G.R. No.

94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner, vs. GREGORIO NOLASCO, respondent.

On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court
of Antique, Branch 10, a petition for the declaration of presumptive death of his wife Janet
Monica Parker, invoking Article 41 of the Family Code. The petition prayed that respondent's
wife be declared presumptively dead or, in the alternative, that the marriage be declared null
and void. 1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor
of Antique who had been deputized to assist the Solicitor-General in the instant case. The
Republic argued, first, that Nolasco did not possess a "well-founded belief that the absent
spouse was already dead," 2 and second, Nolasco's attempt to have his marriage annulled in
the same proceeding was a "cunning attempt" to circumvent the law on marriage. 3

During trial, respondent Nolasco testified that he was a seaman and that he had first
met Janet Monica Parker, a British subject, in a bar in England during one of his ship's port
calls. From that chance meeting onwards, Janet Monica Parker lived with respondent Nolasco
on his ship for six (6) months until they returned to respondent's hometown of San Jose,
Antique on 19 November 1980 after his seaman's contract expired. On 15 January 1982,
respondent married Janet Monica Parker in San Jose, Antique, in Catholic rites officiated by
Fr. Henry van Tilborg in the Cathedral of San Jose.

Respondent Nolasco further testified that after the marriage celebration, he obtained
another employment contract as a seaman and left his wife with his parents in San Jose,
Antique. Sometime in January 1983, while working overseas, respondent received a letter
from his mother informing him that Janet Monica had given birth to his son. The same letter
informed him that Janet Monica had left Antique. Respondent claimed he then immediately
asked permission to leave his ship to return home. He arrived in Antique in November 1983.

Respondent further testified that his efforts to look for her himself whenever his ship
docked in England proved fruitless. He also stated that all the letters he had sent to his
missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the bar
where he and Janet Monica first met, were all returned to him. He also claimed that he
inquired from among friends but they too had no news of Janet Monica.

On cross-examination, respondent stated that he had lived with and later married Janet
Monica Parker despite his lack of knowledge as to her family background. He insisted that his
wife continued to refuse to give him such information even after they were married. He also
testified that he did not report the matter of Janet Monica's disappearance to the Philippine
government authorities.

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified
that her daughter-in-law Janet Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December 1982. When asked why her
daughter-in-law might have wished to leave Antique, respondent's mother replied that Janet
Monica never got used to the rural way of life in San Jose, Antique. Alicia Nolasco also said
that she had tried to dissuade Janet Monica from leaving as she had given birth to her son
Page 1 of 67
just fifteen days before, but when she (Alicia) failed to do so, she gave Janet Monica
P22,000.00 for her expenses before she left on 22 December 1982 for England. She further
claimed that she had no information as to the missing person's present whereabouts.

The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the
dispositive portion of which reads:

Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines
(Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17,
1987) this Court hereby declares as presumptively dead Janet Monica Parker Nolasco,
without prejudice to her reappearance. 4

The Republic appealed to the Court of Appeals contending that the trial court erred in
declaring Janet Monica Parker presumptively dead because respondent Nolasco had failed to
show that there existed a well founded belief for such declaration.

The Court of Appeals affirmed the trial court's decision, holding that respondent had
sufficiently established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review
where the following allegations are made:

1. The Court of Appeals erred in affirming the trial court's finding that there existed a well-
founded belief on the part of Nolasco that Janet Monica Parker was already dead; and

2. The Court of Appeals erred in affirming the trial Court's declaration that the petition was a
proper case of the declaration of presumptive death under Article 41, Family Code. 5
The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a
well-founded belief that his wife is already dead." 6

The present case was filed before the trial court pursuant to Article 41 of the Family
Code which provides that:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the provision of Article 391 of the
Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis supplied).

When Article 41 is compared with the old provision of the Civil Code, which it
superseded, 7 the following crucial differences emerge. Under Article 41, the time required for
the presumption to arise has been shortened to four (4) years; however, there is need for a
judicial declaration of presumptive death to enable the spouse present to remarry. 8 Also,
Page 2 of 67
Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the
Civil Code merely requires either that there be no news that such absentee is still alive; or the
absentee is generally considered to be dead and believed to be so by the spouse present, or
is presumed dead under Article 390 and 391 of the Civil Code. 9 The Family Code, upon the
other hand, prescribes as "well founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.

As pointed out by the Solicitor-General, there are four (4) requisites for the declaration
of presumptive death under Article 41 of the Family Code:
1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee. 10

Respondent naturally asserts that he had complied with all these requirements. 11

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to
prove that he had complied with the third requirement, i.e., the existence of a "well-founded
belief" that the absent spouse is already dead.

The Court believes that respondent Nolasco failed to conduct a search for his missing
wife with such diligence as to give rise to a "well-founded belief" that she is dead. United
States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a missing
spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He
set-up the defense of a good faith belief that his first wife had already died. The Court held
that defendant had not exercised due diligence to ascertain the whereabouts of his first wife,
noting that:

While the defendant testified that he had made inquiries concerning the whereabouts
of his wife, he fails to state of whom he made such inquiries. He did not even write to the
parents of his first wife, who lived in the Province of Pampanga, for the purpose of securing
information concerning her whereabouts. He admits that he had a suspicion only that his first
wife was dead. He admits that the only basis of his suspicion was the fact that she had been
absent. . . . 13

In the case at bar, the Court considers that the investigation allegedly conducted by
respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to
form the basis of a reasonable or well-founded belief that she was already dead. When he
arrived in San Jose, Antique after learning of Janet Monica's departure, instead of seeking the
help of local authorities or of the British Embassy, 14 he secured another seaman's contract
and went to London, a vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you exert efforts to inquire the whereabouts of
your wife?
A Yes, Sir.
Court:
Page 3 of 67
How did you do that?
A I secured another contract with the ship and we had a trip to London and I went to London
to look for her I could not find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused London for Liverpool and this
casts doubt on his supposed efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical difference between
London and Liverpool, for a humble seaman like Gregorio the two places could mean one
place in England, the port where his ship docked and where he found Janet. Our own
provincial folks, every time they leave home to visit relatives in Pasay City, Kalookan City, or
Paraaque, would announce to friends and relatives, "We're going to Manila." This apparent
error in naming of places of destination does not appear to be fatal. 16
is not well taken. There is no analogy between Manila and its neighboring cities, on
one hand, and London and Liverpool, on the other, which, as pointed out by the Solicitor-
General, are around three hundred fifty (350) kilometers apart. We do not consider that
walking into a major city like Liverpool or London with a simple hope of somehow bumping
into one particular person there which is in effect what Nolasco says he did can be
regarded as a reasonably diligent search.

The Court also views respondent's claim that Janet Monica declined to give any
information as to her personal background even after she had married respondent 17 too
convenient an excuse to justify his failure to locate her. The same can be said of the loss of
the alleged letters respondent had sent to his wife which respondent claims were all returned
to him. Respondent said he had lost these returned letters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had
inquired from their friends of her whereabouts, considering that respondent did not identify
those friends in his testimony. The Court of Appeals ruled that since the prosecutor failed to
rebut this evidence during trial, it is good evidence. But this kind of evidence cannot, by its
nature, be rebutted. In any case, admissibility is not synonymous with credibility. 18 As noted
before, there are serious doubts to respondent's credibility. Moreover, even if admitted as
evidence, said testimony merely tended to show that the missing spouse had chosen not to
communicate with their common acquaintances, and not that she was dead.

Respondent testified that immediately after receiving his mother's letter sometime in
January 1983, he cut short his employment contract to return to San Jose, Antique. However,
he did not explain the delay of nine (9) months from January 1983, when he allegedly asked
leave from his captain, to November 1983 when be finally reached San Jose. Respondent,
moreover, claimed he married Janet Monica Parker without inquiring about her parents and
their place of residence. 19 Also, respondent failed to explain why he did not even try to get
the help of the police or other authorities in London and Liverpool in his effort to find his wife.
The circumstances of Janet Monica's departure and respondent's subsequent behavior make
it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one.

In Goitia v. Campos-Rueda, 20 the Court stressed that:

Page 4 of 67
. . . Marriage is an institution, the maintenance of which in its purity the public is deeply
interested. It is a relationship for life and the parties cannot terminate it at any shorter period
by virtue of any contract they make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of agreeing
that one of them leave the conjugal abode and never to return again, to circumvent the policy
of the laws on marriage. The Court notes that respondent even tried to have his marriage
annulled before the trial court in the same proceeding.

In In Re Szatraw, 22 the Court warned against such collusion between the parties when
they find it impossible to dissolve the marital bonds through existing legal means.
While the Court understands the need of respondent's young son, Gerry Nolasco, for
maternal care, still the requirements of the law must prevail. Since respondent failed to satisfy
the clear requirements of the law, his petition for a judicial declaration of presumptive death
must be denied. The law does not view marriage like an ordinary contract. Article 1 of the
Family Code emphasizes that.

. . . Marriage is a special contract of permanent union between a man and a woman entered
into in accordance with law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose nature, consequences, and
incidents are governed by law and not subject to stipulation, except that marriage settlements
may fix the property relations during the marriage within the limits provided by this Code.
(Emphasis supplied)

In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.
. . . the basic social institutions of marriage and the family in the preservation of which the
State bas the strongest interest; the public policy here involved is of the most fundamental
kind. In Article II, Section 12 of the Constitution there is set forth the following basic state
policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as
a basic autonomous social institution. . . .

The same sentiment bas been expressed in the Family Code of the Philippines in Article 149:

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

In fine, respondent failed to establish that he had the well-founded belief required by
law that his absent wife was already dead that would sustain the issuance of a court order
declaring Janet Monica Parker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming
the trial court's decision declaring Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and SET ASIDE. Costs against
respondent.

Page 5 of 67
[G.R. No. 164041. July 29, 2005]
ROSENDO ALBA, minor, represented by his mother and natural guardian, Armi A. Alba,
and ARMI A. ALBA, in her personal capacity, petitioners, vs. COURT OF
APPEALS and ROSENDO C. HERRERA, respondents.

Assailed in this petition for certiorari[1] are the February 27, 2004 decision[2] and the
May 14, 2004 resolution[3] of the Court of Appeals in CA-G.R. SP No. 61883, which dismissed
petitioners original action for annulment of judgment[4] of the Regional Trial Court of Manila,
Branch 37, and denied the motion for reconsideration, respectively.

The antecedent facts show that on October 21, 1996, private respondent Rosendo C.
Herrera filed a petition[5] for cancellation of the following entries in the birth certificate of
Rosendo Alba Herrera, Jr., to wit: (1) the surname Herrera as appended to the name of said
child; (2) the reference to private respondent as the father of Rosendo Alba Herrera, Jr.; and
(3) the alleged marriage of private respondent to the childs mother, Armi A. Alba (Armi) on
August 4, 1982 in Mandaluyong City. He claimed that the challenged entries are false and
that it was only sometime in September 1996 that he learned of the existence of said birth
certificate.

Private respondent alleged that he married only once, i.e., on June 28, 1965 with
Ezperanza C. Santos and never contracted marriage with Armi nor fathered Rosendo Alba
Herrera, Jr. In support thereof, he presented certifications from the Civil Registrar of
Mandaluyong City[6] and the National Statistics Office,[7] both stating that they have no record
of marriage between private respondent and Armi.

On November 12, 1996, private respondent filed an amended petition,[8] impleading

Armi and all the persons who have or claim any interest in th[e] petition.[9]

On November 27, 1996, the trial court issued an Order setting the petition for hearing
on January 24, 1997, and directed the publication and service of said order to Armi at her
address appearing in the birth certificate which is No. 418 Arquiza St., Ermita, Manila, and to
the Civil Registrar of the City of Manila and the Solicitor General. The full text of the order,
reads:

In a verified Amended Petition for Correction of Entry, the Petitioner prays, inter alia,
that the following entries appearing in the subject Certificate of Live Birth be deleted:
1. All informations having reference to him as the father of the child mentioned therein;
2. The surname Herrera appended to the childs name;
3. His alleged marriage with the natural mother of the child.

Finding the Petition to be sufficient in form and substance, let the Petition be set for
hearing on January 24, 1997 at nine oclock in the morning before this Branch at Rooms
447-449, Fourth Floor, Manila City Hall. All interested parties are hereby notified of the said
hearing and are ordered to show cause why the Petition should not be granted.

Let a copy of this Order be published at the expense of the Petitioner, once a week for
three (3) consecutive weeks, in a newspaper of general circulation in the City of Manila, and
raffled pursuant to P.D. 1079.
Page 6 of 67
 Furnish the Office of the Solicitor General and the Office of the Local Civil Registrar of
the City of Manila with copies of the Petition and of this Order.
Let the same be likewise furnished the Private Respondent Armi Alba Herrera at the address
indicated in the subject Certificate of Live Birth.
SO ORDERED.[10]

On January 13, 1997, before the scheduled January 24, 1997 hearing, the trial court
issued an Amended Order[11] with substantially the same contents, except that the hearing
was re-scheduled to February 26, 1997. A copy of said Amended Order was published in
Today, a newspaper of general circulation in Manila in its January 20, 27, and February 3,
1997 issues. Copies thereof were also sent to Armi at No. 418 Arquiza St., Ermita, Manila, on
January 17, 1997, the Local Civil Registrar of Manila and the Solicitor General.

At the scheduled hearing on February 26, 1997, the counsel from the Office of the
Solicitor General appeared but filed no opposition to the petition. Armi, on the other hand was
not present. The return of the notice sent to her had the following notation:

This is to certify that on January 17, 1997, the undersigned [process server] personally served
a copy of the Amended Order in Sp. Proc. No. 96-80512 dated January 13, 1997 to the
private respondent, Armi Alba Herrera at 418 Arquiza St., Ermita, Manila, but failed and
unavailing for reason that (sic), private respondent is no longer residing at said given
address.[12]

On April 1, 1997, the court a quo rendered a decision which became final and executory on
June 2, 1997.[13] The dispositive portion thereof, states:

ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is
hereby rendered ordering the correction of the entries in the Certificate of Live Birth of
Rosendo Alba Herrera, Jr., in such a way that the entry under the name of the child, the
surname Herrera, Jr.[,] is ordered deleted, and the child shall be known as ROSENDO ALBA;
and that the entry under the date and place of marriage, the date August 4, 1982,
Mandaluyong, MM is likewise ordered deleted or cancelled.

Let a copy of this Decision be furnished the Local Civil Registrar of Manila for proper
correction and entry.
SO ORDERED.[14]

Private respondent filed a motion[15] for amendment of the decretal portion of the
decision to include the cancellation of all entries having reference to him as the father of
petitioner minor. This was granted in the August 11, 1997 order of the trial court as follows:
ACCORDINGLY, and pursuant to Rule 108 of the Revised Rules of Court, judgment is hereby
rendered ordering the correction of the entries in the Certificate of Live Birth of Rosendo Alba
Herrera, Jr., in such a way that the entries under the name of the child, the surname Herrera,
Jr., and the name of the father Rosendo Caparas Herrera are ordered deleted, and the child
shall be known as ROSENDO ALBA; and the entry under the date and place of marriage, the
date August 4, 1982, Mandaluyong, MM is likewise ordered deleted or cancelled.

Page 7 of 67
SO ORDERED.[16]

On November 24, 2000, Armi and petitioner minor filed a petition for annulment of
judgment before the Court of Appeals on the grounds of extrinsic fraud and lack of jurisdiction
over their person. She allegedly came to know of the decision of the trial court only on
February 26, 1998, when San Beda College, where her son was enrolled as a high school
student, was furnished by private respondent with a copy of a court order directing the change
of petitioner minors surname from Herrera to Alba.

Armi averred that private respondent was aware that her address is at Unit 302 Plaza
Towers Condominium, 1175 Lorenzo Guerrero St., Ermita, Manila, because such was her
residence when she and private respondent cohabited as husband and wife from 1982 to
1988; and her abode when petitioner minor was born on March 8, 1985. Even after their
separation, private respondent continued to give support to their son until 1998; and that Unit
302 was conveyed to her by private respondent on June 14, 1991 as part of his support to
petitioner minor. According to Armi, her address i.e., No. 418 Arquiza St., Ermita, Manila, as
appearing in the birth certificate of their son, was entered in said certificate through the
erroneous information given by her sister, Corazon Espiritu. She stressed that private
respondent knew all along that No. 418 Arquiza St., is the residence of her sister and that he
deliberately caused the service of notice therein to prevent her from opposing the petition.

In his answer, private respondent denied paternity of petitioner minor and his purported
cohabitation with Armi. He branded the allegations of the latter as false statements coming
from a polluted source.[17]

On February 27, 2004, the Court of Appeals dismissed the petition holding, among
others, that petitioner failed to prove that private respondent employed fraud and purposely
deprived them of their day in court. It further held that as an illegitimate child, petitioner minor
should bear the surname of his mother.[18] Petitioners filed a motion for reconsideration but
was denied. Hence, the instant petition.

Under Section 2, Rule 47 of the 1997 Revised Rules of Civil Procedure, judgments
may be annulled on the grounds of lack of jurisdiction and extrinsic fraud.[19]

Whether or not the trial court acquired jurisdiction over the person of petitioner and her
minor child depends on the nature of private respondents action, that is, in personam, in rem
or quasi in rem. An action in personam is lodged against a person based on personal liability;
an action in rem is directed against the thing itself instead of the person; while an action quasi
in rem names a person as defendant, but its object is to subject that persons interest in a
property to a corresponding lien or obligation.[20]

Hence, petitions directed against the thing itself or the res,[21] which concerns the
status of a person,[22] like a petition for adoption,[23] annulment of marriage,[24] or correction of
entries in the birth certificate,[25] as in the instant case, are actions in rem.

In an action in personam, jurisdiction over the person of the defendant is necessary for
the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a prerequisite to confer jurisdiction on the court,
Page 8 of 67
provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either
(a) by the seizure of the property under legal process, whereby it is brought into actual
custody of the law; or (b) as a result of the institution of legal proceedings, in which the power
of the court is recognized and made effective.[26] The service of summons or notice to the
defendant is not for the purpose of vesting the court with jurisdiction but merely for satisfying
the due process requirements.[27]

In the case at bar, the filing with the trial court of the petition for cancellation vested the
latter jurisdiction over the res. Substantial corrections or cancellations of entries in civil
registry records affecting the status or legitimacy of a person may be effected through the
institution of a petition under Rule 108 of the Revised Rules of Court, with the proper Regional
Trial Court.[28] Being a proceeding in rem, acquisition of jurisdiction over the person of
petitioner is therefore not required in the present case. It is enough that the trial court is
vested with jurisdiction over the subject matter.

The service of the order at No. 418 Arquiza St., Ermita, Manila and the publication
thereof in a newspaper of general circulation in Manila, sufficiently complied with the
requirement of due process, the essence of which is an opportunity to be heard. Said address
appeared in the birth certificate of petitioner minor as the residence of Armi. Considering that
the Certificate of Birth bears her signature, the entries appearing therein are presumed to
have been entered with her approval. Moreover, the publication of the order is a notice to all
indispensable parties, including Armi and petitioner minor, which binds the whole world to the
judgment that may be rendered in the petition. An in rem proceeding is validated essentially
through publication.[29] The absence of personal service of the order to Armi was therefore
cured by the trial courts compliance with Section 4, Rule 108, which requires notice by
publication, thus:

SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix
the time and place for the hearing of the same, and cause reasonable notice thereof to be
given to the persons named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a newspaper of general circulation
in the province.

In Barco v. Court of Appeals, the trial court granted a petition for correction/change of
entries in a minors birth certificate to reflect the name of the minors real father as well as to
effect the corresponding change of her surname. In seeking to annul said decision, the other
children of the alleged father claimed that they are indispensable parties to the petition for
correction, hence, the failure to implead them is a ground to annul the decision of the trial
court. The Court of Appeals denied the petition which was sustained by this Court on the
ground, inter alia, that while petitioner is indeed an indispensable party, the failure to implead
her was cured by the publication of the order of hearing.

Thus Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her
interest was affected by the petition for correction, as any judicial determination that June was
the daughter of Armando would affect her wards share in the estate of her father. It cannot be
established whether Nadina knew of Mary Joys existence at the time she filed the petition for
correction. Indeed, doubt may always be cast as to whether a petitioner under Rule 108
would know of all the parties whose interests may be affected by the granting of a petition.
Page 9 of 67
For example, a petitioner cannot be presumed to be aware of all the legitimate or illegitimate
offsprings of his/her spouse or paramour. The fact that Nadina amended her petition to
implead Francisco and Gustilo indicates earnest effort on her part to comply with Section 3 as
quoted above.

Yet, even though Barco was not impleaded in the petition, the Court of Appeals
correctly pointed out that the defect was cured by compliance with Section 4, Rule 108, which
requires notice by publication, thus:

Section 4. Upon the filing of the petition, the court shall, by order, fix the time and place
for the hearing of the same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be published once a week for
three (3) consecutive weeks in a newspaper of general circulation in the province.
The purpose precisely of Section 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition. The sweep of the decision would cover even
parties who should have been impleaded under Section 3, Rule 108, but were
inadvertently left out. The Court of Appeals correctly noted:

The publication being ordered was in compliance with, and borne out by the Order of
January 7, 1985. The actual publication of the September 22, 1983 Order, conferred
jurisdiction upon the respondent court to try and decide the case. While nobody appeared to
oppose the instant petition during the December 6, 1984 hearing, that did not divest the court
from its jurisdiction over the case and of its authority to continue trying the case. For, the rule
is well-settled, that jurisdiction, once acquired continues until termination of the case.

Verily, a petition for correction is an action in rem, an action against a thing and not
against a person. The decision on the petition binds not only the parties thereto but the whole
world. An in rem proceeding is validated essentially through publication. Publication is notice
to the whole world that the proceeding has for its object to bar indefinitely all who might be
minded to make an objection of any sort against the right sought to be established. It is the
publication of such notice that brings in the whole world as a party in the case and vests the
court with jurisdiction to hear and decide it.[30]

Furthermore, extrinsic fraud, which was private respondents alleged concealment of

Armis present address, was not proven. Extrinsic fraud exists when there is a fraudulent act
committed by the prevailing party outside of the trial of the case, whereby the defeated party
was prevented from presenting fully his side of the case by fraud or deception practiced on
him by the prevailing party. Here, Armi contended that private respondent is aware of her
present address because they lived together as husband and wife in the condominium unit
from 1982 to 1988 and because private respondent continued to give support to their son until
1998. To prove her claim, she presented (1) private respondents title over the condominium
unit; (2) receipts allegedly issued to private respondent for payment of homeowners or
association dues; (2) a photocopy of a January 14, 1991 deed of sale of the subject unit in
favor of Armi; and (3) the subsequent title issued to the latter. However, these documents only
tend to prove private respondents previous ownership of the unit and the subsequent transfer
thereof to Armi, but not the claimed live-in relationship of the parties. Neither does the sale
prove that the conveyance of the unit was part of private respondents support to petitioner

Page 10 of 67
minor. Indeed, intimate relationships and family relations cannot be inferred from what
appears to be an ordinary business transaction.

Although the January 14, 1991 deed of sale[31] stated that Armi resides at 1175 L.
Guerrero St., Ermita, Manila, the same is not sufficient to prove that private respondent has
knowledge of Armis address because the former objected to the offer of the deed for being a
mere photocopy.[32] The counsel for petitioners even admitted that they do not have the
original of the deed and that per certification of the Clerk of Court, the Notary Public who
notarized the deed of sale did not submit a copy of the notarized document as required by the
rules.[33] The deed cannot thus be the basis of ascribing knowledge of Armis address to
private respondent inasmuch as the authenticity thereof was neither admitted by private
respondent nor proven by petitioners.

While Armi presented the alleged love letters/notes from private respondent, they were
only attached as annexes to the petition and not formally offered as evidence before the Court
of Appeals. More importantly, said letters/notes do not have probative value because they
were mere photocopies and never proven to be an authentic writing of private respondent. In
the same vein, the affidavits[34] of Armi and her sister, Corazon Espiritu, are of no evidentiary
weight. The basic rule of evidence is that unless the affiants themselves are placed on the
witness stand to testify on their affidavits, such affidavits must be rejected for being hearsay.
Stated differently, the declarants of written statements pertaining to disputed facts must be
presented at the trial for cross-examination.[35] Inasmuch as Armi and her sister were not
presented before the Court of Appeals to affirm the veracity of their affidavits, the same are
considered hearsay and without probative value.

Ei incumbit probotio qui dicit, non qui negat. He who asserts, not he who denies, must
prove.[36] Armis claim that private respondent is aware of her present address is anchored on
the assertion of a live-in relationship and support to her son. Since the evidence presented by
Armi is not sufficient to prove the purported cohabitation and support, it follows that private
respondents knowledge of Armis address was likewise not proven. Thus, private respondent
could not have deliberately concealed from the court that which was not shown to be known
to him. The Court of Appeals therefore correctly dismissed the petition for annulment of
judgment on the ground of failure to establish extrinsic fraud.

The proper remedy of a party aggrieved by a decision of the Court of Appeals in an

action to annul a judgment of a Regional Trial Court is a petition for review on certiorari under
Rule 45 of the Revised Rules of Civil Procedure, where only questions of law may be raised.
The resort of petitioner to the instant civil action for certiorari under Rule 65 is therefore
erroneous. The special civil action of certiorari will not be allowed as a substitute for failure to
timely file a petition for review under Rule 45, which should be instituted within 15 days[37]
from receipt of the assailed decision or resolution. The wrong choice of remedy thus provides
another reason to dismiss this petition.[38]

Finally, petitioner failed to establish the merits of her petition to annul the trial courts
decision. In an action for annulment of judgment, the petitioner must convince the court that
something may indeed be achieved should the assailed decision be annulled.[39] Under Article
176[40] of the Family Code as amended by Republic Act (RA) No. 9255, which took effect on
March 19, 2004, illegitimate children shall use the surname of their mother, unless their father
Page 11 of 67
recognizes their filiation, in which case they may bear the fathers surname. In Wang v. Cebu
Civil Registrar,[41] it was held that an illegitimate child whose filiation is not recognized by the
father, bears only a given name and his mothers surname. The name of the unrecognized
illegitimate child identifies him as such. It is only when said child is recognized that he may
use his fathers surname, reflecting his status as an acknowledged illegitimate child.

In the present case, it is clear from the allegations of Armi that petitioner minor is an
illegitimate child because she was never married to private respondent. Considering that the
latter strongly asserts that he is not the father of petitioner minor, the latter is therefore an
unrecognized illegitimate child. As such, he must bear the surname of his mother.
In sum, the substantive and procedural aspects of the instant controversy do not warrant
the annulment of the trial courts decision.

WHEREFORE, the petition is DISMISSED. The February 27, 2004 decision and the
May 14, 2004 resolution of the Court of Appeals in CA-G.R. SP No. 61883 are AFFIRMED.

[G.R. No. 134625. August 31, 1999]

UP, petitioners, vs. HON. COURT OF APPEALS and AROKIASWAMY WILLIAM
MARGARET CELINE, respondents.

For review before the Court is the decision of the Court of Appeals[if !supportFootnotes][1][endif] in
CA-G.R. SP No. 42788, dated December 16, 1997, which granted private respondents
application for a writ of mandatory injunction, and its resolution, dated July 13, 1998, denying
petitioners motion for reconsideration.

The antecedent facts are as follows:

Private respondent Arokiaswamy William Margaret Celine is a citizen of India and holder
of a Philippine visitors visa. Sometime in April 1988, she enrolled in the doctoral program in
Anthropology of the University of the Philippines College of Social Sciences and Philosophy
(CSSP) in Diliman, Quezon City.

After completing the units of course work required in her doctoral program, private
respondent went on a two-year leave of absence to work as Tamil Programme Producer of
the Vatican Radio in the Vatican and as General Office Assistant at the International Right to
Life Federation in Rome. She returned to the Philippines in July 1991 to work on her
dissertation entitled, Tamil Influences in Malaysia, Indonesia and the Philippines.

On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P. Department of
Anthropology, wrote a letter to Dr. Maria Serena Diokno, CSSP Associate Dean and Graduate
Program Director, certifying that private respondent had finished her dissertation and was
ready for her oral defense. Dr. Rolda suggested that the oral defense be held on January 6,
1993 but, in a letter, dated February 2, 1993, Dr. Serena Diokno rescheduled it on February 5,
1993. Named as members of the dissertation panel were Drs. E. Arsenio Manuel, Serafin
Quiason, Sri Skandarajah, Noel Teodoro, and Isagani Medina, the last included as the deans
representative.

After going over private respondents dissertation, Dr. Medina informed CSSP Dean
Consuelo Joaquin-Paz that there was a portion in private respondents dissertation that was
Page 12 of 67
lifted, without proper acknowledgment, from Balfours Cyclopaedia of India and Eastern and
Southern Asia (1967), volume I, pp. 392-401 (3 v., Edward Balfour 1885 reprint) and from
John Edyes article entitled Description of the Various Classes of Vessels Constructed and
Employed by the Natives of the Coasts of Coromandel, Malabar, and the Island of Ceylon for
their Coasting Navigation in the Royal Asiatic Society of Great Britain and Ireland Journal,
volume I, pp. 1-14 (1833).[if !supportFootnotes][2][endif]

Nonetheless, private respondent was allowed to defend her dissertation on February 5,

1993. Four (4) out of the five (5) panelists gave private respondent a passing mark for her oral
defense by affixing their signatures on the approval form. These were Drs. Manuel, Quiason,
Skandarajah, and Teodoro. Dr. Quiason added the following qualification to his signature:
Ms. Arokiaswamy must incorporate the suggestions I made during the successful defense of
her Ph.D. thesis.[if !supportFootnotes][3][endif]
Dr. Medina did not sign the approval form but added the following comment:
Pipirmahan ko ang pagsang-ayon/di pagsang-ayon kapag nakita ko na ang mga revisions ng
dissertation.[if !supportFootnotes][4][endif]
Dr. Teodoro added the following note to his signature:
Kailangang isagawa ang mga mahahalagang pagbabago at ipakita sa panel ang bound
copies.[if !supportFootnotes][5][endif]
In a letter, dated March 5, 1993 and addressed to her thesis adviser, Dr. Manuel, private
respondent requested a meeting with the panel members, especially Dr. Medina, to discuss
the amendments suggested by the panel members during the oral defense. The meeting was
held at the deans office with Dean Paz, private respondent, and a majority of the defense
panel present.[if !supportFootnotes][6][endif] During the meeting, Dean Paz remarked that a majority
vote of the panel members was sufficient for a student to pass, notwithstanding the failure to
obtain the consent of the Deans representative.

On March 24, 1993, the CSSP College Faculty Assembly approved private respondents
graduation pending submission of final copies of her dissertation.

In April 1993, private respondent submitted copies of her supposedly revised

dissertation to Drs. Manuel, Skandarajah, and Quiason, who expressed their assent to the
dissertation. Petitioners maintain, however, that private respondent did not incorporate the
revisions suggested by the panel members in the final copies of her dissertation.

Private respondent left a copy of her dissertation in Dr. Teodoros office on April 15, 1993
and proceeded to submit her dissertation to the CSSP without the approvals of Dr. Medina
and Dr. Teodoro, relying on Dean Pazs March 5, 1993 statement.

Dr. Teodoro later indicated his disapproval, while Dr. Medina did not sign the approval
form.[if !supportFootnotes][7][endif]

Dean Paz then accepted private respondents dissertation in partial fulfillment of the
course requirements for the doctorate degree in Anthropology.

In a letter to Dean Paz, dated April 17, 1993, private respondent expressed concern
over matters related to her dissertation. She sought to explain why the signature of Dr.
Medina was not affixed to the revision approval form. Private respondent said that since she
Page 13 of 67
already had the approval of a majority of the panel members, she no longer showed her
dissertation to Dr. Medina nor tried to obtain the latters signature on the revision approval
form. She likewise expressed her disappointment over the CSSP administration and charged
Drs. Diokno and Medina with maliciously working for the disapproval of her dissertation, and
further warned Dean Paz against encouraging perfidious acts against her.

On April 17, 1993, the University Council met to approve the list of candidates for
graduation for the second semester of school year 1992-1993. The list, which was endorsed
to the Board of Regents for final approval, included private respondents name.

On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice Chancellor for
Academic Affairs, requesting the exclusion of private respondents name from the list of
candidates for graduation, pending clarification of the problems regarding her dissertation.

Her letter reads:[if !supportFootnotes][8][endif]

Abril 21, 1993
Dr. Milagros Ibe
Vice Chancellor for Academic Affairs
Unibersidad ng Pilipinas
Quezon Hall, Diliman, Q.C.
Mahal na Dr. Ibe,
Mahigpit ko pong hinihiling na hwag munang isama ang pangalan ni Ms. Arokiaswam[y]
William Margaret Celine sa listahan ng mga bibigyan ng degri na Ph.D. (Anthropology)
ngayon[g] semester, dahil sa mga malubhang bintang nya sa ilang myembro ng panel para sa
oral defense ng disertasyon nya at sa mga akusasyon ng ilan sa mga ito sa kanya.

Naniniwala po kami na dapat mailinaw muna ang ilang bagay bago makonfer ang degri kay
Ms. Arokiaswam[y]. Kelangan po ito para mapangalagaan ang istandard ng pinakamataas na
degree ng Unibersidad.

(Sgd.)
CONSUELO JOAQUIN-PAZ, Ph.D.
Dekano
Apparently, however, Dean Pazs letter did not reach the Board of Regents on time,
because the next day, April 22, 1993, the Board approved the University Councils
recommendation for the graduation of qualified students, including private respondent. Two
days later, on April 24, 1993, private respondent graduated with the degree of Doctor of
Philosophy in Anthropology.

On the other hand, Dean Paz also wrote a letter to private respondent, dated April 21,
1993, that she would not be granted an academic clearance unless she substantiated the
accusations contained in her letter dated April 17, 1993.

In her letter, dated April 27, 1993, private respondent claimed that Dr. Medinas
unfavorable attitude towards her dissertation was a reaction to her failure to include him and
Dr. Francisco in the list of panel members; that she made the revisions proposed by Drs.
Medina and Teodoro in the revised draft of her dissertation; and that Dr. Diokno was guilty of
harassment.
Page 14 of 67
 In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina formally charged
private respondent with plagiarism and recommended that the doctorate granted to her be
withdrawn.[if !supportFootnotes][9][endif]

On May 13, 1993, Dean Paz formed an ad hoc committee, composed of faculty
members from various disciplines and chaired by Dr. Eva Duka-Ventura, to investigate the
plagiarism charge against private respondent. Meanwhile, she recommended to U.P. Diliman
Chancellor, Dr. Emerlinda Roman, that the Ph.D. degree conferred on private respondent be
withdrawn.[if !supportFootnotes][10][endif]

In a letter, dated June 7, 1993, Dean Paz informed private respondent of the charges
against her.[if !supportFootnotes][11][endif]

On June 15, 1993, the Ventura Committee submitted a report to Dean Paz, finding at
least ninety (90) instances or portions in private respondents thesis which were lifted from
sources without proper or due acknowledgment.

On July 28, 1993, the CSSP College Assembly unanimously approved the
recommendation to withdraw private respondents doctorate degree and forwarded its
recommendation to the University Council. The University Council, in turn, approved and
endorsed the same recommendation to the Board of Regents on August 16, 1993.

On September 6, 1993, the Board of Regents deferred action on the recommendation to

study the legal implications of its approval.[if !supportFootnotes][12][endif]

Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman Chancellor Emerlinda
Roman summoned private respondent to a meeting on the same day and asked her to submit
her written explanation to the charges against her.

During the meeting, Chancellor Roman informed private respondent of the charges and
provided her a copy of the findings of the investigating committee.[if !supportFootnotes][13][endif]
Private respondent, on the other hand, submitted her written explanation in a letter dated
September 25, 1993.

Another meeting was held on October 8, 1993 between Chancellor Roman and private
respondent to discuss her answer to the charges. A third meeting was scheduled on October
27, 1993 but private respondent did not attend it, alleging that the Board of Regents had
already decided her case before she could be fully heard.

On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier, U.P. President,
alleging that some members of the U.P. administration were playing politics in her case.[if !
supportFootnotes][14][endif] She sent another letter, dated December 14, 1993, to Dr. Armand Fabella,

Chairman of the Board of Regents, complaining that she had not been afforded due process
and claiming that U.P. could no longer withdraw her degree since her dissertation had already
been accepted by the CSSP.[if !supportFootnotes][15][endif]

Page 15 of 67
 Meanwhile, the U.P. Office of Legal Services justified the position of the University
Council in its report to the Board of Regents. The Board of Regents, in its February 1, 1994
and March 24, 1994 meetings, further deferred action thereon.

On July 11, 1994, private respondent sent a letter to the Board of Regents requesting a
re-investigation of her case. She stressed that under the Rules and Regulations on Student
Conduct and Discipline, it was the student disciplinary tribunal which had jurisdiction to decide
cases of dishonesty and that the withdrawal of a degree already conferred was not one of the
authorized penalties which the student disciplinary tribunal could impose.

On July 28, 1994, the Board of Regents decided to release private respondents
transcript of grades without annotation although it showed that private respondent passed her
dissertation with 12 units of credit.

On August 17, 1994, Chancellor Roger Posadas issued Administrative Order No. 94-94
constituting a special committee composed of senior faculty members from the U.P. units
outside Diliman to review the University Councils recommendation to withdraw private
respondents degree. With the approval of the Board of Regents and the U.P. Diliman
Executive Committee, Posadas created a five-man committee, chaired by Dr. Paulino B.
Zafaralla, with members selected from a list of nominees screened by Dr. Emerenciana
Arcellana, then a member of the Board of Regents. On August 31, 1994, the members of the
Zafaralla committee and private respondent met at U.P. Los Baos.

Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to private
respondent a copy of her transcript of grades and certificate of graduation.

In a letter to Chancellor Posadas, dated September 1, 1994, private respondent

requested that the Zafaralla committee be provided with copies of the U.P. Charter (Act No.
1870), the U.P. Rules and Regulations on Student Conduct and Discipline, her letter-response
to Chancellor Roman, dated September 25, 1993, as well as all her other communications.

On September 19, 1994, Chancellor Posadas obtained the Zafaralla Committees report,
signed by its chairman, recommending the withdrawal of private respondents doctorate
degree. The report stated:[if !supportFootnotes][16][endif]

After going through all the pertinent documents of the case and interviewing Ms. Arokiaswamy
William, the following facts were established:

1. There is overwhelming evidence of massive lifting from a published source word for word
and, at times, paragraph by paragraph without any acknowledgment of the source, even by a
mere quotation mark. At least 22 counts of such documented liftings were identified by the
Committee. These form part of the approximately ninety (90) instances found by the
Committee created by the Dean of the College and subsequently verified as correct by the
Special Committee. These instances involved the following forms of intellectual dishonesty:
direct lifting/copying without acknowledgment, full/partial lifting with improper documentation
and substitution of terms or words (e.g., Tamil in place of Sanskrit, Tamilization in place of
Indianization) from an acknowledged source in support of her thesis (attached herewith is a
copy of the documents for reference); and
Page 16 of 67
2. Ms. Arokiaswamy William herself admits of being guilty of the allegation of plagiarism. Fact
is, she informed the Special Committee that she had been admitting having lifted several
portions in her dissertation from various sources since the beginning.

In view of the overwhelming proof of massive lifting and also on the admission of Ms.
Arokiaswamy William that she indeed plagiarized, the Committee strongly supports the
recommendation of the U.P. Diliman Council to withdraw the doctoral degree of Ms. Margaret
Celine Arokiaswamy William.

On the basis of the report, the University Council, on September 24, 1994,
recommended to the Board of Regents that private respondent be barred in the future from
admission to the University either as a student or as an employee.

On January 4, 1995, the secretary of the Board of Regents sent private respondent the
following letter:[if !supportFootnotes][17][endif]

4 January 1995
Ms. Margaret Celine Arokiaswamy William
Department of Anthropology
College of Social Sciences and Philosophy
U.P. Diliman, Quezon City

Dear Ms. Arokiaswamy William:

This is to officially inform you about the action taken by the Board of Regents at its 1081st
and 1082nd meetings held last 17 November and 16 December 1994 regarding your case,
the excerpts from the minutes of which are attached herewith.
Please be informed that the members present at the 1081st BOR meeting on 17 November
1994 resolved, by a majority decision, to withdraw your Ph.D. degree as recommended by the
U.P. Diliman University Council and as concurred with by the External Review Panel
composed of senior faculty from U.P. Los Baos and U.P. Manila. These faculty members were
chosen by lot from names submitted by the University Councils of U.P. Los Baos and U.P.
Manila.

In reply to your 14 December 1994 letter requesting that you be given a good lawyer by the
Board, the Board, at its 1082nd meeting on 16 December 1994, suggested that you direct
your request to the Office of Legal Aid, College of Law, U.P. Diliman.

Sincerely yours,

(Sgd.)
VIVENCIO R. JOSE
Secretary of the University
and of the Board of Regents

On January 18, 1995, private respondent wrote a letter to Commissioner Sedfrey

Ordoez, Chairman of the Commission on Human Rights, asking the commissions
Page 17 of 67
intervention.[if !supportFootnotes][18][endif] In a letter, dated February 14, 1995, to Secretary Ricardo
Gloria, Chairman of the Board of Regents, she asked for a reinvestigation of her case. She
also sought an audience with the Board of Regents and/or the U.P. President, which request
was denied by President Javier, in a letter dated June 2, 1995.

On August 10, 1995, private respondent then filed a petition for mandamus with a prayer
for a writ of preliminary mandatory injunction and damages, which was docketed as Civil
Case No. Q-95-24690 and assigned to Branch 81 of the Regional Trial Court of Quezon City.[if
!supportFootnotes][19][endif] She alleged that petitioners had unlawfully withdrawn her degree without

justification and without affording her procedural due process. She prayed that petitioners be
ordered to restore her degree and to pay her P500,000.00 as moral and exemplary damages
and P1,500,000.00 as compensation for lost earnings.

On August 6, 1996, the trial court, Branch 227, rendered a decision dismissing the
petition for mandamus for lack of merit.[if !supportFootnotes][20][endif] Private respondent appealed to
the Court of Appeals, which on December 16, 1997, reversed the lower court. The dispositive
portion of the appellate courts decision reads:[if !supportFootnotes][21][endif]
WHEREFORE, the decision of the court a quo is hereby reversed and set aside.
Respondents are ordered to restore to petitioner her degree of Ph.D. in Anthropology.
No pronouncement as to costs.
SO ORDERED.

Hence, this petition. Petitioners contend:

I
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE WRIT
OF MANDAMUS AND ORDERING PETITIONERS TO RESTORE RESPONDENTS
DOCTORAL DEGREE.
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE
DOCTORAL DEGREE GIVEN RESPONDENT BY U.P. CANNOT BE RECALLED WITHOUT
VIOLATING HER RIGHT TO ENJOYMENT OF INTELLECTUAL PROPERTY AND TO
JUSTICE AND EQUITY.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN DEPRIVING
PETITIONERS OF THEIR RIGHT TO SUBSTANTIVE DUE PROCESS.[if !supportFootnotes][22][endif]
Petitioners argue that private respondent failed to show that she had been unlawfully
excluded from the use and enjoyment of a right or office to which she is entitled so as to
justify the issuance of the writ of mandamus. They also contend that she failed to prove that
the restoration of her degree is a ministerial duty of U.P. or that the withdrawal of the degree
violated her right to the enjoyment of intellectual property.

On the other hand, private respondent, unassisted by counsel, argue that petitioners
acted arbitrarily and with grave abuse of discretion in withdrawing her degree even prior to
verifying the truth of the plagiarism charge against her; and that as her answer to the charges
had not been forwarded to the members of the investigating committees, she was deprived of
the opportunity to comment or refute their findings.

Page 18 of 67
 In addition, private respondent maintains that petitioners are estopped from withdrawing
her doctorate degree; that petitioners acted contrary to 9 of the U.P. Charter and the U.P.
Rules and Regulations on Student Conduct and Discipline of the University, which according
to her, does not authorize the withdrawal of a degree as a penalty for erring students; and that
only the college committee or the student disciplinary tribunal may decide disciplinary cases,
whose report must be signed by a majority of its members.

We find petitioners contention to be meritorious.

Mandamus is a writ commanding a tribunal, corporation, board or person to do the act

required to be done when it or he unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is entitled, there
being no other plain, speedy, and adequate remedy in the ordinary course of law.[if !
supportFootnotes][23][endif] In University of the Philippines Board of Regents v. Ligot-Telan,[if !
supportFootnotes][24][endif] this Court ruled that the writ was not available to restrain U.P. from the

exercise of its academic freedom. In that case, a student who was found guilty of dishonesty
and ordered suspended for one year by the Board of Regents, filed a petition for mandamus
and obtained from the lower court a temporary restraining order stopping U.P. from carrying
out the order of suspension. In setting aside the TRO and ordering the lower court to dismiss
the students petition, this Court said:

[T]he lower court gravely abused its discretion in issuing the writ of preliminary injunction of
May 29, 1993. The issuance of the said writ was based on the lower courts finding that the
implementation of the disciplinary sanction of suspension on Nadal would work injustice to the
petitioner as it would delay him in finishing his course, and consequently, in getting a decent
and good paying job. Sadly, such a ruling considers only the situation of Nadal without taking
into account the circumstances, clearly of his own making, which led him into such a
predicament. More importantly, it has completely disregarded the overriding issue of
academic freedom which provides more than ample justification for the imposition of a
disciplinary sanction upon an erring student of an institution of higher learning.

From the foregoing arguments, it is clear that the lower court should have restrained
itself from assuming jurisdiction over the petition filed by Nadal. Mandamus is never issued in
doubtful cases, a showing of a clear and certain right on the part of the petitioner being
required. It is of no avail against an official or government agency whose duty requires the
exercise of discretion or judgment.[if !supportFootnotes][25][endif]

In this case, the trial court dismissed private respondents petition precisely on grounds
of academic freedom but the Court of Appeals reversed holding that private respondent was
denied due process. It said:
It is worthy to note that during the proceedings taken by the College Assembly culminating in
its recommendation to the University Council for the withdrawal of petitioners Ph.D. degree,
petitioner was not given the chance to be heard until after the withdrawal of the degree was
consummated. Petitioners subsequent letters to the U.P. President proved unavailing.[if !
supportFootnotes][26][endif]

Page 19 of 67
 As the foregoing narration of facts in this case shows, however, various committees
had been formed to investigate the charge that private respondent had committed plagiarism
and, in all the investigations held, she was heard in her defense. Indeed, if any criticism may
be made of the university proceedings before private respondent was finally stripped of her
degree, it is that there were too many committee and individual investigations conducted,
although all resulted in a finding that private respondent committed dishonesty in submitting
her doctoral dissertation on the basis of which she was conferred the Ph.D. degree.

Indeed, in administrative proceedings, the essence of due process is simply the

opportunity to explain ones side of a controversy or a chance to seek reconsideration of the
action or ruling complained of.[if !supportFootnotes][27][endif] A party who has availed of the opportunity
to present his position cannot tenably claim to have been denied due process.[if !supportFootnotes]
[28][endif]

In this case, private respondent was informed in writing of the charges against her[if !
supportFootnotes][29][endif]
and afforded opportunities to refute them. She was asked to submit her
written explanation, which she forwarded on September 25, 1993.[if !supportFootnotes][30][endif]
Private respondent then met with the U.P. chancellor and the members of the Zafaralla
committee to discuss her case. In addition, she sent several letters to the U.P. authorities
explaining her position.[if !supportFootnotes][31][endif]

It is not tenable for private respondent to argue that she was entitled to have an
audience before the Board of Regents. Due process in an administrative context does not
require trial-type proceedings similar to those in the courts of justice.[if !supportFootnotes][32][endif] It is
noteworthy that the U.P. Rules do not require the attendance of persons whose cases are
included as items on the agenda of the Board of Regents.[if !supportFootnotes][33][endif]

Nor indeed was private respondent entitled to be furnished a copy of the report of the
Zafaralla committee as part of her right to due process. In Ateneo de Manila University v.
Capulong,[if !supportFootnotes][34][endif] we held:

Respondent students may not use the argument that since they were not accorded the
opportunity to see and examine the written statements which became the basis of petitioners
February 14, 1991 order, they were denied procedural due process. Granting that they were
denied such opportunity, the same may not be said to detract from the observance of due
process, for disciplinary cases involving students need not necessarily include the right to
cross examination. An administrative proceeding conducted to investigate students
participation in a hazing activity need not be clothed with the attributes of a judicial
proceeding. . .
In this case, in granting the writ of mandamus, the Court of Appeals held:

First. Petitioner graduated from the U.P. with a doctorate degree in Anthropology. After
graduation, the contact between U.P. and petitioner ceased. Petitioner is no longer within the
ambit of the disciplinary powers of the U.P. As a graduate, she is entitled to the right and
enjoyment of the degree she has earned. To recall the degree, after conferment, is not only
arbitrary, unreasonable, and an act of abuse, but a flagrant violation of petitioners right of
enjoyment to intellectual property.

Page 20 of 67
Second. Respondents aver that petitioners graduation was a mistake.
Unfortunately this mistake was arrived at after almost a year after graduation. Considering
that the members of the thesis panel, the College Faculty Assembly, and the U.P. Council are
all men and women of the highest intellectual acumen and integrity, as respondents
themselves aver, suspicion is aroused that the alleged mistake might not be the cause of
withdrawal but some other hidden agenda which respondents do not wish to reveal.

At any rate, We cannot countenance the plight the petitioner finds herself enmeshed in
as a consequence of the acts complained of. Justice and equity demand that this be rectified
by restoring the degree conferred to her after her compliance with the academic and other
related requirements.

Art. XIV, 5 (2) of the Constitution provides that [a]cademic freedom shall be enjoyed in
all institutions of higher learning. This is nothing new. The 1935 Constitution[if !supportFootnotes][35]
[endif] and the 1973 Constitution[if !supportFootnotes][36][endif] likewise provided for the academic

freedom or, more precisely, for the institutional autonomy of universities and institutions of
higher learning. As pointed out by this Court in Garcia v. Faculty Admission Committee,
Loyola School of Theology,[if !supportFootnotes][37][endif] it is a freedom granted to institutions of
higher learning which is thus given a wide sphere of authority certainly extending to the
choice of students. If such institution of higher learning can decide who can and who cannot
study in it, it certainly can also determine on whom it can confer the honor and distinction of
being its graduates.

Where it is shown that the conferment of an honor or distinction was obtained through
fraud, a university has the right to revoke or withdraw the honor or distinction it has thus
conferred. This freedom of a university does not terminate upon the graduation of a student,
as the Court of Appeals held. For it is precisely the graduation of such a student that is in
question. It is noteworthy that the investigation of private respondents case began before her
graduation. If she was able to join the graduation ceremonies on April 24, 1993, it was
because of too many investigations conducted before the Board of Regents finally decided
she should not have been allowed to graduate.

Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the
constitutional grant of academic freedom, to quote again from Garcia v. Faculty Admission
Committee, Loyola School of Theology, is not to be construed in a niggardly manner or in a
grudging fashion.

Under the U.P. Charter, the Board of Regents is the highest governing body of the
University of the Philippines.[if !supportFootnotes][38][endif] It has the power to confer degrees upon the
recommendation of the University Council.[if !supportFootnotes][39][endif] It follows that if the
conferment of a degree is founded on error or fraud, the Board of Regents is also
empowered, subject to the observance of due process, to withdraw what it has granted
without violating a students rights. An institution of higher learning cannot be powerless if it
discovers that an academic degree it has conferred is not rightfully deserved. Nothing can be
more objectionable than bestowing a universitys highest academic degree upon an individual
who has obtained the same through fraud or deceit. The pursuit of academic excellence is the
universitys concern. It should be empowered, as an act of self-defense, to take measures to
protect itself from serious threats to its integrity.
Page 21 of 67
While it is true that the students are entitled to the right to pursue their education, the USC as
an educational institution is also entitled to pursue its academic freedom and in the process
has the concomitant right to see to it that this freedom is not jeopardized.[if !supportFootnotes][40][endif]

In the case at bar, the Board of Regents determined, after due investigation conducted
by a committee composed of faculty members from different U.P. units, that private
respondent committed no less than ninety (90) instances of intellectual dishonesty in her
dissertation. The Board of Regents decision to withdraw private respondents doctorate was
based on documents on record including her admission that she committed the offense.[if !
supportFootnotes][41][endif]

On the other hand, private respondent was afforded the opportunity to be heard and
explain her side but failed to refute the charges of plagiarism against her. Her only claim is
that her responses to the charges against her were not considered by the Board of Regents
before it rendered its decision. However, this claim was not proven. Accordingly, we must
presume regularity in the performance of official duties in the absence of proof to the contrary.
[if !supportFootnotes][42][endif]

Very much the opposite of the position of the Court of Appeals that, since private
respondent was no longer a student of the U.P., the latter was no longer within the ambit of
disciplinary powers of the U.P., is private respondents contention that it is the Student
Disciplinary Tribunal which had jurisdiction over her case because the charge is dishonesty.
Private respondent invokes 5 of the U.P. Rules and Regulations on Student Conduct and
Discipline which provides:
Jurisdiction. All cases involving discipline of students under these rules shall be subject to the
jurisdiction of the student disciplinary tribunal, except the following cases which shall fall
under the jurisdiction of the appropriate college or unit;
(a) Violation of college or unit rules and regulations by students of the college, or
(b) Misconduct committed by students of the college or unit within its classrooms or premises
or in the course of an official activity;
Provided, that regional units of the University shall have original jurisdiction over all cases
involving students of such units.
Private respondent argues that under 25 (a) of the said Rules and Regulations, dishonesty in
relation to ones studies (i.e., plagiarism) may be punished only with suspension for at least
one (1) year.
As the above-quoted provision of 5 of the Rules and Regulations indicates, the
jurisdiction of the student disciplinary tribunal extends only to disciplinary actions. In this case,
U.P. does not seek to discipline private respondent. Indeed, as the appellate court observed,
private respondent is no longer within the ambit of disciplinary powers of the U.P. Private
respondent cannot even be punished since, as she claims, the penalty for acts of dishonesty
in administrative disciplinary proceedings is suspension from the University for at least one
year. What U.P., through the Board of Regents, seeks to do is to protect its academic integrity
by withdrawing from private respondent an academic degree she obtained through fraud.
WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and the petition for
mandamus is hereby DISMISSED.

Page 22 of 67
G.R. No. 187456, June 02, 2014
ALABANG DEVELOPMENT CORPORATION , Petitioner, v. ALABANG HILLS VILLAGE
ASSOCIATION AND RAFAEL TINIO, Respondents.

Before the Court is a petition for review on certiorari assailing the Decision1 of the
Court of Appeals (CA), dated March 27, 2009, in CA-G.R. CV No. 88864.

The factual and procedural antecedents of the case, as summarized by the CA, are as
follows:

The case traces its roots to the Complaint for Injunction and Damages filed [with the
Regional Trial Court (RTC) of Muntinlupa City] on October 19, 2006 by [herein petitioner,
Alabang Development Corporation] ADC against [herein respondents, Alabang Hills Village
Association, Inc.] AHVAI and Rafael Tinio (Tinio), President of AHVAI. The Complaint alleged
that [petitioner] is the developer of Alabang Hills Village and still owns certain parcels of land
therein that are yet to be sold, as well as those considered open spaces that have not yet
been donated to [the] local government of Muntinlupa City or the Homeowner's Association.
Sometime in September [2006], ADC learned that AHVAI started the construction of a multi-
purpose hall and a swimming pool on one of the parcels of land still owned by ADC without
the latter's consent and approval, and that despite demand, AHVAI failed to desist from
constructing the said improvements. ADC thus prayed that an injunction be issued enjoining
defendants from constructing the multi-purpose hall and the swimming pool at the Alabang
Hills Village.

In its Answer With Compulsory Counterclaim, AHVAI denied ADC's asseverations and
claimed that the latter has no legal capacity to sue since its existence as a registered
corporate entity was revoked by the Securities and Exchange Commission (SEC) on May 26,
2003; that ADC has no cause of action because by law it is no longer the absolute owner but
is merely holding the property in question in trust for the benefit of AHVAI as beneficial owner
thereof; and that the subject lot is part of the open space required by law to be provided in the
subdivision. As counterclaim, it prayed that an order be issued divesting ADC of the title of the
property and declaring AHVAI as owner thereof; and that ADC be made liable for moral and
exemplary damages as well as attorney's fees.

Tinio filed his separate Answer With Compulsory Counterclaim, practically reiterating
the defenses of AHVAI.2

On January 4, 2007, the RTC of Muntinlupa City, Branch 276, rendered judgment
dismissing herein petitioner's complaint on the grounds (1) that the latter has no personality to
file the same; (2) that the subject property is a reserved area for the beneficial use of the
homeowners, as mandated by law; and (3) that the Housing and Land Use Regulatory Board
(HLURB), not the RTC, has exclusive jurisdiction over the dispute between petitioner and
respondents.3cralawred

Aggrieved, herein petitioner filed a Notice of Appeal of the RTC decision. Herein
respondent AHVAI, on the other hand, moved that it be allowed to prosecute its compulsory
counterclaim praying, for this purpose, that the RTC decision be amended accordingly.

Page 23 of 67
 In its Order dated February 20, 2007, the RTC approved petitioner's notice of appeal
but dismissed respondent AHVAIs counterclaim on the ground that it is dependent on
petitioner's complaint. Respondent AHVAI then filed an appeal with the CA.

In its assailed Decision dated March 27, 2009, the CA dismissed both appeals of
petitioner and respondent, and affirmed the decision of the RTC. With respect to petitioner,
the CA ruled that the RTC correctly dismissed petitioner's complaint as the same was filed
when petitioner was already defunct and, as such, it no longer had capacity to file the said
complaint. As regards, respondent AHVAIs counterclaim, the CA held that where there is no
claim against the [respondent], because [petitioner] is already inexistent and has no capacity
to sue, the counterclaim is improper and it must be dismissed, more so where the complaint is
dismissed at the instance of the [respondent].

Thus, the instant petition based on the following grounds:ChanRoblesVirtualawlibrary

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RELYING ON THE CASE

OF COLUMBIA PICTURES, INC. v. COURT OF APPEALS IN RESOLVING PETITIONER'S
LACK OF CAPACITY

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING LACK OF

CAPACITY OF THE PETITIONER IN FILING THE CASE CONTRARY TO THE EARLIER
RULINGS OF THIS HONORABLE COURT

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED TO

RESOLVE THE ISSUE THAT PETITIONER IS MANDATED TO CEDE PROPERTIES TO
RESPONDENT AHVAI4

Anent the first assigned error, the Court does not agree that the CA erred in relying on the
case of Columbia Pictures, Inc. v. Court of Appeals.5cralawred

The CA cited the case for the purpose of restating and distinguishing the jurisprudential
definition of the terms lack of capacity to sue and lack of personality to sue; and of
applying these definitions to the present case. Thus, the fact that, unlike in the instant case,
the corporations involved in the Columbia case were foreign corporations is of no moment.
The definition of the term lack of capacity to sue enunciated in the said case still applies to
the case at bar. Indeed, as held by this Court and as correctly cited by the CA in the case of
Columbia: [l]ack of legal capacity to sue means that the plaintiff is not in the exercise of his
civil rights, or does not have the necessary qualification to appear in the case, or does not
have the character or representation he claims[;] 'lack of capacity to sue' refers to a plaintiff's
general disability to sue, such as on account of minority, insanity, incompetence, lack of
juridical personality or any other general disqualifications of a party. ...6 In the instant case,
petitioner lacks capacity to sue because it no longer possesses juridical personality by reason
of its dissolution and lapse of the three-year grace period provided under Section 122 of the
Corporation Code, as will be discussed below.

Page 24 of 67
 With respect to the second assigned error, Section 122 of the Corporation Code
provides as follows:

SEC. 122. Corporate liquidation. Every corporation whose charter expires by its own
limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other
purposes is terminated in any other manner, shall nevertheless be continued as a body
corporate for three (3) years after the time when it would have been so dissolved, for the
purpose of prosecuting and defending suits by or against it and enabling it to settle and close
its affairs, to dispose of and convey its property and to distribute its assets, but not for the
purpose of continuing the business for which it was established.

At any time during said three (3) years, said corporation is authorized and empowered
to convey all of its property to trustees for the benefit of stockholders, members, creditors,
and other persons in interest. From and after any such conveyance by the corporation of its
property in trust for the benefit of its stockholders, members, creditors and others in interest,
all interest which the corporation had in the property terminates, the legal interest vests in the
trustees, and the beneficial interest in the stockholders, members, creditors or other persons
in interest.

Upon winding up of the corporate affairs, any asset distributable to any creditor or
stockholder or member who is unknown or cannot be found shall be escheated to the city or
municipality where such assets are located.

Except by decrease of capital stock and as otherwise allowed by this Code, no

corporation shall distribute any of its assets or property except upon lawful dissolution and
after payment of all its debts and liabilities.

This Court has held that:

It is to be noted that the time during which the corporation, through its own officers,
may conduct the liquidation of its assets and sue and be sued as a corporation is limited to
three years from the time the period of dissolution commences; but there is no time limit
within which the trustees must complete a liquidation placed in their hands. It is provided only
(Corp. Law, Sec. 78 [now Sec. 122]) that the conveyance to the trustees must be made within
the three-year period. It may be found impossible to complete the work of liquidation within
the three-year period or to reduce disputed claims to judgment. The authorities are to the
effect that suits by or against a corporation abate when it ceased to be an entity capable of
suing or being sued (7 R.C.L., Corps., par. 750); but trustees to whom the corporate assets
have been conveyed pursuant to the authority of Sec. 78 [now Sec. 122] may sue and be
sued as such in all matters connected with the liquidation...7

In the absence of trustees, this Court ruled, thus:ChanRoblesVirtualawlibrary

Still in the absence of a board of directors or trustees, those having any pecuniary interest
in the assets, including not only the shareholders but likewise the creditors of the corporation,
acting for and in its behalf, might make proper representations with the Securities and
Exchange Commission, which has primary and sufficiently broad jurisdiction in matters of this
nature, for working out a final settlement of the corporate concerns.8
Page 25 of 67
 In the instant case, there is no dispute that petitioner's corporate registration was
revoked on May 26, 2003. Based on the above-quoted provision of law, it had three years, or
until May 26, 2006, to prosecute or defend any suit by or against it. The subject complaint,
however, was filed only on October 19, 2006, more than three years after such revocation.

It is likewise not disputed that the subject complaint was filed by petitioner corporation
and not by its directors or trustees. In fact, it is even averred, albeit wrongly, in the first
paragraph of the Complaint9 that [p]laintiff is a duly organized and existing corporation under
the laws of the Philippines, with capacity to sue and be sued. x x x10cralawred

Petitioner, nonetheless, insists that a corporation may still sue, even after it has been
dissolved and the three-year liquidation period provided under Section 122 of the Corporation
Code has passed. Petitioner cites the cases of Gelano v. Court of Appeals,11Knecht v. United
Cigarette Corporation,12 and Pepsi-Cola Products Philippines, Inc. v. Court of Appeals,13 as
authority to support its position. The Court, however, agrees with the CA that in the
abovecited cases, the corporations involved filed their respective complaints while they were
still in existence. In other words, they already had pending actions at the time that their
corporate existence was terminated.

The import of this Court's ruling in the cases cited by petitioner is that the trustee of a
corporation may continue to prosecute a case commenced by the corporation within three
years from its dissolution until rendition of the final judgment, even if such judgment is
rendered beyond the three-year period allowed by Section 122 of the Corporation Code.
However, there is nothing in the said cases which allows an already defunct corporation to
initiate a suit after the lapse of the said three-year period. On the contrary, the factual
circumstances in the abovecited cases would show that the corporations involved therein did
not initiate any complaint after the lapse of the three-year period. In fact, as stated above, the
actions were already pending at the time that they lost their corporate existence.

In the present case, petitioner filed its complaint not only after its corporate existence
was terminated but also beyond the three-year period allowed by Section 122 of the
Corporation Code. Thus, it is clear that at the time of the filing of the subject complaint
petitioner lacks the capacity to sue as a corporation. To allow petitioner to initiate the subject
complaint and pursue it until final judgment, on the ground that such complaint was filed for
the sole purpose of liquidating its assets, would be to circumvent the provisions of Section
122 of the Corporation Code.

As to the last issue raised, the basic and pivotal issue in the instant case is petitioner's
capacity to sue as a corporation and it has already been settled that petitioner indeed lacks
such capacity. Thus, this Court finds no cogent reason to depart from the ruling of the CA
finding it unnecessary to delve on the other issues raised by petitioner.

WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals
in CA-G.R. CV No. 88864, sustaining the Decision of the Regional Trial Court of Muntinlupa
City, Branch 276, in Civil Case No. 06-138, is AFFIRMED.

Page 26 of 67
G.R. No. 180416, June 02, 2014
ADERITO Z. YUJUICO AND BONIFACIO C. SUMBILLA, Petitioners, v. CEZAR T.
QUIAMBAO AND ERIC C. PILAPIL, Respondent.

This case is a Petition for Review on Certiorari1 from the Order2 dated 4 June 2007 and
5 November 2007 of the Regional Trial Court (RTC), Branch 154, of Pasig City in S.C.A. No.
3047.

The facts: Background

Strategic Alliance Development Corporation (STRADEC) is a domestic corporation

operating as a business development and investment company.

On 1 March 2004, during the annual stockholder's meeting of STRADEC, petitioner

Aderito Z. Yujuico (Yujuico) was elected as president and chairman of the company.3 Yujuico
replaced respondent Cezar T. Quiambao (Quiambao), who had been the president and
chairman of STRADEC since 1994.4

With Yujuico at the helm, STRADEC appointed petitioner Bonifacio C. Sumbilla

(Sumbilla) as treasurer and one Joselito John G. Blando (Blando) as corporate secretary.5
Blando replaced respondent Eric C. Pilapil (Pilapil), the previous corporate secretary of
STRADEC.6

The Criminal Complaint

On 12 August 2005, petitioners filed a criminal complaint7 against respondents and one
Giovanni T. Casanova (Casanova) before the Office of the City Prosecutor (OCP) of Pasig
City. The complaint was docketed in the OCP as I.S. No. PSG 05-08-07465.

The complaint accuses respondents and Casanova of violating Section 74 in relation to

Section 144 of Batas Pambansa Blg. 68 or the Corporation Code. The petitioners premise
such accusation on the following factual allegations:8
1 During the stockholders' meeting on 1 March 2004, Yujuico--as newly elected president
and chairman of STRADEC--demanded Quiambao for the turnover of the corporate
records of the company, particularly the accounting files, ledgers, journals and other
records of the corporation's business. Quiambao refused.
2
3 As it turns out, the corporate records of STRADEC were in the possession of
Casanova-the accountant of STRADEC. Casanova was keeping custody of the said
records on behalf of Quiambao, who allegedly needed the same as part of his defense
in a pending case in court.
4 After the 1 March 2004 stockholders' meeting, Quiambao and Casanova caused the
removal of the corporate records of STRADEC from the company's offices in Pasig
City.
7 Upon his appointment as corporate secretary on 21 June 2004, Blando likewise
demanded Pilapil for the turnover of the stock and transfer book of STRADEC. Pilapil
refused.

Page 27 of 67
 9 Instead, on 25 June 2004, Pilapil proposed to Blando to have the stock and transfer
book deposited in a safety deposit box with Equitable Pel Bank, Kamias Road, Quezon
City. Blando acceded to the proposal and the stock and transfer book was deposited
in a safety deposit box with the bank identified. It was agreed that the safety deposit
box may only be opened in the presence of both Quiambao and Blando.
10
11 On 30 June 2004, however, Quiambao and Pilapil withdrew the stock and transfer
book from the safety deposit box and brought it to the offices of the Stradcom
Corporation (STRADCOM) in Quezon City. Quiambao thereafter asked Blando to
proceed to the STRADCOM offices. Upon arriving thereat, Quiambao pressured
Blando to make certain entries in the stock and transfer books. After making such
entries, Blando again demanded that he be given possession of the stock and transfer
book. Quiambao refused.
12
13 On 1 July 2004, Blando received an order dated 30 June 2004 issued by the RTC,
Branch 71, of Pasig City in Civil Case No. 70027, which directed him to cancel the
entries he made in the stock and transfer book. Hence, on even date, Blando wrote
letters to Quiambao and Pilapil once again demanding for the turnover of the stock and
transfer book. Pilapil replied thru a letter dated 2 July 2004 where he appeared to
agree to Blando's demand.
14
15 However, upon meeting with Pilapil and Quiambao, the latter still refused to turnover
the stock and transfer book to Blando. Instead, Blando was once again constrained to
agree to a proposal by Pilapil to have the stock and transfer book deposited with the
RTC, Branch 155, of Pasig City. The said court, however, refused to accept such
deposit on the ground that it had no place for safekeeping.
16
17 Since Quiambao and Pilapil still refused to turnover the stock and transfer book,
Blando again acceded to have the book deposited in a safety deposit box, this time,
with the Export and Industry Bank in San Miguel Avenue, Pasig City.

Petitioners theorize that the refusal by the respondents and Casanova to turnover
STRADEC's corporate records and stock and transfer book violates their right, as
stockholders, directors and officers of the corporation, to inspect such records and book
under Section 74 of the Corporation Code. For such violation, petitioners conclude,
respondents may be held criminally liable pursuant to Section 144 of the Corporation Code.

Preliminary investigation thereafter ensued.

Resolution of the OCP and the Informations

After receiving the counter-affidavits of the respondents and Casanova, as well as the
other documentary submissions9 by the parties, the OCP issued a Resolution10 dated 6
January 2006 in I.S. No. PSG 05-08-07465. In the said resolution, the OCP absolved
Casanova but found probable cause to hail respondents to court on two (2) offenses: (1) for
removing the stock and transfer book of STRADEC from its principal office, and (2) for
refusing access to, and examination of, the corporate records and the stock and transfer book
of STRADEC at its principal office.
Page 28 of 67
 Pursuant to the resolution, two (2) informations11 were filed against the respondents
before the Metropolitan Trial Court (MeTC) of Pasig City. The informations were docketed as
Criminal Case No. 89723 and Criminal Case No. 89724 and were raffled to Branch 69.

Criminal Case No. 89723 is for the offense of removing the stock and transfer book of
STRADEC from its principal office. The information reads:12
On and/or about the period between March 1 and June 25, 2004, inclusive, in Pasig City and
within the jurisdiction of this Honorable Court, the above accused, being then members of the
Board of Directors and/or officers, as the case maybe, of Strategic Alliance Development
Corporation (STRADEC, for short), conspiring and confederating together and mutually
helping and aiding one another, did then and there willfully, unlawfully and feloniously, remove
the stock and transfer book of the said STRADEC at its principal office at the 24th Floor, One
Magnificent Mile CITRA City Bldg., San Miguel Avenue, Ortigas Center, Pasig City, where
they should all be kept, in violation of the aforesaid law, and to the prejudice of the said
complainants.

Criminal Case No. 89724, on the other hand, covers the offense of refusing access to,
and examination of, the corporate records and the stock and transfer book of STRADEC at its
principal office. The information reads:13

On and/or about the period between March 1 and June 25, 2004, inclusive, in Pasig
City, and within the jurisdiction of this Honorable Court, the above accused, being then
members of the Board of Directors and/or officers, as the case maybe, of Strategic Alliance
Development Corporation (STRADEC, for short), conspiring and confederating together and
mutually helping and aiding one another, did then and there willfully, unlawfully and
feloniously, refuse to allow complainants Bonifacio C. Sumbilla and Aderito Z. Yujuico, being
then stockholders and/or directors of STRADEC, access to, and examination of, the corporate
records, including the stock and transfer book, of STRADEC at its principal office at the 24th
Floor, One Magnificent Mile-CITRA Bldg., San Miguel Avenue, Ortigas Center, Pasig City,
where they should all be kept, in violation of the aforesaid law, and to the prejudice of the said
complainants.

Urgent Omnibus Motion and the Dismissal of Criminal Case No. 89723

On 18 January 2006, respondents filed before the MeTC an Urgent Omnibus Motion
for Judicial Determination of Probable Cause and To Defer Issuance of Warrants of Arrest
(Urgent Omnibus Motion).14

On 8 May 2006, the MeTC issued an order15 partially granting the Urgent Omnibus
Motion. The MeTC dismissed Criminal Case No. 89723 but ordered the issuance of a warrant
of arrest against respondents in Criminal Case No. 89724.

In dismissing Criminal Case No. 89723, the MeTC held that Section 74, in relation to
Section 144, of the Corporation Code only penalizes the act of "refus[ing] to allow any
director, trustee, stockholder or member of the corporation to examine and copy excerpts
from the records or minutes of the corporation"16 and that act is already the subject matter of
Criminal Case No. 89724. Hence, the MeTC opined, Criminal Case No. 89723-which seeks to
Page 29 of 67
try respondents for merely removing the stock and transfer book of STRADEC from its
principal office-actually charges no offense and, therefore, cannot be sustained.17

Anent directing the issuance of a warrant of arrest in Criminal Case No. 89724, the
MeTC found probable cause to do so; given the failure of the respondents to present any
evidence during the preliminary investigation showing that they do not have possession of the
corporate records of STRADEC or that they allowed petitioners to inspect the corporate
records and the stock and transfer book of STRADEC.18

Unsatisfied, the respondents filed a motion for partial reconsideration19 of the 8 May
2006 order of the MeTC insofar as the disposition in Criminal Case No. 89724 is concerned.
The MeTC, however, denied such motion on 16 August 2006.20

Certiorari Petition and the Dismissal of Criminal Case No. 89724

After their motion for partial reconsideration was denied, respondents filed a certiorari
petition21 with prayer for the issuance of a temporary restraining order (TRO), before the RTC
of Pasig City on 27 September 2006. The petition was docketed as S.C.A. No. 3047.

On 16 November 2006, the RTC issued a TRO enjoining the MeTC from conducting
further proceedings in Criminal Case No. 89724 for twenty (20) days.22

On 4 June 2007, the RTC issued an Order23 granting respondents' certiorari petition
and directing the dismissal of Criminal Case No. 89724. According to the RTC, the MeTC
committed grave abuse of discretion in issuing a warrant of arrest against respondents in
Criminal Case No. 89724.

The RTC found that the finding of probable cause against the respondents in Criminal Case
No. 89724 was not supported by the evidence presented during the preliminary investigation
but was, in fact, contradicted by them:24
1 The RTC noted that, aside from the complaint itself, no evidence was ever submitted
by petitioners to prove that they demanded and was refused access to the corporate
records of STRADEC between 1 March to 25 June 2004. What petitioners merely
submitted is their letter dated 6 September 2004 demanding from respondents access
to the corporate records of STRADEC.
3 The allegations of petitioners in their complaint, as well as 6 September 2004 letter
above-mentioned, however, are contradicted by the sworn statement dated 1 July 2004
of Blando25 wherein he attested that as early as 25 June 2004, Pilapil already turned
over to him "two binders containing the minutes, board resolutions, articles of
incorporation, copies of contracts, correspondences and other papers of the
corporation, except the stock certificate book and the stock and transfer book."
5 The RTC also took exception to the reason provided by the MeTC in supporting its
finding of probable cause against the respondents. The RTC held that it was not
incumbent upon the respondents to provide evidence proving their innocence. Hence,
the failure of the respondents to submit evidence showing that they do not have
possession of the corporate records of STRADEC or that they have allowed inspection
of the same cannot be taken against them much less support a finding of probable
cause against them.
Page 30 of 67
 The RTC further pointed out that, at most, the evidence on record only supports
probable cause that the respondents were withholding the stock and transfer book of
STRADEC. The RTC, however, opined that refusing to allow inspection of the stock and
transfer book, as opposed to refusing examination of other corporate records, is not
punishable as an offense under the Corporation Code.26 Hence, the directive of the RTC
dismissing Criminal Case No. 89724.

The petitioners moved for reconsideration,27 but the RTC remained steadfast.28

Hence, this petition by petitioners.

The Instant Petition

In their petition, petitioners claim that Criminal Case No. 89724 may still be sustained
against the respondents insofar as the charge of refusing to allow access to the stock and
transfer book of STRADEC is concerned. They argue that the RTC made a legal blunder
when it held that the refusal to allow inspection of the stock and transfer book of a corporation
is not a punishable offense under the Corporation Code. Petitioners contend that such a
refusal still amounts to a violation of Section 74 of the Corporation Code, for which Section
144 of the same code prescribes a penalty.cra1awredjgc

OUR RULING

The RTC indeed made an inaccurate pronouncement when it held that the act of
refusing to allow inspection of the stock and transfer book of a corporation is not a punishable
offense under the Corporation Code. Such refusal, when done in violation of Section 74(4) of
the Corporation Code, properly falls within the purview of Section 144 of the same code and
thus may be penalized as an offense.

The foregoing gaffe nonetheless, We still sustain the dismissal of Criminal Case No.
89724 as against the respondents.

A criminal action based on the violation of a stockholder's right to examine or inspect

the corporate records and the stock and transfer book of a corporation under the second and
fourth paragraphs of Section 74 of the Corporation Code-such as Criminal Case No. 89724--
can only be maintained against corporate officers or any other persons acting on behalf of
such corporation. The submissions of the petitioners during the preliminary investigation,
however, clearly suggest that respondents are neither in relation to STRADEC.

Hence, we deny the petition.

The act of refusing to allow inspection of the stock and transfer book of a
corporation, when done in violation of Section 74(4) of the Corporation Code, is
punishable as an offense under Section 144 of the same code.

We first address the inaccurate pronouncement of the RTC.

Page 31 of 67
 Section 74 is the provision of the Corporation Code that deals with the books a
corporation is required to keep. It reads:

Section 74. Books to be kept; stock transfer agent. - Every corporation shall keep and
carefully preserve at its principal office a record of all business transactions and minutes of all
meetings of stockholders or members, or of the board of directors or trustees, in which shall
be set forth in detail the time and place of holding the meeting, how authorized, the notice
given, whether the meeting was regular or special, if special its object, those present and
absent, and every act done or ordered done at the meeting. Upon the demand of any director,
trustee, stockholder or member, the time when any director, trustee, stockholder or member
entered or left the meeting must be noted in the minutes; and on a similar demand, the yeas
and nays must be taken on any motion or proposition, and a record thereof carefully made.
The protest of any director, trustee, stockholder or member on any action or proposed action
must be recorded in full on his demand.

The records of all business transactions of the corporation and the minutes of any
meetings shall be open to inspection by any director, trustee, stockholder or member
of the corporation at reasonable hours on business days and he may demand, in
writing, for a copy of excerpts from said records or minutes, at his expense.

Any officer or agent of the corporation who shall refuse to allow any director, trustees,
stockholder or member of the corporation to examine and copy excerpts from its
records or minutes, in accordance with the provisions of this Code, shall be liable to
such director, trustee, stockholder or member for damages, and in addition, shall be
guilty of an offense which shall be punishable under Section 144 of this

Code: Provided, That if such refusal is made pursuant to a resolution or order of the
board of directors or trustees, the liability under this section for such action shall be
imposed upon the directors or trustees who voted for such refusal: and Provided,
further, That it shall be a defense to any action under this section that the person
demanding to examine and copy excerpts from the corporation's records and minutes
has improperly used any information secured through any prior examination of the
records or minutes of such corporation or of any other corporation, or was not acting
in good faith or for a legitimate purpose in making his demand.

Stock corporations must also keep a book to be known as the "stock and transfer book", in
which must be kept a record of all stocks in the names of the stockholders alphabetically
arranged; the installments paid and unpaid on all stock for which subscription has been made,
and the date of payment of any installment; a statement of every alienation, sale or transfer of
stock made, the date thereof, and by and to whom made; and such other entries as the by-
laws may prescribe. The stock and transfer book shall be kept in the principal office of
the corporation or in the office of its stock transfer agent and shall be open for
inspection by any director or stockholder of the corporation at reasonable hours on
business days.

No stock transfer agent or one engaged principally in the business of registering transfers of
stocks in behalf of a stock corporation shall be allowed to operate in the Philippines unless he
secures a license from the Securities and Exchange Commission and pays a fee as may be
Page 32 of 67
fixed by the Commission, which shall be renewable annually: Provided, That a stock
corporation is not precluded from performing or making transfer of its own stocks, in which
case all the rules and regulations imposed on stock transfer agents, except the payment of a
license fee herein provided, shall be applicable. (51 a and 32a; P.B. No. 268.) (Emphasis
supplied)

Section 144 of the Corporation Code, on the other hand, is the general penal provision of the
Corporation Code. It reads:

Section 144. Violations of the Code. - Violations of any of the provisions of this Code or its
amendments not otherwise specifically penalized therein shall be punished by a fine of
not less than one thousand (P1,000.00) pesos but not more than ten thousand (P10,000.00)
pesos or by imprisonment for not less than thirty (30) days but not more than five (5) years, or
both, in the discretion of the court. If the violation is committed by a corporation, the same
may, after notice and hearing, be dissolved in appropriate proceedings before the Securities
and Exchange Commission: Provided, That such dissolution shall not preclude the institution
of appropriate action against the director, trustee or officer of the corporation responsible for
said violation: Provided, further, That nothing in this section shall be construed to repeal the
other causes for dissolution of a corporation provided in this Code. (190 112 a) (Emphasis
supplied)

In the assailed Orders, the RTC expressed its opinion that the act of refusing to allow
inspection of the stock and transfer book, even though it may be a violation of Section 74(4),
is not punishable as an offense under the Corporation Code.29 In justifying this conclusion, the
RTC seemingly relied on the fact that, under Section 74 of the Corporation Code, the
application of Section 144 is expressly mentioned only in relation to the act of "refus[ing] to
allow any director, trustees, stockholder or member of the corporation to examine and copy
excerpts from [the corporation's] records or minutes" that excludes its stock and transfer
book.

We do not agree.

While Section 74 of the Corporation Code expressly mentions the application of Section 144
only in relation to the act of "refus[ing] to allow any director, trustees, stockholder or member
of the corporation to examine and copy excerpts from [the corporation's] records or minutes,"
the same does not mean that the latter section no longer applies to any other possible
violations of the former section.

It must be emphasized that Section 144 already purports to penalize "[v]iolations" of "any
provision" of the Corporation Code "not otherwise specifically penalized therein." Hence, we
find inconsequential the fact that that Section 74 expressly mentions the application of
Section 144 only to a specific act, but not with respect to the other possible violations of the
former section.

Indeed, we find no cogent reason why Section 144 of the Corporation Code cannot be made
to apply to violations of the right of a stockholder to inspect the stock and transfer book of a
corporation under Section 74(4) given the already unequivocal intent of the legislature to
penalize violations of a parallel right, i.e., the right of a stockholder or member to examine the
Page 33 of 67
other records and minutes of a corporation under Section 74(2). Certainly, all the rights
guaranteed to corporators under Section 74 of the Corporation Code are mandatory for the
corporation to respect. All such rights are just the same underpinned by the same policy
consideration of keeping public confidence in the corporate vehicle thru an assurance of
transparency in the corporation's operations.

Verily, we find inaccurate the pronouncement of the RTC that the act of refusing to allow
inspection of the stock and transfer book is not a punishable offense under the Corporation
Code. Such refusal, when done in violation of Section 74(4) of the Corporation Code, properly
falls within the purview of Section 144 of the same code and thus may be penalized as an
offense.

A criminal action based on the violation of a stockholder's right to examine or inspect

the corporate records and the stock and transfer hook of a corporation under the
second and fourth paragraphs of Section 74 of the Corporation Code can only he
maintained against corporate officers or any other persons acting on behalf of such
corporation.

The foregoing notwithstanding, and independently of the reasons provided therefor by the
RTC, we sustain the dismissal of Criminal Case No. 89724.

Criminal Case No. 89724 accuses respondents of denying petitioners' right to examine or
inspect the corporate records and the stock and transfer book of STRADEC. It is thus a
criminal action that is based on the violation of the second and fourth paragraphs of Section
74 of the Corporation Code.

A perusal of the second and fourth paragraphs of Section 74, as well as the first paragraph of
the same section, reveal that they are provisions that obligates a corporation: they prescribe
what books or records a corporation is required to keep; where the corporation shall keep
them; and what are the other obligations of the corporation to its stockholders or members in
relation to such books and records. Hence, by parity of reasoning, the second and fourth
paragraphs of Section 74, including the first paragraph of the same section, can only be
violated by a corporation.

It is clear then that a criminal action based on the violation of the second or fourth paragraphs
of Section 74 can only be maintained against corporate officers or such other persons that are
acting on behalf of the corporation. Violations of the second and fourth paragraphs of Section
74 contemplates a situation wherein a corporation, acting thru one of its officers or
agents, denies the right of any of its stockholders to inspect the records, minutes and
the stock and transfer book of such corporation.

The problem with the petitioners' complaint and the evidence that they submitted during
preliminary investigation is that they do not establish that respondents were acting on behalf
of STRADEC. Quite the contrary, the scenario painted by the complaint is that the
respondents are merely outgoing officers of STRADEC who, for some reason, withheld and
refused to tum-over the company records of STRADEC; that it is the petitioners who are
actually acting on behalf of STRADEC; and that STRADEC is actually merely trying to recover
custody of the withheld records.
Page 34 of 67
In other words, petitioners are not actually invoking their right to inspect the records and the
stock and transfer book of STRADEC under the second and fourth paragraphs of Section 74.
What they seek to enforce is the proprietary right of STRADEC to be in possession of
such records and book. Such right, though certainly legally enforceable by other means,
cannot be enforced by a criminal prosecution based on a violation of the second and fourth
paragraphs of Section 74. That is simply not the situation contemplated by the second and
fourth paragraphs of Section 74 of the Corporation Code.

For this reason, we affirm the dismissal of Criminal Case No. 89724 for lack of probable
cause.cra1awlaw1ibrary

WHEREFORE, premises considered, the petition is hereby DENIED. The Orders dated 4
June 2007 and 5 November 2007 of the Regional Trial Court, Branch 154, of Pasig City in
S.C.A. No. 3047, insofar as said orders effectively dismissed Criminal Case No. 89724
pending before Metropolitan Trial Court, Branch 69, of Pasig City, are hereby AFFIRMED.

Page 35 of 67
G.R. NO. 142509 March 24, 2006
JOSE ALEMANIA BUATIS, JR., Petitioner, vs. THE PEOPLE OF THE PHILIPPINES and
ATTY. JOSE J. PIERAZ, Respondents.

Before us is a petition for review on certiorari filed by Jose Alemania Buatis, Jr.
(petitioner) seeking to set aside the Decision1 dated January 18, 2000 of the Court of Appeals
(CA) in CA-G.R. CR. No. 20988 which affirmed the decision of the Regional Trial Court (RTC),
Branch 167 of Pasig City, convicting him of the crime of libel. Also assailed is the appellate
courts Resolution2 dated March 13, 2000 denying petitioners Motion for Reconsideration.

The facts of the case, as summarized by the appellate court, are as follows:

On August 18, 1995, the wife of private-complainant Atty. Jose J. Pieraz (Atty. Pieraz),
retrieved a letter from their mailbox addressed to her husband. The letter was open, not
contained in an envelope, and Atty. Pieraz wife put it on her husbands desk. On that same
day, Atty. Pieraz came upon the letter and made out its content. It reads:

DON HERMOGENES RODRIGUEZ Y REYES ESTATE

Office of the Asst. Court Administrator
No. 1063 Kamias St., Bgy. Manggahan, Pasig City,
Metro Manila
August 18, 1995
ATTY. JOSE J. PIERAZ
Counsel for Benjamin A. Monroy
#8 Quirino St., Life Homes Subdivision
Rosario , Pasig City, Metro Manila
Subject: Anent your letter dated August 18, 1995
addressed to one Mrs. Teresita Quingco

Atty. Pieraz:

This has reference to your lousy but inutile threatening letter dated August 18, 1995,
addressed to our client; using carabao English.

May we remind you that any attempt on your part to continue harassing the person of
Mrs. Teresita Quingco of No. 1582 Mngo St., Bgy. Manggahan, Pasig City, Metro Manila---
undersigned much to his regrets shall be constrained/compelled to file the necessary
complaint for disbarment against you.

You may proceed then with your stupidity and suffer the full consequence of the law.
Needless for you to cite specific provisions of the Revised Penal Code, as the same is
irrelevant to the present case. As a matter of fact, the same shall be used by no other than the
person of Mrs. Quingco in filing administrative charge against you and all persons behind
these nefarious activities.

Finally, it is a welcome opportunity for the undersigned to face you squarely in any
courts of justice, so as we can prove "who is who" once and for all.

Page 36 of 67
Trusting that you are properly inform (sic) regarding these matters, I remain.

Yours in Satan name;

(Signed)
JOSE ALEMANIA BUATIS, JR.
Atty-in- Fact of the present
Court Administrator of the entire
Intestate Estate of Don Hermogenes
Rodriguez Y. Reyes.
Copy furnished:

All concerned.

Not personally knowing who the sender was, Atty. Pieraz, nevertheless, responded and
sent a communication by registered mail to said Buatis, Jr., accused-appellant. In reply,
Buatis, Jr. dispatched a second letter dated August 24, 1995 to Atty. Pieraz.

Reacting to the insulting words used by Buatis, Jr., particularly: "Satan, senile, stupid,
[E]nglish carabao," Atty. Pieraz filed a complaint for libel against accused-appellant. Subject
letter and its contents came to the knowledge not only of his wife but of his children as well
and they all chided him telling him: "Ginagawa ka lang gago dito."

Aside from the monetary expenses he incurred as a result of the filing of the instant
case, Atty Pieraz frail health was likewise affected and aggravated by the letter of accused-
appellant.

The defense forwarded by accused-appellant Buatis, Jr. was denial. According to him,
it was at the behest of the president of the organization "Nagkakaisang Samahan Ng Mga
Taga Manggahan" or NASATAMA, and of a member, Teresita Quingco, that he had dictated to
one of his secretaries, a comment to the letter of private-complainant in the second week of
August 1995.

Initially during his testimony, Buatis, Jr. could not recall whether he had signed that
letter-comment or if it was even addressed to Atty. Pieraz. Neither could he remember if he
had made and sent another letter, this time dated August 24, 1995, to Atty. Pieraz. Confronted
in court with the counter-affidavit which he filed before the Pasig City Prosecutors Office,
however, Buatis, Jr. could not deny its contents, among which was his admission that indeed,
he had sent subject letter of August 18 and the letter dated August 24, 1995 to Atty. Pieraz.3
After trial on the merits, the RTC rendered its Decision dated April 30, 19974 finding petitioner
guilty of the crime of libel, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused Jose Alemania

Buatis, Jr. GUILTY of the crime of LIBEL defined in Art. 353 and penalized under Art. 355 of
the Revised Penal Code and is hereby sentenced to an indeterminate penalty of
imprisonment of Four (4) Months and One (1) Day, as minimum, to Two (2) Years, Eleven (11)
Months and Ten (10) Days, as maximum; to indemnify the offended party in the amount of
P20,000.00, by way of compensatory damages; the amount of P10,000.00, as and for moral

Page 37 of 67
damages, and another amount of P10,000.00, for exemplary damages; to suffer all accessory
penalties provided for by law; and, to pay the costs. 5

The trial court ruled that: calling a lawyer "inutil", stupid and capable of using only
carabao English, is intended not only for the consumption of respondent but similarly for
others as a copy of the libelous letter was furnished all concerned; the letter was prejudicial to
the good name of respondent and an affront to his standing as a lawyer, who, at the time the
letter was addressed to him, was representing a client in whose favor he sent a demand letter
to the person represented by petitioner; the letter is libelous per se since a defect or vice
imputed is plainly understood as set against the entire message sought to be conveyed;
petitioner failed to reverse the presumption of malice from the defamatory imputation
contained in the letter; the letter could have been couched in a civil and respectful manner, as
the intention of petitioner was only to advice respondent that demand was not proper and
legal but instead petitioner was seething with hate and contempt and even influenced by
satanic intention.

The RTC also found that since the letter was made known or brought to the attention
and notice of other persons other than the offended party, there was publication; and that the
element of identity was also established since the letter was intended for respondent. It
rejected petitioners stance that the libelous letter resulted from mistake or negligence since
petitioner boldly admitted that he had to reply to respondents letter to Mrs. Quingco, it being
his duty to do as the latter is a member of petitioners association.

The RTC found respondent entitled to recover compensatory damages as the

immediate tendency of the defamatory imputation was to impair respondents reputation
although no actual pecuniary loss has in fact resulted. It also awarded moral damages as well
as exemplary damages since the publication of the libelous letter was made with special ill
will, bad faith or in a reckless disregard for the rights of respondent.

Subsequently, petitioner appealed the RTCs decision to the CA which, in a Decision

dated January 18, 2000, affirmed in its entirety the decision of the trial court.

The CA found that the words used in the letter are uncalled for and defamatory in
character as they impeached the good reputation of respondent as a lawyer and that it is
malicious. It rejected petitioners claim that the letter is a privileged communication which
would exculpate him from liability since he failed to come up with a valid explanation as to
why he had to resort to name calling and downgrading a lawyer to the extent of ridiculing him
when he could have discharged his so called "duty" in a more toned down fashion. It found
also that there was publication of the letter, thus, it cannot be classified as privileged.

The CA denied petitioners motion for reconsideration in a Resolution dated March 13,
2000.

Hence the instant petition for review on certiorari filed by petitioner, raising the following
issues:
A. CAN THERE BE MALICE IN FACT, AS ONE OF THE ELEMENTS OF LIBEL,
ATTRIBUTED TO A RESPONDING URBAN POOR LEADER ACTING AS COUNSEL,

Page 38 of 67
DEFENDING A MEMBER OF AN ASSOCIATION UNDER THREAT OF EJECTMENT FROM
HER DWELLING PLACE?

B. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT FINDING THE ALLEGED
LIBELOUS LETTER AS ONE OF THOSE FALLING UNDER THE PURVIEW OF PRIVILEGE
(sic) COMMUNICATION?

C. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT FINDING THAT: THE
PETITIONER CAN NOT BE MADE TO ACCEPT FULL RESPONSIBILITY THAT WHAT HE
DID IS A CRIME?6

The Office of the Solicitor General filed its Comment in behalf of the People and
respondent filed his own Comment praying for the affirmance of the CA decision. As required
by us, the parties submitted their respective memoranda.

The principal issue for resolution is whether or not petitioner is guilty of the crime of
libel.

In his Memorandum, petitioner claims that: the CA failed to apply the ruling in People v.
Velasco7 that "if the act/matter charged as libelous is only an incident in [an] act which has
another objective, the crime is not libel;" when he made his reply to respondents letter to Mrs.
Quingco making a demand for her to vacate the premises, his objective was to inform
respondent that Mrs. Quingco is one of the recognized tenants of the Rodriguez estate which
is claiming ownership over the area of Brgy. Manggahan, Pasig City, and petitioner is the
attorney-in-fact of the administrator of the Rodriquez estate; communication in whatever
language, either verbal or written of a lawyer under obligation to defend a clients cause is but
a privileged communication; the instant case is a qualified privileged communication which is
lost only by proof of malice, however, respondent failed to present actual proof of malice; the
existence of malice in fact may be shown by extrinsic evidence that petitioner bore a grudge
against the offended party, or there was ill will or ill feeling between them which existed at the
time of the publication of the defamatory imputation which were not at all indicated by
respondent in his complaint; contrary to the findings of the CA, there was justifiable motive in
sending such a letter which was to defend the vested interest of the estate and to abate any
move of respondent to eject Mrs. Quingco.

Petitioner further argues that if the words used in the libelous letter-reply would be fully
scrutinized, there is justification for the use of those words, to wit: "lousy but inutile
threatening letterusing carabao English" was due to the fact that the demand letter was
indeed a threatening letter as it does not serve its purpose as respondents client has no legal
right over the property and respondent did not file the ejectment suit; that respondent is just
making a mockery out of Mrs. Quingco, thus he is stupid; that the words "Yours in Satan
name" is only a complementary greeting used in an ordinary communication letter, which is
reflected to the sender but not to the person being communicated and which is just the
reverse of saying "Yours in Christ".

We deny the petition.

Page 39 of 67
 Article 353 of the Revised Penal Code defines libel as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is dead.

For an imputation to be libelous, the following requisites must concur: (a) it must be
defamatory; (b) it must be malicious; (c) it must be given publicity; and (d) the victim must be
identifiable.8

The last two elements have been duly established by the prosecution. There is
publication in this case. In libel, publication means making the defamatory matter, after it is
written, known to someone other than the person against whom it has been written.9
Petitioners subject letter-reply itself states that the same was copy furnished to all concerned.
Also, petitioner had dictated the letter to his secretary. It is enough that the author of the libel
complained of has communicated it to a third person.10 Furthermore, the letter, when found in
the mailbox, was open, not contained in an envelope thus, open to public.
The victim of the libelous letter was identifiable as the subject letter-reply was addressed to
respondent himself.

We shall then resolve the issues raised by petitioner as to whether the imputation is
defamatory and malicious.

In determining whether a statement is defamatory, the words used are to be construed

in their entirety and should be taken in their plain, natural and ordinary meaning as they would
naturally be understood by persons reading them, unless it appears that they were used and
understood in another sense.11

For the purpose of determining the meaning of any publication alleged to be libelous,
we laid down the rule in Jimenez v. Reyes,12 to wit:

In Tawney vs. Simonson, Whitcomb & Hurley Co. (109 Minn., 341), the court had the
following to say on this point: "In determining whether the specified matter is libelous per se,
two rules of construction are conspicuously applicable: (1) That construction must be adopted
which will give to the matter such a meaning as is natural and obvious in the plain and
ordinary sense in which the public would naturally understand what was uttered. (2) The
published matter alleged to be libelous must be construed as a whole."

In applying these rules to the language of an alleged libel, the court will disregard any
subtle or ingenious explanation offered by the publisher on being called to account. The whole
question being the effect the publication had upon the minds of the readers, and they not
having been assisted by the offered explanation in reading the article, it comes too late to
have the effect of removing the sting, if any there be, from the words used in the publication.13
Gauging from the abovementioned tests, the words used in the letter dated August 18, 1995
sent by petitioner to respondent is defamatory. In using words such as "lousy", "inutile",
"carabao English", "stupidity", and "satan", the letter, as it was written, casts aspersion on the
character, integrity and reputation of respondent as a lawyer which exposed him to ridicule.
No evidence aliunde need be adduced to prove it. As the CA said, these very words of

Page 40 of 67
petitioner have caused respondent to public ridicule as even his own family have told him:
"Ginagawa ka lang gago dito."14

Any of the imputations covered by Article 353 is defamatory; and, under the general
rule laid down in Article 354, 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. Thus, when the
imputation is defamatory, the prosecution need not prove malice on the part of petitioner
(malice in fact), for the law already presumes that petitioners imputation is malicious (malice
in law).15 A reading of petitioners subject letter-reply showed that he malevolently castigated
respondent for writing such a demand letter to Mrs. Quingco. There was nothing in the said
letter which showed petitioners good intention and justifiable motive for writing the same in
order to overcome the legal inference of malice.

Petitioner, however, insists that his letter was a private communication made in the
performance of his moral and social duty as the attorney-in-fact of the administrator of the
Rodriguez estate where Mrs. Quingco is a recognized tenant and to whom respondent had
written the demand letter to vacate, thus in the nature of a privileged communication and not
libelous.

We are not persuaded.

Article 354 of the Revised Penal Code provides:

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be

malicious, even if it be true, if no good intention and justifiable motive for making it is shown,
except in the following cases:
1. A private communication made by any person to another in the performance of any legal,
moral, or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative, or other official proceedings which are not of confidential nature, or of any
statement, report, or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

Clearly, the presumption of malice is done away with when the defamatory imputation
is a qualified privileged communication.

In order to prove that a statement falls within the purview of a qualified privileged
communication under Article 354, No. 1, as claimed by petitioner, the following requisites
must concur: (1) the person who made the communication had a legal, moral, or social duty
to make the communication, or at least, had an interest to protect, which interest may either
be his own or of the one to whom it is made; (2) the communication is addressed to an officer
or a board, or superior, having some interest or duty in the matter, and who has the power to
furnish the protection sought; and (3) the statements in the communication are made in good
faith and without malice.16

While it would appear that the letter was written by petitioner out of his social duty to a
member of the association which he heads, and was written to respondent as a reply to the
latters demand letter sent to a member, however, a reading of the subject letter-reply
Page 41 of 67
addressed to respondent does not show any explanation concerning the status of Mrs.
Quingco and why she is entitled to the premises as against the claim of respondents client.
The letter merely contained insulting words, i.e, "lousy" and "inutile letter using carabao
English", "stupidity", and "satan", which are totally irrelevant to his defense of Mrs. Quingcos
right over the premises. The words as written had only the effect of maligning respondents
integrity as a lawyer, a lawyer who had served as legal officer in the Department of
Environment and Natural Resources for so many years until his retirement and afterwards as
consultant of the same agency and also a notary public. The letter was crafted in an injurious
way than what is necessary in answering a demand letter which exposed respondent to public
ridicule thus negating good faith and showing malicious intent on petitioners part.

Moreover, the law requires that for a defamatory imputation made out of a legal, moral
or social duty to be privileged, such statement must be communicated only to the person or
persons who have some interest or duty in the matter alleged, and who have the power to
furnish the protection sought by the author of the statement.17 A written letter containing
libelous matter cannot be classified as privileged when it is published and circulated among
the public.18 In this case, petitioner admitted that he dictated the letter to one of her
secretaries who typed the same and made a print out of the computer.19 While petitioner
addressed the reply-letter to respondent, the same letter showed that it was copy furnished to
all concerned. His lack of selectivity is indicative of malice and is anathema to his claim of
privileged communication.20 Such publication had already created upon the minds of the
readers a circumstance which brought discredit and shame to respondents reputation.

Since the letter is not a privileged communication, malice is presumed under Article
354 of the Revised Penal Code. The presumption was not successfully rebutted by petitioner
as discussed above.

Thus, we find that the CA did not commit any error in affirming the findings of the trial
court that petitioner is guilty of the crime of libel.
An appeal in a criminal case throws the entire case for review and it becomes our duty to
correct any error, as may be found in the appealed judgment, whether assigned as an error or
not.21 We find that the award of P20,000.00 as compensatory damages should be deleted for
lack of factual basis. To be entitled to actual and compensatory damages, there must be
competent proof constituting evidence of the actual amount thereof.22 Respondent had not
presented evidence in support thereof.

Article 355 of the Revised Penal Code penalizes libel by means of writings or similar
means with prision correccional in its minimum and medium periods or a fine ranging from
200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

The courts are given the discretion to choose whether to impose a single penalty or
conjunctive penalties; that is, whether to impose a penalty of fine, or a penalty of
imprisonment only, or a penalty of both fine and imprisonment.
In Vaca v. Court of Appeals,23 where petitioners therein were convicted of B.P. 22 which
provides for alternative penalties of fine or imprisonment or both fine and imprisonment, we
deleted the prison sentence imposed upon petitioners and instead ordered them only to pay a
fine equivalent to double the amount of the check. We held:
Page 42 of 67
 Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably
contribute to the national economy. Apparently, they brought this appeal, believing in all good
faith, although mistakenly, that they had not committed a violation of B.P. Blg. 22. Otherwise,
they could simply have accepted the judgment of the trial court and applied for probation to
evade prison term. It would best serve the ends of criminal justice if in fixing the penalty within
the range of discretion allowed by 1, par. 1, the same philosophy underlying the
Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material
and preventing unnecessary deprivation of personal liberty and economic usefulness with due
regard to the protection of the social order.24

In the subsequent case of Lim v. People,25 we did the same and deleted the penalty of
imprisonment and merely imposed a fine for violation of B.P. 22, concluding that such would
best serve the ends of criminal justice.

Adopting these cases, we issued Administrative Circular No. 12-2000. On February 14,
2001, we issued Administrative Circular 13-2001 which modified Administrative Circular No.
12-2000 by stressing that the clear tenor of Administrative Circular No. 12-2000 is not to
remove imprisonment as an alternative penalty, but to lay down a rule of preference in the
application of the penalties provided for in B.P. 22.

While Vaca case is for violation of B.P. 22, we find the reasons behind the imposition of
fine instead of imprisonment applicable to petitioners case of libel. We note that this is
petitioners first offense of this nature. He never knew respondent prior to the demand letter
sent by the latter to Mrs. Quingco who then sought his assistance thereto. He appealed from
the decision of the RTC and the CA in his belief that he was merely exercising a civil or moral
duty in writing the letter to private complainant. In fact, petitioner could have applied for
probation to evade prison term but he did not do so believing that he did not commit a crime
thus, he appealed his case. We believe that the State is concerned not only in the imperative
necessity of protecting the social organization against the criminal acts of destructive
individuals but also in redeeming the individual for economic usefulness and other social
ends.26 Consequently, we delete the prison sentence imposed on petitioner and instead
impose a fine of six thousand pesos.

This is not the first time that we removed the penalty of imprisonment and imposed a
fine instead in the crime of libel. In Sazon v. Court of Appeals,27 petitioner was convicted of
libel and was meted a penalty of imprisonment and fine; and upon a petition filed with us, we
affirmed the findings of libel but changed the penalty imposed to a mere fine.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED with the
MODIFICATIONS that, in lieu of imprisonment, the penalty to be imposed upon the petitioner
shall be a fine of Six Thousand (P6,000.00) Pesos with subsidiary imprisonment in case of
insolvency. The award of compensatory damages is DELETED.

Page 43 of 67
A.M. No. P-13-3132 June 4, 2014
OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs.
SARAH P. AMPONG, COURT INTERPRETER III, REGIONAL TRIAL COURT OF ALABEL,
SARANGANI PROVINCE, BRANCH 38, Respondent.

This administrative case arose from the letter1 dated March 15, 2011 of Executive
Judge Jaime L. Infante (Judge Infante) of the Regional Trial Court of Alabel, Sarangani
Province, "Branch 38. (RTC), addressed to complainant the Office of the Court Administrator
(OCA),2 inquiring about the employment status of respondent Sarah P. Ampong (Ampong), a
Court Interpreter III of the said RTC since August 3, 1993. In the aforementioned letter, Judge
Infante informed the OCA that despite Ampong's dismissal from service by the Civil Service
Commission (CSC), which dismissal was affirmed by the Court, the RTC never received any
official information or directive from the OCA on the matter. As such, Ampong remains
employed in the RTC and has been continuously receiving all her monthly salary, benefits,
allowances, and the like.

The Facts

Sometime in August 1994, the CSC instituted an administrative case against Ampong
for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service
for having impersonated or taken the November 1991 Civil Service Eligibility Examination for
Teachers on behalf of one Evelyn B. Junio-Decir (Decir). On March 21, 1996, after Ampong
herself admitted to having committed the charges against her, the CSC rendered a resolution3
dismissing her from service, imposing all accessory penalties attendant to such dismissal,
and revoking her Professional Board Examination for Teachers (PBET) rating. Ampong
moved for reconsideration on the ground that when the said administrative case was filed,
she was already appointed to the judiciary; as such, she posited that the CSC no longer had
any jurisdiction over her. Ampongs motion was later denied, thus, prompting her to file a
petition for review before the Court of Appeals (CA).4

On November 30, 2004, the CA denied Ampongs petition and affirmed her dismissal
from service on the ground that she never raised the issue of jurisdiction until after the CSC
ruled against her and, thus, she is estopped from assailing the same.5 Similarly, on August 26,
2008, the Court En Banc denied her petition for review on certiorari and, thus, affirmed her
dismissal from service in G.R. No. 167916, entitled "Sarah P. Ampong v. Civil Service
Commission, CSC-Regional Office No. 11"6 (August 26, 2008 Decision).

Notwithstanding said Decision, the Financial Management Office (FMO) of the OCA,
which did not receive any official directive regarding Ampongs dismissal, continued to release
her salaries and allowances. However, in view of Judge Infantes letter notifying the OCA of
such situation, the FMO issued a Memorandum7 dated September 7, 2011 informing the OCA
that starting June 2011, it had started to withhold Ampongs salaries and allowances.8

In her Comment9 dated September 25, 2012, Ampong prayed that the Court revisit its
ruling in G.R. No. 167916 despite its finality because it might lead to unwarranted
complications in its enforcement.10 Moreover, Ampong reiterated her argument that the CSC
did not have any jurisdiction over the case against her.11
The Action and Recommendation of the OCA
Page 44 of 67
In a Memorandum12 dated March 27, 2013,the OCA recommended that Ampong be found
guilty of Dishonesty for impersonating and taking the November 1991 Civil Service Eligibility
Examination for Teachers in behalf of Decir and, thus, be dismissed from the service on the
ground that she no longer possesses the appropriate eligibility required for her position, with
forfeiture of retirement and other benefits except accrued leave credits and with perpetual
disqualification from re-employment in any government agency or instrumentality, including
any government-owned and controlled corporation or government financial institution.13

The OCA found that Ampongs act of impersonating and taking the November 1991 Civil
Service Eligibility Examination for Teachers for and on behalf of another person indeed
constitutes dishonesty, a grave offense which carries the corresponding penalty of dismissal
from service. It added that the fact that the offense was not connected with her office or was
committed prior to her appointment in the judiciary does not in any way exonerate her from
administrative liability as an employee of the court.14

Further, the OCA found that Ampongs appointment as Court Interpreter III did not
divest the CSC of its inherent power to discipline employees from all branches and agencies
of the government in order to protect the integrity of the civil service. Consequently, the CSC
could validly impose the administrative penalty of dismissal against her, which carries with it
that of cancellation of civil service eligibility, forfeiture of retirement benefits, and perpetual
disqualification for re-employment in the government service, unless otherwise provided. In
this relation, the OCA emphasized that the CSC ruling effectively stripped Ampong of her civil
service eligibility and, hence, could no longer hold the position of Court Interpreter III.15

The Issue Before the Court

The issue raised for the Courts resolution is whether or not Ampong had been
dismissed from her employment as Court Interpreter III of the RTC.

The Courts Ruling

The Court resolves the issue in the affirmative.

As the records show, in the August 26, 2008 Decision, the Court had already held
Ampong administratively liable for dishonesty in impersonating and taking the November
1991 Civil Service Eligibility Examination for Teachers on behalf of Decir, viz.:

The CSC found [Ampong] guilty of dishonesty. It is categorized as "an act which
includes the procurement and/or use of fake/spurious civil service eligibility, the giving of
assistance to ensure the commission or procurement of the same, cheating, collusion,
impersonation, or any other anomalous act which amounts to any violation of the Civil Service
examination." [Ampong] impersonated Decir in the PBET exam, to ensure that the latter
would obtain a passing mark. By intentionally practicing a deception to secure a passing
mark, their acts undeniably involve dishonesty.

This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or
defraud; untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle;
lack of fairness and straightforwardness; disposition to defraud, deceive or
Page 45 of 67
betray." [Ampongs] dishonest act as a civil servant renders her unfit to be a judicial
employee. Indeed, We take note that [Ampong] should not have been appointed as a judicial
employee had this Court been made aware of the cheating that she committed in the civil
service examinations. Be that as it may, [Ampongs] present status as a judicial employee is
not a hindrance to her getting the penalty she deserves.16 (Emphases and underscoring
supplied).

Notably, the Court also addressed Ampongs misgivings on the issue of jurisdiction in
the same case, viz.:

It is true that the CSC has administrative jurisdiction over the civil service. As defined
under the Constitution and the Administrative Code, the civil service embraces every branch,
agency, subdivision, and instrumentality of the government, and government-owned or
controlled corporations. Pursuant to its administrative authority, the CSC is granted the power
to "control, supervise, and coordinate the Civil Service examinations." This authority grants to
the CSC the right to take cognizance of any irregularity or anomaly connected with the
examinations.

However, the Constitution provides that the Supreme Court is given exclusive
administrative supervision over all courts and judicial personnel. By virtue of this power, it is
only the Supreme Court that can oversee the judges and court personnels compliance with
all laws, rules and regulations. It may take the proper administrative action against them if
they commit any violation. No other branch of government may intrude into this power, without
running afoul of the doctrine of separation of powers. Thus, this Court ruled that the
Ombudsman cannot justify its investigation of a judge on the powers granted to it by the
Constitution. It violates the specific mandate of the Constitution granting to the Supreme
Court supervisory powers over all courts and their personnel; it undermines the independence
of the judiciary.

In Civil Service Commission v. Sta. Ana, this Court held that impersonating an
examinee of a civil service examination is an act of dishonesty. But because the offender
involved a judicial employee under the administrative supervision of the Supreme Court, the
CSC filed the necessary charges before the Office of the Court Administrator (OCA), a
procedure which this Court validated.

A similar fate befell judicial personnel in Bartolata v. Julaton, involving judicial

employees who also impersonated civil service examinees.1wphi1 As in Sta. Ana, the CSC
likewise filed the necessary charges before the OCA because respondents were judicial
employees. Finding respondents guilty of dishonesty and meting the penalty of dismissal, this
Court held that "respondents machinations reflect their dishonesty and lack of integrity,
rendering them unfit to maintain their positions as public servants and employees of the
judiciary."

Compared to Sta. Anaand Bartolata, the present case involves a similar violation of the
Civil Service Law by a judicial employee. But this case is slightly different in that petitioner
committed the offense before her appointment to the judicial branch. At the time of
commission, petitioner was a public school teacher under the administrative supervision of
the DECS and, in taking the civil service examinations, under the CSC. Petitioner
Page 46 of 67
surreptitiously took the CSC-supervised PBET exam in place of another person. When she
did that, she became a party to cheating or dishonesty in a civil service-supervised
examination.

That she committed the dishonest act before she joined the RTC does not take her
case out of the administrative reach of the Supreme Court.

The bottom line is administrative jurisdiction over a court employee belongs to the
Supreme Court, regardless of whether the offense was committed before or after employment
in the judiciary.17 (Emphases in the original; citations omitted)

Pursuant to the doctrine of immutability of judgment, which states that "a decision that
has acquired finality becomes immutable and unalterable, and may no longer be modified in
any respect, even if the modification is meant to correct erroneous conclusions of fact and
law,"18 Ampong could no longer seek the August 26, 2008 Decisions modification and
reversal. Consequently, the penalty of dismissal from service on account of Ampongs
Dishonesty should be enforced in its full course. In line with Section 58(a)19 of the Uniform
Rules on Administrative Cases in the Civil Service (URACCS), the penalty of dismissal carries
with it the following administrative disabilities: (a) cancellation of civil service eligibility; (b)
forfeiture of retirement benefits; and (c) perpetual disqualification from reemployment in any
government agency or instrumentality, including any government-owned and controlled
corporation or government financial institution. Ampong should be made to similarly suffer the
same.

To clarify, however, despite Ampongs dismissal on the ground of dishonesty, she

should nevertheless been titled to receive her accrued leave credits, if any, pursuant to the
aforementioned provision of the URACCS, which does not include the forfeiture of the same.
It is a standing rule that despite their dismissal from the service, government employees are
entitled to the leave credits that they have earned during the period of their employment. As a
matter of fairness and law, they may not be deprived of such remuneration, which they have
earned prior to their dismissal.20

It must be stressed that every employee of the Judiciary should be an example of

integrity, uprightness, and honesty. Like any public servant, she must exhibit the highest
sense of honesty and integrity not only in the performance of her official duties but also in her
personal and private dealings with other people, to preserve the courts good name and
standing. The image of a court of justice is mirrored in the conduct, official and otherwise, of
the personnel who work thereat, from the judge to the lowest of its personnel. Court personnel
have been enjoined to adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and integrity of the
courts of justice. Here, Ampong failed to meet these stringent standards set for a judicial
employee and does not, therefore, deserve to remain with the Judiciary.21

WHEREFORE, the Court SUSTAINS the dismissal of respondent Sarah P. Ampong,

Court Interpreter III of the Regional Trial Court of Alabel, Sarangani Province, Branch 38, on
the ground of Dishonesty. Accordingly, her retirement and other benefits are forfeited except
accrued leave credits, and she is perpetually disqualified from re-employment in any

Page 47 of 67
government agency or instrumentality, including any government-owned and controlled
corporation or government financial institution, effective immediately.

Page 48 of 67
A.C. No. 9317 (Formerly CBD Case No. 12-3615), June 04, 2014
ADELIA V. QUIACHON, Complainant, v. ATTY. JOSEPH ADOR A. RAMOS, Respondent.

This is a disbarment case filed by Adelia V. Quiachon (complainant), against her

lawyer, Atty. Joseph Ador A. Ramos (respondent). The latter represented complainant, who
was then the plaintiff in a labor case filed before the National Labor Relations Commission
(NLRC) and in a special proceeding case filed before the Regional Trial Court (RTC).1
Complainant charges respondent with gross negligence and deceit in violation of Canon
Rules 18.03 and 18.04 of the Code of Professional Responsibility.2

The Labor Arbiter (LA) granted complainant a favorable decision on 26 November

2007. Upon appeal, it was reversed and set aside by the NLRC in its Decision dated 25 July
2008.3 On 24 October 2008, the NLRC also denied the Motion for Reconsideration filed by
respondent on complainants behalf. A Petition for Certiorari was filed before the Court of
Appeals (CA), but it affirmed the NLRCs reversal of the LAs Decision. The Notice of the CA
Decision was received by respondent on 23 November 2010.

After the Petition was filed before the CA, complainant would always ask respondent
about the status of her case. The latter always told her that there was no decision yet.

Sometime in August 2011, while complainant was in respondents office waiting for him to
arrive, she noticed a mailman delivering an envelope with the title of her labor case printed
thereon.4 Complainant asked the secretary of respondent to open the envelope and was
surprised to discover that it contained the Entry of Judgment of the CAs Decision. Thereafter,
complainant tried repeatedly to contact respondent, but to no avail. When she finally got to
talk to him, respondent assured her that it was alright as they still had six months to appeal
the case to the Supreme Court. After that final meeting, no updates on the labor case were
ever communicated to complainant.

With respect to the special proceeding case, the RTC of Roxas City dismissed it for lack of
jurisdiction. A Motion for Reconsideration was filed, but it was also denied. Once again,
respondent did nothing to reverse the RTC Decision. Consequently, the Entry of Judgment
was received on 28 October 2008.

On 28 November 2011, complainant filed the instant disbarment Complaint5 against

respondent.

In his Comment,6 respondent averred that complainant was informed of the status of the
case. He claimed that he had told complainant that he cannot cite any error of law or abuse
of discretion on the part of the Court of Appeals decision that necessitates a Petition for
Review with the Supreme Court;7 thus, he supposedly advised her to respect the decision
of the Court of Appeals.8 Respondent prayed that a Decision be rendered dismissing the
instant disbarment Complaint for lack of merit.

In a Resolution9 dated 13 June 2012, the Court referred the case to the Integrated Bar of the
Philippines (IBP) for investigation, report, and recommendation.

Page 49 of 67
During the pendency of the proceedings, specifically on 5 February 2013, complainant filed a
Motion to Withdraw Complaint.10

In his Report and Recommendation dated 23 April 2013, IBP Commissioner Hector B.
Almeyda (Almeyda) declared:chanroblesvirtuallawlibrary

True enough, it seems clear that respondent had been remiss in failing to update complainant
in what had happened to the cases being handled by respondent in behalf of complainant.
There was a failure to inform complainant (the client) of the status of the cases that thereafter
prevented the client from exercising her options. There was neglect in that regard.
11cralawlawlibrary

However, in spite of finding neglect on respondents part, he recommended the dismissal of

the case against him, stating that with the decision to withdraw the complaint, there does not
appear basis to go ahead with the proceedings since without the complaint, there will be no
basis to make any finding of liability.12

On 11 May 2013, a Resolution was passed by the Board of Governors of the IBP resolving to
adopt and approve the Report and Recommendation of investigation commissioner Almeyda.
The case against respondent was dismissed with a warning that a repetition of the same act
shall be dealt with more severely.

This Court finds this to be an opportune time to remind the investigating commissioners and
the members of the Board of Governors of the IBP that the withdrawal of a disbarment case
against a lawyer does not terminate or abate the jurisdiction of the IBP and of this Court to
continue an administrative proceeding against a lawyer-respondent as a member of the
Philippine Bar.13

In the present case, Almeyda recommended the dismissal of the case against respondent,
even after finding that the latter had been negligent. On the basis of this finding, the latter was
declared to have been remiss in failing to update complainant in what had happened to the
cases being handled by him in behalf of complainant.14 Still, Almeyda recommended the
dismissal of the case, because without the complaint, there will be no basis to make any
finding of liability.15 The Board of Governors of the IBP affirmed the recommendation.

The IBP Board of Governors should not have supported Almeydas stance.

The complainant in a disbarment case is not a direct party to the case, but a witness who
brought the matter to the attention of the Court.16 There is neither a plaintiff nor a prosecutor
in disciplinary proceedings against lawyers. The real question for determination in these
proceedings is whether or not the attorney is still a fit person to be allowed the privileges of a
member of the bar.17 Public interest is the primary objective. We explained why in Rayos-
Ombac v. Rayos,18 viz.:chanroblesvirtuallawlibrary

The affidavit of withdrawal of the disbarment case allegedly executed by complainant does
not, in any way, exonerate the respondent. A case of suspension or disbarment may proceed
regardless of interest or lack of interest of the complainant. What matters is whether, on the
basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct
Page 50 of 67
has been duly proven x x x. The complainant or the person who called the attention of the
court to the attorney's alleged misconduct is in no sense a party, and has generally no interest
in the outcome except as all good citizens may have in the proper administration of justice.
Hence, if the evidence on record warrants, the respondent may be suspended or disbarred
despite the desistance of complainant or his withdrawal of the charges x x x.

In this case, the IBP found that respondent violated Canon Rules 18.03 and 18.04 of the
Code of Professional Responsibility. Thus, it should have imposed the appropriate penalty
despite the desistance of complainant or the withdrawal of the charges.

The failure of respondent to file an appeal from the CA Decision without any justifiable reason
deserves sanction. Lawyers who disagree with the pursuit of an appeal should properly
withdraw their appearance and allow their client to retain another counsel.19

In Abay v. Montesino,20 the respondent-lawyer and his client disagreed on the legal course to
be taken regarding the appealed case. The lawyer therein strongly advised the client to
abandon the appeal and to consider the other available remedies. The client, on the other
hand, wanted to pursue it. Without obtaining the assent of his client, the respondent-lawyer
deemed it wise to abandon the appeal without informing the former. In finding the respondent-
lawyer guilty of negligence, the Court explained:chanroblesvirtuallawlibrary

Not filing an appellant's brief is prejudicial because, as happened in this case, such failure
could result in the dismissal of the appeal. The conduct of respondent shows that he failed to
exercise due diligence, and that he had a cavalier attitude towards the cause of his client. The
abandonment by the former of the latter's cause made him unworthy of the trust that his client
reposed in him. Even if respondent was "honestly and sincerely" protecting the interests of
complainant, the former still had no right to waive the appeal without the latter's knowledge
and consent. If indeed respondent felt unable or unwilling to continue his retainership, he
should have properly withdrawn his appearance and allowed the client to appoint another
lawyer.21

In the present case, respondent failed not only to keep the client informed of the status of the
case, but also to avail of the proper legal remedy that would promote the clients cause. It is
clear that respondent neglected the case entrusted to him.

All lawyers owe fidelity to their client's cause.22 Regardless of their personal views, they must
present every remedy or defense within the authority of the law in support of that cause.23
Whenever lawyers take on their clients cause/s, they covenant that they will exercise due
diligence in protecting the clients rights; their failure to exercise that degree of vigilance and
attention expected of a good father of a family makes them unworthy of the trust reposed in
them by their client/s and make them answerable to the client, the courts and society.24

In Pilapil v. Carillo,25 this Court upheld the recommendation of the IBP to suspend a lawyer
from the practice of law for six months after finding that he had failed to file a petition for
certiorari of the adverse decision rendered in the case of his client despite the latters
repeated follow-ups.cra1awlaw1ibrary

Page 51 of 67
WHEREFORE, Atty. Joseph Ador A. Ramos is found GUILTY of negligence and is hereby
SUSPENDED from the practice of law for six months, effective upon receipt of this Decision.
He is WARNED that a repetition of the same or a similar act will be dealt with more severely.

Let a copy of this Decision be entered in the record of respondent as attorney. Further, let
copies of this Decision be served on the IBP as well as on the court administrator, who is
directed to circulate these copies to all the courts in the country for their information and
guidance.

No costs.

A.C. No. 9881 June 4, 2014

ATTY. ALAN F. PAGUIA, Petitioner, vs. ATTY. MANUEL T. MOLINA, Respondent.

For resolution by this Court is the dismissal by the Integrated Bar of the Philippines (IBP)
Board of Governors of the administrative Complaint for DISHONESTY against respondent,
Atty. Manuel Molina. Atty. Molina allegedly advised his clients to enforce a contract on the
complainant's client who had never been a party to the agreement.

The facts are as follows:

The case involves a conflict between neighbors in a four-unit compound named "Times
Square" at Times Street, Quezon City. The neighbors are the following: 1) Mr. And Mrs.
Gregorio M. Abreu, clients of Atty. Paguia; 2) Mr. And Mrs. Wilson Lim, clients of respondent
Molina; 3) Dr. and Mrs. Eduardo Yap; and Dr. Belinda San Juan.

The clients of Atty. Molina entered into a contract with the other unit owners save for Mr.
Abreu. The agreement, covered by a document titled "Times Square Preamble," establishes a
set of internal rules for the neighbors on matters such as the use of the common right of way
to the exit gate, assignment of parking areas, and security. Mr. Abreu, the client of
complainant, Atty. Paguia, was not a party to the contract since the former did not agree with
the terms concerning the parking arrangements.

On 4 February 2010, Atty. Paguia filed a Complaint for Dishonesty1 with the IBP Commission
on Bar Discipline against Atty. Molina2 for allegedly giving legal advice to the latters clients to
the effect that the Times Square Preamble was binding on Mr. Abreu, who was never a party
to the contract.

In his Answer,3 Atty. Molina downplayed the case as a petty quarrel among neighbors. He
maintained that the Times Square Preamble4 was entered into for purposes of maintaining
order in the residential compound. All homeowners, except Mr. Abreu, signed the document.5
Respondent further stated in his Answer that Mr. and Mrs. Gregorio Abreu filed two cases
against his clients, Mr. And Mrs. William Lim, on the belief that Mr. Abreu was not bound by
Page 52 of 67
the Times Square Preamble. The first case, was filed with the Housing and Land Use
Regulatory Board (HLURB), which was an action to declare the Times Square Preamble
invalid. The second suit was an action for declaratory relief. Both cases, according to
respondent, were dismissed.6

Respondent further claimed that another case had been filed in court, this time by his client,
the Lims. They were prompted to file a suit since Mr. Abreu had allegedly taken matters into
his own hands by placing two vehicles directly in front of the gate of the Lims, thus blocking
the latters egress to Times Street. The Lims filed with the Regional Trial Court, Branch 96,
Quezon City, a Complaint for Injunction and Damages, coupled with a prayer for the
immediate issuance of a Temporary Restraining Order and/or Preliminary Injunction, which
was docketed as Civil Case No. Q-08-63579. According to respondent, the RTC granted the
relief prayed for in an Order dated 12 December 2008.7

Atty. Molina concluded that the above facts sufficiently served as his answer to the Complaint.
On 3 August 2010, Investigating Commissioner Victor C. Fernandez rendered a Report and
Recommendation. He recommended dismissal for lack of merit, based on the following
grounds: 1) the complaint consisted only of bare allegations; and 2) even assuming that
respondent Molina gave an erroneous legal advice, he could not be held accountable in the
absence of proof of malice or bad faith.8

On 14 May 2011, the IBP Board of Governors passed Resolution No. XIX-2011-210, adopting
and approving the Report and Recommendation of the Investigating Commissioner.9
Atty. Paguia filed a Motion for Reconsideration dated 2 August 2011, but was denied by the
IBP Board of Governors on 29 December 2012.10 Notices of the denial were received by the
parties on 21 March 2013.11

No petition for review has been filed with this Court.

It is worth noting that a case is deemed terminated if the complainant does not file a petition
with the Supreme Court within fifteen (15) days from notice of the Boards resolution. This rule
is derived from Section 12(c) of Rule 139-B, which states:

(c) If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is
less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a
decision exonerating respondent or imposing such sanction. The case shall be deemed
terminated unless upon petition of the complainant or other interested party filed with the
Supreme Court within fifteen (15) days from notice of the Boards resolution, the Supreme
Court orders otherwise. (Underscoring supplied)

In this case, Atty. Paguia received notice of the Boards resolution on 21 March 2013, as
evidenced by a registry return receipt. To this date, this Court has yet to receive a petition for
review from Atty. Paguia. Thus, for his failure to file a petition for review with the Court within
15 days, this case is deemed terminated pursuant to the above mentioned Section 12(c).
Nevertheless, we have gone over the records but we have no reason to deviate from the
findings of the IBP Board of Governors.

Page 53 of 67
When it comes to administrative cases against lawyers, two things are to be considered:
quantum of proof, which requires clearly preponderant evidence; and burden of proof, which
is on the complainant.12

In the present case, we find that the Complaint is without factual basis. Complainant Atty.
Paguia charges Atty. Molina with providing legal advice to the latters clients to the effect that
the Times Square Preamble is binding on complainants client, Mr. Abreu, who was not a
signatory to the agreement. The allegation of giving legal advice, however, was not
substantiated in this case, either in the complaint or in the corresponding hearings. Nowhere
do the records state that Atty. Paguia saw respondent giving the legal advice to the clients of
the latter. Bare allegations are not proof.13

Even if we assume that Atty. Molina did provide his clients legal advice, he still cannot be held
administratively liable without any showing that his act was attended with bad faith or malice.
The rule on mistakes committed by lawyers in the exercise of their profession is as follows:
An attorney-at-law is not expected to know all the law. For an honest mistake or error, an
attorney is not liable. Chief Justice Abbott said that, no attorney is bound to know all the law;
God forbid that it should be imagined that an attorney or a counsel, or even a judge, is bound
to know all the law. x x x.14

The default rule is presumption of good faith. On the other hand, bad faith is never presumed.
1wphi1 It is a conclusion to be drawn from facts. Its determination is thus a question of fact
and is evidentiary.15 There is no evidence, though, to show that the legal advice, assuming it
was indeed given, was coupled with bad faith, malice, or ill-will. The presumption of good
faith, therefore, stands in this case.

The foregoing considered, complainant failed to prove his case by clear preponderance of
evidence.

WHEREFORE, the Resolution of the IBP Board of Governors adopting and approving the
Decision of the Investigating Commissioner is hereby AFFIRMED.
SO ORDERED.

Page 54 of 67
G.R. No. 89572 December 21, 1989
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF
CENTER FOR EDUCATIONAL MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her
capacity as Presiding Judge of the Regional Trial Court of Valenzuela, Metro Manila,
Branch 172, respondents.
Ramon M. Guevara for private respondent.

The issue before us is mediocrity. The question is whether a person who has thrice
failed the National Medical Admission Test (NMAT) is entitled to take it again.

The petitioner contends he may not, under its rule that-

h) A student shall be allowed only three (3) chances to take the NMAT. After three (3)
successive failures, a student shall not be allowed to take the NMAT for the fourth time.
The private respondent insists he can, on constitutional grounds.

But first the facts.

The private respondent is a graduate of the University of the East with a degree of Bachelor
of Science in Zoology. The petitioner claims that he took the NMAT three times and flunked it
as many times. 1 When he applied to take it again, the petitioner rejected his application on
the basis of the aforesaid rule. He then went to the Regional Trial Court of Valenzuela, Metro
Manila, to compel his admission to the test.

In his original petition for mandamus, he first invoked his constitutional rights to academic
freedom and quality education. By agreement of the parties, the private respondent was
allowed to take the NMAT scheduled on April 16, 1989, subject to the outcome of his petition.
2 In an amended petition filed with leave of court, he squarely challenged the constitutionality

of MECS Order No. 12, Series of 1972, containing the above-cited rule. The additional
grounds raised were due process and equal protection.

After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the
challenged order invalid and granting the petition. Judge Teresita Dizon-Capulong held that
the petitioner had been deprived of his right to pursue a medical education through an
arbitrary exercise of the police power. 3

We cannot sustain the respondent judge. Her decision must be reversed.

In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure
intended to limit the admission to medical schools only to those who have initially proved their
competence and preparation for a medical education. Justice Florentino P. Feliciano declared
for a unanimous Court:

Perhaps the only issue that needs some consideration is whether there is some reasonable
relation between the prescribing of passing the NMAT as a condition for admission to medical
school on the one hand, and the securing of the health and safety of the general community,
Page 55 of 67
on the other hand. This question is perhaps most usefully approached by recalling that the
regulation of the pratice of medicine in all its branches has long been recognized as a
reasonable method of protecting the health and safety of the public. That the power to
regulate and control the practice of medicine includes the power to regulate admission to the
ranks of those authorized to practice medicine, is also well recognized. Thus, legislation and
administrative regulations requiring those who wish to practice medicine first to take and pass
medical board examinations have long ago been recognized as valid exercises of
governmental power. Similarly, the establishment of minimum medical educational
requirements-i.e., the completion of prescribed courses in a recognized medical school-for
admission to the medical profession, has also been sustained as a legitimate exercise of the
regulatory authority of the state. What we have before us in the instant case is closely related:
the regulation of access to medical schools. MECS Order No. 52, s. 1985, as noted earlier,
articulates the rationale of regulation of this type: the improvement of the professional and
technical quality of the graduates of medical schools, by upgrading the quality of those
admitted to the student body of the medical schools. That upgrading is sought by selectivity in
the process of admission, selectivity consisting, among other things, of limiting admission to
those who exhibit in the required degree the aptitude for medical studies and eventually for
medical practice. The need to maintain, and the difficulties of maintaining, high standards in
our professional schools in general, and medical schools in particular, in the current state of
our social and economic development, are widely known.

We believe that the government is entitled to prescribe an admission test like the NMAT as a
means of achieving its stated objective of "upgrading the selection of applicants into [our]
medical schools" and of "improv[ing] the quality of medical education in the country." Given
the widespread use today of such admission tests in, for instance, medical schools in the
United States of America (the Medical College Admission Test [MCAT] and quite probably, in
other countries with far more developed educational resources than our own, and taking into
account the failure or inability of the petitioners to even attempt to prove otherwise, we are
entitled to hold that the NMAT is reasonably related to the securing of the ultimate end of
legislation and regulation in this area. That end, it is useful to recall, is the protection of the
public from the potentially deadly effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma.

However, the respondent judge agreed with the petitioner that the said case was not
applicable. Her reason was that it upheld only the requirement for the admission test and said
nothing about the so-called "three-flunk rule."

We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The
issue raised in both cases is the academic preparation of the applicant. This may be gauged
at least initially by the admission test and, indeed with more reliability, by the three-flunk rule.
The latter cannot be regarded any less valid than the former in the regulation of the medical
profession.

There is no need to redefine here the police power of the State. Suffice it to repeat that the
power is validly exercised if (a) the interests of the public generally, as distinguished from
those of a particular class, require the interference of the State, and (b) the means employed
are reasonably necessary to the attainment of the object sought to be accomplished and not
unduly oppressive upon individuals. 5
Page 56 of 67
In other words, the proper exercise of the police power requires the concurrence of a lawful
subject and a lawful method.

The subject of the challenged regulation is certainly within the ambit of the police power. It is
the right and indeed the responsibility of the State to insure that the medical profession is not
infiltrated by incompetents to whom patients may unwarily entrust their lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the law
nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the medical
schools and ultimately the medical profession from the intrusion of those not qualified to be
doctors.

While every person is entitled to aspire to be a doctor, he does not have a constitutional right
to be a doctor. This is true of any other calling in which the public interest is involved; and the
closer the link, the longer the bridge to one's ambition. The State has the responsibility to
harness its human resources and to see to it that they are not dissipated or, no less worse,
not used at all. These resources must be applied in a manner that will best promote the
common good while also giving the individual a sense of satisfaction.

A person cannot insist on being a physician if he will be a menace to his patients. If one who
wants to be a lawyer may prove better as a plumber, he should be so advised and adviced. Of
course, he may not be forced to be a plumber, but on the other hand he may not force his
entry into the bar. By the same token, a student who has demonstrated promise as a pianist
cannot be shunted aside to take a course in nursing, however appropriate this career may be
for others.

The right to quality education invoked by the private respondent is not absolute. The
Constitution also provides that "every citizen has the right to choose a profession or course of
study, subject to fair, reasonable and equitable admission and academic requirements. 6

The private respondent must yield to the challenged rule and give way to those better
prepared. Where even those who have qualified may still not be accommodated in our
already crowded medical schools, there is all the more reason to bar those who, like him,
have been tested and found wanting.

The contention that the challenged rule violates the equal protection clause is not well-taken.
A law does not have to operate with equal force on all persons or things to be conformable to
Article III, Section 1 of the Constitution.

There can be no question that a substantial distinction exists between medical students and
other students who are not subjected to the NMAT and the three-flunk rule. The medical
profession directly affects the very lives of the people, unlike other careers which, for this
reason, do not require more vigilant regulation. The accountant, for example, while belonging
to an equally respectable profession, does not hold the same delicate responsibility as that of
the physician and so need not be similarly treated.

There would be unequal protection if some applicants who have passed the tests are
admitted and others who have also qualified are denied entrance. In other words, what the
equal protection requires is equality among equals.
Page 57 of 67
The Court feels that it is not enough to simply invoke the right to quality education as a
guarantee of the Constitution: one must show that he is entitled to it because of his
preparation and promise. The private respondent has failed the NMAT five times. 7 While his
persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love.

No depreciation is intended or made against the private respondent. It is stressed that a

person who does not qualify in the NMAT is not an absolute incompetent unfit for any work or
occupation. The only inference is that he is a probably better, not for the medical profession,
but for another calling that has not excited his interest.

In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to
succeed and may even be outstanding. It is for the appropriate calling that he is entitled to
quality education for the full harnessing of his potentials and the sharpening of his latent
talents toward what may even be a brilliant future.

We cannot have a society of square pegs in round holes, of dentists who should never have
left the farm and engineers who should have studied banking and teachers who could be
better as merchants.

It is time indeed that the State took decisive steps to regulate and enrich our system of
education by directing the student to the course for which he is best suited as determined by
initial tests and evaluations. Otherwise, we may be "swamped with mediocrity," in the words of
Justice Holmes, not because we are lacking in intelligence but because we are a nation of
misfits.

WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January
13, 1989, is REVERSED, with costs against the private respondent. It is so ordered.

Page 58 of 67
A.M. No. P-13-3123 June 10, 2014
ALBERTO VALDEZ, Complainant,
vs.
DESIDERIO W. MACUSI, JR., Sheriff IV, Regional Trial Court, Branch 25, Tabuk, Kalinga,
Respondent.

This administrative matter refers to the failure of respondent Desiderio W. Macusi, Jr., Sheriff
IV, Regional Trial Court (RTC) of Tabuk, Kalinga, Branch 25, to act on a writ of execution
issued by the Municipal Trial Court in Cities (MTCC) of Tabuk, Kalinga on 3 December 2003
in Criminal Case No. 4050, entitled "People v. Jorge Macusi y Wayet," for reckless
imprudence and negligence resulting in homicide. Sheriff Macusi was charged with
misfeasance, nonfeasance or conduct prejudicial to the best interest of the service.

In a letter-complaint1 dated 12 May 2009 sent to Judge Victor Dalanao (Judge Dalanao),
presiding judge of the MTCC of Tabuk, Kalinga, complainant Alberto Valdez (Valdez) alleged
that Sheriff Macusi failed to act on the writ of execution issued by the MTCC in violation of
Section 14, Rule 39 of the 1997 Rules of Civil Procedure.

In his Comment2 dated 14 July 2009, Sheriff Macusi stated that he was appointed as Sheriff
IV in the Province of Kalinga on 24 May 2004. Sheriff Macusi explained that in a Report3
dated 6 January 2004, his predecessor, Francisco C. Mabazza, served on accused Jorge
Macusi the writ of execution issued by the MTCC on 5 December 2003. However, the
accused replied that he had no money to pay for the execution. Thus, the notation in the writ
of execution was "unsatisfactory (sic) served. "Thereafter, Sheriff Macusi stated that he tried
to serve the order again by entering the residence of defendant looking for personal
properties that could be confiscated on account of the writ but to no avail. Sheriff Macusi then
asked accused to voluntarily comply with his legal obligation but found out that accused had
suffered a stroke and could no longer fend for himself and his family and resorted to
accepting charity from his sister.

In a Partial Report4 dated 3 May 2006, Sheriff Macusi filed a return of the writ of execution
stating that it was still unserved. The relevant portions of the Report state:
1. That the accused because of the incident suffered a stroke and therefrom could no longer
find a livelihood for himself and his children and as stated in the order of the Honorable Court
is now living on the charity of his sister. His sister is also tending to the needs of their mother
who also suffered the same fate because of illness that befell her son;
xxxx

3. That the court battle begun armed with the hope that the accused was never given his day
in court (in fact an ocular inspection was done to determine the seriousness of the illness of
the accused and at that time he could hardly speak and walk yet the court continued hearing
his case; thus, his right to be present in all the stages of the court proceedings of his case
was denied) will be imprisoned should the decision of the Hon. Court will (sic) be against him;
xxxx

Sheriff Macusi averred that he could not be held liable for misfeasance, nonfeasance or
conduct prejudicial to the best interest of the service since he carried out all the possible legal
remedies on execution and satisfaction of judgment under the rules.
Page 59 of 67
On 19 June 2006, Judge Dalanao issued an Order5 stating that the Partial Report dated 3
May 2006 of Sheriff Macusi was an improper and inadequate report as required under the
Rules. The relevant portions of the Order state:

It appears therefrom that the said report is not the report contemplated by law, which should
be submitted monthly to the Court (Section 14, Rule 39, 1997 Rules of Civil Procedure).

Instead, the Sheriff appears to be lawyering for accused, even going to the extent of accusing
the Court of having denied the accused his day in Court. Certainly, this comment, from a
responsible officer of the Court is unwarranted or without any justification at all. Not only that,
it will certainly diminish the good image of the Court, and worst, tarnish the faith and
confidence of the litigants in our judicial processes.

The Court just came to know that the accused in this case is the brother of Sheriff Desiderio
Macusi. The least that he should have done was to inhibit himself from handling this case.
Furnish a copy of this Order to the Executive Judge for his information and/or appropriate
action without prejudice for this Court to take measures appropriate under the premises,
where warranted.

SO ORDERED.

Valdez, in the letter-complaint, added that Sheriff Macusi did not submit another report to the
court since the time the MTCC issued the Order dated 19 June 2006. Acting on the letter-
complaint, Judge Dalanao issued an Order dated 13 May 2009 endorsing the letter-complaint
to the Office of the Court Administrator (OCA) for appropriate action.

In a Report dated 1 June 2010,the OCA recommended that the administrative complaint be
referred tothe Executive Judge of the RTC of Bulanao, Tabuk City, Kalinga, Branch 25, for
investigation, report and recommendation within 60 days from receipt of notice. In a
Resolution6 dated 28 July 2010, this Court adopted the recommendation of the OCA and
referred the matter to Executive Judge Marcelino K. Wacas (Judge Wacas).

In an Investigation Report7 dated 20 April 2012, Judge Wacas found no substantial evidence
to hold Sheriff Macusi for the offense charged and recommended the dismissal of the
complaint. In a Resolution8 dated 4 July 2012, this Court referred the Investigation Report to
the OCA.

In its Report9 dated 23 April 2013, the OCA disagreed with the recommendation of Judge
Wacas and found Sheriff Macusi liable for (1) simple neglect of duty for his failure to submit
the proper returns, and (2) violation of the Code of Conduct for Court Personnel for his failure
to disclose that the accused in "People v. Jorge Macusi y Wayet"is his brother. The OCA
recommended that Sheriff Macusi be suspended from office for two months without pay. The
recommendation of the OCA states:
1. The instant administrative complaint be RE-DOCKETED as a regular administrative matter;
2. Desiderio W. Macusi, Jr., Sheriff IV, Branch 25, Regional Trial Court, Tabuk, Kalinga, be
held LIABLE for Simple Neglect of Duty and Violation of the Code of Conduct for Court
Personnel; and

Page 60 of 67
3. Sheriff Macusi be SUSPENDED from office for two (2) months without pay, with a
WARNING that a repetition of the same or a similar act shall be dealt with more severely.10

We adopt the findings of the OCA but modify its recommendation on the penalty.

Section 14, Rule 39 of the 1997 Rules of Civil Procedure states:

Section 14. Return of writ of execution. The writ of execution shall be returnable to the
court issuing it immediately after the judgment has been satisfied in part or in full. If the
judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ, the
officer shall report to the court and state the reason therefor. Such writ shall continue in effect
during the period within which the judgment may be enforced by motion. The officer shall
make a report to the court every thirty (30) days on the proceedings taken thereon until the
judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set
forth the whole of the proceedings taken, and shall be filed with the court and copies thereof
promptly furnished the parties.

The 30-day period imposed for the execution of the writ after the judgment has been received
by the sheriff, as well as the periodic report every 30 days, is mandatory under the rule. In
Aquino v. Martin,11 we held that it is mandatory for the sheriff to execute the judgment and
make a return on the writ of execution within the period provided by the Rules of Court. Also,
the sheriff must make periodic reports on partially satisfied or unsatisfied writs in accordance
with the rule in order that the court and the litigants are apprised of the proceedings
undertaken. Such periodic reporting on the status of the writs must be done by the sheriff
regularly and consistently every 30 days until they are returned fully satisfied.

In the present case, the records show that Sheriff Macusi submitted only one return of writ of
execution in his Partial Report dated 3 May 2006 and did not file any other report to the court.
Sheriff Macusi failed to implement the court order and failed to submit periodic reports of the
actions he had taken on the writ "every 30 days until the judgment is satisfied in full, or its
effectivity expires," as required by the Rules. In Dilan v. Dulfo,12 we held that sheriffs play an
important part in the administration of justice because they are tasked to execute the final
judgment of courts. If not enforced, such decisions are empty victories on the part of the
prevailing parties. Clearly, Sheriff Macusi was remiss in his duties and is thus liable for simple
neglect of duty.

Simple neglect of duty is the failure to give attention to a task, or the disregard of a duty due
to carelessness or indifference. Under the Revised Uniform Rules on Administrative Cases in
the Civil Service,13 simple neglect of duty is a less grave offense punishable with suspension
of one month and one day to six months for the first offense and dismissal for the second
offense.14

Further, aside from Sheriff Macusis long delay in the enforcement of the writ, it has also been
verified by the OCA that Sheriff Macusi is the brother of the accused Jorge Macusi in Criminal
Case No. 4050. Section 1(a)(i) of Canon III of the Code of Conduct for Court Personnel
provides:

Page 61 of 67
Section 1. Court personnel shall avoid conflicts of interest in performing official duties.
1wphi1 Every court personnel is required to exercise utmost diligence in being aware of
conflicts of interest, disclosing conflicts of interest to the designated authority, and terminating
them as they arise.
(a) A conflict of interest exists when:
(i) The court personnels objective ability or independence of judgment in performing official
duties is impaired or may reasonably appear to be impaired; x x x

As an officer of the court, Sheriff Macusi should have informed the court and inhibited himself
from enforcing the writ knowing fully well that there is a conflict of interest since the accused
is his brother. It is incumbent upon him, as an agent of the law, to adhere to high ethical
standards in order to preserve the good name and standing of the court. In Office of the Court
Administrator v. Sheriff IV Cabe,15 we emphasized the heavy burden and responsibility which
court personnel bear in view of their exalted positions as keepers of public faith. They must be
constantly reminded that any impression of impropriety, misdeed or negligence in the
performance of official functions must be avoided. We agree with the OCA that Sheriff Macusi
violated the Code of Conduct for Court Personnel for his failure to disclose that the accused in
"People v. Jorge Macusi y Wayet"is his brother. The Rules classify this violation of existing
Civil Service Law and rules a serious offense punishable with suspension of one month and
one day to six months for the first offense and dismissal for the second offense.16

We disagree with the penalty of suspension for two months without pay as recommended by
the OCA. This is the second time that Sheriff Macusi was found guilty of simple neglect of
duty. In the 2013 case of Office of the Court Administrator v. Macusi, Jr.,17 this Court found
Sheriff Macusi liable for simple neglect of duty for his "failure to file periodic reports on the
Writ of Execution dated 10 September 2008 in Civil Case No. 429-06, as well as on the writs
of execution in the other cases in Judge Dalanaos inventory." However, instead of imposing
on him the penalty of suspension from service in accordance with the Rules, the Court
imposed on him the penalty of fine of P4,000 since he was deemed resigned from
government service after filing his certificate of candidacy for the 2010 local elections.

Here, respondent is found guilty of committing two offenses: (1) simple neglect of duty
(second offense), and (2) violation of civil service law and rules of a serious nature (first
offense). Thus, the penalty for the more serious offense must be imposed. This is expressly
laid down under Section 55, Rule IV of the Revised Uniform Rules on Administrative Cases in
the Civil Service which states:

Section 55. Penalty for the Most Serious Offense. If the respondent is found guilty of two or
more charges or counts, the penalty to be imposed should be that corresponding to the most
serious charge or count and the rest shall be considered as aggravating circumstances.

In view of the circumstances, the penalty that should be imposed is dismissal from the
government service. However, considering that Sheriff Macusi was deemed resigned after
filing his certificate of candidacy making the penalty of dismissal no longer feasible, we
impose on him the penalty of forfeiture of retirement benefits, except accrued leave credits,
with prejudice to reemployment in any branch or instrumentality of the government, including
government owned and controlled corporations, since he had been previously warned that a
repetition of the same or similar act would be dealt with more severely.18
Page 62 of 67
WHEREFORE, we find respondent Desiderio W. Macusi, Jr., Sheriff IV, Regional Trial Court
of Tabuk, Kalinga, Branch 25, GUILTY of SIMPLE NEGLECT OF DUTY and VIOLATION OF
THE CODE OF CONDUCT FOR COURT PERSONNEL and impose on him the penalty of
forfeiture of retirement benefits, except accrued leave credits, with prejudice to reemployment
in any branch or instrumentality of the government, including government-owned and
controlled corporations.
SO ORDERED.

Page 63 of 67
A.M. No. MTJ-14-1841 June 2, 2014
(Formerly OCA IPI No. 11-2388-MTJ)
GERSHON N. DULANG, Complainant,
vs.
JUDGE MARY JOCYLEN1 G. REGENCIA, MUNICIPAL CIRCUIT TRIAL COURT (MCTC),
ASTURIAS-BALAMBAN, CEBU, Respondent.

This is an administrative case for gross inefficiency, gross ignorance of the. law, gross
incompetence, serious misconduct, and serious dereliction of duty against respondent Judge
Mary Jocylen G. Regencia (Judge Regencia) of the Municipal Circuit Trial Court of Asturias-
Balamban, Cebu (MCTC), commenced thru a Verified Complaint2 dated May 28, 2011 filed by
complainant Gershon N. Dulang (Dulang) before the Office of the Court Administrator (OCA).

The Facts

The instant case stemmed from an ejectment complaint with prayer for the issuance of a writ
of preliminary injunction, docketed as Civil Case No. 212-B, entitled "Spouses Gershon
Dulang and Luzviminda Dulang, represented by Reynaldo Moldez v. Emmanuel Flores,"
which was filed before the MCTC on Februrary 2, 2000 (ejectment case).

In the Verified Complaint, Dulang alleged that on May 4, 2009, he moved3 for the resolution of
the above-mentioned ejectment case, given that the same had been filed as early as year
2000 and had already been submitted for resolution.4 Notwithstanding the summary nature of
the ejectment proceedings, Judge Regencia rendered a Judgment5 dismissing the ejectment
case only on February 18, 2011(February 18, 2011 Judgment), or more than 11 years since
its filing. Consequently, the Notice of Judgment was issued only on March 7, 2011 and mailed
on March 15, 2011.6

Dulang likewise noted that Judge Regencia was previously found administratively liable for
gross inefficiency in Tam v. Judge Regencia7 and was thereby ordered to pay a fine of
5,000.00 and warned that a repetition of the same or similar offense will be dealt with more
severely.8

On September 1, 2011, Dulang filed a Verified Supplemental Complaint to the Verified

Complaint dated May 28, 2011 (supplemental complaint)9 before the OCA, alleging that
despite the filing of a notice of appeal from Judge Regencias February 18, 2011 Judgment,
the latter nevertheless issued an Order10 dated August 1, 2011 (August 1, 2011 Order)
directing the postmaster and postal carrier of the Cebu Central Post Office, Cebu City to
certify Dulangs receipt of a copy of the said Judgment. In this regard, Dulang accused Judge
Regencia ofgross ignorance of the law, gross incompetence, serious misconduct, and serious
dereliction of duty, contending that by filing his appeal, the latter was already stripped of her
(Judge Regencia) jurisdiction over the case and should not have issued the said order.
Dulang claimed that this effectively stalled the administration of justice, much to his prejudice.
11

In her Comments (to the Verified Complaint)12 dated August 7, 2011, Judge Regencia
maintained that no trial was held in Civil Case No. 212-B as the parties merely filed their
respective position papers and that she could have easily resolved the said case if not for
another case pending before the Regional Trial Court of Toledo City, Branch 59 (Toledo City
Page 64 of 67
RTC), i.e., Civil Case No. T-862, entitled "Spouses Emmanuel Flores and Daisy Flores v.
Spouses Jose G. Paulin and Eleodora Ganhinhin, et al.," which was closely intertwined with
the former.13

As such, she found it prudent to defer the resolution of Civil Case No. 212-B until Civil Case
No. T-862 was decided. She also averred that she should not be faulted for the long delay in
resolving the ejectment case as she assumed her post as MCTC judge only in November
2002 and, thereafter, began presiding over the same starting on November 15, 2007.14

In opposition to the accusations contained in the supplemental complaint, Judge Regencia

commented that she issued the August 1, 2011 Order because the defendant in the ejectment
case, Emmanuel Flores (Flores), opposed Dulangs notice of appeal. She explained that this
order was merely intended to determine whether or not Dulang filed his appeal within the
reglementary period.15

Pursuant to the Courts Resolution16 dated July 30, 2012, the administrative case was
referred to the Executive Judge of the Toledo City RTC for investigation, report, and
recommendation. Consequently, in his Report and Recommendation17 dated December 20,
2012, Executive Judge Hermes B. Montero (Judge Montero) found Judge Regencia
administratively liable for gross inefficiency, gross ignorance of the law, gross incompetence,
serious misconduct, and serious dereliction of duty in handling the ejectment case, and
thereby recommended that she be dismissed from service.18Judge Montero opined that
Judge Regencia failed to observe the Rules on Summary Procedure as she did not resolve
said case with dispatch; despite the case having been submitted for resolution on October 17,
2008, she only rendered judgment on February18, 2011, or after more than 11 years since the
case was filed. Judge Montero also pointed out that contrary to Judge Regencias
contentions, there was no suspension of the proceedings that was agreed upon by the parties
and that no prejudicial question ever existed to warrant a discontinuance of the same.19

Meanwhile, Judge Regencia filed a Motion for Reconsideration20 of the Courts Resolution
dated July 30, 2012 referring her administrative case to Judge Montero for investigation,
report, and recommendation. She argued that Judge Montero cannot be expected to make an
impartial investigation of her case as he is the "compadre" of Dulangs lawyer and that he had
constantly shown a hostile attitude towards her. Judge Regencia also sent two (2) letters,21
both dated April 10, 2013, informing the Court that Dulang was reportedly killed and that she
had verified this information with Flores. In view of Dulangs death, Judge Regencia prayed
that the administrative case against her be dismissed.22

The Action and Recommendation of the OCA

In a Memorandum23 dated November 22, 2013, the OCA recommended that Judge Regencia
be held administratively liable for undue delay in rendering a decision, and thereby fined her
in the amount of 20,000.00 with a stern warning that a repetition of the same or similar acts
shall be dealt with more severely. It agreed with the findings of Judge Montero that there is no
justifiable excuse for Judge Regencia not to render judgment in the ejectment case within the
30-day reglementary period mandated by the Rules on Summary Procedure. In this relation,
the OCA brushed aside Judge Regencias charge of partiality against Judge Montero for lack

Page 65 of 67
of factual support and equally disregarded the fact of Dulangs death, holding that such
circumstance does not automatically result in the dismissal of his administrative complaint.24

However, the OCA no longer determined Judge Regencias administrative liability with respect
to the charges of gross inefficiency, gross ignorance of the law, gross incompetence, serious
misconduct, and serious dereliction of duty. Hence, in due deference to her right to be
afforded due process, said charges shall no longer be tackled herein.

The Issue Before the Court

The sole issue raised for the Courts resolution is whether or not Judge Regencia may be held
administratively liable for undue delay in rendering a decision.

The Courts Ruling

The Court agrees with the findings and conclusions of the OCA, with the modification,
however, as to the penalty imposed on Judge Regencia.

Prompt disposition of cases is attained basically through the efficiency and dedication to duty
of judges. If judges do not possess those traits, delay in the disposition of cases is inevitable
to the prejudice of the litigants. Accordingly, judges should be imbued with a high sense of
duty and responsibility in the discharge of their obligation to administer justice promptly.25 This
is embodied in Rule 3.05, Canon 3 of the Code of Judicial Conduct which states that "[a]
judge shall dispose of the courts business promptly and decide cases within the required
periods" and echoed in Section 5, Canon 6 of the New Code of Judicial Conduct for the
Philippine Judiciary26 which provides that "[j]udges shall perform all judicial duties, including
the delivery of reserved decisions, efficiently, fairly, and with reasonable promptness."

Here, it is undisputed that Civil Case No. 212-B was already submitted for resolution on
October 17, 2008. Being an ejectment case, it is governed by the Rules of Summary
Procedure which clearly sets a period of thirty (30) days from the submission of the last
affidavit or position paper within which a decision thereon must be issued.27 Despite this,
Judge Regencia rendered judgment only about two (2) years and four (4) months later, or on
February 18,2011. While rules prescribing the time within which certain acts must be done are
indispensable to prevent needless delays in the orderly and speedy disposition of cases and,
thus, should be regarded as mandatory,28 the Court has nevertheless been mindful of the
plight of judges and has been understanding of circumstances that may hinder them from
promptly disposing of their businesses and, as such, has allowed extensions of time due to
justifiable reasons.29

However, Judge Regencia failed to proffer any acceptable reason in delaying the disposition
of the ejectment case, thus, making her administratively liable for undue delay in rendering a
decision.

Further, as adverted to earlier, Judge Regencia tried to justify the delay in resolving Civil Case
No. 212-B by claiming, inter alia, that there exists a prejudicial question brought about by the
existence of a pending case in the Toledo RTC and that the parties agreed on the suspension
of the proceedings. However, Judge Montero found that there was neither a prejudicial
Page 66 of 67
question nor an agreement between the litigants that would warrant substantial delays in the
proceedings a finding which is subscribed to by the OCA.30 Verily, Judge Regencias clear
and blatant attempt to mislead the Court is deplorable and should never be countenanced.
1wphi1

Undue delay in rendering a decision is classified as a less serious charge, punishable either
by: (a) suspension from office without salary and other benefits for not less than one nor more
than three months; or ( b) a fine of more than P10,000.00 but not exceeding P20,000.00.31 In
imposing the proper sanction on Judge Regencia, the Court notes that aside from her
aforementioned misrepresentation, she was also previously found administratively liable for
gross inefficiency where she was ordered to pay a fine of PS,000.00 and warned that a
repetition of the same or similar offense will be dealt with more severely.32 Moreover, as
correctly observed by Justice Arturo D. Brion during the deliberations of this case, her length
of service of more .than 17 years should be taken against her instead of being considered a
mitigating factor as she should have already known that Civil Case No. 212-B, being an
ejectment case, is a summary proceeding and, thus, ought to be expeditiously resolved.33
Hence, a fine of P40,000.00, instead of suspension, should be the appropriate penalty for
Judge Regencia' s misconduct.

WHEREFORE, the Court finds respondent Judge Mary Jocylen G. Regencia of the Municipal
Circuit Trial Court of Asturias-Balamban, Cebu, GUILTY of undue delay in rendering a
decision. Accordingly, she is ordered to pay a fine of P40,000.00 and is STERNLY WARNED
that a repetition of the same or similar acts in the future shall be dealt with more severely.

SO ORDERED.

Page 67 of 67