:
It is therefore the opinion of the Court that Articles 278
and 285 of the Civil Code cited by counsel for the
defendants are of erroneous application to this case.
The motion to dismiss is therefore denied for lack of
merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners'
counterclaim were dismissed by the trial court, in its decision
stating thus:
The plaintiffs' right to inherit depends upon the
acknowledgment or recognition of their continuous
enjoyment and possession of status of children of their
supposed father. The evidence fails to sustain either
premise, and it is clear that this action cannot be
sustained. (Ibid, Rollo, pp. 67-68)
202
The plaintiffs elevated the case to the Court of Appeals on the
ground that the trial court committed an error ". . . in not finding
that the parents of the appellants, Lupo Mariategui and Felipa
Velasco (were) lawfully married, and in holding (that) they
(appellants) are not legitimate children of their said parents, thereby
divesting them of their inheritance . . . " (Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals rendered a decision
declaring all the children and descendants of Lupo Mariategui,
including appellants Jacinto, Julian and Paulina (children of the
third marriage) as entitled to equal shares in the estate of Lupo
Mariategui; directing the adjudicatees in the extrajudicial partition
of real properties who eventually acquired transfer certificates of title
thereto, to execute deeds of reconveyance in favor, and for the
shares, of Jacinto, Julian and Paulina provided rights of innocent
third persons are not prejudiced otherwise the said adjudicatees
shall reimburse the said heirs the fair market value of their shares;
and directing all the parties to submit to the lower court a project of
partition in the net estate of Lupo Mariategui after payment of taxes,
other government charges and outstanding legal obligations.
The defendants-appellees filed a motion for reconsideration of said
decision but it was denied for lack of merit. Hence, this petition
which was given due course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether
or not prescription barred private respondents' right to demand the
partition of the estate of Lupo Mariategui, and (b) whether or not the
private respondents, who belatedly filed the action for recognition,
were able to prove their successional rights over said estate. The
resolution of these issues hinges, however, on the resolution of the
preliminary matter, i.e., the nature of the complaint filed by the
private respondents.

The complaint alleged, among other things, that "plaintiffs are the
children of the deceased spouses Lupo Mariategui . . . and Felipa
Velasco"; that "during his lifetime, Lupo Mariategui had repeatedly
acknowledged and confirmed plaintiffs as his children and the latter,
in turn, have continuously enjoyed such status since their birth";
and "on the basis of their relationship to the deceased Lupo
Mariategui and in accordance with the law on intestate succession,
plaintiffs are entitled to inherit shares in the foregoing estate (Record
on Appeal, pp. 5 & 6). It prayed, among others, that plaintiffs be
declared as children and heirs of Lupo Mariategui and adjudication
in favor of plaintiffs their lawful shares in the estate of the decedent
(Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows
that the action is principally one of partition. The allegation with
respect to the status of the private respondents was raised only
collaterally to assert their rights in the estate of the deceased.
Hence, the Court of Appeals correctly adopted the settled rule that
the nature of an action filed in court is determined by the facts
alleged in the complaint constituting the cause of action (Republic
vs. Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is not the proper one
which may be granted under the law, it does not characterize or
determine the nature of plaintiffs' action, and the relief to which
plaintiff is entitled based on the facts alleged by him in his
complaint, although it is not the relief demanded, is what
determines the nature of the action (1 Moran, p. 127, 1979 ed.,
citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for
partition of the estate of Lupo Mariategui, the Court of Appeals aptly
203
held that the private respondents are legitimate children of the
deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been
lawfully married in or about 1930. This fact is based on the
declaration communicated by Lupo Mariategui to Jacinto who
testified that "when (his) father was still living, he was able to
mention to (him) that he and (his) mother were able to get married
before a Justice of the Peace of Taguig, Rizal." The spouses deported
themselves as husband and wife, and were known in the community
to be such. Although no marriage certificate was introduced to this
effect, no evidence was likewise offered to controvert these facts.
Moreover, the mere fact that no record of the marriage exists does
not invalidate the marriage, provided all requisites for its validity are
present (People vs. Borromeo, 133 SCRA 106 [1984]).
Under these circumstances, a marriage may be presumed to have
taken place between Lupo and Felipa. The laws presume that a man
and a woman, deporting themselves as husband and wife, have
entered into a lawful contract of marriage; that a child born in lawful
wedlock, there being no divorce, absolute or from bed and board is
legitimate; and that things have happened according to the ordinary
course of nature and the ordinary habits of life (Section 5 (z), (bb),
(cc), Rule 131, Rules of Court; Corpus v. Corpus, 85 SCRA 567
[1978]; Saurnaba v. Workmen's Compensation, 85 SCRA 502 [1978];
Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v.
Court of Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it
is founded on the following rationale:
The basis of human society throughout the civilized
world is that of marriage. Marriage in this jurisdiction

is not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of
the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are
presumed, in the absence of any counterpresumption
or evidence special to that case, to be in fact married.
The reason is that such is the common order of society
and if the parties were not what they thus hold
themselves out as being, they would be living in the
constant violation of decency and of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56
[1922] quoted in Alavado vs. City Government of
Tacloban, 139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband
and wife and such relationship is not denied nor contradicted, the
presumption of their being married must be admitted as a fact
(Alavado v. City Gov't. of Tacloban,supra).
The Civil Code provides for the manner under which legitimate
filiation may be proven. However, considering the effectivity of the
Family Code of the Philippines, the case at bar must be decided
under a new if not entirely dissimilar set of rules because the parties
have been overtaken by events, to use the popular phrase
(Uyguangco vs. Court of Appeals, G.R. No. 76873, October 26,
1989). Thus, under Title VI of the Family Code, there are only two
classes of children — legitimate and illegitimate. The fine
distinctions among various types of illegitimate children have been
eliminated (Castro vs. Court of Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate
children may be established by the record of birth appearing in the
204
civil register or a final judgment or by the open and continuous
possession of the status of a legitimate child.
Evidence on record proves the legitimate filiation of the private
respondents. Jacinto's birth certificate is a record of birth referred to
in the said article. Again, no evidence which tends to disprove facts
contained therein was adduced before the lower court. In the case of
the two other private respondents, Julian and Paulina, they may not
have presented in evidence any of the documents required by Article
172 but they continuously enjoyed the status of children of Lupo
Mariategui in the same manner as their brother Jacinto.
While the trial court found Jacinto's testimonies to be
inconsequential and lacking in substance as to certain dates and
names of relatives with whom their family resided, these are but
minor details. The nagging fact is that for a considerable length of
time and despite the death of Felipa in 1941, the private
respondents and Lupo lived together until Lupo's death in 1953. It
should be noted that even the trial court mentioned in its decision
the admission made in the affidavit of Cresenciana Mariategui Abas,
one of the petitioners herein, that " . . . Jacinto, Julian and Paulina
Mariategui ay pawang mga kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that
private respondents are legitimate children and heirs of Lupo
Mariategui and therefore, the time limitation prescribed in Article
285 for filing an action for recognition is inapplicable to this case.
Corollarily, prescription does not run against private respondents
with respect to the filing of the action for partition so long as the
heirs for whose benefit prescription is invoked, have not expressly or
impliedly repudiated the co-ownership. In other words, prescription
of an action for partition does not lie except when the co-ownership

is properly repudiated by the co-owner (Del Banco vs. Intermediate
Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117
SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the
share of the other co-owners absent a clear repudiation of co-
ownership duly communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand
partition is imprescriptible and cannot be barred by laches (Del
Banco vs. IAC, 156 SCRA 55 [1987]). On the other hand, an action
for partition may be seen to be at once an action for declaration of
co-ownership and for segregation and conveyance of a determinate
portion of the property involved (Roque vs. IAC, 165 SCRA 118
[1988]).
Petitioners contend that they have repudiated the co-ownership
when they executed the extrajudicial partition excluding the private
respondents and registered the properties in their own names
(Petition, p. 16; Rollo, p. 20). However, no valid repudiation was
made by petitioners to the prejudice of private respondents.
Assuming petitioners' registration of the subject lot in 1971 was an
act of repudiation of the co-ownership, prescription had not yet set
in when private respondents filed in 1973 the present action for
partition (Ceniza vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of their
demands, petitioners, except the unwilling defendants in the lower
court, failed and refused to acknowledge and convey their lawful
shares in the estate of their father (Record on Appeal, p. 6). This
allegation, though denied by the petitioners in their answer (Ibid, p.
14), was never successfully refuted by them. Put differently, in spite
of petitioners' undisputed knowledge of their relationship to private
respondents who are therefore their co-heirs, petitioners
205
fraudulently withheld private respondent's share in the estate of
Lupo Mariategui. According to respondent Jacinto, since 1962, he
had been inquiring from petitioner Maria del Rosario about their
(respondents) share in the property left by their deceased father and
had been assured by the latter (Maria del Rosario) not to worry
because they will get some shares. As a matter of fact, sometime in
1969, Jacinto constructed a house where he now resides on Lot No.
163 without any complaint from petitioners.
Petitioners' registration of the properties in their names in 1971 did
not operate as a valid repudiation of the co-ownership. In Adille
vs. Court of Appeals (157 SCRA 455, 461-462 [1988]), the Court
held:
Prescription, as a mode of terminating a relation of co-
ownership, must have been preceded by repudiation (of
the co-ownership). The act of repudiation, in turn, is
subject to certain conditions: (1) a co-owner repudiates
the co-ownership; (2) such an act of repudiation is
clearly made known to the other co-owners; (3) the
evidence thereon is clear and conclusive; and (4) he
has been in possession through open, continuous,
exclusive, and notorious possession of the property for
the period required by law.
xxx xxx xxx
It is true that registration under the Torrens system is
constructive notice of title, but it has likewise been our
holding that the Torrens title does not furnish shield
for fraud. It is therefore no argument to say that the
act of registration is equivalent to notice of repudiation,
assuming there was one, notwithstanding the long-
 206

standing rule that registration operates as a universal

notice of title.

Inasmuch as petitioners registered the properties in their names in

fraud of their co-heirs prescription can only be deemed to have
commenced from the time private respondents discovered the
petitioners' act of defraudation (Adille vs. Court of Appeals, supra).
Hence, prescription definitely may not be invoked by petitioners
because private respondents commenced the instant action barely
two months after learning that petitioners had registered in their
names the lots involved.

WHEREFORE, the petition is DENIED and the assailed decision of

the Court of Appeals dated December 24, 1980 is Affirmed.

SO ORDERED.