G.R. No.

L-22228

February 27, 1969

PHILIPPINE ASSOCIATION OF LABOR UNIONS (PAFLU) SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION-PAFLU, AL FAJARDO AND ALL THE OTHER MEMBERS AND OFFICERS OF THE SOCIAL SECURITY AND EMPLOYEES ASSOCIATION-PAFLU, petitioners, vs. THE SECRETARY OF LABOR, THE DIRECTOR OF LABOR RELATIONS and THE REGISTRAR OF LABOR ORGANIZATIONS, respondents. Cipriano Cid and Associates and Israel Bocobo for petitioners. Office of the Solicitor General Arturo A. Alafriz and Solicitor Camilo D. Quiason for respondents. CONCEPCION, C.J.: Petitioners pray for writs of certiorari and prohibition to restrain respondents, the Secretary of Labor, the Director of Labor Relations and the Registrar of Labor Organizations, from enforcing an order of cancellation of the registration certificate of the Social Security System Employees Association hereinafter referred to as the SSSEA which is affiliated to the Philippine Association of Free Labor Unions hereinafter referred to as PAFLU as well as to annul all proceedings in connection with said cancellation and to prohibit respondents from enforcing Section 23 of Republic Act No. 875. Petitioners, likewise, pray for a writ of preliminary injunction pending the final determination of this case. In their answer, respondents traversed some allegations of fact and the legal conclusions made in the petition. No writ of preliminary injunction pendente lite has been issued. It appears that on September 25, 1963, the Registration of Labor Organizations hereinafter referred to as the Registrar issued a notice of hearing, on October 17, 1963, of the matter of cancellation of the registration of the SSSEA, because of: 1. Failure to furnish the Bureau of Labor Relations with copies of the reports on the finances of that union duly verified by affidavits which its treasurer or treasurers rendered to said union and its members covering the periods from September 24, 1960 to September 23, 1961 and September 24, 1961 to September 23, 1962, inclusive, within sixty days of the 2 respective latter dates, which are the end of its fiscal year; and 2. Failure to submit to this office the names, postal addresses and non-subversive affidavits of the officers of that union within sixty days of their election in October (1st Sunday), 1961 and 1963, in conformity with Article IV (1) of its constitution and by-laws. in violation of Section 23 of Republic Act No. 875. Counsel for the SSSEA moved to postpone the hearing to October 21, 1963, and to submit then a memorandum, as well as the documents specified in the notice. The motion was granted, but, nobody appeared for the SSSEA on the date last mentioned. The next day, October 22, 1963, Manuel Villagracia, Assistant Secretary of the SSSEA filed with the Office of the Registrar, a letter dated October 21, 1963, enclosing the following: 1. Joint non-subversive affidavit of the officers of the SSS Employees' Association-PAFLU; 2. List of newly-elected officers of the Association in its general elections held on April 29, 1963; and 3. Copy of the amended constitution and by-laws of the Association.

Holding 1. That the joint non-subversive affidavit and the list of officers mentioned in the letter of Mr. Manuel Villagracia were not the documents referred to in the notice of hearing and made the subject matter of the present proceeding; and 2. That there is no iota of evidence on records to show and/or warrant the dismissal of the present proceeding. on October 23, 1963, the Registrar rendered a decision cancelling the SSSEA's Registration Certificate No. 1-IP169, issued on September 30, 1960. Soon later, or on October 28, 1963, Alfredo Fajardo, president of the SSSEA moved for a reconsideration of said decision and prayed for time, up to November 15, within which to submit the requisite papers and data. An opposition thereto having been filed by one Paulino Escueta, a member of the SSSEA, upon the ground that the latter had never submitted any financial statement to its members, said motion was heard on November 27, 1963. Subsequently, or on December 4, 1963, the Registrar issued an order declaring that the SSSEA had "failed to submit the following requirements to wit: 1. Non-subversive affidavits of Messrs. Teodoro Sison, Alfonso Atienza, Rodolfo Zalameda, Raymundo Sabino and Napoleon Pefianco who were elected along with others on January 30, 1962. 2. Names, postal addresses and non-subversive affidavits of all the officers who were supposedly elected on October (1st Sunday), of its constitution and by-laws. and granting the SSSEA 15 days from notice to comply with said requirements, as well as meanwhile holding in abeyance the resolution of its motion for reconsideration. Pending such resolution, or on December 16, the PAFLU, the SSSEA, Alfredo Fajardo "and all the officers and members" of the SSSEA commenced the present action, for the purpose stated at the beginning of this decision, upon the ground that Section 23 of Republic Act No. 875 violates their freedom of assembly and association, and is inconsistent with the Universal Declaration of Human Rights; that it unduly delegates judicial power to an administrative agency; that said Section 23 should be deemed repealed by ILO-Convention No. 87; that respondents have acted without or in excess of jurisdiction and with grave abuse of discretion in promulgating, on November 19, 1963, its decision dated October 22, 1963, beyond the 30-day period provided in Section 23(c) of Republic Act No. 875; that "there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law"; that the decision complained of had not been approved by the Secretary of Labor; and that the cancellation of the SSSEA's certificate of registration would cause irreparable injury. The theory to the effect that Section 23 of Republic Act No. 875 unduly curtails the freedom of assembly and association guaranteed in the Bill of Rights is devoid of factual basis. The registration prescribed in paragraph (b) of said section 1 is not a limitation to the right of assembly or association, which may be exercised with orwithout said registration. 2 The latter is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the "rights and privileges granted by law to legitimate labor organizations". The Constitution does not guarantee these rights and privileges, much less said personality, which are mere statutory creations, for the possession and exercise of which registration is required to protect both labor and the public against abuses, fraud, or impostors who pose as organizers, although not truly accredited agents of the union they purport to represent. Such requirement is a valid exercise of the police power, because the activities in which labor organizations, associations and union of workers are engaged affect public interest, which should be protected. 3 Furthermore, the obligation

to submit financial statements, as a condition for the non-cancellation of a certificate of registration, is a reasonable regulation for the benefit of the members of the organization, considering that the same generally solicits funds or membership, as well as oftentimes collects, on behalf of its members, huge amounts of money due to them or to the organization. 4 For the same reasons, said Section 23 does not impinge upon the right of organization guaranteed in the Declaration of Human Rights, or run counter to Articles 2, 4, 7 and Section 2 of Article 8 of the ILO-Convention No. 87, which provide that "workers and employers, ... shall have the right to establish and ... join organizations of their own choosing, without previous authorization"; that "workers and employers organizations shall not be liable to be dissolved or suspended by administrative authority"; that "the acquisition of legal personality by workers' and employers' organizations, ... shall not be made subject to conditions of such a character as to restrict the application of the provisions" above mentioned; and that "the guarantees provided for in" said Convention shall not be impaired by the law of the land. In B.S.P. v. Araos, 5 we held that there is no incompatibility between Republic Act No. 875 and the Universal Declaration of Human Rights. Upon the other hand, the cancellation of the SSSEA's registration certificate would not entail a dissolution of said association or its suspension. The existence of the SSSEA would not be affected by said cancellation, although its juridical personality and its statutory rights and privileges as distinguished from those conferred by the Constitution would be suspended thereby. To be registered, pursuant to Section 23(b) of Republic Act No. 875, a labor organization, association or union of workers must file with the Department of Labor the following documents: (1) A copy of the constitution and by-laws of the organization together with a list of all officers of the association, their addresses and the address of the principal office of the organization; (2) A sworn statement of all the officers of the said organization, association or union to the effect that they are not members of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method; and (3) If the applicant organization has been in existence for one or more years, a copy of its last annual financial report. Moreover, paragraph (d) of said-Section ordains that: The registration and permit of a legitimate labor organization shall be cancelled by the Department of Labor, if the Department has reason to believe that the labor organization no longer meets one or more of the requirements of paragraph (b) above; or fails to file with the Department Labor either its financial reportwithin the sixty days of the end of its fiscal year or the names of its new officers along with their non-subversive affidavits as outlined in paragraph (b) above within sixty days of their election; however, the Department of Labor shall not order the cancellation of the registration and permit without due notice and hearing, as provided under paragraph (c) above and the affected labor organization shall have the same right of appeal to the courts as previously provided.6 The determination of the question whether the requirements of paragraph (b) have been met, or whether or not the requisite financial report or non-subversive affidavits have been filed within the period above stated, is not judicial power. Indeed, all officers of the government, including those in the executive department, are supposed, to act on the basis of facts, as they see the same. This is

specially true as regards administrative agencies given by law the power to investigate and render decisions concerning details related to the execution of laws the enforcement of which is entrusted thereto. Hence, speaking for this Court, Mr. Justice Reyes (J.B.L.) had occassion to say: The objections of the appellees to the constitutionality of Republic Act No. 2056, not only as an undue delegation of judicial power to the Secretary of Public Works but also for being unreasonable and arbitrary, are not tenable. It will be noted that the Act (R.A. 2056) merely empowers the Secretary to remove unauthorized obstructions or encroachments upon public streams, constructions that no private person was anyway entitled to make because the bed of navigable streams is public property, and ownership thereof is not acquirable by adverse possession (Palanca vs. Commonwealth, 69 Phil., 449). It is true that the exercise of the Secretary's power under the Act necessarily involves thedetermination of some question of fact, such as the existence of the stream and its previous navigable character; but these functions, whether judicial or quasi-judicial, are merely incidental to the exercise of the power granted by law to clear navigable streams of unauthorized obstructions or encroachments, andauthorities are clear that they are validly conferable upon executive officials provided the party affected is given opportunity to be heard, as is expressly required by Republic Act No. 2056, section 2.7 It should be noted also, that, admittedly, the SSSEA had not filed the non-subversive affidavits of some of its officers "Messrs. Sison, Tolentino, Atienza, Zalameda, Sabino and Pefianca" although said organization avers that these persons "were either resigned or out on leave as directors or officers of the union", without specifying who had resigned and who were on leave. This averment is, moreover, controverted by respondents herein. Again, the 30-day period invoked by the petitioners is inapplicable to the decision complained of. Said period is prescribed in paragraph (c) 8 of Section 23, which refers to the proceedings for the "registration" of labor organizations, associations or unions not to the "cancellation" of said registration, which is governed by the abovequoted paragraph (d) of the same section. Independently of the foregoing, we have repeatedly held that legal provisions prescribing the period within which a decision should be rendered are directory, not mandatory in nature in the sense that, a judgment promulgated after the expiration of said period is not null and void, although the officer who failed to comply with law may be dealt with administratively, in consequence of his delay 9 unless the intention to the contrary is manifest. Such, however, is not the import of said paragraph (c). In the language of Black: When a statute specifies the time at or within which an act is to be done by a public officer or body, it is generally held to be directory only as to the time, and not mandatory, unless time is of the essence of the thing to be done, or the language of the statute contains negative words, or shows that the designation of the time was intended as a limitation of power, authority or right. 10 Then, again, there is no law requiring the approval, by the Secretary of Labor, of the decision of the Registrar decreeing the cancellation of a registration certificate. In fact, the language of paragraph (d) of Section 23, suggests that, once the conditions therein specified are present, the office concerned "shall" have no choice but to issue the order of cancellation. Moreover, in the case at bar, there is nothing, as yet, for the Secretary of Labor to approve or disapprove, since petitioners, motion for reconsideration of the Registrar's decision of October 23, 1963, is still pending resolution. In fact, this circumstance shows, not only that the present action is premature, 11but, also, that

petitioners have failed to exhaust the administrative remedies available to them. 12 Indeed, they could ask the Secretary of Labor to disapprove the Registrar's decision or object to its execution or enforcement, in the absence of approval of the former, if the same were necessary, on which we need not and do not express any opinion. IN VIEW OF THE FOREGOING, the petition herein should be, as it is hereby dismissed, and the writs prayed for denied, with costs against the petitioners. It is so ordered.
lawphi 1.nt

G.R. No. L-15127

May 30, 1961

EMETERIO CUI, plaintiff-appellant, vs. ARELLANO UNIVERSITY, defendant-appellee. G.A.S. Sipin, Jr., for plaintiff-appellant. E. Voltaire Garcia for defendant-appellee. CONCEPCION, J.: Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving defendant Arellano University from plaintiff's complaint, with costs against the plaintiff, and dismissing defendant's counter claim, for insufficiency of proof thereon. In the language of the decision appealed from: The essential facts of this case are short and undisputed. As established by the agreement of facts Exhibits X and by the respective oral and documentary evidence introduced by the parties, it appears conclusive that plaintiff, before the school year 1948-1949 took up preparatory law course in the defendant University. After finishing his preparatory law course plaintiff enrolled in the College of Law of the defendant from the school year 1948-1949. Plaintiff finished his law studies in the defendant university up to and including the first semester of the fourth year. During all the school years in which plaintiff was studying law in defendant law college, Francisco R. Capistrano, brother of the mother of plaintiff, was the dean of the College of Law and legal counsel of the defendant university. Plaintiff enrolled for the last semester of his law studies in the defendant university but failed to pay his tuition fees because his uncle Dean Francisco R. Capistrano having severed his connection with defendant and having accepted the deanship and chancellorship of the College of Law of Abad Santos University, plaintiff left the defendant's law college and enrolled for the last semester of his fourth year law in the college of law of the Abad Santos University graduating from the college of law of the latter university. Plaintiff, during all the time he was studying law in defendant university was awarded scholarship grants, for scholastic merit, so that his semestral tuition fees were returned to him after the ends of semester and when his scholarship grants were awarded to him. The whole amount of tuition fees paid by plaintiff to defendant and refunded to him by the latter from the first semester up to and including the first semester of his last year in the college of law or the fourth year, is in total P1,033.87. After graduating in law from Abad Santos University he applied to take the bar examination. To secure permission to take the bar he needed the transcripts of his records in defendant Arellano University. Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after he had paid back the P1,033 87 which defendant refunded to him as above stated. As he could not take the bar examination without those transcripts, plaintiff paid to defendant the said sum under protest. This is the sum which plaintiff seeks to recover from defendant in this case. Before defendant awarded to plaintiff the scholarship grants as above stated, he was made to sign the following contract covenant and agreement: "In consideration of the scholarship granted to me by the University, I hereby waive my right to transfer to another school without having refunded to the University (defendant) the equivalent of my scholarship cash.

(Sgd.) Emeterio Cui". It is admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed to "All heads of private schools, colleges and universities," reading: 1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or partial scholarships to deserving students for excellence in scholarship or for leadership in extra-curricular activities. Such inducements to poor but gifted students should be encouraged. But to stipulate the condition that such scholarships are good only if the students concerned continue in the same school nullifies the principle of merit in the award of these scholarships. 2. When students are given full or partial scholarships, it is understood that such scholarships are merited and earned. The amount in tuition and other fees corresponding to these scholarships should not be subsequently charged to the recipient students when they decide to quit school or to transfer to another institution. Scholarships should not be offered merely to attract and keep students in a school. 3. Several complaints have actually been received from students who have enjoyed scholarships, full or partial, to the effect that they could not transfer to other schools since their credentials would not be released unless they would pay the fees corresponding to the period of the scholarships. Where the Bureau believes that the right of the student to transfer is being denied on this ground, it reserves the right to authorize such transfer. that defendant herein received a copy of this memorandum; that plaintiff asked the Bureau of Private Schools to pass upon the issue on his right to secure the transcript of his record in defendant University, without being required to refund the sum of P1,033.87; that the Bureau of Private Schools upheld the position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the latter refused to issue said transcript of records, unless said refund were made, and even recommended to said Bureau that it issue a written order directing the defendant to release said transcript of record, "so that the case may be presented to the court for judicial action." As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said sum of P1,033.87, in order that he could take the bar examination in 1953. Subsequently, he brought this action for the recovery of said amount, aside from P2,000 as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500 as expenses of litigation. In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools, namely, that the provisions of its contract with plaintiff are valid and binding and that the memorandum above-referred to is null and void. It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees. The issue in this case is whether the above quoted provision of the contract between plaintiff and the defendant, whereby the former waived his right to transfer to another school without refunding to the latter the equivalent of his scholarships in cash, is valid or not. The lower court resolved this question in the affirmative, upon the ground that the aforementioned memorandum of the Director of Private Schools is not a law; that the provisions thereof are advisory, not mandatory in nature; and that, although the contractual provision "may be unethical, yet it was more unethical for plaintiff to quit studying with the defendant without good reasons and simply because he wanted to follow the example of his uncle." Moreover, defendant maintains in its brief that the aforementioned memorandum of the Director of Private Schools is null and void because said officer had no

authority to issue it, and because it had been neither approved by the corresponding department head nor published in the official gazette. We do not deem it necessary or advisable to consider as the lower court did, the question whether plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos University. The nature of the issue before us, and its far reaching effects, transcend personal equations and demand a determination of the case from a high impersonal plane. Neither do we deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless of the same, we are of the opinion that the stipulation in question is contrary to public policy and, hence, null and void. The aforesaid memorandum merely incorporates a sound principle of public policy. As the Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant, There is one more point that merits refutation and that is whether or not the contract entered into between Cui and Arellano University on September 10, 1951 was void as against public policy. In the case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In determining a public policy of the state, courts are limited to a consideration of the Constitution, the judicial decisions, the statutes, and the practice of government officers.' It might take more than a government bureau or office to lay down or establish a public policy, as alleged in your communication, but courts consider the practices of government officials as one of the four factors in determining a public policy of the state. It has been consistently held in America that under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or uphold a transaction which its object, operation, or tendency is calculated to be prejudicial to the public welfare, to sound morality or to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University understood clearly the real essence of scholarships and the motives which prompted this office to issue Memorandum No. 38, s. 1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a direct violation of our Memorandum and an open challenge to the authority of the Director of Private Schools because the contract was repugnant to sound morality and civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to declare a contract void as against public policy, a court must find that the contract as to consideration or the thing to be done, contravenes some established interest of society, or is inconsistent with sound policy and good morals or tends clearly to undermine the security of individual rights. The policy enunciated in Memorandum No. 38, s. 1949 is sound policy. Scholarship are awarded in recognition of merit not to keep outstanding students in school to bolster its prestige. In the understanding of that university scholarships award is a business scheme designed to increase the business potential of an education institution. Thus conceived it is not only inconsistent with sound policy but also good morals. But what is morals? Manresa has this definition. It is good customs; those generally accepted principles of morality which have received some kind of social and practical confirmation. The practice of awarding scholarships to attract students and keep them in school is not good customs nor has it received some kind of social and practical confirmation except in some private institutions as in Arellano University. The University of the Philippines which implements Section 5 of Article XIV of the Constitution with reference to the giving of free scholarships to gifted children, does not require scholars to reimburse the corresponding value of the scholarships if they transfer to other schools. So also with the leading colleges and universities of the United States after which our educational practices or policies are patterned. In these institutions scholarships are granted not to attract and to keep brilliant students in school for their propaganda mine but to reward merit or help gifted students in whom society has an established interest or a first lien. (Emphasis supplied.)

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at the legal rate from September 1, 1954, date of the institution of this case, as well as the costs, and dismissing defendant's counterclaim. It is so ordered.

G.R. No. L-11002

January 17, 1916

THE UNITED STATES, plaintiff-appellee, vs. MATEO P. PALACIO, defendant-appellant. Antonio Belmonte for appellant. Attorney-General Avancea for appellee. ARAULLO, J.: These proceedings for violation of section 87 of Act No. 82, the Municipal Code, were brought against the defendant, Mateo P. Palacio, in the Court of First Instance of Leyte by the following complaint filed therein by the fiscal on December 18, 1914. The undersigned charges Mateo P. Palacio with having violated section 87 of Act No. 82, in the following manner, to wit: Said accused, on or about the 26th day of September, 1914, in the municipality of Tacloban, Province of Leyte, P.I., he being then and there a deputy to the provincial assessor of Leyte, charged with the duty of assessing real property, did wilfully, unlawfully, and criminally upon revising the assessment and in reassessing the property of Francisco Madlonito, situated in the barrio of Di-it, municipality of Tacloban, omit from the tax list certain real properties and improvements belonging to said Francisco Madlonito, knowing that the properties omitted were lawfully taxable; in violation of law. A demurrer having been filed by defendant's counsel on the ground that the facts alleged in the complaint did not constituted the crime provided for and punished by said section 87 of Act No. 82, the same was overruled, and, defendant having pleaded not guilty, the case came to trial. Evidence was introduced by both the prosecution and the defense, and, on January 15, 1915, said Court of First Instance rendered judgment in which, insisting upon the overruling of the demurrer interposed to the complaint, and finding of the demurrer interposed to the complaint, and finding the defendant guilty of the crime therein charged, he sentenced him to the penalty of forty days' imprisonment in the provincial jail, to pay a fine of P100, or, in case of insolvency, to suffer the corresponding subsidiary imprisonment and to pay the costs. Defendant has appealed from this judgment and has assigned thereto various errors which, as stated by the Attorney-General in his brief, may be reduced to the following: 1. That the lower court erred in holding that the evidence adduced at trial proves defendant's guilt beyond all reasonable doubt. 2. That the facts alleged in the complaint and proven at trial do not constitute the infraction provided for and punished by section 87 of Act No. 82, known as the Municipal Code. The evidence shows beyond all doubt that while defendant was serving as a deputy to the provincial assessor of Leyte, duly appointed and such, and having proceeded under orders of said assessor, given in the month of September, 1914, to verify the measurement, evaluation, and assessment of the properties of one Francisco Madlonito, situated in the barrio of Di-it, municipality of Tacloban of said province, he presented in performance of his duty a report in which he recorded as real property belonging to said Francisco Madlonito a rectangular parcel of unirrigated land which was adjoined on the north by the land of Anacleto Condes; on the east, by that of Ventura Vias; on the south, by that of Jose Guardino; and on the west, by woods; it measured 3 hectares 51 ares and 23 centiares in area, the only improvements consisting of 500 hemp plants; that several days afterwards, in the following month of October, the provincial assessor, having been advised that defendant's report

was false, proceeded in company with another deputy to remeasure and to make a new valuation and assessment of the same land, under guidance of and in accordance with date furnished by the same Francisco Madlonito who had previously conducted and furnished information to defendant; as a result of this proceeding on the part of said provincial assessor, it was ascertained that said land was unirrigated hemp or corn land; that it was polygonal in form and was adjoined on the north by the property of Anacleto Condes and Basilio Espejo; on the east, by that of Nicanor Dolina, Basilio Espejo and Ventura Vias; on the south, by the land of Tomas Tabosa and a wood; and by a wood on the west; it was found to measure 15 hectares 17 ares and 65 centiares in extent, the improvements thereon consisting of a plantation of hemp, a dwelling house of mixed material, 80 clumps of banana trees, 9 cacao trees, 24 coconut trees 5 years of age, and one coconut tree in bearing. It was therefore apparent that in the tax list of real property which, as deputy to the provincial assessor, defendant was charged to prepare that is, the report presented by him he had omitted real property belonging to Francisco Madlonito, which property consisted of 12 hectares 66 ares and 42 centares of land and all the improvements mentioned, with the exception of the 500 hemp plants specified in this report. Defendant endeavored in a way to explain this omission by attributing it to the fact that in making his report he relied upon the information furnished by Francisco Madlonito himself, and, with respect to the area, on that given him at the time by the two laborers who measured the land and who assured him that said measurement was correct, because it was the same as that which has been pointed out to them by the owner of the land. Defendant further explained that he also accepted the informations furnished by said laborers with respect to the improvements specified in said report as consisting of a plantation of hemp; that these men had told him that there were no other improvements except the hemp plantation and some banana trees of which he did not know how many there were; with respect to the house, Francisco Madlonito told him that it belonged to Emiliano, Francisco's brother; that this latter was absent at the time and therefore defendant did not measure the property, deciding to postpone doing so until the 15th of January of the following year, when he intended to return. These explanations of the defendant are not satisfactory, nor can they serve to exonerate him as he claims because, in the first place, he should not have relied on what the interest party himself, Francisco Madlonito, told him, nor upon the information which, at the time he inspected and measured the lands, was furnished him by the two laborers of whose services he availed himself for the actual performance of that labor. He himself ought to have verified the correctness of the information and have informed himself of the true area of the land and of all the improvements thereon, they being in sight, in order to include them in the report which it was his duty to render to the provincial assessor in fulfillment of the mission confined to him. In the second place, Francisco Madlonito himself testified at the trial that he had furnished defendant with the same date and information which he subsequently gave to the provincial assessor and to the latter's other deputy when they both went to verify and investigate the defendant's work, form which verification and investigation it was disclosed that the land was larger by 12 hectares 66 ares and 42 centiares and that it contained many other improvements such as clumps of coconut, cacao and banana trees, besides the 500 hemp plants mentioned in defendant's report. We therefore fail to understand and it has not been explained how said improvements could have been omitted from the report, nor how defendant could have failed to mentioned therein such a large tract of land as that of the 12 hectares above referred to. This, together with the circumstances of defendant's having passed the previous night in Francisco Madlonito's own house, and having had, therefore, sufficient opportunity and time to inform himself of exactly what the latter's property, which was to be measure and recorded in said report, consisted of, constitute proof that defendant (exception made in so far as the house is concerned, for it might be true that it did belong to Francisco Madlonito's brother), willfully omitted from his report and extensive portion of Francisco Madlonito's real property that he knew was lawfully taxable and which it was his duty to record in said document. The lower court did not, therefore, incur the first error assigned by defendant's counsel in his brief.

Defendant's counsel alleges, however, that the act committed by his client and which, as aforesaid, was proven at trial, does not constitute an infraction provided for and punished by section 87 of Act No. 82, known as the Municipal Code." That section provides as follows: Any officer charged with the duty of assessing real property, who shall willfully omit from the tax lists real property which he knows to be lawfully taxable, shall be guilty of a misdemeanor and punishable by a fine not exceeding one thousand pesos, or imprisonment not exceeding two years, or both, in the discretion of the court. Section 49 of the same Act, No. 82, provides that the real estate of the municipality shall be valued and assessed for taxation by a board, to consist of the president, the municipal treasurer, and a specially authorized deputy of the provincial treasurer, which board shall be known as the municipal board of assessors. Said section 49 was amended by section 1 of Act No. 1930, so that the aforementioned municipal board of assessors should consist of the municipal president the municipal treasurer and, instead of the deputy to the provincial treasurer, of a third member to be appointed by the provincial board. Subsequently, on February 11, 1913, Act No. 2238 was passed, section 1 of which created the position of provincial assessor for each province containing municipalities organized under the provisions of the Municipal Code. Section 2 of this Act provides that provincial assessors shall be allowed such number of deputies and clerks as shall be fixed by the provincial board with the approval of the Executive Secretary, and section 4, in reciting the duties of the provincial assessor, and, consequently, those of his deputies, provides that, when directed by provincial board, he shall revise and correct the assessments and valuations of real property for the purpose of taxation, and , in the manner set forth in the Act, revise and correct, when so directed, any and all assessments and valuations for taxation, make a correct and just assessments and state the true value of the real property. Other sections of this Act confer upon the provincial assessor various powers in connection with the preparation of the lists of property subject to assessment, and, finally, establishes the procedure that must be followed where any municipality or any property owner does not agree with the assessment and valuation so made. As may be seen, the purpose of Act No. 2238, in creating the office of provincial assessor and allowing him such number of deputies and clerks as shall be fixed by the provincial board with the approval of the Executive Secretary, was the same as that of Act No. 82, in creating, in section 49 thereof, the municipal board of assessors; and Act No. 1930, in amending said section in the manner aforementioned, to wit, by providing that all the real property, taxable or subject to the land tax, existing in the municipalities of these Islands, should be assessed, and, for this purpose and in order that the provincial board should exercise the necessary and proper supervision over acts of the municipalities relative to said tax, provided that someone representing the provincial board or better said, a provincial official, should be a member of the municipal board of assessors a purpose and object which are more accentuated in Act No. 2238 by expressly creating the office of provincial assessor for the revision and correction of assessments and valuations of real property declared in the municipalities and to enable this official to take a direct and active part in preparing the lists of property subject to said tax. Said Act 2238 is therefore intimately related to the two Acts Nos. 82 and 1930 aforecited, and is virtually a complement of the same in so far as regards the declaration and assessment of taxable property. Said Act No. 2238 provides in section 18 that all Acts or parts of Acts in conflict therewith are repealed. In the two aforementioned Acts, Nos. 82 and 1930, in so far as relates to the assessment

and valuation of taxable real property in municipalities, there is, strictly speaking, nothing which may be said to be in conflict with said Act no. 2238, not only for the reason above stated, but also because this Act has done nothing but change the method and procedure provided in Act No. 82, the Municipal Code, for determining the taxable real property in the municipalities and the value thereof, by means of the intervention which in said procedure is given to the provincial assessors. But that municipalities are not excluded from taking part in the proceedings is shown by the fact that section 9 of this Act No. 2238 provides that, prior to directing the provincial assessor in accordance with the provisions thereof, to proceed to revise and correct the assessments and valuations of real property, the provincial board shall require each municipal council of the municipalities organized under the provisions of the Municipal Code (Act No. 82) to prepare, in such form and detail as the Executive Secretary may prescribe, a general schedule of the values of the different classes of land for the municipality which shall be forwarded to the provincial board for approval, and such schedule, when approved by the provincial board, shall serve the assessor as basis for the valuation and assessment. It also provides in section 13 that it shall be the duty of the municipal president, secretary and treasurer and all municipal employees, to render every assistance in their power to the provincial assessor. Furthermore, one of the rules of interpretation, as very properly said by defendant's counsel in his brief, is that "when there are two laws on the same subject enacted on different dates, and it appears evidently by the form and essence of the later law that it was the intention of the legislator to cover therein the whole of the subject, and that it is a complete and perfect system, or is in itself a provision, the latest law should be considered as a legal declaration that all that is comprised therein shall continue in force and that all that is not shall rejected and repealed." A simple perusal of Act No. 2238 is sufficient to show that it was not the intention of the legislature to cover all matters relative to the assessment and valuation of the taxable real property of the municipalities, and subject, because, as aforesaid, the Act in question is closely related to Act No. 82, of which it is virtually a complement in so far as regards the organization of the service of making the lists for the complete and adequate collection to the tax on the real property in municipalities organized under said Act No. 82. It cannot, therefore, be maintained that section 87 of this latter Act should be considered as repealed, in so far as it prescribes the penalty incurred by any official who, being charged with the duty of assessing real property, wilfully omits form the tax lists any real property which he knows to be lawfully taxable. Repeals by implications are not favored, and will not be decreed, unless it is manifest that the legislature so intended. As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the subject, it is but reasonable to conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to same matter, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, and flowing necessarily from the language used, unless the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is beyond peradventure removed. Hence, every effort must be used to make all acts stand and if, by any reasonable construction, they can be reconciled, the later act will not operate as a repeal of the earlier. (23 Am. and Eng. Ency. of Law, p. 489, and cases there cited [vol. 26, pp. 721, 726].) As said Act No. 2238 provides no penalty for the provincial assessor or his deputy who, in revising the assessment and preparing the tax list of real property, wilfully makes any omission such as that aforestated; and as the provincial assessor, or his deputy, is a public official or an official of the class referred to in section 87, it being immaterial whether he be a provincial or a municipal official (for it is sufficient that it be the duty of such official to assess real property) it is evident that the said penal provisions in force and is applicable to the provincial assessors and their deputies referred to in Act No. 2238, and that the lower court did not err in sentencing defendant, under the provisions of said section 87, to the penalty specified in the judgment appealed from.

The fact that the cadastral survey of the municipality of Tacloban was to terminated at the time of the discovery of the omission made by the defendant in the report presented by him to the provincial assessor, and that such omission might have been repaired by correcting the list or report by means of revision and new assessment made by the provincial assessor himself on his proceeding with the investigation of the misdemeanor committed by defendant, does not exempt the latter from liability, because what the law punished in said section 87 is the fact of the willful omission, by the official charged with the duty of assessing the real property in the tax list, of any property which he knows to be lawfully taxable; and it is immaterial whether said omission can or cannot subsequently be remedied, because it constitutes in itself a false representation in that document and a fraud committed by the public official to prejudice of the Government or with intent to cause such prejudice. By reason of the foregoing, and the judgment appealed from being in accordance with the merits of the case and the law, we hereby affirm the same, with the costs against appellant. So ordered.

G.R. No. 75860 September 17, 1987 ANG PING and CARMEN PIMENTEL, petitioners, vs. REGIONAL TRIAL COURT OF MANILA, Branch 40; and JULIO and ZENAIDA KO, respondents.

GUTIERREZ, JR., J.: The issue in this petition is whether or not the execution of a final judgment in an ejectment case which has gone all the way to the Supreme Court may be stayed by a trial court on the ground of a supervening event, namely a decision by a regional trial court ordering the nullification of sale and title and granting legal redemption in favor of the private respondents. On November 13, 1985, in G. R. No. 70581, (Ang Ping, et al. v. Intermediate Appellate Court, et al.), we issued a resolution which reads in part: On October 25, 1983, the Metropolitan Trial Court of Manila rendered judgment in an ejectment case filed by the petitioners Ang Ping and Carmen Pimentel against private respondents Julio Ko and Zenaida Ko. The trial court ordered the respondents to vacate the disputed premises, pay P5,000.00 a month in rentals from March 1, 1981 until they vacate minus whatever payments may have been made in the meantime, and pay P3,000.00 attorney's fees and costs. On appeal to the Regional Trial Court of Manila, the decision was affirmed in toto on March 26, 1984. On July 5, 1984, RTC Judge Conrado T. Limcaoco partially granted a motion for reconsideration by reducing to P500.00 monthly rentals, the rate of monthly rentals agreed upon from June, 1979 or earlier when the respondents and their parents were leasing the premises from Uy Chaco Sons and Co., Inc. The Regional Trial Court of Manila sustained the MTC findings that B.P. No. 25 is not applicable because (1) the monthly rental is more than then P300.00 rental covered by the law and (2) the respondents use the (sic) commercial reasons and not for a residence. The Urban Land Reform Law, P.D. 1517 was likewise not deemed applicable, a finding impliedly accepted by the respondents when they abandoned this ground. In their petition for review filed with the Intermediate Appellate Court, the respondent questioned the validity of the October 25, 1983 decision of the Metropolitan Trial Court on the ground that it was released only on January 24, 1984 when Judge J. Cesar Sangco had already retired. (p. 9, Rollo) We resolved affirmatively the issue of whether or not the October 25, 1983 decision of Judge J. Cesar Sangco in the ejectment case was valid. Instead of remanding the case for a re-promulgation of the same judgment, this Court affirmed the decisions of the courts below as modified, i.e. reducing the P5,000.00 per month rentals to their pre-litigation level of P500.00 per month. After a motion for reconsideration was denied and entry of judgment was made, the petitioners returned to the metropolitan trial court where they filed a motion for execution of the judgment. The private respondents opposed the motion on the ground that a complaint for annulment of sale which they filed with the Regional Trial Court of Manila had, in the meantime, been decided in their favor.

The Regional Trial Court of Manila in Civil Case No. 13911 declared null and void the sale by the earlier owner, T & C Corporation, to the petitioners on grounds of equity under Article 19 of the Civil Code and ordered the petitioners to sell 190 square meters of the land they had purchased to the respondents upon Julio Ko's paying them P190,000.00. The petitioners filed a motion to set aside and/or reconsider the decision. According to a manifestation filed September 1, 1987, the motion for reconsideration was denied, whereupon the matter was raised to the Court of Appeals where the case is now pending. Going back to the ejectment case, the Metropolitan Trial Court of Manila denied the respondents' opposition and granted the motion for execution. On April 28, 1986, respondents Julio and Zenaida Ko filed a petition for certiorari with prayer for a temporary restraining order or preliminary injunction to stop the implementation of the writ of execution in the ejectment case. It is the preliminary injunction issued by Branch 40 of the Regional Trial Court of Manila in Civil Case No. 86-35622 which is now before us. The bases for the decision in the ejectment case are summarized by the Regional Trial Court of Manila as follows: Defendants contend that they cannot be ejected because: (1) they are subsisting lessees at the time of the purchase of the property in question by the plaintiffs from T & L Development Corporation, under Sec. 5 of B.P. No. 15; (2) plaintiffs' need of the leased premises is not for use as a residential unit as required by said law, but as an office and bodega; and (3) since they were not given an opportunity to exercise their right of first refusal before the leased premises were sold to the plaintiffs, the sale thereof to the latter is null and void and in fact filed a complaint for annulment thereof on that ground. As to the first two grounds the basic issue is whether or not B.P. No. 25 is applicable to this case. The coverage of said law is defined in Sec. 7 thereof according to which said law applies only to "All residential units the total monthly rental of which does not exceed three hundred pesos (P300.00) as of the effectivity of this Act ..." The undisputed fact is that at the time of the purchase of the premises in question defendants were paying a monthly rental of P500.00. Moreover, it is even doubtful whether the leased premises may be considered as a residential unit under Sec. 2(b) of B.P. No. 25, considering that defendants are undeniably using the same for commercial purposes because it is there where they do business under the name of Johnson Blacksmith & Machine Shop. As to the third ground, while it is not necessary to resolve it, it is just as obvious that P.D. 1517 is likewise not applicable, as correctly pointed out by counsel for the plaintiff and as indicated by the plaintiff and as indicated by defendants' abandonment of this ground. Since neither B.P. No. 25 nor P.D. 1517 are applicable, the settled rule that a month to month contract of lease is a contract for a fixed period, expires at the end of every month and may be terminated on any month, applies. Plaintiff did so when it served notice of termination thereof dated February 20, 1981, effective 30 days thereafter. Premises considered the court finds and so declares that plaintiffs have satisfactorily established their causes of action. (Annex J, Rollo, p. 75-76) (Rollo, pp. 5-6).

On the other hand, the decision in Civil Case No. 139111, nullifying the sale in favor of petitioners Ang Ping and Carmen Pimentel is based on a finding that justice and equity would be served by allowing Julio and Zenaida Ko to buy the properties already sold to the petitioners. Among the findings in Civil Case No. 139111 are: (1) Julio Ko has been operating his Johnson Blacksmith and Machine Shop in the disputed premises since 1965. (2) The respondents have religiously paid the monthly rentals of P500.00 for the premises. (3) The respondents were never informed that T & L Development Corporation intended to sell the premises. They claimed a right to priority in the purchase of the lot and the corresponding part of the building and on April 24, 1981 deposited with Equitable Banking Corporation the amount of P192,161.78 in trust for Ang Ping for the redemption or repurchase of the lot and apartment door sold to Ang Ping and Carmen Pimentel. The court stated that there is nothing legally wrong in an owner of a leased property selling it without notifying the tenant. However, it found a failure of the owner and the buyers to observe honesty and good faith because other tenants were informed of the proposed sale but not Julio and Zenaida Ko. The petitioners raise two grounds for the allowance of their petition, namely: A The respondent court gravely abused its discretion and/or acted without or in excess of jurisdiction in issuing the temporary restraining order of April 28, 1986 and the Order of May 16, 1986, denying petitioners' Motion to Dismiss and directing the issuance of a writ of preliminary injunction to stop the implementation of the writ of execution issued by the MTC of Manila (Rollo, p. 13) B The respondent court committed grave abuse of discretion and/or acted without or in excess of jurisdiction in issuing the writ of preliminary injunction, thereby depriving the petitioners of the fruits of their legal victory through the implementation of the final and executory decision. (pp. 13 and 18, Rono) The petitioners contend that the decision of Branch 9 of the Regional Trial Court of Manila in the nullification of sale and title and reconveyance case does not as yet confer on the respondents any enforceable right whereas this Court has already entered judgment in the ejectment case. The petitioners also point out that we were fully aware of the pending nullification and reconveyance case because the same was brought to our attention in G.R. No. 70581. Yet, we denied a motion for reconsideration of our decision in the petition for review of the ejectment case. We agree with the petitioners. The principle enunciated in Ramirez v. Bleza (106 SCRA 187) applies. We ruled in Ramirez:

Moreover, the pendency of Civil Case No. R436, an "accion publiciana", where ownership is concededly the principal issue, (Rollo, p. 59.) before the Court of First Instance of Oriental Mindoro, does not preclude nor bar the execution of the judgment rendered in Civil Case No. R184, where the action was for forcible entry and the only issue involved was the material possession or possession de facto of the land under litigation. Such action which involves the title over the premises is entirely independent from forcible entry. (at p. 194) Justice Ramon C. Aquino was more emphatic in his concurrence: I concur. Respondent judge of first instance acted with grave abuse of discretion in preventing the execution of the final and executory judgment of the municipal court in the ejectment case on the flimsy pretext that another possessory action was pending in his court involving the same land. The judgment of the municipal court is res judicata as to the issue of possession de facto but it not conclusive as to the title or ownership (Sec. 7, Rule 70, Rules of Court; Pealosa v. Tuason, 22 Phil. 303). Possession and ownership of a parcel of land may be held by different persons. The winning party is entitled to the execution of the municipal court's final judgment as to possession. The enforcement of that judgment would not cause "chaos and confusion". (id. at p. 195). In De la Cruz v. Court of Appeals (133 SCRA 520), we had a similar ruling: We find no merit in petitioners' aforesaid submission. An unlawful detainer action has an entirely different subject from that of an action for reconveyance of title. What is involved in unlawful detainer case is merely the issue of material possession or possession de facto; whereas in an action for reconveyance, ownership is the issue. So much so that the pendency of an action for reconveyance of title over the same property does not divest the city or municipal court of its jurisdiction to try the forcible entry or unlawful detainer case, nor will it preclude or bar execution of judgment in the ejectment case where the only issue involved is material possession or possession de facto. (Ramirez v. Bleza, L-45640, July 30, 1981, 106 SCRA 187). This is so because: The judgment rendered in an action for forcible entry or detainer shall be effective with respect to the possession only and in no case bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building nor shall it be held conclusive of the facts therein found in case between the same parties upon a different cause of action involving possession. (Section 7, Rule 70, Rules of Court). The rationale is that forcible entry and unlawful detainer cases are summary proceedings designed to provide for an expeditious means of protecting actual possession or the right to possession of the property involved. (Republic v. Guarin, supra). It does not admit of a delay in the determination thereof. It is a "time procedure" designed to remedy the situation. (Mabalot v. Madela, Jr., 121 SCRA 347). Procedural technicality is therefore obviated and reliance thereon to stay

eviction from the property should not be tolerated and cannot override substantial justice. (Dakudao v. Consolacion, 122 SCRA 877). So much so that judgment must be executed immediately when it is in favor of the plaintiff in order to prevent further damages arising from loss of possession. (Salinas v. Navarro, 126 SCRA 167). (At pp. 527-528). As early as 1922, this Court declared in Shioji v. Harvey (43 Phil. 333) that "the only function of a lower court, when the judgment of a higher court is returned to it, is the ministerial one of issuing the order of execution. A lower court is without supervisory jurisdiction to interpret or to reverse the judgment of the higher court." This is especially true where it is a Supreme Court decision or resolution which states with finality how the particular case before it has been resolved. We ruled in Tugade v. Court of Appeals (85 SCRA 226): Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera (L-31589, July 31, 1970, 34 SCRA 98). "The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit." (ibid., 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited.) The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: "Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings." (Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila [Branch VI], L26364, May 29, 1968, 23 SCRA 948, 961.) (at pp. 230-231). We refrain from expressing any opinion on the merits of the decision in the nullification of sale and reconveyance of property case. The merits will have to be threshed out by the proper court on a full consideration of the evidence and the law upon which it is based. Our decision here is limited to the execution of the decision in the ejectment case. From the foregoing, it is plain that the law is on the side of the petitioners. The injunction was improperly issued. Do the equities of the case warrant a disregard of established precedents? It is true that the private respondents would suffer painful consequences if they are ejected now only to be reinstated if they eventually win the nullification of sale case. However, the petitioners are also suffering an injustice. The ejectment case in their favor was decided as early as 1983. The regional trial court affirmed the decision. The Intermediate Appellate Court ruled that the promulgation of the trial court's decision was defective and ordered it repromulgated but this Court set aside the appellate decision and reinstated the metropolitan trial court and regional trial court decisions.

There being no final decision in the annulment of sale case, the petitioners have equal chances with the private respondents of also winning that case. The private respondents cannot claim to have overriding considerations of equity on their side, sufficient to stop the execution of a final judgment in the ejectment proceedings. WHEREFORE, the petition is hereby GRANTED. The orders dated April 28, 1986 and May 16, 1986 of the respondent court are SET ASIDE. The Metropolitan Trial Court is ORDERED to immediately execute the decision in the ejectment case. No motion for extension of time to file a motion for reconsideration of this decision will be granted.

G.R. No. L-17938

April 30, 1963

ESPERIDION TOLENTINO, plaintiff-appellant, vs. ADELA ONGSIAKO, ET AL., defendants-appellees. Esperidion Tolentino for and in his own behalf as plaintiff-appellant. Edmundo M. Reyes and Senen Ceniza for defendants-appellees. REYES, J.B.L., J.: Appeal from the order of dismissal of the Court of First Instance of Nueva Ecija, in its Civil Case No. 3197. The plaintiff-appellant, Esperidion Tolentino, prays in the complaint that he filed with the lower court on 20 May 1959, for the enforcement of the dissenting opinion rendered in the case entitled "Severo Domingo, et al. vs. Santos Ongsiako, et al., G.R. No. 32776." The decision in said case (in favor of appellees' predecessors, and adverse to those of appellant) was promulgated by this Court on 4 December 1930, and, together with the dissenting opinion, appears in Volume 55 of the Philippine Reports, starting on page 361. Unfortunately, the records of said case were lost, or destroyed, during the war. The plaintiff-appellant claims to be the successor-interest of the late Severo Domingo, who died without having received a copy of the decision, and alleges that plaintiff-appellant learned of the decision, only about a week before he filed the aforementioned complaint; that the decision of the majority of the Court was erroneous and unjust; that the dissenting opinion is the correct view of the case, and should be enforced. The court below, on motion of one of the several defendants, dismissed the case, for lack of cause of action. Not satisfied, the plaintiff-appellant interposed the present appeal, and urges that the failure of service of a copy of the decision upon the late Severo Domingo was a denial of due process, which invalidates the decision, and asks that, on equitable grounds, the present case be heard as a proceeding coram nobis. Assuming the truth of the allegation that Severo Domingo, appellant's predecessor-in-interest, was never furnished a copy of the decision in G.R. No. L-32776, it appears in the printed report of the case (55 Phil. 361) that he was represented by Atty. Ramon Diokno. Being represented by counsel, service of the decision is made upon the latter by the clerk of the Supreme Court (Sec. 250, Act 190), and not upon the client (Palad vs. Cui, 28 Phil. 44); and the unrebutted presumption is that the said official of this Court had regularly performed his duty (No. 14, Sec. 334, Act 190; Sec. 69 [m], Rule 123, Rules of Court). Appellant's alleged predecessor-in-interest was not, therefore, denied due process of law. Appellant's position that the decision was erroneous and unjust is entirely untenable, because the issue sought to be reopened is res judicata, aside from its having stood unchallenged for 30 years. The ridiculous prayer to enforce a dissenting opinion requires no discussion, it being sufficient to state that there is nothing to enforce in a dissenting opinion, since it affirms or overrules no claim, right, or obligation, and neither disposes of, nor awards, anything; it merely expresses the views of the dissenter.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.
1wph1.t

Lastly, the appellant's claim that "the lower court erred in not allowing plaintiff-appellant's cause as a proceedingcoram nobis", is devoid of merit. The ancient common law writ of error coram nobis, now substantially obsolete even in common law jurisdictions (49 CJS 561), does not lie after affirmance of a judgment on writ of error on appeal (49 CJS 562); nor can it be grounded on facts already in issue and adjudicated on the trial (49 CJS 567). Moreover, the jurisdiction of a writ of error coram nobis lies exclusively in the court which rendered the judgment sought to be corrected (49 CJS 568), so that it should have been sought by appellants, if at all, in the Supreme Court, and not in the Court of First Instance. In the Philippines, no court appears to have ever recognized such writ, the rule in this jurisdiction being that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts should become final and irrevocable at some definite date fixed by law.1 Interes rei publicae ut finis sit litium. The order of dismissal appealed from is affirmed. Costs against the appellant.

G.R. No. 74122 March 15, 1988 GUILLERMO NACTOR, SPS. ANSELMO & ELENA NACTOR, PRECILIANO NACTOR, JOSE NACTOR & GLORIA NACTOR assisted by her husband MANUEL CLAYTOS, petitioners, vs. INTERMEDIATE APPELLATE COURT, * HON. NICOLAS A. GEROCHI, JR., Presiding Judge of the Regional Trial Court of Makati, Branch 139 & SPS. CLARO & MAGDALENA MELCHOR respondents. PARAS, J.: This is a petition for review on certiorari seeking to set aside or reverse the decision of the Intermediate Appellate Court ***(now Court of Appeals) dated January 30,1986 in ACG.R. SPNo.07595 entitled Guillermo Nactor, et al. vs. Nicolas A. Gerochi, Jr. affirming the decision of the Regional Trial Court, National Capital Region, Br. 139 in Civil Case No. 9307 on June 4,1985, which in turn affirmed in toto the appealed decision of the Metropolitan Trial Court in Civil Case No. 25607 dated September 5,1984. Respondent Court of appeals dismissed the petition seeking to set aside the Omnibus Order of the Regional Trial Court not only because the decision of the said court had already become final but also because on the merits of said decision, the affirmance thereof was in complete accord both with the facts and the law on the matter. The antecedent facts of this case as found by the Metropolitan Trial Court are as follows: Sometime in 1962, the herein plaintiffs-respondents (Spouses Melchor) allowed Guillermo Nactor (one of the defendants-petitioners) to build a shanty on their property as at that time they were intending to go abroad. Guillermo Nactor occupied the premises without any contract and without any rental, but with the understanding that he would watch over the property of the plaintiffs so as to prevent squatters from entering the said property. Instead of complying with the said agreement, Guillermo Nactor allowed his relatives to build houses inside the said property without the knowledge and consent of the Melchor spouses, so that when the latter returned to the Philippines, they discovered that many people were squatting inside their property. Hence, they lost no time in demanding that Guillermo Nactor and his group vacate the property in question. When petitioners refused to vacate the premises, the Melchor spouses filed a complaint with the Barangay, which was later elevated to the Metropolitan Trial Court, Branch 64, Makati, Metro Manila. The trial court decided the case in favor of the Melchor spouses on September 5, 1984, the dispositive portion of the decision reading as follows: WHEREFORE, judgment is hereby rendered ordering the defendants and any and all persons claiming right/title under them to vacate the lot at 7713 St. Paul Street, Barangay San Antonio Village, Makati, Metro Manila and surrender peaceful occupation and possession thereof to plaintiffs and to pay jointly and severally to the latter a monthly rental of P100.00 from the date of the filing of the complaint on 30 August 1983 until they finally vacate the premises and to demolish and/or transfer all the improvements they have introduced thereon. Defendants are likewise ordered to pay the Plaintiffs P2,000.00 as attorney's fees and litigation expenses plus costs of suit. (Rollo, p. 17) On appeal, the Regional Trial Court of Makati affirmed in toto the decision of the Metropolitan Trial Court on June 4,1985, with the following observations and conclusions:

After a careful perusal of the evidence on record and the supporting arguments proffered by plaintiffs-appellees in their memorandum, this court finds no cogent reason to disturb the decision of the Court a quo, to which reference is hereby made. Furthermore, as admitted by the defendants, particularly, defendant-appellant Guillermo Nactor, that his occupancy of the said land was by mere tolerance and generosity of plaintiffs-appellees, allowing him to have a temporary place to build his abode, while the couple-plaintiffs-appellees--were still abroad. Evidently, while the actual physical possession might have been temporarily transferred to defendant-appellant Guillermo Nactor as a caretaker thereof for almost 20 years, the legal and juridical possession thereof remains in the hands of plaintiffsappellees, more especially so that the land in question of within the protective mantle of indefeasibility of the torrens system. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing or by violence, do not affect possession (Art. 537, New Civil Code; Mercedes vs. Go Bio, et al., 78 Phil. 279). Acts of possessory character executed in virtue of license or by mere tolerance of the owner shall not be available for the purpose of possession.' (Art. 1119, New Civil Code) (Emphasis supplied) To deny plaintiffs-appellees of their right to physically repossess the said land as uncontested and uncontroverted lawful owners thereof, would be tantamount to extending premium, if not license, to a pretender of lawful possession' arising only from the charity and benevolence of its owners. This Court, both in law and equity, under these antecedents, and after having extended benevolence to defendants-appellants for so long, should now allow plaintiffs the full enjoyment and use of their property. WHEREFORE, in view of the foregoing, decision appealed from is hereby AFFIRMED IN TOTO, with costs against defendants-appellants. (pp. 17-18, Rollo). The defendants-petitioners moved for reconsideration on June 24,1985, which motion was denied by respondent Judge, in an Omnibus Order dated October 22,1985, for having been filed after the decision had become final and executory. Simultaneously, on motion of plaintiffs-appellees, a writ of execution was issued. The motion for reconsideration having been denied, defendants-petitioners filed a petition for review on certiorari on October 31, 1985 with the Court of Appeals. On January 30, 1986, the Court of Appeals affirmed the decision of the Regional Trial Court, the pertinent portion of the affirmance reading: The petition is thus without merit. Not only had the respondent Judge's decision become final, and beyond the respondent Judge's competence to vary, set aside or modify, but that on the merits of the said decision, the affirmance thereof by the respondent Judge is in complete accord both with the facts and the law applicable on the matter. No reversible error has, therefore, been committed.

WHEREFORE, the petition for review is hereby DISMISSED, with costs." The defendant-petitioner filed a motion for reconsideration dated February 22,1986 which motion was denied on March 21, 1986 for lack of merit. Hence, this petition. In the resolution dated June 11, 1986, the Second Division of this Court, before acting on the petition, required the petitioners to comply with the rules by submitting to the court proof of service of the petition on the Intermediate Appellate Court and the adverse party and to sign the petition, the verification and the jurat (Rollo, p. 22). However, before petitioners could comply with said requirement which were filed on August 26, 1986, (Rollo, pp. 40-47; 56) respondents filed their comment dated June 30,1986 (Rollo, p. 23). In the Resolution of October 15,1986, the court required the petitioners to file a reply to the comment of counsel for respondent (Rollo, p. 58). On October 28, 1986, respondents filed an urgent Motion for Exigent Resolution and Refutal to the Petition for Review on certiorari (Rollo, p. 59). The resolution of November 10, 1986, gave due course to the petition and required both parties to file their respective memoranda (Rollo, p. 67). On that same date, however, the petitioners thru counsel filed their manifestations/explanation (Rollo, p. 68) stating that they are therewith submitting the attached Supplemental Reply to the comment of counsel for the respondents (Rollo, p. 78, Annex "D"). Respondents filed their memorandum on December 15, 1986 (Rollo, p. 91), and a motion for early conclusive resolution and/or final resolution on February 19, 1987 (Rollo, p. 98), followed by another motion reiterating early conclusive resolution and/or final decision by the same respondents on March 23, 1987 (Rollo, p. 100). On April 8,1987, petitioners filed their comment on the motion for early resolution while respondents filed their urgent ex-parte motion to withdraw deposit and [rayed that the amount be released through their authorized representative and attorney-in-fact (Rollo, p. 107). A special power of attorney was attached thereto (Rollo, p. 110). In the resolution of June 3,1987, the court required the private respondents to file a reply to the comments on the motion for early resolution filed by counsel for petitioners and petitioners to comment on the urgent ex-parte motion of private respondents to withdraw deposit. The latter was filed on July 3,1987 (Rollo, p. 114). Petitioners raised the following assignments of error: I THE DECISION ERRED IN RULING THAT THE MOTION FOR RECONSIDERATION FILED ON THE 24 OF JUNE 1985 IS ALREADY LATE BY ONE DAY, THE PRECEDING DAY, JUNE 23 BEING A SUNDAY. II THE DECISION ERRED IN BINDING THEREIN THE DEFENDANTS IN THE FORCIBLE ENTRY CASE WHICH WAS PREVIOUSLY DISMISSED. III THE DECISION ERRED IN NOT DISMISSING THE CASE FOR WANT OF JURISDICTION.

Otherwise stated, the issues raised in this case are two fold: (1) as regards the timeliness of the motion for reconsideration filed and (2) the lack of cause of action on the part of the complainants and lack of jurisdiction to try the case on the part of the court a quo. Petitioners contend that the motion for reconsideration was filed on time with the Regional Trial Court on June 24, 1985 because the fifteenth day, June 23, 1985 is a Sunday. There is merit in this contention. Pertinent thereto, Section 39 of the Judiciary Reorganization Act, B.P. 129 provides: The period for appeal from final orders, resolutions, awards judgments, or decisions of any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution, award judgment or decision appealed from: ... On the other hand, the rule on the computation of periods for filing of pleadings is now embodied in Article 13 of the Civil Code of the Philippines which provides: Art. 13. ... In computing a period, the first day shall be excluded, and the last day included. and also in the Revised Administrative Code which likewise provides: Section 13. Computation of time in computing any fixed period-of time, with reference to the performance of an act required by law or contract to be done at a certain time or within a certain limit of time, the day or date, or day from which the time is reckoned, is to be excluded and the date of performance, included, unless otherwise provided. However, in case the last day is a Sunday or a legal holiday, it is understood that where the time refers to a period prescribed or allowed by the Rules of Court, by an order of the court, or by any other applicable statute, the last day should really be the next day, provided said day is neither a Sunday nor a legal holiday. The law cannot require compliance on a day when entities supposed to receive pleadings or documents are closed in view of the holiday. Thus, as authoritatively formulated by this Court, the computation of the appeal periods is to the effect that the first day shall be excluded but the last day of the period so computed is to be included unless it is a Sunday or a legal holiday in which event the time shall run until the end of the next day which is neither a Sunday nor a holiday (Kabigting v. Acting Director of Prisons, 6 SCRA 281 [1962]; De las Alas v. Court of Appeals, 83 SCRA 200 [1978]. Accordingly, in said cases, the period to perfect an appeal is extended ipso jure to the first working day immediately following. It will be noted, however, that petitioners' motion for reconsideration was denied by the Regional Trial Court in its Omnibus Order, not only because said motion was purportedly filed late but also for lack of merit. Thus, in said Order, the Court ruled as follows: In passing though, even a careful consideration of the grounds relied upon by defendants-appellants in their Motion for Reconsideration as well as the opposition thereto by plaintiffs-appellees, thru counsel, this Court finds no cogent reason to alter its aforesaid decision sought to be reconsidered, as the main grounds relied upon by

defendants-appellants had been amply discussed in the decision of this Court in affirmance of the one rendered by the court a quo." (Original Records, p. 20). On review, the Court of Appeals was even more specific in denying the petition which seeks, to set aside aforesaid Order, not only because the decision of the Regional Trial Court has ostensibly become final but for lack of merit. All these notwithstanding, petitioners would have this Court review the findings and conclusions of the court a quo which have been affirmed in toto not only by the Regional Trial Court but also by the Court of Appeals, on the basis of technicalities obviously resorted to only for purposes of delay. Petitioners allege that it is only Guillermo Nactor whose entrance into the premises was with the knowledge and consent of the plaintiffs who can be bound by the judgment in the unlawful detainer case but not the rest of the defendants whose occupancy was termed by the plaintiffs as unlawful and/or illegal, without any written consent and/or authority from them. They claim that such defendants should therefore be charged with forcible entry, but without compliance with the Rules on Forcible Entry cases among which are, a written demand to vacate which must be definite, petitioners claim that the complaint is devoid of a sufficient cause of action and invests upon the court no jurisdiction to try and decide the case (Rollo, pp. 10-11). Such allegation is untenable. Aside from the findings of the trial court itself, that there is no contract at all between the plaintiffs and defendants and that the occupation of the property by the latter was only by tolerance of the former, such fact was confirmed by the testimony of the principal defendant Guillermo Nactor, whose testimony was quoted in the decision of the court a quo as follows: Q. You mean to tell the Honorable Court all the defendants in this case were allowed to silly in this place? A. Yes, Sir, spouses Melchor told us that we can stay there so that nobody will stay in the place. (TSN dated May 9, 1984): It will likewise be noted that defendants, all surnamed Nactor are the relatives of Guillermo Nactor who was the caretaker thereof. It is obvious that they gained access to the property through him and occupied the same under his responsibility. Consequently, if Guillermo Nactor has admittedly lost the right to stay on or occupy the property in question, with all the more reason have the rest of the defendants who are only occupying the property under him, no right to stay on the premises. Thus, the trial court in unmistakable language, in ordering that the property be vacated and possession thereof surrendered peacefully to the plaintiffs, included all the defendants and any and all persons claiming right/title under Guillermo Nactor. While it is true that the instant case was tried by the court a quo on the basis of the unlawful detainer charge instead of forcible entry for the rest of the defendants excluding Guillermo, it is an elementary rule of procedure that what is controlling is not the caption of the case which does not materially alter the situation but the allegations therein that determine the nature of the action and even without the prayer for a specific remedy, proper relief may nevertheless be granted by the court if the facts alleged in the complaint and the evidence introduced so warrant (Ras v. Sua, 25 SCRA 155-159 [1968]). Besides since the rest of the petitioners were on the property under the apparent protection of Guillermo, an unlawful detainer case (and not necessarily one of forcible entry) may properly be used against them.

Still further, petitioners claim that they fall within the protective mantle of P.D. No. 1517 "Urban Land Reform" as per Proclamation Nos. 1767 and 1967, as amended by Proclamation No. 2284, However, the records show that the property in question is outside the DECLARED URBAN LAND REFORM ZONE" (ULRZ), and situated on the northeast side along Saint Paul Road, has never been within the areas covered by "BOUNDARY DESCRIPTION PURSUANT TO PROCLAMATION NO. 1967," as certified by the Human Settlements Regulation Commission. (Annexes "A" and "A-l," Rollo, pp. 28 & 29). In resume, petitioners did not dispute the fact that private respondents are the lawful owners of the property in question, that Guillermo Nactor and the rest of the defendants are occupying the property only by tolerance of the owners and that under whatever remedy private respondents may avail themselves of, to enforce their rights, petitioners have to vacate the property because they have no right to stay therein. The main thrust therefore, of their objection is not on the merits of their claim but on the technicality that the nature of the action taken by the private respondents is erroneous. That the position of petitioners is totally devoid of merit, is shown by the fact that the end result would be the same. PREMISES CONSIDERED, the assailed decision of the Court of Appeals is AFFIRMED. This Decision is immediately executory.

G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J.: This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.
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The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
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Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock

amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor.1 After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death.2 So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.3Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered.

G.R. No. L-4606

May 30, 1952

RAMON B. FELIPE, SR., as Chairman, Board of Judges, petitioner, vs. HON. JOSE N. LEUTERIO, Judge, Court of First Instance of Camarines Sur, EMMA IMPERIAL, represented by her guardian-ad-litem JUSTO V. IMPERIAL, and SOUTHERN LUZON COLLEGE,respondents. Ramon Felipe, Jr., and L. B. Karingal for petitioner. Ezequiel S. Grageda and Victoriano Yamson for respondents Judge Leuterio and Emma Imperial. Padilla and San Juan for respondent Southern Luzon College. BENGZON, J.: Statement of the case. The issue in the litigation is whether the courts have the authority to reverse the award of the board of judges of an oratorical competition. In an oratorical contest held in Naga, Camarines Sur, first honor was given by the board of five judges to Nestor Nosce, and second honor to Emma Imperial. Six days later, Emma asked the court of the first instance of that province to reversed that award, alleging that one of the judges had fallen to error in grading her performance. After a hearing, and over the objection of the other four judges of the contest, the court declared Emma Imperial winner of the first place. Hence this special civil action challenging the court's power to modify the board's verdict. The facts. There is no dispute about the facts: 1. On March 12, 1950 a benefit inter-collegiate oratorical contest was held in Naga City. The contestants were eight, among them Nestor Nosce, Emma Imperial, and Luis General, Jr. 2. There were five judges of the competition, the petitioner Ramon B. Felipe, Sr. being the Chairman. 3. After the orators had delivered their respective pieces, and after the judges had expressed their votes, the Chairman publicly announced their decision awarding first price to Nestor Nosce, second price to Emma Imperial, third price to Menandro Benavides and fourth place to Luis General, Jr. 4. Four days afterwards, Emma Imperial addressed a letter to the Board of Judges protesting the verdict, and alleging that one of the Judges had committed a mathematical mistake, resulting in her second place only, instead of the first, which she therefore claimed. 5. Upon refusal of the Board to amend their award, she filed a complaint in the court of first instance. 6. At the contest the five judges were each furnished a blank form wherein he give the participants grades according to his estimate of their abilities, giving number 1 to the best, number 2 to the second best etc., down to number 8. Then the grades were added, and the contestant receiving the lowest number got first prize, the next second prize, etc. 7. The sums for the first four winners were: Nosce 10; Imperial 10; Benevides 17, General 17, the Board of judges having voted as follows: Judge Nosce Imperial Buenavides General

Felipe Sr. ......... Obias .............. Rodriguez .......... Prado .............. Moll ...............

3 1 1 3 2 10

1 2 4 2 1 10

2 4 5 1 5 17

4 3 3 3 4 17

8. It appearing that Nestor Nosce and Emma Imperial had tied for the first place, the Chairman, apparently with the consent of the board, broke the tie awarding first honors to Nosce and second honors to Imperial. 9. For the convenience of the judges the typewritten forms contained blank spaces in which, after the names of the rival orators and their respective orations, the judge could not jot down the grades he thought the contestants deserved according to "Originality", "Timeliness", "English", "Stage Personality", "Pronunciation and Enunciation" and "Voice". From such data he made up his vote. 10. It was discovered later that the form filed by Delfin Rodriguez, one of the Judges, gave Imperial and General the following ratings under the above headings; Imperial 19-15-15-18-14-14 Total 94Place 4th General 19-15-15 or 14-19-14-14 Total 95-Place 3rd. 11. Imperial asserts that her total should be 95 instead of 94 and therefore should rank 3rd place in Rodriguez' vote. And if she got 3 from Rodriguez, her total vote should have been 9 instead of ten, with the result that she copped first place in the speaking joust. 12. Rodriguez testified that he made a mistake in adding up Imperial's ratings; that she should have been given a total of 95, or placed No. 3, the same as General; that he was not disposed to break the tie between her and General and insisted that he wanted to give rank 3 to Imperial and rank 3 also to General. Discussion. Although it would seem anomalous for one judge to give the same rank to two contestants, we will concede for the moment that Delfin Rodriguez could have given 3 to Imperial to General. However if deductions are to be made from his recorded vote (Exhibit 3) one may infer that after the contest and before submitting his vote he decided to give General an edge over Imperial. How? Under the caption "English" General was given by himself at first "14", later increased to "15". Evidently because after he had added the ratings of Imperial and (erroneously) reached the sum of 94, he added the ratings of General (which were the same as Imperial with 14 under "English") and (mistakenly) reached 94 also. So what did he also? He raised the 14 to 15 and thus gave general 95 to place him over Imperial's 94. (Mistakingly again, because with 15 General got 96 instead of 95). But to us the important thing is Rodriguez' vote during and immediately after the affair. His vote in Exhibit 3 definitely gave General place No. 3 and Imperial place No. 4. His calculations recorded on Exhibit 3 were not material. In fact the Chairman did not bother to fill out the blank spaces in his own form, and merely set down his conclusions giving one to Imperial, 2 to Benavides etc. without specifying the ratings for "Voice", "English", "Stage Personality" etc. In other words what counted was the vote. Probably for the above reasons the board refused to "correct" the alleged error.

The situation then is this: Days after a contest has been conducted and the winners announced, one of the judges confesses he made a mistake, that the ratings he gave the second place winner should have been such as would entitle her to first place. The other judges refuse to alter their verdict. May the matter be brought to the court to obtain a new award, reversing the decision of the board of judges? For more than thirty years oratorical tilts have been held periodically by schools and colleges in these islands. Inter-collegiate oratorical competitions are of more recent origin. Members of this court have taken part in them either as contestants in their school days1, or as members of the board of judges afterwards. They know some (few) verdicts did not reflect the audience's preference and that errors have sometimes been ascribed to the award of the judges. Yet no party ever presumed to invoke judicial intervention; for it is unwritten law in such contests that the board's decision is final and unappealable. Like the ancient tournaments of the Sword, these tournaments of the Word apply the highest tenets of sportmanship: finally of the referee's verdict. No alibis, no murmurs of protest. The participants are supposed to join the competition to contribute to its success by striving their utmost: the prizes are secondary. No rights to the prizes may be asserted by the contestants, because their's was merely the privilege to compete for the prize, and that privilege did not ripen into a demandable right unless and until they were proclaimed winners of the competition by the appointed arbiters or referees or judges. Incidentally, these school activities have been imported from the United States. We found in American jurisprudence no litigation questioning the determination of the board of judges. Now, the fact that a particular action has had no precedent during a long period affords some reason for doubting the existence of the right sought to be enforced, especially where occasion for its assertion must have often arisen; and courts are cautious before allowing it, being loath to establish a new legal principle not in harmony with the generally accepted views thereon. (See C.J.S. Vol. 1, p. 1012). We observe that in assuming jurisdiction over the matter, the respondent judge reasoned out that where there is a wrong there is a remedy and that courts of first instance are courts of general jurisdiction. The flaw in his reasoning lies in the assumption that Imperial suffered some wrong at the hands of the board of judges. If at all, there was error on the part of one judge, at most. Error and wrong do not mean the same thing. "Wrong" as used in the aforesaid legal principle is the deprivation or violation of a right. As stated before, a contestant has no right to the prize unless and until he or she is declared winner by the board of referees or judges. Granting that Imperial suffered some loss or injury, yet in law there are instances of "damnum absque injuria". This is one of them. If fraud or malice had been proven, it would be a different proposition. But then her action should be directed against the individual judge or judges who fraudulently or maliciously injured her. Not against the other judges. By the way what is here in stated must not be understood as applying to those activities which the government has chosen to regulate with the creation of the Games and Amusements Board in Executive Order No. 392, Series 1950.

Judgment. In view of all the foregoing, we are of the opinion and so declare, that the judiciary has no power to reverse the award of the board of judges of an oratorical contest. For that matter it would not interfere in literary contests, beauty contests and similar competitions. Wherefore the order in controversy is hereby set aside. No costs.

[G.R. No. 132344. February 17, 2000] UNIVERSITY OF THE EAST, Petitioner, v. ROMEO A. JADER, Respondent. DECISION YNARES-SANTIAGO, J.: May an educational institution be held liable for damages for misleading a student into believing that the latter had satisfied all the requirements for graduation when such is not the case? This is the issue in the instant petition for review premised on the following undisputed facts as summarized by the trial court and adopted by the Court of Appeals (CA),1 to wit: "Plaintiff was enrolled in the defendants College of Law from 1984 up to 1988. In the first semester of his last year (School year 1987-1988), he failed to take the regular final examination in Practice Court I for which he was given an incomplete grade (Exhibits 2, also Exhibit H). He enrolled for the second semester as fourth year law student (Exhibit A) and on February 1, 1988 he filed an application for the removal of the incomplete grade given him by Professor Carlos Ortega (Exhibits H-2, also Exhibit 2) which was approved by Dean Celedonio Tiongson after payment of the required fee. He took the examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega submitted his grade. It was a grade of five (5). (Exhibits H-4, also Exhibits 2-L, 2-N). "In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate on who among the fourth year students should be allowed to graduate. The plaintiffs name appeared in the Tentative List of Candidates for graduation for the Degree of Bachelor of Laws (LL.B) as of Second Semester (1987-1988) with the following annotation: "JADER ROMEO A. Def. Conflict of Laws - x-1-87-88, Practice Court I - Inc., 1-87-88. C-1 to submit transcript with S.O. (Exhibits 3, 3-C-1, 3-C-2)." "The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of Laws was scheduled on the 16th of April 1988 at 3:00 oclock in the afternoon, and in the invitation for that occasion the name of the plaintiff
appeared as one of the candidates. (Exhibits B, B-6, B-6-A). At the foot of the list of the names of the candidates there appeared however the following annotation:

This is a tentative list. Degrees will be conferred upon these candidates who satisfactorily complete requirements as stated in the University Bulletin and as approved of the Department of Education, Culture and Sports (Exhibit B-7-A). "The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto Campus, during the program of which he went up the stage when his name was called, escorted by her (sic) mother and his eldest brother who assisted in placing the Hood, and his Tassel was turned from left to right, and he was thereafter handed by Dean Celedonio a rolled white sheet of paper symbolical of the Law Diploma. His relatives took pictures of the occasion (Exhibits C to C-6, D-3 to D-11). "He tendered a blow-out that evening which was attended by neighbors, friends and relatives who wished him good luck in the forthcoming bar examination. There were pictures taken too during the blow-out (Exhibits D to D-1). "He thereafter prepared himself for the bar examination. He took a leave of absence without pay from his job from April 20, 1988 to September 30, 1988 (Exhibit G) and enrolled at the pre-bar review class in Far Eastern University (Exhibits F to F-2). Having learned of the deficiency he dropped his review class and was not able to take the bar examination."2

Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental anguish, serious anxiety, besmirched reputation, wounded feelings and sleepless nights when he was not able to take the 1988 bar examinations arising from the latters negligence. He prayed for an award of moral and exemplary damages, unrealized income, attorneys fees, and costs of suit. In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent to believe that he completed the requirements for a Bachelor of Laws degree when his name was included in the tentative list of graduating students. After trial, the lower court rendered judgment as follows: WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the plaintiff and against the defendant ordering the latter to pay plaintiff the sum of THIRTY FIVE THOUSAND FOUR HUNDRED SEVENTY PESOS (P35,470.00) with legal rate of interest from the filing of the complaint until fully paid, the amount of FIVE THOUSAND PESOS (P5,000.00) as attorneys fees and the cost of suit. Defendants counterclaim is, for lack of merit, hereby dismissed. SO ORDERED.3 which on appeal by both parties was affirmed by the Court of Appeals (CA) with modification. The dispositive portion of the CA decision reads: WHEREFORE, in the light of the foregoing, the lower Courts Decision is hereby AFFIRMED with the MODIFICATION that defendant-appellee, in addition to the sum adjudged by the lower court in favor of plaintiff-appellant, is also ORDERED to pay plaintiff-appellant the amount of FIFTY THOUSAND (P50,000.00) PESOS for moral damages. Costs against defendant-appellee. SO ORDERED.4 Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this Court on a petition for review under Rule 45 of the Rules of Court, arguing that it has no liability to respondent Romeo A. Jader, considering that the proximate and immediate cause of the alleged damages incurred by the latter arose out of his own negligence in not verifying from the professor concerned the result of his removal exam. The petition lacks merit. When a student is enrolled in any educational or learning institution, a contract of education is entered into between said institution and the student. The professors, teachers or instructors hired by the school are considered merely as agents and administrators tasked to perform the schools commitment under the contract. Since the contracting parties are the school and the student, the latter is not dutybound to deal with the formers agents, such as the professors with respect to the status or result of his grades, although nothing prevents either professors or students from sharing with each other such information. The Court takes judicial notice of the traditional practice in educational institutions wherein the professor directly furnishes his/her students their grades. It is the contractual obligation of the school to timely inform and furnish sufficient notice and information to each and every student as to whether he or she had already complied with all the requirements for the conferment of a degree or whether they would be included among those who will graduate. Although commencement exercises are but a formal ceremony, it nonetheless is not an ordinary occasion, since such ceremony is the educational institutions way of announcing to the whole world that the students included in the list of those who will be conferred a degree during the baccalaureate ceremony have satisfied all the requirements for such degree. Prior or subsequent to the ceremony, the school has the obligation to promptly inform the student of any problem involving the latters grades and performance and also most importantly, of the procedures for remedying the same.

Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, cannot be said to have acted in good faith. Absence of good faith must be sufficiently established for a successful prosecution by the aggrieved party in a suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious.5 It is the school that has access to those information and it is only the school that can compel its professors to act and comply with its rules, regulations and policies with respect to the computation and the prompt submission of grades. Students do not exercise control, much less influence, over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the schools rules and orders. Being the party that hired them, it is the school that exercises general supervision and exclusive control over the professors with respect to the submission of reports involving the students standing. Exclusive control means that no other person or entity had any control over the instrumentality which caused the damage or injury.6 The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and the supervision of faculty and student services.7 He must see to it that his own professors and teachers, regardless of their status or position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submitting a students grade, is not only imputable to the professor but is an act of the school, being his employer. Considering further, that the institution of learning involved herein is a university which is engaged in legal education, it should have practiced what it inculcates in its students, more specifically the principle of good dealings enshrined in Articles 19 and 20 of the Civil Code which 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. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law.8 In civilized society, men must be able to assume that others will do them no intended injury that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society.9hools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who may be affected by his act or omission can support a claim for damages.10 Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable.11 Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its students grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioners liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course. Worth quoting is the following disquisition of the respondent court:

"It is apparent from the testimony of Dean Tiongson that defendant-appellee University had been informed during the deliberation that the professor in Practice Court I gave plaintiff-appellant a failing grade. Yet, defendant-appellee still did not inform plaintiff-appellant of his failure to complete the requirements for the degree nor did they remove his name from the tentative list of candidates for graduation. Worse, defendant-appellee university, despite the knowledge that plaintiff-appellant failed in Practice Court I, again included plaintiff-appellants name in the "tentative" list of candidates for graduation which was prepared after the deliberation and which became the basis for the commencement rites program. Dean Tiongson reasons out that plaintiff-appellants name was allowed to remain in the tentative list of candidates for graduation in the hope that the latter would still be able to remedy the situation in the remaining few days before graduation day. Dean Tiongson, however, did not explain how plaintiff-appellant Jader could have done something to complete his deficiency if defendant-appellee university did not exert any effort to inform plaintiff-appellant of his failing grade in Practice Court I."12 Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it.13 The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit.14 If mere fault or negligence in ones acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse.15 However, while petitioner was guilty of negligence and thus liable to respondent for the latters actual damages, we hold that respondent should not have been awarded moral damages. We do not agree with the Court of Appeals findings that respondent suffered shock, trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations. As a senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those pertaining to his academic achievement, are in order. Given these considerations, we fail to see how respondent could have suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he has satisfied all the requirements including his school records, before preparing himself for the bar examination. Certainly, taking the bar examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites of documentation and submission of requirements which the prospective examinee must meet. WHEREFORE , the assailed decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner is ORDERED to PAY respondent the sum of Thirty-five Thousand Four Hundred Seventy Pesos (P35,470.00), with legal interest of 6% per annum computed from the date of filing of the complaint until fully paid; the amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and the costs of the suit. The award of moral damages is DELETED.

G.R. No. 97336 February 19, 1993 GASHEM SHOOKAT BAKSH, petitioner, vs. HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents. Public Attorney's Office for petitioner. Corleto R. Castro for private respondent.

DAVIDE, JR., J.: This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the Decision 1of 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 complaint 2 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 year; petitioner then visited the private respondent's parents in Baaga, 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 Order 4 embodying the stipulated facts which the parties had agreed upon, to wit: 1. That the plaintiff is single and resident (sic) of Baaga, 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 decision 5 favoring the private respondent. The petitioner was thus ordered to pay the latter 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 Baaga, 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 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 Baaga, 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 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 Baaga, 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 livingin 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, 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, inMedina 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 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 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 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 To constitute seduction there must in all cases be some sufficient promise or inducementand 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: 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 such 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:
It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the incorporation of the present article 31 in the Code. The 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 inBatarra 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 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." 35 At 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 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.

G.R. No. L-20089

December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. VELEZ, defendant-appellant. Jalandoni & Jamir for defendant-appellant. Samson S. Alcantara for plaintiff-appellee. BENGZON, J.P., J.: The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation. Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be: Dear Bet Will have to postpone wedding My mother opposes it. Am leaving on the Convair today. Please do not ask too many people about the reason why That would only create a scandal. Paquing But the next day, September 3, he sent her the following telegram: NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE . PAKING Thereafter Velez did not appear nor was he heard from again. Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs. On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the opposition thereto will be deemed submitted for resolution."

On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City the latter's residence on the possibility of an amicable element. The court granted two weeks counted from August 25, 1955. Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his counsel had failed to appear. Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling the case amicably were nil. On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable settlement was being negotiated. A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.) Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought to be set aside was null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959). In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so. It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article 21 of said Code provides that "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 record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were

purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone wedding My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from again. Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the abovedescribed preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid. Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the award of actual damages. What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00, should be totally eliminated. Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable award. PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with costs.

G.R. No. L-17396

May 30, 1962

CECILIO PE, ET AL., plaintiffs-appellants, vs. ALFONSO PE, defendant-appellee. Cecilio L. Pe for and in his own behalf as plaintiff-appellant. Leodegario L. Mogol for defendant-appellee. BAUTISTA ANGELO, J.: Plaintiffs brought this action before the Court of First Instance of Manila to recover moral, compensatory, exemplary and corrective damages in the amount of P94,000.00 exclusive of attorney's fees and expenses of litigation. Defendant, after denying some allegations contained in the complaint, set up as a defense that the facts alleged therein, even if true, do not constitute a valid cause of action. After trial, the lower court, after finding that defendant had carried on a love affair with one Lolita Pe, an unmarried woman, being a married man himself, declared that defendant cannot be held liable for moral damages it appearing that plaintiffs failed to prove that defendant, being aware of his marital status, deliberately and in bad faith tried to win Lolita's affection. So it rendered decision dismissing the complaint.
1w ph1.t

Plaintiffs brought this case on appeal before this Court on the ground that the issues involved are purely of law. The facts as found by the trial court are: Plaintiffs are the parents, brothers and sisters of one Lolita Pe. At the time of her disappearance on April 14, 1957, Lolita was 24 years old and unmarried. Defendant is a married man and works as agent of the La Perla Cigar and Cigarette Factory. He used to stay in the town of Gasan, Marinduque, in connection with his aforesaid occupation. Lolita was staying with her parents in the same town. Defendant was an adopted son of a Chinaman named Pe Beco, a collateral relative of Lolita's father. Because of such fact and the similarity in their family name, defendant became close to the plaintiffs who regarded him as a member of their family. Sometime in 1952, defendant frequented the house of Lolita on the pretext that he wanted her to teach him how to pray the rosary. The two eventually fell in love with each other and conducted clandestine trysts not only in the town of Gasan but also in Boac where Lolita used to teach in a barrio school. They exchanged love notes with each other the contents of which reveal not only their infatuation for each other but also the extent to which they had carried their relationship. The rumors about their love affairs reached the ears of Lolita's parents sometime, in 1955, and since then defendant was forbidden from going to their house and from further seeing Lolita. The plaintiffs even filed deportation proceedings against defendant who is a Chinese national. The affair between defendant and Lolita continued nonetheless. Sometime in April, 1957, Lolita was staying with her brothers and sisters at their residence at 54-B Espaa Extension, Quezon City. On April 14, 1957, Lolita disappeared from said house. After she left, her brothers and sisters checked up her thing and found that Lolita's clothes were gone. However, plaintiffs found a note on a crumpled piece of paper inside Lolita's aparador. Said note, written on a small slip of paper approximately 4" by 3" in size, was in a handwriting recognized to be that of defendant's. In English it reads:

Honey, suppose I leave here on Sunday night, and that's 13th of this month and we will have a date on the 14th, that's Monday morning at 10 a.m. Reply Love The disappearance of Lolita was reported to the police authorities and the NBI but up to the present there is no news or trace of her whereabouts. The present action is based on Article 21 of the New Civil Code which provides: Any person who wilfully causes loss or injury to another in a manner which is contrary to morals, good customs or public policy shall compensate the latter for the damage. There is no doubt that the claim of plaintiffs for damages is based on the fact that defendant, being a married man, carried on a love affair with Lolita Pe thereby causing plaintiffs injury in a manner contrary to morals, good customs and public policy. But in spite of the fact that plaintiffs have clearly established that in illicit affair was carried on between defendant and Lolita which caused great damage to the name and reputation of plaintiffs who are her parents, brothers and sisters, the trial court considered their complaint not actionable for the reason that they failed to prove that defendant deliberately and in bad faith tried to win Lolita's affection Thus, the trial court said: "In the absence of proof on this point, the court may not presume that it was the defendant who deliberately induced such relationship. We cannot be unmindful of the uncertainties and sometimes inexplicable mysteries of the human emotions. It is a possibility that the defendant and Lolita simply fell in love with each other, not only without any desire on their part, but also against their better judgment and in full consciousness of what it will bring to both of them. This is specially so with respect to Lolita, being an unmarried woman, falling in love with defendant who is a married man." We disagree with this view. The circumstances under which defendant tried to win Lolita's affection cannot lead, to any other conclusion than that it was he who, thru an ingenious scheme or trickery, seduced the latter to the extent of making her fall in love with him. This is shown by the fact that defendant frequented the house of Lolita on the pretext that he wanted her to teach him how to pray the rosary. Because of the frequency of his visits to the latter's family who was allowed free access because he was a collateral relative and was considered as a member of her family, the two eventually fell in love with each other and conducted clandestine love affairs not only in Gasan but also in Boac where Lolita used to teach in a barrio school. When the rumors about their illicit affairs reached the knowledge of her parents, defendant was forbidden from going to their house and even from seeing Lolita. Plaintiffs even filed deportation proceedings against defendant who is a Chinese national. Nevertheless, defendant continued his love affairs with Lolita until she disappeared from the parental home. Indeed, no other conclusion can be drawn from this chain of events than that defendant not only deliberately, but through a clever strategy, succeeded in winning the affection and love of Lolita to the extent of having illicit relations with her. The wrong he has caused her and her family is indeed immeasurable considering the fact that he is a married man. Verily, he has committed an injury to Lolita's family in a manner contrary to morals, good customs and public policy as contemplated in Article 21 of the new Civil Code. WHEREFORE, the decision appealed from is reversed. Defendant is hereby sentenced to pay the plaintiffs the sum of P5,000.00 as damages and P2,000.00 as attorney's fees and expenses of litigations. Costs against appellee.

G.R. No. 133179

March 27, 2008

ALLIED BANKING CORPORATION, Petitioner, vs. LIM SIO WAN, METROPOLITAN BANK AND TRUST CO., and PRODUCERS BANK, Respondents. DECISION VELASCO, JR., J.: To ingratiate themselves to their valued depositors, some banks at times bend over backwards that they unwittingly expose themselves to great risks. The Case This Petition for Review on Certiorari under Rule 45 seeks to reverse the Court of Appeals (CAs) Decision promulgated on March 18, 19981 in CA-G.R. CV No. 46290 entitled Lim Sio Wan v. Allied Banking Corporation, et al. The CA Decision modified the Decision dated November 15, 19932 of the Regional Trial Court (RTC), Branch 63 in Makati City rendered in Civil Case No. 6757. The Facts The facts as found by the RTC and affirmed by the CA are as follows: On November 14, 1983, respondent Lim Sio Wan deposited with petitioner Allied Banking Corporation (Allied) at its Quintin Paredes Branch in Manila a money market placement of PhP 1,152,597.35 for a term of 31 days to mature on December 15, 1983,3 as evidenced by Provisional Receipt No. 1356 dated November 14, 1983.4 On December 5, 1983, a person claiming to be Lim Sio Wan called up Cristina So, an officer of Allied, and instructed the latter to pre-terminate Lim Sio Wans money market placement, to issue a managers check representing the proceeds of the placement, and to give the check to one Deborah Dee Santos who would pick up the check.5 Lim Sio Wan described the appearance of Santos so that So could easily identify her.6 Later, Santos arrived at the bank and signed the application form for a managers check to be issued.7 The bank issued Managers Check No. 035669 for PhP 1,158,648.49, representing the proceeds of Lim Sio Wans money market placement in the name of Lim Sio Wan, as payee.8 The check was cross-checked "For Payees Account Only" and given to Santos.9 Thereafter, the managers check was deposited in the account of Filipinas Cement Corporation (FCC) at respondent Metropolitan Bank and Trust Co. (Metrobank),10 with the forged signature of Lim Sio Wan as indorser.11 Earlier, on September 21, 1983, FCC had deposited a money market placement for PhP 2 million with respondent Producers Bank. Santos was the money market trader assigned to handle FCCs account.12 Such deposit is evidenced by Official Receipt No. 31756813 and a Letter dated September 21, 1983 of Santos addressed to Angie Lazo of FCC, acknowledging receipt of the placement.14 The

placement matured on October 25, 1983 and was rolled-over until December 5, 1983 as evidenced by a Letter dated October 25, 1983.15 When the placement matured, FCC demanded the payment of the proceeds of the placement.16 On December 5, 1983, the same date that So received the phone call instructing her to pre-terminate Lim Sio Wans placement, the managers check in the name of Lim Sio Wan was deposited in the account of FCC, purportedly representing the proceeds of FCCs money market placement with Producers Bank.17 In other words, the Allied check was deposited with Metrobank in the account of FCC as Producers Banks payment of its obligation to FCC. To clear the check and in compliance with the requirements of the Philippine Clearing House Corporation (PCHC) Rules and Regulations, Metrobank stamped a guaranty on the check, which reads: "All prior endorsements and/or lack of endorsement guaranteed."18 The check was sent to Allied through the PCHC. Upon the presentment of the check, Allied funded the check even without checking the authenticity of Lim Sio Wans purported indorsement. Thus, the amount on the face of the check was credited to the account of FCC.19 On December 9, 1983, Lim Sio Wan deposited with Allied a second money market placement to mature on January 9, 1984.20 On December 14, 1983, upon the maturity date of the first money market placement, Lim Sio Wan went to Allied to withdraw it.21 She was then informed that the placement had been pre-terminated upon her instructions. She denied giving any instructions and receiving the proceeds thereof. She desisted from further complaints when she was assured by the banks manager that her money would be recovered.22 When Lim Sio Wans second placement matured on January 9, 1984, So called Lim Sio Wan to ask for the latters instructions on the second placement. Lim Sio Wan instructed So to roll-over the placement for another 30 days.23On January 24, 1984, Lim Sio Wan, realizing that the promise that her money would be recovered would not materialize, sent a demand letter to Allied asking for the payment of the first placement.24 Allied refused to pay Lim Sio Wan, claiming that the latter had authorized the pre-termination of the placement and its subsequent release to Santos.25 Consequently, Lim Sio Wan filed with the RTC a Complaint dated February 13, 198426 docketed as Civil Case No. 6757 against Allied to recover the proceeds of her first money market placement. Sometime in February 1984, she withdrew her second placement from Allied. Allied filed a third party complaint27 against Metrobank and Santos. In turn, Metrobank filed a fourth party complaint28 against FCC. FCC for its part filed a fifth party complaint29 against Producers Bank. Summonses were duly served upon all the parties except for Santos, who was no longer connected with Producers Bank.30 On May 15, 1984, or more than six (6) months after funding the check, Allied informed Metrobank that the signature on the check was forged.31 Thus, Metrobank withheld the amount represented by the check from FCC. Later on, Metrobank agreed to release the amount to FCC after the latter executed an Undertaking, promising to indemnify Metrobank in case it was made to reimburse the amount.32 Lim Sio Wan thereafter filed an amended complaint to include Metrobank as a party-defendant, along with Allied.33 The RTC admitted the amended complaint despite the opposition of Metrobank.34 Consequently, Allieds third party complaint against Metrobank was converted into a cross-claim and the latters fourth party complaint against FCC was converted into a third party complaint.35

After trial, the RTC issued its Decision, holding as follows: WHEREFORE, judgment is hereby rendered as follows: 1. Ordering defendant Allied Banking Corporation to pay plaintiff the amount of P1,158,648.49 plus 12% interest per annum from March 16, 1984 until fully paid; 2. Ordering defendant Allied Bank to pay plaintiff the amount of P100,000.00 by way of moral damages; 3. Ordering defendant Allied Bank to pay plaintiff the amount of P173,792.20 by way of attorneys fees; and, 4. Ordering defendant Allied Bank to pay the costs of suit. Defendant Allied Banks cross-claim against defendant Metrobank is DISMISSED. Likewise defendant Metrobanks third-party complaint as against Filipinas Cement Corporation is DISMISSED. Filipinas Cement Corporations fourth-party complaint against Producers Bank is also DISMISSED. SO ORDERED.36 The Decision of the Court of Appeals Allied appealed to the CA, which in turn issued the assailed Decision on March 18, 1998, modifying the RTC Decision, as follows: WHEREFORE, premises considered, the decision appealed from is MODIFIED. Judgment is rendered ordering and sentencing defendant-appellant Allied Banking Corporation to pay sixty (60%) percent and defendant-appellee Metropolitan Bank and Trust Company forty (40%) of the amount of P1,158,648.49 plus 12% interest per annum from March 16, 1984 until fully paid. The moral damages, attorneys fees and costs of suit adjudged shall likewise be paid by defendant-appellant Allied Banking Corporation and defendant-appellee Metropolitan Bank and Trust Company in the same proportion of 60-40. Except as thus modified, the decision appealed from is AFFIRMED. SO ORDERED.37 Hence, Allied filed the instant petition. The Issues Allied raises the following issues for our consideration: The Honorable Court of Appeals erred in holding that Lim Sio Wan did not authorize [Allied] to preterminate the initial placement and to deliver the check to Deborah Santos. The Honorable Court of Appeals erred in absolving Producers Bank of any liability for the reimbursement of amount adjudged demandable.

The Honorable Court of Appeals erred in holding [Allied] liable to the extent of 60% of amount adjudged demandable in clear disregard to the ultimate liability of Metrobank as guarantor of all endorsement on the check, it being the collecting bank.38 The petition is partly meritorious. A Question of Fact Allied questions the finding of both the trial and appellate courts that Allied was not authorized to release the proceeds of Lim Sio Wans money market placement to Santos. Allied clearly raises a question of fact. When the CA affirms the findings of fact of the RTC, the factual findings of both courts are binding on this Court.39 We also agree with the CA when it said that it could not disturb the trial courts findings on the credibility of witness So inasmuch as it was the trial court that heard the witness and had the opportunity to observe closely her 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,40 we find it best to defer to the trial court on matters pertaining to credibility of witnesses. Additionally, this Court has held that the matter of negligence is also a factual question.41 Thus, the finding of the RTC, affirmed by the CA, that the respective parties were negligent in the exercise of their obligations is also conclusive upon this Court. The Liability of the Parties As to the liability of the parties, we find that Allied is liable to Lim Sio Wan. Fundamental and familiar is the doctrine that the relationship between a bank and a client is one of debtor-creditor. Articles 1953 and 1980 of the Civil Code provide: Art. 1953. A person who receives a loan of money or any other fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality. Art. 1980. Fixed, savings, and current deposits of money in banks and similar institutions shall be governed by the provisions concerning simple loan. Thus, we have ruled in a line of cases that a bank deposit is in the nature of a simple loan or mutuum.42 More succinctly, in Citibank, N.A. (Formerly First National City Bank) v. Sabeniano, this Court ruled that a money market placement is a simple loan or mutuum.43 Further, we defined a money market in Cebu International Finance Corporation v. Court of Appeals, as follows: [A] money market is a market dealing in standardized short-term credit instruments (involving large amounts) where lenders and borrowers do not deal directly with each other but through a middle man or dealer in open market. In a money market transaction, the investor is a lender who loans his money to a borrower through a middleman or dealer. In the case at bar, the money market transaction between the petitioner and the private respondent is in the nature of a loan.44

Lim Sio Wan, as creditor of the bank for her money market placement, is entitled to payment upon her request, or upon maturity of the placement, or until the bank is released from its obligation as debtor. Until any such event, the obligation of Allied to Lim Sio Wan remains unextinguished. Art. 1231 of the Civil Code enumerates the instances when obligations are considered extinguished, thus: Art. 1231. Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation. Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are governed elsewhere in this Code. (Emphasis supplied.) From the factual findings of the trial and appellate courts that Lim Sio Wan did not authorize the release of her money market placement to Santos and the bank had been negligent in so doing, there is no question that the obligation of Allied to pay Lim Sio Wan had not been extinguished. Art. 1240 of the Code states that "payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it." As commented by Arturo Tolentino: Payment made by the debtor to a wrong party does not extinguish the obligation as to the creditor, if there is no fault or negligence which can be imputed to the latter. Even when the debtor acted in utmost good faith and by mistake as to the person of his creditor, or through error induced by the fraud of a third person, the payment to one who is not in fact his creditor, or authorized to receive such payment, is void, except as provided in Article 1241. Such payment does not prejudice the creditor, and accrual of interest is not suspended by it.45 (Emphasis supplied.) Since there was no effective payment of Lim Sio Wans money market placement, the bank still has an obligation to pay her at six percent (6%) interest from March 16, 1984 until the payment thereof. We cannot, however, say outright that Allied is solely liable to Lim Sio Wan. Allied claims that Metrobank is the proximate cause of the loss of Lim Sio Wans money. It points out that Metrobank guaranteed all prior indorsements inscribed on the managers check, and without Metrobanks guarantee, the present controversy would never have occurred. According to Allied: Failure on the part of the collecting bank to ensure that the proceeds of the check is paid to the proper party is, aside from being an efficient intervening cause, also the last negligent act, x x x contributory to the injury caused in the present case, which thereby leads to the conclusion that it is

the collecting bank, Metrobank that is the proximate cause of the alleged loss of the plaintiff in the instant case.46 We are not persuaded. Proximate cause is "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred."47 Thus, there is an efficient supervening event if the event breaks the sequence leading from the cause to the ultimate result. To determine the proximate cause of a controversy, the question that needs to be asked is: If the event did not happen, would the injury have resulted? If the answer is NO, then the event is the proximate cause. In the instant case, Allied avers that even if it had not issued the check payment, the money represented by the check would still be lost because of Metrobanks negligence in indorsing the check without verifying the genuineness of the indorsement thereon. Section 66 in relation to Sec. 65 of the Negotiable Instruments Law provides: Section 66. Liability of general indorser.Every indorser who indorses without qualification, warrants to all subsequent holders in due course; a) The matters and things mentioned in subdivisions (a), (b) and (c) of the next preceding section; and b) That the instrument is at the time of his indorsement valid and subsisting; And in addition, he engages that on due presentment, it shall be accepted or paid, or both, as the case may be according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it. Section 65. Warranty where negotiation by delivery, so forth.Every person negotiating an instrument by delivery or by a qualified indorsement, warrants: a) That the instrument is genuine and in all respects what it purports to be; b) That he has a good title of it; c) That all prior parties had capacity to contract; d) That he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. But when the negotiation is by delivery only, the warranty extends in favor of no holder other than the immediate transferee. The provisions of subdivision (c) of this section do not apply to persons negotiating public or corporation securities, other than bills and notes. (Emphasis supplied.) The warranty "that the instrument is genuine and in all respects what it purports to be" covers all the defects in the instrument affecting the validity thereof, including a forged indorsement. Thus, the last

indorser will be liable for the amount indicated in the negotiable instrument even if a previous indorsement was forged. We held in a line of cases that "a collecting bank which indorses a check bearing a forged indorsement and presents it to the drawee bank guarantees all prior indorsements, including the forged indorsement itself, and ultimately should be held liable therefor."48 However, this general rule is subject to exceptions. One such exception is when the issuance of the check itself was attended with negligence. Thus, in the cases cited above where the collecting bank is generally held liable, in two of the cases where the checks were negligently issued, this Court held the institution issuing the check just as liable as or more liable than the collecting bank. In isolated cases where the checks were deposited in an account other than that of the payees on the strength of forged indorsements, we held the collecting bank solely liable for the whole amount of the checks involved for having indorsed the same. In Republic Bank v. Ebrada,49 the check was properly issued by the Bureau of Treasury. While in Banco de Oro Savings and Mortgage Bank (Banco de Oro) v. Equitable Banking Corporation,50 Banco de Oro admittedly issued the checks in the name of the correct payees. And in Traders Royal Bank v. Radio Philippines Network, Inc.,51 the checks were issued at the request of Radio Philippines Network, Inc. from Traders Royal Bank.
1avv phi 1

However, in Bank of the Philippine Islands v. Court of Appeals, we said that the drawee bank is liable for 60% of the amount on the face of the negotiable instrument and the collecting bank is liable for 40%. We also noted the relative negligence exhibited by two banks, to wit: Both banks were negligent in the selection and supervision of their employees resulting in the encashment of the forged checks by an impostor. Both banks were not able to overcome the presumption of negligence in the selection and supervision of their employees. It was the gross negligence of the employees of both banks which resulted in the fraud and the subsequent loss. While it is true that petitioner BPIs negligence may have been the proximate cause of the loss, respondent CBCs negligence contributed equally to the success of the impostor in encashing the proceeds of the forged checks. Under these circumstances, we apply Article 2179 of the Civil Code to the effect that while respondent CBC may recover its losses, such losses are subject to mitigation by the courts. (See Phoenix Construction Inc. v. Intermediate Appellate Courts, 148 SCRA 353 [1987]). Considering the comparative negligence of the two (2) banks, we rule that the demands of substantial justice are satisfied by allocating the loss of P2,413,215.16 and the costs of the arbitration proceeding in the amount of P7,250.00 and the cost of litigation on a 60-40 ratio.52 Similarly, we ruled in Associated Bank v. Court of Appeals that the issuing institution and the collecting bank should equally share the liability for the loss of amount represented by the checks concerned due to the negligence of both parties: The Court finds as reasonable, the proportionate sharing of fifty percent-fifty percent (50%-50%). Due to the negligence of the Province of Tarlac in releasing the checks to an unauthorized person (Fausto Pangilinan), in allowing the retired hospital cashier to receive the checks for the payee hospital for a period close to three years and in not properly ascertaining why the retired hospital cashier was collecting checks for the payee hospital in addition to the hospitals real cashier, respondent Province contributed to the loss amounting to P203,300.00 and shall be liable to the PNB for fifty (50%) percent thereof. In effect, the Province of Tarlac can only recover fifty percent (50%) of P203,300.00 from PNB. The collecting bank, Associated Bank, shall be liable to PNB for fifty (50%) percent of P203,300.00. It is liable on its warranties as indorser of the checks which were deposited by Fausto Pangilinan,

having guaranteed the genuineness of all prior indorsements, including that of the chief of the payee hospital, Dr. Adena Canlas. Associated Bank was also remiss in its duty to ascertain the genuineness of the payees indorsement.53 A reading of the facts of the two immediately preceding cases would reveal that the reason why the bank or institution which issued the check was held partially liable for the amount of the check was because of the negligence of these parties which resulted in the issuance of the checks. In the instant case, the trial court correctly found Allied negligent in issuing the managers check and in transmitting it to Santos without even a written authorization.54 In fact, Allied did not even ask for the certificate evidencing the money market placement or call up Lim Sio Wan at her residence or office to confirm her instructions. Both actions could have prevented the whole fraudulent transaction from unfolding. Allieds negligence must be considered as the proximate cause of the resulting loss. To reiterate, had Allied exercised the diligence due from a financial institution, the check would not have been issued and no loss of funds would have resulted. In fact, there would have been no issuance of indorsement had there been no check in the first place. The liability of Allied, however, is concurrent with that of Metrobank as the last indorser of the check. When Metrobank indorsed the check in compliance with the PCHC Rules and Regulations55 without verifying the authenticity of Lim Sio Wans indorsement and when it accepted the check despite the fact that it was cross-checked payable to payees account only,56 its negligent and cavalier indorsement contributed to the easier release of Lim Sio Wans money and perpetuation of the fraud. Given the relative participation of Allied and Metrobank to the instant case, both banks cannot be adjudged as equally liable. Hence, the 60:40 ratio of the liabilities of Allied and Metrobank, as ruled by the CA, must be upheld. FCC, having no participation in the negotiation of the check and in the forgery of Lim Sio Wans indorsement, can raise the real defense of forgery as against both banks.57 As to Producers Bank, Allied Banks argument that Producers Bank must be held liable as employer of Santos under Art. 2180 of the Civil Code is erroneous. Art. 2180 pertains to the vicarious liability of an employer for quasi-delicts that an employee has committed. Such provision of law does not apply to civil liability arising from delict. One also cannot apply the principle of subsidiary liability in Art. 103 of the Revised Penal Code in the instant case. Such liability on the part of the employer for the civil aspect of the criminal act of the employee is based on the conviction of the employee for a crime. Here, there has been no conviction for any crime. As to the claim that there was unjust enrichment on the part of Producers Bank, the same is correct. Allied correctly claims in its petition that Producers Bank should reimburse Allied for whatever judgment that may be rendered against it pursuant to Art. 22 of the Civil Code, which provides: "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 cause or legal ground, shall return the same to him."
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The above provision of law was clarified in Reyes v. Lim, where we ruled that "[t]here is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience."58

In Tamio v. Ticson, we further clarified the principle of unjust enrichment, thus: "Under Article 22 of the Civil Code, there is unjust enrichment when (1) a person is unjustly benefited, and (2) such benefit is derived at the expense of or with damages to another."59 In the instant case, Lim Sio Wans money market placement in Allied Bank was pre-terminated and withdrawn without her consent. Moreover, the proceeds of the placement were deposited in Producers Banks account in Metrobank without any justification. In other words, there is no reason that the proceeds of Lim Sio Wans placement should be deposited in FCCs account purportedly as payment for FCCs money market placement and interest in Producers Bank. With such payment, Producers Banks indebtedness to FCC was extinguished, thereby benefitting the former. Clearly, Producers Bank was unjustly enriched at the expense of Lim Sio Wan. Based on the facts and circumstances of the case, Producers Bank should reimburse Allied and Metrobank for the amounts the two latter banks are ordered to pay Lim Sio Wan.
lavvphil

It cannot be validly claimed that FCC, and not Producers Bank, should be considered as having been unjustly enriched. It must be remembered that FCCs money market placement with Producers Bank was already due and demandable; thus, Producers Banks payment thereof was justified. FCC was entitled to such payment. As earlier stated, the fact that the indorsement on the check was forged cannot be raised against FCC which was not a part in any stage of the negotiation of the check. FCC was not unjustly enriched. From the facts of the instant case, we see that Santos could be the architect of the entire controversy. Unfortunately, since summons had not been served on Santos, the courts have not acquired jurisdiction over her.60 We, therefore, cannot ascribe to her liability in the instant case. Clearly, Producers Bank must be held liable to Allied and Metrobank for the amount of the check plus 12% interest per annum, moral damages, attorneys fees, and costs of suit which Allied and Metrobank are adjudged to pay Lim Sio Wan based on a proportion of 60:40. WHEREFORE, the petition is PARTLY GRANTED. The March 18, 1998 CA Decision in CA-G.R. CV No. 46290 and the November 15, 1993 RTC Decision in Civil Case No. 6757 are AFFIRMED with MODIFICATION. Thus, the CA Decision is AFFIRMED, the fallo of which is reproduced, as follows: WHEREFORE, premises considered, the decision appealed from is MODIFIED. Judgment is rendered ordering and sentencing defendant-appellant Allied Banking Corporation to pay sixty (60%) percent and defendant-appellee Metropolitan Bank and Trust Company forty (40%) of the amount of P1,158,648.49 plus 12% interest per annum from March 16, 1984 until fully paid. The moral damages, attorneys fees and costs of suit adjudged shall likewise be paid by defendant-appellant Allied Banking Corporation and defendant-appellee Metropolitan Bank and Trust Company in the same proportion of 60-40. Except as thus modified, the decision appealed from is AFFIRMED. SO ORDERED. Additionally and by way of MODIFICATION, Producers Bank is hereby ordered to pay Allied and Metrobank the aforementioned amounts. The liabilities of the parties are concurrent and independent of each other.

[G.R. No. 113216. September 5, 1997]

RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC, Quezon City, respondents. DECISION
PANGANIBAN, J.:

When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court, however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction over the criminal action. This principle is explained in this Decision resolving a petition for review on certiorari of the Decision of the Court of Appeals, promulgated on September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional Trial Court of Quezon City denying the prosecutions withdrawal of a criminal information against petitioner.
[1] [2]

The Antecedent Facts From the pleadings submitted in this case, the undisputed facts are as follows: Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counteraffidavit to the complaint. Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an Information for libel against petitioner with the Regional Trial

Court of Quezon City, Branch 104. The Information filed by Assistant City Prosecutor Augustine A. Vestil reads:
[3] [4]

That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused, acting with malice, did, then and there, wilfully, unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director of Philippine Heart Center, East Avenue, this city, and furnished the same to other officers of the said hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit: 27June 1991 Dr. Esperanza I. Cabral Director Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to January 31, 1991. Respondents: Dr. Juan F. Torres, Jr., Chief, Nuclear Medicine Section

Dr. Orestes P. Monzon, Staff Consultant Dear Dr. Cabral, This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since January 31, 1989 until my resignation effective January 31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine Section will show that from January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised, processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres respectively. Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly representing 20% of the total monthly professional fees. The rest were divided equally between Dr. Monzon and Dr. Torres. There was never any agreement between us three consultants that this should be the arrangement and I am certain that this was not with your approval. The burden of unfairness would have been lesser if there was an equal distribution of labor and the schedule of duties

were strictly followed. As it was, the schedule of duties submitted monthly to the office of the Asst. Director for Medical Services was simply a dummy to comply with administrative requirements rather than a guideline for strict compliance. Both consultants have complete daily time records even if they did not come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically during the week while I was left with everything from training the residents and supervising the Techs to processing and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres. In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman conditions I went through as a Consultant in that Section. I trust that your sense of professionalism will put a stop to this corruption. I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this point, let me stress that since professional fees vary according to the type of procedure done and since there was no equity of labor between us I am not settling for an equal percentage share. I demand that I be indemnified of all professional fees due me on a case to case basis. Let me make clear my intention of pursuing this matter legally should there be no favorable action in my behalf. Let me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the code of ethics of the medical profession and the Philippine Civil Service Rules and Regulations related to graft and corruption. Thank you. and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely false and untrue but were publicly made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon the person of the said offended party, to his damage and prejudice. A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911. The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move for deferment of further proceedings and to elevate the entire records of the case. Accordingly, a Motion to Defer Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M.
[5]

Gavero before the court a quo. On September 9, 1992, the trial court granted the motion and deferred petitioners arraignment until the final termination of the petition for review.
[6] [7]

Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial.
[8]

On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and scheduling petitioners arraignment on January 18, 1993 at two oclock in the afternoon.
[9]

In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City investigating prosecutor. Pertinent portions of Drilons ruling read:
[10]

From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from complainants. Since complainants and respondent are government employees, and the subject letter is a complaint to higher authorities of the PHCA on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged... although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority who is the Director of PHCA. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them to public and malicious imputation of a vice or

omission. It is beyond the ordinary course of human conduct for complainants to start feeling the effects of the alleged libelous letter - that of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched reputation - one year after they read the communication in question. The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the first place, the instant cases are not being reinvestigated. It is the resolutions of the investigating prosecutor that are under review. Further, the record shows that the court has issued an order suspending the proceedings pending the resolutions of the petitions for review by this Office. In the issuance of its order, the court recognizes that the Secretary of Justice has the power and authority to review the resolutions of prosecutors who are under his control and supervision. In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the Informations which you filed in Court. Inform this Office of the action taken within ten (10) days from receipt hereof. In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw Information dated February 17,1993, attaching thereto the resolution of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as follows:
[11] [12]

The motion of the trial prosecutor to withdraw the information in the above -entitled case is denied. Instead, the trial prosecutor of this court is hereby directed to prosecute the case following the guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462. Petitioners motion for reconsideration was denied by the trial judge in the Order dated March 5, 1993, as follows:
[13] [14]

Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993 filed by the accused through counsel is hereby denied. Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for proper determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129.
[15]

Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul --

once a complaint or information has been filed in court, any disposition of the case, i.e., dismissal, conviction or acquittal of the accused, rests on the sound discretion of the trial court.
[16]

Hence, this recourse to this Court. The Issues For unexplained reasons, petitioner failed to make an assignment of errors against the appellate court. Her counsel merely repeated the alleged errors of the trial court:
[17]

I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is respectfully submitted that said case is not applicable because: 1. It infringes on the constitutional separation of powers between the executive and judicial branches of the government; 2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the Constitution; 3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights; 4. 5. 6. 7. It goes against the principle of non-delegation of powers; It sets aside or disregards substantive and procedural rules; It deprives a person of his constitutional right to procedural due process; Its application may constitute or lead to denial of equal protection of laws;

8. It deprives the secretary of justice or the president of the power to control or review the acts of a subordinate official; 9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of investigating fiscals; 10. It does not subserve the purposes of a preliminary investigation because -

(10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the investigating fiscal recommends no bail for the accused; (10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and expenses attendant to an unnecessary trial; (10.c) 11. II. It contributes to the clogging of judicial dockets; and It has no statutory or procedural basis or precedent. On the assumption that Crespo vs. Mogul is applicable, it is submitted that -

1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he denied the Motion to Withdraw Information since he had already deferred to, if not recognized, the authority of the Secretary of Justice; and 2. The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he relied solely on said case in denying the Motion to Withdraw Information. In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in affirming the trial courts denial of the prosecutions Motion to Withdraw Information? The Courts Ruling The petition is impressed with merit. We answer the above question in the affirmative. Preliminary Matter Before discussing the substance of this case, the Court will preliminarily address a procedural matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals to the Supreme Court, provided: SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the assignment of errors made in the court below x x x.

A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the petition could have been dismissed by this Court motu proprio, considering that under Section 4 of the same Rule, review is not a matter of right but of sound discretion. We take this occasion to stress the need for precision and clarity in the assignment of errors. Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusin perpetua or life imprisonment is imposed and where the whole case is opened for review. Under Rule 45, only the issues raised therein by the petitioner will be passed upon by the Court, such that an erroneous specification of the issues may cause the dismissal of the petition. We stressed this in Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the Court of Appeals and to the Supreme Court, as follows: 4. Erroneous Appeals. x x x x

e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated against his client to make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to his clients cause. FOR STRICT COMPLIANCE. Be that as it may, the Court noting the importance of the substantial matters raised decided to overlook petitioners lapse and granted due course to the petition per Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to specify an assignment of errors of the proper lower court may be denied due course motu proprio by this Court. Determination of Probable Cause Is an Executive Function The determination of probable cause during a preliminary investigation is judicially recognized as an executive function and is made by the prosecutor. The primary objective of a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less

summary proceeding by a competent officer designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges.
[18]

Such investigation is not a part of the trial. A full and exhaustive presentation of the parties evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches.
[19]

In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable cause for the issuance of a warrant of arrest or a search warrant from a preliminary investigation proper in this wise:
[20]

xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. xxx The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper--whether xxx there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether xxx he should be subjected to the expense, rigors and embarrassment of trial-is the function of the prosecutor. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecutors job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the existence of probable cause properly pertains to the public prosecutor in the established scheme of things, and that the proceedings therein are essentially preliminary, prefatory and cannot lead to a final, definite and

authoritative judgment of the guilt or innocence of the persons charged with a felony or a crime.
[21]

In Crespo vs. Mogul, the Court emphasized the cardinal principle that the public prosecutor controls and directs the prosecution of criminal offenses thus:
[22]

It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. In the same case, the Court added that where there is a clash of views between a judge who did not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally prevail:
[23]

x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscals discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscals should normally prevail. x x x x.

Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code, exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; xxxx. Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read: Section 3. x x x x The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service. xxx xxx Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service. Supervision and control of a department head over his subordinates have been defined in administrative law as follows:
[24]

xxx

In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed. Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo In Marcelo vs. Court of Appeals, the Court clarified that Crespo did not foreclose the power or authority of the secretary of justice to review resolutions of his subordinates in criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the preliminary investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of justice.
[25] [26]

The justice secretarys power of review may still be availed of despite the filing of an information in court. In his discretion, the secretary may affirm, modify or reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as amended, specifically in Section 1 (d):
[27]

(d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice, the latter may, where he finds that no prima faciecase exists, authorize and direct the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn statements or evidence submitted without the necessity of conducting another preliminary investigation.

Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990 governing appeals in preliminary investigation. Appeals under Section 2 are limited to resolutions dismissing a criminal complaint. However, Section 4 provides an exception: appeals from resolutions finding probable cause upon a showing of manifest error or grave abuse of discretion are allowed, provided the accused has not been arraigned. In the present case, petitioners appeal to the secretary of justice was given due course on August 26, 1992 pursuant to this Circular. On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the scope of appealable cases remained unchanged: SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense charged does not exceed prisin correccional, regardless of the imposable fine, shall be made to the Regional State Prosecutors who shall resolve the appeals with finality, pursuant to Department Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed by these rules. SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be dismissed motu proprio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Apart from the foregoing statutory and administrative issuances, the power of review of the secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court: SEC. 4. Duty of investigating fiscal.--x x x x

xxx xxx

xxx

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision and control over the prosecuting arm of the government, not on a substantial right on the part of the accused as claimed by petitioner. Appeal Did Not Divest the Trial Court of Jurisdiction Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case. Judicial Review of the Resolution of the Secretary of Justice Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual controversies involving rights which are legally demandable and enforceable. Such power includes the determination of whether 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. Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government. It is not empowered to substitute its judgment for that of Congress or of the President. It may, however, look into the question of whether such exercise has been made in grave abuse of discretion.
[28]

Judicial review of the acts of other departments is not an assertion of superiority over them or a derogation of their functions. In the words of Justice Laurel in Angara vs. Electoral Commission:
[29]

x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument sources and guarantees to them. This is in truth all that is involved in what is termed judicial supremacy which properly is the power of the judicial review under the Constitution. x x x. It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to review the decisions of the government prosecutors under him. In Crespo, the secretary was merely advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power, does not, however, allow the trial court to automatically dismiss the case or grant the withdrawal of the information upon the resolution of the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals and the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its own evaluation of the merits of the case, because granting the motion to dismiss or to withdraw the information is equivalent to effecting a disposition of the case itself.
[30]

The Marcelo and Martinez Cases Are Consistent In Marcelo vs. Court of Appeals, this Court ruled that, although it is more prudent to wait for a final resolution of a motion for review or reinvestigation from the secretary of justice before acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless should make its own study and evaluation of said motion and not rely merely on the awaited action of the secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and whether after a reinvestigation or upon instructions of the secretary who reviewed the records of the investigation; provided that such grant or denial is made from its own assessment and evaluation of the merits of the motion.
[31]

In Martinez vs. Court of Appeals, this Court overruled the grant of the motion to dismiss filed by the prosecuting fiscal upon the recommendation of
[32]

the secretary of justice because such grant was based upon considerations other than the judges own assessment of the matter. Relying solely on the conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to sustain the allegation in the information, the trial judge did not perform his function of making an independent evaluation or assessment of the merits of the case. Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Trial judges are thus required to make their own assessment of whether the secretary of justice committed grave abuse of discretion in granting or denying the appeal, separately and independently of the prosecutions or the secretarys evaluation that such evidence is insufficient or that no probable cause to hold the accused for trial exists. They should embody such assessment in their written order disposing of the motion. The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the dismissal of the criminal action upon the favorable recommendation of the Review Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private complainants appeal to the secretary of justice. In effect, the secretarys opinion was totally disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal action was an erroneous exercise of judicial discretion as the trial court relied hook, line and sinker on the resolution of the secretary, without making its own independent determination of the merits of the said resolution. No Grave Abuse of Discretion in theResolution of the Secretary of Justice In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretarys resolution has been amply threshed out in petitioners letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration all of which were submitted to the court -the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s) presented in the

motion to dismiss. The trial judge was tasked to evaluate the secretarys recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without stating his reasons for disregarding the secretarys recommendation. Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant the motion to withdraw the information. The documents before the trial court judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel. Under the established scheme of things in criminal prosecutions, this Court would normally remand the case to the trial judge for his or her independent assessment of the motion to withdraw the information. However, in order not to delay the disposition of this case and to afford the parties complete relief, we have decided to make directly the independent assessment the trial court should have done. The petitioner has attached as annexes to the present petition for review the information, which contains a complete and faithful reproduction of the subject letter, the resolution of the secretary of justice, the prosecutions motion for reconsideration of the trial courts Order of February 22, 1993, and even the private complainants opposition to said motion. The records below have been reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose and will only clog the dockets. We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed the finding of probable cause on the grounds that (1) the subject letter was privileged in nature and (2) the complaint was merely a countercharge. In every case for libel, the following requisites must concur: (a) it must be defamatory; (b) (c) (d) it must be malicious; it must be given publicity; and the victim must be identifiable.

At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a crime has been committed and that the accused probably committed it. A cursory reading of the information

immediately demonstrates a failure on the part of the complainant to establish the foregoing elements of libel. Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. In this case however, petitioners letter was written to seek redress of proper grievance against the inaccurate distribution and payment of professional fees and against unfair treatment in the Nuclear Medicine Department of the Philippine Heart Center. It is a qualified privileged communication under Article 354(1) of the Revised Penal Code which provides:
[33]

ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and xxx xxx The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has an interest, or concerning which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains incriminatory matter which, without the privilege, would be libelous and actionable. Petitioners letter was a private communication made in the performance of a moral duty on her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but to present her grievance to her superior. The privileged nature of her letter overcomes the presumption of malice. There is no malice when justifiable motive exists; and in the absence of malice, there is no libel. We note that the information itself failed to allege the existence of malice. Thus, we agree with the ruling of the secretary of justice:
[34]

xxx

x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from government employees, and the subject letter is a complaint x x x on a subject matter in which respondent has an

interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority xxx. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a communication to another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to publication within the meaning of the law on defamation. Publication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written. The reason for such rule is that a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A mans reputation is not the good opinion he has of himself, but the estimation in which others hold him. In this case, petitioner submitted the letter to the director of said hospital; she did not disseminate the letter and its contents to third persons. Hence, there was no publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code.
[35] [36] [37]

Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a countercharge to give Complainant Torres a leverage against petitioners administrative action against him. Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded by the fact that he did not

explain his grounds for his denial inasmuch as he did not make an independent assessment of the motion or the arguments in the resolution of the secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive in Marcelo and Martinez where this Court required trial courts to make an independent assessment of the merits of the motion. WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No costs.

[G.R. No. 96740. March 25, 1999]

VIRGINIA P. SARMIENTO and APOLONIA P. CATIBAYAN, petitioners, vs. COURT OF APPEALS and SIMON ARGUELLES, respondents. DECISION
PURISIMA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, seeking to set aside the Decision[1] dated October 26, 1989 and the Resolution[2] dated January 4, 1991, of the Court of Appeals[3] in CA G.R. CV NO. 11750, reversing the Decision[4], dated May 30, 1986, of Branch XV, Regional Trial Court, in Trece Martires City[5] in Civil Case No. NC - 75. The antecedent facts that matter are as follows: Virginia P. Sarmiento and Apolonia P. Catibayan, the petitioners herein, filed a complaint for partition of a piece of land, more particularly described as Lot No. 926 of the Naic Estate, G.L.R.O., Record No. 8340, in Naic, Cavite, with an area of 1, 779 square meters, covered by TCT No. 21877 issued on September 1, 1941 to co-owners, Francisco Arguelles and Petrona Reyes. Petitioners are sisters, their parents being Tiburcio Pangilinan and Leogarda Arguelles, who died in 1946. Leogarda was the daughter of Francisco Arguelles who died on February 18, 1949 and Emilia Pineli, who died on May 2, 1950. Private respondent Simon Arguelles is a half brother of Leogarda, with Francisco Arguelles as their common father. Petitioners claim that as granddaughters of Francisco Arguelles, they and private respondent Simon Arguelles are co-owners of the 1/2 portion of Lot No. 926, as the only heirs of the late Francisco Arguelles. But according to private respondent, petitioners are not the legal heirs of Francisco Arguelles because their (petitioners) mother, Leogarda Arguelles, was allegedly an illegitimate child of his father, Francisco Arguelles, and Emilia Pineli who were not married. Under the old Civil Code, which should be applied since Francisco Arguelles died in 1949, before the effectivity of the New Civil Code, an illegitimate child did not have successional rights. After trial, the lower court came out with a decision ordering the parties herein to partition among themselves subject portion of Lot No. 926; and disposing thus:

"In view of all the foregoing, plaintiffs Virginia P. Sarmiento and Apolonia P. Catibayan and defendant Simon Arguelles are hereby ordered to partition among themselves the one-half portion of lot No. 926 of the Naic Estate, located in Naic, Cavite, covered by Transfer Certificate of Title No. 21877, pertaining to the deceased Francisco Arguelles.

The counterclaim, for lack of merit, is hereby dismissed. No pronouncement is made as to costs.
SO ORDERED.[6] Dissatisfied therewith, the private respondents went to the Court of Appeals on a Petition for Review; theorizing that:

I. The Lower Court erred in holding that Francisco Arguelles and Emilia Pineli were legally married and that Leogardo (sic) Arguelles was their legitimate daughter. II. The Lower Court erred in not holding that the cause of action of the plaintiffsappellees if any, had already prescribed.
III. The Lower Court erred in ordering the partition of the property involved in this case among the plaintiffs-appellees and the defendant-appellant.[7] On October 26, 1989, the Court of Appeals handed down its judgment, reversing the decision of the Regional Trial Court of origin and disposing as follows:

WHEREFORE, judgment is hereby entered REVERSING the decision appealed from and DISMISSING the complaint for judicial partition. Without pronouncement as to costs.
SO ORDERED.[8] With the denial of their Motion For Reconsideration on January 4, 1991, petitioners found their way to this court via the present Petition; posing as issues:

I. WHETHER OR NOT A MAN AND A WOMAN WHO LIVED TOGETHER AS HUSBAND AND WIFE ARE PRESUMED MARRIED; and
II. WHETHER THE BORN OUT OF SUCH MARRIAGE IS LEGITIMATE OR NOT.[9] The pivotal issue for determination is: whether or not the petitioners offered sufficient evidence to substantiate their submission that Francisco Arguelles and Emilia Pineli were legally married. Section 3 (aa) of Rule 131 of the Revised Rules of Court provides:

Section 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted or overcome by other evidence:

(aa) That a man and a woman deporting themselves as husbands and wife have entered into a lawful contract of marriage;
x x x x

Guided by the aforecited provision of law, the trial court ratiocinated:

The fact that no marriage certificate of Francisco Arguelles and Emilia Pineli was submitted in evidence does not lead to the conclusion that the said parties were not legally married and that Leogarda was their illegitimate child. The defendant admitted that his father and Emilia Pineli lived and cohabited together as husband and wife, even staying in the same house where he was also residing. The presumption is that A man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage (sic) (Sec. 5 (bb), Rule 131, Rules of Court).[10] Every intendment of law or facts leans toward the validity of marriage and the
legitimacy of children (Art. 220, Civil Code). In this case, no evidence adduced by defendant Arguelles to rebut this presumption. Neither did he attempt to show that Francisco and Emilia could not validly marry each other because of some legal impediments to their marriage.[11] While it is true that Francisco Arguelles and Emilia Pineli cohabited as husband and wife, private respondent Simon Arguelles testified that the said cohabitation was without the benefit of marriage. In People vs. Borromeo[12], this Court held that persons living together in apparent matrimony are presumed absent any counter presumption or evidence special to the case, to be in fact married.[13] In the case under consideration, the presumption of marriage, on which the trial court premised its decision, has been sufficiently offset.[14] Records reveal that petitioners tried to justify the non-presentation of the marriage certificate of Francisco and Emilia by submitting a certification issued by Assistant Treasurer Lucila Lucero of Naic, Cavite, to the effect that: the Marriage Certificate of Francisco Arguelles married to Emilia Pineli on the 18th day of August, 1918 at Naic, Cavite, is no longer available due to destruction of the records during the Japanese occupation, and as such no certified copy of Marriage could be issued to the parties concerned,[15] However, Assistant Treasurer Lucila Lucero admitted later[16] on the witness stand that she signed the said certificate prepared by a certain Consuelo Pangilinan, without verifying its correctness. In reality, the records of marriage of Naic are intact. The said records were brought and examined before the trial court, and its pages 20 to 22 containing entries from July 3, 1917 to May 1918 do not reflect the names of Francisco Arguelles and Emilia Pineli. So also, the death certificate of Francisco Arguelles contained the word none opposite the phrase surviving spouse, indicating that he died a widower on February 18, 1949. His deceased wife was Petrona Reyes, the mother of private respondent.[17]

Then too, TCT No. 21877 covering Lot 926 as well as the reconstituted TCT No. 21877, Rt19055, show the status of Francisco Arguelles as widower.[18] On this point, the respondent court said: x x x Emilia would not have allowed Francisco Arguelles to place the property in his name alone as widower if in fact they were legally married to each other. If there was a mistake in indicating in the title Franciscos status as a widower, the same could have been easily cured by presenting a petition for correction in the proper court. If it is true, as Tiburcio Pangilinan testified, that the certificate of title was in the possession of Emilia Pineli and was given to him (Tiburcio) before her death, there is no conceivable reason why Emilia never exerted any effort to correct the mistake in the description of Franciscos status in the certificate of title as widower knowing that she would not be able to transmit any part of the property to her heirs upon her death if the error was not corrected. Her omission only serves to bolster the proposition that she had no right to protect, in the first place, because she was not legally married to Francisco.[19] Consequently, with the presumption of marriage sufficiently overcome, the onus probandi of private respondent shifted to the petitioners. It then became the burden of the petitioners, Virginia P. Sarmiento and Apolonia P. Catibayan, to prove that their deceased grandparents, Francisco Arguelles and Emilia Pineli, were legally married. In Trinidad vs. Court of Appeals, et al.[20], this Court ruled that as proof of marriage may be presented: a) testimony of a witness to the matrimony; b) the couples public and open cohabitation as husband and wife after the alleged wedlock; c) the birth and baptismal certificate of children born during such union; and d) the mention of such nuptial in subsequent documents. Pertinent records show that the petitioners failed to substantiate their theory that Francisco Arguelles and Emilia Pineli were married. What is more, the available records of marriage contradict the allegation that Francisco Arguelles and Emilia Pineli were legally married. But petitioners, to whom the burden of proving the fact of marriage shifted, did not present anybody who witnessed the marriage ceremony of Francisco Arguelles and Emilia Pineli. As aptly reasoned out by the respondent court: x x x Not one of the three witnesses for plaintiffs ever declared having observed that Francisco and Emilia acted as husband and wife. Tiburcio Pangilinan testified mainly on the fact that he is the father of the plaintiffs and husbands of the late Leogarda Arguelles who was the daughter of Francisco Arguelles and Emilia Pineli. The rest of his testimony touched on the certifIcate of tittle covering Lot 926 which Emilia allegedly delivered two weeks before she died but was later on taken from him by defendant. Plaintiffs on their part did not testify that Francisco Arguelles and Emilia Pineli lived together as husband and wife, which may be explained by the fact that Virginia Sarmiento and Apolonia Catibayan were only 6 and 5 years old, respectively, when Emilia Pineli died and were then too young to perceive the nature of whatever the relationship existed Francisco and Emilia.[21] Evidently, petitioners relied mainly on the legal presumption that Francisco Arguelles and Emilia Pineli were married, without introducing any evidence to prove the mrriage theorized upon.

In a belated attempt to establish the legitimacy of Leogarda Arguelles, petitioner have theorized for the first time, in the present Petition, that the birth certificate[22] of Leogardo Arguelles which they allegedly presented during the trial below, shows the legitimate status of Leogarda Arguelles.[23] Concededly, such birth certificate may be used to show the alleged marriage. But be that as it may, the totality of evidence for the private respondents preponderates over petitioners. Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party.[24] Compared with the evidence introduced by the private respondent, petitioners rely heavily on the legal presumption of marriage which, as earlier pointed out, has been effectively rebutted. We are concluded by the factual findings of the Court of Appeals. Premises studiedly considered, we are of the ineluctable conclusion, and so hold, that the Court of Appeals erred not in reversing the decision of the Regional Trial Court a quo. WHEREFORE, the Petition is DENIED and the assailed Decision, dated October 26, 1989, and Resolution dated January 4, 1991, of the Court of Appeals AFFIRMED. No pronouncement as to costs.

G.R. No. 77716 February 17, 1988 HEIRS OF THE LATE DOCTOR CORAZON DIAZ-LEUS, namely, her husband, CLETO P. LEUS and children, CEZAR LEUS, DRA. CORAZON D. LEUS, JR., and CLARISSA LEUS, petitioners, vs. HERNANI MELVIDA, ALMARIO ROSAS, VICTORY LINER, INC., SPOUSES LEONISA GALI and JESUS GALI and COURT OF APPEALS, respondents. GANCAYCO, J.: Almario Rosas and Hernani Melvida were charged of the crime of Reckless Imprudence resulting in Double Homicide, Serious and Slight Physical Injuries and Damage to Property allegedly committed in the following manner:
That on or about the 30th day of June, 1972, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Hernani Melvida and Almario C. Rosas, being then the chauffeurs and the persons in charge of Plymouth car bearing plate No. 99-OW-Caloocan City 1971 and a Victory Liner bus with body number 512 and bearing plate No. 27-55 PUB Caloocan City 1972, respectively, did then and there wilfully, unlawfully and feloniously drive and operate their respective motor vehicles along the North Expressway (Marcelo H. Del Pilar Highway) towards opposite directions in the said municipality, in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and regulations and the weather conditions, and without taking the necessary precaution to avoid injuries to persons and damage to property, causing by such negligence, carelessness and imprudence the said Plymouth car bearing plate No. 99-OWL-Caloocan City 1971 driven by the said accused Hernani Melvida to swerve to its left, cross the island, and move onto the lane for the opposite traffic, and the said Victory Liner bus with body number 512 and bearing plate No. 27-55 PUB Caloocan City 1972 to hit and bump the said Plymouth car, thereby inflicting on DRA. Corazon Diaz-Leus, Florencio Carbilledo Y Canhagas and Mrs. Leonisa Gali, passengers of the said Plymouth car, serious physical injuries, which directly caused the death of the said Dra. Corazon Diaz-Leus and Florencio Carbilledo Y Canhagas, to the damage and prejudice of the legal heirs of the said deceased Dra. Corazon Diaz-Leus and Florencio Carbilledo Y Canhagas, and incapacitated the said Mrs. Leonisa Gali from performing her customary labor and required her medical attendance for a period of more than 30 days and also inflicting slight physical injuries on Leonisa Payumo, passenger of the said Victory Liner bus, which required medical attendance and incapacitated her from performing her customary labor for a period of not more than 9 days, and further causing damages to the said Plymouth car and the said Victory liner Bus, to the damage and prejudice of their owners, Jesus Gali and the Victory Liner Bus Lines Inc., respectively. Contrary to law. 1

Upon arraignment Rosas and Melvida entered a plea of not guilty and after trial a decision was rendered by the trial court, the dispositive portion of which reads FOR ALL THE FOREGOING, the Court finds the accused Hernani Melvida guilty beyond reasonable doubt of the offense charged and he is hereby sentenced to suffer imprisonment of an indeterminate penalty of from SIX (6) MONTHS of arresto mayor; as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum, with the accessory penalties prescribed by law; to indemnity (sic) the legal heirs of the deceased Dra. Corazon Diaz-Leus and Florencio Carbilledo the sum of P12,000.00. each; to pay the legal heirs of Dra. Leus the amount of P14,000.00 as funeral and death expenses; to pay the said legal heirs of

the amount of P200,000.00 as moral damages, without subsidiary imprisonment in case of insolvency, and to pay the costs.
For failure to establish the guilt of accused Almario Rosas beyond reasonable doubt, he is hereby acquitted of the offense charged. With costs. 2

From said decision Cleto Leus and his children as legal heirs appealed to the Court of Appeals only with respect to the civil aspect. The vital issue raised to the Court of Appeals is whether or not accused-appellee Almario Rosas could still be held civilly liable despite his acquittal in the criminal case. 3 They also contend that the Victory Liner and Jesus Gali owners of the colliding vehicles, are subsidiarily liable for damages. The Court of Appeals made the following finding of facts: The facts adduced from the evidence presented by the prosecution shows that in the afternoon of June 30, 1972, a vehicular accident happened along the North Expressway. A Plymouth car bearing plate No. 99-OWL-Caloocan City figured in the accident. The car was driven by accused Hernani Melvida and the passengers were the victim Mrs. Leonisa Gali and the deceased Dra. Corazon Diaz-Leus, wife of complainant Atty. Cleto Leus and Florencio Carbilledo. The Plymouth car driven by accused came from a Quezon City hospital and was on its way home to Bulacan taking the North Expressway. Accused Melvida drove the car at a fast speed and in a negligent manner causing it to swerve to the left, traversing the grassy island which separates the North and the South lanes of the Expressway until it reached a portion of the left lane more or less two (2) feet from the asphalted portion of the south lane on the left side facing South going to Manila as shown in Exhibit 'C', 'C-2' and 'C-3' when it was bumped on the rear portion by a Victory Liner bus and dragged about 50 meters off the cemented road to the grassy island where it was crash-landed on by the front portion of said Victory Liner bus. Said bus bearing plate No. 27-55 PUBCaloocan City 1972 was driven by accused Almario Rosas, travelling South towards Manila in an imprudent and negligent manner without due regard to traffic rules and regulations and to the weather condition which was then stormy. It also appears that before the accident, the bus driven by accused Rosas overtook the car of Dr. Romeo San Diego which was running at the speed of 80 kilometers per hour. The said bus when it overtook the car of Dr. San Diego was running at a fast speed thus creating a 'whizzing sound'. As a result of the vehicular accident, Dra. Corazon Diaz-Leus was pinned to death inside the car together with another passenger Carbilledo. Thereafter it was held Upon review of the whole records WE find as the lower court did that the accident in question cannot be attributed to any negligence of appellee Rosas. The stubborn and undisputed facts reveal that appellee Rosas was driving his bus on his own lane of the highway going south when the Plymouth car suddenly encroached on his (Rosas) lane in front of its path after crossing the wise grassy strip of land separating the North and the South lane of the expressway. Appellee Rosas who was properly traversing his own lane should not be expected to anticipate and/or foresee that a private car coming from the North lane would be thrown to his path. Even, assuming as alleged that appellee Rosas was driving at a very fast speed, had the Plymouth car remained on its proper lane collision would not have occurred. The proximate

cause of the accident is the Plymouth car's leaving its proper (north) lane, swerving to its left and intruding into the south-bound lane. The collision which resulted in the destruction of the Plymouth car had not been due to any negligence on appellee Rosas part. It was a fortuitous event which appellee Rosas could not prevent. And, since appellants appeal on the civil aspect is predicated upon appellee Rosas negligence which does not exist, it follows that his acquittal in the criminal case carries with it the extinction of his civil liability and therefore the offended parties, herein appellants may no longer appeal and recover damages from said appellee Rosas. As a consequence, the rule that--extinction of the penal action does not carry with it extinction of the civil,' . . .; (Sec. 3, (c), Rule III, Rules of Court) does not apply to the present instance. The case falls squarely under the exception that , unless the extinction proceeds from a declaration in a (sic) initial judgment that the fact from which the civil might arise did not exist. . . . . (Sec-3, (c), Rules of Court). It has been held that where the judgment of acquittal in a criminal prosecution for arson through reckless imprudence states that the offense was caused by fortuitous event, the civil action to recover damages is barred.(Cf. Tan vs. Standard Vacuum Oil Co., 48 O.G. 2745). The decision appealed from which is final and executory as regards its criminal phase, has not only acquitted accused, but also declared that the collision, which resulted in the destruction of appellants' car, had not been due to any negligence on his part. Since appellants' civil action is predicated upon accused alleged negligence, which does not exist, according to said final judgment, it follows necessarily that his acquittal in the criminal action carries with it the extinction of the civil responsibility arising therefrom.(Faraon vs. Priela G.R. L-23129, August 2, 1968, 24 SCRA 582). Appellant's also alleged that the lower court committed error in not considering the loss of earning capacity of the deceased Dra. Leus. According to appellants, the deceased as a doctor had an average earning of P600.00 covering the year 1971 and for six (6) months from January to June 1972 and an average earnings in business for the years 1971 and 1972, the sum of P1,010. The deceased Dra. Leus was 59 years of age when she died. At such age the normal life expectancy is 14 years, according to the formula (2/ 3 x [80-301 adopted by the Supreme Court in the case of Villa Rey transit Inc. vs. Court of Appeals, 31 SCRA 511 on the basis of the American Expectancy Table of Mortality or the Actualrial (sic) Combined Experience Table of Morality. In the computation of the amount recoverable by the heirs of the victim of tort, the loss of the entire earnings is not considered. It is only the net earnings lease expenses necessary in the creation of such earnings or income and less living and other incidental expenses. In the case at bar, the earnings after computing was P904.96 a year and deduction of P200.00 a month as necessary expenses to the creation of such income is reasonable. The amount of P704.96 net yearly income multiplied by 14 years, or P9,869.44 is the amount which should be awarded to appellants. (Davila vs. Phil. Air Lines, 49 SCRA 497; People vs. Henson, CA-G.R. No. 12521-CR, May 25, 1973). Then to, We believe that the award of damages for the death of Dra. Leus in the amount of P200,000.00 without interest is reasonable and We find no justification to modify. In view thereof, appellee Melvida is hereby ordered to pay complainant--appellants additional sum of P9,869.44.
WHEREFORE, with the modification as to the award of damages, the decision appealed from is hereby AFFIRMED in all other respects. 4

Petitioner now comes before this Court raising the legal issue whether or not the trial court should be ordered to determine the civil liability of Rosas and subsidiary civil liability of the owners of the car and the bus to the heirs of Dra. Diaz-Leus in accordance with Article 29 of the Civil Code which provides-Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Petitioner also invokes the ruling of this Court in Paman vs. Seneris, 5 where it was held Moreover, it has been invariably held that a judgment of conviction sentencing a defendant employer to pay an indemnity in the absence of any collusion between the defendant and the offended party, is conclusive upon the employer in an action for the enforcement of the latter's subsidiary liability not only with regard to the civil liability, but also with regard to its amount. This being the case, this Court stated in Rotea vs. Halili, 109 Phil. 495 that the court has no other function than to render decision based upon the indemnity awarded in the criminal case and has no power to amend or modify it even if in its opinion an error has been committed in the decision. A separate and independent action is, therefore, unnecessary and would only unduly prolong the agony of the victim.' (115 SCRA, P. 715). The findings of the Court of Appeals were a complete exoneration of Rosas. Since petitioner's appeal on the civil aspect is predicated upon Rosas' alleged negligence which has been found not to exist, this Court must likewise uphold the Court of Appeals' ruling that Rosas' acquittal in the criminal case carries with it the extinction of his civil liability which bars herein petitioners from recovering damages from Rosas. Since Rosas is absolved from any act of negligence which in effect prevents further recovery of any damages, the same is likewise true with respect to his employer victory Liner, Inc. which at most would have been only subsidiarily liable. Nor can the spouses Jesus Gali and Leonisa Gali as employers of respondent Hernani Melvida be subsidiarily liable. Art. 103 of the Revised Penal Code provides, The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. In order that employers may be held liable under the above-quoted provision of law, the following requisites must exist. (1) That an employee has committed a mime in the discharge of his duties;

(2) that said employee is insolvent and has not satisfied his civil liability; and
(3) that the employer is engaged in some kind of industry.
6

The preceding requisites are not present in the case of the Gali spouses. They are not engaged in any kind of industry. Industry has been defined as any department or branch of art, occupation or business, especially, one which employs much labor and capital and is a distinct branch of trade, as the sugar industry. 7 Thus, the Gali spouses cannot be held subsidiarily liable. As We stated in a previous case: "Where the defendant is admittedly a private person who has no business or industry, and uses his automobile for private purposes, he is not also subsidiarily liable to the plaintiff for the damages to the latter's car caused by the reckless imprudence of his insolvent driver." 8 WHEREFORE, the petition is DENIED. No costs.

[G.R. No. 148193. January 16, 2003]

PEOPLE OF THE PHILIPPINES, petitioner, vs. RAFAEL CONSING, JR., respondent. DECISION
YNARES-SANTIAGO, J.:

JOSE

Before us is a petition for review under Rule 45 of the Rules of Court, seeking to set aside the May 31, 2001 decision of the Court of Appeals in CA-G.R. SP No. 63712, which reversed and set aside the January 23, 2001 order of the Regional Trial Court of Imus, Cavite, Branch 21, in Criminal Case No. 7668-00 denying respondents motion for deferment of arraignment.
[1] [2] [3]

Sometime in February 1997, respondent Rafael Jose Consing, Jr. and his mother, Cecilia de la Cruz, represented to Plus Builders, Inc. (PBI) that they are the true and lawful owners of a 42,443 square meter lot situated in Imus, Cavite and covered by Transfer Certificate of Title No. 687599 in the name of Cecilia de la Cruz. They further represented that they acquired said lot, which was previously covered by TCT No. 191408 from Juanito Tan Teng and Po Willie Yu. Relying on the representations of respondent and his mother, PBI purchased the questioned lot.
[4]

In April 1999, PBI discovered that respondent and his mother did not have a valid title over the subject lot. PBI came to know that Juanito Tan Teng and Po Willie Yu never sold said lot to respondent and his mother and that TCT No. 191408 upon which TCT No. 687599 was based is not on file with the Register of Deeds. In August 1999, PBI was ousted from the possession of the disputed lot by Juanito Tan Teng and Po Willie Yu. Despite written and verbal demands, respondent and his mother refused to return the amount of P13,369,641.79 alleged to have been initially paid by PBI. On July 22, 1999, respondent filed with the Regional Trial Court of Pasig City, Branch 68, an action for Injunctive Relief docketed as Civil Case No. SCA 1759, against PBI, Unicapital Inc, Unicapital Realty Inc., Jaime Martires, Mariano D. Martinez, Cecilia de la Cruz and 20 other John Does. Respondent sought a declaration that he was merely an agent of his mother, Cecilia de la Cruz, and therefore was not under any obligation to PBI and to the other defendants on the various transactions involving TCT No. 687599.
[5]

On October 13, 1999, PBI filed against respondent and his mother a complaint for Damages and Attachment, docketed as Civil Case No. 9995381, with Branch 12 of the Regional Trial Court of Manila. Respondent filed a motion to dismiss on the ground of forum shopping and pendency of Civil Case No. SCA 1759.
[6] [7]

On January 21, 2000, a criminal case for estafa through falsification of public document was filed against respondent Rafael Jose Consing, Jr. and his mother with the RTC of Imus, Cavite.
[8]

On April 7, 2000, respondent filed a motion to defer arraignment on the ground of prejudicial question, i.e., the pendency of Civil Case Nos. SCA 1759 and 99-95381. On January 27, 2000, the trial court denied respondents motion.
[9]

A motion for reconsideration thereof was likewise denied on February 27, 2001.
[10]

Respondent filed a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction with the Court of Appeals seeking to enjoin the arraignment and trial of the estafa through falsification case. The Court of Appeals granted respondents prayer for the issuance of a temporary restraining order in a resolution dated March 19, 2001.
[11] [12]

On May 31, 2001, a decision was rendered setting aside the January 27, 2000 order of the trial court and permanently enjoining it from proceeding with the arraignment and trial of the criminal case until the civil cases for Injunctive Relief and for Damages and Attachment shall have been finally decided. Hence, the People of the Philippines, represented by the Solicitor General, filed the instant petition seeking the reversal of the May 31, 2001 decision of the Court of Appeals. The issue to be resolved in this petition is whether or not the pendency of Civil Case Nos. SCA 1759 and 99-95381, for Injunctive Relief and for Damages and Attachment, is a prejudicial question justifying the suspension of the proceedings in the criminal case for estafa through falsification of public document, filed against the respondent. A prejudicial question is defined as that which arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately

connected with it that it determines the guilt or innocence of the accused. For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil action, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal.
[13]

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 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 there is no necessity that the civil case be determined first before taking up the criminal case, therefore, the civil case does not involve a prejudicial question.
[14]

In the case at bar, we find no prejudicial question that would justify the suspension of the proceedings in the criminal case. The issue in Civil Case No. SCA 1759 for Injunctive Relief is whether or not respondent merely acted as an agent of his mother, Cecilia de la Cruz; while in Civil Case No. 9995381, for Damages and Attachment, the question is whether respondent and his mother are liable to pay damages and to return the amount paid by PBI for the purchase of the disputed lot. Even if respondent is declared merely an agent of his mother in the transaction involving the sale of the questioned lot, he cannot be adjudged free from criminal liability. An agent or any person may be held liable for conspiring to falsify public documents. Hence, the determination of the issue involved in Civil Case No. SCA 1759 for Injunctive Relief is irrelevant to the guilt or innocence of the respondent in the criminal case for estafa through falsification of public document. Likewise, the resolution of PBIs right to be paid damages and the purchase price of the lot in question will not be determinative of the culpability of the respondent in the criminal case for even if PBI is held entitled to the return of the purchase price plus damages, it does not ipso facto follow that respondent should be held guilty of estafa through falsification of public document. Stated differently, a ruling of the court in the civil case that PBI should not be paid the purchase price plus damages will not necessarily

absolve respondent of liability in the criminal case where his guilt may still be established under penal laws as determined by other evidence. Moreover, neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other. Under Rule 111, Section 3 of the Revised Rules on Criminal Procedure, in the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.
[15]

Thus, in Rojas v. People, the petitioner was accused in a criminal case for violation of Article 319 of the Revised Penal Code, for executing a new chattel mortgage on personal property in favor of another party without consent of the previous mortgagee. Thereafter, the offended party filed a civil case for termination of management contract, one of the causes of action of which consisted of petitioner having executed a chattel mortgage while the previous chattel mortgage was still valid and subsisting. Petitioner moved that the arraignment and trial of the criminal case be held in abeyance on the ground that the civil case was a prejudicial question, the resolution of which was necessary before the criminal proceedings could proceed. The trial court denied the suspension of the criminal case on the ground that no prejudicial question exist. We affirmed the order of the trial court and ruled that:
[16]

the resolution of the liability of the defendant in the civil case on the eleventh cause of action based on the fraudulent misrepresentation that the chattel mortgage the defendant executed in favor of the said CMS Estate, Inc. on February 20, 1957, that his D-6 Caterpillar Tractor with Serial No. 9-U-6565 was free from all liens and encumbrances will not determine the criminal liability of the accused in the said Criminal Case No. 56042 for violation of paragraph 2 of Article 319 of the Revised Penal Code. . . . (i) That, even granting for the sake of argument, a prejudicial question is involved in this case, the fact remains that both the crime charged in the information in the criminal case and the eleventh cause of action in the civil case are based upon fraud, hence both the civil and criminal cases could proceed independently of the other pursuant to Article 33 of the new Civil Code which provides: In cases of defamation, fraud and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. (j) That, therefore, the act of respondent judge in issuing the orders referred to in the instant petition was not made with grave abuse of discretion.

In the instant case, Civil Case No. 99-95381, for Damages and Attachment on account of the alleged fraud committed by respondent and his mother in selling the disputed lot to PBI is an independent civil action under Article 33 of the Civil Code. As such, it will not operate as a prejudicial question that will justify the suspension of the criminal case at bar. WHEREFORE, in view of all the foregoing, the instant petition is GRANTED. The May 31, 2001 decision of the Court of Appeals in CA-G.R. SP No. 63712 is REVERSED and SET ASIDE. The permanent injunction issued by the Court of Appeals is LIFTED and the Regional Trial Court of Imus, Cavite, Branch 21 is ORDERED to proceed with the arraignment and trial in Criminal Case No. 7668-00.

G.R. No. 112381 March 20, 1995 ISABELO APA, MANUEL APA and LEONILO JACALAN, petitioners, vs. HON. RUMOLDO R. FERNANDEZ, HON. CELSO V. ESPINOSA, and SPS. FELIXBERTO TIGOL, JR. and ROSITA TAGHOY TIGOL, respondents.

MENDOZA, J.: This is a special civil action of certiorari to set aside orders of respondent Judge Rumoldo R. Fernandez of the Regional Trial Court, Branch 54, at Lapu-Lapu City, denying petitioners oral motion for the suspension of their arraignment in Criminal Case No. 012489, entitled: "People of the Philippines v. Isabelo Apa; Manuel Apa and Leonilo Jacalan," as well as their motion for reconsideration. Criminal Case No. 012489 is a prosecution for violation of P.D. 772 otherwise known as the AntiSquatting Law. The information alleges: That on February 1990, or prior thereto, in Agus, Lapulapu City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused [herein petitioners Isabelo Apa, Manuel Apa and Dionisio Jacalan], conspiring, confederating and mutually helping with one another, without the knowledge and consent of the owner, ROSITA TIGOL, did then and there wilfully, unlawfully and feloniously take advantage of the absence or tolerance of the said owner by occupying or possessing a portion of her real property, Lot No. 3635-B of Opon Cadastre, covered by Transfer Certificate of Title No. 13250, situated in Agus Lapulapu City, whereon they constructed their respective residential houses against the will of Rosita Tigol, which acts of the said accused have deprived the latter of the use of a portion of her land, to her damage and prejudice because despite repeated demands the said accused failed and refused, as they still fail and refuse to vacate the premises abovementioned. Petitioners moved for the suspension of their arraignment on the ground that there was a prejudicial question pending resolution in another case being tried in Branch 27 of the same court. The case, docketed as Civil Case No. 2247-L and entitled "Anselmo Taghoy and Vicente Apa versus Felixberto Tigol, Jr. and Rosita T. Tigol, et al.," concerns the ownership of Lot No. 3635-B. 1 In that case, petitioners seek a declaration of the nullity of TCT No. 13250 of Rosita T. Tigol and the partition of the lot in question among them and private respondent Rosita T. Tigol as heirs of Filomeno and Rita Taghoy. The case had been filed in 1990 by petitioners, three years before May 27, 1993 when the criminal case for squatting was filed against them. On August 25, 1993, the trial court denied the petitioners' motion and proceeded with their arraignment. Petitioners, therefore, had to enter their plea (not guilty) to the charge. On September 2, 1993, petitioners filed a motion for reconsideration but their motion was denied by the court in its order dated September 21, 1993. Hence, this petition. The only issue in this case is whether the question of ownership of Lot No. 3635-B, which was pending, in Civil Case No. 2247-L, is a prejudicial question justifying suspension of the proceedings in the criminal case against petitioners.

We hold that it is. A prejudicial question is a question which is based on a fact distinct and separate from the crime but so intimately connected with it that its resolution is determinative of the guilt or innocence of the accused. To justify suspension of the criminal action, it must appear not only that the civil case involves facts intimately related to those upon which the criminal prosecution is based but also that the decision of the issue or issues raised in the civil case would be decisive of the guilt or innocence of the accused. 2 Rule 111, 5 provides: Sec. 6. Elements of prejudicial question. The two (2) essential elements of a prejudicial questions are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. In the criminal case, the question is whether petitioners occupied a piece of land not belonging to them but to private respondent and against the latter's will. As already noted, the information alleges that "without the knowledge and consent of the owner, ROSITA TIGOL" petitioners occupied or took possession of a portion of "herproperty" by building their houses thereon and "deprived [her] of the use of portion of her land to her damage and prejudice. Now the ownership of the land in question, known as Lot 3635-B of the Opon cadastre covered by TCT No. 13250, is the issue in Civil Case 2247-L now pending in Branch 27 of the RTC at Lapulapu City. The resolution, therefore, of this question would necessarily be determinative of petitioners criminal liability for squatting. In fact it appears that on February 23, 1994, the court trying the civil case rendered a decision nullifying TCT No. 13250 of private respondent and her husband and declared the lot in question to be owned in common by the spouses and the petitioners as inheritance from their parents Filomeno and Rita Taghoy. While private respondents claim that the decision in that case is not yet final because they have filed a motion for new trial, the point is that whatever may be the ultimate resolution of the question of ownership, such resolution will be determinative of the guilt or innocence of petitioners in the criminal case. Surely, if petitioners are co-owners of the lot in question, they cannot be found guilty of squatting because they are as much entitled to the use and occupation of the land as are the private respondent Rosita T. Tigol and her family. 3 Private respondents argues that even the owner of a piece of a land can be ejected from his property since the only issue in such a case is the right to its physical possession. Consequently, they contend, he can also be prosecuted under the Anti-Squatting Law. The contention misses the case is the essential point that the owner of a piece of land can be ejected only if for some reason, e.g., he has let his property to the plaintiff, he has given up its temporary possession. But in the case at bar, no such agreement is asserted by private respondent. Rather private respondent claims the right to possession based on her claim of ownership. Ownership is thus the pivotal question. Since this is the question in the civil case, the proceedings in the criminal case must in the meantime be suspended. WHEREFORE, the petition is GRANTED and respondent judge is ordered to SUSPEND the proceedings in Criminal Case No. 012489 until the question of ownership in Civil Case No. 2247-L has been resolved with finality and thereafter proceed with the trial of the criminal case if the civil case is decided and terminated adversely against petitioners. Otherwise he should dismiss the criminal case.

[G.R. No. 126746. November 29, 2000]

ARTHUR TE, petitioner, vs. COURT OF APPEALS, and LILIANA CHOA, respondents. DECISION
KAPUNAN, J.:

Before us is a petition for review on certiorari which seeks to reverse the Decision of the Court of Appeals Tenth Division, dated 31 August 1994 in CA-G.R. SP No. 23971[1] and CA-G.R. SP No. 26178[2] and the Resolution dated October 18, 1996 denying petitioners motion for reconsideration. The facts of the case are as follows: Petitioner Arthur Te and private respondent Liliana Choa were married in civil rites on September 14, 1988. They did not live together after the marriage although they would meet each other regularly. Not long after private respondent gave birth to a girl on April 21, 1989, petitioner stopped visiting her.[3] On May 20, 1990, while his marriage with private respondent was subsisting, petitioner contracted a second marriage with a certain Julieta Santella (Santella). [4] On the basis of a complaint-affidavit filed by private respondent sometime in June 1990, when she learned about petitioners marriage to Santella, an information charging petitioner with bigamy was filed with the Regional Trial Court (RTC) of Quezon City on August 9, 1990.[5] This case was docketed as Criminal Case No. Q-90-14409.[6] Meanwhile, on July 20, 1990, petitioner filed in the RTC of Quezon City an action for the annulment of his marriage to private respondent on the ground that he was forced to marry her. He alleged that private respondent concealed her pregnancy by another man at the time of their marriage and that she was psychologically incapacitated to perform her essential marital obligations.[7] On November 8, 1990, private respondent also filed with the Professional Regulation Commission (PRC) an administrative case against petitioner and Santella for the revocation of their respective engineering licenses on the ground that they committed acts of immorality by living together and subsequently marrying each other despite their knowledge that at the time of their marriage, petitioner was already married to private respondent. With respect to petitioner, private respondent added that he committed an act of falsification by stating in his marriage contract with Santella that he was still single.[8] After the prosecution rested its case in the criminal case for bigamy, petitioner filed a demurrer to evidence with leave of court and motion to inhibit the trial court judge for showing antagonism and animosity towards petitioners counsel during t he hearings of said case.

The trial court denied petitioners demurrer to evidence in an Order dated November 28, 1990 which stated that the same could not be granted because the prosecution had sufficiently established a prima facie case against the accused.[9] The RTC also denied petitioners motion to inhibit for lack of legal basis.[10] Petitioner then filed with the Court of Appeals a petition for certiorari, alleging grave abuse of discretion on the part of the trial court judge, Judge Cezar C. Peralejo, for (1) exhibiting antagonism and animosity towards petitioners co unsel; (2) violating the requirements of due process by denying petitioners [motion for reconsideration and] demurrer to evidence even before the filing of the same; (3) disregarding and failing to comply with the appropriate guidelines for judges promulgated by the Supreme Court; and (4) ruling that in a criminal case only prima facie evidence is sufficient for conviction of an accused. This case was docketed as CA-G.R. SP No. 23971.[11] Petitioner also filed with the Board of Civil Engineering of the PRC (PRC Board), where the administrative case for the revocation of his engineering license was pending, a motion to suspend the proceedings therein in view of the pendency of the civil case for annulment of his marriage to private respondent and criminal case for bigamy in Branches 106 and 98, respectively of the RTC of Quezon City. [12] When the Board denied the said motion in its Order dated July 16, 1991, [13] petitioner filed with the Court of Appeals another petition for certiorari, contending that the Board gravely abused its discretion in: (1) failing to hold that the resolution of the annulment case is prejudicial to the outcome of the administrative case pending before it; (2) not holding that the continuation of proceedings in the administrative case could render nugatory petitioners right against self-incrimination in this criminal case for bigamy against him; and (3) making an overly-sweeping interpretation that Section 32 of the Rules and Regulations Governing the Regulation and Practice of Professionals does not allow the suspension of the administrative proceeding before the PRC Board despite the pendency of criminal and/or administrative proceedings against the same respondent involving the same set of facts in other courts or tribunals. This petition was docketed as CA-G.R. SP No. 26178.[14] The two petitions for certiorari were consolidated since they arose from the same set of facts. On 31 August 1994, the Court of Appeals, Tenth Division, rendered the assailed decision in the consolidated petitions. The appellate court upheld the RTCs denial of the motion to inhibit due to petitioners failure to show any concrete evidence that the trial court judge exhibited partiality and had prejudged the case. It also ruled that the denial of petitioners motion to suspend the proceedings on the ground of prejudicial question was in accord with law.[15] The Court of Appeals likewise affirmed the RTCs denial of the demurrer to evidence filed by petitioner for his failure to set forth persuasive grounds to support the same, considering that the prosecution was able to adduce evidence showing the existence of the elements of bigamy. [16] Neither did the appellate court find grave abuse of discretion on the part of the Boards Order denying petitioners motion to suspend proceedings in the administrative case on the ground of prejudicial question. Respondent court held that no prejudicial

question existed since the action sought to be suspended is administrative in nature, and the other action involved is a civil case.[17] Petitioner thereafter filed a motion for reconsideration of the decision of the Court of Appeals but the same was denied.[18] Hence, petitioner filed the instant petition raising the following issues:
I

PUBLIC RESPONDENT COMMITTED A SERIOUS ERROR IN REFUSING TO SUSPEND THE LEGAL [CRIMINAL AND ADMINISTRATIVE] PROCEEDINGS DESPITE THE PENDENCY OF THE CIVIL CASE FOR DECLARATION OF NULLITY OF MARRIAGE.
II

PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AND COMMITTED AN ERROR OF LAW IN NOT HOLDING THAT THE DEMURRER TO EVIDENCE SHOULD HAVE BEEN GIVEN DUE COURSE.
III

PUBLIC RESPONDENT COMMITTED A SERIOUS LEGAL ERROR IN NOT HOLDING THAT THE TRIAL JUDGE A QUO SHOULD HAVE INHIBITED HIMSELF.
[19]

The petition has no merit. While the termination of Civil Case No. Q-90-6205 for annulment of petitioners marriage to private respondent has rendered the issue of the propriety of suspending both the criminal case for bigamy before the RTC of Quezon City, Branch 98 and the administrative case for revocation of petitioners engineering license before the PRC Board moot and academic, the Court shall discuss the issue of prejudicial question to emphasize the guarding and controlling precepts and rules.[20] A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.[21] The rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions.[22] The Court of Appeals did not err when it ruled that the pendency of the civil case for annulment of marriage filed by petitioner against private respondent did not pose a

prejudicial question which would necessitate that the criminal case for bigamy be suspended until said civil case is terminated. The outcome of the civil case for annulment of petitioners marriage to private respondent had no bearing upon the determination of petitioners innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.[23] Petitioners argument that the nullity of his marriage to private respondent had to be resolved first in the civil case before the criminal proceedings could continue, because a declaration that their marriage was void ab initiowould necessarily absolve him from criminal liability, is untenable. The ruling in People vs. Mendoza[24] and People vs. Aragon[25] cited by petitioner that no judicial decree is necessary to establish the invalidity of a marriage which is void ab initio has been overturned. The prevailing rule is found in Article 40 of the Family Code, which was already in effect at the time of petitioners marriage to private respondent in September 1988. Said article states that the absolute nullity of a previous marriage may not be invoked for purposes of remarriage unless there is a final judgment declaring such previous marriage void. Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. [26] InLandicho vs. Relova,[27] we held that:

Parties to a marriage should not be permitted to judge for themselves its nullity, for this must be submitted to the judgment of competent courts and only when the nullity of a marriage is so declared can it be held as void, and so long as there is no such declaration the presumption of marriage exists.

[28]

It is clear from the foregoing that the pendency of the civil case for annulment of petitioners marriage to private respondent did not give rise to a prejudicial question which warranted the suspension of the proceedings in the criminal case for bigamy since at the time of the alleged commission of the crime, their marriage was, under the law, still valid and subsisting. Neither did the filing of said civil case for annulment necessitate the suspension of the administrative proceedings before the PRC Board. As discussed above, the concept of prejudicial question involves a civil and a criminal case. We have previously ruled that there is no prejudicial question where one case is administrative and the other is civil.[29] Furthermore, Section 32 of the Rules and Regulations Governing the Regulation and Practice of Professionals of the PRC Board expressly provides that the administrative proceedings before it shall not be suspended notwithstanding the existence of a criminal and/or civil case against the respondent involving the same facts as the administrative case:

The filing or pendency of a criminal and/or civil cases in the courts or an administrative case in another judicial body against an examinee or registered professional involving the same facts as in the administrative case filed or to

be filed before the Board shall neither suspend nor bar the proceeding of the latter case. The Board shall proceed independently with the investigation of the case and shall render therein its decision without awaiting for the final decision of the courts or quasi-judicial body.
It must also be noted that the allegations in the administrative complaint before the PRC Board are not confined to the issue of the alleged bigamous marriage contracted by petitioner and Santella. Petitioner is also charged with immoral conduct for continued failure to perform his obligations as husband to private respondent and as father to their child, and for cohabiting with Santella without the benefit of marriage.[30] The existence of these other charges justified the continuation of the proceedings before the PRC Board. Petitioner also contends that the Court of Appeals erred in upholding the trial courts denial of his demurrer to evidence in the criminal case for bigamy, arguing that the prosecution failed to establish the existence of both the first and second marriages beyond reasonable doubt. Petitioner claims that the original copy of marriage contract between him and private respondent was not presented, the signatures therein were not properly identified and there was no showing that the requisites of a valid marriage were complied with. He alleges further that the original copy of the marriage contract between him and Santella was not presented, that no proof that he signed said contract was adduced, and that there was no witness presented to show that a second marriage ceremony participated in by him ever took place.[31] We are not persuaded. The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court, and its ruling on the matter shall not be disturbed in the absence of a grave abuse of such discretion. [32] In this case, the Court of Appeals did not find any grave abuse of discretion on the part of the trial court, which based its denial of the demurrer on two grounds: first, the prosecution established a prima facie case for bigamy against the petitioner; and second, petitioners allegations in the demurrer were insufficient to justify the grant of the same. It has been held that the appellate court will not review in a special civil action for certiorari the prosecutions evidence and decide in advance that such evidence has or has not yet established the guilt of the accused beyond reasonable doubt.[33] In view of the trial courts finding that a prima facie case against petitioner exists, his proper recourse is to adduce evidence in his defense.[34] The Court also finds it necessary to correct petitioners misimpression that by denying his demurrer to evidence in view of the existence of a prima facie case against him, the trial court was already making a pronouncement that he is liable for the offense charged. As correctly held by the Court of Appeals, the order of the RTC denying the demurrer was not an adjudication on the merits but merely an evaluation of the sufficiency of the prosecutions evidence to determine whether or not a full -blown trial would be necessary to resolve the case.[35] The RTCs observation that there was a prima facie case against petitioner only meant that the prosecution had presented sufficient evidence to sustain its proposition that petitioner had committed the offense of bigamy, and unless petitioner presents evidence to rebut the same, such would be the

conclusion.[36] Said declaration by the RTC should not be construed as a pronouncement of petitioners guilt. It was precisely because of such finding that the trial court denied the demurrer, in order that petitioner may present evidence in his defense and allow said court to resolve the case based on the evidence adduced by both parties. Lastly, petitioner contends that his motion to inhibit Judge Peralejo in Criminal Case No. Q-90-14409 should have been granted since said judge exhibited partiality and bias against him in several instances. First, when petitioner manifested that he would file a motion for reconsideration of the denial of his motion to suspend the proceedings in said case, the judge said such motion was dilatory and would be denied even though the motion for reconsideration had not yet been filed. Second, when petitioners counsel manifested that he had just recovered from an accident and was not physically fit for trial, the judge commented that counsel was merely trying to delay the case and required said counsel to produce a medical certificate to support his statement. Third, when petitioner manifested that he was going to file a demurrer to evidence, the judge characterized the same as dilatory and declared that he would deny the same. According to petitioner, the judges hostile attitude towards petitioners counsel as shown in the foregoing instances justified the grant of his motion to inhibit. We agree with the appellate court that the grounds raised by petitioner against Judge Peralejo did not conclusively show that the latter was biased and had prejudged the case.[37] In People of the Philippines vs. Court of Appeals,[38] this Court held that while bias and prejudice have been recognized as valid reasons for the voluntary inhibition of a judge under Section 1, Rule 137, the rudimentary rule is that the mere suspicion that a judge is partial is not enough. There should be clear and convincing evidence to prove the charge of bias and partiality.[39] Furthermore, since the grounds raised by petitioner in his motion to inhibit are not among those expressly mentioned in Section 1, Rule 137 of the Revised Rules of Court, the decision to inhibit himself lay within the sound discretion of Judge Peralejo. Said provision of law states:

Section 1. Disqualification of judges. No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in the case, for just and valid reasons other than those mentioned above.

Thus, it was not mandatory that the judge inhibit himself from hearing and deciding the case. This Court does not find any abuse of discretion by respondent judge in denying petitioners motion to inhibit. The test for determining the propriety of the denial of said motion is whether petitioner was deprived a fair and impartial trial. [40] The instances when Judge Peralejo allegedly exhibited antagonism and partiality against petitioner and/or his counsel did not deprive him of a fair and impartial trial. As discussed earlier, the denial by the judge of petitioners motion to suspend the criminal proceeding and the demurrer to evidence are in accord with law and jurisprudence. Neither was there anything unreasonable in the requirement that petitioners counsel submit a medical certificate to support his claim that he suffered an accident which rendered him unprepared for trial. Such requirement was evidently imposed upon petitioners counsel to ensure that the resolution of the case was not hampered by unnecessary and unjustified delays, in keeping with the judges duty to disposing of the courts business promptly.[41] WHEREFORE, the petition is hereby DENIED for lack of merit.

JOSELITO R. PIMENTEL, Petitioner,

G.R. No. 172060 Present: CARPIO, J., Chairperson, PERALTA, BERSAMIN,* ABAD, and VILLARAMA, JR.,** JJ.

- versus -

MARIA CHRYSANTINE L. PIMENTEL and PEOPLE Promulgated: OF THE PHILIPPINES, Respondents. September 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

13,

DECISION CARPIO, J.: The Case Before the Court is a petition for review[1] assailing the Decision[2] of the Court of Appeals, promulgated on 20 March 2006, in CA-G.R. SP No. 91867. The Antecedent Facts The facts are stated in the Court of Appeals decision: On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent) filed an action for frustrated parricide against Joselito R. Pimentel (petitioner), docketed as Criminal Case No. Q-04-130415, before the Regional Trial Court of Quezon City, which was raffled to Branch 223 (RTC Quezon City). On 7 February 2005, petitioner received summons to appear before the Regional Trial Court of Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial

and trial of Civil Case No. 04-7392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito Pimentel) for Declaration of Nullity of Marriage under Section 36 of the Family Code on the ground of psychological incapacity. On 11 February 2005, petitioner filed an urgent motion to suspend the proceedings before the RTC Quezon City on the ground of the existence of a prejudicial question. Petitioner asserted that since the relationship between the offender and the victim is a key element in parricide, the outcome of Civil Case No. 04-7392 would have a bearing in the criminal case filed against him before the RTC Quezon City. The Decision of the Trial Court The RTC Quezon City issued an Order dated 13 May 2005[3] holding that the pendency of the case before the RTC Antipolo is not a prejudicial question that warrants the suspension of the criminal case before it. The RTC Quezon City held that the issues in Criminal Case No. Q-04-130415 are the injuries sustained by respondent and whether the case could be tried even if the validity of petitioners marriage with respondent is in question. The RTC Quezon City ruled:

WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings On the [Ground] of the Existence of a Prejudicial Question is, for lack of merit, DENIED. SO ORDERED.[4]

Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,[5] the RTC Quezon City denied the motion. Petitioner filed a petition for certiorari with application for a writ of preliminary injunction and/or temporary restraining order before the Court of Appeals, assailing the 13 May 2005 and 22 August 2005 Orders of the RTC Quezon City.

The Decision of the Court of Appeals In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The Court of Appeals ruled that in the criminal case for frustrated parricide, the issue is whether the offender commenced the commission of the crime of parricide directly by overt acts and did not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. On the other hand, the issue in the civil action for annulment of marriage is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The Court of Appeals ruled that even if the marriage between petitioner and respondent would be declared void, it would be immaterial to the criminal case because prior to the declaration of nullity, the alleged acts constituting the crime of frustrated parricide had already been committed. The Court of Appeals ruled that all that is required for the charge of frustrated parricide is that at the time of the commission of the crime, the marriage is still subsisting. Petitioner filed a petition for review before this Court assailing the Court of Appeals decision. The Issue The only issue in this case is whether the resolution of the action for annulment of marriage is a prejudicial question that warrants the suspension of the criminal case for frustrated parricide against petitioner. The Ruling of this Court The petition has no merit. Civil Case Must be Instituted Before the Criminal Case Section 7, Rule 111 of the 2000 Rules on Criminal Procedure[6] provides:
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.

The rule is clear that the civil action must be instituted first before the filing of the criminal action. In this case, the Information[7] for Frustrated Parricide was dated 30 August 2004. It was raffled to RTC Quezon City on 25 October 2004 as per the stamped date of receipt on the Information. The RTC Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial on 14 February 2005. Petitioner was served summons in Civil Case No. 04-7392 on 7 February 2005.[8] Respondents petition[9] in Civil Case No. 04-7392 was dated 4 November 2004 and was filed on 5 November 2004. Clearly, the civil case for annulment was filed after the filing of the criminal case for frustrated parricide. As such, the requirement of Section 7, Rule 111 of the 2000 Rules on Criminal Procedure was not met since the civil action was filed subsequent to the filing of the criminal action. Annulment of Marriage is not a Prejudicial Question in Criminal Case for Parricide Further, the resolution of the civil action is not a prejudicial question that would warrant the suspension of the criminal action. There is a prejudicial question when a civil action and a criminal action are both pending, and there exists in the civil action an issue which must be preemptively resolved before the criminal action may proceed because howsoever the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal case.[10] A prejudicial question is defined as:
x x x one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts

intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.[11]

The relationship between the offender and the victim is a key element in the crime of parricide,[12] which punishes any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse.[13] The relationship between the offender and the victim distinguishes the crime of parricide from murder[14] or homicide.[15] However, the issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not determinative of the guilt or innocence of the accused. The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The issue in parricide is whether the accused killed the victim. In this case, since petitioner was charged with frustrated parricide, the issue is whether he performed all the acts of execution which would have killed respondent as a consequence but which, nevertheless, did not produce it by reason of causes independent of petitioners will.[16] At the time of the commission of the alleged crime, petitioner and respondent were married. The subsequent dissolution of their marriage, in case the petition in Civil Case No. 047392 is granted, will have no effect on the alleged crime that was committed at the time of the subsistence of the marriage. In short, even if the marriage between petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was still married to respondent.

We cannot accept petitioners reliance on Tenebro v. Court of Appeals[17] that the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned x x x. First, the issue

in Tenebro is the effect of the judicial declaration of nullity of a second or subsequent marriage on the ground of psychological incapacity on a criminal liability for bigamy. There was no issue of prejudicial question in that case. Second, the Court ruled in Tenebro that [t]here is x x x a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences.[18] In fact, the Court declared in that case that a declaration of the nullity of the second marri age on the ground of psychological incapacity is of absolutely no moment insofar as the States penal laws are concerned.[19] In view of the foregoing, the Court upholds the decision of the Court of Appeals. The trial in Criminal Case No. Q-04-130415 may proceed as the resolution of the issue in Civil Case No. 04-7392 is not determinative of the guilt or innocence of petitioner in the criminal case. WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision of the Court of Appeals in CA-G.R. SP No. 91867.

G.R. No. L-22759

March 29, 1968

MANUEL R. JIMENEZ, petitioner, vs. HON. ALBERTO V. AVERIA, Judge of the Court of First Instance of Cavite and OFELIA V. TANG and ESTEPANIA DE LA CRUZ OLANDAY, respondents. David F. Barrera for petitioner. Alfredo I. Raya and Raul A. Manalo for respondents. Jimenez vs. Averia. DIZON, J.: In Criminal Case No. TM-235 of the Court of First Instance of Cavite respondents Ofelia V. Tang and Estefania de la Cruz Olanday were charged with estafa, the information filed alleging that, having received from Manuel Jimenez the sum of P20,000.00 with which to purchase for him a fishing boat known as "Basnig", with the obligation on their part to return the money on January, 30, 1963 in case they should fail to buy the fishing boat, they misappropriated the amount aforesaid, to the damage and prejudice of Jimenez. Before arraignment, the accused filed Civil Case No. 6636 against Jimenez in the Court of First Instance of Quezon contesting the validity of a certain receipt signed by them on October 26, 1962 (Annex "A" of the present petition) wherein they acknowledged having received from him the sum of P20,000.00 with which to purchase for him a fishing boat and its accessories, and the further sum of P240.00 as agent's commission, with the obligation, on their part, to return the aforesaid amounts on January 30, 1963 in case they were unable to buy the fishing boat. Their complaint alleged that they had never received any amount from Jimenez and that their signatures on the questioned receipt were secured by means of fraud, deceit and intimidation employed by him. Several days later, they filed a motion in the aforementioned criminal action to suspend proceedings therein on the ground that the determination of the issue involved in Civil Case No. 6636 of the Court of First Instance of Quezon was a prejudicial question. The respondent judge granted the motion in an order dated October 18, 1963. The petition now before Us is one for certiorari predicated upon the proposition that in issuing the order just mentioned, the respondent judge committed a grave abuse of discretion amounting to lack of jurisdiction. Properly, however, the action is for the issuance of a writ of mandamus, the relief prayed being for this Court "to order the Hon. Court of Cavite Province to proceed with the case and to order the Hon. Court at Quezon Province to dismiss the civil case". The issue to be decided is whether the determination of the issue raised in the civil case mentioned heretofore is a prejudicial question, in the sense that it must be first resolved before the proceedings in the criminal case for estafa may proceed. A prejudicial question has been define to be one which arises in a case, the resolution of which, (question ) is a logical antecedent of the issued involved in said case, and the cognizance of which pertains to another tribunal (Encyclopedia Juridical Espaola, p. 228). In People vs. Aragon, G.R. No. L-5930, February 17, 1954, We held in connection with this subject that the question claimed to be prejudicial in nature must be determinative of the case before the court, and that jurisdiction to try and resolve said question must be lodged in another tribunal. Applying the above considerations to the instance case, it will be readily seen that the alleged prejudicial question is not determinative of the guilt or innocence of the parties charged with estafa,

because even on the assumption that the execution of the receipt whose annulment they sought in the civil case was vitiated by fraud, duress or intimidation, their guilt could still be established by other evidence showing, to the degree required by law, that they had actually received from the complaint the sum of P20,000.00 with which to buy for him a fishing boat, and that, instead of doing so, they misappropriated the money and refused or otherwise failed to return it to him upon demand. The contention of the private respondents herein would be tenable had they been charged with falsification of the same receipt involved in the civil action. Were We to sanction the theory advanced by the respondents Tang and De la Cruz Olanday and adopted by the respondent judge, there would hardly be a case for estafa that could be prosecuted speedily, it being the easiest thing for the accused to block the proceedings by the simple expedient of filing an independent civil action against the complainant, raising therein the issue that he had not received from the latter the amount alleged to have been misappropriated. A claim to this effect is properly a matter of defense to be interposed by the party charged in the criminal proceeding. WHEREFORE, judgment is hereby rendered ordering the respondent Court of First Instance of Cavite to proceed without undue delay with the trial of Criminal Case No. TM-235, with the result that the order complained of suspending the proceedings therein until after Civil Case No. 6636 of the Court of First Instance of Quezon has been resolved is hereby set aside. With cost against the respondent except the respondent judge.