(cases downloaded from lawphil) G.R. No. L-12779 August 28, 1959 PAULA AQUINO POLICARPIO, petitioner-appellee, vs.

THE PHILIPPINE VETERANS BOARD, respondent-appellee, ASSOCIATED INSURANCE & SURETY CO., INC., surety-appellant. Paula Aquino Policarpio in her own behalf. Assistant Solicitor General Esmeraldo Umali and Solicitor Federico V. Sian for appellee. M. Perez Cardenas for appellant. BARRERA, J.: This is an appeal by the Associated Insurance & Surety Co., Inc. from the order of the Court of First Instance of Manila directing it and Paula Aquino Policarpio, jointly and severally to return to the Philippine Veterans Board the sum of P2,000.00. On February 2, 1947, Paula Aquino-Policarpio applied for pension benefits with the Philippine Veterans Board by reason of the death of her husband, Melencio Policarpio, a member of the Armed Forces of the Philippines who was killed in action on March 29, 1942. This application was favorably acted upon and the widow started receiving a monthly pension of P50.00 on January 2, 1948; but this payment was discontinued on July 31, 1948, upon the Board's discovery that she was then receiving a similar pension from the United States Government. On February 11, 1953, the said widow filed with the Philippine Veterans Board a petition for the restoration of her pension benefits on account of the fact that as of January 10, 1951, she had ceased receiving any pension from the U.S. veterans Board. Thus, the secretary of the Philippine Veterans Board issued a memorandum directed to the accounting officer of said entity restoring Policarpio's monthly stipend effective January 15, 1951. The delivery of Treasury Warrant No. 2773868 for the sum of P1,253.23 covering the accumulated pensions, however, was withheld on the ground that the Board "had not yet granted the restoration of petitioner's pension." As a consequence thereof, Policarpio filed an action for mandamus with the Court of First Instance of Manila to compel the Board officers to release the warrant. The Board resisted the same claiming that the preparation of the warrant upon mere direction of the Secretary of the Board was a mistake as the widow's petition for restoration was yet unacted upon. The lower court, holding that the signing by the secretary to the Board of the order in behalf of the Chairman, coupled with the fact that the check was drawn by virtue of the said order justify the release of the warrant in payment of the petitioner's accumulated pensions, gave judgment in favor of the widow and ordered the release of the warrant and such other warrants corresponding to the widow's subsequent monthly pensions. From this decision, the Philippine Veterans Board appealed to this Tribunal. In the meantime, the widow Paula Aquino-Policarpio filed an ex-parte motion for the execution of the decision pending the appeal, which was granted, and upon her filing the required bond in the sum of P2,000.00. Subscribed by the Associated Surety & Insurance Co., Inc., a writ of execution was actually issued on August 9, 1954. In Pursuance thereto the Philippine Veterans Board delivered to the widow a treasury warrant in the sum of P2,000.00. Disposing of the appeal taken by the Philippine Veterans Board (Policarpio vs. Phil. Veteran's Board, 99 Phil., 797; 52 Off. Gaz., [11] 6178), this Court, on August 28, 1956, reversed the ruling of the trial court, in part saying:

The decision is untenable. It being an established fact that the resumption of the pension had not yet been approved by the Veterans Board the memorandum of the Secretary and the preparation of the warrants were obviously unauthorized, and the taking of such action proves nothing but that the error or lack of authority was not discovered until later, as shown by the subsequent withholding of the warrants. It was improper to compel delivery of the warrants because the Board might, in the exercise of its discretion, refuse to restore petitioner's pension; and even if its refusal should be wrongful or erroneous, the Court could not properly intervene until the appellee-petitioner should have exhausted her administrative remedies De la Paz vs. Alvarez, L-8551, May 16, 1956; Miguel vs. Vda de Reyes, L-4851, July 31, 1953). Therefore, the Court below should have limited itself in ordering the Board to take action upon Policarpio's petition that her pension payments be resumed. xxx xxx xxx The decision appealed is modified in the sense of merely requiring the appellant Philippine Veterans Board to act without delay upon the application of February 11, 1953, for the restoration of pension benefits to appellee Paula Aquino-Policarpio. Without costs. The aforequoted decision having become final, the Philippine Veterans Board filed with the lower court on November 6, 1956, a motion praying that petitioner Policarpio and the surety company be ordered to return the said movant the sum of P2,000.00 delivered to the petitioner by virtue of the writ of execution issued therein. The surety company registered opposition thereto contending that under the terms and conditions of the bond, the liability of the surety would only arise upon the reversal or reduction of the decision appealed from, and considering that the dispositive portion of the decision of this Court did not make any pronouncement regarding the return of the amount received by petitioner and secured by said bond, it is argued that no liability could be imposed against the surety. After considering the respective contentions of the parties, the lower court held in abeyance its resolution on the Board's motion for restitution until after the Board has complied with the decision of the Supreme Court requiring the Philippine Veterans Board to act without delay upon the widow's application of February 11, 1953 for the restoration of her pension benefits. On December 26, 1956 the v Veterans Board filed a motion stating that it had already acted upon the widow's petition by restoring her pension benefits as of November 29, 1956, and praying that its motion for restitution be thereupon resolved. In its order of January 12, 1957, the lower court granted the Board's motion and required the petitioner and the surety, jointly and severally, to return to the Philippine Veterans Board the sum of P2,000.00. It is from this order that the appellant Associated Insurance & Surety Co., Inc., has brought this present appeal to this Court. In this appeal, appellant argues that its obligation under its bond is to guarantee the return of the sum of P2,000.00 received by the petitioner from the Veterans Board "in the event that the decision appealed from, should the same be appealed, be reversed or reduced and the same become final and executory"; and as the dispositive portion of the Supreme Court's decision in G. R. No. L-10062 merely modified the lower court's ruling by requiring the Board to act upon the application of Policarpio for restoration of her pension, no action could be taken against the bond. Substantially, appellant's line of reasoning would be to confine the judgment of the court to what appears in the dispositive part of a decision.

We are not unaware of the pronouncements of this Court, thus: The final judgment as rendered is the judgment of the court irrespective of all seemingly contrary statements in the decision. "A judgment must be distinguished from an opinion. The latter is the informal expression of the views of the court and cannot prevail against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So, . . . there is a distinction between the findings and conclusions of a court and its judgment. While they may constitute its decision and amount to the rendition of a judgment, they are not the judgment itself. They amount to nothing more than an order for judgment, which must, of course, be distinguished from the judgment. (1 Freeman on Judgments, p. 6). (Contreras vs. Felix, 78 Phil. 570). The presumption of res judicata cannot be deduced from the ground of the order but from the fallo or from the dispositive part of the order, which is real judgment in the case in litigation (Archbishop of Manila vs. Director of Lands, 35 Phil., 339). A perusal of the aforesaid decisions, however, would reveal that the citations were not intended to be the fix and steadfast rule on the matter, but are laid down to meet the particular circumstances peculiar to those case and which find no application in the one at bar. This Court's declarations in the first appeal of this case that "the decision (of the lower court) is untenable", "the preparation of the warrants were obviously unauthorized", and "it was improper to compel delivery of the warrants" can hardly be called mere opinions. While the word "modified" is utilized in the dispositive portion of the decision , it cannot equally be denied that the ruling appealed from directing the release of the warrant was not merely altered but completely overruled. It is true that the resolution of the court in a given issue, which determines and settles the rights of the parties, is ordinarily embodied in the last or dispositive part of the decision (Manalang vs. Rickards, G. R. No. L-11986, promulgate July 31, 1958), yet not infrequently such resolution or ruling may and does appear in other parts thereof. Style in decision-making or preparation is personal to its writer. As long as the decision satisfies the requirement of the law (Art. VIII, Sec. 12, Philippine Constitution; Rule 35, Sec. 1, Rules of Court), we find no compelling reason to adopt a definite and stringent rule underlining how and where the judgment would be framed. Indeed it is well said that to get the true intent and meaning of a decision, no specific portion thereof should be resorted to but same must be considered in its entirety (Escarella vs. Director of Lands, 83 Phil., 491; 46, Off. Gaz. No. 11, p. 5487; I Moran's Comments on the Rules of Court, 1957 ed., p. 478). Whatever may have been the requisite formerly, it is evident that the sufficiency of the writing claimed to be a judgment must, at least under the code, be tested by its substance rather than by its form. If it corresponds with the definition of a judgment as established by the code; if it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted, its claim to confidence will not be lessened by a want of technical form, nor by the absence of language commonly deemed especially appropriate to formal judicial records (I Freeman on Judgments, p. 121). No strict formality in the language is necessary to express the adjudication of the court. The judgment is tested by its substance rather than by its form. It is sufficient if the entry shows that the issue between the parties has been passed upon by the court and the merits of the cause finally determined (Melton vs. St. Louis, I. M. & S. R. Co., 99 Ark. 433; 139 S. W. 289; Lutrell vs. Reynolds, 63 Ark. 254; 37 S. W. 1051).

It may be reiterated at this juncture that the bond was field to guarantee the return of the money advanced to therein plaintiff Paula Aquino-Policarpio upon the reversal or "reduction" of the decision appealed from. Certainly, we are at a lose analyzing how a decision may be reduced unless it refers to the amount involved therein. Be that as it may, considering that the instrument was prepared by the surety company, the plaintiff's participation therein most likely being limited to the signing thereof, any doubt as to the interpretation of any condition thereof must be resolved against said compensated surety (Pacific Tobacco Corporation vs. Lorenzana, 102 Phil., 234). The phrase should, therefore, be properly read "reversal or modification". Whether it be under the dispositive part or based on the judgment of the Court in said appeal (G. R. No. L10062), the surety cannot escape the liability of insuring the return of the amount delivered by herein appellee to Policarpio. It appearing, however, that in the meeting of the Philippine Veterans Board of November 29, 1956, Policarpio's application for restoration of her pension benefits was duly and favorably considered, the payment of the monthly sum of P2,000.00 may be compensated or reduced by whatever amount still remains uncollected and due to Policarpio as pension from November 29, 1956, to the date of the restoration. As thus modified, the order of the lower court is hereby affirmed, without costs. It is so ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.

G.R. No. L-12944

March 30, 1959

MARIA NATIVIDAD VDA. DE TAN, petitioner-appellee, vs. VETERANS BACKPAY COMMISSION, respondent-appellant. Atilano R. Cinco and Aguilan and Rosero Law Offices for appellee. Acting Solicitor General Guillermo E. Torres and Solicitor Camilo D. Quiason for appellant. REYES, J.B.L., J.: On March 5, 1957, petitioner-appellee, Maria Natividad vda. de Tan filed with the Court of First Instance of Manila a verified petition for mandamus seeking an order to compel the respondentappellant Veterans Back Pay Commission: (1) to declare deceased Lt. Tan Chiat Bee alias Tan Lian Lay, a Chinese national, entitled to backpay rights, privileges, and prerogatives under Republic Act No. 304, as amended by Republic Act No. 897; and (2) to give due course to the claim of petitioner, as the widow of the said veterans, by issuing to her the corresponding backpay certificate of indebtedness. Respondent Commission filed its answer in due time asserting certain special and affirmative defenses, on the basis of which, the Commission unsuccessfully moved to dismiss the petition. The parties then submitted a stipulation of facts hereinbelow reproduced: Come now the petitioner and respondent in the above-entitled case through their respective counsel, and to this Honorable Court respectfully agree and stipulate that the following facts are true: 1. That the petitioner is of legal age, widow, and a resident of 400 Lallana, Tondo, Manila; that the respondent is a government instrumentality or agency, with offices in the City of Manila, Philippines, duly vested with authority to implement the provisions of the Backpay Law, otherwise known as Republic Act No. 879, further amending Republic Act No. 304; 2. That the petitioner is the widow of the late Lt. Tan Chiat Bee alias Tan Lian Lay, a Chinese national, and a bona fide member of the 1st Regiment, United States-Chinese Volunteers in the Philippines; 3. That the United States-Chinese Volunteers in the Philippines is a guerrilla organization duly recognized by the Army of the United States and forming part and parcel of the Philippine Army; 4. That Tan Chiat Bee alias Tan Lian Lay died in the service on April 4, 1945 in the battle at Ipo Dam, Rizal Province, Philippines; he was duly recognized as a guerrilla veteran and certified to by the Armed Forces of the Philippines as having rendered meritorious military services during the Japanese occupation; 5. That petitioner as the widow of the said recognized deceased veteran, filed an application for back pay under the provisions of Republic Act No. 897, the resolution of the Veterans Back Pay Commissions dated November 19, 1953 and the letter of the Veterans Back Pay Commission dated December 9, 1953; 6. That on June 18, 1955, the Secretary and the Chief of Office Staff of Veterans Back Pay Commission sent a letter to General Vicente Lopez of the United States-Chinese

Volunteers in the Philippines apprising the latter that the Commission has reaffirmed its resolution granting the back pay to alien members; 7. That the Adjutant, Armed Forces of the Philippines, has verified and certified that deceased veteran has rendered service as a recognized guerrilla for the period indicated in his (Adjutant's) indorsement to the Chief, Finance Service Armed Forces of the Philippines; 8. That, likewise, the Chief of Finance Service, Camp Murphy, has computed the backpay due the petitioner and the same was passed in audit by representatives of the Auditor General; 9. That after due liberation respondent revoked its previous stands and ruled that aliens are not entitled to back pay; 10. That on February 13, 1957, the respondent Veterans Back Pay Commission, through its Secretary & Chief of Office Staff, made a formal reply to the aforesaid claim of the herein petitioner denying her request on the ground that aliens are not entitled to back pay; 11. That upon refusal of the Veterans Back Pay Commission the petitioner brought the case direct to this Honorable Court by way of mandamus; 12. That petitioner and respondent admit the existence and authenticity of the following documents; Annex AResolution of the Veterans Back Pay dated November 19, 1953. Annex BLetter dated December 9, 1953. Annex CLetter dated June 18, 1955. Annex DExecutive Order No. 21 dated October 28, 1944. Annex EExecutive Order No. 68 dated September 26, 1945. Annex FMinutes of the Resolution of the Back Pay Commission regarding the opinion of the Secretary of Justice dated February 8, 1956. Annex GLetter of Back Pay Commission dated February 26, 1954 to Secretary of Justice. Annex HOpinion No. 213 series of 1956 of the Secretary of Justice. Annex IReply of Veterans Backpay Commission. Annex JExplanatory Note to House Bill No. 1953. Annex KExplanatory note to Senate Bill No. 10. Annex LExplanatory note to House Bill No. 1228, now Republic Act No. 897. Annex MJoint Resolution No. 5 of the First Congress of the Philippines. 13. That the parties waive the presentation of further evidence; 14. That the respondents will file its memorandum within ten (10) days from August 1, 1957 and the petitioner may file her memorandum within ten (10) days from receipt of respondent's memorandum, after which the case is deemed submitted for decision. Manila, July 31, 1957.

Based on the foregoing, the lower court rendered judgment the dispositive portion of which, reads: Wherefore, the petition is granted, ordering respondent Commission to give due course to the claim of herein petitioner to the backpay to which her deceased husband was entitled as member of a duly recognized guerrilla organization. Against the decision, the respondent instituted this appeal averring once more, in its assignment of errors, the special and affirmative defenses that the petitioner failed to exhaust available administrative remedies; that the suit is, in effect, an action to enforce a money claim against the government without its consent; that mandamus will not lie to compel the exercise of a discretionary function; and that the Republic Act Nos. 304 and 897 already referred to were never intended to benefit aliens. We find no merit in the appeal. As to the claim that mandamus is not the proper remedy to correct the exercise of discretion of the Commission, it may well be remembered that its discretion is limited to the facts of the case, i.e., in merely evaluating the evidence whether or not the claimant is a member of a guerrilla force duly recognized by the United States Army. Nowhere in the law is the respondent Commission given the power to adjudicate or determine rights after such facts are established. Having been satisfied that deceased Tan Chiat Bee was an officer of a duly recognized guerrilla outfit, certified to by the Armed Forces of the Philippines, having served under the United States-Chinese Volunteers in the Philippines, a guerrilla unit recognized by the United States army and forming part of the Philippine Army, it becomes the ministerial duty of the respondent to give due course to his widow's application. (See sections 1 and 6, Republic Act 897). Note that the Chief of the Finance Service, Camp Murphy, has accepted the backpay due the petitioner's husband and the same was passed in audit by the representatives of the Auditor General. It is insisted by the respondent Commission that aliens are not included within the purview of the law. We disagree. The law is contained in Republic Act Nos. 304 and 897 is explicit enough, and it extends its benefits to members of "guerrilla forces duly recognized by the Army of the United States." From the plain and clear language thereof, we fail to see any indication that its operation should be limited to citizens of the Philippines only, for all that is required is that the guerrilla unit be duly recognized by the Army of the United States. We are in full accord with Opinion No. 213, series of 1956, of the Secretary of Justice, which reads: Section 1 of the cited Act (Republic act No. 304, as amended by Republic Act No. 897), otherwise known as the Back Pay Law, recognizes the rights to the backpay of members of "guerrilla forces duly recognized by the Army of the United States, among others. A perusal of its provisions reveals nothing which may be construed to mean that only Filipino citizens are entitled to back pay thereunder. On the contrary, the statute expressly includes within its coverage "persons under contract with the Government of the Commonwealth", which clause was construed by this office to refer to service" by the government (Opinion No. 137, s. 1953), a majority of whom were non-citizens. Thus, the Opinion No. 30, s. 1949, this office ruled that a civil service employee of the U.S. Coast and Geodetic Survey rendering the service to the Philippine Government when war broke out on December 8, 1941, was entitled to back pay. As regards guerrillas, it seems clear that all the law requires is that they be "duly recognized by the Army of the United States." Section 1 of the Back Pay Law, it is also noted, enumerates those who are not entitled to its benefits; recognized guerrillas who

were not Filipino citizens are not among those expressly mentioned. The maxim expressio unius est exclusio alterius, I think, finds application here. Moreover, Executive Order No. 21, dated October 28, 1944, expressly declared that, Sections 22 (a) and 27 of Commonwealth Act No. 1 to the contrary notwithstanding, "all persons of any nationality or citizenship, who are actively serving in recognized military forces in the Philippines, are thereby considered to be on active service in the Philippine Army." It is the respondent's main argument that it could not have been the intention of Congress to extend its benefit to aliens, as the purpose of the law was "precisely to help rehabilitate members of the Armed Forces of the Philippines and recognized guerrillas by giving them the right to acquire public lands and public property by using the back pay certificate", and "it is fundamental under the Constitution that aliens except American citizens cannot acquire public lands or exploit our natural resources". Respondent Commission fails to realize that this is just one of the various uses of the certificate; and that it may also be utilized for the payment of obligations to the Government or to any of its branches or instrumentalities, i.e., taxes, government hospital bills, etc. (See Sec. 2, Rep. act No. 897). As further observed by the lower court: It is one thing to be entitled to backpay and to receive acknowledgment therefor, and another thing to receive backpay certificates in accordance with the resolutions of the Commission and to make use of the same. It was, therefore, unreasonable if not arbitrary on the part of respondent Commission to deny petitioner's claim on the basis. It is further contended by the Commission that the petitioner should have first exhausted her administrative remedies by appealing to the President of the Philippines, and that her failure to do so is a bar to her action in court (Montes vs. The Civil Service Board of Appeals, 101 Phil., 490; 54 Off. Gaz. [7] 2174. The respondent Commission is in estoppel to invoke this rule, considering that in its resolution (Annex F of the Stipulation of Facts) reiterating its obstinate refusal to abide by the opinion of the Secretary of Justice, who is the legal adviser of the Executive Department, the Commission declared that The opinions promulgated by the Secretary of Justice are advisory in nature, which may either be accepted or ignored by the office seeking the opinion, and any aggrieved party has the court for recourse, (Annex F) thereby leading the petitioner to conclude that only a final judicial ruling in her favor would be accepted by the Commission. Neither is there substance in the contention that the petition is, in effect, a suit against the government without its consent. the relief prayed for is simply "the recognition of the petitionerappellee" under the provisions of sections 1 and 2 of Republic Act No. 897, and consists in "directing an agency of the government to perform an act . . . it is bound to perform." Republic Act Nos. 304 and 897 necessarily embody state consent to an action against the officers entrusted with the implementation of said Acts in case of unjustified refusal to recognize the rights of proper applicants. The decision appealed from should be, and hereby is, affirmed. No costs. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A. Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.

G.R. No. L-27448 November 29, 1977 PROVINCE OF PANGASINAN, petitioner, vs. REPARATIONS COMMISSION, THE HON. EXECUTIVE SECRETARY, THE HON. SECRETARY OF PUBLIC WORKS, THE HON. COMMISSIONER OF PUBLIC HIGHWAYS, THE PROVINCIAL COMMANDER, PC, PANGASINAN and THE HIGHWAY DISTRICT ENGINEER, PANGASINAN ENGINEERING DISTRICT, respondents. Ambrosia Padilla, Antonio Ruiz and Bonifacio T. Doria for petitioner. Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro and Solicitor Pedro A. Ramirez for respondents. CONCEPCION JR., J.: Petition for mandamus, with preliminary injunction, to compel the respondent Reparations Commission to execute the formal documents transferring certain reparations equipment and machinery to the petitioner, and to restrain the other respondents from exclusing the petitioner from the use, control, and disposition of the said reparations equipment and machinery. On November 25, 1963, the petitioner Province of Pangasinan filed with the respondent Reparations Commission an application for reparation goods worth US $1,500,000.00, to be used for "non-revenue projects", such as equipment and machinery for road building, improvement of existing irrigation systems, and garbage collection for different municipalities. 1 As a pre-requisite, the petitioner was requited to set aside sufficient amounts in its budget for maintenance of said equipment and machinery.2 On October 13, 1964, the respondent Reparations Commission forwarded to the President for approval, through the National Economic Council, the tentative schedule for the ninth reparations year. 3 Included therein, was the petitioner's application for road building equipment. 4 On March 9, 1965, the National Economic Council, by its Resolution No. 96 (165), submitted to the President, for his final action the tentative ninth year reparations schedule as revised by it. 5 In said revised schedule, the road building equipment applied for by the petitioner was not recommended as a, "non-revenue producing project." 6 On April 6, 1965, the President approved the tentative ninth reparations year schedule as revised and recommended by the National Economic Council, 7 and, thereafter, returned the same to the Reparations Commission for implementation. 8 The reparations goods and equipment arrived at the Port of Manila in October, 1966, and were released to the petitioner, upon payment by the latter, of the necessary inspection fee, bank commission, costs of publications, etc. 9 On November 16, 1966, Atty. Panfilo M. Manguera, Reparations Adviser, Director and Head of the Legal Department of the Reparations Commission, forwarded to the Chairman of the Reparations Commission, for his signature, copies of the "Contract of

Transfer of Reparations Goods" in favor of the petitioner, covering the roadbuilding equipment aforementioned. 10 Tile contract, however, was not acted upon despite representations made in behalf of the petitioner. Instead, on November 26, 1966, the respondent Reparations Commission required the petitioner to place the reparations goods in the custody of the Highway District Engineer until the petitioner is given clearance by the Secretary of Finance, Auditor General, Budget Commissioner, and the Office of the President. 11 Concordantly, a telegram of similar import was received by the petitioner from the Office of the President, 12 and the Highway District Engineer of Pangasinan was likewise directed by the Secretary of Public Works to take custody of the said reparations goods. 13 Representations made in behalf of the petitioner with the respondent Reparations Commission 14 yielded no favorable results as the respondent Commission required pre-payment of the procurement costs before return of the reparations goods is made, the reparations goods in question not having been classified as intended for non-revenue producing projects. Thereafter, the respondent Reparations Commission ordered the deletion and removal from the reparations goods of all inscriptions indicating the proprietary right of petitioner over said goods. 15 The Provincial Governor of Pangasinan considered the action taken as politically motivated which deprives the province of its lawfully acquired right to own and enjoy the use of said reparations goods, and, accordingly, caused the filing of the instant petition. The Court gave due course to the petition and issued a temporary restraining order on April 20, 1967, ordering the respondents to cease and desist from continuing acts of interference, use, control, and disposition of the roadbuilding equipment machineries and vehicles obtained by the petitioner through the Reparations Commission. 16 The respondents seek the dismissal of the petition upon the grounds that mandamus is not the proper remedy to enforce contractual rights and that the reparations goods in question are not intended for "non-revenue producing projects" so that the petitioner has to pay its procurement costs, and since the petitioner has failed to pay the same, the reparations goods remain the property of the Government, subject to the control of the respondent Commission. The respondents also claim that the petitioner is not dispossessed, much less deprived, of the use of the reparations equipment since the reparations goods were merely placed in the custody of the respondent Highway District Engineer of Pangasinan, who is also an official of the petitioner province. It should be emphasized that the present proceeding is a petition for mandamus under Rule 65, Section 3, of the Rules of Court, to compel "the defendant Reparations Commission to immediately execute the formal documents transferring the reparations equipment and machinery to the plaintiff Province of Pangasinan without costs." Under said section 3, Rule 65 of the Rules of Court, mandamus will he: 1) in case any tribunal unlawfully neglects the performance of an act which the law specifically enjoins as a duty; 2) in case any corporation, board, or person unlawfully neglects the Performance of an act which the law enjoins as a duty resulting from an office, trust or station; and 3) in case any tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a right or office to which such other is legally entitled; and there is no other plain, speedy and adequate remedy in the ordinary course of law. Mandamus is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. But, mandamus does not lie to require anyone to fulfill contractual obligations or to compel a course of conduct.17

The case under consideration, under the allegations of the petition, constitute an attempt to settle contractual rights and obligations, express or implied, between the petitioner and the respondent Reparations Commission and to regulate a course of conduct on the part of the respondent Commission. Accordingly, a mandamus is not the proper remedy. It has also been held 18 that it is essential to the issuance of the writ of mandamus that the plaintiff should have a clear legal right to the thing demanded and it must be the imperative duty of the defendant to Perform the act required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely express, it is necessary that it should be clear. The writ will not issue to compel an official to do anything which it is not his duty to do or which it is his duty not to do, or give to the applicant anything to which he is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed. A reading of the application in this proceeding discloses that there is an absence of adequate evidence that it is the duty of the respondent Reparations Commission to perform the act whose performance is prayed for in the petition. Thus, the basis of petitioner's complaint is that the reparations goods in question were awarded to the province to be used, in non-revenue producing projects and, hence, the petitioner is not liable to pay the procurement costs pursuant to Sec. 12 of Republic Act No. 1789; wherefore, it is the duty of the respondent Commission to execute in petitioner's favor the formal documents of transfer. Indeed, the petitioner applied for reparations roadbuilding equipment to be used in nonrevenue producing projects. But, the record clearly shows that the roadbuilding equipment applied for were not ultimately classified as such. As a matter of fact, the petitioner had even agreed to convert its application to one intended for revenue producing projects as eloquently shown by Resolution No. 1532 of the Provincial Board of Pangasinan on May 17, 1965 wherein it was:
RESOLVED, as it is hereby resolved, to make representation with the Reparations Commission, Manila, to transform the equipment requisitioned by the Province of Pangasinan, from non-revenue producing to revenue producing machineries, with the agreement that the province shall pay the said equipment on installment basis for a period from ten (10) to fifteen (15) years the first installment to be paid twenty four (24) months after the delivery. 19

The reparations equipment being intended for revenue producing projects, it is not incumbent upon the respondent Reparations Commission to execute the formal transfer documents until after the petitioner shall have paid the procurement costs of the said reparations goods, and since the petitioner has not yet complied with its obligation, the respondent Reparations Commission has no ministerial duty to perform. Mandamus, therefore, will not lie. WHEREFORE, the instant petition is hereby dismissed. The temporary restraining order heretofore issued is hereby set aside. No costs. SO ORDERED. Fernando (Chairman), Barredo, Antonio, Aquino and Santos, JJ., concur.

G.R. No. L-36181 October 23, 1982 MERALCO SECURITIES CORPORATION (now FIRST PHILIPPINE HOLDINGS CORPORATION), petitioner, vs. HON. VICTORINO SAVELLANO and ASUNCION BARON VDA. DE MANIAGO, et al., as heirs of the late Juan G. Maniago, respondents. G.R. No. L-36748 October 23, 1982 COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. HON. VICTORINO SAVELLANO and ASUNCION BARON VDA. DE MANIAGO, et al., as heirs of the late Juan G. Maniago, respondents. G.R. No. L-36181 San Juan, Africa, Gonzales & San Agustin for petitioner. Ramon A. Gonzales for respondents. TEEHANKEE, J.: These are original actions for certiorari to set aside and annul the writ of mandamus issued by Judge Victorino A. Savellano of the Court of First Instance of Manila in Civil Case No. 80830 ordering petitioner Meralco Securities Corporation (now First Philippine Holdings Corporation) to pay, and petitioner Commissioner of Internal Revenue to collect from the former, the amount of P51,840,612.00, by way of alleged deficiency corporate income tax, plus interests and surcharges due thereon and to pay private respondents 25% of the total amount collectible as informer's reward. On May 22, 1967, the late Juan G. Maniago (substituted in these proceedings by his wife and children) submitted to petitioner Commissioner of Internal Revenue confidential denunciation against the Meralco Securities Corporation for tax evasion for having paid income tax only on 25 % of the dividends it received from the Manila Electric Co. for the years 1962-1966, thereby allegedly shortchanging the government of income tax due from 75% of the said dividends. Petitioner Commissioner of Internal Revenue caused the investigation of the denunciation after which he found and held that no deficiency corporate income tax was due from the Meralco Securities Corporation on the dividends it received from the Manila Electric Co., since under the law then prevailing (section 24[a] of the National Internal Revenue Code) "in the case of dividends received by a domestic or foreign resident corporation liable to (corporate income) tax under this Chapter . . . .only twentyfive per centum thereof shall be returnable for the purposes of the tax imposed under this section." The Commissioner accordingly rejected Maniago's contention that the Meralco from whom the dividends were received is "not a domestic corporation liable to tax under this Chapter." In a letter dated April 5, 1968, the Commissioner informed Maniago of his findings and ruling and therefore denied Maniago's claim for informer's reward on a non-existent deficiency. This action of the Commissioner was sustained by the Secretary of Finance in a 4th Indorsement dated May 11, 1971.

On August 28, 1970, Maniago filed a petition for mandamus, and subsequently an amended petition for mandamus, in the Court of First Instance of Manila, docketed therein as Civil Case No. 80830, against the Commissioner of Internal Revenue and the Meralco Securities Corporation to compel the Commissioner to impose the alleged deficiency tax assessment on the Meralco Securities Corporation and to award to him the corresponding informer's reward under the provisions of R.A. 2338. On October 28, 1978, the Commissioner filed a motion to dismiss, arguing that since in matters of issuance and non-issuance of assessments, he is clothed under the National Internal Revenue Code and existing rules and regulations with discretionary power in evaluating the facts of a case and since mandamus win not lie to compel the performance of a discretionary power, he cannot be compelled to impose the alleged tax deficiency assessment against the Meralco Securities Corporation. He further argued that mandamus may not lie against him for that would be tantamount to a usurpation of executive powers, since the Office of the Commissioner of Internal Revenue is undeniably under the control of the executive department. On the other hand, the Meralco Securities Corporation filed its answer, dated January 15, 1971, interposing as special and/or affirmative defenses that the petition states no cause of action, that the action is premature, that mandamus win not lie to compel the Commissioner of Internal Revenue to make an assessment and/or effect the collection of taxes upon a taxpayer, that since no taxes have actually been recovered and/or collected, Maniago has no right to recover the reward prayed for, that the action of petitioner had already prescribed and that respondent court has no jurisdiction over the subject matter as set forth in the petition, the same being cognizable only by the Court of Tax Appeals. On January 10, 1973, the respondent judge rendered a decision granting the writ prayed for and ordering the Commissioner of Internal Revenue to assess and collect from the Meralco Securities Corporation the sum of P51,840,612.00 as deficiency corporate income tax for the period 1962 to 1969 plus interests and surcharges due thereon and to pay 25% thereof to Maniago as informer's reward. All parties filed motions for reconsideration of the decision but the same were denied by respondent judge in his order dated April 6, 1973, with respondent judge denying respondents' claim for attorneys fees and for execution of the decision pending appeal. Hence, the Commissioner filed a separate petition with this Court, docketed as G.R. No. L-36748 praying that the decision of respondent judge dated January 10, 1973 and his order dated April 6, 1973 be reconsidered for respondent judge has no jurisdiction over the subject matter of the case and that the issuance or non-issuance of a deficiency assessment is a prerogative of the Commissioner of Internal Revenue not reviewable by mandamus. The Meralco Securities Corporation (now First Philippine Holdings Corporation) likewise appealed the same decision of respondent judge in G.R. No. L-36181 and in the Court's resolution dated June 13, 1973, the two cases were ordered consolidated. We grant the petitions. Respondent judge has no jurisdiction to take cognizance of the case because the subject matter thereof clearly falls within the scope of cases now exclusively within the jurisdiction of the Court of Tax Appeals. Section 7 of Republic Act No. 1125, enacted

June 16, 1954, granted to the Court of Tax Appeals exclusive appellate jurisdiction to review by appeal, among others, decisions of the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties imposed in relation thereto, or other matters arising under the National Internal Revenue Code or other law or part of law administered by the Bureau of Internal Revenue. The law transferred to the Court of Tax Appeals jurisdiction over all cases involving said assessments previously cognizable by courts of first instance, and even those already pending in said courts. 1 The question of whether or not to impose a deficiency tax assessment on Meralco Securities Corporation undoubtedly comes within the purview of the words "disputed assessments" or of "other matters arising under the National Internal Revenue Code . . . .In the case of Blaquera vs. Rodriguez, et al, 2 this Court ruled that "the determination of the correctness or incorrectness of a tax assessment to which the taxpayer is not agreeable, falls within the jurisdiction of the Court of Tax Appeals and not of the Court of First Instance, for under the provisions of Section 7 of Republic Act No. 1125, the Court of Tax Appeals has exclusive appellate jurisdiction to review, on appeal, any decision of the Collector of Internal Revenue in cases involving disputed assessments and other matters arising under the National Internal Revenue Code or other law or part of law administered by the Bureau of Internal Revenue." Thus, even assuming arguendo that the right granted the taxpayers affected to question and appeal disputed assessments, under section 7 of Republic Act No. 1125, may be availed of by strangers or informers like the late Maniago, the most that he could have done was to appeal to the Court of Tax Appeals the ruling of petitioner Commissioner of Internal Revenue within thirty (30) days from receipt thereof pursuant to section 11 of Republic Act No. 1125. 3 He failed to take such an appeal to the tax court. The ruling is clearly final and no longer subject to review by the courts. 4 It is furthermore a well-recognized rule that mandamus only lies to enforce the performance of a ministerial act or duty 5 and not to control the performance of a discretionary power. 6 Purely administrative and discretionary functions may not be interfered with by the courts. 7 Discretion, as thus intended, means the power or right conferred upon the office by law of acting officially under certain circumstances according to the dictates of his own judgment and conscience and not controlled by the judgment or conscience of others. 8 mandamus may not be resorted to so as to interfere with the manner in which the discretion shall be exercised or to influence or coerce a particular determination. 9 In an analogous case, where a petitioner sought to compel the Rehabilitation Finance Corporation to accept payment of the balance of his indebtedness with his backpay certificates, the Court ruled that "mandamus does not compel the Rehabilitation Finance Corporation to accept backpay certificates in payment of outstanding loans. Although there is no provision expressly authorizing such acceptance, nor is there one prohibiting it, yet the duty imposed by the Backpay Law upon said corporation as to the acceptance or discount of backpay certificates is neither clear nor ministerial, but discretionary merely, and such special civil action does not issue to control the exercise of discretion of a public officer." 10 Likewise, we have held that courts have no power to order the Commissioner of Customs to confiscate goods imported in violation of the Import Control Law, R.A. 426, as said forfeiture is subject to the discretion of the said official, 11 nor may courts control the determination of whether or not an applicant for a visa has a

non-immigrant status or whether his entry into this country would be contrary to public safety for it is not a simple ministerial function but an exercise of discretion. 12 Moreover, since the office of the Commissioner of Internal Revenue is charged with the administration of revenue laws, which is the primary responsibility of the executive branch of the government, mandamus may not he against the Commissioner to compel him to impose a tax assessment not found by him to be due or proper for that would be tantamount to a usurpation of executive functions. As we held in the case of Commissioner of Immigration vs. Arca 13 anent this principle, "the administration of immigration laws is the primary responsibility of the executive branch of the government. Extensions of stay of aliens are discretionary on the part of immigration authorities, and neither a petition for mandamus nor one for certiorari can compel the Commissioner of Immigration to extend the stay of an alien whose period to stay has expired. Such discretionary power vested in the proper executive official, in the absence of arbitrariness or grave abuse so as to go beyond the statutory authority, is not subject to the contrary judgment or control of others. " "Discretion," when applied to public functionaries, means a power or right conferred upon them by law of acting officially, under certain circumstances, uncontrolled by the judgment or consciences of others. A purely ministerial act or duty in contradiction to a discretional act is one which 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 his own judgment upon the propriety or impropriety of the act done. 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. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment." 14 Thus, after the Commissioner who is specifically charged by law with the task of enforcing and implementing the tax laws and the collection of taxes had after a mature and thorough study rendered his decision or ruling that no tax is due or collectible, and his decision is sustained by the Secretary, now Minister of Finance (whose act is that of the President unless reprobated), such decision or ruling is a valid exercise of discretion in the performance of official duty and cannot be controlled much less reversed by mandamus. A contrary view, whereby any stranger or informer would be allowed to usurp and control the official functions of the Commissioner of Internal Revenue would create disorder and confusion, if not chaos and total disruption of the operations of the government. Considering then that respondent judge may not order by mandamus the Commissioner to issue the assessment against Meralco Securities Corporation when no such assessment has been found to be due, no deficiency taxes may therefore be assessed and collected against the said corporation. Since no taxes are to be collected, no informer's reward is due to private respondents as the informer's heirs. Informer's reward is contingent upon the payment and collection of unpaid or deficiency taxes. An informer is entitled by way of reward only to a percentage of the taxes actually assessed and collected. Since no assessment, much less any collection, has been made in the instant case, respondent judge's writ for the Commissioner to pay respondents 25% informer's reward is gross error and without factual nor legal basis.

WHEREFORE, the petitions are hereby granted and the questioned decision of respondent judge dated January 10, 1973 and order dated April 6, 1973 are hereby reversed and set aside. With costs against private respondents. Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur. Gutierrez, Jr., J., took no part.

G.R. No. 119155

January 30, 1996

VICTORINA A. CRUZ, petitioner, vs. COURT OF APPEALS, HON. SALVADOR M. ENRIQUEZ, JR., Secretary of the Department of Budget and Management, HON. ARMAND V. FABELLA, Secretary of the Department of Education, Culture and Sports, and NORMA ABRACIA, School Division Superintendent, Division of City Schools, 3rd District, Caloocan City, respondents. DECISION DAVIDE, JR., J.: This is a petition under Rule 45 of the Rules of Court to review and set aside the decision of 18 October 19941 and the resolution of 31 January 19952 of the Court of Appeals in CA-G.R. SP No. 31614. The former denied due course to and dismissed the petitioner's action for mandamus to compel the Secretary of the Department of Budget and Management (DBM) to implement the 19 June 1990 decision of the Merit System Promotion Board (MSPB) of the Civil Service Commission (CSC), on the ground that the said MSPB decision was rendered beyond its jurisdiction. The latter denied the petitioner's motion for reconsideration. The key issue raised in this petition is whether or not the Court of Appeals committed any reversible error in its challenged decision. Concretely, we are asked to resolve whether the MSPB has jurisdiction to reclassify the petitioner's position and order payment of the corresponding salary. The antecedents are summarized by the Office of the Solicitor General in its Comment filed on 19 July 1995 for the public respondents, in compliance with our resolution of 27 March 1995, to wit: Petitioner Victorina A. Cruz has been a Guidance and Counselling Coordinator III of Valenzuela Memorial High School (VMHS) since 1978. Such position had a rank of secondary head teacher with annual basic salary of P26,388.00 paid by the local government. On July 1, 1987, Executive Order No. 189 took effect placing all secondary school teachers under the administrative supervision and control of the Department of Education, Culture and Sports (DECS) and making their salaries and cost of living allowance payable by the national government. Consequently, petitioner's position was classified as Guidance Counselor, R-56 in accordance with the criteria and standards under the National Compensation and Classification Plan (NCCP) and her salary was reduced from P26,388.00 to P19,2448.00 per annum. Aggrieved by her demotion, petitioner appealed [to] the Civil Service Commission Merit Systems Protection Board (CSC-MSPB) on November 11, 1987 praying for an upgrading of her position to R-63 with a monthly salary of P1,802.00. The appeal was referred to the Department of Budget and Management (DBM) for comment on January 23, 1989. In a letter dated June 5, 1989, DBM informed MSPB that pursuant to E.O. 189, petitioner's item was classified as Guidance Counsellor, R-59 effective July 1, 1987. The nationalized position reduced petitioner's salary from P26,388.00 per annum or P2,199.00 a month to P18,636.00 per annum or P1,553.00 a month. Since petitioner has

an ERF approved as BSE + 20 on June 7, 1978, she is entitled under the National Compensation and Position Classification Plan to an upgraded R-57 (BSE + 20) with a corresponding salary of P20,232.00 per annum effective July 1, 1987. Because petitioner has an MA equivalent approved on November 6, 1987, she is again entitled to an upgraded R-58 at P21,264.00 per annum effective November 6, 1987, adjustable to P23,388.00 per annum effective January 1, 1988 pursuant to LOI No. 406, s 1984 as implemented by Circular Letter No. 84-4 dated May 30, 1984. Considering that prior to the nationalization of the position, petitioner received P26,388.00 per annum, she shall be allowed to continue to receive said salary effective July 1, 1987 in her nationalized position of Guidance Counsellor, R-58 (MA-equivalent). Exactly two years from the effectivity of the nationalization program or on July 1, 1989, Republic Act No. 6758 otherwise known as the Salary Standardization Law took effect. On June 19, 1990, MSPB rendered a Decision the relevant portion of which reads: WHEREFORE, this Board renders judgment as follows: 1. The appeal of Ms. Victoria A. Cruz is granted. The reclassified position of appellant from Local to national in the VMHS, Metro Manila should be adjusted to a range with salary rate of P26,389 from October 1987 to December 31, 1987. The amount of P21,264 per annum shall be taken and paid from the national fund, and the balance of P5,125 shall be taken and paid from the Caloocan City local fund. From January 1, 1988 to October 15, 1989 the appellant shall be paid the sum of P29,029.20 per annum on an adjustment of her range under provisions of E.O. 189 and DECS-DBM Joint Circular No. 1., a. 1987. If the national fund to which shall be paid not be authorized, the position shall be paid by the Caloocan City Local fund in accordance with the Letter of DBM to this Board dated June 5, 1989. 2. After October 15, 1989 Ms. Victorina A. Cruz shall be paid her salary under the recent enactment (R.A. 6758) which increased the salary per month of teacher as applied by the DECS to nationalized teachers. 3. Ms. Cruz is entitled to receive salary differential from October 1, 1987 to December 31, 1987; and from January 1, 1988 to October 15, 1989. Thereafter, she shall be entitled to the benefits of R.A. 6758 otherwise known as the Teachers Salary Standardization Law which include the teachers. The adjustment of her range to 63 is denied for being moot and academic. (Annex "C", Petition). On July 26, 1990, the DECS sought clarification of paragraph 2 of the dispositive portion of the above Decision relative to the position and the equivalent salary grade of petitioner under R.A. 6758. On August 31, 1990, MSPB issued an Order, the pertinent portions of which read as follows: Based on the adjusted range, under the provisions of EC 189 and DECS-DBM Joint Circular No. 1, s. 1987, the position of appellant Cruz has the equivalent rank of Head Teacher II at the time of the effectivity of RA 6758. Pursuant to National Compensation Circular No. 57 dated September 30, 1989, the position of Guidance Services Specialist II and was assigned a salary grade 16. Such being the case, the salary of Ms. Cruz should be based on said grade.

WHEREFORE, the Board hereby directs that after October 15, 1989, Ms. Victorina A. Cruz shall be paid her salary corresponding to Grade 16 pursuant to RA 6758, otherwise known as the Salary Standardization Law. SO ORDERED. (Annex "E", Petition). On July 10, 1991, the DECS-NCR requested from the DBM the issuance of a supplemental Position Allocation List (PAL) of VMHS to reflect the reclassified position of petitioner from Guidance Counsellor III, SG-12 to Guidance Specialist II, SG-16. On May 10, 1991, the DBM, through Undersecretary Salvador M. Enriquez, Jr. denied the request on the ground that the MSPB has no jurisdiction to reclassify petitioner's position from Guidance Counselor III, SG-12 to Guidance Services Specialist II, SG16, thus: Evidently, the MSPB has acted outside of its assigned powers conferred by Law. Accordingly, its decision as contained in the MSPB Order dated August 31, 1980 on the reclassification of the position of Mrs. Cruz from Guidance Coordinator to Guidance Service Specialist II, SG-16 and the payment of her salary corresponding to SG-16 is unenforceable. In view of the foregoing, this Office reiterates its stand that the position of Mrs. Cruz is appropriately classified in the PAL issued to the DECS as Guidance Counselor SG-12 (MA) entitling her to receive only the salary of P42,480 [per] annum effective July 1, 1989. Hence, the request to issue a supplemental PAL to reflect the position of Mrs. Cruz as Guidance Services Specialist II, SG-16 cannot be given due course for lack of sufficient merit. (Annex "E", Petition for Mandamus) On July 3, 1991, petitioner filed a Motion for Execution of the MSPB Decision dated June 19, 1990 and Order dated August 31, 1990. On March 18, 1992, MSPB issued an order of execution directing the DECS and the DBM to implement its Decision immediately upon notice (Annex "D", Petition for Mandamus). In June 1992, petitioner went on sick leave for a multiple myomma operation and reported back to work in June 1993. Petitioner found that the VMHS payroll reflects her position [sic] as Guidance Counselor III SG-12 in violation of the MSPB rulings. On July 28, 1993, petitioner filed with the Court of Appeals a petition for mandamus praying that respondents be directed to enforce and comply with the Decision of the MSPB dated June 19, 1990 and Orders dated August 31, 1990 and March 18, 1992. On October 18, 1994, the Court of Appeals denied the petition ruling that the "DBM has the sole power and discretion to administer the compensation and position classification system of the national government. The CSC-MSPB, in ultimately classifying the position and compensation of petitioner, encroached upon the authority of the DBM" (Annex "A"). A motion for reconsideration was filed but was denied on January 31, 1995 (Annex "Bl").3 The petitioner forthwith filed this petition, submitting for resolution the following issues:

I. WHETHER OR NOT THE RESPONDENT COURT COMMITTED SERIOUS ERROR IN REFUSING TO ISSUE A WRIT OF MANDAMUS ON TEE GROUND THAT IT IS THE DEPARTMENT OF BUDGET AND MANAGEMENT WHICH HAS JURISDICTION OVER THE SUBJECT MATTER OF THE CASE. II. WHETHER OR NOT THE RESPONDENT COURT SERIOUSLY ERRED IN REFUSING TO COMPEL THE OTHER RESPONDENTS FROM COMPLYING WITH A FINAL AND EXECUTORY DECISION OF THE CIVIL SERVICE COMMISSION-MERIT SYSTEMS AND PROTECTION [sic] BOARD.4 Before the Court of Appeals, the petitioner insisted that the enforcement of the final and executory decision of the MSPB was a ministerial duty on the part of the public respondents, thus mandamus would lie to compel them to perform such duty. On the other hand, the respondents maintained that the action for mandamus had no leg to stand on as the MSPB was not authorized to reclassify the petitioner's position, the power being vested in the Department of Budget and Management (DBM) through the Compensation and Position Classification Board (CPCB). In upholding the latter's view, the Court of Appeals held: Section 17 (a) and (f) of Presidential Decree No. 985 as amended by Section 14(a) of Republic Act No. 6758 provides: Sec. 17. Powers and Functions. - The Budget Commission (now Department of Budget and Management), principally through the OCPC (now CPCB, Compensation and Position Classification Board) shall, in addition to those provided under other Sections of this Decree, have the following powers and functions: a. Administer the compensation and position classification system established herein and revise it as necessary; xxx xxx xxx f. Certify Classification actions and changes in class or grade of positions whenever the facts warrant, such certifications to be binding on administrative, certifying, payroll, disbursing, accounting and auditing officers of the national government and government-owned or controlled corporations and financial institution. Moreover, Section 14 (a) and (d) of Presidential Decree No. 985 states: Sec. 14. The Salary System for Teaching Position. - The salary grade of a teacher shall be determined in accordance with the following: a. "The Teachers" Preparation Pay Schedule' shall be prepared by the Commission in consultation with the Department of Education and Culture. Under this system, the teacher's [sic] academic or educational preparation, teaching experience in both private and public schools, and extra-curricular activities for professional growth, shall be considered in pursuance of the principle 'equal pay for equal training and experience. xxx xxx xxx

d. The Budget Commission, in coordination and consultation with the Department of Education and Culture and the Civil Service Commission may, when future needs require, modify, change or otherwise improve on the salary system herein established for the teaching and closely related occupations. Any change that may be made as provided herein shall become part of the implementing rules of this Decree to be issued by the Budget Commission upon prior approval by the President. A careful perusal of the above-quoted provisions clearly indicates that the Department of Budget and Management has the sole power and discretion to administer the compensation and position classification system of the national government. The CSCMSPB, in ultimately classifying the position and compensation of the petitioner, encroached upon the authority of the DBM. Faced with the classification and compensation issued raised by the petitioner, the CSC, through the MSPB, should not have merely requested comment but should have referred the matter to the DBM for its determination.5 It then concluded that mandamus did not lie to compel the public respondents to enforce the challenged decision and order of the MSPB because: In Tangonan vs. Pao [G.R. No. L-45157, June 27, 1985, 137 SCRA 245, 255], the Supreme Court laid down the rule on the issuance of a writ of mandamus that "(t)he writ will not issue to compel an official to do anything which it is not his duty to do or to which it is his duty not to do, or give to the applicant anything to which he is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already possessed and to perform a duty already imposed.6 The upshot of these statements and conclusion of the Court of Appeals is that the petitioner does not have a clear legal right which may be enforced by mandamus, because her claim of such right is based on a decision and order of an agency which had no jurisdiction over the subject thereof. We agree. But before we elaborate, some observations on procedural matters are in order. It is clear to us that the petitioner's 3 July 1991 motion for execution of the MSPB decision of 19 June 1990 as clarified in the MSPB order of 31 August 1990, was a reaction to the DBM's letter of 10 May 1991. The said letter denied the request for the issuance of a Supplemental PAL to reflect the MSPB's reclassification of the petitioner's position from Guidance Counselor III, SG12, to Guidance Services Specialist II, SG-16. The DBM was of the view that the MSPB acted "outside . . . its assigned powers conferred by law"; hence, the latter's decision was "unenforceable." On the other hand, the MSPB's order of 18 March 1992 granting the petitioner's motion for execution, was the MSPB's reply to the DBM's rejection of the MSPB's assumption of jurisdiction over the reclassification of the petitioner's position. If the MSPB had, in fact, such jurisdiction, then the DBM was bound to comply with the MSPB's 18 March 1992 order and mandamus would lie against the DBM.7 The pleadings, however, fail to disclose that the order of execution was actually served on the respondents. That no attempt was made to serve it, and that the petitioner likewise did not move for its service before she filed the said action, are clearly evident from paragraphs 14 to 17 of her petition for mandamus filed with the Court of Appeals. The said paragraphs read as follows:

14. Consequently, CSC-MSPB issued an Order of Execution dated March 18, 1992 [Annex "C" hereof] for respondents DECS and DBM to implement petitioner's mandated position of Guidance Specialist II, SG-16. Thus, . . . . 15. Incidentally, petitioner enjoyed salary grade 12 from July 1991 to December 1991. In January 1992, petitioner enjoyed salary grade 15 for reasons known only to respondents herein. 16. In December 1992, petitioner went on sick leave as she was operated for multiple myoma (total hysterectomy) and which leave lasted until March 4, 1993. 17. At the school opening in June 1993, petitioner found that the school monthly payroll [Annex "G" hereof] reflected her position as Guidance Counselor III, with salary grade 12, in violation of the aforecited CSC-MSPB decisions. She also found that she stopped enjoying salary grade 15 as early as February 1993. Immediately thereafter, petitioner went to IBM-Payroll Service, DECS, Vito Cruz, Manila and inquired why her salary grade reverted to salary grade 12. She was advised that her special order [return-to-work] forwarded by the Kalookan Division Office to the IBM states that her position is Guidance Counselor III, with salary grade 12. Hence, this petition.8 Verily, the petitioner did not show that she had no other plain, speedy, and adequate remedy in the ordinary course of law, a requisite both under Section 1 and Section 3 of Rule 65. Moreover, against the 10 May 1991 refusal of the DBM, handed down ten months before the order of execution was issued, the petitioner did not even file a motion for reconsideration nor take any further action to ventilate her grievance with an appropriate court or instrumentality of the Government. Her petition for mandamus filed only on 28 June 1993, or after more than two years, was, in reality, the first resort to judicial action against such refusal. Although Rule 65 does not specify any period for the filing of a petition for certiorari and mandamus, it must, nevertheless, be filed within a reasonable time.9 In certiorari cases, the definitive rule now is that such reasonable time is within three months from the commission of the complained act. 10 The same rule should apply to mandamus cases. The unreasonable delay in the filing of the petitioner's mandamus suit unerringly negates any claim that the application for the said extraordinary remedy was the most expeditious and speedy available to the petitioner. We now consider the issue of jurisdiction over the basic claim of the petitioner. In upholding its jurisdiction over the petitioner's claim, the MSPB, in its order of 18 March 1992, relied on paragraph (2) (b), Section 16, Chapter III, Subtitle A, Title I, Book V of E.O. No. 292, otherwise known as the Administrative Code of 1987. The said section pertinently reads as follows: Sec. 16. Offices in the Commission. - The Commission shall have the following offices: (1) The Office of the Executive Director headed by an Executive Director, with a Deputy Executive Director shall implement policies, standards, rules and regulations promulgated by the Commission; coordinate the programs of the offices of the Commission and render periodic reports on their operations, and perform such other functions as may be assigned by the Commission.

(2) The Merit System Promotion Board composed of a Chairman and two (2) members shall have the following functions: (a) Hear and decide on appeal administrative cases involving officials and employees of the Civil Service. Its decision shall be final except those involving dismissal or separation from the service which may be appealed to the Commission; (b) Hear and decide cases brought before it on appeal by officials and employees who feel aggrieved by the determination of appointing authorities involving personnel actions and violations of the merit systems. The decision of the Board shall be final except those involving division chiefs or officials of higher ranks which may be appealed to the Commission; (c) Directly take cognizance of complaints affecting functions of the Commission, those which are unacted upon by the agencies, and such other complaints which require direct action of the Board in the interest of justice; (d) Administer oaths, issue subpoena and subpoena duces tecum, take testimony in any investigation or inquiry, punish for contempt in accordance with the same procedures and penalties prescribed in the Rules of Court; and (e) Promulgate rules and regulations to carry out the functions of the Board subject to the approval of the Commission. [emphasis supplied] We disagree with the MSPB that subparagraph (b) of paragraph (2) of the section confers upon it the authority to decide the petitioner's complaint in that the complaint involves a violation of the merit system. The flaw in the MSPB's view is but a result of its misconception that the petitioner's basic complaint dated 9 November 1987 exclusively involved a demotion. Indeed, while it was carefully captioned COMPLAINT FOR DEMOTION, 11 the "demotion" referred to was not the "personnel action" nor the "violation of the merit system" contemplated in the abovequoted provision of law. The latter refers to personnel action or violations of the merit system done by or as a consequence of an act or omission on the part of the appointing authority. Personnel action denotes the movement of personnel in the civil service and includes appointment through certification, promotion, transfer, reinstatement, re-employment, detail, reassignment, demotion, and separation. All personnel actions shall be in accordance with such rules, standards, and regulations as may be promulgated by the CSC. 12 A demotion is the movement from one position to another involving the issuance of an appointment with diminution in duties, responsibilities, status, or rank which may or not involve reduction in salary. 13 In the case at bench, the appointing authority had absolutely nothing to do with what the petitioner perceived to be a demotion in her salary - such was done by operation of law. We agree with the public respondents that the petitioner's grievance concerning her position classification or reclassification and compensation falls within the primary jurisdiction of the DBM, principally through the CPCB. Section 17 of P.D. No. 985, as amended by Section 14 of R.A. No. 6758, provides as follows: Sec. 17. Powers and Functions. - The Budget Commission (now DBM), principally through OCPC (now CPCB), shall, in addition to those provided under other sections of this Decree, have the following powers and functions:

a. Administer the compensation and position classification system established herein and revise it as necessary; xxx xxx xxx f. certify classification actions and changes in class or grade of positions whenever the facts warrant, such certification to be binding on administrative, certifying, payroll, disbursing, accounting and auditing officers of the national government and government-owned or controlled corporations and financial institutions. And insofar as the salary system for teaching positions is concerned, Section 14 thereof provides: Sec. 14. The Salary System for Teaching Position. - The salary grade of a teacher shall be determined in accordance with the following: a. The Teachers' Preparation Pay Schedule shall be prepared by the Commission in consultation with the Department of Education and Culture. Under this system, the teacher's academic or educational preparation, teaching experience in both private and public schools, and extra-curricular activities for professional growth, shall be considered in pursuance of the principle of "equal pay for equal training and experience. xxx xxx xxx d. The Budget Commission, in coordination and consultation with the Department of Education and Culture and the Civil Service Commission may, when future needs require, modify, change or otherwise improve on the salary system herein established for the teaching and closely related occupations, any change that may be made as provided herein shall become part of the implementing rules of this Decree to be issued by the Budget Commission upon prior approval by the President. In thus reclassifying the position of the petitioner to Guidance Services Specialist II, SG-16, the MSPB clearly acted without jurisdiction. WHEREFORE, for want of merit, the instant petition is DISMISSED without prejudice on the part of the petitioner to pursue her grievance with the Department of Budget and Management through the Compensation and. Position Classification Board. No pronouncement as to costs. SO ORDERED. Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

G.R. No. 144681

June 21, 2004

PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R. POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO II, petitioners, vs. ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY, BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, respondents. DECISION TINGA, J.: This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the D E C I S I O N,1 dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate court affirmed the judgment2 dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed the respondents to take their physicians oath and to register as duly licensed physicians. Equally challenged is the R E S O L U T I O N3 promulgated on August 25, 2000 of the Court of Appeals, denying petitioners Motion for Reconsideration. The facts of this case are as follows: The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They passed the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees in the medical licensure examination.

Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (Bio-Chem) and Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-Gyne. The Board also observed that many of those who passed from Fatima got marks of 95% or better in both subjects, and no one got a mark lower than 90%. A comparison of the performances of the candidates from other schools was made. The Board observed that strangely, the unusually high ratings were true only for Fatima College examinees. It was a record-breaking phenomenon in the history of the Physician Licensure Examination. On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the examinees from the Fatima College of Medicine.4 The PRC asked the National Bureau of Investigation (NBI) to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination. Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician and authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination. On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores in Bio-Chem and Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other. He concluded that there must be some unusual reason creating the clustering of scores in the two subjects. It must be a cause "strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent, effort, energy, etc."5 For its part, the NBI found that "the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions."6 On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity) filed a special civil action for mandamus, with prayer for preliminary mandatory injunction docketed as Civil Case No. 93-66530 with the Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the other respondents as intervenors. Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with "immorality, dishonest conduct, fraud, and deceit" in connection with the Bio-Chem and ObGyne examinations. It recommended that the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case No. 1687 by the PRC. On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory injunction sought by the respondents. It ordered the petitioners to administer the physicians oath to Arlene V. De Guzman et al., and enter their names in the rolls of the PRC. The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701. On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of the Decision ordaining as follows:

WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by the lower court against petitioners is hereby nullified and set aside. SO ORDERED.7 Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. In our Resolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the appellate court. Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil Case No. 93-66530 was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers. This was without prejudice to cross-examination by the opposing counsel. On December 13, 1993, petitioners counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15. The trial court then ruled that petitioners waived their right to cross-examine the witnesses. On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial court denied the motion for lack of notice to adverse counsel. It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing. Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents herein moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4, 1994. The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul the Orders of the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. We referred the petition to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506. On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows: WHEREFORE, the present petition for certiorari with prayer for temporary restraining order/preliminary injunction is GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-Manila, Branch 52, and all further proceedings taken by it in Special Civil Action No. 93-66530 are hereby DECLARED NULL and VOID. The said RTC-Manila is ordered to allow petitioners counsel to cross-examine the respondents witnesses, to allow petitioners to present their evidence in due course of trial, and thereafter to decide the case on the merits on the basis of the evidence of the parties. Costs against respondents. IT IS SO ORDERED.8 The trial was then set and notices were sent to the parties. A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate courts decision in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No. 93-66530. The petitioners asked for the suspension of the proceedings. In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled hearing dates, and reset the proceedings to October 21 and 28, 1994.

Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No. 117817, entitled Professional Regulation Commission, et al. v. Court of Appeals, et al. On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 93-66530. Upon motion of the respondents herein, the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents. Trial was reset to November 28, 1994. On November 25, 1994, petitioners counsel moved for the inhibition of the trial court judge for alleged partiality. On November 28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the trial court denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for decision. On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which reads: WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except those with asterisks and footnotes in pages 1 & 2 of this decision) [sic],9 to take the physicians oath and to register them as physicians. It should be made clear that this decision is without prejudice to any administrative disciplinary action which may be taken against any of the petitioners for such causes and in the manner provided by law and consistent with the requirements of the Constitution as any other professionals. No costs. SO ORDERED.10 As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed as G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 93-66530, and in the alternative, to set aside the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to inhibit himself, and Civil Case No. 93-66530 be re-raffled to another branch. On December 26, 1994, the petitioners herein filed their Notice of Appeal11 in Civil Case No. 9366530, thereby elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283. In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817. On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise: WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The petition in G.R. No. 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals. Assistant Solicitor General Amparo M. Cabotaje-Tang is advised to be more circumspect in her dealings with the courts as a repetition of the same or similar acts will be dealt with accordingly. SO ORDERED.12 While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to

wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. RaquenoRabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. VicencioGamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no longer interested in proceeding with the case and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that its decision in CA-G.R. SP No. 37283 would not apply to them. On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit: WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and DISMISS the instant appeal. No pronouncement as to costs. SO ORDERED.13 In sustaining the trial courts decision, the appellate court ratiocinated that the respondents complied with all the statutory requirements for admission into the licensure examination for physicians in February 1993. They all passed the said examination. Having fulfilled the requirements of Republic Act No. 2382,14 they should be allowed to take their oaths as physicians and be registered in the rolls of the PRC. Hence, this petition raising the following issues: I WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES. II WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO BECOME DOCTORS.15 To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the judgment of the trial court that respondents are entitled to a writ of mandamus? The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a writ of mandamus to issue, the applicant must have a well-defined, clear and certain legal right to

the thing demanded and it is the duty of the respondent to perform the act required. Thus, mandamus may be availed of only when the duty sought to be performed is a ministerial and not a discretionary one. The petitioners argue that the appellate courts decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to engage in the practice of medicine becomes discretionary on the PRC if there exists some doubt that the successful examinee has not fully met the requirements of the law. The petitioners stress that this Courts Resolution dated May 24, 1994 in G.R. No. 112315 held that there was no showing "that the Court of Appeals had committed any reversible error in rendering the questioned judgment" in CA-G.R. SP No. 31701. The petitioners point out that our Resolution in G.R. No. 112315 has long become final and executory. Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have the obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians pursuant to Section 2016 of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents complied with all the requirements of Rep. Act No. 2382. Furthermore, respondents were admitted by the Medical Board to the licensure examinations and had passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to administer their oaths as physicians and register them. Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.17 Section 3 of Rule 6518 of the 1997 Rules of Civil Procedure outlines two situations when a writ of mandamus may issue, when any tribunal, corporation, board, officer or person unlawfully (1) neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or (2) excludes another from the use and enjoyment of a right or office to which the other is entitled. We shall discuss the issues successively. 1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians under Rep. Act No. 2382. For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear legal duty, not involving discretion.19 Moreover, there must be statutory authority for the performance of the act,20 and the performance of the duty has been refused.21 Thus, it must be pertinently asked now: Did petitioners have the duty to administer the Hippocratic Oath and register respondents as physicians under the Medical Act of 1959? As found by the Court of Appeals, on which we agree on the basis of the records: It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the statutory requirements for admission into the licensure examinations for physicians conducted and administered by the respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be made of the fact that all of them successfully passed the same examinations.22 The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the respondents to take their oaths as physicians and register them, steps which

would enable respondents to practice the medical profession23 pursuant to Section 20 of the Medical Act of 1959? The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians. But it is a basic rule in statutory construction that each part of a statute should be construed in connection with every other part to produce a harmonious whole, not confining construction to only one section.24 The intent or meaning of the statute should be ascertained from the statute taken as a whole, not from an isolated part of the provision. Accordingly, Section 20, of Rep. Act No. 2382, as amended should be read in conjunction with the other provisions of the Act. Thus, to determine whether the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians, recourse must be had to the entirety of the Medical Act of 1959. A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word "shall" with respect to the issuance of certificates of registration. Thus, the petitioners "shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board." In statutory construction the term "shall" is a word of command. It is given imperative meaning. Thus, when an examinee satisfies the requirements for the grant of his physicians license, the Board is obliged to administer to him his oath and register him as a physician, pursuant to Section 20 and par. (1) of Section 2225 of the Medical Act of 1959. However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory compliance with the Board requirements by the respondents. The unusually high scores in the two most difficult subjects was phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised grave doubts about the integrity, if not validity, of the tests. These doubts have to be appropriately resolved. Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative investigations and "disapprove applications for examination or registration," pursuant to the objectives of Rep. Act No. 2382 as outlined in Section 126 thereof. In this case, after the investigation, the Board filed before the PRC, Adm. Case No. 1687 against the respondents to ascertain their moral and mental fitness to practice medicine, as required by Section 927 of Rep. Act No. 2382. In its Decision dated July 1, 1997, the Board ruled: WHEREFORE, the BOARD hereby CANCELS the respondents[] examination papers in the Physician Licensure Examinations given in February 1993 and further DEBARS them from taking any licensure examination for a period of ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if they so desire, apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD. SO ORDERED.28 Until the moral and mental fitness of the respondents could be ascertained, according to petitioners, the Board has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to them. The writ of mandamus does not lie to compel performance of an act which is not duly authorized. The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of registration only in the following instances: (1) to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the investigation by the Board; or (3) has

been declared to be of unsound mind. They aver that none of these circumstances are present in their case. Petitioners reject respondents argument. We are informed that in Board Resolution No. 26,29 dated July 21, 1993, the Board resolved to file charges against the examinees from Fatima College of Medicine for "immorality, dishonesty, fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations." It likewise sought to cancel the examination results obtained by the examinees from the Fatima College. Section 830 of Rep. Act No. 2382 prescribes, among others, that a person who aspires to practice medicine in the Philippines, must have "satisfactorily passed the corresponding Board Examination." Section 22, in turn, provides that the oath may only be administered "to physicians who qualified in the examinations." The operative word here is "satisfactorily," defined as "sufficient to meet a condition or obligation" or "capable of dispelling doubt or ignorance."31 Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the respondents "satisfactorily passed" the licensure examinations. The Board instead sought to nullify the examination results obtained by the respondents. 2. On the Right Of The Respondents To Be Registered As Physicians The function of mandamus is not to establish a right but to enforce one that has been established by law. If no legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal remedy for a legal right.32 There must be a well-defined, clear and certain legal right to the thing demanded.33 It is long established rule that a license to practice medicine is a privilege or franchise granted by the government.34 It is true that this Court has upheld the constitutional right35 of every citizen to select a profession or course of study subject to a fair, reasonable, and equitable admission and academic requirements.36 But like all rights and freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people.37 Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the field of medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice medicine. In a previous case, it may be recalled, this Court has ordered the Board of Medical Examiners to annul both its resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines, without first passing the examination required by the Philippine Medical Act.38 In another case worth noting, we upheld the power of the State to upgrade the selection of applicants into medical schools through admission tests.39 It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. Such conditions may not, however, require giving up ones constitutional rights as a condition to acquiring the license.40 Under the view that the legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the guidance of said officials in the exercise of their power.41

In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the board examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a physicians license, or revoking a license that has been issued. Verily, to be granted the privilege to practice medicine, the applicant must show that he possesses all the qualifications and none of the disqualifications. Furthermore, it must appear that he has fully complied with all the conditions and requirements imposed by the law and the licensing authority. Should doubt taint or mar the compliance as being less than satisfactory, then the privilege will not issue. For said privilege is distinguishable from a matter of right, which may be demanded if denied. Thus, without a definite showing that the aforesaid requirements and conditions have been satisfactorily met, the courts may not grant the writ of mandamus to secure said privilege without thwarting the legislative will. 3. On the Ripeness of the Petition for Mandamus Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for mandamus below for being premature. They argue that the administrative remedies had not been exhausted. The records show that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No. 115704, which petition we referred to the Court of Appeals, where it was docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss on the ground that the prayers for the nullification of the order of the trial court and the dismissal of Civil Case No. 93-66530 were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that: Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-66530 sought to be resolved in the instant petition has been rendered meaningless by an event taking place prior to the filing of this petition and denial thereof should follow as a logical consequence.42 There is no longer any justiciable controversy so that any declaration thereon would be of no practical use or value.43 It should be recalled that in its decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by private respondents, which decision was received by petitioners on 20 December 1994. Three (3) days after, or on 23 December 1994, petitioners filed the instant petition. By then, the remedy available to them was to appeal the decision to the Court of Appeals, which they in fact did, by filing a notice of appeal on 26 December 1994.44 The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance upon the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any. Section 2645 of the Medical Act of 1959 provides for the administrative and judicial remedies that respondents herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable judgment to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the Office of the President; and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case to court via a special civil action of certiorari. Thus, as a rule, mandamus will not lie when administrative remedies are still available.46 However, the doctrine of exhaustion of administrative remedies does not apply

where, as in this case, a pure question of law is raised.47 On this issue, no reversible error may, thus, be laid at the door of the appellate court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530. As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R. SP No. 37283, that they were no longer interested in proceeding with the case and moved for its dismissal insofar as they were concerned. A similar manifestation and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and motions, the appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as the instant case is a petition for review of the appellate courts ruling in CA-G.R. SP No. 37283, a decision which is inapplicable to the aforementioned respondents will similarly not apply to them. As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in Civil Case No. 9366530, dropping their names from the suit. Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners. WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in Civil Case No. 93-66530, ordering petitioners to administer the physicians oath to herein respondents as well as the resolution dated August 25, 2000, of the appellate court, denying the petitioners motion for reconsideration, are REVERSED and SET ASIDE; and (2) the writ of mandamus, issued in Civil Case No. 93-66530, and affirmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE. SO ORDERED. Puno, Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.

G.R. No. L-7913

October 31, 1955

MARIA P. DE AZAJAR, plaintiff-appellant, vs. FRANCISCO ARDALLES and the BUREAU OF LANDS, defendants-appellees. Ramon C. Fernandez for appellant. Office of the Solicitor General Ambrosio Padilla, First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Pacifico de Castro for appellee Director of Lands. Avelino Ronan for appellee, Francisco Ardales. PADILLA, J.: In a complaint filed in the Court of First Instance of Albay plaintiff seeks a declaratory judgment or relief pleading that sometime in December, 1950 she applied for the purchase of a parcel of land containing an area of 240 square meters belonging to the public domain located in the Province of Albay, more particularly described in the second paragraph of the complaint; that an opposition to the application was filed by Francisco Ardales on the ground that the applicant being a Chinese citizen is not entitled to acquire lands of the public domain; that the opposition to her application raises uncertainty or insecurity as to her citizenship which is prejudicial to her interest and unless it be judicially determined the Bureau of Lands would likely deny her sales application; that she is the daughter of a Filipino citizen named Blas Azajar; that she was born in Amoy, China, on 25 August 1922 and came to the Philippines on 9 November 1926; that her father Blas Azajar was born in Manila on 25 June 1896 of a Filipino mother named Francisca Azajar; that in 1918 her father Blas Azajar elected to become Filipino citizen; that at the time of such election Blas Azajar was married to Tan Giok who became also a citizen of the Philippines when in 1918 her husband elected to become Filipino citizen; that when she was born on 25 August 1922 in lawful wedlock, Blas Azajar and Tan Giok were Filipino citizens; and that she and her parents being Filipino citizens and exercising continuously and uninterruptedly their rights and privileges as Filipino citizens have not lost their Filipino citizenship. Upon these allegations she prays that after due hearing judgment be rendered declaring her to be a Filipino citizen and as such entitled to acquire lands of the public domain and that she is possessed of all the rights and privileges accorded to Filipino citizens. The defendants Francisco Ardales and the Director of Lands filed their answers. On the date set for hearing the following stipulation was submitted: The parties Plaintiff and Defendants, stipulate on the following facts: 1. That according to Landing Certificate of Residence No. 18363 issued by the Bureau of Customs, Manila, in favor of Blas Azajar on January 10, 1918 states that said Blas Azajar is the son of Francisca Azajar, Filipina, and it further states that he was born on June 25, 1896 in the City of Manila as evidenced by photostatic copy of said landing certificate marked as Exhibit "A"; 2. That the Landing Certificate of Residence No. 76921 issued by the Collector of Customs of Manila in the name of Tan Giok dated November 9, 1926 states that said Tan Giok is the wife of Blas Azajar and states further that she was born in Amoy, China, in 1897 and it also states that she is the wife of Blas Azajar, wife of PI citizen, her local residence being Naga, Camarines Sur, as evidenced by the photostatic copy of said landing certificate marked as Exhibit "B";

3. That the Landing Certificate of Residence No. 76920 issued in the name of Peck Ti Azajar issued by the Collector of Customs of Manila on November 9, 1926 states that said Peck Ti Azajar is the daughter of Blas Azajar and it also states that she is the daughter of PI citizen who was born in Amoy on August 25, 1922, as evidenced by photostatic copy of said landing certificate marked as Exhibit "C"; 4. That on October 11, 1949 she registered in precinct No. 312 as voter in Manila and on October 12, 1951 she also registered as voter in precinct No. 37 of Quezon City as evidenced by her voters affidavit No. 6037171; 5. That Maria Peck Ti Azajar has her Residence Certificate No. A-2977928 issued in Manila on September 29, 1949 in which it certifies that she is a Filipina citizen and residing at O'Donnell Street, Manila; 6. That Maria Peck Ti Azajar had four children with Co Bun Tee with whom she is supposedly living as common-law wife since sometime in the year 1943; Wherefore, without prejudice to the right of both parties of presenting further evidence, respectfully submit to the Honorable Court the abovementioned stipulation of facts. City of Legaspi, Philippines, October 22, 1951. (Sgd.) AVELINO R. RONAN Atty. for the Defendant Francisco Ardales. (Sgd.) Z. GUTIERREZ LORA Atty. for the plaintiff. (Sgd.) LEONARDO P. FLORES Provincial Fiscal In representation of the Bureau of Lands. After hearing the court rendered judgment holding that plaintiff is a Chinese citizen and as such is not entitled to acquire lands of the public domain, with costs against her. A motion for reconsideration was denied. Hence this appeal. The appeal was forwarded to the Court of Appeals and while it was pending there, the First Assistant Solicitor General filed a motion praying that the appeal be dismissed on the ground that an action for declaratory relief is not the proper proceedings for the purpose of securing a judicial declaration of Filipino citizenship, invoking the rule laid down in Obiles vs. Republic, 49 Off. Gaz. 923; that although the Director of Lands and a private individual, who objected to the plaintiff's application for the purchase of a lot belonging to the public domain, were made party defendants, the nature of the action as intended by the plaintiff is not in anyway altered, because it is not alleged in the complaint that the Director of Lands has ruled adversely on her citizenship and that for that reason disapproved her sales application; that the action brought by the plaintiff not being the proper remedy in the light of the allegations of the complaint, the trial court was without authority or jurisdiction to decide it on the merits except to dismiss it. An objection was filed by the appellant to this motion and the court held in abeyance there solution on the motion and objection until the case be decided on the merits. In her pleading objecting to the motion to dismiss, the appellant moved that the appeal be forwarded to the Supreme Court involving as it does purely questions of law. To this motion of the appellant the First Assistant Solicitor General objected, on the ground that not only questions of law but also of fact are involved in the case and insisted on his motion that the appeal be dismissed for lack of jurisdiction of the trial court to hear it and render judgment therein. After denying the motion to forward the case to this Court

for final determination thereof on 16 March 1954 the Fourth Division of the Court of Appeals ruled that as the Solicitor General raises the question of jurisdiction of the trial court to decide the case on the merits and there being practically no controversy over the facts on which the appellant's claim is based, it certified the appeal to this Court, pursuant to section 31, in connection with section 17, paragraph 4, clauses 3 and 6, of Republic Act No. 296, known as the Judiciary Act of 198. Section 1, Rule 66, provides: Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute or ordinance may bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder. The appellant is not interested under a deed, will, contract or other written instrument; nor are her rights affected by a statute or ordinance and so her grievance against Francisco Ardales who objected to her sales application for a parcel of land of the public domain has not brought her under and within the scope of section 1 of Rule 66 quoted above. A sales application filed with the Bureau of Lands must go through the different stages as prescribed by law until the Director of Lands, the officer clothed with the authority to alienate lands belonging to the public domain, renders his decision. Whether the appellant is entitled or not to purchase the parcel of land of the public domain applied for by her depends upon her citizenship aside from other requirements prescribed by law. From a decision of the Director of Lands an appeal lies to the Secretary of Agriculture and Natural Resources. For that reason, until after all these administrative remedies shall have been exhausted, no court may compel the Director of Lands or the Secretary of Agriculture and Natural Resources on appeal to decide one way or another any sales application as that is vested exclusively in them. Citizenship cannot, therefore, be determined in a complaint for declaratory judgment or relief. It is not the proper remedy or proceedings.1 If she is a Filipino citizen as she claims, she should go ahead with the administrative proceedings in the Bureau of Lands and submit the evidence to prove her citizenship. The appellant may resort to the courts, if the exercise of her rights as citizen be prevented or denied, to compel the officer, who prevented or denied her the exercise of her rights as a Filipino citizen, to allow her to exercise such rights. Such is not the action brought herein. Consequently, the Court below should have dismissed it. Properly and strictly speaking, the question raised by the First Assistant Solicitor General is not of jurisdiction and does not involve the jurisdiction of the Court below, because the latter has jurisdiction to hear and determine all actions and special proceedings because of its general jurisdiction, except those the cognizance of which have been vested by law in other courts. It is not the jurisdiction of the Court below that is involved but the availability of the remedy sought on the basis of the averments in the complaint. Conformably thereto, the judgment appealed from is set aside and the complaint and appeal are dismissed, with costs against the appellant. Paras, C. J., Bengzon, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion, and Reyes, J. B. L., JJ., concur.

G.R. No. L-1897

November 28, 1949

JOSE DE BORJA, plaintiff-appellant, vs. DEOGRACIAS V. VILLADOLID, Director of Fisheries, defendant-appellee. Rodegelio M. Jalandoni, Pedro L. Albino and Jose R. Nolasco for appellant. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Manuel Tomacruz for appellee. TORRES, J.: This is a complaint for declaratory relief filed with the Court of First Instance of Manila whereby plaintiff prayed the court to issue a declaratory judgment "declaring that the plaintiff is not required by law to secure a commercial fishing boat license," for the operation of his motor boats engaged in the transportation of fish. Plaintiff alleges in his complaint that he "is a license fee fish peddler, . . . having paid the required license fee" to the office of Manila City Treasurer; that " as such fish peddler" he "is the owner of two motor boats, . . . with coastwise license issued by the Bureau of Customs . . . renewable every year; " that "said motor boats are used by him solely and exclusively in connection with his business of buying fish somewhere in Busuanga and other islands adjacent to the coast of Palawan and in Lubang, Batangas, for the purpose of selling said fish in Manila and that plaintiff has no intervention in the catching of fish, nor does he participate, as partner or in any other capacity, in the catch of the fishermen actually engaged in the catching of fish." It appears that the defendant Deogracias V. Villadolid, as Director of the Bureau of Fisheries required the plaintiff, as such fish peddler, to procure a commercial fishing boat license as owner and operator of said motor boats. Plaintiff refused to secure such license as demanded by the defendant, on the ground that he is not so required by section 18 of Act No. 4003, as amended by section 1 of Commonwealth Act No. 471, for the reason that he "is not operating his motor boats for the purpose of catching fish." A motion to dismiss the complaint was granted by the lower court and a motion for reconsideration having been denied, this case has brought here on appeal. There is no controversy as to the facts. The issue presented for our determination is whether or not the plaintiff, by operating his motor boats for the purpose of transporting fish caught by other persons in the places mentioned in the complaint, and of bringing them to Manila for sale in the local market, is obliged to procure a commercial fishing boat license as owner and operator of his motor boats engaged for said purpose. Section 17 of Act No. 4003 and section 18 of the same Act, as amended by section 1 of Commonwealth Act No. 471, read as follows: SEC. 17. License tax on operation of boat. Unless provided with a license issued in accordance with the provisions of this Act, no person, association or corporation shall operate any vessel of more than three tons gross for the purpose of catching fish in the territorial waters of the Philippine Islands. SEC. 18. Annual fee on operation of boat. The Secretary of Agriculture and Commerce is hereby empowered to issue to the proper parties licenses for fishing operation of powered vessels of more than three tons gross and sailing or rowed vessels of more than three tons gross towed or operated in connection with power -propelled

vessels in the territorial waters of the Philippines upon the payment of an annual fee of not less than two pesos nor more than two hundred pesos for every vessel subject to taxation under this Act: Provided That failure of a licensee to secure a renewal or extension of his license and pay the annual fee on or before the last day of February of each year shall subject him to a surcharge of one hundred per centum based on the amount of the original fee, without prejudice to criminal proceedings against the delinquent licensee under the penal provisions of this Act: Provided, further, That all vessels less than three tons gross shall be licensed under the provisions of section seventy of this Act: And provided, also, That the catching of fish under the license issued shall be subject to the limitations, restrictions, and penalties imposed by this Act. (As amended by sec. 1 of Com. Act No. 471.) The Solicitor General, as counsel for defendant, relies on an opinion rendered by the Secretary of Justice on June 24, 1947, to the effect that vessels engaged in the transportation of fish, although not actually employed in the catching thereof, are, pursuant to Act No. 4003, required to pay the commercial fishing boat license. We deem it unnecessary to delve now on the applicability of the ruling made by the Secretary of Justice to the case at bar. We are only concerned with the question whether or not the complaint for declaratory relief filed by plaintiff, and which the Court of First Instance of Manila dismissed for lack of merit, should be given due course in this Court. It appears that the Director of the Bureau of Fisheries demanded that plaintiff pay the license provided in that Act and in view of the insistent refusal of plaintiff to comply with such demand, he finally turned over the case to the Office of the Fiscal of the City of Manila for appropriate action. However, plaintiff, upon learning of the step taken by the director of the Bureau of Fisheries, countered by filing this complaint for declaratory relief, but this attitude of the plaintiff will only result in multiplicity of actions which should always be invoked and the Rules of Court obviously seeks to prevent when, in section 2 of Rule 66, it provides that the action for declaratory relief must be brought "before there has been a breach" of a contract or statute the construction of which is sought. The facts in this case are so clear and unambiguous, that in the light of said section 2 or Rule 66, there is nothing left for the courts to adjudicate or construe regarding the legal rights, suites and status of appellant in the premises. The general purpose of declaratory judgment act is to provide for adjudication of the legal rights, duties, or status of the respective parties." (C.J.S., p. 1022; see also 16 Am. Jur., p. 284.) It is quite clear that if appellant is prosecuted and found criminally liable, then the punishment prescribed by section 78 of the law, will be imposed upon him; otherwise the charge will be dismissed. In either case, the action is, as stated by the Solicitor General, terminated with finality. It might be argued that no criminal action has as yet been presented. But the law does not require that there shall be an actual pending case. It is sufficient that there is a breach of the law, an actionable violation to bar a complaint for declaratory judgment. Evidently, appellant would have the courts to prejudice the impending criminal action against him, without necessarily terminating the same. The order of the Court of First Instance of Manila which dismissed the complaint herein is hereby affirmed. With costs.

Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor and Torres, JJ., concur. Reyes, J., concurs in the result.

G.R. No. L-4183

October 26, 1951

NATIONAL DENTAL SUPPLY CO., plaintiff-appellant, vs. BIBIANO MEER, in his capacity as Collector of Internal Revenue, defendant-appellee. Reyes, Albert and Agcaoili and Antonio M. Molina for plaintiff and appellant. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Felicisimo R. Rosete for defendant and appellee. BAUTISTA ANGELO, J.: This is an action for declaratory relief to obtain a ruling on whether sales of dental gold or gold alloys and other metals used for dental purposes come within the purview of Article 184 of the National Internal Revenue Code as claimed by the Collector of Internal Revenue. Defendant filed a motion to dismiss on the ground (1) that plaintiff has no cause of action for declaratory judgment and (2) that even assuming the existence of a cause of action, relief by declaratory judgment is not proper because it will not terminate the controversy. The court sustained the motion under the first ground holding that actions for declaratory relief do not apply to cases where a taxpayer questions his liability for the payment of any tax collectible under any law administered by the Bureau of Internal Revenue. From this ruling the plaintiff has appealed. The only question to be determined is whether plaintiff can bring the present action for declaratory relief. Plaintiff contends that it can do so under section 1, Rule 66, of the Rules of Court, which contains no prohibition to a taxpayer to file an action for declaratory relief to test the legality of any tax, whereas defendant contends that the failure to incorporate in Rule 66 the proviso added by Commonwealth Act No. 55 to section 1, of Act No. 3736, does not imply its repeal and, therefore, it still stands and applies to the plaintiff. The original law on declaratory relief is Act No. 3736, which went into effect on November 22, 1930. Section 1 of said Act provides: SECTION 1. Construction.Any person interested under a deed, contract or other written instrument, or whose rights are affected by a statute, may bring an action in the Court of First Instance to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder. On October 17, 1936, Congress approved Commonwealth Act No. 55 adding to section 1 of said Act No. 3736, the following proviso: . . . Provided, however, That the provisions of this Act, shall not apply to cases where a taxpayer questions his liability for the payment of any tax, duty, or charge collectible under any law administered by the Bureau of Customs or the Bureau of Internal Revenue. Subsequently, by virtue of the powers granted to it by our Constitution, the supreme Court codified and promulgated the present Rules of Court among which is reproduces the declaratory relief provisions contained in Act No. 3736, but eliminates the proviso introduced by Commonwealth Act No. 55. Speaking of the reasons why said proviso has not been incorporated in Rule 66, former Chief Justice Moran who intervened in the preparation of said Rules of Court, has the following to say:

(a) Propriety of remedy.The proviso added by Commonwealth Act No. 55 to section 1 of Act No. 3736, which prohibits an action for declaratory relief in cases where a taxpayer questions his liability for the payment of any tax, duty, or charge collectible under any law administered by the Bureau of Customs or the Bureau of Internal Revenue', is not incorporated in the above provision in order to make it discretionary upon the courts to apply or not to apply the remedy in such cases. Of course, where the tax is already due and collectible, the tax payer cannot prevent collection by the declaratory action, but he should pay the tax and sue for its recovery within the period limited by law. But, where the tax is not yet due, there can be no valid reason why the tax-payer cannot by declaratory relief test its validity. Such a procedure cannot possibly hamper the activities of the government and is, on the other hand, simple, speedy and inexpensive. The United States Supreme Court has approved the practice, long prevailing in other jurisdictions, of testing the legality of a tax by an action of this nature. (2 Moran, Comments on the Rules of Court, 3rd ed. p. 129). From the opinion of the former Chief Justice Moran may be deduced that the failure to incorporate the above proviso in section 1, rule 66, is not due to an intention to repeal it but rather to the desire to leave its application to the sound discretion of the court, which is the sole arbiter to determine whether a case is meritorious or not. And even if it be desired to incorporate it in rule 66, it is doubted if it could be done under the rule-making power of the Supreme Court considering that the nature of said proviso is substantive and not adjective, its purpose being to lay down a policy as to the right of a taxpayer to contest the collection of taxes on the part of a revenue officer or of the Government. with the adoption of said proviso, our law-making body has asserted its policy on the matter, which is to prohibit a taxpayer to question his liability for the payment of any tax that may be collected by the Bureau of Internal Revenue. As this Court well said, quoting from several American cases, "The Government may fix the conditions upon which it will consent to litigate the validity of its original taxes . . ." "The power of taxation being legislative, all the incidents are within the control of the Legislature". (Sarasola vs. Trinidad, 40 Phil., 252, 263.) In other words, it is our considered opinion that the contained in Commonwealth Act No. 55 is still in force and effect and bars the plaintiff from filing the present action. The foregoing view finds support in section 306 of the National Internal Revenue Code, which specifically lays down the procedure to be followed in those cases wherein a taxpayer entertains some doubt about the correctness of a tax sought to be collected. Said section provides that the tax should first be paid and the taxpayer should sue for its recovery afterwards. The purpose of the law obviously is to prevent delay in the collection of taxes upon which the Government depends for its very existence. To allow a taxpayer to first secure a ruling as regards the validity of the tax before paying it would be to defeat this purpose, and to prevent this result the rule regarding declaratory relief was declared inapplicable to cases involving collection of taxes. Wherefore, the order appealed from is affirmed, with costs against the appellant. Paras, C.J., Feria, Pablo, Bengzon, Padilla, Tuason, Reyes, and Jugo, JJ., concur. G.R. No. L-44062 February 16, 1978 PABLO L. MIRANDO, MANUEL V. SERRANILLA, MAGDALEMO LEMOS, JESUS MILLA, IGNACIO ANGUE, JUAN BOLO, RUFINO FLORES, TEODORO CASTILLO, PETRA ALACAR, AURELIA LAVADIA, EUGENIO AMOR, RAYMUNDO ABELLA, CONSTANTINO DODIE, ANTONINO V. SERRANILLA, DAVID IMPANG and CELESTINO LACERNA, petitioners-appellants,

vs. WELLINGTON TY & BROS., INC. and THE PHILIPPINE BOARD OF LIQUIDATORS, respondents-appellees. Edmundo A. Baculi for appellants. Eligio J. Soriano for private appellee. GUERRERO, J.: This is an appeal certified to this Court by the Court of Appeals 1 pursuant to Sec. 17, par. (4) of the Judiciary Act of 1948, as amended, as only questions of law were raised therein. The findings of fact by the Court of Appeals are as follows:
Shortly after the liberation of Manila from the Japanese Imperial Army, petitioners occupied and lived in the premises of Arellano University at Legarda St., Manila, from 1945 to 1950. To solve the problem posed by the squatters to public health and sanitation in general and to meet the needs of the University for its premises in particular, Mayor Manuel de la Fuente of Manila secured the approval of Mayor Ignacio Santos Diaz of Quezon City to relocate the squatters in Lots 1 and 2, Block No. 3 of Subdivision Plans Psd-3693 and Psd-4264, respectively, adjoining Broadway St., Q.C. These lots were formerly owned by a Japanese named Arata Tuitsue. Because he was an enemy alien, the Phil. Alien Property Custodian and later its successor, the Phil. Board of Liquidators, took possession of these lots. During their occupancy of the lots in question, petitioners constructed their respective houses thereon and were charged nominal rentals by the respondent Phil. Board of Liquidators. They also filed their respective applications with the Board through the Office of the President for the sale of the lots to them. Sometime in 1953 the Phil. Board of Liquidators with the approval of the President of the Philippines, bartered the two parcels of land in dispute with another piece of land owned by the late Carmen Planas. On Dec. 8, 1964, the administrator of the estate of the late Carmen Planas sold the lots in question to private respondents, Wellington Ty & Bros., Inc. The case was registered and Transfer Certificate of Title No. 87901 was issued by the Register of Deeds of Q.C. in the name of private respondents. Soon thereafter, the private respondents made demands upon the petitioners to vacate and surrender the possession of the premises. Petitioners refused, claiming that they had preferential rights to the property. Private respondents reacted by filing an ejectment proceeding in the City Court of Q.C. docketed as Civil Case No. 11-14765.

Hence, on September 4, 1968, petitioners-appellants filed a petition entitled Declaratory Relief for Cancellation of Title and/or Reconveyance with Preliminary Injunction before the Court of First Instance of Rizal, Branch XVII, claiming inter alia, (a) that they are the bona fide occupants of the lots in question, having, constructed thereon their respective resident substantial houses with assessed values as follows:
Pablo L. Mirando P6,000.00

Manuel V. Serranilla

8,000.00

Magdalena Lemos

3,000.00

Jesus Mina

6,000.00

Ignacio Angue

6,000.00

Juan Bolo

2,500.00

Rufino Flores

6,000.00

Teodoro Castillo

3,500.00

Petra Alacar

4,500.00

Aurelia Lavadia

4,000.00

Eugenio Amor

4,000.00

Raymundo Abella

2,000.00

Dodie Constantino

2,500.00

Antonio V. Serranilla

3,500.00

David Impang

6,500.00

Aruto Impang

5,000.00

Celestino Lacerna

3,500.00

and (b) that through the fraud and misrepresentation of the respondent-appellee Wellington Ty & Bros, Inc., in collusion with the Phil. Board of Liquidators, they were deprived of their preferential right to purchase said lots from the latter. The petition below sought the cancellation of the title of Wellington Ty & Bros., Inc., the reconveyance of the disputed lots in their favor and the issuance of a writ of preliminary injunction against further proceedings in the ejectment case filed by respondentappellee Wellington Ty & Bros.,. Inc. against the petitioners-appellants. After their motion to dismiss was denied, respondent appellee Wellington Ty & Bros., Inc. filed its Answer to the petition, claiming as a special and affirmative defense the indefensibility of their title under the Land Registration Act, being purchasers for value and in good faith. Further, they reiterated the grounds of their motion to dismiss:
(a) That the present action is not the proper remedy; (b) That the petition does not state a sufficient justifiable cause of action as required by law; (c) That there is a pending action in Court between the same parties wherein the issue raised herein is involve ed.

Likewise, respondent Phil. Board of Liquidators thru the Solicitor General filed its Answer to the petition, and alleged as affirmative defenses:

(a) That the Court has no jurisdiction over the respondent Board of Liquidators; (b) That petitioners have no cause of action against respondent Board of Liquidators; (c) That the respondent Board of Liquidators is not the real party in interest in this case; (d) That the cause of action, if any, has already prescribed.

Without going to trial, the case was submitted for decision, the pertinent portion of which reads:
The petitioners do not cite the provision of the law that prohibits the Alien Property Custodian from entering into a barter agreement with Carmen Planas. On the contrary the Alien Property Custodian as the administrator of the alien property in question, with the consent of the Office of the President as in the instant case, has the fun authority to enter into such a barter agreement with Carmen Planas. The fact that the present petitioners were relocated by the then City Mayor of Manila, Mayor Manuel dela Fuente with the consent of the City Mayor of Q.C., to the land in question, which was never owned by either City, did not confer on the petitioners any right over it. 2

Motion for reconsideration having been denied, petitioners-appellants appealed to the Court of Appeals claiming that the decision was contrary to law, jurisprudence, and the government policy of land for the landless. In a Resolution promulgated October 7, 1974, the appellate court dismissed the appeal for failure of the record on appeal to state the filing of an appeal bond, as provided in Sec. 1, Rule 50 of the Revised Rules of Court. However, on an explanation contained in a Motion to Set Aside Resolution, that a cash appeal bond has in fact been paid, the appellate court reinstated the appeal in another Resolution. Acting on the merits of the appeal, the appellate court found that:
A perusal of the errors assigned by petitioners-appellants show that the controversy really hangers on the question of whether or not respondent Phil. Board of Liquidators had a right to dispose alien-owned property under its administration and control by sale, barter or otherwise, and whether or not petitioners-appellants' occupancy of the lots in question prior to their sale to private respondent conferred upon them a preferential right to purchase the same, and to that end whether or not they are entitled to the declaratory relief prayed for. This Court feels that the, issues raised involve purely questions of law, the review of which is vested within the exclusive jurisdiction of the Supreme Court.

Hence, the case was certified to Us for final determination. Petitioners-appellants contend that their alleged preferential right to buy the land is by authority of R.A. 3348 which provides:
Section 1. Section one of Republic Act Numbered Four hundred seventy- seven, as amended by Republic Act Numbered Nineteen hundred seventy, is further amended to read as follows: Section 1. All lands which have been or may hereafter be transferred to the Republic of the Philippines in accordance with the Philippine Property Act of Nineteen Hundred and for. ty six (Act of Congress of the United States of July three nine. teen hundred and forty six) and Republic Act Number Eight and all the public lands and improvements thereon transferred from the Bureau of Lands to the National Abaca and Other Fibers Corporation under the provisions of Executive Order Numbered Twenty-nine dated October twentyfive, nineteen hundred and forty six, and of Executive Order Numbered ninety-nine, dated October twenty two, nineteen hundred and forty-seven, shall be subdivided by the National Abaca and Other Fibers Corporation into convenient-sized lots, except such

portion thereof as the President of the Philippines may reserve or transfer title thereto for the use of the National or local governments, or for the use of the corporations or entities owned or controlled by the Government. Subdivision lots primarily intended for, or devoted to, agriculture purposes shall not exceed an area of five hectares for coconut lands, ten hectares for improved abaca lands, and twelve hectares for unimproved lands; urban homesite or residential lots shall not exceed an area of One Thousand square meters; Provided that any provision of law to the contrary notwithstanding, the Department of General Services shall determine the minimum size of said urban homesite or residential lots and shall allot to the actual occupants thereof at the time of the approval of this Act. (emphasis supplied ).

Petitioners-appellants' contention is without merit, the said law having come into effect only on August 8. 1963, or almost 10 years after the lots in question passed into the private estate of the late Carmen Planas who acquired the same from the national government in 1953. We do not see any irregularity in the acquisition by Carmen Planas of the said parcels of land. The exchange of properties between the national government and the late Carmen Planas was validly effected in accordance with the provisions of the then existing laws. Thus, under sections 3 and 4 of Executive Order No. 372, dated November 24, 1950, the Philippine Board of Liquidators, with the approval of the President of the Philippines, was empowered to sell lease, transfer, assign, or otherwise dispose of, the properties transferred to the Republic of the Philippines under the Philippine Property Act of 1946 [Act of Congress of 19461 and R. A. 8; and, under section 1 of R. A. 926, effective June 20, 1953, the "President of the Philippines, in payment of compensation for landed estates acquired by the Government, whether thru voluntary agreement or expropriation proceedings, may convey in behalf of the Republic, with the written consent of the owner of the land, in total partial payment of such compensation, such public land as is disposable by sale or lease to private individuals in accordance with law, and such other similarly disposable property pertaining to the Republic of the Philippines." In the absence of proof of defect in the acquisition by Carmen Planas of, or proof of infirmity in her title to, the lots occupied by petitioners-appellants, We cannot question the validity of the contract of sale executed between the administrator of her estate and the respondent-appellee Wellington Ty & Bros., Inc. If We pursue farther the contention of the petitioners- appellants that they had the preferential right to buy the lots they occupied, We must look into the provisions of the law then in effect, R. A. 477, sec. 1, effective June 9, 1950, and not R. A. 3348. Thus,
Sec. 1. All lands which have been or may hereafter be transferred to the Republic of the Philippines in accordance with the Philippine Property Act of 1946 (Act of Congress of the United States of July 3, 1946) and -Republic Act Numbered Eight and all the public lands and improvements thereon transferred from the Bureau of Lands to the National Abaca and Other Fibers Corporation under the provisions of Executive Order No. 29, dated October 25, 1946 and of Executive Order No. 99, dated October 22, 1947 shall be subdivided by the National Abaca and Other Fibers Corporation into convenient-sized lots, except such portions thereof as the President of the Philippines may reserve for the use of the National or local governments, or for the use of corporations or entities owned or controlled by the Government. Subdivision lots primarily intended for, or devoted to, agricultural purposes shall not exceed an area of five hectares for coconut lands, ten hectares for unproved abaca lands, and twelve hectares for unimproved lands, urban homesite or residential lots shall not exceed an area of one thousand square meters nor less than one hundred fifty meters. (emphasis supplied).

The fact that the applications of the petitioners-appellants to buy these parcels of land from the national government, thru the Board of Liquidators, had not been given due course by the latter no doubt shows that, as authorized under the above provision of law, the national government reserved these lots for its own use with no intention to subdivide them into convenient-sized lots to be awarded to bona fide occupants. That petitioners-appellants paid nominal fees for the use of the lots is of little consequence, in the absence of positive proof that the fees were in consideration of any claim of priority rights. In fact, unrebutted testimony was presented appellants were considered squatters, 3 not as bona fide occupants by the Board of Liquidators to the effect that petitioners occupants thereon. Their use and occupation of the land was merely tolerated by the national government, and could not have vested in them any claim, right, or adverse interest in such government property. Under the Rules of Court, declaratory relief is an action which any person interested under a deed will, contract, or other written instrument, or whose rights are affected by a statute, executive order or regulation, or ordinance, may, before breach or violation thereof, bring to determine any question of construction or validity arising under the instrument or statute and for a declaration of his rights or duties thereunder. 4 Petitioners-appellants brought this action with a claim that they were deprived of their preferential right to buy the disputed lots by virtue of a contract of sale involving said lots executed between the administrator of the estate of the late Carmen Planas and respondent Wellington Ty & Bros., Inc. But it is evident from the records that from the date of their relocation to the disputed lots in 1950 to the date of the filing of this petition for declaratory relief, at no time did the petitioners-appellants acquire any interest whatsoever in the parcels of land subject of the aforementioned contract of sale. They enjoyed no rights which were violated, or at the least, affected by the exchange of properties between the national government and the late Carmen Planas, and eventually, by the above contract of sale between the administrator of the estate of Carmen Planas and the respondent-appellee Wellington Ty & Bros., Inc. The authorities are unanimous that in order that an action for declaratory relief may be entertained, it must be predicated on the following requisite facts or conditions: (1) there must be a justifiable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination. 5 All these requisite facts are not present; the complaint must, therefore, fail for lack of sufficient cause of action. WHEREFORE. the judgment of the lower court is affirmed, with costs against petitioners-appellants. SO ORDERED. Castro, C.J., Teehankee (Chairman), Makasiar and Fernandez, JJ., concur. Muoz Palma, J., took no part.

G.R. No. L-4254. September 26, 1951.] BORIS MEJOFF, petitioner, vs. THE DIRECTOR OF PRISONS, respondent. Ambrosio T. Dollete, for petitioner. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Florencio Villamor, for respondents. SYLLABUS 1. ALIENS; DEPORTATION; HABEAS CORPUS. A foreign national, not enemy, against whom no criminal charges have been formally made ore judicial order issued, may not indefinitely be kept in detention. He also has the right to life and liberty and all other fundamental rights as applied to human beings, as proclaimed in the "Universal Declaration of Human Rights" approved by the General Assembly of the United Nations, which the Philippines is a member. The theory on which the court is given power to act is that the warrant for his deportation, which was not executed, is functus officio and the alien is being held without any authority of law (U.S. vs. Nichols, 47 Fed. Sup., 201). The possibility that he might join or aid disloyal elements if turned out at large does not justify prolonged detention, the remedy in that case being to impose conditions in the order of release and exact bail in a reasonable amount with sufficient sureties. DECISION TUASON, J p: This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this Court of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that decision, written by Mr. Justice Bengzon: "The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U. S. Army Counter Intelligence Corps. Later he was handed to the Commonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter the People's Court ordered his release. But the Deportation Board taking his case up, found that having no travel documents Mejoff was illegally in this country, and consequently referred the matter to the immigration authorities. After the corresponding investigation, the Board of Commissioners of Immigration on April 5, 1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the immigration officials at a designation port of entry and, therefore, it ordered that he be deported on the first available transportation to Russia. The petitioner was then under custody, he having been arrested on March 18, 1948. In May 1948 he was transferred to the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian vessels. In July and August of that year two boats of Russian nationality called at the Cebu Port. But their masters refused to take petitioner and his companions alleging lack of authority to do so. In October 1948 after repeated failures to ship this deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch as the Commissioner of Immigration believes it is for the best interests of the country to keep him under detention while arrangements for his departure are being made."

The Court held the petitioner's detention temporary and said that "temporary detention is a necessary step in the process of exclusion or expulsion of undersirable aliens and that pending arrangements for his deportation, the Government has the right to hold the undersirable alien under confinement for a reasonable length of time." It took note of the fact, manifested by the Solicitor General's representative in the course of the oral argument, that "this Government desires to expel the alien, and does not relish keeping him at the people's expense . . . making efforts to carry out the decree of exclusion by the highest officer of the land." No period was fixed within which the immigration authorities should carry out the contemplated deportation beyond the statement that "The meaning of 'reasonable time' depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of transportation, the diplomatic arrangements with the governments concerned and the efforts displayed to send the deportee away;" but the Court warned that "under established precedents, too long a detention may justify the issuance of a writ of habeas corpus." Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to a further detention of the herein petitioner, provided that he be released if after six months, the Government is still unable to deport him." This writer joined in the latter dissent but thought that two months constituted reasonable time. Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found ways and means of removing the petitioner out of the country, and none are in sight, although, it should be said in justice to the deportation authorities, it was through no fault of theirs that no ship or country would take the petitioner. Aliens illegally staying in the Philippines have no right of asylum therein (Soewapadji vs. Wixon, Sept. 18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true however, as impliedly stated in this Court's decision, supra, that foreign nationals, not enemy, against whom no charge has been made other than that their permission to stay has expired, may not indefinitely be kept in detention. The protection against deprivation of liberty without due process of law and except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality. Whether an alien who entered the country in violation of its immigration laws may be detained for as long as the Government is unable to deport him, is a point we need not decide. The petitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law during the occupation. Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of international law as part of the law of Nation." And in a resolution entitled "Universal Declaration Of Human Rights" and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is

entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2); that "Every one has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9 ); etc. In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody an alien who has been detained an unreasonably long period of time by the Department of Justice after it has become apparent that although a warrant for his deportation has been issued, the warrant can not be effectuated;" that "the theory on which the court is given the power to act is that the warrant of deportation, not having been able to be executed, is functus officio and the alien is being held without any authority of law." The decision cited several cases which, it said, settled the matter definitely in that jurisdiction, adding that the same result had been reached in innumerable cases elsewhere. The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425. The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948), 80 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless person, formerly a Polish national, resident in the United States since 1911 and many times serving as a seaman on American vessels both in peace and in war, was ordered excluded from the United States and detained at Ellis Island at the expense of the steamship company, when he returned from a voyage on which he had shipped from New York for one or more European ports and return to the United States. The grounds for his exclusion were that he had no passport or immigration visa, and that in 1937 had been convicted of perjury because in certain documents he represented himself to be an American citizen. Upon his application for release on habeas corpus, the Court released him upon his own recognizance. Judge Leibell, of the United States District Court for the Southern District of New York, said in part: "When the return to the writ of habeas corpus came before this court, I suggested that all interested parties . . . make an effort to arrange to have the petitioner ship out of some country that would receive him as a resident. He is a native-born Pole but the Polish Consul has advised him in writing that he is no longer a Polish subject. This Government does not claim that he is a Polish citizen. This attorney says he is stateless. The Government is willing that he go back to the ship, but if he were sent back aboard ship and sailed to the Port (Cherbourg, France) from which he last sailed to the United States, he would probably be denied permission to land. There is no other country that would take him, without proper documents. "It seems to me that this is a genuine hardship case and that the petitioner should be released from custody on proper terms . . .. "What is to be done with the petitioner? The government has had him in custody almost seven months and practically admits it has no place to send him out of this country. The steamship company, which employed him as one of a group sent to the ship by the Union, with proper seaman's papers issued by the United States Coast Guard, is paying

$3 a day for petitioner's board at Ellis Island. It is no fault of the steamship company that petitioner is an inadmissible alien as the immigration officials describe him . . .. "I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own recognizance. He will be required to inform the immigration officials at Ellis Island by mail on the 15th of each month, stating where he is employed and where he can be reached by mail. If the government does succeed in arranging for petitioner's deportation to a country that will be ready to receive him as a resident, it may then advise the petitioner to that effect and arrange for his deportation in the manner provided by law." Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to the quandary in which the parties here find themselves, solution which we think is sensible, sound and compatible with law and the Constitution. For this reason, and since the Philippine law on immigration was patterned after or copied from the American law and practice, we choose to follow and adopt the reasoning and conclusions in the Staniszewski decision with some modifications which, it is believed, are in consonance with the prevailing conditions of peace and order in the Philippines. It was said or insinuated at the hearing of the petition at bar, but not alleged in the return, that the petitioner was engaged in subversive activities, and fear was expressed that he might join or aid the disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its answer that "the herein petitioner was brought to the Philippines by the Japanese forces," and the fact that Japan is no longer at war with the United States or the Philippines nor identified with the countries allied against these nations, the possibility of the petitioner's entertaining or committing hostile acts prejudicial to the interest and security of this country seems remote. If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate a danger that is by no means actual, present, or uncontrollable. After all, the Government is not impotent to deal with or prevent any threat by such measure as that just outlined. The thought eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the application for bail of ten Communists convicted by a lower court of advocacy of violent overthrow of the United States Government is, in principle, pertinent and may be availed of at this juncture. Said the learned Jurist: "The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted. xxx xxx xxx

"But the right of every American to equal treatment before the law is wrapped up in the same constitutional bundle with those of these Communists. If in anger or disgust with these defendants we throw out the bundle, we also cast aside protection for the liberties of more worthy critics who may be in opposition to the government of some future day. xxx xxx xxx "If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical aspect of this application which must not be overlooked or underestimated that is the disastrous effect on the reputation of American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All experience with litigation teaches that existence of a substantial question about a conviction implies a more than negligible risk of reversal. Indeed this experience lies hack of our rule permitting and practice of allowing bail where such questions exist, to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice. If that is prudent judicial practice in the ordinary case, how much more important to avoid every chance of handing to the Communist world such an ideological weapon as it would have if this country should imprison this handful of Communist leaders on a conviction that our own highest Court would confess to be illegal. Risks, of course, are involved in either granting or refusing bail. I am not naive enough to underestimate the troublemaking propensities of the defendants. But, with the Department of Justice alert to the dangers, the worst they can accomplish in the short time it will take to end the litigation is preferable to the possibility of national embarrassment from a celebrated case of unjustified imprisonment of Communist leaders. Under no circumstances must we permit their symbolization of an evil force in the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally decided that they should stay jailed." If that case is not comparable with ours on the issues presented, its underlying principle is of universal application. In fact, its ratio decidendi applies with greater force to the present petition, since the right of accused to bail pending appeal of his case, as in the case of the ten Communists, depends upon the discretion of the court, whereas the right to be enlarged before formal charges are instituted is absolute. As already noted, not only are there no charges pending against the petitioner, but the prospects of bringing any against him are slim and remote. Premises considered, the writ will issue commanding the respondents to release the petitioner from custody upon these terms: The petitioner shall be placed under the surveillance of the immigration authorities or their agents in such form and manner as may be deemed adequate to insure that he keep peace and be available when the Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth Act No. 613. No costs will be charged. Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions PABLO, M., disidente: Disiento. En decision distada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante Boris Mejoff (G. R. No. L-2855, Mejoff vs. Director of Prisons) *, se declaro que el habia venido a Filipinas procedente de Shanghai como espia del ejercito japones; en la liberacion, el ejercito americano le arresto por ser espia, habiendo sido mas tarde entregado al Gobierno del Commonwealth para ser tratado de acuerdo con la ley No. 682; pero como bajo el Codigo Penal Revisado, antes de su enmienda por la Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga al extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una debida investigacion, la Junta de Deportacion encontro que el solicitante no tenia permiso para entrar en Filipinas; fue entregado a la Junta de Inmigracion, la cual ordeno su deportacion a Rusia por el primer transporte disponible por haber venido aqui ilegalmente; fue enviado a Cebu para que alli se embarcase, pero los dos barcos de nacionalidad rusa que llegaron a dicho puerto en julio y agosto de 1948 rehusaron admitirle. Por no encontrar transportacion para su deportacion, Mejoff fue enviado a la Prision de Muntinglupa, donde esta actualmente detenido mientras el Gobierno no encuentra medio de transportarle a Rusia. La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law during the occupation." Es tan ilegal la entrada del solicitante como la del ejercito al que sirvio como espia. Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que le trajo, el solicitante no tiene derecho a permanecer aqui ni un minuto mas. Si desea proteccion, debe acudir al Gobierno Japones a cuyo ejercito el sirvio, el hecho de que ya esta aqui no le da titulo para permanecer libre aqui. El que ha venido como espia del enemigo del Pueblo de Filipinas no tiene derecho a pedir igual trato que aquel que ha entrado de buena fe. Es que Filipinas tiene la obligacion de acoger a un ciudadano indeseable de Rusia? Desde cuando tiene que allanarse una nacion a ser residencia de un extranjero que entro como enemigo o, peor aun, como espia? Un Estado tiene indiscutible derecho a deportar y expulsar de su territorio a todo extranjero indeseable. El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer aqui. Puede ser deportado a Rusia o a Shanghai de donde vino. Si todos los rusos que, por alguno que otro motivo, o por odio al comunismo, dejasen su pais y emigrasen aqui reclamando igual derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que, so pretexto de no querer someterse al regimen comunista, optasen por residir para siempre aqui. Y si los mismos comunistas chinos viniesen clandestinamente y despues reclamasen igual proteccion como la concedida a Mejoff, tendremos que darles por el gusto? Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "Universal Declaration of Human Rights", en la que se establece, entre otras cosas, que "no one shall be subjected to arbitrary arrest, detention or exile." Yo soy de los que creen firmemente en lo sagrado de esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin motivo justificado, de una manera arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de una manera provisional. Tan

pronto como haya barco disponible para su deportacion o tan pronto como pueda embarcarse en algun barco para el extranjero o para cualquier otro punto a donde quiera ir, dejara de ser detenido. Conste que no esta preso como un criminal condenado por un delito; esta tratado como cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera sido espia, si no hubiera venido aqui para ayudar a las hordas japonesas en la subyugacion del pueblo filipino, si hubiera venido como visitante, por ejemplo, y, por azares de la fortuna, no pudo salir, yo seria el primero en abogar por su liberacion inmediata. Se cita el caso de Staniszewski vs. Watkins, (1948 A.M C. 931, 42 American Journal of International Law, 732) en el cual el recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad en un recurso de habeas corpus. En nuestra opinion, dicho caso no tiene similitud con la causa presente. Staniszewski era residente de los Estados Unidos desde 1911; estuvo sirviendo como marino en barcos mercantes americanos en tiempo de paz y en tiempo de guerra y se ordeno su detencion en Ellis Island cuando volvio a America procedente de un viaje a Europa por no tener papeles de inmigracion. Staniszewski no habia entrado en los Estados Unidos como espia, estuvo residiendo en dicho pais por varios aos, era ya habitante de los Estados Unidos. La ocupacion de marino es honrosa, la del espia mercenario, detestable. El espia es peor que el enemigo. Este lucha cara a cara, y el espia, con disimulo y arte engaosa, escucha lo que le interesa a su amo para comunicarselo. Es justo que a Staniszewski se le haya puesto en libertad. Poner en libertad a un espia es poner en peligro la seguridad del Estado. En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija; depende de la circunstancia de cada caso particular. Es evidente que los medios de comunicacion entre Filipinas y Rusia o Shanghai, debido a falta de relaciones diplomaticas, son completamente anormales. No es culpa del gobierno el que no encuentre medios de transportacion para el. La Comision de Inmigracion ha dado pasos para que la International Refugee Organization of the United Nations (IRO) se hiciera cargo del recurrente para que pueda ser repatriado o enviado a otro pais extranjero, pero el Jefe de dicha organizacion contesto que no estaba en condiciones para aceptar dicha recomendacion. William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su deportacion por el Sub Secretario del Trabajo por violacion de la Ley de Inmigracion; solicito su libertad bajo el recurso de Habeas Corpus, y en 16 de febrero de 1927 se denego su peticion; no se le pudo deportar porque "the necessary arrangements for his deportation could obviously not be made." (District Court of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion provisional de William Martin Jurgans duro mas de seis aos; la de Mejoff no ha sido mas que de 31 meses, y no porque el gobierno no quiere deportarle, sino porque no hay medio disponible para realizarlo. En Moraitis vs. Delany, 46 F. Supp., 425, se dijo: "What constitutes a reasonable time for the detention of the petitioner in custody for deportation depends upon the facts and circumstances of particular cases. This court cannot shut its eyes to the vitally important interests of this country at this time with respect to the bottleneck of shipping, when every available ship, domestic and foreign, must be utilized to the utmost without delay consequent upon the lack of available

seamen. Under these present conditions the court should be liberal indeed in aiding the executive branch of the government in the strict enforcement of laws so vitally necessary in the common defense. There is sound authority for this view in United States ex. rel. Schlimm vs. Howe, D. C. N. Y. 222 F. 96, 97, where Circuit Judge Lacombe refused to release an alien who had come here from Germany and was ordered deported in 1915 when, by reason of the then existing war between Germany and England, his deportation to Germany was not possible. It was said: "'At the present time there is no regular passenger ocean service to German ports, so the authorities are unable to forward him, and are holding him until some opportunity of returning him to Germany may present itself. His continual detention is unfortunate, but certainly is not illegal. His present condition can be alleviated only by the action of the executive branch of the government. A federal court would not be justified in discharging him.' . . . "If he is not really fit for sea service, it is not probable that he would be forced into it, although he may be able to serve his government in some other capacity. But however that may be, while this country has no power under existing legislation to impress him into sea service against his will, he has no just cause to be relieved from the strict enforcement of our deportation laws, and to remain at liberty in this country as a sanctuary contrary to our laws." No es arbitraria la detencion de Mejoff. Esta justificada por las circunstancias anormales. La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su deportacion, supone un gasto innecesario.

G.R. No. L-22748 July 29, 1977 GREGORIO CO and HERCULANO CO, petitioners-appellees, vs. THE DEPORTATION BOARD, respondent-appellant. Lopez de Joya & Associates, Eusebio Morales and Romillo & Azurin for petitionersappellees. No appearance for respondent-appellant. FERNANDO, J.: The basic question before us is whether the judiciary may entertain an action for prohibition and habeas corpus filed against the Deportation Board, now appellant, during the pendency of an inquiry against petitioners, now appellees, that may possibly lead to their expulsion from the country. The then Judge Jesus de Veyra of the Manila Court of First Instance, in a well-written decision, sustained his jurisdiction, granted the relief sought on the ground that they were Filipinos, and restrained appellant Board from taking further cognizance of the proceeding. Hence this appeal by the Deportation Board. On the basis of the finding of facts of the lower court, tested by the standards prescribed in Chua Hiong v. Deportation Board, 1 there was justification for the decision it rendered. While Vivo v. Montesa 2 and Calacday v. Vivo3 stand for the proposition that under the well-settled administrative law doctrine of primary jurisdiction, an administrative agency, such as appellant, must be given the opportunity to decide the matter before it before the courts could intervene, the latter case pointed out that there are appropriate where the right to immediate judicial review should be recognized. As the lower court found, this is one of them. We cannot see any valid ground for reversal. The facts set forth in the brief for appellant, which to its credit did manifest objectivity do not, upon careful scrutiny, warrant the reversal sought. Right at the start, it made mention of the petitioners Gregorio Co and Herculano Co being born in Aparri, Cagayan, on April 24, 1920 and September 25, 1922. Their father, a certain Co Pengco, was a Chinese merchant residing in Aparri, Cagayan and their mother was Maria Tan Comin, whose nationality was disputed. 4 The parties were, however, agreed that she had lived maritally with Co Pengco, out of which seven children were born, among them petitioners. Such relationship continued until the death of Co Pengco sometime n 1926 in China. The mother died in 1946, also in China. 5 Then on July 12, 1957, a Special Prosecutor of the Deportation Board filed charges against petitioners with such Board alleging that as Chinese subjects residing in the Philippines, who failed, neglected and refused to register as Chinese nationals with the Bureau of Immigration, they violated the law, compounded by the fact that they represented themselves as Filipinos. 6 They were thus enabled to enjoy certain rights and privileges which are accorded only to Filipino citizens, such as suffrage, ownership of real property, Herculano's ownership of a coastwise vessel, Gregorio Co's loan from the Rehabilitation Finance Corporation. 7 First, they sought and were granted liberty upon the filing of cash and surety bonds, subject to other terms and conditions. 8 Then they filed with the Deportation Board a motion to dismiss based on the plea that it lacked jurisdiction for the reason that they are citizens of the Philippines. 9 Such motion was denied as was a subsequent motion

seeking reconsideration. 10 They did exhaust their administrative remedy, an appeal to the President being fruitless.11 Thereafter, they filed the special civil action of prohibition and habeas corpus, with the decision as noted being in their favor on the ground of their being Filipinos. 12 The exhaustive brief of petitioners as appellees denied the claim that there was a dispute concerning Maria Tan Comin's citizenship. 13 They pointed out that both the appellee Deportation Board and the lower court maintained the contrary view, her citizenship being admitted.14 Moreover, they called attention to the "overwhelming and uncontroverted evidence" as to their citizenship based on their having been born in the Philippines of a Chinese father and a Filipino mother, the recognition of such status by several government agencies, and the exercise by them of the right to suffrage, not to mention the fact that their birth certificates showed that they are Filipinos.15 On the above facts, it is understandable why judicial intervention even prior to the final decision of appellant Deportation Board was justified. The plea for reversal cannot be granted. 1. Chua Hiong v. Deportation Board 16 stands for this principle: "When the evidence submitted by a respondent is conclusive of his citizenship, the right to immediate review should also be recognized and the courts should promptly enjoin the deportation proceedings." 17 Nor is it required that such standard be rigidly adhered to, as pointed out in the opinion of Justice Labrador: "The difficult,", arises when the evidence is not conclusive on either side, as in the case at bar. Should the deportation proceedings be allowed to continue till the end, or should the question of alienage or citizenship of respondent be allowed to be decided first in a judicial proceeding, suspending the administrative proceedings in the meantime that the alienage or citizenship is being finally determined in the courts? The highest judicial authority in the United States has answered the second question in the affirmative." 18 It was likewise stressed that judicial determination is allowable "in cases when the courts themselves believe that there is substantial evidence supporting the claim of citizenship, so substantial that there are reasonable grounds for the belief that the claim is correct, In other words, the remedy should be allowed only in sound discretion of a competent court in a proper proceeding." 19 That sound discretion was properly exercised by the then Judge de Veyra in the judgment now on appeal. 2. Calacday v. Vivo20 reiterated the principle announced in Vivo v. Montesa as to the applicability of the doctrine of primary jurisdiction in deportation proceedings, thus precluding judicial intervention until completed. Nonetheless, the opinion made express mention of the exception to the rule set forth in the Chua Hiong decision. Thus: "A clarification announced in Chua Hiong v. Deportation Board is not to be lost sight of however." 21 Petitioners could thus very well rely on the pronouncements set forth with such clarity by Justice Labrador in the aforesaid case. The only question that remains is whether on the test prescribed as to the quantum of evidence required to justify judicial intervention before the termination of the deportation proceedings, the judgment reached by the lower court may be termed as suffering from the corrosion of substantial legal error. 3. No such infirmity has been shown. The facts were fairly appraised and the law based on judicial precedents. It is to be noted that even the brief for appellant could not assert categorically that the mother of petitioners, Maria Tan Comin was an alien. All that it did say was that her nationality "is disputed." 22 Again, with candor, there was an admission

that she was born in Iguig, Cagayan in 1892, the father being a Chinese and the mother being a Filipino. It was on the basis of such fact that the lower court, relying on the Philippine Bill of 1902, also in the light of applicable authorities, reached the conclusion that her illegitimate children were entitled to Filipino citizenship. The restraint apparent in the claim of appellant Deportation Board that its prosecutor at most "is possessed with evidence to show that Maria Tan Comin was a Chinese" 23 certainly militates against its persuasive force. The finding of the lower court as to her being a Filipina had not been shown to be without basis. Likewise, as was made mention at the outset, the trial court, on the basis of the evidence before it, reached the conclusion that deportation would not lie as the status of petitioners as Filipino citizens, "being the illegitimate children of an unwed Filipino mother,"24 was duly established. Nor was that the only basis for reaching such a conclusion. It did take into consideration the birth certificates showing that they are Filipinos. 25 Then there was proof from at least two government agencies recognizing such status as Filipino citizens. The Commissioner of Immigration did so as well as the City Fiscal of Quezon City when he sustained the legality of petitioner Co's applying for a loan from the Rehabilitation Finance Corporation mortgaging his real property therein located.26 Moreover, it was likewise proven that they exercised as Filipinos the right of suffrage as set forth in their brief.27 There is warrant for the conclusion reached by the lower court as to their citizenship following the doctrine announced in Talaroc v. Uy.28 Justice Tuason, speaking for this Court, specifically made mention of respondent Uy having been allowed to exercise the right of suffrage, to hold public office and to take the oath of allegiance to the Republic of the Philippines. It is thus clear that to impute error to the lower court for sustaining the prohibition proceedings against the Deportation Board in view of the status of petitioners having been duly established, finds no support from the authoritative doctrines of this Court. WHEREFORE, the decision of respondent Judge Jesus de Veyra, holding that petitioners are Filipino citizens and that the Deportation Board was without jurisdiction to take cognizance of the deportation proceedings filed against them, is affirmed. No costs. Antonio, Aquino, Concepcion, Jr. and Santos, JJ., concur. Barredo, J., took no part.

G.R. No. 78596 July 13, 1989 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: LUCIEN TRAN VAN NGHIA, petitioner, vs. HON. RAMON J. LIWAG, Acting Commissioner of the Commission on Immigration and Deportation (CID) and JOHN DOES, agents of the CID, respondents. Emmanuel O. Sales for petitioner. FERNAN, C.J.: This is a petition for the issuance of a writ of habeas corpus filed by Lucien Tran Van Nghia alleging that he was arrested without warrant and deprived of his liberty by respondent Commissioner of Immigration and Deportation and his agents. Petitioner Lucien Tran Van Nghia is a French national with temporary address in Sta. Ana, Manila. Originally admitted to the Philippines on November 1, 1981 as a temporary visitor, his status was changed to that of an immigrant on November 16, 1984 based on his representation that he is financially capable and will invest in the Philippines. To date, however, petitioner has not made any investment and has engaged only in French tutoring and practice of acupressure. On May 28, 1987, respondent CID Commissioner Ramon J. Liwag received a sworn complaint from a certain Dionisio G. Cabrera, Jr., allegedly petitioner's landlord, accusing petitioner of being an undesirable alien for "committing acts inimical to public safety and progress." 1 Acting thereon, respondent Commissioner Liwag issued on June 1, 1987 a mission order to a team of seven (7) CID agents for them "to locate and bring subject to Intelligence Division for proper disposition" and "submit report." 2 On June 2, 1987, the aforementioned CID agents went to petitioner's residence in Sta. Ana to invite the latter to the CID headquarters for verification of his status but petitioner and his then lady companion reportedly locked themselves inside their bedroom and refused to talk to the agents. The immigration agents then sought the assistance of members of the Western Police District. Once again petitioner adamantly refused to be taken in and in the ensuing struggle, both petitioner and the lawmen were injured. Finally, petitioner was subdued and immediately taken to the CID Intelligence Office. A warrant of arrest was issued by respondent Commissioner on June 2, 1987 but there is nothing in the records to convince this Court that said warrant was served on petitioner prior to his apprehension. Said warrant was based on the following acts and circumstances:
That he applied for and was granted permanent status on his representation that he is financially capable of investing in the Philippines but he made no investments but engaged in tutoring in French and practice of acupressure; that he wilfully refused to recognize the authority of immigration agents who were sent to invite him to CID for verification of his status and physically resisted being taken in by the agents resulting in

physical injuries to himself and the agents; that he has thereby made himself an undesirable alien subject to deportation. 3

By reason of the injuries he allegedly sustained when he was "brutally seized" by the CID agents, petitioner, upon request of the French consul, was transferred from his detention cell at the immigration office to the Philippine General Hospital for urgent medical treatment. On June 10, 1987, petitioner's counsel filed the instant petition for habeas corpus to avert the "threatened removal" of petitioner from PGH and to question the validity of his detention by respondent Commissioner. A return of the writ was filed by the Solicitor General and the Court heard the case on oral argument on June 17,1987. Thereafter, the parties were required to submit their respective memoranda. The core issue is the legality of the arrest and detention of petitioner by the Immigration Commissioner preparatory to deportation proceedings. Petitioner insists that respondent official has no power, authority or jurisdiction to cause his arrest because under the 1987 Constitution, it is provided that "no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce ... ." 4 The aforesaid argument raised by petitioner has been resolved in the case of Harvey vs. Defensor-Santiago, G.R. No. 82544, June 28, 1988, where the Court, through Madame Justice Melencio-Herrera, said:
The requirement of probable cause to be determined by a Judge, does not extend to deportation proceedings.' (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be no 'truncated' recourse to both judicial and administrative warrants in a single deportation proceeding. The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G.R. No. 10280, September 30,1963, 9 SCRA 27 [1963] reiterated in Vivo vs. Montesa, supra, that 'under the express terms of our Constitution (the 1935 Constitution)), it is therefore even doubtful whether the arrest of an individual may be ordered by authority other than a judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation. What is essential is that there should be a specific charge against the alien intended to be arrested and deported, that a fair hearing be conducted (Section 37 [c] with the assistance of counsel, if desired, and that the charge be substantiated by competent evidence. ... .

The particular circumstances obtaining in the case at bar have seriously placed on doubt the legality and propriety of petitioner's apprehension by respondent Commissioner. For unlike in the Harvey case where the warrantless capture of two suspected alien pedophiles was based on probable cause ascertained only after close surveillance for a three-month period during which their activities were monitored, herein petitioner was "invited" by a combined team of CID agents and police officers at his apartment unit on the strength of a mission order issued by the Commissioner on Immigration based on a sworn complaint of a single individual. The essential requisite of probable cause was conspicuously absent. But even assuming that the arrest of petitioner was not legal at the beginning, certain events have supervened to render his petition moot and academic or to otherwise cure whatever defect there was at the inception of his arrest.

Firstly, petitioner is no longer under confinement. On June 20, 1987, petitioner was released upon the posting and approval of a personal bailbond on June 19,1987 in the amount of P20,000.00 during the pendency of the administrative proceedings by the CID or until further orders of the Court. 5 The general rule in a number of cases is that the release, whether permanent or temporary, of a detained person renders the petition for habeas corpus moot and academic, unless there are restraints attached to his release which precludes freedom of action, in which case the Court can still inquire into the nature of his involuntary restraint under the Villavicencio vs. Lukban rule. 6 In Moncupa vs. Enrile, supra, the Court granted the writ of habeas corpus inspite of the fact that petitioner Moncupa had been temporarily released from detention on orders of the defense minister. In the Moncupa case, it was shown that attached to his discharge was the prohibition to travel, to change his abode and to grant interviews to members of the mass media without official permission. He was also ordered to report regularly to the military authorities. The Court subsequently nullified said conditions and ruled:
Such restrictions limit the freedom of movement of the petitioner. It is not physical restraint alone which is inquired into by the writ of habeas corpus. .. . 7 Where a person continues to be unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear to be unnecessary, and where a deprivation of freedom originally valid has, in the light of subsequent developments, become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ. 8

Petitioner Lucien Tran Van Nghia is not similarly restrained. The only condition in his bailbond is that ordinarily found in any other analogous undertaking, which is "to appear and answer the complaint x x x; will at all times hold himself ... amenable to the orders and processes of the Court; and after conviction, he will surrender himself ... in execution of such judgment ... ." 9 Secondly, records show that formal deportation proceedings have been initiated against petitioner before the Board of Special Inquiry of the CID. 10 The restraint (if any) against petitioner's person has therefore become legal. The writ of habeas corpus has served its purpose. 11 WHEREFORE, the petition is DISMISSED. So ordered. Gutierrez, Jr., Bidin and Cortes, JJ., concur. Feliciano, J., is on leave.

G.R. No. L-8685

January 31, 1957

THE COLLECTOR OF INTERNAL REVENUE, petitioner, vs. AURELIO P. REYES and COURT OF TAX APPEALS, respondents. Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Ramon L. Avancea, Solicitor Jose P. Alejandro, Melquiades Gutierrez and Librada del RosarioNatividad for petitioner. Meer, Meer and Meer for respondents. FELIX, J.: This is a petition for certiorari filed by the Collector if the Internal Revenue wherein he seeks to nullify the resolution of the Court of Tax Appeals restraining him from collecting, through summary administrative methods, taxes allegedly due from Dr. Aurelio P. Reyes. The facts of the case may be summarized as follows: In a letter dated October 13, 1954, petitioner, the Collector of Internal Revenue demanded from Aurelio P. Reyes payment of his alleged deficiency income taxes, surcharges, interests and penalties for the tax years 1946 to 1950 amounting to P641,470.04 as of October 31, 1954, with the suggestion that the aforesaid tax liabilities be paid either to the Bureau of Internal Revenue or the City Treasurer of Manila. Together with said letter of assessment, respondent Aurelio P. Reyes received a warrant of distraint and levy on his properties in the event that he should fail to pay the alleged deficiency income taxes on or before October 31, 1954, Being informed by the City Treasurer of Manila by a letter dated November 4, 1954, that said Treasurer was instructed by petitioner to execute the warrant of distraint and levy on the amount demanded is not settled on or before November 10, 1954, Aurelio P. Reyes filed with the Court of Tax Appeals on November 15, 1954, a petition for review of the Collector's assessment of his alleged deficiency income tax liabilities. This was followed by an urgent petition, filed on November 16, 1954, to restrain the Collector of Internal Revenue from executing the warrant of distraint and levy on his properties, alleging among others, that the right of respondent to collect by summary proceedings the tax demanded had already prescribed in accordance with section 51 (d) of the National Internal Revenue Code, as his income tax returns for the tax years 1946 to 1950 had been filed more than three years ago, the last one being on April 27, 1951; that a distraint and levy on his properties would work injustice or irreparable injury to him and would tend to render any judgment of the Court in the main case meaningless and ineffectual; that the requisite if Section 11 of Republic Act No. 1125 for the filing of a bond or deposit before a writ of distraint and levy may be suspended is not applicable in this case; and that a greater portion of his assets consists of real properties located in Manila and shares a stock in the Philippine Racing Club which are all encumbered in various financial institutions and therefore there is no possibility that he would abscond with his property or remove or conceal the same. The Collector of Internal Revenue opposed said petition in November 19, 1954, on the ground that Court of Tax Appeals has no authority to restrain him from executing the warrant of distraint and levy on his properties of Aurelio P. Reyes in connection with the collection of the latter's deficiency income taxes; that said taxpayer has an adequate remedy in law by paying first and then seek for the recovery thereof; and that section 51 (d) does not preclude distraint and levy. By resolution of January 8, 1955, the Court of Tax Appeals upheld the stand of Aurelio P. Reyes

and ordered the Collector of Internal Revenue to desist from collecting by administrative method the taxes allegedly due from Reyes pending the outcome of his appeal, without prejudice to other judicial remedy or remedies which the Collector may desire to pursue for the protection of the interest of the Government, pending the final decision of the case on the merits. On January 21, 1955, the Solicitor General filed a notice of appeal from said resolution and instituted in this Court the instant certiorari case on January 22, 1955. It is not disputed that respondent Reyes filed his income tax returns for the years 1946 to 1950, and that the warrant of distraint and levy against the properties of said respondent was issued only on October 13, 1954, or 3 years, 5 months and 16 days after the respondent taxpayer has filed his returns for the tax year 1950, which he made on April 27, 1951. Therefore, the issues in this instances are: (1) whether the Court of Tax Appeals could restrain the Collector of Internal Revenue from enforcing collection of income tax deficiency by summary proceedings after the expiration of the three-year period provided for in section 51 (d) of the National Internal Revenue Code; and (2) granting that the Collector could be restrained, whether the Court of Tax Appeals had any power to grant an injunction without requiring the filing of a bond or making a deposit as prescribed by section 11 of Republic Act No. 1125. Section 51 (d) of the National Internal Revenue Code reads as follows: SEC. 51. Assessment and Payment of income Tax. xxx xxx xxx (d) Refusal or neglect to make return; fraudulent returns, etc. In cases of refusal or neglect to make return or in cases of erroneous, false or fraudulent returns, the Collector of Internal Revenue shall, upon discovery thereof, at any time within three years after said return is due, or has been made, make a return upon information obtained as provided for in this Code or by existing law, or require the necessary corrections to be made, and the assessment made by the Collector on Internal Revenue thereon shall be paid by such person or corporation immediately upon notification of the amount of said assessment. and in a long line of cases this Court has already construed this just quoted provision to mean that the three year prescriptive period provided therein constituted a limitation to the right of the Government to enforce the collection of income taxes by the summary proceedings of distraint and levy though it could proceed to recover the taxes due by the institution of the corresponding civil action (Collector of Internal Revenue vs. Villegas, 56 Phil., 554, citing Holmes, Federal Income Tax, 2d., p. 581; Collector of Internal Revenue vs. Haygood, 65 Phil., 520; and Juan de la Via vs. El Gobierno de las Filipinas, G.R. No. 42669, January 29, 1938). This doctrine was reiterated in the case of Philippine Sugar Estate Development Co., Inc., vs. Juan Posadas, 68 Phil., 216, wherein it was held that: . . . after the three years have elapsed from the date to which income tax returns which have been found to be false, fraudulent or erroneous, may have been made, the Collector of Internal Revenue cannot make any summary collection through administrative methods, but must do so through judicial proceedings. In the recent case of the Collector of Internal Revenue vs. Jose Avelino et al., supra, p. 327, promulgated November 19, 1956, this Court held: It therefore appears that when it refers to the Collection of income tax it is mandatory that the right of the Collector of Internal Revenue to collect it by the summary methods of distraint and levy be exercised within the period of three years from the time the income

tax return is filed, otherwise the right can only be enforced by judicial action. Since, admittedly, the deficiency taxes in question were assessed and the warrants for their collection by distraint and levy were issued after the period of three years from the filing of the returns, it is evident that said warrants, as well as the steps taken in connection with the sale of the properties of the taxpayer, were issued without authority of the law and, hence, the Court of Tax Appeals acted properly in enjoining their enforcement as prayed for by petitioner. It is, however, contended by petitioner that the respondent Court of Tax Appeals acted in complete disregard of the prohibition of said section 305 of the National Internal Revenue Code when it restrained the former from executing the warrant of distraint and levy against the properties of respondent Aurelio P. Reyes. Said provision reads as follows: SEC. 305. INJUNCTION NOT AVAILABLE TO RESTRAIN THE COLLECTION OF TAX. No court shall have authority to grant an injunction to restrain the collection of any internal revenue tax, fee, or charge imposed by this Code (National Internal Revenue Code). However, Section 11 of Republic Act No. 1125 prescribes the following: SEC. 11. Who may appeal; effect of appeal. Any person, association or corporation adversely affected by a decision or ruling of the Collector of internal Revenue,. may file an appeal in the Court of Tax Appeals within thirty days after receipt of such decision or ruling. No appeal taken to the Court of Tax Appeals from the decision of the Collector of Internal Revenue . . . shall suspend the payment, levy, distraint, and/or sale of any property of the taxpayer for the satisfaction of his tax liability as provided by existing law: Provided, however, That when in the opinion of the Court the collection by the Bureau of Internal Revenue . . . may jeopardize the interest of the Government and/or the taxpayer the Court at any stage of the proceeding may suspend said collection and require the taxpayer either to deposit the amount claimed or to file a surety bond for not more than double the amount with the Court. It can be inferred from the aforequoted provision that there may be instances like the one at bar, when the Collector of Internal Revenue could be restrained from proceeding with the collection, levy, distraint and/or sale of any property of the taxpayer. In this respect, this Court said in the case of Collector of Internal Revenue vs. Avelino et al., supra: This section (Sec. 11 of Rep. Act No. 1125) must be deemed to have modified section 305 of the National Internal Revenue Code in view of the repeating clause contained in said Act to the effect that "any law or part of law, or any executive order, rule or regulation or part thereof, inconsistent with the provisions of this Act is hereby repealed" (Section 21). But petitioner asserts that even assuming that under Section 11 of Republic Act No. 1125 respondent court is empowered to order him to desist from the collection of said taxes by extrajudicial methods, yet the Court erred in issuing the injunction without requiring the taxpayer either to deposit the amount claimed or file a surety bond for an amount not more than double the tax sought to be collected. We disagree with this contention. At first blush it might be as contended by the Solicitor General, but a careful analysis of the second paragraph of said Section 11 will lead us to the conclusion that the requirement of the bond as a condition precedent to the issuance of the writ of injunction applies only in cases where the processes by which the

collection sought to be made by means thereof are carried out in consonance with the law for such cases provided and not when said processes are obviously in violation of the law to the extreme that they have to be SUSPENDED for jeopardizing the interests of the taxpayer. Section 11 of Republic Act No. 1125 is therefore premised on the assumption that the collection by summary proceedings is by itself in accordance with existing law; and then what is suspended is the act of collecting, whereas, in the case at bar what the respondent Court suspended was the use of the method employed to verify the collection which was evidently illegal after the lapse of the three-year limitation period. The respondent Court issued the injunction in question on the basis of its finding that the means intended to be used by petitioner in the collection of the alleged deficiency taxes were in violation of law. It certainly would be an absurdity on the part of the Court of Tax Appeals to declare that the collection by the summary methods of distraint and levy was violative of law, and then, on the same breath require the petitioner to deposit or file a bond as a prerequisite for the issuance of a writ of injunction. Let us suppose, for the sake of argument, that the Court a quo would have required the petitioner to post the bond in question and that the taxpayer would refuse or fail to furnish said bond, would the Court a quo be obliged to authorize or allow the Collector of Internal Revenue to proceed with the collection from the petitioner of the taxes due by a means it previously declared to be contrary to law? The pronouncement made by the respondent Court, after due hearing, to the effect that summary methods of collection by distraint and levy would be improper in the instant case, was done in the exercise of its power to pass judgment on all matters brought before it. It was a lawful exercise of the jurisdiction vested in said Court which is well--provided for in section 7 of Republic Act No. 1125: SEC. 7. Jurisdiction. The Court of Tax Appeals shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided (1) Decisions of the Collector of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties imposed in relation thereto, or other matters arising under the National Internal Revenue Code or other law or part of law administered by the Bureau of Internal Revenue. There is another issue raised by respondent Aurelio P. Reyes that merits consideration. It does not appear from the records that a motion for reconsideration was ever filed by counsel for petitioner, although a notice of appeal, dated January 21, 1955, was filed in the court below. It is an established doctrine in this jurisdiction that the attention of the Court should first be called to its supposed error, and its correction asked for on a motion for reconsideration (Herrera vs. Barretto, 25 Phil., 245; Uy Chua vs. Imperial, 44 Phil., 27; Manila Post Publishing Co. vs. Sanchez, 81 Phil., 614 46 Off., Suppl. (1) 412; Alvarez vs. Ibaez, 83 Phil., 104, 46 Off. Gaz., 4233). That failure of the petitioner to file with the court below a motion for reconsideration of the order subject of the certiorari proceedings is a fatal and insurmountable barrier, is further stressed in the case of Valeriano Nicolas et al. vs. The Hon. Modesto Castillo et al., (97 Phil., 336) wherein this Court held: No motion for reconsideration was ever filed by petitioners in the court below, calling its attention to the alleged errors and irregularities now raised in this petition, to give it an opportunity to correct such errors and irregularities, if indeed any were committed. For his reason alone if not for any other, the writ was applied for should be denied.

Wherefore, the petition for certiorari is denied and the resolution of the respondent Court of Tax Appeals is hereby affirmed, without pronouncement as to costs. It is so ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador and Endencia, JJ., concur. Separate Opinions REYES, J.B.L., J., concurring: I concur in the result, subject to my dissenting opinion in the case of Collector of Internal Revenue vs. Avelino and the Court of Tax Appeals, (supra, p. 327) regarding the necessity of the taxpayer's posting a bond or depositing the amount of the taxes claimed, before the tax collection may be suspended.

G.R. No. L-15350

November 30, 1962

MARIANO G. PINEDA, ARCADIO E. YABYABIN and MAXIMINO PIZARRO, petitioners, vs. HON. GREGORIO T. LANTIN, District Judge of the Court of First Instance of Manila, BACOLOD-MURCIA MILLING CO., INC. and J. AMADO ARANETA, respondents. Office of the Solicitor General for petitioners. Vicente Hilado for respondents. REGALA, J.: This case raises a question of law heretofore undecided by this Court, to wit: MAY A COURT OF FIRST INSTANCE ENJOIN THE SECURITIES AND EXCHANGE COMMISSION? The facts from which this issue resulted are the following: In a letter dated July 9, 1958, addressed to the Securities and Exchange Commission, Teresa Cuaycong La and Apeles H. Lopez, thru counsel, complained of maintain actions of the respondent corporation, the Bacolod-Murcia Milling Co., Inc. and its President and General Manager, J. Amado Araneta. They claimed that the named respondents had committed various acts in violation of the Articles of Incorporation of the respondent corporation petition, the pertinent provisions of the corporation law, the rules and regulations promulgated by the Security and Exchange Commission. They represented that conduct of the said J. Amado Araneta was one series acts prejudicial to the interests of the minority stockholders. The complainants were two such stockholders. Acting on the letter-complaint, petitioner Mariano Pineda, in his official capacity as Securities and Exchange Commissioner, ordered the investigation of the character and, for that purpose, designated the other petition Arcadio E. Yabyabin and Maximino Pizarro, as investigators. These last two petitioners were the Chief Counsel and Chief Examiner, respectively, of the Commission. Pursuant to the above order, petitioners Yabyabin and Pizarro, on July 29, 1958, addressed a subpoena duces tecum to respondent J. Amado Araneta as well as to treasurer and secretary of the Bacolod-Murcia. On receiving the subpoena duces tecum, however, herein respondent corporation and J. Amado Araneta, thru court filed a "Petition to Reconsider Order and to Set Aside Subpoena Duces Tecum." They contended that with approval of Republic Act No. 1143 on June 17, 1954, "the power given by law to the Securities and Exchange Commission to conduct investigations has been qualified and made subject to the condition that such investigations must be conducted in accordance with the rules adopted by the Commission." (Sec. 1 [d], Republic Act No. 1143.) And, since the Securities and Exchange Commission had not till then adopted such rules, it could not proceed with the investigation. After due consideration, on August 18, 1958, petitioner Mariano G. Pineda denied the above petition filed by the respondent. Subsequently, on August 21, 1958, respondents Bacolod-Murcia and J. Amado Araneta filed a Motion to Quash and Discontinue Entire Proceedings. This was docketed as SEC Case No. 951. The basis of this motion was principally the same as that recited in the petition to reconsider and set aside the subpoena duces tecum. In other words, the herein respondents reiterated their

contention that the Securities and Exchange Commission could not proceed with the investigation until after it shall have promulgated the rules required by Republic Act No. 1143. Furthermore, the respondent-movants alleged that the complaint by the aforesaid minority stockholders "was part of a plot and conspiracy to harass and oppress the herein respondents at the inspiration or instigation of the Secretary of Commerce and Industry, the Honorable Pedro C. Hernaez, who has direct supervision and control over the Securities and Exchange Commission." This motion was found to be without merit, and was, for that reason, forthwith denied by the Commissioner on October 10, 1958. After having received a copy of the order denying their motion of August 21, 1958, the respondent corporation and J. Amado Araneta filed a special civil action for prohibition against the herein petitioners Yabyabin and Pizarro, and, for the first time, joined Lacson and Lopez as respondents. It was docketed in the sala of Judge Gregorio T. Lantin of the Manila Court of First Instance as Civil Case No. 38456. Having been served with summons in the above civil case, petitioners Yabyabin and Pizarro, on November 29, 1959, moved to dismiss the same. They argued that writ prayed for would amount to a review, modify or setting aside of an order of the Securities and change Commission and therefore, beyond the jurisdiction of the Court of First Instance. According to them, only the Supreme Court could modify or review an order or decision of the Commission in accordance with Security 1 of Rule 43, Rules of Court and Section 35 of Commonwealth Act No. 83, as amended by Republic Act 635. On December 6, 1958, Judge Gregorio T. Lantin is the following order: "Upon consideration of the motion to dismiss dated November 28, 1958, filed by respondent Arcadio E. Yabyabin and Maximino B. Pizarro, and objection thereto, let resolution of the said motion deferred until the trial of the case on the merits." Soon after the issuance of this order, or, on December 26, 1958, herein petitioners Yabyabin and Pizarro filed an answer to the petition for prohibition. Thereafter, order deferring the resolution of the motion to dismiss was reconsidered. Instead, the motion to dismiss was denied on January 31, 1959. Disagreeing with the above order of denial, herein petitioners filed a motion for reconsideration on February 19, 1959. They reaffirmed in that pleading their position that only the Supreme Court may review orders of Securities and Exchange Commission; that when Manila Court of First Instance did so review, it went beyond its authority and jurisdiction. This was denied again by the respondent judge, when on February 28, 1959, he issued an order dismissing the motion for consideration. This case was elevated to this Honorable Court review on a petition for certiorari with prohibition a preliminary injunction. To that end, it devolved on to resolve the question of law first mentioned above. Stated in another way, the issue here is: WAS THE CIVIL CASE FOR PROHIBITION FILED BY THEREIN RESPONDENTS PROPER AND WITHIN IN THE JURISDICTION OF THE COURT OF FIRST INSTANCE? This Tribunal holds the view that under the Rules of Court and the law applicable to the case at bar, a Court of First Instance has no jurisdiction to grant injunctive reliefs against the Securities and Exchange Commission. That power is lodged exclusively with this Court. Section 1 of Rule 43 of the Rules of Court provides; SECTION 1. Petition for review. Within thirty days from notice of an order or decision issued by the Public Service Commission or the Securities and Exchange

Commission, any party aggrieved thereby may file, in the Supreme Court, a written petition for the review of such order of decision. Furthermore, Section 35 of Commonwealth Act No. 83, as amended by Republic Act No. 635, creating and setting forth the powers and functions of the Securities and Exchange Commission, provides the following: SEC. 35. Court review or orders. (a) Any person aggrieved by an order issued by the commission in any proceeding under this Act to which such person is a party or who may be affected thereby may obtain a review of such order in the Supreme Court of the Philippines by filing in such court within thirty days after the entry of such order a written petition praying that the order of the Commission be modified or set aside in whole or in part. . . . Beyond doubt, therefore, whenever a party is aggrieved by or disagrees with an order or ruling of the Securities and Exchange Commission, his remedy is to come to this Court on a petition for review. He is not permitted to seek relief from courts of general jurisdiction. The two provisions quoted above clearly pronounce that only this Court possesses the jurisdiction to review or pass upon the legality or correctness of any order or decision of the Securities and Exchange Commission, and, as circumstances might warrant, to modify, reverse, or, set aside the same. It was urged by the herein respondents that the principal purpose of their action in the lower court was not to have an order of the Securities and Exchange Commission reviewed but to have the investigation stopped because of an alleged lack of jurisdiction to proceed with the same. Therefore, the argument continued, Section 7 of Rule 43 of the Rules of Court and Section 35 of Court Commonwealth Act No. 83, as amended by Republic No. 635, could not have properly applied. The contention carries no weight. This Court has thoroughly read through the petition for prohibition with the lower court. But, even a cursory reading would have revealed so fully that its main aim was have an order of the Securities and Exchange Commission reviewed the order denying their motion to quash and discontinue the entire proceeding in the Commission More than anything else, Civil Case No. 38456 was meant to have that order of the Commission ultimately set aside. But even assuming for the sake of argument that principal concern of Bacolod-Murcia in filing the action below was indeed to stop the investigation so that jurisdiction of the investigating body to conduct the same might first be determined, still this Court holds that action should have been commenced in this Tribunal. When the Rules of Court and the law provided that orders and decisions of the Securities and Exchange Commission are reviewable only by this Court, they could possibly have excluded within their efficacy the review of incidental orders as the one at bar. Otherwise, entire philosophy for providing that only this Court review on appeal orders of the Commission would rendered mute, weak and purposeless. For then, shall be sanctioning what can not be done directly to be done indirectly. Finally, herein respondents contended that since questioned order of the Commission was merely in interlocutory, they could not have come to this Court under Section 1 of Rule 43 because the said provision refers only to final orders and decisions. This Court, however, finds neither force nor merit in this argument. We have held already in the case of San Beda v. Court of Industrial Relations, G.R. No. L-7649, promulgated October 29, 1955, that while the general rule is that interlocutory orders are not appealable, the same may be so appealed when it is grounded upon lack of jurisdiction.

The role of the Securities and Exchange Commission in our national economy cannot be minimized. The legislature has entrusted to it the serious responsibility of enforcing all laws affecting corporations and other forms of associations not otherwise vested in some other government offices. Being charged, therefore, with overseeing the operations of those various corporate enterprises from which our government derives great revenues and income, it cannot afford to be impeded or restrained in the performance of its functions by writs of injunction emanating from tribunals subordinate to this Court. If every Court of First Instance can enjoin the Commission from pursuing its objectives, and, in the premises, substitute its judgment for that of the Commission on what should or should not be done, then, no one will suffer thereby but the economy of our body politic and, eventually, this country's citizenry. Certainly, the legislature could never have intended that. IN VIEW OF ALL THE FOREGOING, the order of the lower court denying the motion to dismiss filed by the herein petitioners in Civil Case No. 38456 is hereby set aside and the herein respondents are prohibited and enjoined from proceeding with the trial and determination on the merits of the same civil case, with costs. Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon and Makalintal, JJ., concur. Bautista Angelo, J., took no part.

[G.R. No. L-20768. February 28, 1963.] ELISEO B. LEMI, petitioner, vs. BRIGIDO VALENCIA, Secretary of Public Works & Communications; ROBERTO M. SAN ANDRES, Chief Radio Control Office; ALFREDO M. CARGO (Supposedly agent of the Hon. Secretary of Public Works & Communications); HERACLIO SAN JUAN, Radio Regulation Inspector, Radio Control Office; CONRADO CAJATOR, Chairman, Presidential Anti-Graft Committee (PAGCOM) and agents, respondents. E.C. Hidalgo, E.T. Jocson and Juan T. Nuez for petitioner. Solicitor General for respondents. SYLLABUS 1. RADIO CONTROL LAWS; DUE PROCESS; RENEWAL OF RADIO STATION LICENSE MAY NOT BE DISAPPROVED WITHOUT HEARING. Section 3 of the Radio Control Act provides that no application for the renewal of station or operator license shall be disapproved without giving the licensee a hearing. This legal provision was implemented by Department Order No. 11, series of 1950, Section 17 of which provides, inter alia, that a radio station license may also be revoked for violations of the radio laws and regulations, local or international, provided, however, that no such license shall be revoked without giving the licensee a hearing. 2. ID.; ID.; ID.; REQUIREMENT OF HEARING APPLIES TO ANY ACTION OF THE RADIO CONTROL OFFICE THAT WOULD AMOUNT TO SUCH REVOCATION. While petitioner's last application for renewal of license has not been disapproved, it is held that the requirements of a hearing applies not only to the revocation of a radio license but also to any action by the Radio Control Office that, for all practical purposes, would amount to such revocation because it makes it impossible for the radio station concerned to continue broadcasting. 3. ID.; ID.; ID.; SEIZURE OF RADIO TRANSMITTER UNDER SEARCH WARRANT, NO EXCEPTION. That the seizure of the radio transmitter, in the case at bar, was made under authority of a search warrant cannot obliterate the fact that such seizure was made in violation of the law requiring a previous hearing. RESOLUTION DIZON, J p: On January 11, 1963, upon application of respondent Alfredo M. Cargo, supported by a sworn statement subscribed by his co-respondent, Heraclio San Juan, the Court of First Instance of Manila issued a Search Warrant authorizing them to search radio station DZQR located at 603 Ronquillo St. Sta. Cruz, Manila, and to seize and take possession of the radio transmitter used thereat, allegedly in violation of law. On that same date and in the middle of a broadcasting program, they, accompanied by agents of the Presidential Anti-Graft Committee (PAGCOM), served the search warrant, made the corresponding search, and seize the transmitter then being used at the aforesaid station. Subsequently, Eliseo B. Lemi filed with Us a special civil action of mandamus, with a petition for the issuance of a preliminary mandatory injunction against Brigido Valencia, Secretary of Public Works and Communications; Roberto M. San Andres, Chief, Radio Control Office; Alfredo M. Cargo, Agent of the abovenamed secretary; Heraclio San Juan, Radio Regulations

Inspector, Radio Control office; and Conrado Cajator, Chairman, Presidential Anti-Graft Committee. After respondents had been summoned and required to show cause why the preliminary mandatory injunction prayed for should not be issued, a hearing thereon was held, and the matter is now before US for resolution. It appears that by virtue of Republic Act No. 1553 petitioner is the holder of a franchise authorizing him to construct, install maintain, and operate radio stations in the Philippines. On January 8, 1960, he was issued a license by the Radio Control Office. Department of Public Works and communications, to construct, maintain, and operate radio station DZQR, with an assigned frequency of 740 kc, at 603 Ronquillo St. City of Manila, which location was, with approval of the authorities concerned, subsequently transferred to Globe Theater Bldg., corner of Raon St. and Quezon Boulevard, Manila, and again, with proper authority, returned to its original location where the search mentioned heretofore was made. The first license (No. 5931) issued to petitioner on January 8, 1960 was for the period from May 24, 1960 to May 23, 1961. On April 12, 1961, he filed an application for its renewal to cover the period from May 24, 1961 to May 23, 1962, and paid the corresponding fees. Although the Radio Control Office appears not to have acted at all on this application, petitioner continued to operate his station without any interference whatsoever from said office, this giving rise, naturally, to the presumption that it had no objection to the continued operation of said station. On May 31, 1962, petitioner filed a second application for renewal to cover the period from May 24, 1962 to May 23, 1963 and paid the corresponding fees. Again the Radio Control Office took no action on the matter, one way or the other, thus inducing petitioner to believe that there was nothing irregular or wrong with his application and with the continued operation of his station. In fact, as late as December 7, 1962, respondent San Andres, on behalf of his co-respondent, the Secretary of Public Works and Communications, requested petitioner to feature some matters in his radio broadcasts as a public service feature. Up to the time of the hearing on the motion for the issuance of a preliminary mandatory injunction, there had been no hearing held on the question of whether petitioner's last application for renewal should be approved or disapproved. Respondents admit petitioner's authority to operate the radio station mentioned heretofore but claim that in the operation thereof he had, in violation of law, used a transmitter different from the one he was authorized to use for the purpose; that the transmitter petitioner was authorized to use was UNELMANCO BCT 500 S/N RCD 0503 which, with the approval of the Radio Control Office, was later changed to COLLINS T.M. 400 S/N RCD 0637, while the transmitter used by him and seized under the search warrant already mentioned was one without any name plate or serial number. Petitioner denies the above allegations of the respondents and claim that the seized radio transmitter was the COLLINS transmitter which the Radio Control Office had authorized it to use instead of the original UNELMANCO transmitter; that if it appeared not to have any visible name plate or serial number, it was due to the fact that, it being a more second hand surplus equipment, it had to be repainted. The fact that petitioner had been allowed to operate his radio station for so long practically without any interference on the part of the Radio Control Office would seem to support his contention. True, a memorandum submitted on March 29, 1962, by Eliodoro B. Jose, Head, Project No. 2, to the Chief, Radio Control Division, is to the effect that, in a previous report made by him, he had stated that when he inspected petitioner's station then located at the Capitol Technical Institute

Building he was shown a permit for the transfer of the station from Globe Theater Building to the Capitol Technical Institute Building; that the transmitter then being used was not the same for which the permit to transfer was issued; that he advised petitioner to apply for the corresponding permit to purchase, possess, or construct the transmitter so that a license may be issued for the new station; but the same report shows that Mr. Jose had recommended that a license be issued to petitioner upon the filing of the corresponding application; that the nonclosure of radio station DZQR, in spite of an order given to Mr. Jose to have it closed was explained by him in another memorandum of March 26, 1962, this being the reason presumably why the station continued to operate without any interference on the part of the Radio Control Office. This report or memorandum itself shows that, aside from the claim that the radio transmitter used at the time by petitioner was not the one he was authorized to use, the same was not objectionable in any other respect; that its use was known and was to a certain extent tolerated by the Radio Control Office. That because of the seizure of the radio transmitter petitioner's station can not continue broadcasting is undeniable. In fact, by reason of the seizure effected in the middle of a broadcasting program, the latter had to be discontinued. It can not be denied, therefore, that, in practical effect, the seizure amounted to a closure of the station and/or disapproval of petitioner's application for the renewal of his license. Section 3 of the Radio Control Act provides that no application for the renewal of station or operator license shall be disapproved without giving the licensee a hearing. This legal provision was implemented by Department Order No. 11, series of 1950, Section 17 which provides, inter alia, that a radio station license may also be revoked for violations of the radio laws and regulations, local or international, provided, however, that no such license shall be revoked without giving the licensee a hearing. While, as already stated, petitioner's last application for renewal of license has not been disapproved, we believe that the requirement of a hearing applies not only if a radio license is to be revoked, but also before the Radio Control Office may lawfully do anything that, for all practical purposes, would amount to such revocation because it makes it impossible for the radio station concerned to continue broadcasting. This, precisely, is the situation obtaining in the present case. But respondents claim that the seizure of petitioner's transmitter was effected lawfully because it was done pursuant to a search warrant issued by the Court of First Instance of Manila. We perceive no force and validity in this argument. That the seizure was made under authority of a search warrant can not obliterate the fact that such seizure was made in violation of the law requiring a previous hearing. The application for the issuance of the warrant amounted, in effect, to an effort to evade the law requiring said hearing. While courts should exercise great care in granting preliminary mandatory injunction because the writ operates not merely to preserve the status quo between the parties but to compel one of them to perform a positive act; nevertheless, we held in Meralco vs. Del Rosario 22 Phil. p. 433, that in cases of extreme urgency; where petitioner's right to the writ is clear; where considerations of relative inconvenience are strongly in his favor; where there appears to be a willful invasion of petitioner's right the injury inflicted upon him being a continuing one; and where the effect of the mandatory injunction would not be to create a new relation between the parties but solely to reestablish a pre-existing relation between them recently and arbitrarily interrupted by the respondent, courts should not hesitate in granting the writ. Considering the facts obtaining in the present case, particularly the circumstance that petitioner's inability to continue broadcasting

through his radio station affects his contractual relations with third parties, we find it justified to grant the preliminary writ of mandatory injunction prayed for. WHEREFORE, upon the filing by petitioner and approval by this Court of a bond in the sum of P1,000.00, let the writ of preliminary mandatory injunction prayed for be issued commanding respondents to return to petitioner the radio transmitter mentioned in the latter s verified petition. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala and Makalintal, JJ., concur.

G.R. No. L-22756

March 18, 1966

HONDA GIKEN KOGYO KABUSHIKI KAISHA, ET AL., petitioners, vs. HON. LOURDES P. SAN DIEGO, ET AL., respondents. Ozaeta, Gibbs and Ozaeta for the petitioners. A. Armovit and R. L. Bautista for the respondents. DIZON, J.: Petition for certiorari and prohibition seeking judgment declaring that the respondent judges (or either of them) have no jurisdiction to take cognizance of Civil Case No. L-7864, and restraining them permanently from enforcing the orders issued therein on March 23 and April 7, both of the year 1964. It appears that the petitioner, hereinafter referred to as Honda, is the manufacturer of the Honda motorcycles and the owner, among others, of the trademarks "HONDA", "HM" and "HM with wings" used in the manufacture and sale of said Honda motorcycles, and that said trademarks have for many years been duly registered in Japan and other countries. Since the year 1959, respondent Alfred Hahn had been importing into the Philippines the said Honda motorcycles bearing the trademarks just mentioned. In this connection, Hahn's answer to the petition under consideration, while denying that he was a mere importer of the Honda motorcycles, and alleging that since 1956 he had been classified and licensed as producer and not a mere importer of motorcycles, admits that Hahn had received authority from Honda "to introduce and create a market for Honda motorcycles" in the Philippines. It appears, however, that on December 13, 1962, Hahn filed with the Philippine Patent Office a verified petition seeking the registration in his name of the trademark "HM HONDA", alleging under oath therein that "he believes himself to be the lawful owner" of said trademark and that "no other person, partnership, corporation or association, to the best of his knowledge and belief, has the right to use said trademark in the Philippines, either in the identical form or in such mere resemblance thereto as might be calculated to deceive". Honda opposed said application alleging, inter alia, that it was manufacturing and selling and since long prior to January 1955 had manufactured and sold in the Philippines and elsewhere motorcycles under the trademarks already mentioned before; that it had never abandoned and, in fact, was still using said trademarks as trademarks in commerce with the Philippines and elsewhere. Respondent Hahn's reply to the opposition contains no clear denial of the facts alleged therein nor in it raise any question whatsoever regarding the personality of the oppositor to appear before the Patent Office. The application for registration was set for hearing by the Patent Office before petitioner Teofilo P. Velasco, one of its Hearing Officers, on January 20, 1964, but the hearing was postponed to February 6 of the same year on which date Honda presented its evidence. The hearing was continued to February 12, 1964 to give Hahn's counsel a chance to examine the various documents presented by Honda. On that date said counsel registered his opposition to the admission of some of the exhibits on purely technical grounds, but all of them were admitted by the Hearing Officer. Thereupon, counsel for Hahn for the first time questioned the personality of Honda to appear before the Patent Office and asked orally that its opposition be dismissed. After extensive argument the oral motion to dismiss was denied.

On February 14, 1964, however, Hahn filed a motion for reconsideration alleging therein that Honda's capacity to appear before the Patent Office was a prejudicial question and that since it is not licensed to do business in the Philippines, the Patent Office could not be said to have acquired jurisdiction over the person of said oppositor. This motion notwithstanding, the Hearing Officer set February 26, 1964 for the reception of Hahn's evidence, but on that date, his counsel refused to present any evidence until his motion for reconsideration had been resolved by the Director of Patents. In view of this incident, on March 2, 1964 petitioner Director of Patents issued the following order: As prayed for in his "Motion for Reconsideration and Motion for Issuance of Formal Order or Resolution" filed on February 13, 1964, the Respondent-Applicant, through his counsel, is hereby granted a period of TEN (10) days from receipt of a copy of this order within which to submit the necessary authorities and arguments in further support of his motion to dismiss the opposition. Copy of the said authorities and arguments should be served by RespondentApplicant on counsel for the Opposer who, within a period of TEN (10) days from receipt thereof, should file its written opposition and supporting authorities. Thereafter, the motion to dismiss shall be deemed submitted for resolution. It is so ordered. However, instead of complying with the above order, Hahn commenced Civil Case No. Q-7864 in the Court of First Instance of Rizal, Branch IX, Q.C., which was a petition for certiorari against all the herein petitioners for the annulment of the order of the Patent Office denying his motion to dismiss Honda's opposition, mainly on the ground that, in accordance with Sections 68 and 69 of Act 1459, as amended, and the pertinent provisions of Act 3883, as amended, registration with the Bureau of Commerce and a license from the Securities and Exchange Commission is sine qua non to have capacity to become a party "applicant or oppositor" to an inter partes proceeding, in the Philippine Patent Office. On March 7, 1964, the respondent Judge Lourdes P. San Diego issued an order requiring the parties to maintain the status quo pending resolution of the petition for a writ of preliminary injunction, which was set for hearing on March 21 of the same year. On March 11, 1964, Honda appeared in Civil Case No. Q-7864 and opposed the petition for the issuance of a writ of preliminary injunction and filed a motion to dismiss the petition for certiorari on the ground firstly, that the Court of First Instance of Rizal had no jurisdiction to issue injunctive relief against the Philippines Patent Office and secondly, on the ground that the petition did not allege facts sufficient to constitute a cause of action against the therein respondents. On March 20 of the same year, the Director of Patents and the other respondents in said case also filed a motion to dismiss the petition for certiorari together with an opposition to the issuance of a writ of preliminary injunction upon similar grounds. On March 23, 1964, respondent Judge Lourdes P. San Diego, notwithstanding the oppositions and motions to dismiss referred to above, issued an order granting the petition for the issuance of a writ of preliminary injunction and pursuant thereto, on April 2, 1964, the other respondent Judge Damaso S. Tengco, then acting as vacation judge presiding over Branch IX, issued the corresponding writ of preliminary injunction restraining the Director of Patents and Hearing Officers Teofilo P. Velasco and Amando Marquez "from extending further recognition to the capacity of respondents Honda and Daihatsu and/or compelling petitioner to enter into a trial on the merits with said respondents foreign corporation and/or accepting and giving due course to

any opposition filed by unlicensed and unregistered foreign corporation, pending the final determination of this petition". Thereupon, the present petition for certiorari and prohibition was filed for the annulment of the orders of March 23 and April 2, both of the year 1964, issued by the respondent judges upon the ground that in issuing them they acted without or in excess of their jurisdiction or with grave abuse of discretion. Upon the facts set forth above, the petition under consideration must be granted because the respondent judges the one as permanent presiding judge of Branch IX of the Court of First Instance of Rizal, and the other as vacation judge presiding over said court had no jurisdiction to issue the orders complained of. The rule is well settled so well settled indeed that it requires no citation of authorities to support it that a writ of injunction or of prohibition or of certiorari may be issued against a court only by another court superior in rank to the former. The law in this jurisdiction vests upon Us the authority to review final orders and decisions of the Public Service Commission. In Iloilo Commercial, etc. vs. Public Service Commission (56 Phil. 28), in denying jurisdiction to the trial court to issue injunctive relief against the Public Service Commission, We held: Any order made by the Commission may be reviewed on the application of any person or public service affected thereby, by certiorari in appropriate cases or by petition, to the Supreme Court, and the Supreme Court is given jurisdiction to review any order of the Commission and to modify or set it aside (Sec. 35). . . . In the absence of a specific delegation of jurisdiction to the Court of First Instance to grant injunctive relief against orders of the Public Service Commission, it would appear that no court, other than the Supreme Court, possesses such jurisdiction. On the other hand, under Rule 44 of the Revised Rules of Court and Section 33 of Republic Act No. 166, as amended, appeals from orders and decisions of the Director of the Patent Office must likewise be taken to Us. It is, therefore, undeniable that the Philippine Patent Office and the Public Service Commission are similarly situated and that both are, to say the least, of the same rank or category as Courts of First Instance. Consequently, no one of the latter has jurisdiction to issue a writ of injunction against them.1wph1.t Wherefore, the writs prayed for are granted and the orders complained of are hereby set aside, with costs against the respondents, except the respondent judges. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

G.R. No. L-37737 February 27, 1979 MAXIMO NOCNOC, petitioner, vs. HON. ISIDORO A. VERA District Judge of the Court of First Instance of Camarines Norte and ERNESTO MANARANG, respondents. Jose Lozada Lapak for petitioner. Edwin Z. Ferrer for private respondent. SANTOS, J.: In this petition for certiorari and prohibition filed on October 30, 1973, petitioner, a claimant for death compensation benefit, assails the order of respondent Judge of the Court of First Instance dated September 18, 1973 1 which enjoined the execution of the order of the Workmen's Compensation Unit (WCU) Regional District No. 6, dated March 14, 1973, directing inter alia private respondent to pay petitioner-claimant the sum of P3,910.00 for the death of his son, 2 as well as the order of the same Court dated October 10, 1973 which denied the motion for reconsideration of above order of September 18, 1973. 3 The issue raised in this petition is whether respondent court of First Instance had jurisdiction to entertain a case impugning the validity of an award/decision of the WCU and, in the process, enjoin its execution. In our resolution of November 5, 1973, petitioner-claimant's motion to litigate as pauper was granted, respondent was required to file an answer to the petition not to move to dismiss the same and a temporary restraining order was issued enjoining respondent Judge from further proceedings effective immediately and until further orders from this court. 4 On December 11, 1973, respondent CFI Judge filed his answer, 5 and on January 2, 1974, petitioner-claimant filed his reply thereto. 6 In a manifestation and motion filed on January 9. 1974, petitioner-claimant prayed that the case be set fir oral argument before final resolution of the same by the Court. 7 On January 11, 1974, private respondent Ernesto Manarang adopted respondent Judge Vera's answer. 8 The records show that on September 19, 1972, petitioner-claimant filed a claim for compensation under Act 3842, i.e., the Workmen's Compensation Act as amended, with the Workmen's Compensation Unit (WCU), Regional District No. 6, at Naga City, for the death of his son, Norberto Nocnoc, single, who died in an accident on June 9, 1970, while employed as a bus conductor in the transportation business of private respondent, Ernest Manarang. 9 Private respondent received a copy of the claim on February 2, 1973. 10 On March 7, 1973, after the period to controv ert the claim expired, private respodent moved to dismiss the claim on the ground that petitioner had previously entered into an amicable setlement of the claim and that petitioner-claimant had in fact received the sum of P2,330.00. 11 In its order of March 14, 1973, 12 the WCU through its Chief Referee, Estanislao D. Sarto, denied the motion to dismiss, and instead awarded to petitioner-claimant the sum of P6,240.00, but deducted thereform the aforesaid amount of P2,330.00 which was deemed as advance and/or partial payment on the claim. The dispositive portion of the award, therefore, directed private respondent Manarang

1. To pay to claimant father Maxino Nocnoc ... the sum of P3,910 as full compensation for the death of the late Roberto Nocnoc; and, 2. To pay to the Workmen's Compensation Fund ... the sum of P61.00 as administrative fee under Section 55 of the aforesaid law. 13

Respondent Manarang moved to have the award reconsidered, 14 but his Motion for Reconsideration was denied for lack of merit in the WCU Order of April 24, 1973. 15 Upon the finality of the award, claimant-petitioner filed a petition for the issuance of a writ of execution 16 which was opposed by respondent on the ground that he already filed on May 25, 1973, a petition for certiorari with this Court, 17 the resolution of which " is a prejudicial question," 18 The "Petition for Review on Certiorari" adverted to was, per resolution of this court dated June 8, 1973, considered "NOT FILED" for failure of peitioner Manarang to pay docket and legal fees. 19 It does not appear that he filed motion for reconsideration of the said resolution, but thereafter or on July 20, 1973, the writ of execution was issued by the WCU. 20 On August 4, 1973, respodent filed a complaint, entitled "Ernesto Manarang v. Estanislao Sarto, et al." Civil Case No. 2438, for injunction with the Court of First Instance, branch II at camarines Norte, presided by respondent Judge to enjoin the enforcement of the writ of execution so issued, upon his filing of a bond, to be fixed by the Court. On August 7, 1973 respondent Judge ordered defendants, WCU Chief Referee and the Provincial Sheriff to "cease and desist from further orders." In a motion for intervention dated August 9, 1973, 21 petitioner-claimant moved to be allowed to intervene as "the real Party-in-interest", with prayer that his "Motion to Dismiss", which he attached, predicated on lack of jurisdiction on the part of respondent Judge, be admitted. 22 In its order of August 13, 1973, respondent Judge granted the motion for in. intervention but denied the motion to dismissed. 23 In their answer, with counterclaim, dated August 23, 1973 24 defendants (Chief Referee and Provincial Sheriff and intervenor (petitioner-claimant) prayed for the dismissal of the complaint. Upon the other hand, plaintiff now private respondent in his reply 25 prayed for the dismissal of the counter-claim and that the injunction already issued be made permanent. The questioned orders of September 18, 1973 and October 19, 1973 were thereafter issued. 26 Hence, this petition for certiorari and prohibition. 27 As adverted to earlier, the question now before Us is whether the Court of First Instance, as a court of general jurisdiction, can entertain a case impugning the validity of award of the Workmen's Compensation Unit and, in the process restrain the enforcement of a writ of execution is issued by its Chief Referee. Petitioner-claimant contends that the Court of First Instance had been jurisdiction to entertain a Workmen's Compensation case since it has no jurisdiction whatsoever over the same. 28 Neither can it enjoin the execution of an award by the Workmen's Compensation Unit, an independent administrative body fully clothed by law with authority to adjudicate matters relative to Workmens Compensation cases. 29 On the other hand, respondent Judge insists that "in issuing the injunctive order in Civil Case No. 2438 (he) did so, not in the exercise of any appellate jurisdiction over the Workmen's Compensation Commission because he has none, but in the exercise of his power as a court of general jurisdiction in a case file before him. 30 For according to respondent judge, "he cannot evade his solemn duty of giving redress to a litigant who

claims, that his constitutional right to a day in court has been denied." 31 Respondent Judge's position, therefore, is that while he has no appellate jurisdiction over the Workmen's Compensation case, he may "... in the exercise of his power as a court of general jurisdiction ... (gives) redress to a litigant who that his constitutional right to a day in court has been denied". Respondent Judge's position is not well-taken. This petition is invested with merit. 1. Respondent Judge's disclaimer of appellate jurisdiction over Workmen's Compensation cases is well-taken pursuant to Sec. 46, Act 3428 or the Workmen's Compensation Act as amended by RA 772, to wit:
SEC. 46. Jurisdiction The Workmen's Compensation Commission shall have exclusive jurisdiction to hear and decide claims for compensation under the Workmen's Compensation Act subject to appeal to the Supreme Court, in the same manner and in the same period provided by law and by Rules of Court for appeal from the Court of Industrial Relations to the Supreme Court. (Emphasis supplied.)

But his assertion of jurisdiction over private respondent Manarang's complaint for injunction arising from proceedings before the Workmen's Compensation Unit, on the ground that his court "is one of general jurisdiction" is contrary to his court's admitted lack of jurisdiction whether original or appellate over Workmen's Compensation cases. For, in reviewin the alleged nullity of the award and enjoining its execution, respondent Judge assumed jurisdiction over a matter which could have been elevated from the Workmen's Compensation Unit to the Workmen's Compensation Commission, and thereafter, on appeal, to this Court. This, he cannot do, for "... the decisions, orders and awards entered by the Workmen's Compensation Commission are appealable to the Supreme Court. ... (T)he Court of First Instance is not empowered or clothed with jurisdiction to review or modify, much less, annul an award or order of execution issued by the Workmen's Compensation Commision." 32 The law and jurisprudence are thus clear, unequivocal. No further interpretation is necessary. The proper forum to thresh out the validity of the WCU's award which is allegedly null and void because it was rendered without giving the private respondent his consitutional right to due process, as well as the validity of the ensuing writ of execution to enforce the same is the Workmen's Compensation Commission, and, on appeal, this court and not any other, much less respondent's court. In point of fact, respondent Manarang filed a Petition for Review on certiorari earlier with this court on May 25, 1973. This, however, was considered "NOT FILED" per this Court's resolution of June 8, 1973 for his failure to pay docket and legal fees. Since he did not pursue the said remedy by seeking the reconsideration of this Court's resolution and/or paying the required fees, and, instead, went to respondent Judge's court and filed the complaint for injunction, he may be deemed to have abandoned the appropriate recourse of appeal to the Workmen's Compensation Commission and to this Court. 2. Now, as to private respondent's claim that he was denied his day in court. The WCU correctly found that the claim was not controverted by private respondent within the period prescribed by the Workmen's Compensation Act, as amended, and the Commission Rules, which require controversion of the claim within fourteen (14) days from the date of the disability or within ten (10) days after the employer or his representative first acquired knowledge of the disability resulting from the accident or illness. This finding was not disputed by private respondent. And, as a matter of fact,

private respondent paid petitioner-claimant P2,330.00 in an attempt to settle the case amicably. The failure to controvert is fatal to the defense of the claim. 33 The Commission Rules specifically provides that failure to controvert within the period "may result in the issuance of an award, if warranted by substantial evidence, without necessity of any formal hearings." 34 We have recognized this right of the Labor Regional Administrator (now Chief of Workmen's Compensation Unit) to immediately issue an award without notice and hearing where the employer failed to seasonably submit the employer's report or notice of controversion in accordance with and in the manner provided for under Sections 37 and 45 of the Workmen's Compensation Act. 35 Specifically, it has been held that after the failure to controvert, an emoployer cannot raise the question of being denied its day in court. 36 Respondent Judge assumed jurisdiction over the private respondent's complaint in Civil Case No. 2438 on the basis of private respondents claim that he was denied his day in court and on his (respondent Judge's) impression that as a "court of general jurisdiction", the Court of First Instance has jurisdiction over the case and give the relief prayed for as he did. Respondent Judge lost sight of the fact that the phrase "court of general jurisdiction" is merely descriptive of court of First Instance (CFI) which have original jurisdiction over civil, criminal and other cases in contra-distinction to courts of special, limited jurisdiction, e.g., the Court of Agrarian Relations (CAR), the Court of Tac Appeals (CTA), the Circuit Criminal Courts (CCC), the Juvenile and Domestic Relations Courts (JDRC) and so forth. The descriptive phrase, however, does not and cannot confer CFI's with power to entertain an incident involving a Workmen's Compensation case, which within the exclusive jurisdiction of the Workmen's Compensation Commission (WCC), and of this Court, in case of an appeal. For jurisdiction to be properly vested in a court or body, it must be expressly provided by law, and, in the case of Courts of First Instance, by the Judiciary Act, as amended, not by a phrase descriptive of the extent and scope of the Court's competence. IN VIEW OF THE FOREGOING, the orders of respondent Judge dated September 18 and October 10, 1973, are hereby ANNULLED and SET ASIDE. by this court on November 5, 1973, is hereby MADE PERMANENT. This decision and the award of the Workmen's Compensation Unit are immediately executory.

Separate Opinions Barredo, J., concurring: Indeed, We did not have to rule on the allegation of petitioner about denial of due process because that is a matter deemed resolved already in the certiorari case the Court had dismissed. Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.
#

Separate Opinions

Barredo, J., concurring:

Indeed, We did not have to rule on the allegation of petitioner about denial of due process because that is a matter deemed resolved already in the certiorari case the Court had dismissed. Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.