1
ARTICLE 2
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, vs.HON. JUAN C. TUVERA
Invoking the people's right to be informed on matters of public
concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be
valid and enforceable must be published in the Official Gazette
or otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish,
and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and
administrative orders.
Specifically, the publication of the following presidential
issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103,
171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312,
324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504,
521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661,
718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166,
1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808,
1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108,
116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187,
188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-
224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-
269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-
303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440,
444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641,
642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882,
939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 &
65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,
1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-
1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600,
1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-
1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797,
1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-
1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868,
1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454,
457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-
532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609, 611- 647, 649-677,
679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-
27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122,
123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360-
378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this
case dismissed outright on the ground that petitioners have no
legal personality or standing to bring the instant petition. The
view is submitted that in the absence of any showing that
petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal
personality to institute this mandamus proceeding, they are not
being "aggrieved parties" within the meaning of Section 3, Rule
65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal,
corporation, board or person 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 a rd enjoyment
of a right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the
facts with certainty and praying that judgment be rendered
commanding the defendant, immediately or at some other
specified time, to do the act required to be done to Protect
the rights of the petitioner, and to pay the damages
sustained by the petitioner by reason of the wrongful acts
of the defendant.
Upon the other hand, petitioners maintain that since the subject
of the petition concerns a public right and its object is to compel
the performance of a public duty, they need not show any
specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the
1910 case of Severino vs. Governor General, 3 this Court held
that while the general rule is that "a writ of mandamus would be
granted to a private individual only in those cases where he has
some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he
holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be
subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
nevertheless, "when the question is one of public right and the
object of the mandamus is to procure the enforcement of a
public duty, the people are regarded as the real party in interest
and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special interest
in the result, it being sufficient to show that he is a citizen and as
such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope
Severino, a private individual, as a proper party to the
mandamus proceedings brought to compel the Governor
General to call a special election for the position of municipal
president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of
authority supports the proposition that the relator is a
proper party to proceedings of this character when a
public right is sought to be enforced. If the general rule in
America were otherwise, we think that it would not be
applicable to the case at bar for the reason 'that it is
always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule,
because, if under the particular circumstances the
reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to
error'
No reason exists in the case at bar for applying the
general rule insisted upon by counsel for the respondent.
The circumstances which surround this case are
different from those in the United States, inasmuch as if
the relator is not a proper party to these proceedings no
other person could be, as we have seen that it is not the
duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's
legal personality in the aforementioned case apply squarely to
the present petition. Clearly, the right sought to be enforced by
petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to
institute this proceeding, it would indeed be difficult to conceive
of any other person to initiate the same, considering that the
Solicitor General, the government officer generally empowered
to represent the people, has entered his appearance for
respondents in this case.
Respondents further contend that publication in the Official
Gazette is not a sine qua non requirement for the effectivity of
laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in
question contain special provisions as to the date they are to
take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored
on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette,
unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this
Court's construction of said article. In a long line of
decisions, 4 this Court has ruled that publication in the Official
Gazette is necessary in those cases where the legislation itself
does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which
is the fifteenth day following its publication-but not when the law
itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only
insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable to
the issue at hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its
effectivity. Thus, Section 1 of Commonwealth Act 638 provides
as follows:
2
Section 1. There shall be published in the Official Gazette
[1] all important legisiative acts and resolutions of a public
nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations,
except such as have no general applicability; [3] decisions
or abstracts of decisions of the Supreme Court and the
Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such
documents or classes of documents as may be required
so to be published by law; and [5] such documents or
classes of documents as the President of the Philippines
shall determine from time to time to have general
applicability and legal effect, or which he may authorize
so to be published. ...
The clear object of the above-quoted provision is to give the
general public adequate notice of the various laws which are to
regulate their actions and conduct as citizens. Without such
notice and publication, there would be no basis for the
application of the maxim "ignorantia legis non excusat." It would
be the height of injustice to punish or otherwise burden a citizen
for the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital significance
that at this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the legislature.
While the people are kept abreast by the mass media of the
debates and deliberations in the Batasan Pambansa—and for
the diligent ones, ready access to the legislative records—no
such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means
of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves
of the specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la denominacion generica
de leyes, se comprenden tambien los reglamentos, Reales
decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su
potestad. 5
The very first clause of Section I of Commonwealth Act 638
reads: "There shall be published in the Official Gazette ... ." The
word "shall" used therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the Constitutional
right of the people to be informed on matters of public concern is
to be given substance and reality. The law itself makes a list of
what should be published in the Official Gazette. Such listing, to
our mind, leaves respondents with no discretion whatsoever as
to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature"
or "of general applicability" is mandated by law. Obviously,
presidential decrees that provide for fines, forfeitures or penalties
for their violation or otherwise impose a burden for the people,
such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular
persons or class of persons such as administrative and
executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a

requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and
specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of
instructions which all form part of the law of the land, the
requirement of due process and the Rule of Law demand
that the Official Gazette as the official government
repository promulgate and publish the texts of all such
decrees, orders and instructions so that the people may
know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of
general application, which have not been published, shall have
no force and effect. Some members of the Court, quite
apprehensive about the possible unsettling effect this decision
might have on acts done in reliance of the validity of those
presidential decrees which were published only during the
pendency of this petition, have put the question as to whether
the Court's declaration of invalidity apply to P.D.s which had
been enforced or implemented prior to their publication. The
answer is all too familiar. In similar situations in the past this
Court had taken the pragmatic and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the
Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry.
Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to
such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may
have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights
claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both
of the statute and of its previous application, demand
examination. These questions are among the most
difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous
decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban 9 sustained the right of a party under the Moratorium
Law, albeit said right had accrued in his favor before said law
was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential
decrees prior to their publication in the Official Gazette is "an
operative fact which may have consequences which cannot be
justly ignored. The past cannot always be erased by a new
judicial declaration ... that an all-inclusive statement of a principle
of absolute retroactive invalidity cannot be justified."
3
From the report submitted to the Court by the Clerk of Court, it
appears that of the presidential decrees sought by petitioners to
be published in the Official Gazette, only Presidential Decrees
Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published. 10 Neither the subject matters nor
the texts of these PDs can be ascertained since no copies
thereof are available. But whatever their subject matter may be,
it is undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government. In Pesigan
vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled
that "publication is necessary to apprise the public of the
contents of [penal] regulations and make the said penalties
binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials
considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting
violations of criminal laws until the same shall have been
published in the Official Gazette or in some other publication,
even though some criminal laws provide that they shall take
effect immediately.
WHEREFORE, the Court hereby orders respondents to publish
in the Official Gazette all unpublished presidential issuances
which are of general application, and unless so published, they
shall have no binding force and effect.
SO ORDERED.
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY, vs. COURT OF APPEALS
CORTES, J.:
This special civil action for certiorari seeks to declare null and
void two (2) resolutions of the Special First Division of the Court
of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa
Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first
resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for
reconsideration and directed entry of judgment since the
decision in said case had become final; and the second
Resolution dated 27 October 1987 denied petitioners' motion for
reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright
for not being verified as required by Rule 65 section 1 of the
Rules of Court. However, even if the instant petition did not
suffer from this defect, this Court, on procedural and substantive
grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-
out building owned by petitioners collapsed and destroyed the
tailoring shop occupied by the family of private respondents,
resulting in injuries to private respondents and the death of
Marissa Bernal, a daughter. Private respondents had been
warned by petitioners to vacate their shop in view of its proximity
to the weakened wall but the former failed to do so. On the basis
of the foregoing facts, the Regional Trial Court. First Judicial
Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen,
rendered judgment finding petitioners guilty of gross negligence
and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of

Appeals in a decision promulgated on August 17, 1987, a copy
of which was received by petitioners on August 25, 1987. On
September 9, 1987, the last day of the fifteen-day period to file
an appeal, petitioners filed a motion for extension of time to file a
motion for reconsideration, which was eventually denied by the
appellate court in the Resolution of September 30, 1987.
Petitioners filed their motion for reconsideration on September
24, 1987 but this was denied in the Resolution of October 27,
1987.
This Court finds that the Court of Appeals did not commit a grave
abuse of discretion when it denied petitioners' motion for
extension of time to file a motion for reconsideration, directed
entry of judgment and denied their motion for reconsideration. It
correctly applied the rule laid down in Habaluyas Enterprises,
Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461,
that the fifteen-day period for appealing or for filing a motion for
reconsideration cannot be extended. In its Resolution denying
the motion for reconsideration, promulgated on July 30, 1986
(142 SCRA 208), this Court en banc restated and clarified the
rule, to wit:
Beginning one month after the promulgation of this Resolution,
the rule shall be strictly enforced that no motion for extension of
time to file a motion for reconsideration may be filed with the
Metropolitan or Municipal Trial Courts, the Regional Trial Courts,
and the Intermediate Appellate Court. Such a motion may be
filed only in cases pending with the Supreme Court as the court
of last resort, which may in its sound discretion either grant or
deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the
intermediate Appellate Court, [G.R. No. 73146-53, August 26,
1986, 143 SCRA 643], reiterated the rule and went further to
restate and clarify the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept.
15, 1986,144 SCRA 161],stressed the prospective application of
said rule, and explained the operation of the grace period, to wit:
In other words, there is a one-month grace period from
the promulgation on May 30, 1986 of the Court's
Resolution in the clarificatory Habaluyas case, or up to
June 30, 1986, within which the rule barring extensions of
time to file motions for new trial or reconsideration is, as
yet, not strictly enforceable.
Since petitioners herein filed their motion for extension on
February 27, 1986, it is still within the grace period, which
expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate
Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA
306].]
In the instant case, however, petitioners' motion for extension of
time was filed on September 9, 1987, more than a year after the
expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the
length of time from the expiration of the grace period to the
promulgation of the decision of the Court of Appeals on August
25, 1987, petitioners cannot seek refuge in the ignorance of their
4
counsel regarding said rule for their failure to file a motion for
reconsideration within the reglementary period.
Petitioners contend that the rule enunciated in
the Habaluyas case should not be made to apply to the case at
bar owing to the non-publication of the Habaluyas decision in the
Official Gazette as of the time the subject decision of the Court
of Appeals was promulgated. Contrary to petitioners' view, there
is no law requiring the publication of Supreme Court decisions in
the Official Gazette before they can be binding and as a
condition to their becoming effective. It is the bounden duty of
counsel as lawyer in active law practice to keep abreast of
decisions of the Supreme Court particularly where issues have
been clarified, consistently reiterated, and published in the
advance reports of Supreme Court decisions (G. R. s) and in
such publications as the Supreme Court Reports Annotated
(SCRA) and law journals.
This Court likewise finds that the Court of Appeals committed no
grave abuse of discretion in affirming the trial court's decision
holding petitioner liable under Article 2190 of the Civil Code,
which provides that "the proprietor of a building or structure is
responsible for the damage resulting from its total or partial
collapse, if it should be due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private
respondents had the "last clear chance" to avoid the accident if
only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded,
since the doctrine of "last clear chance," which has been applied
to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to
DENY the instant petition for lack of merit.
ARTICLE 4
A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR.,
This is a complaint by Lupo A. Atienza for Gross Immorality and
Appearance of Impropriety against Judge Francisco Brillantes,
Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20,
Manila.
Complainant alleges that he has two children with Yolanda De
Castro, who are living together at No. 34 Galaxy Street, Bel-Air
Subdivision, Makati, Metro Manila. He stays in said house, which
he purchased in 1987, whenever he is in Manila.
In December 1991, upon opening the door to his bedroom, he
saw respondent sleeping on his (complainant's) bed. Upon
inquiry, he was told by the houseboy that respondent had been
cohabiting with De Castro. Complainant did not bother to wake
up respondent and instead left the house after giving instructions
to his houseboy to take care of his children.
Thereafter, respondent prevented him from visiting his children
and even alienated the affection of his children for him.

Complainant claims that respondent is married to one Zenaida
Ongkiko with whom he has five children, as appearing in his
1986 and 1991 sworn statements of assets and liabilities.
Furthermore, he alleges that respondent caused his arrest on
January 13, 1992, after he had a heated argument with De
Castro inside the latter's office.
For his part, respondent alleges that complainant was not
married to De Castro and that the filing of the administrative
action was related to complainant's claim on the Bel-Air
residence, which was disputed by De Castro.
Respondent denies that he caused complainant's arrest and
claims that he was even a witness to the withdrawal of the
complaint for Grave Slander filed by De Castro against
complainant. According to him, it was the sister of De Castro
who called the police to arrest complainant.
Respondent also denies having been married to Ongkiko,
although he admits having five children with her. He alleges that
while he and Ongkiko went through a marriage ceremony before
a Nueva Ecija town mayor on April 25, 1965, the same was not a
valid marriage for lack of a marriage license. Upon the request of
the parents of Ongkiko, respondent went through another
marriage ceremony with her in Manila on June 5, 1965. Again,
neither party applied for a marriage license. Ongkiko abandoned
respondent 17 years ago, leaving their children to his care and
custody as a single parent.
Respondent claims that when he married De Castro in civil rites
in Los Angeles, California on December 4, 1991, he believed, in
all good faith and for all legal intents and purposes, that he was
single because his first marriage was solemnized without a
license.
Under the Family Code, there must be a judicial declaration of
the nullity of a previous marriage before a party thereto can enter
into a second marriage. Article 40 of said Code provides:
The absolute nullity of a previous marriage
may be invoked for the purposes of remarriage
on the basis solely of a final judgment
declaring such previous marriage void.
Respondent argues that the provision of Article 40 of the Family
Code does not apply to him considering that his first marriage
took place in 1965 and was governed by the Civil Code of the
Philippines; while the second marriage took place in 1991 and
governed by the Family Code.
Article 40 is applicable to remarriages entered into after the
effectivity of the Family Code on August 3, 1988 regardless of
the date of the first marriage. Besides, under Article 256 of the
Family Code, said Article is given "retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws." This is particularly
true with Article 40, which is a rule of procedure. Respondent
has not shown any vested right that was impaired by the
application of Article 40 to his case.
The fact that procedural statutes may somehow affect the
litigants' rights may not preclude their retroactive application to
pending actions. The retroactive application of procedural laws is
5
not violative of any right of a person who may feel that he is
adversely affected (Gregorio v. Court of Appeals, 26 SCRA 229
[1968]). The reason is that as a general rule no vested right may
attach to, nor arise from, procedural laws (Billones v. Court of
Industrial Relations, 14 SCRA 674 [1965]).
Respondent is the last person allowed to invoke good faith. He
made a mockery of the institution of marriage and employed
deceit to be able to cohabit with a woman, who beget him five
children.
Respondent passed the Bar examinations in 1962 and was
admitted to the practice of law in 1963. At the time he went
through the two marriage ceremonies with Ongkiko, he was
already a lawyer. Yet, he never secured any marriage license.
Any law student would know that a marriage license is
necessary before one can get married. Respondent was given
an opportunity to correct the flaw in his first marriage when he
and Ongkiko were married for the second time. His failure to
secure a marriage license on these two occasions betrays his
sinister motives and bad faith.
It is evident that respondent failed to meet the standard of moral
fitness for membership in the legal profession.
While the deceit employed by respondent existed prior to his
appointment as a Metropolitan Trial Judge, his immoral and
illegal act of cohabiting with De Castro began and continued
when he was already in the judiciary.
The Code of Judicial Ethics mandates that the conduct of a
judge must be free of a whiff of impropriety, not only with respect
to his performance of his judicial duties but also as to his
behavior as a private individual. There is no duality of morality. A
public figure is also judged by his private life. A judge, in order to
promote public confidence in the integrity and impartiality of the
judiciary, must behave with propriety at all times, in the
performance of his judicial duties and in his everyday life. These
are judicial guideposts too self-evident to be overlooked. No
position exacts a greater demand on moral righteousness and
uprightness of an individual than a seat in the judiciary (Imbing v.
Tiongzon, 229 SCRA 690 [1994]).
WHEREFORE, respondent is DISMISSED from the service with
forfeiture of all leave and retirement benefits and with prejudice
to reappointment in any branch, instrumentality, or agency of the
government, including government-owned and controlled
corporations. This decision is immediately executory.
SO ORDERED.
G.R. No. 179922 December 16, 2008
JUAN DE DIOS CARLOS, petitioner,
vs.
FELICIDAD SANDOVAL,
ONLY a spouse can initiate an action to sever the marital bond
for marriages solemnized during the effectivity of the Family
Code, except cases commenced prior to March 15, 2003. The
nullity and annulment of a marriage cannot be declared in a

judgment on the pleadings, summary judgment, or confession of
judgment.
We pronounce these principles as We review on certiorari the
Decision1 of the Court of Appeals (CA) which reversed and set
aside the summary judgment2 of the Regional Trial Court (RTC)
in an action for declaration of nullity of marriage, status of a
child, recovery of property, reconveyance, sum of money, and
damages.
The Facts
The events that led to the institution of the instant suitare
unveiled as follows:
Spouses Felix B. Carlos and Felipa Elemia died intestate. They
left six parcels of land to their compulsory heirs, Teofilo Carlos
and petitioner Juan De Dios Carlos. The lots are particularly
described as follows:
Parcel No. 1
Lot No. 162 of the MUNTINLUPA ESTATE
SUBDIVISION, Case No. 6137 of the Court of Land
Registration.
Exemption from the provisions of Article 567 of the Civil
Code is specifically reserved.
Area: 1 hectare, 06 ares, 07 centares.
Parcel No. 2
A parcel of land (Lot No. 159-B), being a portion of Lot
159, situated in the Bo. of Alabang, Municipality of
Muntinlupa, Province of Rizal, x x x containing an area
of Thirteen Thousand Four Hundred Forty One (13,441)
square meters.
Parcel No. 3
A parcel of land (Lot 159-B-2 of the subd. plan [LRC]
Psd-325903, approved as a non-subd. project), being a
portion of Lot 159-B [LRC] Psd- Alabang, Mun. of
Muntinlupa, Metro Manila, Island of Luzon. Bounded on
the NE, points 2 to 4 by Lot 155, Muntinlupa Estate; on
the SE, point 4 to 5 by Lot 159-B-5; on the S, points 5
to 1 by Lot 159-B-3; on the W, points 1 to 2 by Lot 159-
B-1 (Road widening) all of the subd. plan, containing an
area of ONE HUNDRED THIRTY (130) SQ. METERS,
more or less.
PARCEL No. 4
A parcel of land (Lot 28-C of the subd. plan Psd-13-
007090, being a portion of Lot 28, Muntinlupa Estate,
L.R.C. Rec. No. 6137), situated in the Bo. of Alabang,
Mun. of Muntinlupa, Metro Manila. Bounded on the NE,
along lines 1-2 by Lot 27, Muntinlupa Estate; on the
East & SE, along lines 2 to 6 by Mangangata River; and
on the West., along line 6-1, by Lot 28-B of the subd.
6
plan x x x containing an area of ONE THUSAND AND
SEVENTY-SIX (1,076) SQUARE METERS.
PARCEL No. 5
PARCELA DE TERRENO No. 50, Manzana No. 18, de
la subd. de Solocan. Linda por el NW, con la parcela
49; por el NE, con la parcela 36; por el SE, con la
parcela 51; y por el SW, con la calle Dos Castillas.
Partiendo de un punto marcado 1 en el plano, el cual
se halla a S. gds. 01'W, 72.50 mts. Desde el punto 1 de
esta manzana, que es un mojon de concreto de la
Ciudad de Manila, situado on el esquina E. que forman
las Calles Laong Laan y Dos. Castillas, continiendo un
extension superficial de CIENTO CINCUENTA (150)
METROS CUADRADOS.
PARCEL No. 6
PARCELA DE TERRENO No. 51, Manzana No. 18, de
la subd. De Solocon. Linda por el NW, con la parcela
50; por el NE, con la parcela 37; por el SE, con la
parcela 52; por el SW, con la Calle Dos Castillas.
Partiendo de un punto Marcado 1 en el plano, el cual
se halla at S. 43 gds. 01'E, 82.50 mts. Desde el punto 1
de esta manzana, que es un mojon de concreto de la
Ciudad de Manila, situado on el esquina E. que forman
las Calles Laong Laan y Dos. Castillas, continiendo una
extension superficial de CIENTO CINCUENTA (150)
METROS CUADRADOS.3
During the lifetime of Felix Carlos, he agreed to transfer his
estate to Teofilo. The agreement was made in order to avoid the
payment of inheritance taxes. Teofilo, in turn, undertook to
deliver and turn over the share of the other legal heir, petitioner
Juan De Dios Carlos.
Eventually, the first three (3) parcels of land were transferred
and registered in the name of Teofilo. These three (3) lots are
now covered by Transfer Certificate of Title (TCT) No. 234824
issued by the Registry of Deeds of Makati City; TCT No. 139061
issued by the Registry of Deeds of Makati City; and TCT No.
139058 issued by the Registry of Deeds of Makati City.
Parcel No. 4 was registered in the name of petitioner. The lot is
now covered by TCT No. 160401 issued by the Registry of
Deeds of Makati City.
On May 13, 1992, Teofilo died intestate. He was survived by
respondents Felicidad and their son, Teofilo Carlos II (Teofilo II).
Upon Teofilo's death, Parcel Nos. 5 & 6 were registered in the
name of respondent Felicidad and co-respondent, Teofilo II. The
said two (2) parcels of land are covered by TCT Nos. 219877
and 210878, respectively, issued by the Registry of Deeds of
Manila.
In 1994, petitioner instituted a suit against respondents before
the RTC in Muntinlupa City, docketed as Civil Case No. 94-1964.
In the said case, the parties submitted and caused the approval
of a partial compromise agreement. Under the compromise, the
parties acknowledged their respective shares in the proceeds
from the sale of a portion of the first parcel of land. This includes
the remaining 6,691-square-meter portion of said land.

On September 17, 1994, the parties executed a deed of
extrajudicial partition, dividing the remaining land of the first
parcel between them.
Meanwhile, in a separate case entitled Rillo v. Carlos,4 2,331
square meters of the second parcel of land were adjudicated in
favor of plaintiffs Rillo. The remaining 10,000-square meter
portion was later divided between petitioner and respondents.
The division was incorporated in a supplemental compromise
agreement executed on August 17, 1994, with respect to Civil
Case No. 94-1964. The parties submitted the supplemental
compromise agreement, which was approved accordingly.
Petitioner and respondents entered into two more contracts in
August 1994. Under the contracts, the parties equally divided
between them the third and fourth parcels of land.
In August 1995, petitioner commenced an action, docketed as
Civil Case No. 95-135, against respondents before the court a
quo with the following causes of action: (a) declaration of nullity
of marriage; (b) status of a child; (c) recovery of property; (d)
reconveyance; and (e) sum of money and damages. The
complaint was raffled to Branch 256 of the RTC in Muntinlupa.
In his complaint, petitioner asserted that the marriage between
his late brother Teofilo and respondent Felicidad was a nullity in
view of the absence of the required marriage license. He
likewise maintained that his deceased brother was neither the
natural nor the adoptive father of respondent Teofilo Carlos II.
Petitioner likewise sought the avoidance of the contracts he
entered into with respondent Felicidad with respect to the subject
real properties. He also prayed for the cancellation of the
certificates of title issued in the name of respondents. He argued
that the properties covered by such certificates of title, including
the sums received by respondents as proceeds, should be
reconveyed to him.
Finally, petitioner claimed indemnification as and by way of
moral and exemplary damages, attorney's fees, litigation
expenses, and costs of suit.
On October 16, 1995, respondents submitted their answer. They
denied the material averments of petitioner's complaint.
Respondents contended that the dearth of details regarding the
requisite marriage license did not invalidate Felicidad's marriage
to Teofilo. Respondents declared that Teofilo II was the
illegitimate child of the deceased Teofilo Carlos with another
woman.
On the grounds of lack of cause of action and lack of jurisdiction
over the subject matter, respondents prayed for the dismissal of
the case before the trial court. They also asked that their
counterclaims for moral and exemplary damages, as well as
attorney's fees, be granted.
But before the parties could even proceed to pre-trial,
respondents moved for summary judgment. Attached to the
motion was the affidavit of the justice of the peace who
solemnized the marriage. Respondents also submitted the
Certificate of Live Birth of respondent Teofilo II. In the certificate,
7
the late Teofilo Carlos and respondent Felicidad were
designated as parents.
On January 5, 1996, petitioner opposed the motion for summary
judgment on the ground of irregularity of the contract evidencing
the marriage. In the same breath, petitioner lodged his own
motion for summary judgment. Petitioner presented a
certification from the Local Civil Registrar of Calumpit, Bulacan,
certifying that there is no record of birth of respondent Teofilo II.
Petitioner also incorporated in the counter-motion for summary
judgment the testimony of respondent Felicidad in another case.
Said testimony was made in Civil Case No. 89-2384,
entitled Carlos v. Gorospe, before the RTC Branch 255, Las
Piñas. In her testimony, respondent Felicidad narrated that co-
respondent Teofilo II is her child with Teofilo. 5
Subsequently, the Office of the City Prosecutor of Muntinlupa
submitted to the trial court its report and manifestation,
discounting the possibility of collusion between the parties.
RTC and CA Dispositions
On April 8, 1996, the RTC rendered judgment, disposing as
follows:
WHEREFORE, premises considered, defendant's
(respondent's) Motion for Summary Judgment is hereby
denied. Plaintiff's (petitioner's) Counter-Motion for
Summary Judgment is hereby granted and summary
judgment is hereby rendered in favor of plaintiff as
follows:
1. Declaring the marriage between defendant Felicidad
Sandoval and Teofilo Carlos solemnized at Silang,
Cavite on May 14, 1962, evidenced by the Marriage
Certificate submitted in this case, null and void ab initio
for lack of the requisite marriage license;
2. Declaring that the defendant minor, Teofilo S. Carlos
II, is not the natural, illegitimate, or legally adopted child
of the late Teofilo E. Carlos;
3. Ordering defendant Sandoval to pay and restitute to
plaintiff the sum of P18,924,800.00 together with the
interest thereon at the legal rate from date of filing of
the instant complaint until fully paid;
4. Declaring plaintiff as the sole and exclusive owner of
the parcel of land, less the portion adjudicated to
plaintiffs in Civil Case No. 11975, covered by TCT No.
139061 of the Register of Deeds of Makati City, and
ordering said Register of Deeds to cancel said title and
to issue another title in the sole name of plaintiff herein;
5. Declaring the Contract, Annex "K" of complaint,
between plaintiff and defendant Sandoval null and void,
and ordering the Register of Deeds of Makati City to
cancel TCT No. 139058 in the name of Teofilo Carlos,
and to issue another title in the sole name of plaintiff
herein;

6. Declaring the Contract, Annex M of the complaint,
between plaintiff and defendant Sandoval null and void;
7. Ordering the cancellation of TCT No. 210877 in the
names of defendant Sandoval and defendant minor
Teofilo S. Carlos II and ordering the Register of Deeds
of Manila to issue another title in the exclusive name of
plaintiff herein;
8. Ordering the cancellation of TCT No. 210878 in the
name of defendant Sandoval and defendant Minor
Teofilo S. Carlos II and ordering the Register of Deeds
of Manila to issue another title in the sole name of
plaintiff herein.
Let this case be set for hearing for the reception of
plaintiff's evidence on his claim for moral damages,
exemplary damages, attorney's fees, appearance fees,
and litigation expenses on June 7, 1996 at 1:30 o'clock
in the afternoon.
SO ORDERED.6
Dissatisfied, respondents appealed to the CA. In the appeal,
respondents argued, inter alia, that the trial court acted without
or in excess of jurisdiction in rendering summary judgment
annulling the marriage of Teofilo, Sr. and Felicidad and in
declaring Teofilo II as not an illegitimate child of Teofilo, Sr.
On October 15, 2002, the CA reversed and set aside the RTC
ruling, disposing as follows:
WHEREFORE, the summary judgment appealed from
is REVERSED and SET ASIDE and in lieu thereof, a
new one is entered REMANDING the case to the court
of origin for further proceedings.
SO ORDERED.7
The CA opined:
We find the rendition of the herein appealed summary
judgment by the court a quo contrary to law and public
policy as ensconced in the aforesaid safeguards. The
fact that it was appellants who first sought summary
judgment from the trial court, did not justify the grant
thereof in favor of appellee. Not being an action "to
recover upon a claim" or "to obtain a declaratory relief,"
the rule on summary judgment apply (sic) to an action
to annul a marriage. The mere fact that no genuine
issue was presented and the desire to expedite the
disposition of the case cannot justify a misinterpretation
of the rule. The first paragraph of Article 88 and 101 of
the Civil Code expressly prohibit the rendition of decree
of annulment of a marriage upon a stipulation of facts or
a confession of judgment. Yet, the affidavits annexed to
the petition for summary judgment practically amount to
these methods explicitly proscribed by the law.
We are not unmindful of appellee's argument that the
foregoing safeguards have traditionally been applied to
prevent collusion of spouses in the matter of dissolution
8
of marriages and that the death of Teofilo Carlos on
May 13, 1992 had effectively dissolved the marriage
herein impugned. The fact, however, that appellee's
own brother and appellant Felicidad Sandoval lived
together as husband and wife for thirty years and that
the annulment of their marriage is the very means by
which the latter is sought to be deprived of her
participation in the estate left by the former call for a
closer and more thorough inquiry into the
circumstances surrounding the case. Rather that the
summary nature by which the court a quo resolved the
issues in the case, the rule is to the effect that the
material facts alleged in the complaint for annulment of
marriage should always be proved. Section 1, Rule 19
of the Revised Rules of Court provides:
"Section 1. Judgment on the pleadings. -
Where an answer fails to tender an issue, or
otherwise admits the material allegations of
the adverse party's pleading, the court may,
on motion of that party, direct judgment on
such pleading. But in actions for annulment of
marriage or for legal separation, the material
facts alleged in the complaint shall always be
proved." (Underscoring supplied)
Moreover, even if We were to sustain the applicability of
the rules on summary judgment to the case at bench,
Our perusal of the record shows that the finding of the
court a quo for appellee would still not be warranted.
While it may be readily conceded that a valid marriage
license is among the formal requisites of marriage, the
absence of which renders the marriage void ab
initio pursuant to Article 80(3) in relation to Article 58 of
the Civil Code the failure to reflect the serial number of
the marriage license on the marriage contract
evidencing the marriage between Teofilo Carlos and
appellant Felicidad Sandoval, although irregular, is not
as fatal as appellee represents it to be. Aside from the
dearth of evidence to the contrary, appellant Felicidad
Sandoval's affirmation of the existence of said marriage
license is corroborated by the following statement in the
affidavit executed by Godofredo Fojas, then Justice of
the Peace who officiated the impugned marriage, to wit:
"That as far as I could remember, there was a
marriage license issued at Silang, Cavite on
May 14, 1962 as basis of the said marriage
contract executed by Teofilo Carlos and
Felicidad Sandoval, but the number of said
marriage license was inadvertently not placed
in the marriage contract for the reason that it
was the Office Clerk who filled up the blanks in
the Marriage Contract who in turn, may have
overlooked the same."
Rather than the inferences merely drawn by the trial
court, We are of the considered view that the veracity
and credibility of the foregoing statement as well as the
motivations underlying the same should be properly
threshed out in a trial of the case on the merits.
If the non-presentation of the marriage contract - the
primary evidence of marriage - is not proof that a

marriage did not take place, neither should appellants'
non-presentation of the subject marriage license be
taken as proof that the same was not procured. The
burden of proof to show the nullity of the marriage, it
must be emphasized, rests upon the plaintiff and any
doubt should be resolved in favor of the validity of the
marriage.
Considering that the burden of proof also rests on the
party who disputes the legitimacy of a particular party,
the same may be said of the trial court's rejection of the
relationship between appellant Teofilo Carlos II and his
putative father on the basis of the inconsistencies in
appellant Felicidad Sandoval's statements. Although it
had effectively disavowed appellant's prior claims
regarding the legitimacy of appellant Teofilo Carlos II,
the averment in the answer that he is the illegitimate
son of appellee's brother, to Our mind, did not
altogether foreclose the possibility of the said
appellant's illegitimate filiation, his right to prove the
same or, for that matter, his entitlement to inheritance
rights as such.
Without trial on the merits having been conducted in the
case, We find appellee's bare allegation that appellant
Teofilo Carlos II was merely purchased from an indigent
couple by appellant Felicidad Sandoval, on the whole,
insufficient to support what could well be a minor's total
forfeiture of the rights arising from his putative filiation.
Inconsistent though it may be to her previous
statements, appellant Felicidad Sandoval's declaration
regarding the illegitimate filiation of Teofilo Carlos II is
more credible when considered in the light of the fact
that, during the last eight years of his life, Teofilo Carlos
allowed said appellant the use of his name and the
shelter of his household. The least that the trial court
could have done in the premises was to conduct a trial
on the merits in order to be able to thoroughly resolve
the issues pertaining to the filiation of appellant Teofilo
Carlos II.8
On November 22, 2006, petitioner moved for reconsideration
and for the inhibition of the ponente, Justice Rebecca De Guia-
Salvador. The CA denied the twin motions.
Issues
In this petition under Rule 45, petitioner hoists the following
issues:
1. That, in reversing and setting aside the Summary
Judgment under the Decision, Annex A hereof, and in
denying petitioner's Motion for reconsideration under
the Resolution, Annex F hereof, with respect to the
nullity of the impugned marriage, petitioner respectfully
submits that the Court of Appeals committed a grave
reversible error in applying Articles 88 and 101 of the
Civil Code, despite the fact that the circumstances of
this case are different from that contemplated and
intended by law, or has otherwise decided a question of
substance not theretofore decided by the Supreme
Court, or has decided it in a manner probably not in
accord with law or with the applicable decisions of this
Honorable Court;
9
2. That in setting aside and reversing the Summary
Judgment and, in lieu thereof, entering another
remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that
the Court of Appeals committed a serious
reversible error in applying Section 1, Rule 19 (now
Section 1, Rule 34) of the Rules of Court providing for
judgment on the pleadings, instead of Rule 35
governing Summary Judgments;
3. That in reversing and setting aside the Summary
Judgment and, in lieu thereof, entering another
remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that
the Court of Appeals committed grave abuse of
discretion, disregarded judicial admissions, made
findings on ground of speculations, surmises, and
conjectures, or otherwise committed misapplications of
the laws and misapprehension of the
facts.9 (Underscoring supplied)
Essentially, the Court is tasked to resolve whether a marriage
may be declared void ab initio through a judgment on the
pleadings or a summary judgment and without the benefit of a
trial. But there are other procedural issues, including the capacity
of one who is not a spouse in bringing the action for nullity of
marriage.
Our Ruling
I. The grounds for declaration of absolute nullity of marriage
must be proved. Neither judgment on the pleadings nor
summary judgment is allowed. So is confession of
judgment disallowed.
Petitioner faults the CA in applying Section 1, Rule 1910 of the
Revised Rules of Court, which provides:
SECTION 1. Judgment on the pleadings. - Where an
answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party's pleading, the
court may, on motion of that party, direct judgment on
such pleading. But in actions for annulment of marriage
or for legal separation, the material facts alleged in the
complaint shall always be proved.
He argues that the CA should have applied Rule 35 of the Rules
of Court governing summary judgment, instead of the rule on
judgment on the pleadings.
Petitioner is misguided. The CA did not limit its finding solely
within the provisions of the Rule on judgment on the pleadings.
In disagreeing with the trial court, the CA likewise considered the
provisions on summary judgments, to wit:
Moreover, even if We are to sustain the applicability of
the rules on summary judgment to the case at bench,
Our perusal of the record shows that the finding of the
court a quo for appellee would still not be warranted. x x
x11

But whether it is based on judgment on the pleadings or
summary judgment, the CA was correct in reversing the
summary judgment rendered by the trial court. Both the rules on
judgment on the pleadings and summary judgments have no
place in cases of declaration of absolute nullity of marriage and
even in annulment of marriage.
With the advent of A.M. No. 02-11-10-SC, known as "Rule on
Declaration of Absolute Nullity of Void Marriages and Annulment
of Voidable Marriages," the question on the application of
summary judgments or even judgment on the pleadings in cases
of nullity or annulment of marriage has been stamped with
clarity. The significant principle laid down by the said Rule, which
took effect on March 15, 200312 is found in Section 17, viz.:
SEC. 17. Trial. - (1) The presiding judge shall
personally conduct the trial of the case. No delegation
of evidence to a commissioner shall be allowed except
as to matters involving property relations of the
spouses.
(2) The grounds for declaration of absolute nullity or
annulment of marriage must be proved. No judgment
on the pleadings, summary judgment, or confession of
judgment shall be allowed. (Underscoring supplied)
Likewise instructive is the Court's pronouncement in Republic v.
Sandiganbayan.13 In that case, We excluded actions for nullity or
annulment of marriage from the application of summary
judgments.
Prescinding from the foregoing discussion, save for
annulment of marriage or declaration of its nullity or for
legal separation, summary judgment is applicable to all
kinds of actions.14 (Underscoring supplied)
By issuing said summary judgment, the trial court has divested
the State of its lawful right and duty to intervene in the case. The
participation of the State is not terminated by the declaration of
the public prosecutor that no collusion exists between the
parties. The State should have been given the opportunity to
present controverting evidence before the judgment was
rendered.15
Both the Civil Code and the Family Code ordain that the court
should order the prosecuting attorney to appear and intervene
for the State. It is at this stage when the public prosecutor sees
to it that there is no suppression of evidence. Concomitantly,
even if there is no suppression of evidence, the public
prosecutor has to make sure that the evidence to be presented
or laid down before the court is not fabricated.
To further bolster its role towards the preservation of marriage,
the Rule on Declaration of Absolute Nullity of Void Marriages
reiterates the duty of the public prosecutor, viz.:
SEC. 13. Effect of failure to appear at the pre-trial. - (a)
xxx
(b) x x x If there is no collusion, the court shall require
the public prosecutor to intervene for the State during
10
the trial on the merits to prevent suppression or
fabrication of evidence. (Underscoring supplied)
Truly, only the active participation of the public prosecutor or the
Solicitor General will ensure that the interest of the State is
represented and protected in proceedings for declaration of
nullity of marriages by preventing the fabrication or suppression
of evidence.16
II. A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or wife.
Exceptions: (1) Nullity of marriage cases commenced before
the effectivity of A.M. No. 02-11-10-SC; and (2) Marriages
celebrated during the effectivity of the Civil Code.
Under the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, the petition for
declaration of absolute nullity of marriage may not be filed by
any party outside of the marriage. The Rule made it exclusively a
right of the spouses by stating:
SEC. 2. Petition for declaration of absolute nullity of
void marriages. -
(a) Who may file. - A petition for declaration of absolute
nullity of void marriage may be filed solely by the
husband or the wife. (Underscoring supplied)
Section 2(a) of the Rule makes it the sole right of the husband or
the wife to file a petition for declaration of absolute nullity of void
marriage. The rationale of the Rule is enlightening, viz.:
Only an aggrieved or injured spouse may file a petition
for annulment of voidable marriages or declaration of
absolute nullity of void marriages. Such petition cannot
be filed by compulsory or intestate heirs of the spouses
or by the State. The Committee is of the belief that they
do not have a legal right to file the petition. Compulsory
or intestate heirs have only inchoate rights prior to the
death of their predecessor, and, hence, can only
question the validity of the marriage of the spouses
upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in
the regular courts. On the other hand, the concern of
the State is to preserve marriage and not to seek its
dissolution.17 (Underscoring supplied)
The new Rule recognizes that the husband and the wife are the
sole architects of a healthy, loving, peaceful marriage. They are
the only ones who can decide when and how to build the
foundations of marriage. The spouses alone are the engineers of
their marital life. They are simultaneously the directors and
actors of their matrimonial true-to-life play. Hence, they alone
can and should decide when to take a cut, but only in
accordance with the grounds allowed by law.
The innovation incorporated in A.M. No. 02-11-10-SC sets forth
a demarcation line between marriages covered by the Family
Code and those solemnized under the Civil Code. The Rule
extends only to marriages entered into during the effectivity of
the Family Code which took effect on August 3, 1988.18

The advent of the Rule on Declaration of Absolute Nullity of Void
Marriages marks the beginning of the end of the right of the heirs
of the deceased spouse to bring a nullity of marriage case
against the surviving spouse. But the Rule never intended to
deprive the compulsory or intestate heirs of their successional
rights.
While A.M. No. 02-11-10-SC declares that a petition for
declaration of absolute nullity of marriage may be filed solely by
the husband or the wife, it does not mean that the compulsory or
intestate heirs are without any recourse under the law. They can
still protect their successional right, for, as stated in the
Rationale of the Rules on Annulment of Voidable Marriages and
Declaration of Absolute Nullity of Void Marriages, compulsory or
intestate heirs can still question the validity of the marriage of the
spouses, not in a proceeding for declaration of nullity but upon
the death of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts. 19
It is emphasized, however, that the Rule does not apply to cases
already commenced before March 15, 2003 although the
marriage involved is within the coverage of the Family Code.
This is so, as the new Rule which became effective on March 15,
200320 is prospective in its application. Thus, the Court held
in Enrico v. Heirs of Sps. Medinaceli,21 viz.:
As has been emphasized, A.M. No. 02-11-10-SC
covers marriages under the Family Code of the
Philippines, and is prospective in its
application.22 (Underscoring supplied)
Petitioner commenced the nullity of marriage case against
respondent Felicidad in 1995. The marriage in controversy was
celebrated on May 14, 1962. Which law would govern depends
upon when the marriage took place.23
The marriage having been solemnized prior to the effectivity of
the Family Code, the applicable law is the Civil Code which was
the law in effect at the time of its celebration. 24 But the Civil
Code is silent as to who may bring an action to declare the
marriage void. Does this mean that any person can bring an
action for the declaration of nullity of marriage?
We respond in the negative. The absence of a provision in the
Civil Code cannot be construed as a license for any person to
institute a nullity of marriage case. Such person must appear to
be the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the
suit.25 Elsewise stated, plaintiff must be the real party-in-interest.
For it is basic in procedural law that every action must be
prosecuted and defended in the name of the real party-in-
interest.26
Interest within the meaning of the rule means material interest or
an interest in issue to be affected by the decree or judgment of
the case, as distinguished from mere curiosity about the
question involved or a mere incidental interest. One having no
material interest to protect cannot invoke the jurisdiction of the
court as plaintiff in an action. When plaintiff is not the real party-
in-interest, the case is dismissible on the ground of lack of cause
of action.27
11
Illuminating on this point is Amor-Catalan v. Court of
Appeals,28 where the Court held:
True, under the New Civil Code which is the law in
force at the time the respondents were married, or even
in the Family Code, there is no specific provision as to
who can file a petition to declare the nullity of marriage;
however, only a party who can demonstrate "proper
interest" can file the same. A petition to declare the
nullity of marriage, like any other actions, must be
prosecuted or defended in the name of the real party-in-
interest and must be based on a cause of action. Thus,
in Niñal v. Badayog, the Court held that the children
have the personality to file the petition to declare the
nullity of marriage of their deceased father to their
stepmother as it affects their successional rights.
xxxx
In fine, petitioner's personality to file the petition to
declare the nullity of marriage cannot be ascertained
because of the absence of the divorce decree and the
foreign law allowing it. Hence, a remand of the case to
the trial court for reception of additional evidence is
necessary to determine whether respondent Orlando
was granted a divorce decree and whether the foreign
law which granted the same allows or restricts
remarriage. If it is proved that a valid divorce decree
was obtained and the same did not allow respondent
Orlando's remarriage, then the trial court should declare
respondent's marriage as bigamous and void ab
initio but reduced the amount of moral damages
from P300,000.00 to P50,000.00 and exemplary
damages from P200,000.00 to P25,000.00. On the
contrary, if it is proved that a valid divorce decree was
obtained which allowed Orlando to remarry, then the
trial court must dismiss the instant petition to declare
nullity of marriage on the ground that petitioner Felicitas
Amor-Catalan lacks legal personality to file the
same.29(Underscoring supplied)
III. The case must be remanded to determine whether or not
petitioner is a real-party-in-interest to seek the declaration
of nullity of the marriage in controversy.
In the case at bench, the records reveal that when Teofilo died
intestate in 1992, his only surviving compulsory heirs are
respondent Felicidad and their son, Teofilo II. Under the law on
succession, successional rights are transmitted from the moment
of death of the decedent and the compulsory heirs are called to
succeed by operation of law.30
Upon Teofilo's death in 1992, all his property, rights and
obligations to the extent of the value of the inheritance are
transmitted to his compulsory heirs. These heirs were
respondents Felicidad and Teofilo II, as the surviving spouse
and child, respectively.
Article 887 of the Civil Code outlined who are compulsory heirs,
to wit:
(1) Legitimate children and descendants, with respect
to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children
by legal fiction;
(5) Other illegitimate children referred to in Article 287
of the Civil Code.31
Clearly, a brother is not among those considered as compulsory
heirs. But although a collateral relative, such as a brother, does
not fall within the ambit of a compulsory heir, he still has a right
to succeed to the estate. Articles 1001 and 1003 of the New Civil
Code provide:
ART. 1001. Should brothers and sisters or their
children survive with the widow or widower, the latter
shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half.
ART. 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the
deceased in accordance with the following articles.
(Underscoring supplied)
Indeed, only the presence of descendants, ascendants or
illegitimate children excludes collateral relatives from succeeding
to the estate of the decedent. The presence of legitimate,
illegitimate, or adopted child or children of the deceased
precludes succession by collateral relatives. 32 Conversely, if
there are no descendants, ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall succeed to the
entire estate of the decedent.33
If respondent Teofilo II is declared and finally proven not to be
the legitimate, illegitimate, or adopted son of Teofilo, petitioner
would then have a personality to seek the nullity of marriage of
his deceased brother with respondent Felicidad. This is so,
considering that collateral relatives, like a brother and sister,
acquire successional right over the estate if the decedent dies
without issue and without ascendants in the direct line.
The records reveal that Teofilo was predeceased by his parents.
He had no other siblings but petitioner. Thus, if Teofilo II is finally
found and proven to be not a legitimate, illegitimate, or adopted
son of Teofilo, petitioner succeeds to the other half of the estate
of his brother, the first half being allotted to the widow pursuant
to Article 1001 of the New Civil Code. This makes petitioner a
real-party-interest to seek the declaration of absolute nullity of
marriage of his deceased brother with respondent Felicidad. If
the subject marriage is found to be void ab initio, petitioner
succeeds to the entire estate.
It bears stressing, however, that the legal personality of
petitioner to bring the nullity of marriage case is contingent upon
the final declaration that Teofilo II is not a legitimate, adopted, or
illegitimate son of Teofilo.
12
If Teofilo II is proven to be a legitimate, illegitimate, or legally
adopted son of Teofilo, then petitioner has no legal personality to
ask for the nullity of marriage of his deceased brother and
respondent Felicidad. This is based on the ground that he has
no successional right to be protected, hence, does not have
proper interest. For although the marriage in controversy may be
found to be void from the beginning, still, petitioner would not
inherit. This is because the presence of descendant,
illegitimate,34 or even an adopted child35 excludes the collateral
relatives from inheriting from the decedent.
Thus, the Court finds that a remand of the case for trial on the
merits to determine the validity or nullity of the subject marriage
is called for. But the RTC is strictly instructed to dismiss the
nullity of marriage case for lack of cause of action if it is
proven by evidence that Teofilo II is a legitimate,
illegitimate, or legally adopted son of Teofilo Carlos, the
deceased brother of petitioner.
IV. Remand of the case regarding the question of filiation of
respondent Teofilo II is proper and in order. There is a need
to vacate the disposition of the trial court as to the other causes
of action before it.
Petitioner did not assign as error or interpose as issue the ruling
of the CA on the remand of the case concerning the filiation of
respondent Teofilo II. This notwithstanding, We should not leave
the matter hanging in limbo.
This Court has the authority to review matters not specifically
raised or assigned as error by the parties, if their consideration is
necessary in arriving at a just resolution of the case.36
We agree with the CA that without trial on the merits having
been conducted in the case, petitioner's bare allegation that
respondent Teofilo II was adopted from an indigent couple is
insufficient to support a total forfeiture of rights arising from his
putative filiation. However, We are not inclined to support its
pronouncement that the declaration of respondent Felicidad as
to the illegitimate filiation of respondent Teofilo II is more
credible. For the guidance of the appellate court, such
declaration of respondent Felicidad should not be afforded
credence. We remind the CA of the guaranty provided by Article
167 of the Family Code to protect the status of legitimacy of a
child, to wit:
ARTICLE 167. The child shall be considered legitimate
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress. (Underscoring supplied)
It is stressed that Felicidad's declaration against the legitimate
status of Teofilo II is the very act that is proscribed by Article 167
of the Family Code. The language of the law is unmistakable. An
assertion by the mother against the legitimacy of her child
cannot affect the legitimacy of a child born or conceived within a
valid marriage.37
Finally, the disposition of the trial court in favor of petitioner for
causes of action concerning reconveyance, recovery of property,
and sum of money must be vacated. This has to be so, as said
disposition was made on the basis of its finding that the marriage
in controversy was null and void ab initio.

WHEREFORE, the appealed Decision is MODIFIED as follows:
1. The case is REMANDED to the Regional Trial Court
in regard to the action on the status and filiation of
respondent Teofilo Carlos II and the validity or nullity of
marriage between respondent Felicidad Sandoval and
the late Teofilo Carlos;
2. If Teofilo Carlos II is proven to be the legitimate, or
illegitimate, or legally adopted son of the late Teofilo
Carlos, the RTC is
strictly INSTRUCTED to DISMISS the action for nullity
of marriage for lack of cause of action;
3. The disposition of the RTC in Nos. 1 to 8 of
the fallo of its decision is VACATED AND SET ASIDE.
The Regional Trial Court is ORDERED to conduct trial on the
merits with dispatch and to give this case priority in its calendar.
No costs.
SO ORDERED.
G.R. No. 174238 July 7, 2009
ANITA CHENG, Petitioner,
vs.
SPOUSES WILLIAM SY and TESSIE SY, Respondents.
This is a petition1 for review on certiorari under Rule 45 of the
Rules of Court of the Order dated January 2, 20062of the
Regional Trial Court (RTC), Branch 18, Manila in Civil Case No.
05-112452 entitled Anita Cheng v. Spouses William Sy and
Tessie Sy.
The antecedents are as follows—
Petitioner Anita Cheng filed two (2) estafa cases before the RTC,
Branch 7, Manila against respondent spouses William and
Tessie Sy (Criminal Case No. 98-969952 against Tessie Sy and
Criminal Case No. 98-969953 against William Sy) for issuing to
her Philippine Bank of Commerce (PBC) Check Nos. 171762
and 71860 for P300,000.00 each, in payment of their loan, both
of which were dishonored upon presentment for having been
drawn against a closed account.
Meanwhile, based on the same facts, petitioner, on January 20,
1999, filed against respondents two (2) cases for violation of
Batas Pambansa Bilang (BP Blg.) 22 before the Metropolitan
Trial Court (MeTC), Branch 25, Manila (Criminal Case Nos.
341458-59).
On March 16, 2004, the RTC, Branch 7, Manila dismissed the
estafa cases for failure of the prosecution to prove the elements
of the crime. The Order dismissing Criminal Case No. 98-969952
contained no declaration as to the civil liability of Tessie Sy.3 On
the other hand, the Order in Criminal Case No. 98-969953
contained a statement, "Hence, if there is any liability of the
accused, the same is purely ‘civil,’ not criminal in nature."4
13
Later, the MeTC, Branch 25, Manila, dismissed, on demurrer,
the BP Blg. 22 cases in its Order5 dated February 7, 2005 on
account of the failure of petitioner to identify the accused
respondents in open court. The Order also did not make any
pronouncement as to the civil liability of accused
respondents.1avvphi1
On April 26, 2005, petitioner lodged against respondents before
the RTC, Branch 18, Manila, a complaint6 for collection of a sum
of money with damages (Civil Case No. 05-112452) based on
the same loaned amount of P600,000.00 covered by the two
PBC checks previously subject of the estafa and BP Blg. 22
cases.
In the assailed Order7 dated January 2, 2006, the RTC, Branch
18, Manila, dismissed the complaint for lack of jurisdiction,
ratiocinating that the civil action to collect the amount
of P600,000.00 with damages was already impliedly instituted in
the BP Blg. 22 cases in light of Section 1, paragraph (b) of Rule
111 of the Revised Rules of Court.
Petitioner filed a motion for reconsideration 8 which the court
denied in its Order9 dated June 5, 2006. Hence, this petition,
raising the sole legal issue –
Whether or not Section 1 of Rule 111 of the 2000 Rules of
Criminal Procedure and Supreme Court Circular No. 57-97 on
the Rules and Guidelines in the filing and prosecution of criminal
cases under BP Blg. 22 are applicable to the present case where
the nature of the order dismissing the cases for bouncing checks
against the respondents was [based] on the failure of the
prosecution to identify both the accused (respondents herein)? 10
Essentially, petitioner argues that since the BP Blg. 22 cases
were filed on January 20, 1999, the 2000 Revised Rules on
Criminal Procedure promulgated on December 1, 2000 should
not apply, as it must be given only prospective application. She
further contends that that her case falls within the following
exceptions to the rule that the civil action correspondent to the
criminal action is deemed instituted with the latter—
(1) additional evidence as to the identities of the
accused is necessary for the resolution of the civil
aspect of the case;
(2) a separate complaint would be just as efficacious as
or even more expedient than a timely remand to the
trial court where the criminal action was decided for
further hearings on the civil aspect of the case;
(3) the trial court failed to make any pronouncement as
to the civil liability of the accused amounting to a
reservation of the right to have the civil liability litigated
in a separate action;
(4) the trial court did not declare that the facts from
which the civil liability might arise did not exist;
(5) the civil complaint is based on an obligation ex-
contractu and not ex-delicto pursuant to Article 3111 of
the Civil Code; and

(6) the claim for civil liability for damages may be had
under Article 2912 of the Civil Code.
Petitioner also points out that she was not assisted by any
private prosecutor in the BP Blg. 22 proceedings.
The rule is that upon the filing of the estafa and BP Blg. 22 cases
against respondents, where the petitioner has not made any
waiver, express reservation to litigate separately, or has not
instituted the corresponding civil action to collect the amount
of P600,000.00 and damages prior to the criminal action, the civil
action is deemed instituted with the criminal cases.13
This rule applies especially with the advent of the 2000 Revised
Rules on Criminal Procedure. Thus, during the pendency of both
the estafa and the BP Blg. 22 cases, the action to recover the
civil liability was impliedly instituted and remained pending
before the respective trial courts. This is consonant with our
ruling in Rodriguez v. Ponferrada14 that the possible single civil
liability arising from the act of issuing a bouncing check can be
the subject of both civil actions deemed instituted with the estafa
case and the prosecution for violation of BP Blg. 22,
simultaneously available to the complaining party, without
traversing the prohibition against forum shopping.15Prior to the
judgment in either the estafa case or the BP Blg. 22 case,
petitioner, as the complainant, cannot be deemed to have
elected either of the civil actions both impliedly instituted in the
said criminal proceedings to the exclusion of the other. 16
The dismissal of the estafa cases for failure of the prosecution to
prove the elements of the crime beyond reasonable doubt—
where in Criminal Case No. 98-969952 there was no
pronouncement as regards the civil liability of the accused and in
Criminal Case No. 98-969953 where the trial court declared that
the liability of the accused was only civil in nature—produced the
legal effect of a reservation by the petitioner of her right to litigate
separately the civil action impliedly instituted with the estafa
cases, following Article 29 of the Civil Code.17
However, although this civil action could have been litigated
separately on account of the dismissal of the estafa cases on
reasonable doubt, the petitioner was deemed to have also
elected that such civil action be prosecuted together with the BP
Blg. 22 cases in light of the Rodriguez v. Ponferrada ruling.
With the dismissal of the BP Blg. 22 cases for failure to establish
the identity of the accused, the question that arises is whether
such dismissal would have the same legal effect as the
dismissed estafa cases. Put differently, may petitioner’s action to
recover respondents’ civil liability be also allowed to prosper
separately after the BP Blg. 22 cases were dismissed?
Section 1 (b), Rule 111 of the 2000 Revised Rules on Criminal
Procedure states –
Section 1. Institution of criminal and civil actions. –
xxx
(b) The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed.
14
Upon filing of the joint criminal and civil actions, the offended
party shall pay in full the filing fees based on the amount of the
check involved, which shall be considered as the actual
damages claimed. Where the complaint or information also
seeks to recover liquidated, moral, nominal, temperate or
exemplary damages, the offended party shall pay the filing fees
based on the amounts alleged therein. If the amounts are not so
alleged but any of these damages [is] subsequently awarded by
the court, the filing fees based on the amount awarded shall
constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof
has not yet commenced, it may be consolidated with the criminal
action upon application with the court trying the latter case. If the
application is granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing consolidation of
the civil and criminal actions.
Petitioner is in error when she insists that the 2000 Rules on
Criminal Procedure should not apply because she filed her BP
Blg. 22 complaints in 1999. It is now settled that rules of
procedure apply even to cases already pending at the time of
their promulgation. The fact that procedural statutes may
somehow affect the litigants’ rights does not preclude their
retroactive application to pending actions. It is axiomatic that the
retroactive application of procedural laws does not violate any
right of a person who may feel that he is adversely affected, nor
is it constitutionally objectionable. The reason for this is that, as
a general rule, no vested right may attach to, nor arise from,
procedural laws.18
Indeed, under the present revised Rules, the criminal action for
violation of BP Blg. 22 includes the corresponding civil action to
recover the amount of the checks. It should be stressed, this
policy is intended to discourage the separate filing of the civil
action. In fact, the Rules even prohibits the reservation of a
separate civil action, i.e., one can no longer file a separate civil
case after the criminal complaint is filed in court. The only
instance when separate proceedings are allowed is when the
civil action is filed ahead of the criminal case. Even then, the
Rules encourages the consolidation of the civil and criminal
cases. Thus, where petitioner’s rights may be fully adjudicated in
the proceedings before the court trying the BP Blg. 22 cases,
resort to a separate action to recover civil liability is clearly
unwarranted on account of res judicata, for failure of petitioner to
appeal the civil aspect of the cases. In view of this special rule
governing actions for violation of BP Blg. 22, Article 31 of the
Civil Code is not applicable.19
Be it remembered that rules governing procedure before the
courts, while not cast in stone, are for the speedy, efficient, and
orderly dispensation of justice and should therefore be adhered
to in order to attain this objective.20
However, in applying the procedure discussed above, it appears
that petitioner would be left without a remedy to recover from
respondents the P600,000.00 allegedly loaned from her. This
could prejudice even the petitioner’s Notice of Claim involving
the same amount filed in Special Proceedings No. 98-88390
(Petition for Voluntary Insolvency by Kolin Enterprises, William
Sy and Tessie Sy), which case was reportedly archived for
failure to prosecute the petition for an unreasonable length of
time.21 Expectedly, respondents would raise the same defense
that petitioner had already elected to litigate the civil action to

recover the amount of the checks along with the BP Blg. 22
cases.
It is in this light that we find petitioner’s contention that she was
not assisted by a private prosecutor during the BP Blg. 22
proceedings critical. Petitioner indirectly protests that the public
prosecutor failed to protect and prosecute her cause when he
failed to have her establish the identities of the accused during
the trial and when he failed to appeal the civil action deemed
impliedly instituted with the BP Blg. 22 cases. On this ground, we
agree with petitioner.
Faced with the dismissal of the BP Blg. 22 cases, petitioner’s
recourse pursuant to the prevailing rules of procedure would
have been to appeal the civil action to recover the amount
loaned to respondents corresponding to the bounced checks.
Hence, the said civil action may proceed requiring only a
preponderance of evidence on the part of petitioner. Her failure
to appeal within the reglementary period was tantamount to a
waiver altogether of the remedy to recover the civil liability of
respondents. However, due to the gross mistake of the
prosecutor in the BP Blg. 22 cases, we are constrained to
digress from this rule.
It is true that clients are bound by the mistakes, negligence and
omission of their counsel.22 But this rule admits of exceptions –
(1) where the counsel’s mistake is so great and serious that the
client is prejudiced and denied his day in court, or (2) where the
counsel is guilty of gross negligence resulting in the client’s
deprivation of liberty or property without due process of
law.23 Tested against these guidelines, we hold that petitioner’s
lot falls within the exceptions.
It is an oft-repeated exhortation to counsels to be well-informed
of existing laws and rules and to keep abreast with legal
developments, recent enactments and jurisprudence. Unless
they faithfully comply with such duty, they may not be able to
discharge competently and diligently their obligations as
members of the Bar.24 Further, lawyers in the government
service are expected to be more conscientious in the
performance of their duties as they are subject to public scrutiny.
They are not only members of the Bar but are also public
servants who owe utmost fidelity to public service. 25 Apparently,
the public prosecutor neglected to equip himself with the
knowledge of the proper procedure for BP Blg. 22 cases under
the 2000 Rules on Criminal Procedure such that he failed to
appeal the civil action impliedly instituted with the BP Blg. 22
cases, the only remaining remedy available to petitioner to be
able to recover the money she loaned to respondents, upon the
dismissal of the criminal cases on demurrer. By this failure,
petitioner was denied her day in court to prosecute the
respondents for their obligation to pay their loan.
Moreover, we take into consideration the trial court’s observation
when it dismissed the estafa charge in Criminal Case No. 98-
969953 that if there was any liability on the part of respondents,
it was civil in nature. Hence, if the loan be proven true, the
inability of petitioner to recover the loaned amount would be
tantamount to unjust enrichment of respondents, as they may
now conveniently evade payment of their obligation merely on
account of a technicality applied against petitioner.
There is unjust enrichment when (1) a person is unjustly
benefited, and (2) such benefit is derived at the expense of or
15
with damages to another. This doctrine simply means that a
person shall not be allowed to profit or enrich himself inequitably
at another’s expense. One condition for invoking this principle of
unjust enrichment is that the aggrieved party has no other
recourse based on contract, quasi-contract, crime, quasi-delict or
any other provision of law.26
Court litigations are primarily designed to search for the truth,
and a liberal interpretation and application of the rules which will
give the parties the fullest opportunity to adduce proof is the best
way to ferret out the truth. The dispensation of justice and
vindication of legitimate grievances should not be barred by
technicalities.27 For reasons of substantial justice and equity, as
the complement of the legal jurisdiction that seeks to dispense
justice where courts of law, through the inflexibility of their rules
and want of power to adapt their judgments to the special
circumstances of cases, are incompetent to do so, 28 we thus
rule, pro hac vice, in favor of petitioner.
WHEREFORE, the petition is GRANTED. Civil Case No. 05-
112452 entitled Anita Cheng v. Spouses William Sy and Tessie
Sy is hereby ordered REINSTATED. No pronouncement as to
costs.
SO ORDERED.
G.R. No. 189649 April 20, 2015
ADORACION CAROLINO vs. GEN. GENEROSO SENGA,
Before us is a petition for review under Rule 45 seeking to
reverse and set aside the Decision1 dated May 25, 2009 of the
Court of Appeals (CA) in CA-G.R. SP No. 103502 and the
Resolution2 dated September 10, 2009 denying reconsideration
thereof.
The factual and legal antecedents are as follows:
On December 1, 1976, Jeremias A. Carolino, petitioner's
husband, Retired3 from the Armed Forces of the Philippines
(AFP) with the rank of Colonel under General Order No. 1208
dated November 29, 1976, pursuant to the provisions of
Sections 1(A) and 10 of Republic Act (RA) No. 340, 4 as
amended. He started receiving his monthly retirement pay in the
amount of P18,315.00 in December 1976 until the same was
withheld by respondents in March 2005. On June 3, 2005,
Jeremias wrote a letter5 addressed to the AFP Chief of Staff
asking for the reasons of the withholding of his retirement pay. In
a letter reply,6 Myrna F. Villaruz, LTC (FS) PA, Pension and
Gratuity Officer of the AFP Finance Center, informed Jeremias
that his loss of Filipino citizenship caused the deletion of his
name in the alpha list of the AFP Pensioners’ Payroll effective
March 5, 2005; and that he could avail of re-entitlement to his
retirement benefits and the restoration of his name in the AFP
Pensioners' Master list Payroll by complying with the
requirements prescribed under RA No. 9225, or the Dual
Citizenship Act.
It appeared that the termination of Jeremias' pension was done
pursuant to Disposition Form7 dated October 29, 2004,which
was approved by the Chief of Staff and made effective in
January 2005. In the said Disposition Form, the AFP Judge
Advocate General opined that under the provisions of Sections

4, 5, and 6 of RA No. 340, retired military personnel are
disqualified from receiving pension benefits once incapable to
render military service as a result of his having sworn allegiance
to a foreign country. It was also mentioned that termination of
retirement benefits of pensioner of the AFP could be done
pursuant to the provisions of Presidential Decree (PD) No.
16388which provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired list and his
retirement benefits terminated upon such loss. It being in
consonance with the policy consideration that all retirement laws
inconsistent with the provisions of PD No. 1638 are repealed and
modified accordingly.
On August 24, 2006, Jeremias filed with the Regional Trial Court
(RTC) of Quezon City, a Petition for Mandamus 9against Gen.
Generoso Senga, as Chief of Staff of the AFP, Brig. Gen.
Fernando Zabat, as Chief of the AFP Finance Center, Comm.
Reynaldo Basilio, as Chief of the AFP- GHQ Management and
Fiscal Office, and Comm. Emilio Marayag, Pension and Gratuity
Management Officer, Pension and Gratuity Management Center,
AFP Finance Center, seeking reinstatement of his name in the
list of the AFP retired officers, resumption of payment of his
retirement benefits under RA No. 340, and the reimbursement of
all his retirement pay and benefits which accrued from March 5,
2005 up to the time his name is reinstated and, thereafter, with
claim for damages and attorney's fees. The case was docketed
as Civil Case No. Q-06-58686, and raffled off to Branch 220.
On February 26, 2007, the RTC rendered its Decision 10 granting
the petition for mandamus, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered ordering General
Hermogenes Esperon, Jr., as Chief of Staff of the AFP, Brigadier
General Fernando Zabat, as the Commanding Officer of the AFP
Finance Center, Commodore Reynaldo Basilio, as Chief of the
AFP-GHQ Management and Fiscal Office, and Captain Theresa
M. Nicdao, as Pension and Gratuity Officer of the Pension and
Gratuity Management Center, or any of their respective
successors and those taking instructions from them as agents or
subordinates, to:
a. immediately reinstate the name of petitioner in the list
of retired AFP Officers, and to resume payment of his
retirement benefits under RA 340; and
b. release to [petitioner] all retirement benefits due him
under RA 340 which accrued to him from March 2005
continuously up to the time his name is reinstated in the
list of AFP retired officers.11
The RTC found that the issue for resolution is the applicability of
RA No. 340 and PD No. 1638 upon Jeremias' retirement
benefits. It found that he retired as a commissioned officer of the
AFP in 1976; thus, RA No. 340 is the law applicable in
determining his entitlement to his retirement benefits and not PD
No. 1638 which was issued only in 1979. Article 4 of the Civil
Code provides that "laws shall have no retroactive effect unless
the contrary is provided." PD No. 1638 does not provide for such
retroactive application. Also, it could not have been the
intendment of PD No. 1638 to deprive its loyal soldiers of a
monthly pension during their old age especially where, as here,
the right had been vested to them through time. RA No. 340
does not provide that the loss of Filipino citizenship would
16
terminate one's retirement benefits; and that PD No. 1638 does
not reduce whatever benefits that any person has already been
receiving under existing law.
Respondents sought reconsideration,12 but the RTC denied the
same in an Order13 dated May 25, 2007, the decretal portion of
which reads:
WHEREFORE, premises considered, the instant Motion for
Reconsideration is hereby DENIED, considering that the
questioned decision has not yet attained its finality. The Motion
for Execution in the meantime is hereby DENIED.14
Aggrieved, respondents elevated the case to the CA. After the
submission of the parties' respective memoranda, the case was
submitted for decision.
Jeremias died on September 30, 200715 and was substituted by
his wife, herein petitioner. On May 25, 2009, the CA granted
respondents' appeal. The dispositive portion of the CA decision
reads:
WHEREFORE, premises considered, the instant appeal is
GRANTED. The appealed decision is REVOKED and SET
ASIDE.16
In so ruling, the CA found that while it is true that Jeremias
retired in 1976 under the provisions of RA No. 340, as amended,
which does not contain any provision anent cessation or loss of
retirement benefits upon acquiring another citizenship, PD No.
1638, which was signed in 1979, effectively repealed RA No.
340, as amended. Section 27 of PD No. 1638, which provides
that the name of a retiree who loses his Filipino citizenship shall
be removed from the retired list and his retirement benefits
terminated upon such loss, was correctly made applicable to
Jeremias' retirement benefits. Logic dictates that since Jeremias
had already renounced his allegiance to the Philippines, he
cannot now be compelled by the State to render active service
and to render compulsory military service when the need arises.
The CA found that for the writ of mandamus to lie, it is essential
that Jeremias should have a clear legal right to the thing
demanded and it must be the imperative duty of respondents to
perform the act required which petitioner failed to show; thus,
mandamus will not lie.
Petitioner's motion for reconsideration was denied in a
Resolution dated September 10, 2009.
Hence, this petition raising the following:
RESPONDENT COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN RENDERING THE ASSAILED
DECISION AND RESOLUTION WHICH SET ASIDE AND
REVERSED THE 26 FEBRUARY 2007 DECISION OF THE QC
RTC BECAUSE:
PD 1638 should not have been applied and cannot be used
against petitioner as her husband's retirement and pension were
granted to him by the AFP under RA 340 which was not
superseded by PD 1638, a later statute.

Petitioner correctly availed of the remedy of mandamus to
compel the reinstatement of his pension and benefits from the
AFP under RA 340 as PD 1638 was not applicable to him.
Petitioner contends that her husband's retirement from the active
service in 1976 was pursuant to the provisions of RA No. No.
340 as PD No. 1638 was not yet in existence then, and there
was nothing in RA No. 340 that disqualifies a retired military
personnel from receiving retirement benefits after acquiring
foreign citizenship. The concept of retirement benefits is such
that one is entitled to them for services already rendered and not
for those to be made at a future time. Retirement benefits due
petitioner's husband under RA No. 340, is an acquired right
which cannot be taken away by a subsequent law. PD No. 1638
does not expressly provide for its retroactive application.
Respondents, being officers of the AFP tasked to implement the
provisions of RA No. 340 have neglected their function
thereunder by delisting petitioner's husband as a retiree, thus,
mandamus is proper.
In his Comment, the Solicitor General argues that PD No. 1638
applies to all military personnel in the service of the AFP whether
active or retired; hence, it applies retroactively to petitioner's
husband. Even when a retiree is no longer in the active service,
his being a Filipino still makes him a part of the Citizen Armed
Forces; that whether a military personnel retires under the
provisions of RA No. 340 or under PD No. 1638, he is still in the
service of the military and/or the State only that he is retired,
thus, they should not be treated differently upon the loss of
Filipino citizenship. He argues when there is an irreconcilable
conflict between the two laws of different vintages, i.e., RA No.
340 and PD No. 1638, the latter enactment prevails.
The Solicitor General argues that mandamus will not issue to
enforce a right to compel compliance with a duty which is
questionable or over which a substantial doubt exists. In this
case, petitioner's husband does not have a well-defined, clear
and certain legal right to continuously receive retirement benefits
after becoming an American citizen. Likewise, the AFP does not
have a clear and imperative duty to grant the said benefits
considering that Section 27 of PD No. 1638 provides that the
name of a retiree who loses his Filipino citizenship shall be
removed from the retired list and his retirement benefits
terminated upon such loss.
Petitioner filed her reply thereto.
We find merit in the petition.
Petitioner's husband retired in1976 under RA No. 340. He was
already receiving his monthly retirement benefit in the amount
of P18,315.00 since December 1976 until it was terminated in
March 2005. Section 5, RA No. 340 provides:
Sec. 5. Officers and enlisted men placed in the retired list shall
be subject to the rules and articles of war and to trial by court-
martial for any breach thereof. At any time said officers and
enlisted men may be called to active service by the President.
Refusal on the part of any officer or enlisted man to perform
such services shall terminate his right to further participation in
the benefits of this Act provided he resides in the Philippines and
is physically fit for service. Such fitness for service shall be
determined by applicable regulations.
17
The afore-quoted provision clearly shows how a retiree's
retirement benefits may be terminated, i.e., when the retiree
refuses to perform active service when called to do so provided
that (1) the retiree resides in the Philippines and (2) is physically
fit for service. There is no other requirement found in the law
which would be the reason for the termination of a retiree's
retirement benefits. Petitioner's husband was never called to
perform active service and refused to do so, however, his
retirement benefit was terminated. The reason for such
termination was his loss of Filipino citizenship based on Section
27 of PD No. 1638, to wit:
Section 27. Military personnel retired under Sections 4, 5, 10, 11
and 12 shall be carried in the retired list of the Armed Forces of
the Philippines. The name of a retiree who loses his Filipino
citizenship shall be removed from the retired list and his
retirement benefits terminated upon such loss.
We find that the CA erred in applying PD No. 1638 to the
retirement benefits of petitioner's husband.
Firstly, PD No. 1638 was signed by then President Ferdinand
Marcos on September 10, 1979. Under Article 4 of the Civil
Code, it is provided that laws shall have no retroactive effect,
unless the contrary is provided. It is said that the law looks to the
future only and has no retroactive effect unless the legislator
may have formally given that effect to some legal
provisions;17 that all statutes are to be construed as having only
prospective operation, unless the purpose and intention of the
legislature to give them a retrospective effect is expressly
declared or is necessarily implied from the language used; and
that every case of doubt must be resolved against retrospective
effect.18 These principles also apply to amendments of statutes.
PD No. 1638 does not contain any provision regarding its
retroactive application, nor the same may be implied from its
language. In fact, Section 36 of PD No. 1638 clearly provides
that the decree shall take effect upon its approval. As held in
Parreño v. COA,19 there is no question that PD No. 1638, as
amended, applies prospectively. Since PD No. 1638, as
amended, is about the new system of retirement and separation
from service of military personnel, it should apply to those who
were in the service at the time of its approval.20 Conversely, PD
No. 1638 is not applicable to those who retired before its
effectivity in 1979. The rule is familiar that after an act is
amended, the original act continues to be in force with regard to
all rights that had accrued prior to such amendment. 21
Moreover, Section 27 of PD No. 1638 specifically provides for
the retirees to whom the law shall be applied, to wit:
Section 27. Military personnel retired under Sections 4, 5, 10, 11
and 12 shall be carried in the retired list of the Armed Forces of
the Philippines. The name of a retiree who loses his Filipino
citizenship shall be removed from the retired list and his
retirement benefits terminated upon such loss. (emphasis
supplied)
Notably, petitioner's husband did not retire under those above-
enumerated Sections of PD No. 1638 as he retired under RA No.
340.

Secondly, it has been held that before a right to retirement
benefits or pension vests in an employee, he must have met the
stated conditions of eligibility with respect to the nature of
employment, age, and length of service.22Undeniably,
petitioner's husband had complied with the conditions of
eligibility to retirement benefits as he was then receiving his
retirement benefits on a monthly basis until it was terminated.
Where the employee retires and meets the eligibility
requirements, he acquires a vested right to the benefits that is
protected by the due process clause.23 It is only upon retirement
that military personnel acquire a vested right to retirement
benefits.24 Retirees enjoy a protected property interest whenever
they acquire a right to immediate payment under pre-existing
law.25
In Ayog v. Cusi,26 we expounded the nature of a vested right,
thus:
"A right is vested when the right to enjoyment has become the
property of some particular person or persons as a present
interest" (16 C.J.S. 1173).1âwphi1 It is "the privilege to enjoy
property legally vested, to enforce contracts, and enjoy the rights
of property conferred by the existing law" (12 C.J.S. 955, Note
46, No. 6) or "some right or interest in property which has
become fixed and established and is no longer open to doubt or
controversy" (Downs vs. Blount 170 Fed. 15, 20, cited in Balboa
vs. Farrales, 51 Phil. 498, 502).
The due process clause prohibits the annihilation of vested
rights. "A state may not impair vested rights by legislative
enactment, by the enactment or by the subsequent repeal of a
municipal ordinance, or by a change in the constitution of the
State, except in a legitimate exercise of the police power" (16
C.J.S. 1177-78).
It has been observed that, generally, the term "vested right"
expresses the concept of present fixed interest, which in right
reason and natural justice should be protected against arbitrary
State action, or an innately just and imperative right which an
enlightened free society, sensitive to inherent and irrefragable
individual rights, cannot deny (16 C.J.S. 1174, Note 71, No. 5,
citing Pennsylvania Greyhound Lines, Inc. vs. Rosenthal, 192
Atl. 2nd 587). 27
Petitioner's husband acquired vested right to the payment of his
retirement benefits which must be respected and cannot be
affected by the subsequent enactment of PD No. 1638 which
provides that loss of Filipino citizenship terminates retirement
benefits. Vested rights include not only legal or equitable title to
the enforcement of a demand, but also an exemption from new
obligations after the right has vested.28
In fact, Sections 33 and 35 of PD No.1638 recognize such
vested right, to wit:
Section 33. Nothing in this Decree shall be construed in any
manner to reduce whatever retirement and separation pay or
gratuity or other monetary benefits which any person is
heretofore receiving or is entitled to receive under the provisions
of existing law.
xxxx
18
Section. 35. Except those necessary to give effect to the
provisions of this Decree and to preserve the rights granted to
retired or separated military personnel, all laws, rules and
regulations inconsistent with the provisions of this Decree are
hereby repealed or modified accordingly.
Section 33 of PD No. 1638 is clear that the law has no intention
to reduce or to revoke whatever retirement benefits being
enjoyed by a retiree at the time of its passage. Hence, Section
35 provides for an exception to what the decree repealed or
modified, i.e., except those necessary to preserve the rights
granted to retired or separated military personnel.
We also find that the CA erred in finding that mandamus will not
lie.
Section 3, Rule 65 of the Rules of Court lay down under what
circumstances petition for mandamus may be filed, to wit:
SEC. 3. Petition for mandamus. – When any tribunal,
corporation, board, officer or person 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, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent, immediately
or at some other time to be specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to
pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
A writ of mandamus can be issued only when petitioner’s legal
right to the performance of a particular act which is sought to be
compelled is clear and complete. A clear legal right is a right
which is indubitably granted by law or is inferable as a matter of
law.29 A doctrine well-embedded in our jurisprudence is that
mandamus will issue only when the petitioner has a clear legal
right to the performance of the act sought to be compelled and
the respondent has an imperative duty to perform the
same.30 The remedy of mandamus lies to compel the
performance of a ministerial duty.31 A purely ministerial act or
duty is one that an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of a
legal authority, without regard to or the exercise of its own
judgment upon the propriety or impropriety of the act done. 32 If
the law imposes a duty upon a public officer, and gives him the
right to decide how or when the duty shall be performed, such
duty is discretionary and not ministerial.33
The petition for mandamus filed by petitioner's husband with the
RTC was for the payment of his terminated retirement benefits,
which has become vested, and being a ministerial duty on the
part of the respondents to pay such claim, mandamus is the
proper remedy to compel such payment.
The doctrine of exhaustion of administrative remedies calls for
resort first to the appropriate administrative authorities in the
resolution of a controversy falling under their jurisdiction before
the same may be elevated to the courts of justice for
review.34 However, the principle of exhaustion of administrative

remedies need not be adhered to when the question is purely
legal.35 This is because issues of law cannot be resolved with
finality by the administrative officer. 36 Appeal to the
administrative officer would only be an exercise in futility. 37 Here,
the question raised is purely legal, i.e., what law should be
applied in the payment of retirement benefits of petitioner's
husband. Thus, there was no need to exhaust all administrative
remedies before a judicial relief can be sought.
WHEREFORE, the petition is GRANTED. The Decision dated
May 25, 2009 and the Resolution dated September 10, 2009 of
the Court of Appeals are hereby REVERSED and SET ASIDE.
The Decision dated February 26, 2007 of the Regional Trial
Court of Quezon City, Branch 220, is AFFIRMED.
SO ORDERED.
ARTICLE 6
G.R. No. 150429 August 29, 2006
ROBERTO G. FAMANILA, vs. THE COURT OF APPEALS
Before us is a petition for review on certiorari assailing the
Decision 1 of the Court of Appeals in CA-G.R. SP No. 50615
dated March 30, 2001 which affirmed the Decision 2 of the
National Labor Relations Commission (NLRC) dated March 31,
1998 dismissing petitioner’s complaint for payment of disability
and other benefits for lack of merit and the Resolution 3 dated
October 5, 2001 of the Court of Appeals denying petitioner’s
motion for reconsideration.
The antecedent facts are as follows:
In 1989, respondent NFD International Manning Agents, Inc.
hired the services of petitioner Roberto G. Famanila as
Messman 4 for Hansa Riga, a vessel registered and owned by its
principal and co-respondent, Barbership Management Limited.
On June 21, 1990, while Hansa Riga was docked at the port of
Eureka, California, U.S.A. and while petitioner was assisting in
the loading operations, the latter complained of a headache.
Petitioner experienced dizziness and he subsequently collapsed.
Upon examination, it was determined that he had a sudden
attack of left cerebral hemorrhage from a ruptured cerebral
aneurysm. 5 Petitioner underwent a brain operation and he was
confined at the Emmanuel Hospital in Portland, Oregon, U.S.A.
On July 19, 1990, he underwent a second brain operation.
Owing to petitioner’s physical and mental condition, he was
repatriated to the Philippines. On August 21, 1990, he was
examined at the American Hospital in Intramuros, Manila where
the examining physician, Dr. Patricia Abesamis declared that he
"cannot go back to sea duty and has been observed for 120
days, he is being declared permanently, totally disabled." 6
Thereafter, authorized representatives of the respondents
convinced him to settle his claim amicably by accepting the
amount of US$13,200. 7 Petitioner accepted the offer as
evidenced by his signature in the Receipt and Release dated
February 28, 1991. 8 His wife, Gloria Famanila and one Richard
Famanila, acted as witnesses in the signing of the release.
19
On June 11, 1997, petitioner filed a complaint 9 with the NLRC
which was docketed as NLRC OCW Case No. 6-838-97-L
praying for an award of disability benefits, share in the insurance
proceeds, moral damages and attorney’s fees. On September
29, 1997, Acting Executive Labor Arbiter Voltaire A. Balitaan
dismissed the complaint on the ground of prescription. Petitioner
appealed the decision with the NLRC. On March 31, 1998, the
NLRC promulgated its decision 10 finding the appeal to be
without merit and ordered its dismissal. When the motion for
reconsideration 11 was denied by the NLRC in its resolution
dated June 29, 1998, 12 petitioner filed a petition for certiorari
with this Court. On December 2, 1998, we resolved to refer the
case to the Court of Appeals pursuant to our ruling in St. Martin
Funeral Home v. National Labor Relations Commission. 13
On March 30, 2001, the Court of Appeals promulgated the
assailed decision which dismissed the petition for lack of merit.
Petitioner’s motion for reconsideration was denied, hence, the
present petition for review raising the following issues:
I. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN UPHOLDING THE VALIDITY OF THE
RECEIPT AND RELEASE SINCE PETITIONER’S CONSENT
THERETO WAS VITIATED THEREBY MAKING THE SAME
VOID AND UNENFORCEABLE.
II. THE COURT OF APPEALS COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT THE PRESCRIPTION
PERIOD APPLICABLE TO THE CLAIM OF THE PETITIONER
IS THE 3-YEAR PERIOD PROVIDED FOR UNDER THE
LABOR CODE OF THE PHILIPPINES AND NOT THE 10-YEAR
PERIOD PROVIDED FOR UNDER THE CIVIL CODE.
Petitioner claims that he did not sign the Receipt and Release
voluntarily or freely because he was permanently disabled and in
financial constraints. These factors allegedly vitiated his consent
which makes the Receipt and Release void and unenforceable.
The petition lacks merit.
It is fundamental that the scope of the Supreme Court’s judicial
review under Rule 45 of the Rules of Court is confined only to
errors of law. It does not extend to questions of fact. More so in
labor cases where the doctrine applies with greater force. 14 The
Labor Arbiter and the NLRC have already determined the factual
issues, and these were affirmed by the Court of Appeals. Thus,
they are accorded not only great respect but also finality and are
deemed binding upon this Court so long as they are supported
by substantial evidence. 15 We reviewed the records of the case
and we find no reason to deviate from the findings of the labor
arbiter, NLRC and the Court of Appeals.
A vitiated consent does not make a contract void and
unenforceable. A vitiated consent only gives rise to a voidable
agreement. Under the Civil Code, the vices of consent are
mistake, violence, intimidation, undue influence or fraud. 16 If
consent is given through any of the aforementioned vices of
consent, the contract is voidable. 17 A voidable contract is
binding unless annulled by a proper action in court. 18

Petitioner contends that his permanent and total disability
vitiated his consent to the Receipt and Release thereby
rendering it void and unenforceable. However, disability is not
among the factors that may vitiate consent. Besides, save for
petitioner’s self-serving allegations, there is no proof on record
that his consent was vitiated on account of his disability. In the
absence of such proof of vitiated consent, the validity of the
Receipt and Release must be upheld. We agree with the findings
of the Court of Appeals that:
In the case at bar, there is nothing in the records to show that
petitioner’s consent was vitiated when he signed the agreement.
Granting that petitioner has not fully recovered his health at the
time he signed the subject document, the same cannot still lead
to the conclusion that he did not voluntar[il]y accept the
agreement, for his wife and another relative witnessed his
signing.
Moreover, the document entitled receipt and release which was
attached by petitioner in his appeal does not show on its face
any violation of law or public policy. In fact, petitioner did not
present any proof to show that the consideration for the same is
not reasonable and acceptable. Absent any evidence to support
the same, the Court cannot, on its own accord, decide against
the unreasonableness of the consideration. 19
It is true that quitclaims and waivers are oftentimes frowned
upon and are considered as ineffective in barring recovery for
the full measure of the worker’s right and that acceptance of the
benefits therefrom does not amount to estoppel. 20 The reason is
plain. Employer and employee, obviously do not stand on the
same footing. 21However, not all waivers and quitclaims are
invalid as against public policy. If the agreement was voluntarily
entered into and represents a reasonable settlement, it is binding
on the parties and may not later be disowned simply because of
change of mind. It is only where there is clear proof that the
waiver was wangled from an unsuspecting or gullible person, or
the terms of the settlement are unconscionable on its face, that
the law will step in to annul the questionable transaction. But
where it is shown that the person making the waiver did so
voluntarily, with full understanding of what he was doing, and the
consideration for the quitclaim is credible and reasonable, the
transaction must be recognized as a valid and binding
undertaking, 22 as in this case.
To be valid and effective, waivers must be couched in clear and
unequivocal terms, leaving no doubt as to the intention of those
giving up a right or a benefit that legally pertains to them. 23 We
have reviewed the terms and conditions contained in the Receipt
and Release and we find the same to be clear and
unambiguous. The signing was even witnessed by petitioner’s
wife, Gloria T. Famanila and one Richard T. Famanila. The
Receipt and Release provides in part:
That for and in consideration of the sum of THIRTEEN
THOUSAND TWO HUNDRED DOLLARS (US$13,200.00) or its
equivalent in Philippine currency THREE HUNDRED SIXTY
FIVE THOUSAND NINE HUNDRED FOUR PESOS
(365,904.00), the receipt of which is hereby acknowledged to my
full and complete satisfaction x x x I, ROBERTO G. FAMANILA,
x x x hereby remise, release and forever discharge said vessel
"HANSA RIGA", her Owners, operators, managers, charterers,
agents, underwriters, P and I Club, master, officers, and crew
and all parties at interest therein or thereon, whether named or
20
not named, including but not limited to BARBER SHIP
MANAGEMENT LIMITED, NFD INTERNATIONAL MANNING
AGENTS, INC. and ASSURANCEFORENIGEN GARD from any
and all claims, demands, debts, dues, liens, actions or causes of
action, at law or in equity, in common law or in admiralty,
statutory or contractual, arising from and under the laws of the
United States of America, Norway, Hongkong or the Republic of
the Philippines and/or any other foreign country now held, owned
or possessed by me or by any person or persons, arising from or
related to or concerning whether directly or indirectly,
proximately or remotely, without being limited to but including the
said illness suffered by me on board the vessel "HANSA RIGA"
on or about 21st June 1990 at Portland, Oregon and disability
compensation in connection therewith.
This instrument is a GENERAL RELEASE intended to release all
liabilities of any character and/or claims or damages and/or
losses and/or any other liabilities whatsoever, whether
contractual or statutory, at common law or in equity, tortious or in
admiralty, now or henceforth in any way related to or occurring
as a consequence of the illness suffered by me as Messman of
the vessel "HANSA RIGA", including but not limited to all
damages and/or losses consisting of loss of support, loss of
earning capacity, loss of all benefits of whatsoever nature and
extent incurred, physical pain and suffering and/or all damages
and/or indemnities claimable in law, tort, contract, common law,
equity and/or admiralty by me or by any person or persons
pursuant to the laws of the United States of America, Norway,
Hongkong or the Republic of the Philippines and of all other
countries whatsoever.
I hereby certify that I am of legal age and that I fully understand
this instrument which was read to me in the local dialect and I
agree that this is a FULL AND FINAL RELEASE AND
DISCHARGE of all parties and things referred to herein, and I
further agree that this release may be pleaded as an absolute
and final bar to any suit or suits or legal proceedings that may
hereafter be prosecuted by me or by any one claiming by,
through, or under me, against any of the persons or things
referred to or related herein, for any matter or thing referred to or
related herein. 24
It is elementary that a contract is perfected by mere consent and
from that moment the parties are bound not only to the fulfillment
of what has been expressly stipulated but also to all the
consequences which, according to their nature, may be in
keeping with good faith, usage and law. 25 Further, dire necessity
is not an acceptable ground for annulling the Receipt and
Release since it has not been shown that petitioner was forced
to sign it. 26
Regarding prescription, the applicable prescriptive period for the
money claims against the respondents is the three year period
pursuant to Article 291 of the Labor Code which provides that:
ART. 291. Money Claims. – All money claims arising from
employer-employee relations accruing during the effectivity of
this Code shall be filed within three (3) years from the time the
cause of action accrued; otherwise they shall be forever barred.
xxxx

Since petitioner’s demand for an award of disability benefits is a
money claim arising from his employment, Article 291 of the
Labor Code applies. From the time petitioner was declared
permanently and totally disabled on August 21, 1990 which gave
rise to his entitlement to disability benefits up to the time that he
filed the complaint on June 11, 1997, more than three years
have elapsed thereby effectively barring his claim.
WHEREFORE, the petition is DENIED. The Decision of the
Court of Appeals dated March 30, 2001 in CA-G.R. SP No.
50615 which affirmed the Decision of the National Labor
Relations Commission dismissing petitioner’s complaint for
disability and other benefits for lack of merit, and
the Resolution dated October 5, 2001 denying the motion for
reconsideration, are AFFIRMED.
SO ORDERED.
G.R. No. 163707 September 15, 2006
MICHAEL C. GUY, petitioner, vs. HON. COURT OF APPEALS,
This petition for review on certiorari assails the January 22, 2004
Decision1 of the Court of Appeals in CA-G.R. SP No. 79742,
which affirmed the Orders dated July 21, 2000 2 and July 17,
20033 of the Regional Trial Court of Makati City, Branch 138 in
SP Proc. Case No. 4549 denying petitioner's motion to dismiss;
and its May 25, 2004 Resolution4 denying petitioner's motion for
reconsideration.
The facts are as follows:
On June 13, 1997, private respondent-minors Karen Oanes Wei
and Kamille Oanes Wei, represented by their mother Remedios
Oanes (Remedios), filed a petition for letters of
administration5 before the Regional Trial Court of Makati City,
Branch 138. The case was docketed as Sp. Proc. No. 4549 and
entitled Intestate Estate of Sima Wei (a.k.a. Rufino Guy Susim).
Private respondents alleged that they are the duly acknowledged
illegitimate children of Sima Wei, who died intestate in Makati
City on October 29, 1992, leaving an estate valued at
P10,000,000.00 consisting of real and personal properties. His
known heirs are his surviving spouse Shirley Guy and children,
Emy, Jeanne, Cristina, George and Michael, all surnamed Guy.
Private respondents prayed for the appointment of a regular
administrator for the orderly settlement of Sima Wei's estate.
They likewise prayed that, in the meantime, petitioner Michael C.
Guy, son of the decedent, be appointed as Special Administrator
of the estate. Attached to private respondents' petition was a
Certification Against Forum Shopping6 signed by their counsel,
Atty. Sedfrey A. Ordoñez.
In his Comment/Opposition,7 petitioner prayed for the dismissal
of the petition. He asserted that his deceased father left no debts
and that his estate can be settled without securing letters of
administration pursuant to Section 1, Rule 74 of the Rules of
Court. He further argued that private respondents should have
established their status as illegitimate children during the lifetime
of Sima Wei pursuant to Article 175 of the Family Code.
21
The other heirs of Sima Wei filed a Joint Motion to Dismiss 8 on
the ground that the certification against forum shopping should
have been signed by private respondents and not their counsel.
They contended that Remedios should have executed the
certification on behalf of her minor daughters as mandated by
Section 5, Rule 7 of the Rules of Court.
In a Manifestation/Motion as Supplement to the Joint Motion to
Dismiss,9 petitioner and his co-heirs alleged that private
respondents' claim had been paid, waived, abandoned or
otherwise extinguished by reason of Remedios' June 7, 1993
Release and Waiver of Claim stating that in exchange for the
financial and educational assistance received from petitioner,
Remedios and her minor children discharge the estate of Sima
Wei from any and all liabilities.
The Regional Trial Court denied the Joint Motion to Dismiss as
well as the Supplemental Motion to Dismiss. It ruled that while
the Release and Waiver of Claim was signed by Remedios, it
had not been established that she was the duly constituted
guardian of her minor daughters. Thus, no renunciation of right
occurred. Applying a liberal application of the rules, the trial court
also rejected petitioner's objections on the certification against
forum shopping.
Petitioner moved for reconsideration but was denied. He filed a
petition for certiorari before the Court of Appeals which affirmed
the orders of the Regional Trial Court in its assailed Decision
dated January 22, 2004, the dispositive portion of which states:
WHEREFORE, premises considered, the present
petition is hereby DENIED DUE COURSE and
accordingly DISMISSED, for lack of merit.
Consequently, the assailed Orders dated July 21, 2000
and July 17, 2003 are hereby both AFFIRMED.
Respondent Judge is hereby DIRECTED to resolve the
controversy over the illegitimate filiation of the private
respondents (sic) minors [-] Karen Oanes Wei and
Kamille Oanes Wei who are claiming successional
rights in the intestate estate of the deceased Sima Wei,
a.k.a. Rufino Guy Susim.
SO ORDERED.10
The Court of Appeals denied petitioner's motion for
reconsideration, hence, this petition.
Petitioner argues that the Court of Appeals disregarded existing
rules on certification against forum shopping; that the Release
and Waiver of Claim executed by Remedios released and
discharged the Guy family and the estate of Sima Wei from any
claims or liabilities; and that private respondents do not have the
legal personality to institute the petition for letters of
administration as they failed to prove their filiation during the
lifetime of Sima Wei in accordance with Article 175 of the Family
Code.
Private respondents contend that their counsel's certification can
be considered substantial compliance with the rules on
certification of non-forum shopping, and that the petition raises
no new issues to warrant the reversal of the decisions of the
Regional Trial Court and the Court of Appeals.

The issues for resolution are: 1) whether private respondents'
petition should be dismissed for failure to comply with the rules
on certification of non-forum shopping; 2) whether the Release
and Waiver of Claim precludes private respondents from
claiming their successional rights; and 3) whether private
respondents are barred by prescription from proving their
filiation.
The petition lacks merit.
Rule 7, Section 5 of the Rules of Court provides that the
certification of non-forum shopping should be executed by the
plaintiff or the principal party. Failure to comply with the
requirement shall be cause for dismissal of the case. However, a
liberal application of the rules is proper where the higher interest
of justice would be served. In Sy Chin v. Court of Appeals,11 we
ruled that while a petition may have been flawed where the
certificate of non-forum shopping was signed only by counsel
and not by the party, this procedural lapse may be overlooked in
the interest of substantial justice.12 So it is in the present
controversy where the merits13 of the case and the absence of
an intention to violate the rules with impunity should be
considered as compelling reasons to temper the strict application
of the rules.
As regards Remedios' Release and Waiver of Claim, the same
does not bar private respondents from claiming successional
rights. To be valid and effective, a waiver must be couched in
clear and unequivocal terms which leave no doubt as to the
intention of a party to give up a right or benefit which legally
pertains to him. A waiver may not be attributed to a person when
its terms do not explicitly and clearly evince an intent to abandon
a right.14
In this case, we find that there was no waiver of hereditary rights.
The Release and Waiver of Claim does not state with clarity the
purpose of its execution. It merely states that Remedios received
P300,000.00 and an educational plan for her minor daughters
"by way of financial assistance and in full settlement of any and
all claims of whatsoever nature and kind x x x against the estate
of the late Rufino Guy Susim."15 Considering that the document
did not specifically mention private respondents' hereditary share
in the estate of Sima Wei, it cannot be construed as a waiver of
successional rights.
Moreover, even assuming that Remedios truly waived the
hereditary rights of private respondents, such waiver will not bar
the latter's claim. Article 1044 of the Civil Code, provides:
ART. 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated
persons may be accepted by their parents or
guardians. Parents or guardians may repudiate the
inheritance left to their wards only by judicial
authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property,
or in their default, to those mentioned in Article 1030.
(Emphasis supplied)
22
Parents and guardians may not therefore repudiate the
inheritance of their wards without judicial approval. This is
because repudiation amounts to an alienation of
property16 which must pass the court's scrutiny in order to
protect the interest of the ward. Not having been judicially
authorized, the Release and Waiver of Claim in the instant case
is void and will not bar private respondents from asserting their
rights as heirs of the deceased.
Furthermore, it must be emphasized that waiver is the intentional
relinquishment of a known right. Where one lacks knowledge of
a right, there is no basis upon which waiver of it can rest.
Ignorance of a material fact negates waiver, and waiver cannot
be established by a consent given under a mistake or
misapprehension of fact.17
In the present case, private respondents could not have possibly
waived their successional rights because they are yet to prove
their status as acknowledged illegitimate children of the
deceased. Petitioner himself has consistently denied that private
respondents are his co-heirs. It would thus be inconsistent to
rule that they waived their hereditary rights when petitioner
claims that they do not have such right. Hence, petitioner's
invocation of waiver on the part of private respondents must fail.
Anent the issue on private respondents' filiation, we agree with
the Court of Appeals that a ruling on the same would be
premature considering that private respondents have yet to
present evidence. Before the Family Code took effect, the
governing law on actions for recognition of illegitimate children
was Article 285 of the Civil Code, to wit:
ART. 285. The action for the recognition of natural
children may be brought only during the lifetime of the
presumed parents, except in the following cases:
(1) If the father or mother died during the minority
of the child, in which case the latter may file the
action before the expiration of four years from the
attainment of his majority;
(2) If after the death of the father or of the mother a
document should appear of which nothing had been
heard and in which either or both parents recognize the
child.
In this case, the action must be commenced within four
years from the finding of the document. (Emphasis
supplied)
We ruled in Bernabe v. Alejo18 that illegitimate children who were
still minors at the time the Family Code took effect and whose
putative parent died during their minority are given the right to
seek recognition for a period of up to four years from attaining
majority age. This vested right was not impaired or taken away
by the passage of the Family Code.19
On the other hand, Articles 172, 173 and 175 of the Family
Code, which superseded Article 285 of the Civil Code, provide:
ART. 172. The filiation of legitimate children is
established by any of the following:

(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:
(1) The open and continuous possession of the status
of a legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
ART. 173. The action to claim legitimacy may be
brought by the child during his or her lifetime and shall
be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the
heirs shall have a period of five years within which to
institute the action.
The action already commenced by the child shall
survive notwithstanding the death of either or both of
the parties.
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same,
evidence as legitimate children.
The action must be brought within the same period
specified in Article 173, except when the action is
based on the second paragraph of Article 172, in which
case the action may be brought during the lifetime of
the alleged parent.
Under the Family Code, when filiation of an illegitimate child is
established by a record of birth appearing in the civil register or a
final judgment, or an admission of filiation in a public document
or a private handwritten instrument signed by the parent
concerned, the action for recognition may be brought by the child
during his or her lifetime. However, if the action is based upon
open and continuous possession of the status of an illegitimate
child, or any other means allowed by the rules or special laws, it
may only be brought during the lifetime of the alleged parent.
It is clear therefore that the resolution of the issue of prescription
depends on the type of evidence to be adduced by private
respondents in proving their filiation. However, it would be
impossible to determine the same in this case as there has been
no reception of evidence yet. This Court is not a trier of facts.
Such matters may be resolved only by the Regional Trial Court
after a full-blown trial.
While the original action filed by private respondents was a
petition for letters of administration, the trial court is not
precluded from receiving evidence on private respondents'
filiation. Its jurisdiction extends to matters incidental and
collateral to the exercise of its recognized powers in handling the
settlement of the estate, including the determination of the status
of each heir.20 That the two causes of action, one to compel
23
recognition and the other to claim inheritance, may be joined in
one complaint is not new in our jurisprudence. 21 As held in Briz
v. Briz:22
The question whether a person in the position of the
present plaintiff can in any event maintain a complex
action to compel recognition as a natural child and at
the same time to obtain ulterior relief in the character of
heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the
conditions justifying the joinder of the two distinct
causes of action are present in the particular case. In
other words, there is no absolute necessity requiring
that the action to compel acknowledgment should have
been instituted and prosecuted to a successful
conclusion prior to the action in which that same plaintiff
seeks additional relief in the character of heir. Certainly,
there is nothing so peculiar to the action to compel
acknowledgment as to require that a rule should be
here applied different from that generally applicable in
other cases. x x x
The conclusion above stated, though not heretofore
explicitly formulated by this court, is undoubtedly to
some extent supported by our prior decisions. Thus, we
have held in numerous cases, and the doctrine must be
considered well settled, that a natural child having a
right to compel acknowledgment, but who has not been
in fact acknowledged, may maintain partition
proceedings for the division of the inheritance against
his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson
vs. Tiamson, 32 Phil., 62); and the same person may
intervene in proceedings for the distribution of the
estate of his deceased natural father, or mother
(Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya,
13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In
neither of these situations has it been thought
necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is
that in partition suits and distribution proceedings the
other persons who might take by inheritance are before
the court; and the declaration of heirship is appropriate
to such proceedings.
WHEREFORE, the instant petition is DENIED. The Decision
dated January 22, 2004 of the Court of Appeals in CA-G.R. SP
No. 79742 affirming the denial of petitioner's motion to dismiss;
and its Resolution dated May 25, 2004 denying petitioner's
motion for reconsideration, are AFFIRMED. Let the records
be REMANDED to the Regional Trial Court of Makati City,
Branch 138 for further proceedings.
SO ORDERED.
ARTICLE 9
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.

When God created man, He made him in the likeness
of God; He created them male and female. (Genesis
5:1-2)
Amihan gazed upon the bamboo reed planted by
Bathala and she heard voices coming from inside the
bamboo. "Oh North Wind! North Wind! Please let us
out!," the voices said. She pecked the reed once, then
twice. All of a sudden, the bamboo cracked and slit
open. Out came two human beings; one was a male
and the other was a female. Amihan named the man
"Malakas" (Strong) and the woman "Maganda"
(Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In
particular, does the law recognize the changes made by a
physician using scalpel, drugs and counseling with regard to a
person’s sex? May a person successfully petition for a change of
name and sex appearing in the birth certificate to reflect the
result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes
Silverio filed a petition for the change of his first name and sex in
his birth certificate in the Regional Trial Court of Manila, Branch
8. The petition, docketed as SP Case No. 02-105207, impleaded
the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of
Manila to the spouses Melecio Petines Silverio and Anita Aquino
Dantes on April 4, 1962. His name was registered as "Rommel
Jacinto Dantes Silverio" in his certificate of live birth (birth
certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a female" and
that he had always identified himself with girls since
childhood.1 Feeling trapped in a man’s body, he consulted
several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman"
culminated on January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was thereafter
examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact
engaged to be married. He then sought to have his name in his
birth certificate changed from "Rommel Jacinto" to "Mely," and
his sex from "male" to "female."
An order setting the case for initial hearing was published in the
People’s Journal Tonight, a newspaper of general circulation in
Metro Manila, for three consecutive weeks.3 Copies of the order
were sent to the Office of the Solicitor General (OSG) and the
civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
24
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as
witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of
petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law
or judgment or any infraction thereof or for any unlawful
motive but solely for the purpose of making his birth
records compatible with his present sex.
The sole issue here is whether or not petitioner is
entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the
petition would be more in consonance with the
principles of justice and equity. With his sexual [re-
assignment], petitioner, who has always felt, thought
and acted like a woman, now possesses the physique
of a female. Petitioner’s misfortune to be trapped in a
man’s body is not his own doing and should not be in
any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or]
prejudice will be caused to anybody or the community
in granting the petition. On the contrary, granting the
petition would bring the much-awaited happiness on the
part of the petitioner and her [fiancé] and the realization
of their dreams.
Finally, no evidence was presented to show any cause
or ground to deny the present petition despite due
notice and publication thereof. Even the State, through
the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the Civil Registrar
of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for
petitioner’s first name from "Rommel Jacinto"
to MELY and petitioner’s gender from "Male"
to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic),
thru the OSG, filed a petition for certiorari in the Court of
Appeals.6 It alleged that there is no law allowing the change of
entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a
decision8 in favor of the Republic. It ruled that the trial court’s
decision lacked legal basis. There is no law allowing the change
of either name or sex in the certificate of birth on the ground of
sex reassignment through surgery. Thus, the Court of Appeals
granted the Republic’s petition, set aside the decision of the trial
court and ordered the dismissal of SP Case No. 02-105207.
Petitioner moved for reconsideration but it was denied.9 Hence,
this petition.

Petitioner essentially claims that the change of his name and sex
in his birth certificate is allowed under Articles 407 to 413 of the
Civil Code, Rules 103 and 108 of the Rules of Court and RA
9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground
of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his
petition for change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law
or judgment or any infraction thereof or for any unlawful
motive but solely for the purpose of making his birth
records compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil registry
changes sought. We disagree.
The State has an interest in the names borne by individuals and
entities for purposes of identification.11 A change of name is a
privilege, not a right.12 Petitions for change of name are
controlled by statutes.13 In this connection, Article 376 of the
Civil Code provides:
ART. 376. No person can change his name or surname
without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical
Error Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name or
Nickname. – No entry in a civil register shall be
changed or corrected without a judicial order, except for
clerical or typographical errors and change of first name
or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act
and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the
power and authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul general
concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged with
the aforementioned administrative officers. The intent and effect
of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation
or Correction of Entries in the Civil Registry) of the Rules of
Court, until and unless an administrative petition for change of
name is first filed and subsequently denied. 15 It likewise lays
down the corresponding venue,16 form17 and procedure. In sum,
the remedy and the proceedings regulating change of first name
are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first
name may be allowed:
25
SECTION 4. Grounds for Change of First Name or
Nickname. – The petition for change of first name or
nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to
write or pronounce;
(2) The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that first name or nickname in
the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was
his sex reassignment. He intended to make his first name
compatible with the sex he thought he transformed himself into
through surgery. However, a change of name does not alter
one’s legal capacity or civil status.18 RA 9048 does not sanction
a change of first name on the ground of sex reassignment.
Rather than avoiding confusion, changing petitioner’s first name
for his declared purpose may only create grave complications in
the civil registry and the public interest.
Before a person can legally change his given name, he must
present proper or reasonable cause or any compelling reason
justifying such change.19 In addition, he must show that he will
be prejudiced by the use of his true and official name.20 In this
case, he failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the
change of petitioner’s first name was not within that court’s
primary jurisdiction as the petition should have been filed with
the local civil registrar concerned, assuming it could be legally
done. It was an improper remedy because the proper remedy
was administrative, that is, that provided under RA 9048. It was
also filed in the wrong venue as the proper venue was in the
Office of the Civil Registrar of Manila where his birth certificate is
kept. More importantly, it had no merit since the use of his true
and official name does not prejudice him at all. For all these
reasons, the Court of Appeals correctly dismissed petitioner’s
petition in so far as the change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate
As To Sex On the Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth
certificate is a legal issue and the court must look to the
statutes.21 In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be changed
or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 in so far as clerical or typographical errors
are involved. The correction or change of such matters can now
be made through administrative proceedings and without the
need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such

errors.22 Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical
error" is:
SECTION 2. Definition of Terms. – As used in this Act,
the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a
mistake committed in the performance of
clerical work in writing, copying, transcribing or
typing an entry in the civil register that is
harmless and innocuous, such as misspelled
name or misspelled place of birth or the like,
which is visible to the eyes or obvious to the
understanding, and can be corrected or
changed only by reference to other existing
record or records: Provided, however, That
no correction must involve the change
of nationality, age, status or sex of the
petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule
108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code: 24
ART. 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil
register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407
of the Civil Code include even those that occur after
birth.25 However, no reasonable interpretation of the provision
can justify the conclusion that it covers the correction on the
ground of sex reassignment.
To correct simply means "to make or set aright; to remove the
faults or error from" while to change means "to replace
something with something else of the same kind or with
something that serves as a substitute." 26 The birth certificate of
petitioner contained no error. All entries therein, including those
26
corresponding to his first name and sex, were all correct. No
correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil
registry of certain acts (such as legitimations, acknowledgments
of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such
as legal separations, annulments of marriage, declarations of
nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and
changes of name). These acts, events and judicial decrees
produce legal consequences that touch upon the legal capacity,
status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not
among those acts or events mentioned in Article 407. Neither is
it recognized nor even mentioned by any law, expressly or
impliedly.
"Status" refers to the circumstances affecting the legal situation
(that is, the sum total of capacities and incapacities) of a person
in view of his age, nationality and his family membership. 27
The status of a person in law includes all his personal
qualities and relations, more or less permanent in
nature, not ordinarily terminable at his own will,
such as his being legitimate or illegitimate, or his being
married or not. The comprehensive term status…
include such matters as the beginning and end of legal
personality, capacity to have rights in general, family
relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce,
and sometimes even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family
relations. It is a part of a person’s legal capacity and civil status.
In this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration
of civil status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law)
provides:
SEC. 5. Registration and certification of births. – The
declaration of the physician or midwife in attendance at
the birth or, in default thereof, the declaration of either
parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp
tax and shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician or
midwife in attendance at the birth or by either parent of
the newborn child.
In such declaration, the person above mentioned shall
certify to the following facts: (a) date and hour of birth;
(b) sex and nationality of infant; (c) names, citizenship
and religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of parents;

(e) place where the infant was born; and (f) such other
data as may be required in the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical
record of the facts as they existed at the time of birth. 29 Thus, the
sex of a person is determined at birth, visually done by the birth
attendant (the physician or midwife) by examining the genitals of
the infant. Considering that there is no law legally recognizing
sex reassignment, the determination of a person’s sex made at
the time of his or her birth, if not attended by error, 30is
immutable.31
When words are not defined in a statute they are to be given
their common and ordinary meaning in the absence of a contrary
legislative intent. The words "sex," "male" and "female" as used
in the Civil Register Law and laws concerning the civil registry
(and even all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative intent to
the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male
from a female"32 or "the distinction between male and
female."33 Female is "the sex that produces ova or bears
young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and
"female" in everyday understanding do not include persons who
have undergone sex reassignment. Furthermore, "words that are
employed in a statute which had at the time a well-known
meaning are presumed to have been used in that sense unless
the context compels to the contrary."36 Since the statutory
language of the Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be argued that the term
"sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female
transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in
altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to sex
in the civil registry for that reason. Thus, there is no legal basis
for his petition for the correction or change of the entries in his
birth certificate.
Neither May Entries in the Birth Certificate As to First Name
or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It believed
that allowing the petition would cause no harm, injury or
prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-
ranging legal and public policy consequences. First, even the
trial court itself found that the petition was but petitioner’s first
step towards his eventual marriage to his male fiancé. However,
marriage, one of the most sacred social institutions, is a special
contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of
the contracting parties who must be a male and a female.38 To
grant the changes sought by petitioner will substantially
reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who
27
has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which
apply particularly to women such as the provisions of the Labor
Code on employment of women,39 certain felonies under the
Revised Penal Code40 and the presumption of survivorship in
case of calamities under Rule 131 of the Rules of
Court,41 among others. These laws underscore the public policy
in relation to women which could be substantially affected if
petitioner’s petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge
or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the law." However, it is not a
license for courts to engage in judicial legislation. The duty of the
courts is to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it
choose to do so, to determine what guidelines should govern the
recognition of the effects of sex reassignment. The need for
legislative guidelines becomes particularly important in this case
where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change
of first name and for correction or change of entries in the civil
registry, where they may be filed, what grounds may be invoked,
what proof must be presented and what procedures shall be
observed. If the legislature intends to confer on a person who
has undergone sex reassignment the privilege to change his
name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the
conferment of that privilege.
It might be theoretically possible for this Court to write a protocol
on when a person may be recognized as having successfully
changed his sex. However, this Court has no authority to fashion
a law on that matter, or on anything else. The Court cannot
enact a law where no law exists. It can only apply or interpret the
written word of its co-equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life
of happiness, contentment and [the] realization of their dreams."
No argument about that. The Court recognizes that there are
people whose preferences and orientation do not fit neatly into
the commonly recognized parameters of social convention and
that, at least for them, life is indeed an ordeal. However, the
remedies petitioner seeks involve questions of public policy to be
addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.