Rule 90 Distribution and Partition of the Estate Distribution, when

THIRD DIVISION G.R. No. 174873 August 26, 2008

QUASHA ANCHETA PEA AND NOLASCO LAW OFFICE FOR ITS OWN BEHALF, AND REPRESENTING THE HEIRS OF RAYMOND TRIVIERE, petitioners, vs. LCN CONSTRUCTION CORP., respondent. DECISION CHICO-NAZARIO, J.: This is a Petition for Review under Rule 45 of the Revised Rules of Court with petitioners Quasha Ancheta Pea and Nolasco Law Office (Quasha Law Office) and the Heirs of Raymond Triviere praying for the reversal of the Decision1 dated 11 May 2006 and Resolution2 dated 22 September 2006 of the Court of Appeals granting in part the Petition for Certiorari filed by respondent LCN Construction Corporation (LCN) in CA-G.R. SP No. 81296. The factual antecedents of the case are as follows: Raymond Triviere passed away on 14 December 1987. On 13 January 1988, proceedings for the settlement of his intestate estate were instituted by his widow, Amy Consuelo Triviere, before the Regional Trial Court (RTC) of Makati City, Branch 63 of the National Capital Region (NCR), docketed as Special Proceedings Case No. M-1678. Atty. Enrique P. Syquia (Syquia) and Atty. William H. Quasha (Quasha) of the Quasha Law Office, representing the widow and children of the late Raymond Triviere, respectively, were appointed administrators of the estate of the deceased in April 1988. As administrators, Atty. Syquia and Atty. Quasha incurred expenses for the payment of real estate taxes, security services, and the preservation and administration of the estate, as well as litigation expenses. In February 1995, Atty. Syquia and Atty. Quasha filed before the RTC a Motion for Payment of their litigation expenses. Citing their failure to submit an accounting of the assets and liabilities of the estate under administration, the

RTC denied in May 1995 the Motion for Payment of Atty. Syquia and Atty. Quasha. In 1996, Atty. Quasha also passed away. Atty. Redentor Zapata (Zapata), also of the Quasha Law Office, took over as the counsel of the Triviere children, and continued to help Atty. Syquia in the settlement of the estate. On 6 September 2002, Atty. Syquia and Atty. Zapata filed another Motion for Payment,3 for their own behalf and for their respective clients, presenting the following allegations: (1) That the instant Petition was filed on January 13, 1988; and Atty. Enrique P. Syquia was appointed Administrator by the Order of this Honorable Court dated April 12, 1988, and discharged his duties starting April 22, 1988, after properly posting his administrator's bond up to this date, or more than fourteen (14) years later. Previously, there was the coadministrator Atty. William H. Quasha, but he has already passed away. (2) That, together with Co-administrator Atty. William H. Quasha, they have performed diligently and conscientiously their duties as Co-administrators, having paid the required Estate tax and settled the various claims against the Estate, totaling approximately twenty (20) claims, and the only remaining claim is the unmeritorious claim of LCN Construction Corp., now pending before this Honorable Court; (3) That for all their work since April 22, 1988, up to July 1992, or for four (4) years, they were only given the amount of P20,000.00 each on November 28, 1988; and another P50,00.00 each on October 1991; and the amount of P100,000.00 each on July 1992; or a total of P170,000.00 to cover their administration fees, counsel fees and expenses; (4) That through their work, they were able to settle all the testate (sic) claims except the remaining baseless claim of LCN Construction Corp., and were able to dismiss two (2) foreign claims, and were also able to increase the monetary value of the estate from roughly over P1Million to the present P4,738,558.63 as of August 25, 2002 and maturing on September 27, 2002; and the money has always been with the Philippine National Bank, as per the Order of this Honorable Court; (5) That since July 1992, when the co-administrators were paid P100,000.00 each, nothing has been paid to either Administrator Syquia or his client, the widow Consuelo Triviere; nor to the Quasha Law Offices or their clients, the children of the deceased Raymond Triviere;

(6) That as this Honorable Court will notice, Administrator Syquia has always been present during the hearings held for the many years of this case; and the Quasha Law Offices has always been represented by its counsel, Atty. Redentor C. Zapata; and after all these years, their clients have not been given a part of their share in the estate; (7) That Administrator Syquia, who is a lawyer, is entitled to additional Administrator's fees since, as provided in Section 7, Rule 85 of the Revised Rules of Court: "x x x where the estate is large, and the settlement has been attended with great difficulty, and has required a high degree of capacity on the part of the executor or administrator, a greater sum may be allowed" In addition, Atty. Zapata has also been present in all the years of this case. In addition, they have spent for all the costs of litigation especially the transcripts, as out-of-pocket expenses. (8) That considering all the foregoing, especially the fact that neither the Administrator or his client, the widow; and the Quasha Law Offices or their clients, the children of the deceased, have received any money for more than ten (10) years now, they respectfully move that the amount of P1Million be taken from the Estate funds, to be divided as follows: a) P450,000.00 as share of the children of the deceased [Triviere] who are represented by the Quasha Ancheta Pea & Nolasco Law Offices; b) P200,000.00 as attorney's fees and litigation expenses for the Quasha Ancheta Pea & Nolasco Law Offices; c) P150,000.00 as share for the widow of the deceased [Raymond Triviere], Amy Consuelo Triviere; and d) P200,000.00 for the administrator Syquia, who is also the counsel of the widow; and for litigation costs and expenses. LCN, as the only remaining claimant4 against the Intestate Estate of the Late Raymond Triviere in Special Proceedings Case No. M-1678, filed its Comment on/Opposition to the afore-quoted Motion on 2 October 2002. LCN countered that the RTC had already resolved the issue of payment of litigation expenses when it denied the first Motion for Payment filed by Atty. Syquia and Atty. Quasha for

failure of the administrators to submit an accounting of the assets and expenses of the estate as required by the court. LCN also averred that the administrators and the heirs of the late Raymond Triviere had earlier agreed to fix the former's fees at only 5% of the gross estate, based on which, per the computation of LCN, the administrators were even overpaid P55,000.00. LCN further asserted that contrary to what was stated in the second Motion for Payment, Section 7, Rule 85 of the Revised Rules of Court was inapplicable,5 since the administrators failed to establish that the estate was large, or that its settlement was attended with great difficulty, or required a high degree of capacity on the part of the administrators. Finally, LCN argued that its claims are still outstanding and chargeable against the estate of the late Raymond Triviere; thus, no distribution should be allowed until they have been paid; especially considering that as of 25 August 2002, the claim of LCN against the estate of the late Raymond Triviere amounted to P6,016,570.65 as against the remaining assets of the estate totaling P4,738,558.63, rendering the latter insolvent. On 12 June 2003, the RTC issued its Order6 taking note that "the widow and the heirs of the deceased Triviere, after all the years, have not received their respective share (sic) in the Estate x x x." The RTC declared that there was no more need for accounting of the assets and liabilities of the estate considering that: [T]here appears to be no need for an accounting as the estate has no more assets except the money deposited with the Union Bank of the Philippines under Savings Account No. 12097-000656-0 x x x; on the estate taxes, records shows (sic) that the BIR Revenue Region No. 4-B2 Makati had issued a certificate dated April 27, 1988 indicating that the estate taxes has been fully paid.7 As to the payment of fees of Atty. Syquia and the Quasha Law Office, the RTC found as follows: [B]oth the Co-Administrator and counsel for the deceased (sic) are entitled to the payment for the services they have rendered and accomplished for the estate and the heirs of the deceased as they have over a decade now spent so much time, labor and skill to accomplish the task assigned to them; and the last time the administrators obtained their fees was in 1992.8 Hence, the RTC granted the second Motion for Payment; however, it reduced the sums to be paid, to wit:

In view of the foregoing considerations, the instant motion is hereby GRANTED. The sums to be paid to the co-administrator and counsel for the heirs of the deceased Triviere are however reduced. Accordingly, the co-administrator Atty. Syquia and aforenamed counsel are authorized to pay to be sourced from the Estate of the deceased as follows: a) P450,000.00 as share of the children of the deceased who are represented by the Quasha, Ancheta, Pena, Nolasco Law Offices; b) P100,000.00 as attorney's fees and litigation expenses for said law firm; c) P150,000.00 as share for the widow of the deceased Amy Consuelo Triviere; and d) P100,000.00 for the Co-administrator Atty. Enrique P. Syquia and for litigation costs and expenses.9 LCN filed a Motion for Reconsideration10 of the foregoing Order on 2 July 2003, but it was denied by the RTC on 29 October 2003.11 On 13 May 2004, LCN sought recourse from the Court of Appeals by assailing in CA-G.R. SP No. 81296, a Petition for Certiorari, the RTC Orders dated 12 June 2003 and 2 July 2003, for having been rendered with grave abuse of discretion.12 LCN maintained that: (1) The administrator's claim for attorney's fees, aside from being prohibited under paragraph 3, Section 7 of Rule 85 is, together with administration and litigation expenses, in the nature of a claim against the estate which should be ventilated and resolved pursuant to Section 8 of Rule 86; (2) The awards violate Section 1, Rule 90 of the Rules of Court, as there still exists its (LCN's) unpaid claim in the sum of P6,016,570.65; and (3) The alleged deliberate failure of the co-administrators to submit an accounting of the assets and liabilities of the estate does not warrant the Court's favorable action on the motion for payment.13 On 11 May 2006, the Court of Appeals promulgated a Decision essentially ruling in favor of LCN.

While the Court of Appeals conceded that Atty. Syquia and the Quasha Law Office, as the administrators of the estate of the late Raymond Triviere, were entitled to administrator's fees and litigation expenses, they could not claim the same from the funds of the estate. Referring to Section 7, Rule 85 of the Revised Rules of Court, the appellate court reasoned that the award of expenses and fees in favor of executors and administrators is subject to the qualification that where the executor or administrator is a lawyer, he shall not charge against the estate any professional fees for legal services rendered by him. Instead, the Court of Appeals held that the attorney's fees due Atty. Syquia and the Quasha Law Offices should be borne by their clients, the widow and children of the late Raymond Triviere, respectively. The appellate court likewise revoked the P450,000.00 share and P150,000.00 share awarded by the RTC to the children and widow of the late Raymond Triviere, respectively, on the basis that Section 1, Rule 91 of the Revised Rules of Court proscribes the distribution of the residue of the estate until all its obligations have been paid. The appellate court, however, did not agree in the position of LCN that the administrators' claims against the estate should have been presented and resolved in accordance with Section 8 of Rule 86 of the Revised Rules of Court. Claims against the estate that require presentation under Rule 86 refer to "debts or demands of a pecuniary nature which could have been enforced against the decedent during his lifetime and which could have been reduced to simple judgment and among which are those founded on contracts." The Court of Appeals also found the failure of the administrators to render an accounting excusable on the basis of Section 8, Rule 85 of the Revised Rules of Court.14 Finding the Petition for Certiorari of LCN partly meritorious, the Court of Appeals decreed: WHEREFORE, premises considered, the instant petition is hereby PARTLY GRANTED. The assailed Orders of the public respondent are hereby AFFIRMED with MODIFICATION in that (1) the shares awarded to the heirs of the deceased Triviere in the assailed Order of June 12, 2003 are hereby DELETED; and (2) the attorney's fees awarded in favor of the co-administrators are hereby DELETED. However, inasmuch as the assailed order fails to itemize these fees from the litigation fees/administrator's fees awarded in favor of the co-administrators, public respondent is hereby directed to determine with particularity the fees pertaining to each administrator.15

Petitioner filed a Motion for Reconsideration16 of the 11 May 2006 Decision of the Court of Appeals. The Motion, however, was denied by the appellate court in a Resolution dated 22 September 2006,17explaining that: In sum, private respondents did not earlier dispute [herein respondent LCN's] claim in its petition that the law firm and its lawyers served as coadministrators of the estate of the late Triviere. It is thus quite absurd for the said law firm to now dispute in the motion for reconsideration its being a co-administrator of the estate. [Herein petitioners], through counsel, likewise appear to be adopting in their motion for reconsideration a stance conflicting with their earlier theory submitted to this Court. Notably, the memorandum for [petitioner] heirs states that the claim for attorney's fees is supported by the facts and law. To support such allegation, they contend that Section 7 (3) of Rule 85 of the 1997 Rules of Civil Procedure finds no application to the instant case since "what is being charged are not professional fees for legal services rendered but payment for administration of the Estate which has been under the care and management of the co-administrators for the past fourteen (14) years." Their allegation, therefore, in their motion for reconsideration that Section 7 (3) of Rule 85 is inapplicable to the case of Quasha Law Offices because it is "merely seeking payment for legal services rendered to the estate and for litigation expenses" deserves scant consideration. xxxx WHEREFORE, premises considered, private respondents' motion for reconsideration is hereby DENIED for lack of merit. 18 Exhausting all available legal remedies, petitioners filed the present Petition for Review on Certioraribased on the following assignment of errors: I. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE AWARD IN FAVOR OF THE HEIRS OF THE LATE RAYMOND TRIVIERE IS ALREADY A DISTRIBUTION OF THE RESIDUE OF THE ESTATE. II.

THE HONORABLE COURT OF APPEALS ERRED IN NULLIFYING THE AWARD OF ATTORNEY'S FEES IN FAVOR OF THE COADMINISTRATORS I The Court of Appeals modified the 12 June 2003 Order of the RTC by deleting the awards ofP450,000.00 and P150,000.00 in favor of the children and widow of the late Raymond Triviere, respectively. The appellate court adopted the position of LCN that the claim of LCN was an obligation of the estate which was yet unpaid and, under Section 1, Rule 90 of the Revised Rules of Court, barred the distribution of the residue of the estate. Petitioners, though, insist that the awards in favor of the petitioner children and widow of the late Raymond Triviere is not a distribution of the residue of the estate, thus, rendering Section 1, Rule 90 of the Revised Rules of Court inapplicable. Section 1, Rule 90 of the Revised Rules of Court provides: Section 1. When order for distribution of residue made. - When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. According to petitioners, the 12 June 2003 Order of the RTC should not be construed as a final order of distribution. The 12 June 2003 RTC Order granting the second Motion for Payment is a mere interlocutory order that does not end the estate proceedings. Only an order of distribution directing the delivery of the

residue of the estate to the proper distributees brings the intestate proceedings to a close and, consequently, puts an end to the administration and relieves the administrator of his duties. A perusal of the 12 June 2003 RTC Order would immediately reveal that it was not yet distributing the residue of the estate. The said Order grants the payment of certain amounts from the funds of the estate to the petitioner children and widow of the late Raymond Triviere considering that they have not received their respective shares therefrom for more than a decade. Out of the reported P4,738,558.63 value of the estate, the petitioner children and widow were being awarded by the RTC, in its 12 June 2003 Order, their shares in the collective amount of P600,000.00. Evidently, the remaining portion of the estate still needs to be settled. The intestate proceedings were not yet concluded, and the RTC still had to hear and rule on the pending claim of LCN against the estate of the late Raymond Triviere and only thereafter can it distribute the residue of the estate, if any, to his heirs. While the awards in favor of petitioner children and widow made in the RTC Order dated 12 June 2003 was not yet a distribution of the residue of the estate, given that there was still a pending claim against the estate, still, they did constitute a partial and advance distribution of the estate. Virtually, the petitioner children and widow were already being awarded shares in the estate, although not all of its obligations had been paid or provided for. Section 2, Rule 109 of the Revised Rules of Court expressly recognizes advance distribution of the estate, thus: Section 2. Advance distribution in special proceedings. - Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of these rules. (Emphases supplied.) The second paragraph of Section 1 of Rule 90 of the Revised Rules of Court allows the distribution of the estate prior to the payment of the obligations mentioned therein, provided that "the distributees, or any of them, gives a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs." In sum, although it is within the discretion of the RTC whether or not to permit the advance distribution of the estate, its exercise of such discretion should be

qualified by the following: [1] only part of the estate that is not affected by any pending controversy or appeal may be the subject of advance distribution (Section 2, Rule 109); and [2] the distributees must post a bond, fixed by the court, conditioned for the payment of outstanding obligations of the estate (second paragraph of Section 1, Rule 90). There is no showing that the RTC, in awarding to the petitioner children and widow their shares in the estate prior to the settlement of all its obligations, complied with these two requirements or, at the very least, took the same into consideration. Its Order of 12 June 2003 is completely silent on these matters. It justified its grant of the award in a single sentence which stated that petitioner children and widow had not yet received their respective shares from the estate after all these years. Taking into account that the claim of LCN against the estate of the late Raymond Triviere allegedly amounted to P6,016,570.65, already in excess of the P4,738,558.63 reported total value of the estate, the RTC should have been more prudent in approving the advance distribution of the same. Petitioners earlier invoked Dael v. Intermediate Appellate Court,,19 where the Court sustained an Order granting partial distribution of an estate. However, Dael is not even on all fours with the case at bar, given that the Court therein found that: Where, however, the estate has sufficient assets to ensure equitable distribution of the inheritance in accordance with law and the final judgment in the proceedings and it does not appear there are unpaid obligations, as contemplated in Rule 90, for which provisions should have been made or a bond required, such partial distribution may be allowed. (Emphasis supplied.) No similar determination on sufficiency of assets or absence of any outstanding obligations of the estate of the late Raymond Triviere was made by the RTC in this case. In fact, there is a pending claim by LCN against the estate, and the amount thereof exceeds the value of the entire estate. Furthermore, in Dael, the Court actually cautioned that partial distribution of the decedent's estate pending final termination of the testate or intestate proceeding should as much as possible be discouraged by the courts, and, except in extreme cases, such form of advances of inheritance should not be countenanced. The reason for this rule is that courts should guard with utmost zeal and jealousy the estate of the decedent to the end that the creditors thereof be adequately protected and all the rightful heirs be assured of their shares in the inheritance.

Hence, the Court does not find that the Court of Appeals erred in disallowing the advance award of shares by the RTC to petitioner children and the widow of the late Raymond Triviere. II On the second assignment of error, petitioner Quasha Law Office contends that it is entitled to the award of attorney's fees and that the third paragraph of Section 7, Rule 85 of the Revised Rules of Court, which reads: Section 7. What expenses and fees allowed executor or administrator. Not to charge for services as attorney. Compensation provided by will controls unless renounced. x x x. xxxx When the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him. (Emphasis supplied.) is inapplicable to it. The afore-quoted provision is clear and unequivocal and needs no statutory construction. Here, in attempting to exempt itself from the coverage of said rule, the Quasha Law Office presents conflicting arguments to justify its claim for attorney's fees against the estate. At one point, it alleges that the award of attorney's fees was payment for its administration of the estate of the late Raymond Triviere; yet, it would later renounce that it was an administrator. In the pleadings filed by the Quasha Law Office before the Court of Appeals, it referred to itself as co-administrator of the estate. In the Comment submitted to the appellate court by Atty. Doronila, the memberlawyer then assigned by the Quasha Law Office to the case, it stated that: The 12 June 2003 Order granted the Motion for Payment filed by CoAdministrator and counsel Atty. Enrique P. Syquia and the counsel Atty. Cirilo E. Doronila and Co-Administrator for the children of the late Raymond Triviere. x x x.20 (Emphasis supplied.) It would again in the same pleading claim to be the "co-administrator and counsel for the heirs of the late Raymond Triviere."21

Finally, the Memorandum it submitted to the Court of Appeals on behalf of its clients, the petitioner-children of the late Raymond Triviere, the Quasha Law Office alleged that: 2. The petition assails the Order of the Honorable Regional Trial Court of Makati, Branch 63 granting the Motion for Payment filed by CoAdministrators Atty. Enrique P. Syquia and the undersigned counsel together with the children of the deceased Raymond Triviere, and the Order dated 29 October 2003 denying Petitioner's Motion for Reconsideration of the First Order. xxxx I. Statement of Antecedent Facts xxxx 4. On 13 May 2004, Atty. Enrique Syquia, co-administrator and counsel for respondent Amy Consuelo Triviere and the undersigned counsel, coadministrator and counsel for the children of the late Raymond Triviere filed their Comment.22 Petitioner Quasha Law Office asserts that it is not within the purview of Section 7, Rule 85 of the Revised Rules of Court since it is not an appointed administrator of the estate.23 When Atty. Quasha passed away in 1996, Atty. Syquia was left as the sole administrator of the estate of the late Raymond Triviere. The person of Atty. Quasha was distinct from that of petitioner Quasha Law Office; and the appointment of Atty. Quasha as administrator of the estate did not extend to his law office. Neither could petitioner Quasha Law Office be deemed to have substituted Atty. Quasha as administrator upon the latter's death for the same would be in violation of the rules on the appointment and substitution of estate administrators, particularly, Section 2, Rule 82 of the Revised Rules of Court.24 Hence, when Atty. Quasha died, petitioner Quasha Law Office merely helped in the settlement of the estate as counsel for the petitioner children of the late Raymond Triviere. In its Memorandum before this Court, however, petitioner Quasha Law Office argues that "what is being charged are not professional fees for legal services rendered but payment for administration of the Estate which has been under the care and management of the co-administrators for the past fourteen (14) years."25

On the other hand, in the Motion for Payment filed with the RTC on 3 September 2002, petitioner Quasha Law Office prayed for P200,000.00 as "attorney's fees and litigation expenses." Being lumped together, and absent evidence to the contrary, the P200,000.00 for attorney's fees and litigation expenses prayed for by the petitioner Quasha Law Office can be logically and reasonably presumed to be in connection with cases handled by said law office on behalf of the estate. Simply, petitioner Quasha Law Office is seeking attorney's fees as compensation for the legal services it rendered in these cases, as well as reimbursement of the litigation expenses it incurred therein. The Court notes with disfavor the sudden change in the theory by petitioner Quasha Law Office. Consistent with discussions in the preceding paragraphs, Quasha Law Office initially asserted itself as co-administrator of the estate before the courts. The records do not belie this fact. Petitioner Quasha Law Office later on denied it was substituted in the place of Atty. Quasha as administrator of the estate only upon filing a Motion for Reconsideration with the Court of Appeals, and then again before this Court. As a general rule, a party cannot change his theory of the case or his cause of action on appeal.26 When a party adopts a certain theory in the court below, he will not be permitted to change his theory on appeal, for to permit him to do so would not only be unfair to the other party but it would also be offensive to the basic rules of fair play, justice and due process.27 Points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage.28 This rule, however, admits of certain exceptions.29 In the interest of justice and within the sound discretion of the appellate court, a party may change his legal theory on appeal, only when the factual bases thereof would not require presentation of any further evidence by the adverse party in order to enable it to properly meet the issue raised in the new theory.30 On the foregoing considerations, this Court finds it necessary to exercise leniency on the rule against changing of theory on appeal, consistent with the rules of fair play and in the interest of justice. Petitioner Quasha Law Office presented conflicting arguments with respect to whether or not it was coadministrator of the estate. Nothing in the records, however, reveals that any one of the lawyers of Quasha Law Office was indeed a substitute administrator for Atty. Quasha upon his death. The court has jurisdiction to appoint an administrator of an estate by granting letters of administration to a person not otherwise disqualified or incompetent to serve as such, following the procedure laid down in Section 6, Rule 78 of the Rules of Court.

Corollary thereto, Section 2, Rule 82 of the Rules of Court provides in clear and unequivocal terms the modes for replacing an administrator of an estate upon the death of an administrator, to wit: Section 2. Court may remove or accept resignation of executor or administrator. Proceedings upon death, resignation, or removal. x x x. When an executor or administrator dies, resigns, or is removed the remaining executor or administrator may administer the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person. The records of the case are wanting in evidence that Quasha Law Office or any of its lawyers substituted Atty. Quasha as co-administrator of the estate. None of the documents attached pertain to the issuance of letters of administration to petitioner Quasha Law Office or any of its lawyers at any time after the demise of Atty. Quasha in 1996. This Court is thus inclined to give credence to petitioner's contention that while it rendered legal services for the settlement of the estate of Raymond Triviere since the time of Atty. Quasha's death in 1996, it did not serve as co-administrator thereof, granting that it was never even issued letters of administration. The attorney's fees, therefore, cannot be covered by the prohibition in the third paragraph of Section 7, Rule 85 of the Revised Rules of Court against an attorney, to charge against the estate professional fees for legal services rendered by them. However, while petitioner Quasha Law Office, serving as counsel of the Triviere children from the time of death of Atty. Quasha in 1996, is entitled to attorney's fees and litigation expenses of P100,000.00 as prayed for in the Motion for Payment dated 3 September 2002, and as awarded by the RTC in its 12 June 2003 Order, the same may be collected from the shares of the Triviere children, upon final distribution of the estate, in consideration of the fact that the Quasha Law Office, indeed, served as counsel (not anymore as co-administrator), representing and performing legal services for the Triviere children in the settlement of the estate of their deceased father. Finally, LCN prays that as the contractor of the house (which the decedent caused to be built and is now part of the estate) with a preferred claim thereon, it should already be awarded P2,500,000.00, representing one half (1/2) of the proceeds from the sale of said house. The Court shall not take cognizance of and rule on the matter considering that, precisely, the merits of the claim of LCN

against the estate are still pending the proper determination by the RTC in the intestate proceedings below. WHEREFORE, premises considered, the Petition for Review on Certiorari is hereby PARTLY GRANTED. The Decision dated 11 May 2006 and Resolution dated 22 September 2006 of the Court of Appeals in CA-G.R. SP No. 81296 are AFFIRMED, with the following MODIFICATIONS: 1) Petitioner Quasha Law Office is entitled to attorney's fees of ONE HUNDRED THOUSAND PESOS (P100,000.00), for legal services rendered for the Triviere children in the settlement of the estate of their deceased father, the same to be paid by the Triviere children in the manner herein discussed; and 2) Attorneys Enrique P. Syquia and William H. Quasha are entitled to the payment of their corresponding administrators' fees, to be determined by the RTC handling Special Proceedings Case No. M-1678, Branch 63 of the Makati RTC, the same to be chargeable to the estate of Raymond Trieviere. SO ORDERED.

Joinder
FIRST DIVISION G.R. No. 163707 September 15, 2006

MICHAEL C. GUY, petitioner, vs. HON. COURT OF APPEALS, HON. SIXTO MARELLA, JR., Presiding Judge, RTC, Branch 138, Makati City and minors, KAREN DANES WEI and KAMILLE DANES WEI, represented by their mother, REMEDIOS OANES, respondents. DECISION YNARES-SANTIAGO, J.: This petition for review on certiorari assails the January 22, 2004 Decision1 of the Court of Appeals in CA-G.R. SP No. 79742, which affirmed the Orders dated July 21, 20002 and July 17, 20033 of the Regional Trial Court of Makati City, Branch 138 in SP Proc. Case No. 4549 denying petitioner's motion to dismiss; and its May 25, 2004 Resolution4 denying petitioner's motion for reconsideration. The facts are as follows: On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille Oanes Wei, represented by their mother Remedios Oanes (Remedios), filed a petition for letters of administration5 before the Regional Trial Court of Makati City, Branch 138. The case was docketed as Sp. Proc. No. 4549 and entitled Intestate Estate of Sima Wei (a.k.a. Rufino Guy Susim). Private respondents alleged that they are the duly acknowledged illegitimate children of Sima Wei, who died intestate in Makati City on October 29, 1992, leaving an estate valued at P10,000,000.00 consisting of real and personal properties. His known heirs are his surviving spouse Shirley Guy and children, Emy, Jeanne, Cristina, George and Michael, all surnamed Guy. Private respondents prayed for the appointment of a regular administrator for the orderly settlement of Sima Wei's estate. They likewise prayed that, in the meantime, petitioner Michael C. Guy, son of the decedent, be appointed as Special Administrator of the estate. Attached to private respondents' petition was a Certification Against Forum Shopping6 signed by their counsel, Atty. Sedfrey A. Ordoez.

In his Comment/Opposition,7 petitioner prayed for the dismissal of the petition. He asserted that his deceased father left no debts and that his estate can be settled without securing letters of administration pursuant to Section 1, Rule 74 of the Rules of Court. He further argued that private respondents should have established their status as illegitimate children during the lifetime of Sima Wei pursuant to Article 175 of the Family Code. The other heirs of Sima Wei filed a Joint Motion to Dismiss8 on the ground that the certification against forum shopping should have been signed by private respondents and not their counsel. They contended that Remedios should have executed the certification on behalf of her minor daughters as mandated by Section 5, Rule 7 of the Rules of Court. In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss,9 petitioner and his co-heirs alleged that private respondents' claim had been paid, waived, abandoned or otherwise extinguished by reason of Remedios' June 7, 1993 Release and Waiver of Claim stating that in exchange for the financial and educational assistance received from petitioner, Remedios and her minor children discharge the estate of Sima Wei from any and all liabilities. The Regional Trial Court denied the Joint Motion to Dismiss as well as the Supplemental Motion to Dismiss. It ruled that while the Release and Waiver of Claim was signed by Remedios, it had not been established that she was the duly constituted guardian of her minor daughters. Thus, no renunciation of right occurred. Applying a liberal application of the rules, the trial court also rejected petitioner's objections on the certification against forum shopping. Petitioner moved for reconsideration but was denied. He filed a petition for certiorari before the Court of Appeals which affirmed the orders of the Regional Trial Court in its assailed Decision dated January 22, 2004, the dispositive portion of which states: WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED, for lack of merit. Consequently, the assailed Orders dated July 21, 2000 and July 17, 2003 are hereby both AFFIRMED. Respondent Judge is hereby DIRECTED to resolve the controversy over the illegitimate filiation of the private respondents (sic) minors [-] Karen Oanes Wei and Kamille Oanes Wei who are claiming successional rights in the intestate estate of the deceased Sima Wei, a.k.a. Rufino Guy Susim. SO ORDERED.10

The Court of Appeals denied petitioner's motion for reconsideration, hence, this petition. Petitioner argues that the Court of Appeals disregarded existing rules on certification against forum shopping; that the Release and Waiver of Claim executed by Remedios released and discharged the Guy family and the estate of Sima Wei from any claims or liabilities; and that private respondents do not have the legal personality to institute the petition for letters of administration as they failed to prove their filiation during the lifetime of Sima Wei in accordance with Article 175 of the Family Code. Private respondents contend that their counsel's certification can be considered substantial compliance with the rules on certification of non-forum shopping, and that the petition raises no new issues to warrant the reversal of the decisions of the Regional Trial Court and the Court of Appeals. The issues for resolution are: 1) whether private respondents' petition should be dismissed for failure to comply with the rules on certification of non-forum shopping; 2) whether the Release and Waiver of Claim precludes private respondents from claiming their successional rights; and 3) whether private respondents are barred by prescription from proving their filiation. The petition lacks merit. Rule 7, Section 5 of the Rules of Court provides that the certification of nonforum shopping should be executed by the plaintiff or the principal party. Failure to comply with the requirement shall be cause for dismissal of the case. However, a liberal application of the rules is proper where the higher interest of justice would be served. InSy Chin v. Court of Appeals,11 we ruled that while a petition may have been flawed where the certificate of non-forum shopping was signed only by counsel and not by the party, this procedural lapse may be overlooked in the interest of substantial justice.12 So it is in the present controversy where the merits13 of the case and the absence of an intention to violate the rules with impunity should be considered as compelling reasons to temper the strict application of the rules. As regards Remedios' Release and Waiver of Claim, the same does not bar private respondents from claiming successional rights. To be valid and effective, a waiver must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him. A waiver may not be attributed to a person when its terms do not explicitly and clearly evince an intent to abandon a right.14

In this case, we find that there was no waiver of hereditary rights. The Release and Waiver of Claim does not state with clarity the purpose of its execution. It merely states that Remedios received P300,000.00 and an educational plan for her minor daughters "by way of financial assistance and in full settlement of any and all claims of whatsoever nature and kind x x x against the estate of the late Rufino Guy Susim."15 Considering that the document did not specifically mention private respondents' hereditary share in the estate of Sima Wei, it cannot be construed as a waiver of successional rights. Moreover, even assuming that Remedios truly waived the hereditary rights of private respondents, such waiver will not bar the latter's claim. Article 1044 of the Civil Code, provides: ART. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. (Emphasis supplied) Parents and guardians may not therefore repudiate the inheritance of their wards without judicial approval. This is because repudiation amounts to an alienation of property16 which must pass the court's scrutiny in order to protect the interest of the ward. Not having been judicially authorized, the Release and Waiver of Claim in the instant case is void and will not bar private respondents from asserting their rights as heirs of the deceased. Furthermore, it must be emphasized that waiver is the intentional relinquishment of a known right. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact.17 In the present case, private respondents could not have possibly waived their successional rights because they are yet to prove their status as acknowledged illegitimate children of the deceased. Petitioner himself has consistently denied that private respondents are his co-heirs. It would thus be inconsistent to rule that

they waived their hereditary rights when petitioner claims that they do not have such right. Hence, petitioner's invocation of waiver on the part of private respondents must fail. Anent the issue on private respondents' filiation, we agree with the Court of Appeals that a ruling on the same would be premature considering that private respondents have yet to present evidence. Before the Family Code took effect, the governing law on actions for recognition of illegitimate children was Article 285 of the Civil Code, to wit: ART. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases: (1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority; (2) If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child. In this case, the action must be commenced within four years from the finding of the document. (Emphasis supplied) We ruled in Bernabe v. Alejo18 that illegitimate children who were still minors at the time the Family Code took effect and whose putative parent died during their minority are given the right to seek recognition for a period of up to four years from attaining majority age. This vested right was not impaired or taken away by the passage of the Family Code.19 On the other hand, Articles 172, 173 and 175 of the Family Code, which superseded Article 285 of the Civil Code, provide: ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. Under the Family Code, when filiation of an illegitimate child is established by a record of birth appearing in the civil register or a final judgment, or an admission of filiation in a public document or a private handwritten instrument signed by the parent concerned, the action for recognition may be brought by the child during his or her lifetime. However, if the action is based upon open and continuous possession of the status of an illegitimate child, or any other means allowed by the rules or special laws, it may only be brought during the lifetime of the alleged parent. It is clear therefore that the resolution of the issue of prescription depends on the type of evidence to be adduced by private respondents in proving their filiation. However, it would be impossible to determine the same in this case as there has been no reception of evidence yet. This Court is not a trier of facts. Such matters may be resolved only by the Regional Trial Court after a full-blown trial. While the original action filed by private respondents was a petition for letters of administration, the trial court is not precluded from receiving evidence on private respondents' filiation. Its jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate, including the determination of the status of each heir.20 That the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence.21 As held in Briz v. Briz:22

The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. x x x The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil., 62); and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother (Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. WHEREFORE, the instant petition is DENIED. The Decision dated January 22, 2004 of the Court of Appeals in CA-G.R. SP No. 79742 affirming the denial of petitioner's motion to dismiss; and its Resolution dated May 25, 2004 denying petitioner's motion for reconsideration, are AFFIRMED. Let the records be REMANDED to the Regional Trial Court of Makati City, Branch 138 for further proceedings. SO ORDERED.

Rule 91 Escheats
SECOND DIVISION G.R. No. 143483 January 31, 2002

REPUBLIC OF THE PHILIPPINES represented by the REGISTER OF DEEDS OF PASAY CITY, petitioner, vs. COURT OF APPEALS (SPECIAL FORMER 3RD DIVISION) AND AMADA H. SOLANO, assisted by her husband ROMEO SOLANO, respondents. BELLOSILLO , J.: This petition for certiorari seeks to nullify two (2) Resolutions of the Court of Appeals dated 12 November 1998 and 4 May 2000 giving due course to the petition for annulment of judgment filed by private respondent Amada H. Solano on 3 February 1997 and denying petitioner's motion for reconsideration. For more than three (3) decades (from 1952 to 1985) private respondent Amada Solano served as the all-around personal domestic helper of the late Elizabeth Hankins, a widow and a French national. During Ms. Hankins' lifetime and most especially during the waning years of her life, respondent Solano was her faithful girl Friday and a constant companion since no close relative was available to tend to her needs. In recognition of Solano's faithful and dedicated service, Ms. Hankins executed in her favor two (2) deeds of donation involving two (2) parcels of land covered by TCT Nos. 7807 and 7808 of the Registry of Deeds. Private respondent alleged that she misplaced the deeds of donation and were nowhere to be found. While the deeds of donation were missing, the Republic filed a petition for the escheat of the estate of Elizabeth Hankins before the Regional

Trial Court of Pasay City.1 During the proceedings, a motion for intervention was filed by Romeo Solano, spouse of private respondent, and one Gaudencio Regosa, but on 24 June 1987 the motion was denied by the trial court for the reason that "they miserably failed to show valid claim or right to the properties in question."2 Since it was established that there were no known heirs and persons entitled to the properties of decedent Hankins, the lower court escheated the estate of the decedent in favor of petitioner Republic of the Philippines. By virtue of the decision of the trial court, the Registry of Deeds of Pasay City cancelled TCT Nos. 7807 and 7808 and issued new ones, TCT Nos. 129551 and 129552, both in the name of Pasay City. In the meantime, private respondent claimed that she accidentally found the deeds of donation she had been looking for a long time. In view of this development, respondent Amada Solano filed on 28 January 1997 a petition before the Court of Appeals for the annulment of the lower court's decision alleging, among other, that3 13.1. The deceased Elizabeth Hankins having donated the subject properties to the petitioner in 1983 (for TCT No. 7807) and 1984 (for TCT No. 7808), these properties did not and could not form part of her estate when she died on September 20, 1985. Consequently, they could not validly be escheated to the Pasay City Government; 13.2. Even assuming arguendo that the properties could be subject of escheat proceedings, the decision is still legally infirm for escheating the properties to an entity, the Pasay City Government, which is not authorized by law to be the recipient thereof. The property should have been escheated in favor of the Republic of the Philippines under Rule 91, Section 1 of the New Rules of Court x x x x On 17 March 1997 the Office of the Solicitor General representing public respondents RTC and the Register of Deeds (herein petitioner) filed an answer setting forth their affirmative defenses, to wit: (a) lack

of jurisdiction over the nature of the action; and, (b) the cause of action was barred by the statute of limitations. Finding no cogent reason to justify the dismissal of the petition for annulment, the Court of Appeals issued on 12 November 1998 the first of its assailed Resolutions giving due course to the petition for annulment of judgment and setting the date for trial on the merits. In upholding the theory of respondent Solano, the Appeals Court ruled that Herein petitioner invokes lack of jurisdiction over the subject matter on the part of respondent RTC to entertain the escheat proceedings x x x because the parcels of land have been earlier donated to herein petitioner in 1983 and 1984 prior to the death of said Hankins; and therefore, respondent court could not have ordered the escheat of said properties in favor of the Republic of the Philippines, assign them to respondent Pasay City government, order the cancellation of the old titles in the name of Hankins and order the properties registered in the name of respondent Pasay City x x x x The 1997 Rules of Civil Procedure specifically laid down the grounds of annulment filed before this Court, to wit: extrinsic fraud and lack of jurisdiction. Jurisdiction over the subject matter is conferred by law and this jurisdiction is determined by the allegations of the complaint. It is axiomatic that the averments of the complaint determine the nature of the action and consequently the jurisdiction of the courts. Thus whether or not the properties in question are no longer part of the estate of the deceased Hankins at the time of her death; and, whether or not the alleged donations are valid are issues in the present petition for annulment which can be resolved only after a full blown trial x x x x It is for the same reason that respondents espousal of the statute of limitations against herein petition for annulment cannot prosper at this stage of the proceedings. Indeed, Section 4, Rule 91 of the Revised Rules of Court expressly provides that a person entitled to the estate must file his claim with the court a quo within five (5) years from the date of said judgment.

However, it is clear to this Court that herein petitioner is not claiming anything from the estate of the deceased at the time of her death on September 20, 1985; rather she is claiming that the subject parcels of land should not have been included as part of the estate of the said decedent as she is the owner thereof by virtue of the deeds of donation in her favor. In effect, herein petitioner, who alleges to be in possession of the premises in question, is claiming ownership of the properties in question and the consequent reconveyance thereof in her favor which cause of action prescribes ten (10) years after the issuance of title in favor of respondent Pasay City on August 7, 1990. Herein petition was seasonably filed on February 3, 1997 under Article 1144, to wit: Art. 1144. The following actions must be brought within ten years from the time the right of action accrues: (1) Upon a written contract; (2) Upon an obligation created by law; (3) Upon a judgment. And Article 1456, to wit: Art. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes.4 In its Resolution of 4 May 2000 the Court of Appeals denied the motion for reconsideration filed by public respondents Register of Deeds of Pasay City and the Presiding judge of the lower court and set the trial on the merits for June 15 and 16, 2000. In its effort to nullify the Resolutions herein before mentioned, petitioner points out that the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction (a) in denying petitioner's affirmative defenses set forth in its answer and motion for reconsideration, and in setting the case for trial and reception of evidence; and, (b) in giving due course to private respondent's petition

for annulment of decision despite the palpable setting-in of the 5-year statute of limitations within which to file claims before the court a quoset forth in Rule 91 of the Revised Rules of Court and Art. 1014 of the Civil Code. Petitioner argues that the lower court had jurisdiction when it escheated the properties in question in favor of the city government and the filing of a petition for annulment of judgment on the ground of subsequent discovery of the deeds of donation did not divest the lower court of its jurisdiction on the matter. It further contends that Rule 47 of the 1997 Rules of Civil Procedure only provides for two (2) grounds for the annulment of judgment, namely: extrinsic fraud and lack of jurisdiction. As such the discovery of the deeds of donation seven (7) years after the finality of the escheat proceedings is an extraneous matter which is clearly not an instance of extrinsic fraud nor a ground to oust the lower court of its jurisdiction. Petitioner also insists that notwithstanding the execution of the deeds of donation in favor of private respondent, the 5-year statute of limitations within which to file claims before the court a quo as set forth in Rule 91 of the Revised Rules of Court has set in. The present controversy revolves around the nature of the parcels of land purportedly donated to private respondent which will ultimately determine whether the lower court had jurisdiction to declare the same escheated in favor of the state. We rule for the petitioner. Escheat is a proceeding, unlike that of succession or assignment, whereby the state, by virtue of its sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir. In the absence of a lawful owner, a property is claimed by the state to forestall an open "invitation to self-service by the first comers."5 Since escheat is one of the incidents of sovereignty, the state may, and usually does, prescribe the conditions and limits the time within which a claim to such property may be made. The procedure by which the escheated property may be recovered is generally prescribed by statue, and a time limit is imposed within which such action must be brought.

In this jurisdiction, a claimant to an escheated property must file his claim "within five (5) years from the date of such judgment, such person shall have possession of and title to the same, or if sold, the municipality or city shall be accountable to him for the proceeds, after deducting the estate; but a claim not made shall be barred forever."6The 5-year period is not a device capriciously conjured by the state to defraud any claimant; on the contrary, it is decidedly prescribed to encourage would-be claimants to be punctilious in asserting their claims, otherwise they may lose them forever in a final judgment. Incidentally, the question may be asked: Does herein private respondent, not being an heir but allegedly a donee, have the personality to be a claimant within the purview of Sec. 4, Rule 91, of the Revised Rules of Court? In this regard, we agree with the Solicitor General that the case of Municipal Council of San Pedro, Laguna v. Colegio de San Jose, Inc.,7 is applicable at least insofar as it concerns the Court's discussion on who is an "interested party" in an escheat proceeding In a special proceeding for escheat under sections 750 and 751 the petitioner is not the sole and exclusive interested party. Any person alleging to have a direct right or interest in the property sought to be escheated is likewise an interested party and may appear and oppose the petition for escheat. In the present case, the Colegio de San Jose, Inc. and Carlos Young appeared alleging to have a material interest in the Hacienda de San Pedro Tunasan; the former because it claims to be the exclusive owner of the hacienda, and the latter because he claims to be the lessee thereof under a contract legally entered with the former (underscoring supplied). In the instant petition, the escheat judgment was handed down by the lower court as early as 27 June 1989 but it was only on 28 January 1997, more or less seven (7) years after, when private respondent decided to contest the escheat judgment in the guise of a petition for annulment of judgment before the Court of Appeals. Obviously, private

respondent's belated assertion of her right over the escheated properties militates against recovery. A judgment in escheat proceedings when rendered by a court of competent jurisdiction is conclusive against all persons with actual or constructive notice, but not against those who are not parties or privies thereto. As held inHamilton v. Brown,8 "a judgment of escheat was held conclusive upon persons notified by advertisement to all persons interested. Absolute lack on the part of petitioners of any dishonest intent to deprive the appellee of any right, or in any way injure him, constitutes due process of law, proper notice having been observed." With the lapse of the 5-year period therefore, private respondent has irretrievably lost her right to claim and the supposed "discovery of the deeds of donation" is not enough justification to nullify the escheat judgment which has long attained finality. In the mind of this Court the subject properties were owned by the decedent during the time that the escheat proceedings were being conducted and the lower court was not divested of its jurisdiction to escheat them in favor of Pasay City notwithstanding an allegation that they had been previously donated. We recall that a motion for intervention was earlier denied by the escheat court for failure to show "valid claim or right to the properties in question."9 Where a person comes into an escheat proceeding as a claimant, the burden is on such intervenor to establish his title to the property and his right to intervene. A fortiori, the certificates of title covering the subject properties were in the name of the decedent indicating that no transfer of ownership involving the disputed properties was ever made by the deceased during her lifetime. In the absence therefore of any clear and convincing proof showing that the subject lands had been conveyed by Hankins to private respondent Solano, the same still remained, at least before the escheat, part of the estate of the decedent and the lower court was right not to assume otherwise. The Court of Appeals therefore cannot perfunctorily presuppose that the subject properties were no longer part of the decedent's estate at the time the lower court handed down its decision on the strength of a belated allegation that the same had previously been disposed of by

the owner. It is settled that courts decide only after a close scrutiny of every piece of evidence and analyze each case with deliberate precision and unadulterated thoroughness, the judgment not being diluted by speculations, conjectures and unsubstantiated assertions. WHEREFORE, the petition is GRANTED. The assailed Resolution of the Court of Appeals dated 12 November 1998 giving due course to the petition for annulment of judgment, and its Resolution dated 4 May 2000 denying petitioner's motion for reconsideration, are SET ASIDE. The decision of the RTC-Br. 114, Pasay City, dated 27 June 1989, is REINSTATED. SO ORDERED.

Guardians and Guardianship Guardianship over Incompetents

Rule 92 Venue
SECOND DIVISION G.R. No. L-33152 January 30, 1982 LUIS PARCO and VIRGINIA BAUTISTA, petitioners, vs. HONORABLE COURT OF APPEALS, HON. UNION C. KAYANAN, Judge, COURT OF FIRST INSTANCE OF QUEZON (BRANCH IV), CALAUAG, and FRANCISCO RODRIGUEZ, JR., Legal Guardian of the Incompetent SOLEDAD RODRIGUEZ, respondents.

DE CASTRO, J.: By this petition for review on certiorari, petitioners seek to set aside the Resolution of the Court of Appeals dated January 20, 1971 1 which revived and declared in full force and effect its decision on August 20, 1970 2 dismissing the petition for certiorari with preliminary injunction in CA-G.R. No. 43732, entitled "Luis Parco, et al. vs. Hon. Judge of the Court of First Instance of Quezon, Branch IV, Calauag, et al., " and pray that the decision dated April 15, 1969 3 and all subsequent orders 4 issued by respondent Judge of Branch IV-Calauag, Court of First Instance of Quezon in Special Proceedings No. 2641 be declared as null and void. This case, G. R. No. L-33152, started from Special Proceedings No. 2641. a guardianship proceedings for the incompetent Soledad Rodriguez of Sriaya, Quezon, which originally pertained to Branch 1, Court of First Instance of Quezon, then presided by the late Hon. Judge Vicente Arguelles, 5 later on succeded by Hon. Judge Ameurfina Melencio-Herrera (now Associate Justice of the Supreme Court). In 1966, respondent Judge of Branch IV-Calauag of the Court of First Instance of Quezon, Hon. Union C. Kayanan, took cognizance of Special Proceedings No. 2641 when the Secretary of Justice authorized respondent Judge to help unclog the docket of Branch I at Lucena City, Quezon. For clarity, We have hereunder summarized the sequence of events and material dates as it appears in the records from the time respondent Judge of Branch IV of the Court of First Instance of Quezon took cognizance of Special Proceedings No. 2641.

On December 20, 1966, respondent Judge authorized and approved, upon motion of Fransisco Rodriguez, Jr. (guardian of Soledad Rodriguez), hereinafter referred to as private respondent, the sale to Luis Parco and Virginia Bautista, hereinafter referred to as the petitioners, of Lot Nos. 3437 (613 sq. meters) and 4389 (4,068 sq. meters) covered by TCT Nos. 16939 and 18035, respectively, for the sum of P4,400.00 for the support, maintenance and medical treatment of the ward Soledad Rodriguez. On January 6, 1967, respondent Judge again approved and authorized, upon motion of private respondent, the sale to petitioners of Lot No. 1207 covered by TCT No. 16944 containing an area of 63,598 sq. meters, more or less, for the same reason. All the sales of the three (3) lots being absolute, new transfer certificates of title were issued in the name of petitioners. On May 13, 1968, or almost one year and five months from the approval of the sale of Lot Nos. 3437, 4389, and 1207, private respondent filed an urgent petition in the Court of First Instance of Quezon, Ninth Judicial District, invoking Section 6 Rule 96 of the Revised Rules of Court, praying that an order be immediately issued requiring petitioners to appear before the court so that they can be examined as regards the three (3) lots in question which are allegedly in danger of being lost, squandered, concealed and embezzled and upon failure to do so or to comply with any order that may be issued in relation therewith to hold them in contempt of court. The pertinent allegations read as follows: xxx xxx xxx 1. That as legal guardian (private respondent) of the abovenamed incompetent and upon authorization by this Hon. Court he has transferred in good faith to the spouses LUIS PARCO and VIRGINIA (UY) BAUTISTA, both of Atimonan, Quezon, the titles over the following realties belonging to his ward, namely: a. A parcel of land (Lot No. 3437 of the Cadastral Survey of Sariaya) with the improvements thereon situated in the Municipality of Sariaya ... containing an area of Six Hundred Thirteen (613) sq. meters, more or less; b. A parcel of land (Lot No. 4389 of the Cadastral Survey of Sariaya) situated in the Municipality of Sariaya ... containing an area of Four Thousand And Sixty-Eight (4,068) sq. meters, more or less;

c. A parcel of land (Lot No. 1207 of the Cadastral Survey of Sariaya) situated in the Municipality of Sariaya ... containing an area of Sixty-three Thousand Five Hundred and Ninety-eight (63,598) sq. meters, more or less. 2. That anent the first TWO (2) PARCELS above-described he transferred the titles thereto in favor of the recited spouses under a loan agreement (not an absolute sale thereto and with the express commitment in writing that he can recover the same within three (3) months from December 19, 1966, ... That prior to the expiration of the cited period of three months, he tried to recover the stated two parcels of land from them, however, the same was not carried out because he was then transacting with them the sale of PARCEL THREE and under the Agreement that they will not sell cede, or convey the mentioned two (2) lots to anyone (except to petitioner now private respondent herein) and once the stated PARCEL THREE has been sold at the price of P48,000.00 the borrowed amount of P4,400.00 shall be deducted therefrom and said two parcels shall be returned to him; 3. That recently, he discovered that the cited couple, in bad faith and in violation of their agreement and of the trust and confidence which he had reposed upon them, have fraudulently ceded and transferred the titles over the stated two parcels of land to another person, allegedly for a price of (over P30,000.00) and in spite of his repeated request upon them to reconvey to him the titles thereto or to turn over to him the total proceeds they have received (minus the sum of P4,400.00), they have maliciously and unjustly refused to do so, and are intending to keep and retain said amount for their own personal use and benefit; 4. That as already adverted to in the previous paragraph hereof, the mentioned couple induced him to transfer to them the title of parcel three, so that they can sell the same for the agreed price of P48,000.00 and believing in good faith that the cited spouses are honest and trustworthy, he agreed and executed the requisite document transferring the title to them subject to the following conditions:

a. They shall pay to him the amount of Twelve Thousand (Pl2,000.00) Pesos after they have secured a buyer of the property, ... b. They shall pay to NIEVES ALCALA and PURA AGCAOILE (who are private respondent's agents and representatives in negotiating the sale of parcel three) the sum of Fifteen Thousand (P15,000.00) Pesos after they have sold the realty, ... 5. That recently, he discovered that the cited couple have already sold and ceded the mentioned parcel three to another person, and despite his repeated request upon them to pay and deliver to him or to Nieves Alcala the sum of money specified in the foregoing paragraph, they have maliciously and unjustly failed and refused to do so, and have fraudulently retained the said amount of money for thier own personal use and benefit; 6. That the enumerated parcels of land together with all the proceeds derived therefrom, undeniably belonged to his ward as trust properties, which are subject to the disposition of this Hon. Court, and due to the mentioned fraudulent, malicious and dishonest acts of the above- named couple, are in danger of being lost, squandered, concealed and embezzled; xxx xxx xxx In an answer dated June 5, 1968, petitioners contended mainly, among others, that the three lots have been conveyed to them by deeds of absolute sale which were duly approved by the guardianship court. Pre-trial hearings were set for possible amicable settlement beginning on September 6, 1968 but was postponed and reset to October 9, 1968 on petitioners' counsel motion. On October 9, 1968, both parties and their counsels appeared but failed to reach any amicable settlement. Again, the pre-trial hearing was reset to November 28 and 29, 1968 but was likewise postponed to January 8, 1969 at petitioners' counsel motion. On January 8, 1969, for failure to petitioners and their counsel to appear although there was a telegram requesting for postponement, respondent Judge issued an order, 6 authorizing private respondent to present evidence before the Clerk of Court who was instructed to make the corresponding report which shall be made as the basis of this decision.

In a petition dated January 30, 1969, petitioners prayed for the reconsideration of the order of January 8, 1969 pointing out, among others, that there was a First Order dated July 29, 1968, 7 issued by then Judge Ameurfina M. Herrera, Presiding Judge of Branch I, Court of First Instance of Quezon that said branch "will henceforth take cognizance of this case" and thus, asked for the transfer of the incident sought before Branch IV to Branch I for proper action. On February 20, 1969, respondent Judge, finding the petition for reconsideration well-grounded, issued an order directing the Clerk of Court to transmit the records of the case to the Court of First Instance, Branch I, Lucena City, quoted below: ORDER Acting on the Petition for Reconsideration filed by counsel for the respondent on February 4, 1969, considering that Hon. A. MelencioHerrera, Presiding Judge of Branch 1, CFI, Lucena City, issued an order on July 29, 1968, the dispositive portion of which is quoted as follows. 'WHEREFORE, it is hereby confirmed that this court will henceforth take cognizance of this case,' and considering that this special proceedings actually belongs to Branch I, although incidents therein were taken cognizance of by the Presiding Judge of CFI, Branch IV when he was holding court session in Lucena City and notwithstanding Administrative Order No. 261 dated October 7, 1968 which states that 'This administrative order shall not apply to cases pending in the different salas which have been partially tried and shall remain therein for final disposition', because to case was originally filed during the incumbency of the late Judge Vicente Arguelles, finding therefore the said petition to be well-grounded, the Clerk of Court is hereby authorized to transmit these records to the Deputy Clerk of Court, CFI, Branch I, of Lucena City. SO ORDERED. Given at Calauag, Quezon this 20th day of February, 1969. (SGD.) UNION C. KAYANAN Judge On March 24, 1969, Private respondent, without the assistance of a counsel, filed before Branch IV, Court of First Instance of Quezon an amended petition praying that the three (3) lots subject matter of the original urgent petition be ordered reconveyed to the ward in said Special Proceedings No. 2641 for he was informed that petitioners win transfer and properties to third person.

On March 26, 1969, the Clerk of Court of Branch IV, Court of First Instance of Quezon, issued the notice of hearing of the amended petition filed by private respondent dated March 24, 1969 notifying counsel for both parties that the case will be heard before Branch IV on April 10, 1969 at 2:30 p.m. at Calauag, Quezon. On the date set for hearing, counsels for both parties appeared but for failure of the petitioners to appear respondent Judge issued an order 8 reiterating its previous order dated January 8, 1969 allowing private respondent to present his evidence ex-parte and considered the case submitted for resolution. On April 15, 1969, respondent Judge rendered a decision 9 on the basis of the report of the Clerk of Court dated February 19, 1969 ordering petitioners to reconvey the three (3) parcels of land to private respondent. On June 14, 1969, petitioners moved to reconsider the decision stating, among others, that respondent Judge has no authority to take cognizance of the case which, according to petitioners, is an issue raised in the petition for reconsideration of the court order of January 8, 1969, and that the decision was without legal basis. Petitioners prayed that the case or incident be transferred to the proper court which had taken cognizance of this case. On June 23, 1969, respondent Judge denied the petition for reconsideration for lack of merit. Petitioners' counsel received the said order of denial on June 26, 1969. Meanwhile, on June 21, 1969, private respondent filed an urgent motion in Branch IV praying that petitioners be required to appear before the court to be examined as regards the properties of the ward and to explain why they should not be cited for contempt for not complying with a final order of the court directing the reconveyance of the three (3) parcels of land to private respondent. On June 23, 1969, respondent Judge, acting on the urgent motion, issued an order 10 directing petitioners to explain why they should not be cited for contempt of court pursuant to par. (b) Section 3 Rule 71 of the Revised Rules of Court. On June 27, 1969, petitioners filed an urgent motion claiming that the urgent motion for contempt of court was premature considering that the decision ordering the reconveyance of the properties in question has not yet become final and executory and is still subject to appeal. In their prayer for the setting aside of the order of June 23, 1969, petitioners informed the court that they win appeal the decision to the Court of Appeals and that the corresponding notice of appeal, appeal bond and the record on appeal will be filed in due time.

The following day, June 28, 1969, petitioners filed the notice of appeal and appeal bond with a manifestation that the record on appeal will be filed in due time. On July 3, 1963, respondent Judge issued an order 11 denying for lack of merit petitioners' urgent motion of June 27, 1969, thus declaring that the order dated June 23, 1969 stands considering that petitioners' right to appeal has already lapsed. In the same order, petitioners were given ten (10) days upon receipt to explain why they should not be cited for contempt pursuant to Section 4, Rule 71 in relation to Section 6, Rule 96 of the Revised Rules of Court. On July 7, 1969, petitioners filed a petition for extension of ten (10) days to expire on July 20, 1969 within which to file the record on appeal. In an order 12 dated July 9, 1969, respondent Judge denied the said petition for having been filed beyond the reglementary period. On July 10, 1969, petitioners filed an unverified second petition for reconsideration of the decision dated April 15, 1969 and the order of July 3, 1969 contending that Branch IV lost its jurisdiction over the raise from the time the order dated February 20, 1969 was issued by Judge A. Melencio- Herrera; that the proceedings under Section 6 Rule 96 do not authorize the Hon. Court (Branch IV) to determine the question of right over the property or to order delivery thereof; that the purpose is merely to elicit information or secure evidence from the person suspected of having embezzled, concealed or conveyed away any personal property of the ward; that if the court finds sufficient evidence showing ownership on the part of the ward, it is the duty of the guardian to bring the proper action. On the other hand, on July 17, 1969, a motion for reconsideration of the order dated July 9, 1969 was filed by petitioners claiming that all the pleadings related to the intended appeal were filed within the period allowed by the Revised Rules of Court. After an opposition was filed, respondent Judge issued an order on 13 July 18, 1969 denying the second petition for reconsideration for lack of basis and on the ground that the period to appeal either the decision or any of the previous orders had already expired. On August 20, 1969, petitioners went to the Court of Appeals on a petition for certiorari with preliminary injunction pleading nullity of the decision of the Court of First Instance, Branch IV, Quezon dated April 15, 1969 on grounds of lack of jurisdiction and grave abuse of discretion in denying their right of appeal.

On September 27, 1969, the Court of Appeals dismissal the petition for lack of merit. 14 On motion by petitioners, the dismissal was reconsidered in a split resolution dated December 15, 1969 thereby giving due course to the petition, and private respondent was required to answer. After private respondent filed their answer and the parties submitted their respective memoranda, the Court of Appeals, in a three-to-two vote decision 15 dated August 21, 1970 dismissed the petition. On motion for reconsideration filed by petitioners, the Court of Appeals, in a split resolution 16 dated October 10, 1970 granted the motion for reconsideration and set aside the decision dated August 20,1970. However, upon motion for reconsideration filed by private respondent, the Court of Appeals, in a three-to-two vote resolution 17 dated January 20, 1971, reverted to its decision of August 21, 1970 dismissing the petition. Hence, the instant petition for review on the following assignment of errors, to wit: I THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED IN SUSTAINING THE RETENTION BY THE RESPONDENT JUDGE OF BRANCH IV-CALAUAG OF THE CASE OF BRANCH I-LUCENA CITY AFTER HE ORDERED THE RETURN OF THE CASE TO BRANCH I,LUCENA CITY TO WHICH THE CASE BELONGS AND AFTER THE PRESIDING JUDGE OF BRANCH I LUCENA CITY HAD RESUMED AND EXERCISED HER JURISDICTION OVER SAID CASE. II ASSUMING THAT THE RESPONDENT JUDGE COULD LEGALLY AND VALIDLY RETAIN JURISDICTION OVER THE CASE OF BRANCH I LUCENA CITY DESPITE THE CIRCUMSTANCES ADVERTED TO IN THE FIRST ASSIGNED ERROR, THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED IN SANCTIONING THE RESPONDENT JUDGE'S ASSUMPTION OF JURISDICTION TO ADJUDICATE THE ISSUE OF OWNERSHIP AND/OR ORDER RECONVEYANCE OF PETITIONERS' PROPERTY SOLD TO THEM AND TITLED IN THEIR NAMES, NOTWITHSTANDING THE LIMITED JURISDICTION OF A GUARDIANSHIP COURT.

III THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE JUDICIAL AUTHORITY AND APPROVAL OF THE SALES ARE CONCLUSIVE UPON THE VALIDITY AND REGULARITY OF SAID SALES BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST. IV THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED IN SANCTIONING BY SILENCE THE QUESTIONED ORDER OF THE RESPONDENT JUDGE ENFORCING HIS DECISION BY CONTEMPT PROCEEDINGS. THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF APPEALS ERRED IN SANCTIONING DENIAL OF PETITIONERS' RIGHT TO APPEAL. This petition was given due course in view of the peculiar incidents during its trial stage where, as borne out by the records, two (2) branches of the Court of First Instance of Quezon Province, 9th Judicial District assert jurisdiction over Special Proceedings No. 2641, which, when the decision rendered by one branch was brought in the Court of Appeals on certiorari with preliminary injunction, the Special Division of Five Justices, in a three-to-two vote resolution in four (4) occasions after its dismissal for lack of merit on September 27, 1968, reconsidered the same and was given due course on December 15, 1968, again dismissed on August 21, 1970, but again reconsidered on October 10, 1970, until finally dismissed on January 20, 1971 when the Special Division of Five reverted to its August 21, 1970 resolution. The Special Division was equally split on the issue whether or not the Court of First Instance, Branch IV, Calauag, Quezon, acting with limited jurisdiction as a guardianship court under Section 6 Rule 96 of the Rules of Court, has the authority to adjudicate the question of ownership and order the reconveyance of the three (3) parcels of land in question to private respondent, guardian of the ward Soledad Rodriguez. On these two (2) principal issues, We are called upon to finally resolve the legal controversy peculiar on this case. After the parties submitted their respective briefs, the case was deemed submitted for decision on October 28, 1971.

In a Resolution 18 of this Court dated November 29, 1978, the urgent manifestation and motion of Leonisa S. Rodriguez, the surviving spouse of Mario Rodriguez (brother of the ward) that the ward Soledad Rodriguez died on September 15, 1970 and private respondent Francisco Rodriguez, Jr. died on October 24, 1973; and that the heirs of the ward be substituted as the private respondents in this case was noted. To begin with, the principal issue al hand is whether or not respondent Judge of the Court of First Instance of Quezon, Branch IV-Calauag has the authority or power to take further action in Special Proceedings No. 2641 after the Presiding Judge of the Court of First Instance of Quezon, Branch I-Lucena City asserted its jurisdiction by issuing two (2) orders dated July 29, 1968 and respondent Judge correspondingly ordered the return of the case to Branch I in an order dated February 20,1969. Petitioners maintain that respondent Judge of Branch IV, Court of First Instance of Quezon has no power or authority to retain jurisdiction over Special Proceedings No. 2641 which, at its inception, originally pertained to Branch ILucena City, Court of First Instance of Quezon. To support such chum, petitioners contend that the Second Order dated July 29, 1968 requiring private respondent for an inventory and accounting of the ward's property confirms that the Presiding Judge of Branch I has resumed its jurisdiction over said case, more so, when respondent Judge ordered on February 20, 1969 the transmittal of the records of the case to the Deputy Clerk of Court, Court of First Instance, Branch I-Lucena City. Private respondent, on the other hand, justifies the retention of jurisdiction by respondent Judge over Special Proceedings No. 2641 contending, among others, that the two (2) orders dated July 29, 1968 issued by then Judge A. Melencio-Herrera are not sufficient bases for claiming that Branch IV has been deprived of its, jurisdiction because jurisdiction is vested upon the court not upon any particular branch or judge thereof and the issuance of such orders constitute undue interference with the processes and proceedings already undertaken by respondent Judge; that petitioners are guilty of estoppel when they failed to raise the issue of jurisdiction from the very beginning and when they voluntarily appeared before respondent Judge, filed their answer and other pleadings, and moved for postponements of the scheduled dates of hearing. We sustain petitioners' stand. Of course, jurisdiction is vested in the court not in any particular branch or judge, and as a corollary rule, the various branches of the Court of First Instance of a judicial district are a coordinate and co-equal courts 19 one branch stands on the same level as the other. Undue interference by one on the proceedings and processes of another is prohibited by law. In the language of this Court, the various branches of the Court of First Instance of a province or city, having as they have the same or equal authority and exercising

as they do concurrent and coordinate jurisdiction should not, cannot, and are not permitted to interfere with their respective cases, much less with their orders or judgments. 20 A contrary rule would obviously lead to confusion and might seriously hinder the administration of justice. A judge is competent to act so long as the case remains before him, but after it passed from his branch to the other, the case could be acted upon by the judge of the latter branch. 21 Otherwise, an anomalous situation would occur at the detriment of the party litigants who are likewise confused where to appear and plead their cause. In the case before Us, there is no dispute that both Branch I and Branch IV of the Court of First Instance of Quezon, have jurisdiction over the subject matter, a guardianship proceedings under Section 1, Rule 92 of the Rules of Court and Section 44(a) of the Judiciary Act of 1948. While it is recognized that when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches, 22 We are of the view however, considering the unusual circumstances and incidents attendant in this case the situation in the case at bar is different. Here, it must be noted that the Presiding Judge of Branch I asserted and resumed its prior jurisdiction by issuing two (2) orders, one of which requires private respondent to render an inventory and accounting of the property of the ward. On the other hand, respondent Judge of Branch IV, in confirmation of such resumption of jurisdiction, ordered the return of the records of Special Proceedings No. 2641 to Branch ILucena City, Court of First Instance of Quezon, but, instead of regularly relinquishing jurisdiction over the case, respondent Judge continued to take further action on the case in total disregard of the two (2) orders of the Presiding Judge of Branch I. Should one branch be permitted to equally assert, assume or retain jurisdiction over a case or controversy over which another coordinate or co-equal branch has already resumed its jurisdiction, We would then sanction undue interference by one branch over another. With that, the judicial stability of the decrees or orders of the courts would be a meaningless precept in a wellordered administration of justice. There is no question that the prior proceedings had in Branch IV by respondent Judge were valid and regular as they were admittedly authorized by the Secretary of Justice. It must be emphasized however, that Branch IV lost its jurisdiction over Special Proceedings No. 2641 when respondent Judge ordered the return of the records to Branch I after having been informed in a motion for reconsideration filed on January 30, 1969 of the existence of the two (2) orders issued by the Presiding Judge of Branch 1. From that point of time, all subsequent proceedings and processes in connection with or related to Special Proceedings No. 2641 undertaken by the respondent Judge became irregular. It amounted to an undue interference with the processes and proceedings of Branch I.

Nevertheless, from the standpoint of the pertinent law on the matter, it may be observed that the detail of respondent Judge of Branch IV stationed permanently in Calauag, Quezon to Branch I in Lucena City, Quezon authoritatively rests on the provision of Section 51 of the Judiciary Act of 1948 which reads: Section 51. Detail of judge to another district or province.-Whenever a judge stationed in. any province or branch of a court in a province shag certify to the Secretary of Justice that the condition of the docket in his court is such as to require the assistance of an additional judge, or when there is any vacancy in any court or branch of a court in a province, the Secretary of Justice may, in the interest of justice, with the approval of the Supreme Court and for a period of not more than three months for each time, assign any judge of any court or province, whose docket permits his temporary absence from said court, to hold sessions in the court needing such assistance or whether such vacancy exists. No judge so detailed shall take cognizance of any case when any of the parties thereto objects and the objection is sustained by the Supreme Court. (emphasis supplied) xxx xxx xxx Apparently, when the circumstances contemplated under Section 51 of the Judiciary Act of 1948 occur, the detailed Judge holds sessions in the court needing such assistance or where such vacancy exists as if he is the presiding judge of that particular branch where the clogged docket or vacancy exists. The detailed Judge does not hold sessions therein as if he is the Presiding Judge of the branch where he is originally or permanently designated. In the case before Us, respondent Judge Kayanan was duly authorized to help unclog the docket of Branch I stationed in Lucena City, Quezon which at that time was rendered vacant due to the death of Judge Vicente Arguelles. When respondent Judge Kayanan took cognizance of the cases left by Judge Arguelles, pending the designation of a replacement, he merely sits as a judge of Branch I, Court of First Instance of Quezon Province. In the event of designation of a new Presiding Judge of Branch 1, accepted practice and procedure of speedy administration of justice requires that the detailed judge turns over the cases he took cognizance of to the new Presiding Judge. Justification for the continued retention of jurisdiction over those cases in the case at bar appears to be not convincing. We find no plausible indication how estoppel could operate against petitioners. It is true that petitioners filed their answer to the urgent petition of private respondent and appeared before respondent Judge of Branch IV without questioning the latter's authority to hear the case. The answer to the urgent

petition of private respondent dated May 13, 1968 was filed by petitioners on June 5, 1968 or almost two (2) months before Judge Melencio-Herrera of Branch I issued the two (2) orders dated July 29, 1968 asserting jurisdiction over the case. The appearances of petitioners and counsel in the sala of respondent Judge during the intervening period from July 29, 1968 were apparently due to the fact that petitioners came to know only of the two orders of Branch I when they examined the records of the case prompted by the manifestation of the counsel of private respondent, in the course of the proceedings in Branch IV, to submit for an accounting in connection with the administration of the properties of the ward Soledad Rodriguez. Petitioners manifested such information to respondent Judge in a petition for reconsideration of the order of January 8, 1968 authorizing the presentation of evidence ex parte. The silence or inaction of petitioners was therefore due to their lack of knowledge of respondent Judge's lack of authority to retain or take further action on the case. Such lack of authority was confirmed when respondent Judge, acting on the petition for reconsideration dated January 30, 1969, issued on February 20, 1969 an order authorizing the return of the records of the case to Branch I. In claiming that the records referred to by the order concern the first portion of the records of Special Proceedings No. 2641 and not the second portion containing the urgent petition filed by private respondent on May 13, 1968, private respondent would then encourage split jurisdiction of courts which is abhorred by the law. Assuming that Branch IV-Calauag, Court of First Instance of Quezon has jurisdiction over Special Proceedings No. 2641 notwithstanding the attendant circumstances adverted to earlier, We now dwell on another issue, which standing alone would decisively resolve the assigned errors raised in this petition, that is, whether or not Branch IV exercising limited and special, jurisdiction as a guardianship court under Section 6 Rule 96 of the Rules of Court has jurisdiction to order the delivery or reconveyance of the three parcels of land in question to the ward, represented herein by private respondent. In two leading cases, Castillo vs. Bustamante, 64 Phil. 839 and Cui vs. Piccio et al, 91 Phil. 712, this Court laid the rule on the issue raised before Us as interpreted in the light of Section 6 Rule 96 of the Rules of Court which reads: Section 6. Proceedings when person suspected of embezzling or concealing property of the ward. Upon complaint of the guardian or ward, or of any person having actual or prospective interest in the estate of the ward as creditor, heir, or otherwise, that anyone is suspected of having embezzled, concealed, or conveyed away any money, goods, or interest, or a written instrument, belonging to the ward or his estate, the court may cite the suspected person to appear for examination touching such money, goods, interests, or

instrument, and make such orders as will secure the estate against such embezzlement, concealment or conveyance. In Cui vs. Piccio et al., supra, this Court held that the jurisdiction of the court in guardianship proceedings, ordinarily, is to cite persons suspected of having embezzled, concealed or conveyed the property belonging to the ward for the purpose of obtaining information which may be used in an action later to be instituted by the guardian to protect the right of the ward. Generally, the guardianship court exercising special and limited jurisdiction cannot actually order the delivery of the property of the ward found to be embezzled, concealed or conveyed. In a categorical language of this Court, only in extreme cases, where property clearly belongs to the ward or where his title thereto has been already judicially decided, may the court direct its delivery to the guardian. 23 In effect, there can only be delivery or return of the embezzled, concealed or conveyed property of the ward, where the right or title of said ward is clear and undisputable. However, where title to any property said to be embezzled, concealed or conveyed is in dispute, under the Cui case, the determination of said title or right whether in favor of the person said to have embezzled, concealed or conveyed the property must be determined in a separate ordinary action and not in guardianship proceedings. In the case at bar, We are not prepared to say, at this premature stage, whether or not, on the basis alone of the pleadings of the parties in the trial court, the title or right of the ward Soledad Rodriguez over the three (3) parcels of land in question is clear and undisputable. What is certain here is the fact that the sale of the properties in question were duly approved by the respondent Judge in accordance with the provisions on selling and encumbering of the property of the ward under Rule 97 of the Rules of Court. It must be noted that while the original urgent petition dated May 13, 1968 prayed for the examination of petitioners herein regarding the alleged concealing, conveyancing and embezzling of the questioned properties, the amended petition dated March 24, 1969 asked for reconveyance. Moreover, it may be observed that private respondent contended that the sale of the first two lots was actually a loan agreement with right of recovery while that of the third lot was subject to condition, hence, a fictitious or simulated sale. On the other hand, according to petitioners, the sales were all absolute and protected by the Torrens System since new transfer certificate of titles were issued in their name. Apparently, there is a cloud of doubt as to who has a better right or title to the disputed properties. This, We believe, requires the determination of title or ownership of the three parcels of land in dispute which is beyond the jurisdiction of the guardianship court and should be threshed out in a separate ordinary action not a guardianship proceedings as held in Cui vs. Piccio supra.

The ruling in Castillo vs. Bustamante, 64 Phil. 839, relied upon by private respondent finds no application in the instant case. As differentiated from the case at bar, in Castillo case, the right or title of the ward to the property in dispute was clear and undisputable as the same was donated to her through compromise agreement approved by the court which title had the authority of res judicata. As enunciated above, the right or title of the ward to the properties in question is in dispute and as such should be determined in a separate ordinary action. Furthermore, private respondent's claim that petitioners are barred by laches to raise the issue of jurisdiction is without merit. In support of such claim, private respondent invoked the exception laid down in Tijam vs. Sibonghanoy, 23 SCRA 29, to the rule that the lack of jurisdiction over the subject matter is fatal and may be raised at any stage of the proceedings; that it is conferred only by law, and in the manner prescribed by law and an objection on the lack of jurisdiction cannot be waived by the parties; and the infirmity cannot be cured by silence, acquiescence, or even by express consent, or win of the parties. 24 The doctrine laid down in Tijam vs. Sibonghanoy, supra, and in the latter case of Rodriguez vs. Court of Appeals,29 SCRA 419 is not applicable in the case at bar. In Tijam case, the appellant had all the opportunity to challenged the court's jurisdiction in the court a quo as well as in the Court of Appeals but instead invoked its jurisdiction to obtain affirmative relief and submitted its case for final adjudication on the merits. It was only after an adverse decision was rendered by the Court of Appeals and fifteen (15) years later from the inception of the case that it finally chose to raise the question of j jurisdiction. I t is clear that t the circumstances present in Tijam case are not present here. The petitioners in the instant case challenged the authority of the trial court to take further cognizance of the case the moment they become aware of Branch I assuming jurisdiction. The lack of jurisdiction was raised in a petition for reconsideration of the order dated January 8, 1969, in a petition for reconsideration of the decision dated April 15, 1969, in a second petition for reconsideration of the said decision, and alleged as an additional ground in the petition for certiorari in the Court of Appeals. In any case, the operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel. 25 As respondent trial court has no jurisdiction, We deem it unnecessary to pass upon the assigned errors raised in the petition.

WHEREFORE, the Resolution of the Court of Appeals dated January 20, 1971 is hereby reversed and set aside, and the decision rendered by respondent Judge of Branch IV-Calauag, Court of First Instance of Quezon dated April 15, 1969 and the orders issued thereafter are declared null and void, and the case is hereby remanded to Branch I-Lucena City, Court of First Instance of Quezon for further proceedings. SO ORDERED. Barredo (Chairman), Concepcion, Jr., Abad Santos, Ericta and Escolin, JJ., concur.

Separate Opinions

AQUINO, J.:, dissenting: I dissent. I vote for the affirmance of the decision of Judge Union C. Kayanan, Calauag Branch IV of the Court of First Instance of Quezon Province dated April 15, 1969 in Special Proceeding No. 2641, entitled "Guardianship of the Incompetent Soledad Rodriguez, Francisco Rodriguez, Jr., Guardian". In that decision, Judge Kayanan ordered the spouses Luis Parco and Virginia Bautista to reconvey Lot No. 3437 (613 square meters), Lot No. 4389 (4,069 square meters) and Lot No. 1207 (63,598 square meters), all of the Sariaya, Tayabas cadastre, to the guardian Francisco Rodriguez, Jr. upon the latter's payment to the said spouses of the sum of twelve thousand pesos which he had borrowed from them (p. 65, Rollo). Since the ward died intestate on September 15, 1970 and the guardian died on October 24, 1973, the reconveyance should be made to the ward's heirs, namely, her sisters, Concepcion Rodriguez- Sapalo and Milagros Rodriguez-Sanchez, and the children of the ward's deceased brother Mario Rodriguez (who died on March 8, 1972), namely, Mario, Jr., Ramoncito, Liza and Rodulfo, all surnamed Rodriguez, represented by their guardian, their mother, Leonisa S. Rodriguez (pp. 232-236, Rollo). Said heirs should pay the Parco spouses the sum of twelve thousand pesos as a condition for the reconveyance.

It should be noted that the said guardianship proceedings was assigned originally to Branch I presided over by Judge Ameurfina Melencio-Herrera. It was transferred to Branch IV presided over by Judge Kayanan who was detailed at Lucena City to assist in decongesting the dockets of Branches I and II. Judge Kayanan had authorized the sale of the three lots to the Parco spouses so that the proceeds of the sale could be used for the maintenance of the ward. it turned out that the sales or transfers were made under certain conditions which were violated by the Parco spouses. A copy of Judge Kayanan's decision was received by petitioners' counsel on May 29, 1969. Sixteen days later or on June 14, they filed a motion for reconsideration. The order denying that motion was received by the petitioners on June 26. They filed their notice of appeal and appeal bond on June 28 (pp- 86 and 92, CA Rollo). The last day for submitting the record on appeal was July 10. The petitioners asked for a ten-day extension within which to file their record on appeal Instead of submitting it, they filed on July 10 a second motion for reconsideration on the ground of lack of jurisdiction. The lower court denied the motion for extension of time within which to file the record on appeal It also denied the second motion for reconsideration in its order of July 18, 1969. The petitioners did not file any record on appeal They filed on August 20, 1969 a petition for certiorari in the Court of Appeals to set aside the said decision of April 15. The Court of Appeals in its extended resolution of September 27, 1969 dismissed the petition on the ground that the petitioners' remedy was an appeal which they had abandoned. That resolution was reconsidered. The petition was given due course. The Court of Appeals in its decision of August 21, 1970 dismissed the petition. (Per Justice Eulogio Serrano with Alvendia and Nolasco JJ., concurring. Justice Enriquez and Yatco dissented.) Petitioners' motion for the reconsideration of that decision was denied in the resolution of January 20, 197 1. (Per Justice Eulogio Serrano with Justices Nolasco and Soriano concurring. Justices Enriquez and Alvendia dissented.) The petitioners appealed to this Court. The decision of the Court of Appeals should be affirmed because (1) the petitioners inexcusably did not file a record on appeal (2) the question as to whether the guardianship court should set aside

the conveyances to the petitioners is not a jurisdictional question but merely a procedural matter which could be waived (Lachenal vs. Salas, L-42257 June 14, 1976, 71 SCRA 262) and (3) the petitioners and the guardian hoodwinked the guardianship court to the ward's prejudice. It is the duty of the courts, in the exercise of the State's prerogative to protect persons under disability (parents patriae) to set aside the transfers to the petitioners and thus avoid unjust enrichment at the expense of the ward and do justice in this case. Technicalities should be eschewed. As to the power of a branch of the Court of First Instance to act in a case transferred to it from another sala of the same court, see Eleazar vs. Zandueta, 48 Phil. 193; Hizon Mercado vs. Ocampo, 72 Phil. 318; San Miguel Brewery, Inc. vs. Court of Industrial Relations, 91 Phil. 178.

Venue
THIRD DIVISION G.R. No. 132223 June 19, 2001 VANCIL, petitioner,

BONIFACIA P. vs. HELEN G. BELMES, respondent. SANDOVAL-GUTIERREZ, J.:

Petition for review on certiorari of the Decision of the Court of Appeals in CAG.R. CV No. 45650, "In the Matter of Guardianship of Minors Valerie Vancil and Vincent Vancil Bonifacia P. Vancil, Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant," promulgated on July 29, 1997, and its Resolution dated December 18, 1997 denying the motion for reconsideration of the said Decision. The facts of the case as summarized by the Court of Appeals in its Decision are: "Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of the United States of America who died in the said country on December 22, 1986. During his lifetime, Reeder had two (2) children named Valerie and Vincent by his common-law wife, Helen G. Belmes. "Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial Court of Cebu City a guardianship proceedings over the persons and properties of minors Valerie and Vincent docketed as Special Proceedings No. 1618-CEB. At the time, Valerie was only 6 years old while Vincent was a 2-year old child. It is claimed in the petition that the minors are residents of Cebu City, Philippines and have an estate consisting of proceeds from their fathers death pension benefits with a probable value of P100,000.00. "Finding sufficiency in form and in substance, the case was set for hearing after a 3-consecutive-weekly publications with the Sunstar Daily. "On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr. "On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an opposition to the subject guardianship proceedings

asseverating that she had already filed a similar petition for guardianship under Special Proceedings No. 2819 before the Regional Trial Court of Pagadian City. "Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for the Removal of Guardian and Appointment of a New One, asserting that she is the natural mother in actual custody of and exercising parental authority over the subject minors at Maralag, Dumingag, Zamboanga del Sur where they are permanently residing; that the petition was filed under an improper venue; and that at the time the petition was filed Bonifacia Vancil was a resident of 140 Hurliman Court, Canon City, Colorado, U.S.A. being a naturalized American citizen. "On October 12, 1988, after due proceedings, the trial court rejected and denied Belmes motion to remove and/or to disqualify Bonifacia as guardian of Valerie and Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the office and perform her duties as such guardian upon the posting of a bond of P50,000.00. The subsequent attempt for a reconsideration was likewise dismissed in an Order dated November 24, 1988."1 On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC order of October 12, 1988 and dismissing Special Proceedings No. 1618CEB. The Court of Appeals held: "Stress should likewise be made that our Civil Code considers parents, the father, or in the absence, the mother, as natural guardian of her minor children. The law on parental authority under the Civil Code or P.D. 603 and now the New Family Code, (Article 225 of the Family Code) ascribe to the same legal pronouncements. Section 7 of Rule 93 of the Revised Rules of Court confirms the designation of the parents as ipso facto guardian of their minor children without need of a court appointment and only for good reason may another person be named. Ironically, for the petitioner, there is nothing on record of any reason at all why Helen Belmes, the biological mother, should be deprived of her legal rights as natural guardian of her minor children. To give away such privilege from Helen would be an abdication and grave violation of the very basic fundamental tenets in civil law and the constitution on family solidarity."2 On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising the following "legal points":

"1. The Court of Appeals gravely erred in ruling that the preferential right of a parent to be appointed guardian over the persons and estate of the minors is absolute, contrary to existing jurisprudence. "2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes, the biological mother, should be appointed the guardian of the minors despite the undisputed proof that under her custody, her daughter minor Valerie Vancil was raped seven times by Oppositors live-in partner. "3. The respondent (sic) Court of Appeals gravely erred when it disqualified petitioner Bonifacia P. Vancil to be appointed as judicial guardian over the persons and estate of subject minors despite the fact that she has all the qualifications and none of the disqualifications as judicial guardian, merely on the basis of her U.S. citizenship which is clearly not a statutory requirement to become guardian." At the outset, let it be stressed that in her "Manifestation/Motion," dated September 15, 1998, respondent Helen Belmes stated that her daughter Valerie turned eighteen on September 2, 1998 as shown by her Birth Certificate.3Respondent thus prayed that this case be dismissed with respect to Valerie, she being no longer a proper subject of guardianship proceedings. The said "Manifestation/Motion" was noted by this Court in its Resolution dated November 11, 1998. Considering that Valerie is already of major age, this petition has become moot with respect to her. Thus, only the first and third "legal points" raised by petitioner should be resolved. The basic issue for our resolution is who between the mother and grandmother of minor Vincent should be his guardian. We agree with the ruling of the Court of Appeals that respondent, being the natural mother of the minor, has the preferential right over that of petitioner to be his guardian. This ruling finds support in Article 211 of the Family Code which provides: "Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. xxx."

Indeed, being the natural mother of minor Vincent, respondent has the corresponding natural and legal right to his custody. In Sagala-Eslao vs. Court of Appeals,4 this Court held: "Of considerable importance is the rule long accepted by the courts that the right of parents to the custody of their minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship." Petitioner contends that she is more qualified as guardian of Vincent. Petitioners claim to be the guardian of said minor can only be realized by way of substitute parental authoritypursuant to Article 214 of the Family Code, thus: "Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. xxx." In Santos, Sr. vs. Court of Appeals,5 this Court ruled: "The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of the parents death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent." Petitioner, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of respondent. Considering that respondent is very much alive and has exercised continuously parental authority over Vincent, petitioner has to prove, in asserting her right to be the minors guardian, respondents unsuitability. Petitioner, however, has not proffered convincing evidence showing that respondent is not suited to be the guardian of Vincent. Petitioner merely insists that respondent is morally unfit as guardian of Valerie considering that her (respondents) live-in partner raped Valerie several times. But Valerie, being now of major age, is no longer a subject of this guardianship proceeding. Even assuming that respondent is unfit as guardian of minor Vincent, still petitioner cannot qualify as a substitute guardian. It bears stressing that she is an American citizen and a resident of Colorado. Obviously, she will not be able to perform the responsibilities and obligations required of a guardian. In fact, in her

petition, she admitted the difficulty of discharging the duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties to someone else who may not also qualify as a guardian. Moreover, we observe that respondents allegation that petitioner has not set foot in the Philippines since 1987 has not been controverted by her. Besides, petitioners old age and her conviction of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal Case No. CBU-168846 filed by one Danilo R. Deen, will give her a second thought of staying here. Indeed, her coming back to this country just to fulfill the duties of a guardian to Vincent for only two years is not certain. Significantly, this Court has held that courts should not appoint persons as guardians who are not within the jurisdiction of our courts for they will find it difficult to protect the wards. In Guerrero vs. Teran,7 this Court held: "Doa Maria Muoz y Gomez was, as above indicated, removed upon the theory that her appointment was void because she did not reside in the Philippine Islands. There is nothing in the law which requires the courts to appoint residents only as administrators or guardians. However, notwithstanding the fact that there are no statutory requirements upon this question, the courts, charged with the responsibilities of protecting the estates of deceased persons, wards of the estate, etc., will find much difficulty in complying with this duty by appointing administrators and guardians who are not personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement, the courts should not consent to the appointment of persons as administrators and guardians who are not personally subject to the jurisdiction of our courts here." WHEREFORE, the appealed Decision is hereby AFFIRMED, with modification in the sense that Valerie, who has attained the age of majority, will no longer be under the guardianship of respondent Helen Belmes. Costs against petitioner. SO ORDERED. Melo, (Chairman), Panganiban, Vitug, J., see concurring opinion. and Gonzaga-Reyes, JJ., concur.

Rule 95 Selling and Encumbering Property of Ward

SECOND DIVISION [G.R. No. L-27402 : July 25, 1981.] GUARDIANSHIP OF THE INCOMPETENT LEONORA NAVARRO AND THE MINORS ADOLFO YUSON AND OTHERS, ELDEGARDES YUSON DE PUA, Judicial Guardian-Appellant, vs. JUSTINIANO SAN AGUSTIN, MovantAppellee. DECISION BARREDO, J.: Appeal from the order dated November 12, 1966 approving the "Motion for Confirmation of Deed Of Transfer of Right on Lots Nos. 632 and 633, Cadastre No. 102 in favor of Justiniano San Agustin" of the Court of First Instance of Davao, Branch I, Hon. Vicente N. Cusi, Jr. presiding, in Special Proceedings cranad(Case) No. 282, entitled "Guardianship of the Incompetent Leonora Navarro and the Minors Adolfo Yuson and Others." The records disclose the following antecedents of this appeal: The spouses Enrique Navarro and Maximina Bonleon died intestate in 1945 on March 18 and February 15, 1945, respectively leaving as heirs the following: a) Benita Navarro, legitimate daughter, of legal age, and residing at Lasang, Davao City. b) Leonora Navarro, legitimate daughter, of legal age, and residing in Lasang, Davao City, under the judicial guardianship of Atty. Eriberto A. Unson later Eldegardes Yuson de Pua Davao City. c) Ramon Navarro and Delia Navarro, legitimate grandchildren cranad(children of predeceased child Antonio Navarro), eight and seven years of age respectively, represented by their mother Filipinas Catalan.

In the course of the settlement of the estate of the deceased spouses in Special Proceeding No. 64-R, entitled "Intestate Estate of the Deceased Spouses Enrique Navarro and Maximina Bonleon" of the Court of First Instance of Davao, Branch I, Hon. Wenceslao L. Fernan then presiding, a Project of Partition dated

June 11, 1956, executed by all the above-named heirs with the assistance of their respective guardian and counsel, was presented to the court for approval, which the court approved in its order dated August 31, 1956. Among the properties awarded to Leonora Navarro in said Project of Partition were: xxx "b) The parcel of land situated at Lasang, Davao City, designated as Lot 634A, with an area of 89,430 square meters, more or less . cra . "c) All rights and interests under the portion of Lot No. cranad(632 and 633) situated at Panabo, Davao with an area of 1.5 hectares, more or less adjacent to the parcel of land described in Transfer Certificate of Title No. T-1297." On October 13, 1958, Eldegardes Yuson de Pua, eldest legitimate daughter and judicial guardian of the incompetent Leonora Navarro Yuson, filed a verified petition with the court below, praying for authority to sell Lot No. 634-A. On October 25, 1958, the court issued an order granting the judicial guardian authority to sell Lot No. 634-A on the ground that "the sale of the aforesaid property will be beneficial to the ward and her minor children because the proceeds thereof could be expended for their maintenance." Accordingly, Lot No. 634-A was sold to herein appellee, Justiniano San Agustin, for P13,750.00 as evidenced by a Deed of Absolute Sale dated January 19, 1959. This sale was approved by the court on January 23, 1959, and Eldegardes Yuson de Pua was directed in the same order "to deposit with the Philippine National Bank, Davao Branch, the amount of Thirteen Thousand Seven Hundred Fifty Pesoscranad(P13,750.00), consideration of the aforesaid sale, in the name of the above-entitled guardianship, to be withdrawn only upon previous approval of the court." Subsequently, or on January 20, 1959, the same guardian Mrs. de Pua filed a second petition in the court a quo, praying for authority to sell Lots Nos. 632 and 633 on the following ground, to wit: "That in view of the standing account of the estate of the insane, Leonora Yuson and the expenses for maintenance of her children, the herein petitioner deems it wise that the above-mentioned property, which the estate cannot maintain or improve, be sold. chanroblesvirtualawlibrary(Record on Appeal, p. 2.) However, the true area of the two lots i.e., eleven cranad(11) instead of only one and one-half cranad(1-1/2) hectares was disclosed in this petition, thus: "That among the properties of the insane, Leonora Navarro, as inheritance from the deceased spouses, Enrique Navarro and Maximina Bonleon, are two cranad(2) parcels of land known as Lots Nos. 632 and 633 Cad. 102,

consisting of 11 hectares, more or less, and situated at Lasang, Davao. chanroblesvirtualawlibrary(Emphasis supplied) cranad(Id., p. 2) On the same day that this second petition was filed, Mrs. de Pua also filed a "Motion to Approve Sale of Property" because Lots Nos. 632 and 633 had in the meantime been already sold by her to Dr. Justiniano San Agustin the day before, i.e., on January 19, 1959, as evidenced by an instrument titled "Transfer of Rights", that is to say, simultaneously with the other deed which was duly authorized and approved by the court. Acting on this second motion, on February 7, 1959, the Court denied the petition to sell Lots Nos. 632 and 633, thus: "Inasmuch as the judicial guardian sold just recently Lot No. 634-A, TCT No. 1296, belonging to the ward, in the amount of Thirteen Thousand Seven Hundred Fifty Pesos cranad(P13,750.00), the sale of the property mentioned in her petition filed on January 20, 1959, is not necessary or would not be beneficial to the ward; hence, the petition to sell is hereby denied. chanroblesvirtualawlibrary(Id., pp. 26-27). Meanwhile, because the co-heirs of the ward, Leonora Navarro namely, Benita Navarro, Delia Navarro and Ramon Navarro, in aforementioned Special Case No. 64-R learned thru the sale by appellant guardian Mrs. de Pua to Dr. San Agustin that Lots Nos. 632 and 633 consisted not merely of 1.5 hectares but 11, steps were taken towards the return of the said properties and they were correspondingly returned to the estate for proper disposition, and as a result, a Supplemental Project of Partition dated June 9, 1960 was arrived at, submitted to the court but subsequently amended on July 29, 1960. The amended Supplemental Project of Partition was also approved by the court in Case No. 64R on August 29, 1960. Under the terms of the Supplemental Project of Partition and the amendment thereto, the heirs agreed that ". cra . th(e) Estate shall recognize and confirm the conveyance of the rights over said Lots Nos. 632-633, Cad. 102, with an area of 11 hectares, in favor of JUSTINIANO SAN AGUSTIN, for the stipulated price of P8,250.00; and ". cra . the heirs Benita Navarro and the minors Ramon and Delia, both surnamed Navarro, hereby cede and assign in favor of the heir Leonora Navarro, all of their rights, interests in the aforecited lots nos. 632-633, Cad. No. 102 and all its improvements under the consideration that said Leonora Navarro shall pay to the aforenamed co-heirs, namely, Benita Navarro and the minors Ramon and Delia, all surnamed Navarro, the sum of ONE THOUSAND TWO HUNDRED PESOScranad(P1,200.00) and in addition, shall release and rescind the respective mortgage obligations of the said co-heirs in favor of said Leonora Navarro, and with the

corresponding cancellation of the annotation of mortgage encumbrance appearing in TCT No. T-8363 of Benita Navarro and the titles in the name of the minors Ramon and Delia, all surnamed Navarro, which properties were assigned to said co-heirs under the project of partition dated June 11, 1956, approved by this Honorable Court in its Order of August 31, 1956. chanroblesvirtualawlibrary(Id., pp. 47-48). On August 21, 1962, Mrs. de Pua filed an "Ex-Parte Motion" manifesting her desire to return to Dr. San Agustin the amount of P7,375.00 advanced by him, so that the possession of Lots Nos. 632 and 633 may be returned to the guardianship. This motion was granted in an order dated September 1, 1962, pertinent portion of which provides: xxx ". cra . conformably with her ex-parte motion filed on August 31, 1962, P7,375.00 of said amount shall be paid to Justiniano San Agustin so that he could return possession of Lots Nos. 632 and 633, Cad. 102, belonging to the incompetent, to the judicial guardian . cra . . chanroblesvirtualawlibrary(Id., pp. 29-30) On September 4, 1962, she followed this with an "Amended Ex-Parte Motion" with the following relevant allegations: xxx "2. That since January 19, 1959, said Dr. San Agustin has been in continuous possession of the said lots and has been enjoying the fruits thereof, which fact was not alleged as it should be, in the aforestated exparte motion of August 31st. cranad(should be 21st) xxx "WHEREFORE, it is respectfully prayed that the undersigned guardian be allowed to return the sum of P7,375.00 to Dr. Justiniano San Agustin, less the total value of the fruits he realized from his possession of the land in question from January 19, 1959 until he returns the possession thereof to the undersigned-movant, the amount of which may be ascertained from the doctor's record of production and sales of the coconuts thereon. chanroblesvirtualawlibrary(Id., p. 31) The record does not disclose the lower court's action on this "Amended Ex-Parte Motion," Neither does it appear there that appellee ever took any step to enforce the sale to him of the two lots in question evidently because, as he very well knew, the Court had disapproved the same. According to appellant on page 11 of her brief, it was only after she filed a civil action, docketed as Civil Case No. 5160, seeking the reconveyance of the said lots that appellee began to move by filing on September 28, 1966 a "Motion for Confirmation of Deed of Transfer of

Rights Over Lots 632 and 633, Cad. 102" in his favor. He prayed that ". cra . in the interest of justice and equity . cra . the Transfer of Rights over Lots 632 and 633 in favor of Justiniano San Agustin be approved and confirmed by the Honorable Court." He based his alleged right over the two lots on the "Supplemental Project of Partition" of June 9, 1960 and the "Amendment to the Supplemental Project of Partition" of July 29, 1960, which were executed by the Judicial Administrator and by the heirs, respectively, and approved by the probate court in the intestate proceeding, to modify, as already stated earlier, the original Project of Partition because of the discovery of the true area of Lots Nos. 632 and 633, which is eleven cranad(11) hectares and not one and onehalf cranad(1.5) hectares only, and that all the heirs agreed in said "Supplemental Project of Partition" and the amendment thereto, among other things, to recognize and confirm the sale of Lots Nos. 632 and 633 in his favor, instead of partitioning the same in some other manner. On November 12, 1966, Mrs. de Pua filed an "Opposition to the Motion for Confirmation, contending that: "1. The transfer of rights over Lots Nos. 632 and 633, Cad. 102 had been passed upon and disapproved by an order of this Honorable Court which has become final. cranad(Referring to order of February 7, 1959 disapproving the sale of the same lots.) "2. The petition cranad(motion for confirmation) is self-serving and states on ground to warrant approval of the transfer of rights." Over said opposition, the court issued the following order, granting Dr. San Agustin's motion for confirmation: "Finding the Motion for Confirmation of Deed of Transfer of Right over Lots Nos. 632 and 633, Cad. 102 in favor of Justiniano San Agustin filed by his counsel on September 28, 1966, meritorious, the Order of this Court of February 7, 1959, based on erroneous facts, is hereby set aside and the aforesaid transfer of rights signed by Justiniano San Agustin and Leanora Navarro represented by Eldegardes Yuson de Pua, her judicial guardian . cra . is hereby approved. chanroblesvirtualawlibrary(Emphasis supplied) Her motion for reconsideration having been denied "for lack of merit," the judicial guardian, Mrs. de Pua, is now before Us and urges the following assignment of errors: FIRST ASSIGNMENT OF ERROR THE ORDER OF THE LOWER COURT APPROVING THE TRANSFER OF RIGHTS IN FAVOR OF JUSTINIANO SAN AGUSTIN IS CONTRARY TO LAW ON THE FOLLOWING GROUNDS:

I. THE TRANSFER OF RIGHTS IS VOID AB INITIO; HENCE, COULD NOT BE APPROVED NOR CONFIRMED. II. THE TRANSFER OF RIGHTS IS NOT NECESSARY NOR BENEFICIAL TO THE WARD. SECOND ASSIGNMENT OF ERROR THE ORDER OF THE LOWER COURT IN SETTING ASIDE ITS ORDER DATED FEBRUARY 7, 1959 IS CONTRARY TO LAW ON THE GROUND THAT IT SETS ASIDE AN ORDER WHICH HAS BECOME FINAL AND EXECUTORY. In support of the first assigned error, judicial guardian-appellant Mrs. de Pua argues through counsel that the transfer of rights is void ab initio and cannot be approved nor confirmed, because under Rule 95, Sec. 1 of the Rules of Court, property under guardianship can be sold only by prior authority granted by the guardianship court; that in the instant case "not only was the transfer of rights executed by the judicial guardian without any authority, but the petition seeking authority to sell, which was filed a day after the actual execution of the transfer of rights, was expressly denied by the lower court"; and, therefore, the transfer of rights is void because "a sale of the ward's realty by the guardian without authority from the court is void," citing Inton vs. Quintana, cranad(81 Phil. 97). Furthermore, she adds that the transfer of rights is not necessary nor beneficial to the ward. In fact, there is no allegation at all to such effect in appellee's motion for confirmation. Relative to the second assigned error, judicial guardian-appellant argues that the Order of the lower court of February 7, 1959, which denied her petition to sell Lots 632 and 633 completely disposed of her petition and, therefore, the challenged Order of November 12, 1966, which summarily set aside the said previous order is contrary to law. The foregoing assignment of errors/arguments raise only one decisive issue, which is: Whether or not, under the circumstances related above, the lower court acted correctly in issuing the order of November 12, 1966, approving the Motion for Confirmation of Sale of Lots 632 and 633 filed by the appellee Dr. San Agustin and setting aside its previous order of February 7, 1959, which earlier disapproved the sale of the same lots. We agree with appellant that the impugned order cannot stand legal scrutiny. To start with, it must be emphasized that what appellee asked the court to confirm was a sale in 1959, or seven years before the filing of said motion, and what is more, it was a sale which the court refused to authorize in its order of February 7, 1959, for the simple reason that in its opinion, considering that a previous sale of Lot 634-A for P13,750.00 had just been approved, it could not

see why it would again be "necessary," after just a few days, "or beneficial to the ward" that the two lots, Lots 632 and 633 should still be sold. Reiteratedly, this Court has ruled that under Sections 2 and 3 of Rule 96 cranad(now Rule 95) that the properties of Leonora, the ward of appellant Mrs. de Pua could be sold only under authority of the guardianship court in Special Proceedings No. 282. Without such authority, any sale would necessarily be illegal. Indeed, even on the assumption posited by appellee that the lack of authority from the guardianship court resulted only in a voidable sale which could be ratified, there is no showing in the record that there was any such ratification. We cannot go along with the proposition that the approval by the probate court in Case No. 64-R of the amended "Supplemental Project of Partition" may be deemed in law as tantamount to the required ratification. It is quite true that appellant-guardian Mrs. de Pua, did sign, assisted by her lawyer, Atty. Pedro S. Castillo, the motion to approve said "Supplemental Project of Partition" of July 29, 1960, and that said motion was approved by the probate court on August 29, 1960. It is further true that in the first "Supplemental Project of Partition" it was specifically stipulated in paragraph 7(a) "that this Estate shall recognize and confirm the conveyance of the rights over said Lots Nos. 632 and 633, Cad. 102, with an area of 11 hectares, in favor of Justiniano San Agustin, for the stipulated price of P8,250.00." But legally speaking, the approval by the probate court of such project of partition cranad(the stipulation just quoted was specifically reiterated in the amended project dated July 29, 1960), did not in any degree confer upon Mrs. de Pua the power to dispose of the lots in question without prior permission of the guardianship court. Indeed, the motion to approve referred to was signed only by Flor A. Unson, the Judicial Administrator in the probate court in Case No. 64-R. We hold that court had no jurisdiction to authorize the sale of any property belonging to an heir who is under guardianship without first requiring the guardian to secure the corresponding authority from the guardianship court. Worse, much less could the probate court have any power to effectively approve a sale of an heir-ward which had, as in this case, been actually disapproved by the guardianship court. In arriving at this conclusion, We are not overlooking the fact that the same judge, the Honorable Vicente N. Cusi, Jr. who had issued the order denying authority to sell Lots 632 and 633 was the very one who in his order of November 12, 1966, here being assailed, approved the motion for confirmation on the lame excuse, as We see it, that his previous order of February 7, 1959 was "based on erroneous facts." What "erroneous facts " he did not state, which circumstance readily places the order in question subject to the omission to comply with the constitutional requirement that final orders or decisions of courts of record should state the facts on which it is based, which means, of course, that at least the main elemental facts must be stated in a manner such as to enable the parties to comprehend intelligently what they are.

Another equally important consideration lies in the way to Our giving Our sanction to the questioned order. In the order of February 7, 1959, Judge Cusi held the sale was neither necessary nor beneficial to the ward. The motion for confirmation of appellee of September 28, 1966 had no allegation at all that could induce anyone to alter the conclusion in the February 7, 1959 order. If indeed there was already need on the part of the ward Leonora for additional funds in 1966, the court could not just assume that such was the case, absent any allegation, much less any proof to such effect before it. Besides, We cannot but wonder how Lot 634-A with an area of a little less than nine(9) hectares was sold for P13,750.00 and yet two lots, numbered 632 and 633, indicating that they must be either contiguous to Lot 634-A or within its immediate vicinity could be sold on the same day for only P8,250.00. A guardianship court is designed purposely to see to it that the interests of wards under its jurisdiction are taken care of by the court's appointed guardian with the diligence and prudence of a bonus pater familiae. We are not convinced that such standard of care was observed in the impugned order of November 12, 1966. We hold that appellant had every right to require the reconveyance by deed of said lots, without prejudice to her returning to appellee the P7,375.00 he appears to have paid, but not before appellee San Agustin has accounted for the fruits of the lots in question which have remained in his possession since 1959 and a proper set-off of the amount of any possible additional payment has been determined.:onad WHEREFORE, judgment is hereby rendered setting aside the impugned order of November 12, 1966, and ordering the guardianship court in Case No. 282 of the Court of First Instance of Davao, Branch I, to proceed with the accounting pursuant to the above opinion. Fernandez, Abad Santos and De Castro, JJ., concur. Concepcion, J., took no part. Fernandez, J., member of the First Division, was designated to sit in the Second Division.

Separate Opinions AQUINO, J., concurring: I concur. On January 20, 1959, Eldegardes Yuson de Pua, as guardian of her insane mother, Leonora Navarro-Yuson, filed in the lower court cranad(1) a petition for authority to sell Lots 632 and 633 with an area of eleven hectares

located at Panabo, Davao andcranad(2) another petition for the approval of the sales to Justiniano San Agustin of the said two lots and of Lot 634-A, with an area of more than eight hectares located at Lasang, Davao City as evidenced by two deeds of sale executed the day before, or on January 19. In one deed of sale, Lot 634-A was sold to San Agustin for P13,750, while in the deed denominated "Transfer of Rights," Lots 632 and 633 were sold to him for P8,250 of which the sum of P7,375 was paid. The sale of Lot 634-A was authorized by the lower court in its order of October 25, 1958. That sale was approved in the lower court's order of January 23, 1959. On the other hand, the lower court in its order of February 7, 1959 denied the petition to sell Lots 632 and 633 on the ground that the sale was not necessary and that it would not be beneficial to the ward because on that same day, January 19, 1959, the guardian, as stated above, sold to San Agustin Lot 634-A. At this juncture, it should be stated that in the intestate proceeding for the settlement of the estates of the spouses, Enrique Navarro and Maximina Bonleon, Lots 632 and 633 were adjudicated in the project of partition to the incompetent, Mrs. Yuson, on the assumption that the area of the two lots was only one and a half hectares with a value of three hundred pesos. When in the guardianship proceeding it was discovered that the correct area of the two lots was eleven hectares, a supplemental project of partition dated June 9, 1960 and an amendment thereto dated July 29, 1960 were filed in the intestate proceeding with respect to Lots 632 and 633. It was clarified therein that the sale of the two lots to San Agustin should be respected but the estate of the ward should pay P1,200 to her co-heirs as consideration for the transfer of their interests in the two lots. The lower court, as a probate court, approved the amended supplemental project of partition in its order of August 29, 1960. However, notwithstanding the probate court's confirmation of the sale to San Agustin, the guardian, Mrs. De Pua, filed two years later, or on August 21, 1962, in the guardianship proceeding a motion wherein she manifested her desire to return to San Agustin the sum of P7,375 which he had advanced to her for the sale of Lots 632 and 633. The lower court, as a guardianship court, in its order of September 1, 1962 granted her motion in order to enable her to recover the possession of the two lots from San Agustin. The record does not show whether that order was implemented. In spite of that order, San Agustin filed four years later or on September 28, 1966 a motion for the confirmation of the deed of transfer of rights covering Lots 632 and 633, which, as already stated, was executed in his favor by Mrs. De Pua on

January 19, 1959. He based his motion for confirmation on the amended supplemental project of partition. Mrs. De Pua, the guardian, opposed that motion on November 12, 1966. She invoked the lower court's orders of February 7, 1959 and September 1, 1962 denying her motion for authority to sell Lots 632 and 633 to San Agustin and allowing her to rescind the sale by returning the sum of P7,375 to San Agustin. On that same date, November 12, 1966, the lower court overruled the opposition, set aside its order of February 7, 1959 and granted the motion for confirmation. That is the order under appeal in this case. The lower court erred in setting aside its 1959 order disapproving the sale of the two lots to San Agustin and in confirming the same sale seven years later or in 1966. It should be recalled that the lower court in its 1962 order, which had not been set aside, authorized Mrs. De Pua, the guardian, to return the price of the two lots to San Agustin or to rescind the sale. In issuing that order, the lower court presumably acted on the theory that the sale was not beneficial to the ward's estate since Lot 634-A, an eight-hectare land located in Davao City, had already been sold to San Agustin on January 19, 1959 or on the same day that Lots 632 and 633 were also sold to him. Indeed, the lower court in its 1966 order had not made any finding that the sale of the two lots would redound to the benefit of the ward or her estate. After disauthorizing that sale in 1959, the lower court, as a guardianship court, if it desired to reopen the matter in 1966, should have followed the requirements of sections 2 and 3 of Rule 96, now Rule 95, regarding the sale of the real property belonging to the ward. Section 2 requires that the guardianship court should issue an order directing the next of kin of the ward and all persons interested in the ward's estate to appear at a reasonable time and place to show cause why the sale should not be allowed. Section 3 requires the guardianship court to hold a hearing and hear the proofs and allegations of the petitioner, the ward's next of kin and the other interested persons as to whether the sale would be for the best interest of the ward. The anomaly herein is that the guardianship court in 1966 approved a sale made in 1959 by the guardian for which there was no prior authority or license given to the guardian, which the court had in fact disauthorized and whose rescission, at the instance of the guardian, was sanctioned by the court, and which sale the guardian later on opposed. The sale, as confirmed, was in effect, a sale made by the court and not by the guardian.

It is odd for the guardianship court to confirm in 1966 a sale made by the guardian in 1959 which the guardian later repudiated. The unorthodox procedure followed by the court is in contravention of rule 96, now Rule 95, and is not within the contemplation thereof. I vote for the setting aside of the lower court's order of November 12, 1966 and to order San Agustin to accept the sum of P7,375, to account for the fruits of the two lots and to return the possession thereof to the guardian.

Rule 98 Trustees Express trust vs. implied trust

SECOND DIVISION RICHARD B. LOPEZ, in his Capacity as Trustee of the Trust Estate of the late Juliana LopezManzano, Petitioner, G.R. No. 157784 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus -

COURT OF APPEALS, CORAZON LOPEZ, FERNANDO LOPEZ, ROBERTO LOPEZ, represented by LUZVIMINDA LOPEZ, MARIA Promulgated: ROLINDA MANZANO, MARIA ROSARIO MANZANO SANTOS, JOSE MANZANO, JR., NARCISO MANZANO (all represented by December 16, 2008 Attorney-in-fact, MODESTO RUBIO), MARIA CRISTINA MANZANO RUBIO, IRENE MONZON and ELENA MANZANO, Respondents. x--------------------------------------------------------------------------------x DECISION TINGA, J.:

This is a petition for review on certiorari [1]under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision[2] and Resolution[3] of the Court of Appeals in CA-G.R. CV No. 34086. The Court of Appeals decision affirmed the summary judgment of the Regional Trial Court (RTC), Branch 10, Balayan,Batangas, dismissing petitioners action for reconveyance on the ground of prescription.

The instant petition stemmed from an action for reconveyance instituted by petitioner Richard B. Lopez in his capacity as trustee of the estate of the late Juliana Lopez Manzano (Juliana) to recover from respondents several large tracts of lands allegedly belonging to the trust estate of Juliana. The decedent, Juliana, was married to Jose Lopez Manzano (Jose). Their union did not bear any children. Juliana was the owner of several properties, among them, the properties subject of this dispute. The disputed properties totaling more than 1,500 hectares consist of six parcels of land, which are all located in Batangas. They were the exclusive paraphernal properties of Juliana together with a parcel of land situated in Mindoro known as Abra de Ilog and a fractional interest in a residential land on Antorcha St., Balayan, Batangas. On 23 March 1968, Juliana executed a notarial will,[4] whereby she expressed that she wished to constitute a trust fund for her paraphernal properties, denominated as Fideicomiso de Juliana Lopez Manzano (Fideicomiso), to be administered by her husband. If her husband were to die or renounce the obligation, her nephew, Enrique Lopez, was to become administrator and executor of the Fideicomiso. Two-thirds (2/3) of the income from rentals over these properties were to answer for the education of deserving but needy honor students, while one-third 1/3 was to shoulder the expenses and fees of the administrator. As to her conjugal properties, Juliana bequeathed the portion that she could legally dispose to her husband, and after his death, said properties were to pass to her biznietos or great grandchildren. Juliana initiated the probate of her will five (5) days after its execution, but she died on 12 August 1968, before the petition for probate could be heard. The petition was pursued instead in Special Proceedings (S.P.) No. 706 by her husband, Jose, who was the designated executor in the will. On 7 October 1968, the Court of First Instance, Branch 3, Balayan, Batangas, acting as probate court, admitted the will to probate and issued the letters testamentary to Jose. Jose then submitted an inventory of Julianas real and personal properties with their appraised values, which was approved by the probate court. Thereafter, Jose filed a Report dated 16 August 1969, which included a proposed project of partition. In the report, Jose explained that as the only compulsory heir of Juliana, he was entitled by operation of law to one-half (1/2) of Julianas paraphernal properties as his legitime, while the other one-half (1/2) was to be constituted into the Fideicomiso. At the same time, Jose alleged that he and Juliana had outstanding debts totaling P816,000.00 excluding interests, and that these debts were secured by real estate mortgages. He noted that if these debts were liquidated, the residuary estate available for distribution would, value-wise, be very small.

From these premises, Jose proceeded to offer a project of partition. The relevant portion pertaining to the Fideicomiso stated, thus: PROJECT OF PARTITION 14. Pursuant to the terms of the Will, one-half (1/2) of the following properties, which are not burdened with any obligation, shall be constituted into the Fidei-comiso de Juliana LopezManzano and delivered to Jose Lopez Manzano as trustee thereof: Location Title No. Area (Sq.M.) 2,940,000 13,040 Improvements pasture,etc. residential

Abra de Ilog, TCT - 540 Mindoro Antorcha St. TCT 1217A Balayan, Batangas (1/6 thereof)

and all those properties to be inherited by the decedent, by intestacy, from her sister, Clemencia Lopez y Castelo. 15. The other half (1/2) of the aforesaid properties is adjudicated to Jose Lopez Manzano as heir. Then, Jose listed those properties which he alleged were registered in both his and Julianas names, totaling 13 parcels in all. The disputed properties consisting of six (6) parcels, all located in Balayan, Batangas, were included in said list. These properties, as described in the project of partition, are as follows: Location Pantay, Calaca, Batangas Mataywanak, Tuy, Batangas Patugo, Balayan, Batangas Title No. Area (Sq. M.) 91,283 OCT-29[6]94 485,486 OCT-2807 Improvements coconuts sugar

16,757,615 coconut, sugar,citrus, pasteur

Cagayan, Balayan, Batangas

TCT-1220

411,331 135,922 444,998

sugar sugar sugar sugar

Pook, Baayan TCT-81 Batangas Bolbok, Balayan, TCT18845 Batangas Calzada, Balayan, TCT1978 Batangas Gumamela, Balayan, TCT-2575 Batangas Bombon, Balayan, Batangas Paraaque, Rizal TCT282340 Paraaque, Rizal TCT11577 Modesto St., Manila TCT-52212

2,312 829 4,532 800 800 137.8

residential residential residential

and the existing sugar quota in the name of the deceased with the Central Azucarera Don Pedro at Nasugbo. 16. The remaining shall likewise go to Jose Lopez Manzano, with the condition to be annotated on the titles thereof, that upon his death, the same shall pass on to Corazon Lopez, Ferdinand Lopez, and Roberto Lopez: Location Title No. Area (Sq. M.) 482,872 523 Improvements sugar residential

Dalig, Balayan, TCT-10080 Batangas San Juan, Rizal TCT-53690

On 25 August 1969, the probate court issued an order approving the project of partition. As to the properties to be constituted into the Fideicomiso, the probate court ordered that the certificates of title thereto be cancelled, and, in lieu thereof, new certificates be issued in favor of Jose as trustee of the Fideicomiso covering one-half (1/2) of the properties listed under paragraph 14 of the project of partition; and regarding the other half, to be registered in the name of Jose as heir of Juliana. The properties which Jose had alleged as registered in his and Julianas names, including the disputed lots, were adjudicated to Jose as heir, subject to the condition that Jose would settle the obligations charged on these properties. The probate court, thus, directed that

new certificates of title be issued in favor of Jose as the registered owner thereof in its Order dated 15 September 1969. On even date, the certificates of title of the disputed properties were issued in the name of Jose. The Fideicomiso was constituted in S.P No. 706 encompassing one-half (1/2) of the Abra de Ilog lot on Mindoro, the 1/6 portion of the lot in Antorcha St. inBalayan, Batangas and all other properties inherited ab intestato by Juliana from her sister, Clemencia, in accordance with the order of the probate court in S.P. No. 706. The disputed lands were excluded from the trust. Jose died on 22 July 1980, leaving a holographic will disposing of the disputed properties to respondents. The will was allowed probate on 20 December 1983 in S.P. No. 2675 before the RTC of Pasay City. Pursuant to Joses will, the RTC ordered on 20 December 1983 the transfer of the disputed properties to the respondents as the heirs of Jose. Consequently, the certificates of title of the disputed properties were cancelled and new ones issued in the names of respondents. Petitioners father, Enrique Lopez, also assumed the trusteeship of Julianas estate. On 30 August 1984, the RTC of Batangas, Branch 9 appointed petitioner as trustee of Julianas estate in S.P. No. 706. On 11 December 1984, petitioner instituted an action for reconveyance of parcels of land with sum of money before the RTC of Balayan, Batangas against respondents. The complaint[5] essentially alleged that Jose was able to register in his name the disputed properties, which were theparaphernal properties of Juliana, either during their conjugal union or in the course of the performance of his duties as executor of the testate estate of Juliana and that upon the death of Jose, the disputed properties were included in the inventory as if they formed part of Joses estate when in fact Jose was holding them only in trust for the trust estate of Juliana. Respondents Maria Rolinda Manzano, Maria Rosario Santos, Jose Manzano, Jr., Narciso Manzano, Maria Cristina Manzano Rubio and Irene Monzon filed a joint answer[6] with counterclaim for damages. Respondents Corazon, Fernando and Roberto, all surnamed Lopez, who were minors at that time and represented by their mother, filed a motion to dismiss,[7] the resolution of which was deferred until trial on the merits. The RTC scheduled several pretrial conferences and ordered the parties to submit pre-trial briefs and copies of the exhibits. On 10 September 1990, the RTC rendered a summary [8] judgment, dismissing the action on the ground of prescription of action. The RTC also denied respondents motion to set date of hearing on the counterclaim.

Both petitioner and respondents elevated the matter to the Court of Appeals. On 18 October 2002, the Court of Appeals rendered the assailed decision denying the appeals filed by both petitioner and respondents. The Court of Appeals also denied petitioners motion for reconsideration for lack of merit in its Resolution dated3 April 2003. Hence, the instant petition attributing the following errors to the Court of Appeals: I. THE COURT OF APPEALS CONCLUSION THAT PETITIONERS ACTION FOR [RECONVEYANCE] HAS PRESCRIBED TAKING AS BASIS SEPTEMBER 15, 1969 WHEN THE PROPERTIES IN DISPUTE WERE TRANSFERRED TO THE NAME OF THE LATE JOSE LOPEZ MANZANO IN RELATION TO DECEMBER 12, 1984WHEN THE ACTION FOR RECONVEYANCE WAS FILED IS ERRONEOUS. II. THE RESPONDENT COURT OF APPEALS CONCLUSION IN FINDING THAT THE FIDUCIARY RELATION ASSUMED BY THE LATE JOSE LOPEZ MANZANO, AS TRUSTEE, PURSUANT TO THE LAST WILL AND TESTAMENT OF JULIANA LOPEZ MANZANO WAS IMPLIED TRUST, INSTEAD OF EXPRESS TRUST IS EQUALLY ERRONEOUS. None of the respondents filed a comment on the petition. The counsel for respondents Corazon, Fernando and Roberto, all surnamed Lopez, explained that he learned that respondents had migrated to the United States only when the case was pending before the Court of Appeals.[9] Counsel for the rest of the respondents likewise manifested that the failure by said respondents to contact or communicate with him possibly signified their lack of interest in the case.[10] In a Resolution dated19 September 2005, the Court dispensed with the filing of a comment and considered the case submitted for decision.[11]

The core issue of the instant petition hinges on whether petitioners action for reconveyance has prescribed. The resolution of this issue calls for a determination of whether an implied trust was constituted over the disputed properties when Jose, the trustee, registered them in his name. Petitioner insists that an express trust was constituted over the disputed properties; thus the registration of the disputed properties in the name of Jose as

trustee cannot give rise to prescription of action to prevent the recovery of the disputed properties by the beneficiary against the trustee. Evidently, Julianas testamentary intent was to constitute an express trust over her paraphernal properties which was carried out when the Fideicomiso was established in S.P. No. 706.[12] However, the disputed properties were expressly excluded from the Fideicomiso. The probate court adjudicated the disputed properties to Jose as the sole heir of Juliana. If a mistake was made in excluding the disputed properties from the Fideicomiso and adjudicating the same to Jose as sole heir, the mistake was not rectified as no party appeared to oppose or appeal the exclusion of the disputed properties from the Fideicomiso. Moreover, the exclusion of the disputed properties from the Fideicomiso bore the approval of the probate court. The issuance of the probate courts order adjudicating the disputed properties to Jose as the sole heir of Juliana enjoys the presumption of regularity.[13] On the premise that the disputed properties were the paraphernal properties of Juliana which should have been included in the Fideicomiso, their registration in the name of Jose would be erroneous and Joses possession would be that of a trustee in an implied trust. Implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent or which are superinduced on the transaction by operation of law as matters of equity, independently of the particular intention of the parties.[14] The provision on implied trust governing the factual milieu of this case is provided in Article 1456 of the Civil Code, which states: ART. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. In Aznar Brothers Realty Company v. Aying,[15] the Court differentiated two kinds of implied trusts, to wit: x x x In turn, implied trusts are either resulting or constructive trusts. These two are differentiated from each other as follows: Resulting trusts are based on the equitable doctrine that valuable consideration and not legal title determines the equitable title or interest and are presumed always to have been contemplated by the parties. They arise from the nature of circumstances of the

consideration involved in a transaction whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal title for the benefit of another. On the other hand, constructive trusts are created by the construction of equity in order to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold.[16] A resulting trust is presumed to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction but not expressed in the deed itself.[17] Specific examples of resulting trusts may be found in the Civil Code, particularly Arts. 1448,[18] 1449,[19] 1451,[20] 1452[21] and 1453.[22] A constructive trust is created, not by any word evincing a direct intention to create a trust, but by operation of law in order to satisfy the demands of justice and to prevent unjust enrichment.[23] It is raised by equity in respect of property, which has been acquired by fraud, or where although acquired originally without fraud, it is against equity that it should be retained by the trusts are illustrated in Arts. person holding it.[24] Constructive [25] [26] [27] [28] 1450, 1454, 1455 and 1456. The disputed properties were excluded from the Fideicomiso at the outset. Jose registered the disputed properties in his name partly as his conjugal share and partly as his inheritance from his wife Juliana, which is the complete reverse of the claim of the petitioner, as the new trustee, that the properties are intended for the beneficiaries of the Fideicomiso. Furthermore, the exclusion of the disputed properties from the Fideicomiso was approved by the probate court and, subsequently, by the trial court having jurisdiction over the Fideicomiso. The registration of the disputed properties in the name of Jose was actually pursuant to a court order. The apparent mistake in the adjudication of the disputed properties to Jose created a mere implied trust of the constructive variety in favor of the beneficiaries of the Fideicomiso. Now that it is established that only a constructive trust was constituted over the disputed properties, may prescription for the recovery of the properties supervene? Petitioner asserts that, if at all, prescription should be reckoned only when respondents caused the registration of the disputed properties in their names on 13 April 1984 and not on 15 September 1969, when Jose registered the same in his name pursuant to the probate courts order adjudicating the disputed properties to him as the sole heir of Juliana. Petitioner adds, proceeding on the

premise that the prescriptive period should be counted from the repudiation of the trust, Jose had not performed any act indicative of his repudiation of the trust or otherwise declared an adverse claim over the disputed properties. The argument is tenuous. The right to seek reconveyance based on an implied or constructive trust is not absolute. It is subject to extinctive prescription.[29] An action for reconveyancebased on implied or constructive trust prescribes in 10 years. This period is reckoned from the date of the issuance of the original certificate of title or transfer certificate of title. Since such issuance operates as a constructive notice to the whole world, the discovery of the fraud is deemed to have taken place at that time.[30] In the instant case, the ten-year prescriptive period to recover the disputed property must be counted from its registration in the name of Jose on 15 September 1969, when petitioner was charged with constructive notice that Jose adjudicated the disputed properties to himself as the sole heir of Juana and not as trustee of theFideicomiso. It should be pointed out also that Jose had already indicated at the outset that the disputed properties did not form part of the Fideicomiso contrary to petitioners claim that no overt acts of repudiation may be attributed to Jose. It may not be amiss to state that in the project of partition submitted to the probate court, Jose had indicated that the disputed properties were conjugal in nature and, thus, excluded from Julianas Fideicomiso. This act is clearly tantamount to repudiating the trust, at which point the period for prescription is reckoned. In any case, the rule that a trustee cannot acquire by prescription ownership over property entrusted to him until and unless he repudiates the trust applies only to express trusts and resulting implied trusts. However, in constructive implied trusts, prescription may supervene even if the trustee does not repudiate the relationship. Necessarily, repudiation of said trust is not a condition precedent to the running of the prescriptive period.[31] Thus, for the purpose of counting the ten-year prescriptive period for the action to enforce the constructive trust, the reckoning point is deemed to be on 15 September 1969 when Jose registered the disputed properties in his name. WHEREFORE, the instant petition for review on certiorari is DENIED and the decision and resolution of the Court of Appeals in CA-G.R. CV No. 34086 are AFFIRMED. Costs against petitioner. SO ORDERED.

Express trust vs. implied trust

THIRD DIVISION G.R. No. 133047 August 17, 1999

HEIRS OF LORENZO YAP, namely SALLY SUN YAP, MARGARET YAP-UY and MANUEL YAP, petitioners, vs. THE HONORABLE COURT OF APPEALS, RAMON YAP and BENJAMIN YAP, respondents. VITUG, J.: What in essence petitioners seek is the enforcement of an alleged trust agreement between Lorenzo Yap, now deceased, and his brothers Ramon and Benjamin, herein co-respondents, covering a piece of land and its improvement. The case and factual settings found by the Court of Appeals do not appear to deviate significantly from that priority made by the trial court.1wphi1.nt Sometime in February 1966, Ramon Yap purchased a parcel of land situated at 123 (formerly 75) Batanes Street, Galas, Quezon City, covered by Transfer Certificate of Title No. 82001/T-414, from the spouses Carlos and Josefina Nery. The lot was thereupon registered in the name of Ramon Yap under Transfer Certificate of Title No. 102132; forthwith, he also declared the property in his name for tax purposes and paid the real estate taxes due thereon from 1966 to 1992. In 1967, Ramon Yap constructed a two-storey 3-door apartment building for the use of the Yap family. One-fifth (1/5) of the cost of the construction was defrayed by Ramon Yap while the rest was shouldered by Chua Mia, the mother of Lorenzo, Benjamin and Ramon. Upon its completion, the improvement was declared for real estate tax purposes in the name of Lorenzo Yap in deference to the wishes of the old woman. Lorenzo Yap died on 11 July 1970. A few months later, his heirs (herein petitioners) left their family dwelling in Lucena City to reside permanently in Manila. Ramon Yap allowed petitioners to use one unit of the apartment building. On 18 March 1992, Ramon Yap sold the land and his share of the 3-door apartment to his brother, his herein co-respondent Benjamin Yap, for the sum of P337,500.00 pursuant to a Deed of Sale, recorded on even date in the Memorandum of Encumbrances of the title to said property. Transfer Certificate of Title No. 73002 was in due time issued in the name of Benjamin Yap.

The controversy started when herein petitioners, by a letter of 08 June 1992, advised respondents of the former's claim of ownership over the property and demanded that respondents execute the proper deed necessary to transfer the title to them. At about the same time, petitioners filed a case for ejectment against one of the bonafidetenants of the property. On 29 July 1992, respondents filed an action with the Regional Trial Court ("RTC") of Quezon City, docketed Civil Case No. Q-92-12899, for quieting of title against petitioners. In their answer, petitioners averred that sometime in 1966 the spouses Carlos and Josefina Nery offered to sell the disputed parcel of land to their predecessor-in-interest, Lorenzo Yap, for the sum of P15,000.00. Since Lorenzo and his wife Sally Yap were at that time Chinese citizens, Lorenzo requested his brother Ramon to allow the use of the latter's name in the purchase, registration, and declaration for tax purposes of the subject lot to which Ramon Yap consented. It was agreed that the property would remain registered in the name of Ramon Yap until such time as Lorenzo would have acquired Philippine citizenship but that, should Lorenzo predecease, the lot would then be transferred to Lorenzo's heirs upon the latter's naturalization. Petitioners contended that it was Lorenzo who had caused the construction of the 3-door apartment on the property, merely entrusting the money therefor to Ramon Yap. The death of Lorenzo in 1970 prompted petitioners to move in and occupy the apartment and the lot, without any objection from Ramon and Benjamin, although the latter were allowed to stay in the premises since they had no other place to live in. In 1991, petitioners acquired Philippine citizenship and, forthwith, they requested Ramon Yap to have the title to the lot transferred to their names but to their chagrin they discovered that Ramon had sold the lot to his co-respondent Benjamin. Assessing the evidence before it, the trial court found for the respondents and adjudged Benjamin Yap to be the true and lawful owner of the disputed property. On appeal, the Court of Appeals affirmed the decision of the trial court and debunked the claim of petitioners that Ramon Yap was merely so used as a dummy by Lorenzo Yap. Giving full weight and credit to the Deed of Sale executed by the Nery spouses in favor of Ramon Yap, the appellate court stressed that to overcome the presumption of regularity in the execution of a public document, the evidence to the contrary should be clear and convincing even as it was equally incumbent upon petitioners to show that the subsequent sale of the property to Benjamin had only been simulated and fictitious. The appellate court, however, deleted the award of attorney's fees in favor of respondents for, in its view, it was not adequately shown that petitioners had acted in bad faith in pursuing their case.

Petitioners are now before this Court seeking a reversal of the decision of the Court of Appeals and contending that I THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT HOLDS THAT DEFENDANTS-APPELLANTS FATHER, LORENZO YAP, BEING CHINESE CAN NOT ENTER INTO A TRUST AGREEMENT AND THE EXISTENCE OF A TRUST AGREEMENT CAN NOT BE PROVEN BEING CHINESE. II THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT HOLDS THAT THE FAILURE TO SHOW WRITTEN TRUST AGREEMENT RENDERS THE ALLEGED AGREEMENT UNENFORCEABLE BY NOT CONSIDERING THE SAME AS ONE UNDER IMPLIED TRUST. III THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT HOLDS THAT PAROL EVIDENCE AND/OR STATUTE OF FRAUDS APPLIED IN THE CASE AT BAR. IV THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT HOLDS THAT APPELLANTS HAVE TO REFUTE THE DEED OF SALE EXECUTED BY THE NERY SPOUSES IN FAVOR OF RAMON YAP BY CLEAR AND CONVINCING EVIDENCE NOTWITHSTANDING ADMISSION OF THE SAID DEED OF SALE. V THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT DID NOT CONSIDER THAT IN TRUST THE TITLE IS IN THE NAME OF THE TRUSTEE AND NOT IN THE NAME OF THE NAKED OWNER. VI THE RESPONDENT COURT OF APPEALS ERRED WHEN IT HOLDS THAT RAMON YAP CAN NOT BE A DUMMY OF LORENZO YAP BEING ALIEN AND DISQUALIFIED TO OWN REAL PROPERTY.

VII THE RESPONDENT COURT OF APPEALS ERRED IN NOT DECLARING THE TITLE IN THE NAME OF RAMON YAP VOID BEING ACQUIRED AS DUMMY. VIII THE RESPONDENT COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT RULED THAT BENJAMIN YAP HAS POSSESSION OF APARTMENT UNIT 123 LIKEWISE OWNERSHIP PERSONAL PROPERTIES THEREIN ON THE BASIS OF THE INVENTORY OF THE SHERIFF OF THE COURT A QUO BY WAY OF A SUBSEQUENT MANDATORY INJUNCTION WHICH WAS DENIED.1 The Court finds no merit in the appeal. To begin with, a brief discussion on the trust relation between two parties could be helpful. A trust may either be express or implied.2 Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words evincing an intention to create a trust.3 Implied trusts are those which, without being express, are deducible from the nature of the transaction as matters of intent or, independently of the particular intention of the parties, as being superinduced on the transaction by operation of law basically by reason of equity.4 These species of implied trust are ordinarily subdivided into resulting and constructive trusts.5 A resulting trust is one that arises by implication of law and presumed always to have been contemplated by the parties, the intention as to which can be found in the nature of their transaction although not expressed in a deed or instrument of conveyance.6 Resulting trusts are based on the equitable doctrine that it is the more valuable consideration that the legal title that determines the equitable interest in property.7 Upon the other hand, a constructive trust is a trust not created by any word or phrase, either expressly or impliedly, evincing a direct intention to create a trust, but one that arises in order to satisfy the demands of justice. It does not come about by agreement or intention but in main by operation of law8 construed against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold.9 One basic distinction between an implied trust and an express trust is that while the former may be established by parol evidence, the latter cannot. Even then, in order to establish an implied trust in real property by parol evidence, the proof should be as fully convincing as if the acts giving rise to the trust obligation are proven by an authentic document.10 An implied trust, in fine, cannot be established upon vague and inconclusive proof.11

Unfortunately for petitioners, the issues they submit in the case at bar boil down to the appreciation of the evidence presented. The Court of Appeals, sustaining the court a quo, has found the evidence submitted by petitioners to be utterly wanting,12 consisting mainly of the self-serving testimony of Sally Yap. She herself admitted that the business establishment of her husband Lorenzo was razed by fire in 1964 that would somehow place to doubt the claim that he indeed had the means to purchase the subject land about two years later from the Nery spouses. Upon the other hand, Ramon Yap was by then an accountant with apparent means to buy the property himself. At all events, findings of fact by the Court of Appeals, particularly when consistent with those made by the trial court, should deserve utmost regard when not devoid of evidentiary support. No cogent reason had been shown by petitioners for the Court to now hold otherwise. Not to be dismissed, furthermore, is the long standing and broad doctrine of clean hands that will not allow the creation or the use of a juridical relation, a trust whether express or implied included, to perpetrate fraud or tolerate bad faith nor to subvert, directly or indirectly, the law. The trust agreement between Ramon and Lorenzo, if indeed extant, would have been in contravention of, in fact the fundamental law. Then Section 5, Article XIII, of the 1935 Constitution has provided that Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations, qualified to acquire or hold lands of the public domain in the Philippines. The mandate has also been adopted in Section 14, Article XIV, of the 1973 Constitution and now reiterated under Section 7, Article XII, of the 1987 Constitution. A trust or a provision in the terms of a trust would be invalid if the enforcement of the trust or provision is against the law even though its performance does not involve the commission of a criminal or tortuous act. It likewise must follow that what the parties are not allowed to do expressly is one that they also may not do impliedly as, for instance, in the guise of a resulting trust.13 The foregoing disquisition renders unnecessary the resolution of the incidental issues raised in the petition. WHEREFORE, the instant petition is DENIED, and the decision of the respondent Court of Appeals of 08 January 1998 in C.A.-G.R. CV No. 46838 is AFFIRMED. Costs against petitioners. SO ORDERED.

Express trust vs. implied trust

THIRD DIVISION [G.R. No. 109307. November 25, 1999] TEODORA SALTIGA DE ROMERO, PRESENTACION ROMERO MAMA, Represented by SABDULLAH MAMA, LUCITA ROMERO PACAS, GLORIOSA ROMERO RASONABLE and MINDALINA ROMERO NUENAY, petitioners, vs. THE HONORABLE COURT OF APPEALS, THE HONORABLE SEVENTEENTH DIVISION and LUTERO ROMERO and NATIVIDAD ROMERO and THE DEVELOPMENT BANK OF THE PHILIPPINES, ILIGAN BRANCH, ILIGAN CITY and THE REGISTER OF DEEDS OF LANAO DEL NORTE, respondents. DECISION GONZAGA_REYES, J.: Before us is a Petition for Review on Certiorari of the decision of the Court of Appeals[1] in CA-G.R. CV No. 33164 entitled TEODORA SALTIGA DE ROMERO ET. AL. vs. LUCERO ROMERO ET. AL. and LUTERO ROMERO, ET. AL. vs. SPOUSES MELITON PACAS, ET. AL. involving two civil cases which were tried jointly by the Regional Trial Court of Lanao Del Norte, Branch 7, namely: 1. Civil Case No. 591, which was filed by herein Petitioners Teodora Saltiga De Romero, Presentacion Romero- Mama (PRESENTACION), Lucita Romero-Pacas (LUCITA), Gloriosa Romero-Rasonable (GLORIOSA), and Mindalina Romero-Nuenay (MINDALINA) against Lutero Romero (LUTERO) and the Development Bank of the Philippines (DBP) for reconveyance of their share in a parcel of land, Lot 23 Pls-35, titled in the name of LUTERO; and 2. Civil Case No. 1056, which was filed by LUTERO and his wife Natividad S. Romero against LUCITA and her husband Meliton Pacas, PRESENTACION and her husband Sabdullah Mama and GLORIOSA and her husband Dionisio Rasonable for annulment of three affidavits wherein LUTERO supposedly sold to them shares over Lot No. 23 Pls35. The facts as found by the Court of Appeals are as follows: From the evidence presented by the appellants, it appears that on December 12, 1939 Eugenio Romero bought from spouses Celedonio Jaug and Sofia Macan the latters rights, interest, participation, ownership and possession of 12

hectares of land. The land in question was then public land. When Eugenio Romero applied for a homestead patent for said land, the same was disapproved by the Bureau of Lands because said Romero already had applied for a homestead patent for 24 hectares and was disqualified from owning the additional 12 hectares. Eugenio Romero placed the application in the name of his eldest son, Eutiquio Romero, allegedly in trust for all the children of Eugenio. When Eutiquio got married and had children, his brothers and sisters got worried that his heirs may claim the land so the application was transferred in the name of Lutero Romero, the second son of Eugenio who was then still single. When Lutero in turn got married, he relinquished the application in favor of his younger brother Ricardo through an instrument dated July 5, 1952. The spouses Eugenio Romero and Teodora Saltiga had nine (9) children. Other than the three (3) sons aforenamed, they had six (6) daughters, namely Generosa, Diosdada, Mindalina, Lucita, Presentacion and Gloriosa. Eugenio Romero died sometime in 1948. In 1961 his widow Teodora caused the land in question to be subdivided among six (6) of her children, the other three (3) having already been given their shares in the other properties of the Romero spouses. The twelve (12) hectares were supposedly divided equally among Lutero, Ricardo, Mindalina, Lucita, Presentacion, and Gloriosa who all got about two (2) hectares each. Subsequently, however, Ricardo conveyed his share to Lucita and Gloriosa who therefore had 3 hectares each. On the other hand, Mindalina left her share in the care of her mother Teodora and her sister Presentacion because she left for Davao City. Lutero later requested that he be allowed to farm this share of Mindalina, thus he occupied a total of 4 hectares with the consent of his mother Teodora and sister Presentacion. The appellants further claimed that after the partition, they had been in occupancy of their respective shares through their tenants. However, appellee Lutero Romero presented evidence to the effect that sometime in 1969 a policeman picked him up and brought him to the office of Mayor Pablito Abragan of Kapatagan where he found his mother Teodora and his three (3) sisters Gloriosa, Presentacion and Lucita and the respective husbands of the latter two. He testified that when he arrived at the office, he was presented three (3) affidavits for his signature. Said affidavits were to the effect that he sold three (3) hectares each out of the 12 hectares of land to his sister Gloriosa, his brother-in-law Sabdullah Mama married to Presentacion Romero, and to Meliton Pacas married to Lucita Romero for a consideration of P3,000.00 each.

Appellee Lutero Romero testified that he told the mayor that he was not selling the land and that he could not do so because the five-year period had not yet elapsed but the mayor told him to just sign the affidavits because after five (5) years his sisters will get the land and pay for them and that if they would not pay, the mayor will take steps to return the land personally to him. Lutero stated that he has not been paid for the land by his sisters. Lutero Romeo claimed that as early as 1940-1941 he had already been in occupancy of the 12 hectares in question when it was shown to him by this father who owned the adjoining parcel; and that the said land had been titled in his name even while his father Eugenio was still alive. Indeed it appears that the title to the property, O.C. T No. P-2,261, had been issued to Lutero Romero as early as April 26, 1967, after the homestead patent was issued in his favor on April 7, 1967. He said that his three (3) sisters occupied portions of the property only in 1969, after he was forced to sign the affidavits by Mayor Abragan. Lutero Romero had thereafter repudiated the three (3) affidavits on August 12, 1974. Because of this, estafa charges were filed against him by the three (3) parties concerned but said charges were dismissed. It further appears that Lutero Romero obtained a loan from the Development Bank of the Philippines on December 3, 1975 and mortgaged the land in question as collateral for said loan. Appellants claim that only then did they know that the land had been titled in the name of Lutero Romero. Thereafter, through a letter dated August 2, 1976, Lutero Romero asked his sisters to vacate the land in question. A few days thereafter, or on August 14, 1976, Civil Case No. 591 was filed against Lutero Romero.[2] On March 11, 1991, the RTC rendered a decision the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered: 1. Declaring the three (3) affidavits of sale as null and void and no effect; 2. Ordering the plaintiffs in Civil Case No. 591 and defendants in Civil Case No. 1056, namely Sabdullah Mama, Presentation Romero-Mama Gloriosa Romero Rasonable, Meliton Pacas and Lucita Romero to surrender and to deliver to Lutero Romero the possession of all the portions of Lot 23, Pls-35;

3. Ordering the Municipal Assessor of Kapatagan, Lanao del Norte to cancel Tax Declaration Nos. 6029, 6030, 6031 and 6032 in the names of defendants (Civil Case No.1056) Sabdullah Mama, Gloriosa Rasonable, plaintiff Lutero Romero and defendant Meliton Pacas and to restore Tax Declaration No. 1347 in the name of Lutero Romero for the entire Lot 23, Pls-35; 4. Ordering the defendants (Civil Case No. 1056) to pay to the plaintiff the sum of TEN THOUSAND (P10,000.00) PESOS as actual damages; 5. Ordering the defendants (Civil Case no. 1056) to pay to the plaintiffs the sum of TEN THOUSAND (P10,000.00) Pesos as moral damages; and 6. Ordering the defendants (Civil Case No. 1056) to pay the cost of this proceeding. SO ORDERED.[3] Not satisfied with the decision of the RTC, petitioners appealed to the Court of Appeals, which affirmed the decision of the RTC in favor of LUTERO. Hence this petition where the petitioners assign the following issues: WHETHER OR NOT LUTERO ROMERO IS A TRUSTEE OF LOT 23 PLS-35 FOR THE BENEFIT OF THE HEIRS OF EUGENIO ROMERO. WHETHER OR NOT WITH OR WITHOUT SAID THREE (3) AFFIDAVITS IN QUESTION PETITIONERS VALID CAUSE OF ACTION CAN STAND OR NOT.[4] DBP filed its comment to the petition and seeks the dismissal of the case against it considering that the agricultural loan in favor of LUTERO has been paid in full. DBP maintains that since the mortgage was already cancelled, petitioners have no cause of action against it.[5] Petitioners contend that LUTERO merely holds Lot 23 Pls-35 in trust for the benefit of the heirs of his father EUGENIO since it was actually EUGENIO who first applied for the homestead but considering that EUGENIO was already granted a homestead, the application had to be placed in the name of his eldest son EUTIQUIO. The application was subsequently transferred to the name of LUTERO who later transferred the application in the name of Ricardo Romero (RICARDO), his younger brother. To support their contention, petitioners point to the testimony of LUTERO during the investigation of the homestead application of RICARDO to the effect that he transferred and relinquished his rights as trustee of the lot to RICARDO. The fact that LUTERO was able to cause the

issuance of the Homestead title of the land in question under his name clearly shows that LUTERO employed fraud in procuring the same. Consequently, herein petitioners are entitled to recover the said lot. Petitioners also rely on the three affidavits of sale executed by LUTERO wherein he sold portions of Lot 23 Pls-35 in favor of GLORIOSA, PRESENTACION and her husband and LUCITA and her husband. They claim that pursuant to these three affidavits, LUTERO no longer has a claim over Lot 23 Pls-35.[6] On the other hand, respondents maintain that LUTERO did not commit fraud in the titling of Lot 23 Pls-35. They allege that the petitioners failed to prove this during the trial of the case. On the contrary, LUTERO complied with all the requirements of the law when he successfully obtained title to the lot. Respondents also deny that LUTERO held the land in trust for the benefit of the heirs of his father EUGENIO. According to them, this violates the provisions of The Public Land Act. Even assuming that a trust in fact was created, such is null and void for being contrary to law. Finally, respondents maintain that the three affidavits of sale executed in favor of the petitioners are void since they were simulated and not supported by any consideration; and they were executed within the five-year prohibitory period from the issuance of the patent.[7] The Court of Appeals ruled in favor of LUTERO, stating: Appellants herein maintain that the land was held by Lutero Romero, only in trust for his brothers and sisters because the land belonged to their father Eugenio Romero. We do not find any basis for this posture. Eugenio Romero was never the owner of the land in question because all he bought from the Jaug spouses were the alleged rights and interests, if there was any, to the said land which was then part of the public domain. The Jaugs could not have sold said land to Eugenio as they did not own it. Eugenio Romero was not granted, and could not have been granted, a patent for said land because he was disqualified by virtue of the fact that he already had applied for the maximum limit of 24 hectares to which he was entitled. The land in question could not therefore have passed on from him to his children. On the other hand, Lutero Romero applied for a homestead patent over the land in question and his application was duly approved. The appellants have not established that there was any fraud committed in this application. In fact it appears that there was even a hearing conducted by the Bureau of Lands on the application because a certain Potenciano Jaug had been contesting the application. Under the presumption of law, that official duty has been regularly performed, there appears to be no ground to question the grant of the patent to Lutero Romero in 1967.

His sisters Gloriosa, Presentacion, and Lucita apparently recognized Luteros ownership of the property when in 1969 they sought the help of the mayor of Kapatagan to convince Lutero to execute affidavits of sale in their favor. However, Lutero could not have sold any portion of the property to them. Any such sale executed within five (5) year period from the date of the issuance of the title is null and void even if the sale was made by the homesteader in favor of his/her descendants (Gayapano vs. IAC, 199 SCRA 309). Furthermore, it has been established that the three supposed vendees never paid any consideration for the supposed sale of the lots they occupied. We agree with the observation of the appellee that under the theory of the appellants, the latter had sought to circumvent the law. It would appear that because Eugenio Romero could not legally qualify to have the land in question, he had allegedly sought to place the application in anothers name with the same intention to own it through another. This certainly cannot be countenanced.[8] We find no reversible error committed by the Court of Appeals. The core issue in this case is whether LUTERO acquired Lot 23 Pls-35 in trust for the benefit of the heirs of EUGENIO. A trust is the legal relationship between a person having an equitable ownership in property and another person owning the legal title to such property, the equitable ownership of the former entitling him to performance of certain duties and the exercise of certain powers by the latter.[9] Trust relations between parties may be express or implied.[10] Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words evidencing an intention to create a trust.[11] Implied trusts are those which without being express, are deducible from the nature of the transaction as matters of intent, or which are superinduced on the transaction by operation of law as a matter of equity, independently of the particular intention of the parties.[12] Implied trusts may either be resulting or constructive trusts, both coming into by operation of law. Resulting trusts are based on the equitable doctrine that valuable consideration and not legal title determines the equitable title or interest and are presumed always to have been contemplated by the parties. They arise from the nature or circumstances of the consideration involved in a transaction whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal title for the benefit of another. On the other hand, constructive trusts are created by the construction of equity in order to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or hold the legal right to property, which he ought not, in equity and good conscience, to hold.[13]

However, it has been held that a trust will not be created when, for the purpose of evading the law prohibiting one from taking or holding real property, he takes a conveyance thereof in the name of a third person.[14] In the present case, the petitioners did not present any evidence to prove the existence of the trust. Petitioners merely alleged that LUTERO, through fraudulent means, had the title of Lot 23 Pls-35 issued in his name contrary to the alleged agreement between the family that LUTERO would merely hold the lot in trust for the benefit of EUGENIOs heirs. The alleged agreement was not proven and even assuming that the petitioners duly proved the existence of the trust, said trust would be of doubtful validity considering that it would promote a direct violation of the provisions of the Public Land Act as regards the acquisition of a homestead patent. A homestead applicant is required by law to occupy and cultivate the land for his own benefit, and not for the benefit of someone else.[15] Furthermore, under Section 12 of The Public Land Act (CA 141), a person is allowed to enter a homestead not exceeding twenty-four (24) hectares. In the present case, it is not disputed that EUGENIO already applied for a homestead patent for twenty-four (24) hectares of land and was disqualified from applying for an additional twelve (12) hectares. If we uphold the theory of the petitioners and rule that a trust in fact existed, we would be abetting a circumvention of the statutory prohibitions stated under the Public Land Act. We therefore find no legal or factual basis to sustain the contention of the petitioners that LUTERO merely held Lot 23 Pls-35 in trust for the benefit of the heirs of EUGENIO. As for the alleged sale of three portions of the lot for a consideration of P3,000.00 each evidenced by the three affidavits of sale executed by LUTERO in favor of GLORIOSA, PRESENTACION and LUCITA, the Court of Appeals correctly declared the three conveyances void. CA 141 prohibits the alienation of a homestead within five years from the issuance of the patent and grant under Section 118, which states: Sec. 118. Except in favor of the Government or any of its branches, units, or institutions, lands acquired under free patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of issuance of the patent and grant, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period, but the improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or corporations. No alienation, transfer, or conveyance of any homestead after five years and before twenty-five years after the issuance of title shall be valid without the

approval of the Secretary of Agriculture and Commerce, which approval shall not be denied except on constitutional and legal grounds. The conveyance of a homestead before the expiration of the five-year prohibitory period following the issuance of the homestead patent is null and void and cannot be enforced, for it is not within the competence of any citizen to barter away what public policy by law seeks to preserve.[16] In the present case, since the sales were made on January 17, 1969 or less than two years after the issuance of LUTEROs title to the homestead on April 7, 1967, the sales are clearly void. Finally, we cannot grant DBPs prayer to be dropped from the case even if the mortgage in its favor has been cancelled. DBP did not appeal the decision of the Court of Appeals and cannot therefore seek affirmative relief from this Court other than the ones granted in the decision of the court below.[17] All that said appellee can do is to make a counter-assignment of errors or to argue on issues raised at the trial only for he purpose of sustaining the judgment in his favor, even on grounds not included in the decision of the court a quo nor raised in the appellants assignment of errors or arguments. WHEREFORE, the instant petition is hereby DENIED. SO ORDERED. Melo, (Chairman) Vitug, Panganiban, and Purisima, JJ., concur

Express trust vs. implied trust

SECOND DIVISION RICHARD B. LOPEZ, in his Capacity as Trustee of the Trust Estate of the late Juliana LopezManzano, Petitioner, G.R. No. 157784 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus -

COURT OF APPEALS, CORAZON LOPEZ, FERNANDO LOPEZ, ROBERTO LOPEZ, represented by LUZVIMINDA LOPEZ, MARIA Promulgated: ROLINDA MANZANO, MARIA ROSARIO MANZANO SANTOS, JOSE MANZANO, JR., NARCISO MANZANO (all represented by December 16, 2008 Attorney-in-fact, MODESTO RUBIO), MARIA CRISTINA MANZANO RUBIO, IRENE MONZON and ELENA MANZANO, Respondents. x--------------------------------------------------------------------------------x DECISION TINGA, J.:

This is a petition for review on certiorari [1]under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision[2] and Resolution[3] of the Court of Appeals in CA-G.R. CV No. 34086. The Court of Appeals decision affirmed the summary judgment of the Regional Trial Court (RTC), Branch 10, Balayan,Batangas, dismissing petitioners action for reconveyance on the ground of prescription. The instant petition stemmed from an action for reconveyance instituted by petitioner Richard B. Lopez in his capacity as trustee of the estate of the late

Juliana Lopez Manzano (Juliana) to recover from respondents several large tracts of lands allegedly belonging to the trust estate of Juliana. The decedent, Juliana, was married to Jose Lopez Manzano (Jose). Their union did not bear any children. Juliana was the owner of several properties, among them, the properties subject of this dispute. The disputed properties totaling more than 1,500 hectares consist of six parcels of land, which are all located in Batangas. They were the exclusive paraphernal properties of Juliana together with a parcel of land situated in Mindoro known as Abra de Ilog and a fractional interest in a residential land on Antorcha St., Balayan, Batangas. On 23 March 1968, Juliana executed a notarial will,[4] whereby she expressed that she wished to constitute a trust fund for her paraphernal properties, denominated as Fideicomiso de Juliana Lopez Manzano (Fideicomiso), to be administered by her husband. If her husband were to die or renounce the obligation, her nephew, Enrique Lopez, was to become administrator and executor of the Fideicomiso. Two-thirds (2/3) of the income from rentals over these properties were to answer for the education of deserving but needy honor students, while one-third 1/3 was to shoulder the expenses and fees of the administrator. As to her conjugal properties, Juliana bequeathed the portion that she could legally dispose to her husband, and after his death, said properties were to pass to her biznietos or great grandchildren. Juliana initiated the probate of her will five (5) days after its execution, but she died on 12 August 1968, before the petition for probate could be heard. The petition was pursued instead in Special Proceedings (S.P.) No. 706 by her husband, Jose, who was the designated executor in the will. On 7 October 1968, the Court of First Instance, Branch 3, Balayan, Batangas, acting as probate court, admitted the will to probate and issued the letters testamentary to Jose. Jose then submitted an inventory of Julianas real and personal properties with their appraised values, which was approved by the probate court. Thereafter, Jose filed a Report dated 16 August 1969, which included a proposed project of partition. In the report, Jose explained that as the only compulsory heir of Juliana, he was entitled by operation of law to one-half (1/2) of Julianas paraphernal properties as his legitime, while the other one-half (1/2) was to be constituted into the Fideicomiso. At the same time, Jose alleged that he and Juliana had outstanding debts totaling P816,000.00 excluding interests, and that these debts were secured by real estate mortgages. He noted that if these debts were liquidated, the residuary estate available for distribution would, value-wise, be very small.

From these premises, Jose proceeded to offer a project of partition. The relevant portion pertaining to the Fideicomiso stated, thus: PROJECT OF PARTITION 14. Pursuant to the terms of the Will, one-half (1/2) of the following properties, which are not burdened with any obligation, shall be constituted into the Fidei-comiso de Juliana LopezManzano and delivered to Jose Lopez Manzano as trustee thereof: Title Location M.) Improvements Abra de Ilog, etc. Mindoro Antorcha St. A 13,040 Balayan, Batangas thereof) TCT - 540 No. Area 2,940,000 (Sq. pasture,

TCT residential

(1/6

1217-

and all those properties to be inherited by the decedent, by intestacy, from her sister, Clemencia Lopez y Castelo. 15. The other half (1/2) of the aforesaid properties is adjudicated to Jose Lopez Manzano as heir. Then, Jose listed those properties which he alleged were registered in both his and Julianas names, totaling 13 parcels in all. The disputed properties consisting of six (6) parcels, all located in Balayan, Batangas, were included in said list. These properties, as described in the project of partition, are as follows: Title No. Area (Sq. M.) Improvements Location Pantay, Calaca, uts Batangas Mataywanak, OCT29[6]94 485,486 Tuy, Batangas sugar 91,283 cocon

Patugo, Balayan, OCT2807 16,757,615 Batangas

coconut, sugar, citrus, paste ur

Cagayan, Balayan, Batangas Pook, Baayan Batangas Bolbok, Balayan, Batangas Calzada, Balayan, Batangas Gumamela, Balayan, Batangas Bombon, Balayan, Batangas Paraaque, Rizal Paraaque, Rizal Modesto St.,

TCT-1220 TCT1281

411,331

sugar

135,922 sugar

TCT18845 sugar TCT 1978 sugar TCT-2575 829 4,532 TCT282340 residential TCT11577 residential 52212 residential 800 Manila TCT137.8 800 2,312 444,998

and the existing sugar quota in the name of the deceased with the Central Azucarera Don Pedro at Nasugbo. 16. The remaining shall likewise go to Jose Lopez Manzano, with the condition to be annotated on the titles

thereof, that upon his death, the same shall pass on to Corazon Lopez, Ferdinand Lopez, and Roberto Lopez: Location M.) Improvements Title No. 482,872 523 Area sugar residential (Sq.

Dalig, Balayan, TCT-10080 Batangas San Juan, Rizal TCT-53690

On 25 August 1969, the probate court issued an order approving the project of partition. As to the properties to be constituted into the Fideicomiso, the probate court ordered that the certificates of title thereto be cancelled, and, in lieu thereof, new certificates be issued in favor of Jose as trustee of the Fideicomiso covering one-half (1/2) of the properties listed under paragraph 14 of the project of partition; and regarding the other half, to be registered in the name of Jose as heir of Juliana. The properties which Jose had alleged as registered in his and Julianas names, including the disputed lots, were adjudicated to Jose as heir, subject to the condition that Jose would settle the obligations charged on these properties. The probate court, thus, directed that new certificates of title be issued in favor of Jose as the registered owner thereof in its Order dated 15 September 1969. On even date, the certificates of title of the disputed properties were issued in the name of Jose. The Fideicomiso was constituted in S.P No. 706 encompassing one-half (1/2) of the Abra de Ilog lot on Mindoro, the 1/6 portion of the lot in Antorcha St. inBalayan, Batangas and all other properties inherited ab intestato by Juliana from her sister, Clemencia, in accordance with the order of the probate court in S.P. No. 706. The disputed lands were excluded from the trust. Jose died on 22 July 1980, leaving a holographic will disposing of the disputed properties to respondents. The will was allowed probate on 20 December 1983 in S.P. No. 2675 before the RTC of Pasay City. Pursuant to Joses will, the RTC ordered on 20 December 1983 the transfer of the disputed properties to the respondents as the heirs of Jose. Consequently, the certificates of title of the disputed properties were cancelled and new ones issued in the names of respondents. Petitioners father, Enrique Lopez, also assumed the trusteeship of Julianas estate. On 30 August 1984, the RTC of Batangas, Branch 9 appointed petitioner as trustee of Julianas estate in S.P. No. 706. On 11 December 1984, petitioner instituted an action for reconveyance of parcels of land with sum of money before the RTC of Balayan, Batangas against respondents. The

complaint[5] essentially alleged that Jose was able to register in his name the disputed properties, which were theparaphernal properties of Juliana, either during their conjugal union or in the course of the performance of his duties as executor of the testate estate of Juliana and that upon the death of Jose, the disputed properties were included in the inventory as if they formed part of Joses estate when in fact Jose was holding them only in trust for the trust estate of Juliana. Respondents Maria Rolinda Manzano, Maria Rosario Santos, Jose Manzano, Jr., Narciso Manzano, Maria Cristina Manzano Rubio and Irene Monzon filed a joint answer[6] with counterclaim for damages. Respondents Corazon, Fernando and Roberto, all surnamed Lopez, who were minors at that time and represented by their mother, filed a motion to dismiss,[7] the resolution of which was deferred until trial on the merits. The RTC scheduled several pretrial conferences and ordered the parties to submit pre-trial briefs and copies of the exhibits. On 10 September 1990, the RTC rendered a summary [8] judgment, dismissing the action on the ground of prescription of action. The RTC also denied respondents motion to set date of hearing on the counterclaim. Both petitioner and respondents elevated the matter to the Court of Appeals. On 18 October 2002, the Court of Appeals rendered the assailed decision denying the appeals filed by both petitioner and respondents. The Court of Appeals also denied petitioners motion for reconsideration for lack of merit in its Resolution dated3 April 2003. Hence, the instant petition attributing the following errors to the Court of Appeals: I. THE COURT OF APPEALS CONCLUSION THAT PETITIONERS ACTION FOR [RECONVEYANCE] HAS PRESCRIBED TAKING AS BASIS SEPTEMBER 15, 1969 WHEN THE PROPERTIES IN DISPUTE WERE TRANSFERRED TO THE NAME OF THE LATE JOSE LOPEZ MANZANO IN RELATION TO DECEMBER 12, 1984WHEN THE ACTION FOR RECONVEYANCE WAS FILED IS ERRONEOUS. II. THE RESPONDENT COURT OF APPEALS CONCLUSION IN FINDING THAT THE FIDUCIARY RELATION ASSUMED BY THE LATE JOSE LOPEZ MANZANO, AS TRUSTEE, PURSUANT TO THE LAST WILL AND TESTAMENT OF JULIANA LOPEZ MANZANO WAS IMPLIED TRUST, INSTEAD OF EXPRESS TRUST IS EQUALLY ERRONEOUS.

None of the respondents filed a comment on the petition. The counsel for respondents Corazon, Fernando and Roberto, all surnamed Lopez, explained that he learned that respondents had migrated to the United States only when the case was pending before the Court of Appeals.[9] Counsel for the rest of the respondents likewise manifested that the failure by said respondents to contact or communicate with him possibly signified their lack of interest in the case.[10] In a Resolution dated19 September 2005, the Court dispensed with the filing of a comment and considered the case submitted for decision.[11]

The core issue of the instant petition hinges on whether petitioners action for reconveyance has prescribed. The resolution of this issue calls for a determination of whether an implied trust was constituted over the disputed properties when Jose, the trustee, registered them in his name. Petitioner insists that an express trust was constituted over the disputed properties; thus the registration of the disputed properties in the name of Jose as trustee cannot give rise to prescription of action to prevent the recovery of the disputed properties by the beneficiary against the trustee. Evidently, Julianas testamentary intent was to constitute an express trust over her paraphernal properties which was carried out when the Fideicomiso was established in S.P. No. 706.[12] However, the disputed properties were expressly excluded from the Fideicomiso. The probate court adjudicated the disputed properties to Jose as the sole heir of Juliana. If a mistake was made in excluding the disputed properties from the Fideicomiso and adjudicating the same to Jose as sole heir, the mistake was not rectified as no party appeared to oppose or appeal the exclusion of the disputed properties from the Fideicomiso. Moreover, the exclusion of the disputed properties from the Fideicomiso bore the approval of the probate court. The issuance of the probate courts order adjudicating the disputed properties to Jose as the sole heir of Juliana enjoys the presumption of regularity.[13] On the premise that the disputed properties were the paraphernal properties of Juliana which should have been included in the Fideicomiso, their registration in the name of Jose would be erroneous and Joses possession would be that of a trustee in an implied trust. Implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent or which are superinduced on the transaction by

operation of law as matters of equity, independently of the particular intention of the parties.[14] The provision on implied trust governing the factual milieu of this case is provided in Article 1456 of the Civil Code, which states: ART. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. In Aznar Brothers Realty Company v. Aying,[15] the Court differentiated two kinds of implied trusts, to wit: x x x In turn, implied trusts are either resulting or constructive trusts. These two are differentiated from each other as follows: Resulting trusts are based on the equitable doctrine that valuable consideration and not legal title determines the equitable title or interest and are presumed always to have been contemplated by the parties. They arise from the nature of circumstances of the consideration involved in a transaction whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal title for the benefit of another. On the other hand, constructive trusts are created by the construction of equity in order to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold.[16] A resulting trust is presumed to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction but not expressed in the deed itself.[17] Specific examples of resulting trusts may be found in the Civil Code, particularly Arts. 1448,[18] 1449,[19] 1451,[20] 1452[21] and 1453.[22] A constructive trust is created, not by any word evincing a direct intention to create a trust, but by operation of law in order to satisfy the demands of justice and to prevent unjust enrichment.[23] It is raised by equity in respect of property, which has been acquired by fraud, or where although acquired originally without fraud, it is against equity that it should be retained by the trusts are illustrated in Arts. person holding it.[24] Constructive [25] [26] [27] [28] 1450, 1454, 1455 and 1456.

The disputed properties were excluded from the Fideicomiso at the outset. Jose registered the disputed properties in his name partly as his conjugal share and partly as his inheritance from his wife Juliana, which is the complete reverse of the claim of the petitioner, as the new trustee, that the properties are intended for the beneficiaries of the Fideicomiso. Furthermore, the exclusion of the disputed properties from the Fideicomiso was approved by the probate court and, subsequently, by the trial court having jurisdiction over the Fideicomiso. The registration of the disputed properties in the name of Jose was actually pursuant to a court order. The apparent mistake in the adjudication of the disputed properties to Jose created a mere implied trust of the constructive variety in favor of the beneficiaries of theFideicomiso. Now that it is established that only a constructive trust was constituted over the disputed properties, may prescription for the recovery of the properties supervene? Petitioner asserts that, if at all, prescription should be reckoned only when respondents caused the registration of the disputed properties in their names on 13 April 1984 and not on 15 September 1969, when Jose registered the same in his name pursuant to the probate courts order adjudicating the disputed properties to him as the sole heir of Juliana. Petitioner adds, proceeding on the premise that the prescriptive period should be counted from the repudiation of the trust, Jose had not performed any act indicative of his repudiation of the trust or otherwise declared an adverse claim over the disputed properties. The argument is tenuous. The right to seek reconveyance based on an implied or constructive trust is not absolute. It is subject to extinctive prescription.[29] An action for reconveyancebased on implied or constructive trust prescribes in 10 years. This period is reckoned from the date of the issuance of the original certificate of title or transfer certificate of title. Since such issuance operates as a constructive notice to the whole world, the discovery of the fraud is deemed to have taken place at that time.[30] In the instant case, the ten-year prescriptive period to recover the disputed property must be counted from its registration in the name of Jose on 15 September 1969, when petitioner was charged with constructive notice that Jose adjudicated the disputed properties to himself as the sole heir of Juana and not as trustee of theFideicomiso. It should be pointed out also that Jose had already indicated at the outset that the disputed properties did not form part of the Fideicomiso contrary to

petitioners claim that no overt acts of repudiation may be attributed to Jose. It may not be amiss to state that in the project of partition submitted to the probate court, Jose had indicated that the disputed properties were conjugal in nature and, thus, excluded from Julianas Fideicomiso. This act is clearly tantamount to repudiating the trust, at which point the period for prescription is reckoned. In any case, the rule that a trustee cannot acquire by prescription ownership over property entrusted to him until and unless he repudiates the trust applies only to express trusts and resulting implied trusts. However, in constructive implied trusts, prescription may supervene even if the trustee does not repudiate the relationship. Necessarily, repudiation of said trust is not a condition precedent to the running of the prescriptive period.[31] Thus, for the purpose of counting the ten-year prescriptive period for the action to enforce the constructive trust, the reckoning point is deemed to be on 15 September 1969 when Jose registered the disputed properties in his name. WHEREFORE, the instant petition for review on certiorari is DENIED and the decision and resolution of the Court of Appeals in CA-G.R. CV No. 34086 are AFFIRMED. Costs against petitioner. SO ORDERED.

Other Special Proceedings Rule 99 Adoption and Custody of Minors

RA 8551 An act establishing rules and policies on the domestic adoption of Filipino children and for other purposes AM No. 02-6-02-SC Rules on Adoption

AM No. 03-04-04 SC Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors
THIRD DIVISION [G.R. No. 148311. March 31, 2005] IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner. DECISION SANDOVAL-GUTIERREZ, J.: May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition[1] to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;[2] that her mother is Gemma Astorga Garcia; that Stephanie has been using her mothers middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga be changed to Garcia, her mothers surname, and that her surname Garcia be changed to Catindig, his surname. On March 23, 2001,[3] the trial court rendered the assailed Decision granting the adoption, thus:

After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603. WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED.[4] On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration[5] praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name Garcia (her mothers surname) avoids the stigma of her

illegitimacy; and; (6) her continued use of Garcia as her middle name is not opposed by either the Catindig or Garcia families. The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained. Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother.[7] We find merit in the petition. Use Of Surname Is Fixed By Law For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.[8] It is both of personal as well as public interest that every person must have a name. The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.[9]

Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname[10] of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus: Art. 364. Legitimate and the surname of the father. legitimated children shall principally use

Art. 365. An adopted child shall bear the surname of the adopter. xxx Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, (2) Add the Roman numerals II, III, and so on. x x x Law Is Silent As To The Use Of Middle Name As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176[11] of the Family Code, as amended by Republic Act No. 9255, otherwise known as An Act Allowing Illegitimate Children To Use The Surname Of Their Father, is silent as to what middle name a child may use. The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mothers surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that an adopted child shall bear the surname of the adopter. Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; x x x However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the fathers surname indicates the family to which he belongs, for which reason he would insist

on the use of the fathers surname by the child but that, if he wants to, the child may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice David. Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. xxx Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. xxx Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second

name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied) In the case of an adopted child, the law provides that the adopted shall bear the surname of the adopters.[13] Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption.[14] The Underlying Intent of Adoption Is In Favor of the Adopted Child Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.[15] It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.[16] The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.[17] This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.[18] Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,[19] secures these rights and privileges for the adopted.[20] One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189[21] of the Family Code and Section 17[22] Article V of RA 8552.[23] Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 18[24], Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them Mama and Papa. Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.[25] The interests and welfare of the adopted child are of primary and paramount consideration,[26] hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.[27] Lastly, Art. 10 of the New Civil Code provides that: In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. This provision, according to the Code Commission, is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law.[28] Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mothers surname GARCIA as her middle name. Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED. Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

AM No. 03-04-04 SC Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors
FIRST DIVISION G.R. No. 125932 April 21, 1999 REPUBLIC OF THE PHILIPPINES, petitioners vs. CLAUDE A. MILLER and JUMRUS S. MILLER, respondents.

PARDO, J The Republic of the Philippines, through the Solicitor General, appealed originally to the Court of Appeals from a decision of the Regional Trial Court, Branch 59, Angeles City, granting the petition of respondent spouses to adopt the minor Michael Magno Madayag. In its decision promulgated on April 17, 1996, the Court of Appeals certified the case to the Supreme Court because the petition raised only questions of law. By resolution adopted on September 23, 1996, we accepted the appeal. We shall treat the appeal as one via certiorari from a decision of the regional trial court under Supreme Court Circular 2-90, dated March 9, 1990, on pure questions of law. The facts are undisputed and may be related as follows: On July 29, 1988, the spouses Claude A. Miller and Jumrus S. Miller, filed with the Regional Trial Court, Branch 59, Angeles City, a verified petition to adopt the minor Michael Magno Madayag. The trial court scheduled the petition for hearing on September 9, 1988, at 9:00 in the morning. At the hearing, with the attendance of an assistant city fiscal of Angeles City, in representation of the Solicitor General, respondents adduced evidence showing that: Claude A. Miller, 38 years old and Jumrus S. Miller, 40 years of age, both American citizens, are husband and wife, having been married on June 21, 1982.

They were childless and "do not expect to have sibling out of their union on account of a medical problem of the wife." Claude A. Miller was a member of the United States Air Force, as airman first class, assigned at Clark Air Base since January 26, 1985. The family maintains their residence at Don Bonifacio Subdivision, Balibago, Angeles City, since 1985. 1 The minor Michael Magno Madayag is the legitimate son of Marcelo S. Madayag, Jr. and Zenaida Magno. Born on July 14, 1987, at San Fernando, La Union, the minor has been in the custody of respondents since the first week of August 1987. Poverty and deep concern for the future of their son prompted the natural parents who have no visible means of livelihood to have their child adopted by respondents. They executed affidavits giving their irrevocable consent to the adoption by respondents. The Department of Social Welfare and Development, through its Regional office at San Fernando, Pampanga, recommended approval of the petition on the basis of its evaluation that respondents were morally, emotionally and financially fit to be adoptive parents and that the adoption would be to the minor's best interest and welfare.2 On May 12, 1989, the trial court rendered decision granting the petition for adoption, the dispositive portion of which reads as follows: WHEREFORE, finding that petitioners possess all the qualifications and none of the disqualifications for adoption, the instant petition is hereby Granted, and this Court decrees the minor MICHAEL MAGNO MADAYAG freed from all obligation of obedience and support with respect to natural parents and is hereby declared the child of the herein petitioners by adoption. The minor's surname shall be changed from "MADAYAG" to "MILLER", which is the surname of the herein petitioners. 3 In due time, the Solicitor General, in behalf of the Republic, interposed an appeal to the Court of Appeals. As heretofore stated, the Court of Appeals certified the case to this Court.

The issue raised is whether the court may allow aliens to adopt a Filipino child despite the prohibition under the Family Code, 4 effective on August 3, 1988 5 when the petition for adoption was filed on July 29, 1988, under the provision of the Child and Youth Welfare Code 6 which allowed aliens to adopt. The issue is not new. This Court has ruled that an alien qualified to adopt under the Child and Youth Welfare Code, which was in force at the time of the filing of the petition, acquired a vested right which could not be affected by the subsequent enactment of a new law disqualifying him. 7 Consequently, the enactment of the Family Code, effective August 3, 1988, will not impair the right of respondents who are aliens to adopt a Filipino child because the right has become vested at the time of filing of the petition for adoption and shall be governed by the law then in force. "A vested right is one whose existence, effectivity and extent does not depend upon events foreign to the will of the holder. The term expresses the concept of present fixed interest which in right reason and natural justice should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny." 8 "Vested rights include not only legal or equitable title to the enforcement of a demand, but also an exemption from new obligations created after the right has vested. 9 As long as the petition for adoption was sufficient in form and substance in accordance with the law in governance at the time it was filed, the court acquires jurisdiction and retains it until it fully disposes of the case. To repeat, the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches cannot be ousted by a subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance. 10 Therefore, an alien who filed a petition for adoption before the effective of the Family Code, although denied the right to adopt under Art. 184 of said Code, may continue with his petition under the law prevailing before the Family Code. 11 Adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter, as well as childless couples or persons to experience the joy of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural

parent instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objective of the law. 12 WHEREFORE, we hereby AFFIRM the appealed decision of the Regional Trial Court, Branch 59, Angeles City, in SP. Proc. No. 3562.1wphi1.nt No costs. SO ORDERED. Davide, Jr., C.J., Melo, Kapunan and Nares-Santiago, JJ., concur.

AM No. 03-04-04 SC Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors
SECOND DIVISION [G.R. No. 117209. February 9, 1996] REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. JOSE R. HERNANDEZ, in his capacity as Presiding Judge, Regional Trial Court, Branch 158, Pasig City and SPOUSES VAN MUNSON y NAVARRO and REGINA MUNSON y ANDRADE, respondents. DECISION REGALADO, J.: Indeed, whats in a name, as the Bard of Avon has written, since a rose by any other name would smell as sweet? This could well be the theme of the present appeal by certiorari which challenges, on pure questions of law, the order of the Regional Trial Court, Branch 158, Pasig City, datedSeptember 13, 1994[1] in JDRC Case No. 2964. Said court is faulted for having approved the petition for adoption of Kevin Earl Bartolome Moran and simultaneously granted the prayer therein for the change of the first name of said adoptee to Aaron Joseph, to complement the surname Munson y Andrade which he acquired consequent to his adoption. The facts are undisputed. On March 10, 1994, herein private respondent spouses, Van Munson y Navarro and Regina Munson y Andrade, filed a petition[2] to adopt the minor Kevin Earl Bartolome Moran, duly alleging therein the jurisdictional facts required by Rule 99 of the Rules of Court for adoption, their qualifications as and fitness to be adoptive parents, as well as the circumstances under and by reason of which the adoption of the aforenamed minor was sought. In the very same petition, private respondents prayed for the change of the first name of said minor adoptee to Aaron Joseph, the same being the name with which he was baptized in keeping with religious tradition, and by which he has been called by his adoptive family, relatives and friends since May 6, 1993 when he arrived at private respondents residence.[3] At the hearing on April 18, 1994, petitioner opposed the inclusion of the relief for change of name in the same petition for adoption. In its formal opposition dated May 3, 1995,[4]petitioner reiterated its objection to the joinder of the petition for adoption and the petitions for change of name in a single proceeding, arguing that these petitions should be conducted and pursued as two separate proceedings.

After considering the evidence and arguments of the contending parties, the trial court ruled in favor of herein private respondents in this wise: WHEREFORE, minor child Kevin Earl Bartolome Moran is freed from all legal obligations of obedience and maintenance with respect to his natural parents, and for all legal intents and purposes shall be known as Aaron Joseph Munson y Andrade, the legally adopted child of Van Munson and Regina Munson effective upon the filing of the petition on March 10, 1994. As soon as the decree of adoption becomes final and executory, it shall be recorded in the Office of the Local Civil Registrar of Pasig, Metro Manila pursuant to Section 8, Rule 99 and Section 6, Rule 103, respectively, of the Rules of Court, and shall be annotated in the record of birth of the adopted child, which in this case is in Valenzuela, Metro Manila, where the child was born. Likewise, send a copy of this Order to the National Census and Statistics Office, Manila, for its appropriate action consisten(t) herewith.[5] At this juncture, it should be noted that no challenge has been raised by petitioner regarding the fitness of herein private respondents to be adopting parents nor the validity of the decree of adoption rendered in their favor. The records show that the latter have commendably established their qualifications under the law to be adopters,[6] and have amply complied with the procedural requirements for the petition for adoption,[7] with the findings of the trial court being recited thus: To comply with the jurisdictional requirements, the Order of this Court dated March 16, 1994 setting this petition for hearing (Exh. A) was published in the March 31, April 6 and 13, 1994 issues of the Manila Chronicle, a newspaper of general circulation (Exhs. B to E and submarkings). x x x xxx xxx xxx

Petitioners apart from being financially able, have no criminal nor derogatory record (Exhs. K to V); and are physically fit to be the adoptive parents of the minor child Kevin (Exh. W). Their qualification to become the adoptive parents of Kevin Earl finds support also in the Social Case Study Report prepared by the DSWD through Social Worker Luz Angela Sonido, the pertinent portion of which reads: Mr. and Mrs. Munson are very religious, responsible, mature and friendly individuals. They are found physically healthy, mentally fit, spiritually and financially capable to adopt Kevin Earl Moran a.k.a Aaron Joseph.

Mr. and Mrs. Munson have provided AJ with all his needs. They unselfishly share their time, love and attention to him. They are ready and willing to continuously provide him a happy and secure home life. Aaron Joseph, on the other hand, is growing normally under the care of the Munsons. He had comfortably settled in his new environment. His stay with the Munsons during the six months trial custody period has resulted to a close bond with Mr. and Mrs. Munson and vice-versa. We highly recommend to the Honorable Court that the adoption of Kevin Earl Moran aka Aaron Joseph by Mr. and Mrs. Van Munson be legalized.[8] It has been said all too often enough that the factual findings of the lower court, when sufficiently buttressed by legal and evidential support, are accorded high respect and are binding and conclusive upon this Court.[9] Accordingly, we fully uphold the propriety of that portion of the order of the court below granting the petition for adoption. The only legal issues that need to be resolved may then be synthesized mainly as follows: (1) whether or not the court a quo erred in granting the prayer for the change of the registered proper or given name of the minor adoptee embodied in the petition for adoption; and (2) whether or not there was lawful ground for the change of name. I. It is the position of petitioner that respondent judge exceeded his jurisdiction when he additionally granted the prayer for the change of the given or proper name of the adoptee in a petition for adoption. Petitioner argues that a petition for adoption and a petition for change of name are two special proceedings which, in substance and purpose, are different from and are not related to each other, being respectively governed by distinct sets of law and rules. In order to be entitled to both reliefs, namely, a decree of adoption and an authority to change the given or proper name of the adoptee, the respective proceedings for each must be instituted separately, and the substantive and procedural requirements therefor under Articles 183 to 193 of the Family Code in relation to Rule 99 of the Rules of Court for adoption, and Articles 364 to 380 of the Civil Code in relation to Rule 103 of the Rules of Court for change of name, must correspondingly be complied with.[10] A perusal of the records, according to petitioner, shows that only the laws and rules on adoption have been observed, but not those for a petition for change of name.[11] Petitioner further contends that what the law allows is the change of the surname of the adoptee, as a matter of right, to conform with that of the adopter and as a natural consequence of the adoption thus granted. If what is sought is the change of the registered given or proper name, and since

this would involve a substantial change of ones legal name, a petition for change of name under Rule 103 should accordingly be instituted, with the substantive and adjective requisites therefor being conformably satisfied.[12] Private respondents, on the contrary, admittedly filed the petition for adoption with a prayer for change of name predicated upon Section 5, Rule 2 which allows permissive joinder of causes of action in order to avoid multiplicity of suits and in line with the policy of discouraging protracted and vexatious litigations. It is argued that there is no prohibition in the Rules against the joinder of adoption and change of name being pleaded as two separate but related causes of action in a single petition. Further, the conditions for permissive joinder of causes of action, i.e., jurisdiction of the court, proper venue and joinder of parties, have been met.[13] Corollarily, petitioner insists on strict adherence to the rule regarding change of name in view of the natural interest of the State in maintaining a system of identification of its citizens and in the orderly administration of justice.[14] Private respondents argue otherwise and invoke a liberal construction and application of the Rules, the welfare and interest of the adoptee being the primordial concern that should be addressed in the instant proceeding.[15] On this score, the trial court adopted a liberal stance in holding that Furthermore, the change of name of the child from Kevin Earl Bartolome to Aaron Joseph should not be treated strictly, it appearing that no rights have been prejudiced by said change of name. The strict and meticulous observation of the requisites set forth by Rule 103 of the Rules of Court is indubitably for the purpose of preventing fraud, ensuring that neither State nor any third person should be prejudiced by the grant of the petition for change of name under said rule, to a petitioner of discernment. The first name sought to be changed belongs to an infant barely over a year old. Kevin Earl has not exercised full civil rights nor engaged in any contractual obligations. Neither can he nor petitioners on his behalf, be deemed to have any immoral, criminal or illicit purpose for seeking said cha(n)ge of name. It stands to reason that there is no way that the state or any person may be so prejudiced by the action for change of Kevin Earls first name. In fact, to obviate any possible doubts on the intent of petitioners, the prayer for change of name was caused to be published together with the petition for adoption.[16] Art. 189 of the Family Code enumerates in no uncertain terms the legal effects of adoption:

(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. Clearly, the law allows the adoptee, as a matter of right and obligation, to bear the surname of the adopter, upon issuance of the decree of adoption. It is the change of the adoptees surname to follow that of the adopter which is the natural and necessary consequence of a grant of adoption and must specifically be contained in the order of the court, in fact, even if not prayed for by petitioner. However, the given or proper name, also known as the first or Christian name, of the adoptee must remain as it was originally registered in the civil register. The creation of an adoptive relationship does not confer upon the adopter a license to change the adoptees registered Christian or first name. The automatic change thereof, premised solely upon the adoption thus granted, is beyond the purview of a decree of adoption. Neither is it a mere incident in nor an adjunct of an adoption proceeding, such that a prayer therefor furtively inserted in a petition for adoption, as in this case, cannot properly be granted. The name of the adoptee as recorded in the civil register should be used in the adoption proceedings in order to vest the court with jurisdiction to hear and determine the same,[17] and shall continue to be so used until the court orders otherwise. Changing the given or proper name of a person as recorded in the civil register is a substantial change in ones official or legal name and cannot be authorized without a judicial order. The purpose of the statutory procedure authorizing a change of name is simply to have, wherever possible, a record of the change, and in keeping with the object of the statute, a court to which the application is made should normally make its decree recording such change)[18] The official name of a person whose birth is registered in the civil register is the name appearing therein, If a change in ones name is desired, this can only be done by filing and strictly complying with the substantive and procedural requirements for a special proceeding for change of name under Rule 103 of the Rules of Court, wherein the sufficiency of the reasons or grounds therefor can be threshed out and accordingly determined.

Under Rule 103, a petition for change of name shall be filed in the regional trial court of the province where the person desiring to change his name resides. It shall be signed and verified by the person desiring his name to be changed or by some other person in his behalf and shall state that the petitioner has been a bona fide resident of the province where the petition is filed for at least three years prior to such filing, the cause for which the change of name is sought, and the name asked for. An order for the date and place of hearing shall be made and published, with the Solicitor General or the proper provincial or city prosecutor appearing for the Government at such hearing. It is only upon satisfactory proof of the veracity of the allegations in the petition and the reasonableness of the causes for the change of name that the court may adjudge that the name be changed as prayed for in the petition, and shall furnish a copy of said judgment to the civil registrar of the municipality concerned who shall forthwith enter the same in the civil register. A petition for change of name being a proceeding in rem, strict compliance with all the requirements therefor is indispensable in order to vest the court with jurisdiction for its adjudication.[19] It is an independent and discrete special proceeding, in and by itself, governed by its own set of rules. A fortiori, it cannot be granted by means of any other proceeding. To consider it as a mere incident or an offshoot of another special proceeding would be to denigrate its role and significance as the appropriate remedy available under our remedial law system. The Solicitor General correctly points out the glaring defects of the subject petition insofar as it seeks the change of name of the adoptee,[20] all of which taken together cannot but lead to the conclusion that there was no petition sufficient in form and substance for change of name as would rightfully deserve an order therefor. It would be procedurally erroneous to employ a petition for adoption to effect a change of name in the absence of the corresponding petition for the latter relief at law. Neither can the allowance of the subject petition, by any stretch of imagination and liberality, be justified under the rule allowing permissive joinder of causes of action. Moreover, the reliance by private respondents on the pronouncements in Briz vs. Briz, et al.[21] and Peyer vs. Martinez, et al.[22] is misplaced. A restatement of the rule and jurisprudence on joinder of causes of action would, therefore, appear to be called for. By a joinder of actions, or more properly, a joinder of causes of action, is meant the uniting of two or more demands or rights of action in one action, the statement of more than one cause of action in a declaration.[23] It is the union of two or more civil causes of action, each of which could be made the basis of a separate suit, in the same complaint, declaration or petition. A plaintiff may

under certain circumstances join several distinct demands, controversies or rights of action in one declaration, complaint or petition.[24] As can easily be inferred from the above definitions, a party is generally not required to join in one suit several distinct causes of action. The joinder of separate causes of action, where allowable, is permissive and not mandatory in the absence of a contrary statutory provision, even though the causes of action arose from the same factual setting and might under applicable joinder rules be joined.[25] Modern statutes and rules governing joinders are intended to avoid a multiplicity of suits and to promote the efficient administration of justice wherever this may be done without prejudice to the rights of the litigants. To achieve these ends, they are liberally construed.[26] While joinder of causes of action is largely left to the option of a party litigant, Section 5, Rule 2 of our present Rules allows causes of action to be joined in one complaint conditioned upon the following requisites: (a) it will not violate the rules on jurisdiction, venue and joinder of parties; and (b) the causes of action arise out of the same contract, transaction or relation between the parties, or are for demands for money or are of the same nature and character. The objectives of the rule or provision are to avoid a multiplicity of suits where the same parties and subject matter are to be dealt with by effecting in one action a complete determination of all matters in controversy and litigation between the parties involving one subject matter, and to expedite the disposition of litigation at minimum cost. The provision should be construed so as to avoid such multiplicity, where possible, without prejudice to the rights of the litigants. Being of a remedial nature, the provision should be liberally construed, to the end that related controversies between the same parties may be adjudicated at one time; and it should be made effectual as far as practicable,[27] with the end in view of promoting the efficient administration of justice.[28] The statutory intent behind the provisions on joinder of causes of action is to encourage joinder of actions which could reasonably be said to involve kindred rights and wrongs, although the courts have not succeeded in giving a standard definition of the terms used or in developing a rule of universal application. The dominant idea is to permit joinder of causes of action, legal or equitable, where there is some substantial unity between them.[29] While the rule allows a plaintiff to join as many separate claims as he may have, there should nevertheless be some unity in the problem presented and a common question of law and fact involved, subject always to the restriction thereon regarding jurisdiction, venue and joinder of parties. Unlimited joinder is not authorized.[30] Our rule on permissive joinder of causes of action, with the proviso subjecting it to the correlative rules on jurisdiction, venue and joinder of parties[31] and

requiring a conceptual unity in the problems presented. effectively disallows unlimited joinder.[32] Turning now to the present petition, while it is true that there is no express prohibition against the joinder of a petition for adoption and for change of name, we do not believe that there is any relation between these two petitions, nor are they of the same nature or character, much less do they present any common question of fact or law, which conjointly would warrant their joinder. In short, these petitions do not rightly meet the underlying test of conceptual unity demanded to sanction their joinder under our Rules. As keenly observed and correctly pointed out by the Solicitor General A petition for adoption and a petition for change of name are two special proceedings which, in substance and purpose, are different from each other. Each action is individually governed by particular sets of laws and rules. These two proceedings involve disparate issues. In a petition for adoption, the court is called upon to evaluate the proposed adopters fitness and qualifications to bring up and educate the adoptee properly (Prasnick vs. Republic, 99 Phil. 665). On the other hand, in a petition for change of name, no family relations are created or affected for what is looked into is the propriety and reasonableness of the grounds supporting the proposed change of name (Yu vs. Republic, 17 SCRA 253). xxx xxx xxx

x x x Hence, the individual merits of each issue must be separately assessed and determined for neither action is dependent on the other.[33] The rule on permissive joinder of causes of action is clear. Joinder may be allowed only if the actions show a commonality of relationship and conform to the rules on jurisdiction, venue and joinder of parties (Section 5, Rule 2, Rules of Court). These conditions are wanting in the instant case. As already pointed out in our Petition (pp. 9-10), an action for adoption and an action for change of name are, in nature and purpose, not related to each other and do not arise out of the same relation between the parties. While what is cogent in an adoption proceeding is the proposed adopters fitness and qualifications to adopt, a petition for change of first name may only prosper upon proof of reasonable and compelling grounds supporting the change requested. Fitness to adopt is not determinative of the sufficiency of reasons justifying a change of name. And similarly, a change of first name cannot be justified in view of a finding that the proposed adopter was found

fit to adopt. There is just no way that the two actions can connect and find a common ground, thus the joinder would be improper. In contending that adoption and change of name may be similarly sought in one petition, private respondents rely upon Peyer vs. Martinez and Briz vs. Briz (p. 4, Comment). We however submit that these citations are non sequitur. In both cases, the fact of intimacy and relatedness of the issues is so pronounced. In Peyer, an application to pronounce the husband an absentee is obviously intertwined with the action to transfer the management of conjugal assets to the wife. In Briz, an action for declaration of heirship was deemed a clear condition precedent to an action to recover the land subject of partition and distribution proceeding. However, the commonality of relationship which stands out in both cases does not characterize the present action for adoption and change of name. Thus the rulings in Peyer and Briz find no place in the case at bar. Besides, it is interesting to note that although a joinder of the two actions was, in Briz, declared feasible, the Supreme Court did not indorse an automatic joinder and instead remanded the matter for further proceedings, granting leave to amend the pleadings and implead additional partiesdefendants for a complete determination of the controversy (Briz vs. Briz, 43 Phil. 763, 770). Such cautionary stance all the more emphasizes that although joinders are generally accepted, they are not allowed where the conditions are not satisfactorily met.[34] It furthermore cannot be said that the proposed joinder in this instance will make for a complete determination of all matters pertaining to the coetaneous grant of adoption and change of name of the adoptee in one petition. As already stated, the subject petition was grossly insufficient in form and substance with respect to the prayer for change of name of the adoptee. The policy of avoiding multiplicity of suits which underscores the rule on permissive joinder of causes of action is addressed to suits that are intimately related and also present interwoven and dependent issues which can be most expeditiously and comprehensively settled by having just one judicial proceeding, but not to suits or actions whose subject matters or corresponding reliefs are unrelated or diverse such that they are best taken up individually. In Nabus vs. Court of Appeals, et al. ,[35] the Court clarified the rule on permissive joinder of causes of action:

The rule is clearly permissive. It does not constitute an obligatory rule, as there is no positive provision of law or any rule of jurisprudence which compels a party to join all his causes of action and bring them at one and the same time. Under the present rules, the provision is still that the plaintiff may, and not that he must, unite several causes of action although they may be included in one of the classes specified. This, therefore, leaves it to the plaintiffs option whether the causes of action shall be joined in the same action, and no unfavorable inference may be drawn from his failure or refusal to do so. He may always file another action based on the remaining cause or causes of action within the prescriptive period therefor. (Italics supplied.) The situation presented in this case does not warrant exception from the Rules under the policy of liberal construction thereof in general, and for change of name in particular, as proposed by private respondents and adopted by respondent judge. Liberal construction of the Rules may be invoked in situations wherein there may be some excusable formal deficiency or error in a pleading, provided that the same does not subvert the essence of the proceeding and connotes at least a reasonable attempt at compliance with the Rules. Utter disregard of the Rules cannot justly be rationalized by harking on the policy of liberal construction. The Court is not impervious to the frustration that litigants and lawyers alike would at times encounter in procedural bureaucracy but imperative justice requires correct observance of indispensable technicalities precisely designed to ensure its proper dispensation.[36] It has long been recognized that strict compliance with the Rules of Court is indispensable for the prevention of needless delays and for the orderly and expeditious dispatch of judicial business.[37] Procedural rules are not to be disdained as mere technicalities that may be ignored at will to suit the convenience of a party. Adjective law is important in ensuring the effective enforcement of substantive rights through the orderly and speedy administration of justice. These rules are not intended to hamper litigants or complicate litigation but, indeed to provide for a system under which a suitor may be heard in the correct form and manner and at the prescribed time in a peaceful confrontation before a judge whose authority they acknowledge.[38] It cannot be overemphasized that procedural rules have their own wholesome rationale in the orderly administration of justice. Justice has to be administered according to the Rules in order to obviate arbitrariness, caprice, or whimsicality.[39] We have been cautioned and reminded in Limpot vs. CA, et al. that:[40] Rules of procedure are intended to ensure the orderly administration of justice and the protection of substantive rights in judicial and extrajudicial proceedings. It

is a mistake to propose that substantive law and adjective law are contradictory to each other or, as has often been suggested, that enforcement of procedural rules should never be permitted if it will result in prejudice to the substantive rights of the litigants. This is not exactly true; the concept is much misunderstood. As a matter of fact, the policy of the courts is to give both kinds of law, as complementing each other, in the just and speedy resolution of the dispute between the parties. Observance of both substantive rights is equally guaranteed by due process, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. xxx xxx xxx

x x (T)hey are required to be followed except only when for the most persuasive of reasons they may be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed. x x x. While it is true that a litigation is not a game of technicalities, this does not mean that the Rules of Court may be ignored at will and at random to the prejudice of the orderly presentation and assessment of the issues and their just resolution. Justice eschews anarchy. Only exceptionally in very extreme circumstances, when a rule deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy such that rigid application thereof frustrates rather than promotes substantial justice, will technicalities deserve scant consideration from the court. In such situations, the courts are empowered, even obligated, to suspend the operation of the rules.[41] We do not perceive any injustice that can possibly be visited upon private respondents by following the reglementary procedure for the change in the proper or given name that they seek for their adopted child. We are hard put to descry the indispensability of a change of the first name of the adoptee to his welfare and benefit. Nor is the said change of such urgency that would justify an exemption from or a relaxation of the Rules. It is the State that stands to be prejudiced by a wanton disregard of Rule 103 in this case, considering its natural interest in the methodical administration of justice and in the efficacious maintenance of a system of identification of its citizens. The danger wrought by non-observance, of the Rules is that the violation of or failure to comply with the procedure prescribed by law prevents the proper determination of the questions raised by the parties with respect to the merits of the case and makes it necessary to decide, in the first place, such questions as relate to the form of the action. The rules and procedure laid down for the trial court and the adjudication of cases are matters of public policy.[42] They are matters of public order and interest which can in no wise be changed or

regulated by agreements between or stipulations by parties to an action for their singular convenience.[43] In Garcia vs. Republic,[44] we are reminded of the definiteness in the application of the Rules and the importance of seeking relief under the appropriate proceeding: x x x The procedure set by law should be delimited. One should not confuse or misapply one procedure for another lest we create confusion in the application of the proper remedy. Respondent judges unmindful disregard of procedural tenets aimed at achieving stability of procedure is to be deplored. He exceeded his prerogatives by granting the prayer for change of name, his order being unsupported by both statutory and case law. The novel but unwarranted manner in which he adjudicated this case may be characterized as a regrettable abdication of the duty to uphold the teachings of remedial law and jurisprudence. II. Petitioner avers that it was error for the lower court to grant the petition for change of name without citing or proving any lawful ground. Indeed, the only justification advanced for the change of name was the fact of the adoptees baptism under the name Aaron Joseph and by which he has been known since he came to live with private respondents.[45] Private respondents, through a rather stilted ratiocination, assert that upon the grant of adoption, the subject minor adoptee ipso facto assumed a new identification and designation, that is, Aaron Joseph which was the name given to him during the baptismal rites. Allowing the change of his first name as prayed for in the petition, so they claim, merely confirms the designation by which he is known and called in the community in which he lives. This largely echoes the opinion of the lower court that naming the child Aaron Joseph was symbolic of naming him at birth, and that they, as adoptive parents, have as much right as the natural parents to freely select the first name of their adopted child.[46] The lower court was sympathetic to herein private respondents and ruled on this point in this manner: As adoptive parents, petitioner like other parents may freely select the first name given to his/her child as it is only the surname to which the child is entitled that is fixed by law. x x x. xxx xxx xxx

The given name of the minor was Kevin Earl, a name given for no other purpose than for identification purposes in a birth certificate by a woman who had all

intentions of giving him away. The naming of the minor as Aaron Joseph by petitioners upon the grant of their petition for adoption is symbolic of naming the minor at birth.[47] We cannot fathom any legal or jurisprudential basis for this attenuated ruling of respondent judge and must thus set it aside. It is necessary to reiterate in this discussion that a persons name is a word or combination of words by which he is known and identified, and distinguished from others, for the convenience of the world at large in addressing him, or in speaking of or dealing with him. It is both of personal as well as public interest that every person must have a name. The name of an individual has two parts: The given or proper name and the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.[48] By Article 408 of the Civil Code, a persons birth must be entered in the civil register. The official name of a person is that given him in the civil register. That is his name in the eyes of the law.[49] And once the name of a person is officially entered in the civil register, Article 376 of the same Code seals that identity with its precise mandate: no person can change his name or surname without judicial authority. This statutory restriction is premised on the interest of the State in names borne by individuals and entities for purposes of identification.[50] By reason thereof, the only way that the name of person can be changed legally is through a petition for change of name under Rule 103 of the Rules of Court.[51] For purposes of an application for change of name under Article 376 of the Civil Code and correlatively implemented by Rule 103, the only name that may be changed is the true or official name recorded in the civil register. As earlier mentioned, a petition for change of name being a proceeding in rem, impressed as it is with public interest, strict compliance with all the requisites therefor in order to vest the court with jurisdiction is essential, and failure therein renders the proceedings a nullity.[52] It must likewise be stressed once again that a change of name is a privilege, not a matter of right, addressed to the sound discretion of the court which has the duty to consider carefully the consequences of a change of name and to deny the same unless weighty reasons are shown. Before a person can be authorized to change his name, that is, his true or official name or that which appears in his birth certificate or is entered in the civil register, he must show proper and reasonable cause or any convincing reason which may justify such change.[53]

Jurisprudence has recognized, inter alia, the following grounds as being sufficient to warrant a change of name: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence of legitimation or adoption; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage; (e) when the change is based on a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.[54] Contrarily, a petition for change of name grounded on the fact that one was baptized by another name, under which he has been known and which he used, has been denied inasmuch as the use of baptismal names is not sanctioned.[55] For, in truth, baptism is not a condition sine qua non to a change of name.[56] Neither does the fact that the petitioner has been using a different name and has become known by it constitute proper and reasonable cause to legally authorize a change of name.[57] A name given to a person in the church records or elsewhere or by which he is known in the community - when at variance with that entered in the civil register - is unofficial and cannot be recognized as his real name.[58] The instant petition does not sufficiently persuade us to depart from such rulings of long accepted wisdom and applicability. The only grounds offered to justify the change of name prayed for was that the adopted child had been baptized as Aaron Joseph in keeping with the religious faith of private respondents and that it was the name by which he had been called and known by his family, relatives and friends from the time he came to live with private respondents.[59] Apart from suffusing their pleadings with sanctimonious entreaties for compassion, none of the justified grounds for a change of name has been alleged or established by private respondents. The legal bases chosen by them to bolster their cause have long been struck down as unavailing for their present purposes. For, to allow the adoptee herein to use his baptismal name, instead of his name registered in the civil register, would be to countenance or permit that which has always been frowned upon.[60] The earlier quoted posturing of respondent judge, as expressed in his assailed order that (a)s adoptive parents, petitioners like other parents may freely select the first name given to his/her child as it is only the surname to which the child is entitled that is fixed by law x x x.

The given name of the minor was Kevin Earl, a name given for no other purpose than for identification purposes in a birth certificate by a woman who had all the intentions of giving him away. The naming of the minor as Aaron Joseph by petitioners upon grant of their petition for adoption is symbolic of naming the minor at birth. and supposedly based on the authority of Republic vs. Court of Appeals and Maximo Wong, supra, painfully misapplies the ruling therein enunciated. The factual backdrop of said case is not at all analogous to that of the case at bar. In the Wong case, therein petitioner Maximo Wong sought the change of his surname which he acquired by virtue of the decree of adoption granted in favor of spouses Hoong Wong and Concepcion Ty Wong. Upon reaching the age of majority, he filed a petition in court to change his surname from Wong to Alcala, which was his surname prior to the adoption. He adduced proof that the use of the surname Wong caused him embarrassment and isolation from friends and relatives in view of a suggested Chinese ancestry when in reality he is a Muslim Filipino residing in a Muslim community, thereby hampering his business and social life, and that his surviving adoptive mother consented to the change of name sought. This Court granted the petition and regarded the change of the surname as a mere incident in, rather than the object of, the adoption. It should be noted that in said case the change of surname, not the given name, and the legal consequences thereof in view of the adoption were at issue. That it was sought in a petition duly and precisely filed for that purpose with ample proof of the lawful grounds therefor only serves to reinforce the imperative necessity of seeking relief under and through the legally prescribed procedures. Here, the Solicitor General meritoriously explained that: Respondent Judge failed to distinguish between a situation wherein a child is being named for the first time by his natural parent, as against one wherein, a child is previously conferred a first name by his natural parent, and such name is subsequently sought to be disregarded and changed by the adoptive parents. In the first case, there is no dispute that natural parents have the right to freely select and give the childs first name for every person, including juridical persons, must have a name (Tolentino, A., Commentaries and Jurisprudence on the Civil Code, Vol. 1, 1987 edition, page 721). In the second case, however, as in the case at bar, private respondents, in their capacities as adopters, cannot claim a right to name the minor adoptee after such right to name the child had already been exercised by the natural parent. Adopting parents have not been conferred such right by law, hence, the right asserted by private respondents herein remains but illusory.

Renaming the adoptee cannot be claimed as a right. It is merely a privilege necessitating judicial consent upon compelling grounds. [61] The liberality with which this Court treats matters leading up to adoption insofar as it carries out the beneficent purposes of adoption and ensures to the adopted child the rights and privileges arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child,[62] should be understood in its proper context. It should not be misconstrued or misinterpreted to extend to inferences beyond the contemplation of law and jurisprudence. The practically unrestricted freedom of the natural parent to select the proper or given name of the child presupposes that no other name for it has theretofore been entered in the civil register. Once such name is registered, regardless of the reasons for such choice and even if it be solely for the purpose of identification, the same constitutes the official name. This effectively authenticates the identity of the person and must remain unaltered save when, for the most compelling reasons shown in an appropriate proceeding, its change may merit judicial approval. While the right of a natural parent to name the child is recognized, guaranteed and protected under the law, the so-called right of an adoptive parent to re-name an adopted child by virtue or as a consequence of adoption, even for the most noble intentions and moving supplications, is unheard of in law and consequently cannot be favorably considered. To repeat, the change of the surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name. Furthermore, factual realities and legal consequences, rather than sentimentality and symbolisms, are what are of concern to the Court. Finally, it is understood that this decision does not entirely foreclose and is without prejudice to, private respondents privilege to legally change the proper or given name of their adopted child, provided that the same is exercised, this time, via a proper petition for change of name. Of course, the grant thereof is conditioned on strict compliance with all jurisdictional requirements and satisfactory proof of the compelling reasons advanced therefor. WHEREFORE, on the foregoing premises, the assailed order of respondent judge is hereby MODIFIED. The legally adopted child of private respondents shall henceforth be officially known as Kevin Earl Munson y Andrade unless a change thereof is hereafter effected in accordance with law. In all other respects, the order is AFFIRMED. SO ORDERED. Romero, Puno, and Mendoza, JJ., concur.

AM No. 03-04-04 SC Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors
FIRST DIVISION G.R. Nos. 168992-93 May 21, 2009

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM, Petitioner. x - - - - - - - - - - - - - - - - - - - - - - -x IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P. LIM, Petitioner. DECISION CARPIO, J.: The Case This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision1dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim. The Facts The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they were the childrens parents. The children2 were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.3 Michael was 11 days old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983.4 The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname "Lim" in all their school records and documents. Unfortunately, on 28 November 1998, Lim died.

On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen. Thereafter, petitioner decided to adopt the children by availing of the amnesty5 given under Republic Act No. 85526 (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months old. Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.7 Michael also gave his consent to his adoption as shown in his Affidavit of Consent.8 Petitioners husband Olario likewise executed an Affidavit of Consent9 for the adoption of Michelle and Michael. In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown.10 The DSWD issued a similar Certification for Michael.11 The Ruling of the Trial Court On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code. Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply. As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities.

Hence, the present petition. Issue Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt. The Courts Ruling Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority. We deny the petition. Joint Adoption by Husband and Wife It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial courts decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads: SEC. 7. Who May Adopt. - The following may adopt: (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent; (b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the

Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied) The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but

natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.12 The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground. Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other. The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopters country as the latters adopted child. None of these qualifications were shown and proved during the trial. These requirements on residency and certification of the aliens qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner. Effects of Adoption Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This is untenable. Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.13 The father and the mother shall jointly exercise parental authority over the persons of their common children.14 Even the remarriage of the surviving parent shall not affect the parental authority over the

children, unless the court appoints another person to be the guardian of the person or property of the children.15 It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of age16 emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life.17 However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus: ARTICLE EFFECTS OF ADOPTION V

SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other.18 Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights19 of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled20 such as support21 and successional rights.22

We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.23 But, as we have ruled inRepublic v. Vergara:24 We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial courts decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses petition for adoption. (Emphasis supplied)1avvphi1.zw+ Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner. Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court. We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory. WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner. SO ORDERED.

Special Proceedings Involving Family Code Provisions AM 02-11-10-SC Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages AM 02-11-11 SC Rule on Legal Separation AM 02-11-12 SC Rule on Provisional Orders Other (Summary) Proceedings under the Family Code: Title XI, Chapters 1 to 3 on separation in fact between husband and wife or abandonment by one of the other and incidents involving parental authority Chapter 4 on Art. 41 (declaration of a spouse as presumptively dead) Art. 51(action of a child for presumptive legitime) Art. 69 (judicial declaration of family domicile in case of disagreement of the spouses) Art. 73 (spouses objection to the profession of the other spouse) Arts. 96 and 124 (annulment of husbands decision in the administration and enjoyment of community or conjugal property appointment of spouse as sole administrator except cases of incompetent other spouse which shall be under Rules 93 and 95) Art. 217 (entrusting children to homes and orphanages).

Rule 101 Proceedings for Hospitalization of Insane Persons

EN BANC G.R. No. L-33281 March 31, 1930

CHIN AH FOO (alias CHAN FOO WOO) and YEE SHEE (alias YEE SUI YENG), widow of Chin Ah Kim Petitioners, vs. PEDRO CONCEPCION, Judge of First Instance of Manila, and LEE VOO, Respondents.
MALCOLM, J.:

The question for decision in this certiorari proceeding concerns the power of a Judge of First Instance, who has in effect acquitted a man charged with murder on the plea of insanity, and who has ordered the confinement of the insane person in an asylum, subsequently to permit the insane person to leave the asylum without the acquiescence of the Director of Health. Otherwise stated, the factor determinative of the question has to do with the effect, if any, of section 1048 of the Administrative Code on article 8 of the Penal Code.
ch an rob lesv irt u alawlib rar y

On November 15, 1927, one Chan Sam (alias Chin Ah Woo), was charged in the Court of First Instance of Manila with the murder of Chin Ah Kim. Thereafter, the trial judge rendered judgment declaring the accused not responsible for the crime, and dismissing the case, but requiring the reclusion of the accused for treatment in San Lazaro Hospital, in accordance with article 8 of the Penal Code, with the admonition that the accused be not permitted to leave the said institution without first obtaining the permission of the court. In compliance with this order, Chan Sam was confined for approximately two years in San Lazaro Hospital. During this period, efforts to obtain his release were made induced by the desire of his wife and father-inlaw to have him proceed to Hongkong. Opposition to the allowance of the motions came from the wife and children of the murdered man, who contended that Chan Sam was still insane, and that he had made threats that if he ever obtained his liberty he would kill the wife and the children of the deceased and probably other members of his own family who were living in Hongkong. These various legal proceedings culminated in Doctors Domingo and De los Angeles being delegated to

examine and certify the mental condition of Chan Sam, which they did. After this report had been submitted, counsel for the oppositors challenged the jurisdiction of the court. However, the respondent judge sustained the court's right to make an order in the premises and allowed Chan Sam to leave the San Lazaro Hospital to be turned over to the attorney-in-fact of his wife so that he might be taken to Hongkong to join his wife in that city.
ch an rob lesvirt u ala wlib rary

Article 8 of the Penal Code, pursuant to which the trial judge purported to act in issuing his order of release, provides that among those exempt from criminal liability are: 1. An imbecile or lunatic, unless the latter has acted during the lucid interval.
ch an rob le svirt u ala wlib rary

When the imbecile or lunatic has committed an act which the law defines as a grave felony, the court shall order his confinement in one of the asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. Section 1048 of the Administrative Code, which, it is argued, has superseded or supplemented article 8 of the Penal Code, provides as to the discharge of a patient from custody from a hospital for the insane the following: When in the opinion of the Director of Health any patient in any Government hospital or other place for the insane is temporarily or permanently cured, or may be released without danger, he may discharge such patient, and shall notify the Judge of the Court of First Instance who ordered the commitment, in case the patient is confined by order of the court. An examination of article 8, paragraph 1, of the Penal Code discloses that the permission of the court who orders the confinement of one accused of a grave felony in an insane asylum is a prerequisite for obtaining release from the institution. The respondent judge has based his action in this case on this provision of the law. On the other hand, section 1048 of the Administrative Code grants to the Director of Health authority to say when a patient may be discharged from an insane asylum. There is no pretense that the Director of Health has

exercised his authority in this case, or that the head of the Philippine Health Service has been asked to express his opinion.
ch an rob les virt u alawl ib rary

Contrasting the two provisions of Philippine law which have been mentioned, it is self-evident that for section 1048 of the Administrative Code to prevail exclusively it would be necessary to find an implied repeal of a portion of article 8 of the Penal Code. But it is a well-known rule of statutory construction that when there is no express repeal none is presumed to be intended. The most reasonable supposition is that when the Legislature placed the provision, from which section 1048 of the Administrative Code was derived, on the statute books, it did so without any consideration as to the effect of the new law on article 8 of the Penal Code. It is likewise a canon of statutory construction that when two portions of the law can be construed so that both can stand together, this should be done. In this respect, we believe that the authority of the courts can be sustained in cases where the courts take action, while the authority of the Director of Health can be sustained in other cases not falling within the jurisdiction of the courts. This latter construction is reinforced by that portion of section 1048 of the Administrative Code which requires the Director of Health to notify the Judge of First Instance who ordered the commitment, in case the patients is confined by order of the court.
ch an rob le svirt u ala wlib rary

In 1916, the Director of Health raised this same question. He then took the view that section 7 of Act No. 2122, now incorporated in the Administrative Code as section 1048, applied to all cases of confinement of persons adjudged to be insane in any Government hospital or other places for the insane, and that the entire discretion as to the sanity of any patient whatever was vested by this section exclusively in the Director of Health. The Attorney-General, who at that time was Honorable Ramon Avance a, ruled against the Director of Health, saying that "the Legislature could not have intended to vest in the Director of Health the power to release, without proper judicial authority, any person confined by order of the court in an asylum pursuant to the provisions of article 8 of the Penal Code." In at least two cases, United States vs. Guendia ([1917], 37 Phil., 337), and People vs. Bascos ([1922], 44 Phil., 204), this court has relied on article 8, paragraph 1, of the Penal Code. The judgments in the cited cases concluded with this order: "The defendant shall be kept in confinement in the San Lazaro Hospital, or such other hospital for

the insane as the Director of Health may direct, and shall not be permitted to depart therefrom without the prior approval of the Court of First Instance of the Province of Iloilo (Pangasinan)." Due to differences in statutory provisions, the American authorities on the question are not very helpful. However, one case has been found where the facts were practically identical with the ones before us, where the law is much the same as Philippine Law, and where the procedure which should be followed was outlined by the Supreme Court of the State of Washington. We refer to the case of State vs. Snell ([1908], 49 Wash., 177). In the decision in the cited case, the court, speaking through Justice Rudkin, said: On the 7th day of July, 1906, the relator, Chester Thompson, killed George Meade Emory in the City of Seattle, and by reason thereof was informed against in the superior court of King county for the crime of murder. A plea of not guilty was interposed, and the place of trial was changed to the superior court of Pierce county. The relator was tried in the latter court before the respondent as presiding judge, and the jury be returned a verdict of not guilty by reason of insanity. On the 3rd day of May, 1907, the respondent entered an order reciting that the relator was then insane; that he had been acquitted of the crime of murder by reason of insanity; that his discharge or going at large would be manifestly dangerous to the peace and safety of the community; and committed him to the county jail of Pierce county. It was further ordered that, on the 12th day of June, 1907, the relator should be taken from the county jail of Pierce county and transferred to the state penitentiary at Walla Walla, to be there confined in the ward set apart for the confinement, custody, and keeping of the criminal insane until the further order of the court and until discharge therefrom by due process of law. The relator was committed to the county jail and thereafter transferred to the insane ward of the penitentiary in obedience to this order, and is now confined in the latter institution. On the 19th day of February, 1908, he applied to the physician in charge of the criminal insane at the state penitentiary for an examination of his mental condition and fitness to be at large, as provided in section 6 of the act of February 21, 1907, entitled, "An act relating to the criminal insane, their trial, commitment, and custody." Laws of 1907, page 33. After such examination, the physician certified to the warden of the penitentiary that he had reasonable cause to believe that the relator had become sane since his commitment, and

was a safe person to be at large. The warden thereupon granted the relator permission to present a petition to the court that committed him, setting up the facts leading to his commitment, and that he had become sane and mentally responsible, and in such condition that he is a safe person to be at large, and praying for his discharge from custody. A petition in due form was thereupon presented to the respondent judge, after service thereof upon the prosecuting attorney of Pierce county, but the respondent refused to set the matter down for hearing or to entertain jurisdiction of the proceeding,. . . . Application was there-upon made to this court for a writ of mandamus, requiring the respondent to set the petition down for hearing, and the case is now before us on the return to the alternative writ. xxx xxx xxx

We are of opinion, therefore, that the procedure adopted by the relator is in conformity with the law, and the writ will issues as prayed. The foregoing is our understanding of the law on the subject. The following represents our deductions and conclusions. Article 8 of the Penal Code has not been impliedly repealed by section 1048 of the Administrative Code. Article 8 of the Penal Code and section 1048 of the Administrative Code can be construed so that both can stand together. Considering article 8 of the Penal Code as in force and construing this article and section 1048 of the Administrative Code, we think that the Attorney-General was right in expressing the opinion that the Director of Health was without power to release, without proper judicial authority, any person confined by order of the court in an asylum pursuant to the provisions of article 8 of the Penal Code. We think also that the converse proposition is equally tenable, and is that any person confined by order of the court in an asylum in accordance with article 8 of the Penal Code cannot be discharged from custody in an insane asylum until the views of the Director of Health have been ascertained as to whether or not the person is temporarily or permanently cured or may be released without danger. In other words, the powers of the courts and the Director of Health are complementary each with the other. As a practical observation, it may further be said that it is well to adopt all reasonable precautions to ascertain if a person confined in an asylum as insane should be permitted to leave the asylum, and this can best be accomplished

through the joint efforts of the courts and the Director of Health in proper cases.
ch an rob le svirt u ala wlib rary

Various defenses were interposed by the respondents to the petition, but we have not been impressed with any of them except the ones which go to the merits. After thorough discussion, our view is that while the respondent Judge acted patiently and cautiously in the matters which came before him, yet he exceeded his authority when he issued his orders of December 26, 1929, and March 17, 1930, without first having before him the opinion of the Director of Health.
ch an rob le svirt u ala wlib rary

The writ prayed for will issue and the temporary restraining order will be made permanent, without costs. Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Rule 102 Habeas Corpus AM No. 03-04-04 SC Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan
EN BANC G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,petitioners, vs. RAYMOND MANALO and REYNALDO MANALO, respondents. DECISION PUNO, C.J.: While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and security in the first petition for a writ of Amparo filed before this Court. This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section 191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed Forces of the Philippines, respondents." This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)2 filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop herein petitioners (therein respondents) and/or their officers and agents from depriving them of their right to liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal and equitable reliefs under Article VIII, Section 5(5)3 of the

1987 Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the Department of National Defense and the Chief of Staff of the AFP, their agents, representatives, or persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein petitioners, or otherwise restricting, curtailing, abridging, or depriving them of their right to life, liberty, and other basic rights as guaranteed under Article III, Section 14 of the 1987 Constitution.5 While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat Existing Petition as AmparoPetition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein respondents to make a verified return within the period provided by law and containing the specific matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just and equitable reliefs.8 On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under the AmparoRule and further resolved, viz: WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with the CA (Court of Appeals) a verified written return within five (5) working days from service of the writ. We REMAND the petition to the CA and designate the Division of Associate Justice Lucas P. Bersamin to conduct the summary hearing on the petition on November 8, 2007 at 2:00 p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.9 On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners (herein respondents), the dispositive portion of which reads, viz: ACCORDINGLY, the PRIVILEGE AMPARO is GRANTED. OF THE WRIT OF

The respondents SECRETARY OF NATIONAL CHIEF OF STAFF are hereby REQUIRED:

DEFENSE and AFP

1. To furnish to the petitioners and to this Court within five days from notice of this decision all official and unofficial reports of the investigation undertaken in connection with their case, except those already on file herein; 2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days from notice of this decision. 3. To cause to be produced to this Court all medical reports, records and charts, reports of any treatment given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical and (sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007 within five days from notice of this decision. The compliance with this decision shall be made under the signature and oath of respondent AFP Chief of Staff or his duly authorized deputy, the latter's authority to be express and made apparent on the face of the sworn compliance with this directive. SO ORDERED.10 Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein respondents: Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006, several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the residents of theirbarangay in San Idelfonso, Bulacan. Respondents were not able to attend as they were not informed of the gathering, but Raymond saw some of the soldiers when he passed by the barangay hall.11 On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots, entered their house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to the ground face down. He was kicked on the hip, ordered to stand and face up to the light, then forcibly brought near the road. He told his mother to follow him, but three soldiers stopped her and told her to stay.12

Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed men.13 The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years of age or older. The leader of the team who entered his house and abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his abductors was "George" who was tall, thin, white-skinned and about 30 years old.14 The van drove off, then came to a stop. A person was brought inside the van and made to sit beside Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside him as his brother Reynaldo's. The van stopped several times until they finally arrived at a house. Raymond and Reynaldo were each brought to a different room. With the doors of their rooms left open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and other parts of his body with the butt of their guns for about 15 minutes. After which, Reynaldo was brought to his (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room. The soldiers asked him if he was a member of the New People's Army. Each time he said he was not, he was hit with the butt of their guns. He was questioned where his comrades were, how many soldiers he had killed, and how many NPA members he had helped. Each time he answered none, they hit him.15 In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him up would salute them, call them "sir," and treat them with respect. He was in blindfolds when interrogated by the high officials, but he saw their faces when they arrived and before the blindfold was put on. He noticed that the uniform of the high officials was different from those of the other soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas corpus case filed in connection with the respondents' abduction.16 While these officials interrogated him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only at night, usually with left-over and rotten food.17

On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a burning wood. When he could no longer endure the torture and could hardly breathe, they stopped. They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they warned Raymond that they would come back the next day and kill him.18 The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made noise with the chains put on him to see if they were still awake. When none of them came to check on him, he managed to free his hand from the chains and jumped through the window. He passed through a helipad and firing range and stopped near a fishpond where he used stones to break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a so-called "Mam" or "Madam" suddenly called, saying that she wanted to see Raymond before he was killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay where Reynaldo was detained.20 For some weeks, the respondents had a respite from all the torture. Their wounds were treated. When the wounds were almost healed, the torture resumed, particularly when respondents' guards got drunk.21 Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that eighteen people22 had been detained in thatbartolina, including his brother Reynaldo and himself.23 For about three and a half months, the respondents were detained in Fort Magsaysay. They were kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their house. They were also sometimes detained in what he only knew as the "DTU."24

At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took their urine samples and marked them. When asked how they were feeling, they replied that they had a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next day, two ladies in white arrived. They also examined respondents and gave them medicines, including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents' urine test and advised them to drink plenty of water and take their medicine. The two ladies returned a few more times. Thereafter, medicines were sent through the "master" of the DTU, "Master" Del Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take care of them.25 One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren stayed with them. While there, Raymond was beaten up by Hilario's men.26 From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the Revo. They were detained in a big unfinished house inside the compound of "Kapitan" for about three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of the house to a basketball court in the center of the compound and made to sit. Gen. Palparan was already waiting, seated. He was about two arms' length away from respondents. He began by asking if respondents felt well already, to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond lied that he did not. He then asked Raymond if he would be scared if he were made to face Gen. Palparan. Raymond responded that he would not be because he did not believe that Gen. Palparan was an evil man.27 Raymond narrated his conversation with Gen. Palparan in his affidavit, viz: Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa akin?" Sumagot akong, "Siyempre po, natatakot din..." Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa

bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na sumuko na sa gobyerno."28 Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At about 3:00 in the morning, Hilario, Efren and the former's men the same group that abducted them - brought them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents acceded. Hilario threatened Raymond's parents that if they continued to join human rights rallies, they would never see their children again. The respondents were then brought back to Sapang.29 When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with the four "masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them strong. He also said that they should prove that they are on the side of the military and warned that they would not be given another chance.31 During his testimony, Raymond identified Gen. Palparan by his picture.32 One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The medicine, named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of this medicine and instructed to take one capsule a day. Arman checked if they were getting their dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy upon waking up.33 After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman instructed Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who abducted him from his house, and got acquainted with other military men and civilians.34 After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them. Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put on him and he was kept in the barracks.35

The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It was then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped. She was crying and longing to go home and be with her parents. During the day, her chains were removed and she was made to do the laundry.36 After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but were put back on at night. They were threatened that if they escaped, their families would all be killed.37 On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be thankful they were still alive and should continue along their "renewed life." Before the hearing of November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the hearing. However, their parents had already left for Manila. Respondents were brought back to Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was instructed to continue using the name "Oscar" and holding himself out as a military trainee. He got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in his affidavit.38 On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in raising livestock.39 Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he was killed because he had a son who was a member of the NPA and he coddled NPA

members in his house.40 Another time, in another "Operation Lubog," Raymond was brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man of the house who was sick was there. They spared him and killed only his son right before Raymond's eyes.41 From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until June 2007.42 In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and experienced in the camp,viz: Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y sinunog. Masansang ang amoy. Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas. Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito. Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang amoy. May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita. xxx xxx xxx

Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel. Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi. Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami kinakadena.43 On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he would take care of the food of their family. They were also told that they could farm a small plot adjoining his land and sell their produce. They were no longer put in chains and were instructed to use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal, Laguna.44 Respondents started to plan their escape. They could see the highway from where they stayed. They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone was pawned to him, but he kept it first and did not use it. They earned some more until they had saved Php1,400.00 between them. There were four houses in the compound. Raymond and Reynaldo were housed in one of them while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the guards. Respondents' house did not have electricity. They used a lamp. There was no television, but they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session. At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke and took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind their sleeping guards and barking dogs. They boarded a bus bound for Manila and were thus freed from captivity.45

Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they related to matters they witnessed together. Reynaldo added that when they were taken from their house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back and punched in the face until he could no longer bear the pain. At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the blindfold once outside the province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board, "Welcome to Camp Tecson."46 Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an organization handling cases of human rights violations, particularly cases where torture was involved. He was requested by an NGO to conduct medical examinations on the respondents after their escape. He first asked them about their ordeal, then proceeded with the physical examination. His findings showed that the scars borne by respondents were consistent with their account of physical injuries inflicted upon them. The examination was conducted on August 15, 2007, two days after respondents' escape, and the results thereof were reduced into writing. Dr. Molino took photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the examination.47 Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with the October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the abduction but denying any involvement therein, viz:

13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly abducted, detained, held incommunicado, disappeared or under the custody by the military. This is a settled issue laid to rest in the habeas corpus case filed in their behalf by petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the Commanding General of the Philippine Army, and members of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein submitted a return of the writ... On July 4, 2006, the Court of Appeals dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to establish their personal involvement in the taking of the Manalo brothers. In a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence establishing his involvement in any capacity in the disappearance of the Manalo brothers, although it held that the remaining respondents were illegally detaining the Manalo brothers and ordered them to release the latter.48 Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner) Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and was thus unaware of the Manalo brothers' alleged abduction. He also claimed that: 7. The Secretary of National Defense does not engage in actual military directional operations, neither does he undertake command directions of the AFP units in the field, nor in any way micromanage the AFP operations. The principal responsibility of the Secretary of National Defense is focused in providing strategic policy direction to the Department (bureaus and agencies) including the Armed Forces of the Philippines; 8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with Section 9(d) of the AmparoRule and to submit report of such compliance... Likewise, in a Memorandum Directive also dated October 31, 2007, I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP should adopt the

following rules of action in the event the Writ of Amparo is issued by a competent court against any members of the AFP: (1) to verify the identity of the aggrieved party; (2) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible; (3) to identify witnesses and obtain statements from them concerning the death or disappearance; (4) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; (5) to identify and apprehend the person or persons involved in the death or disappearance; and (6) to bring the suspected offenders before a competent court.49 Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the Writ, attesting that he received the above directive of therein respondent Secretary of National Defense and that acting on this directive, he did the following: 3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have caused to be issued directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the petitioners. 3.2. I have caused the immediate investigation and submission of the result thereof to Higher headquarters and/or direct the immediate conduct of the investigation on the matter by the concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit. 3.3. We undertake to provide result of the investigations conducted or to be conducted by the concerned unit relative to the circumstances of the alleged disappearance of the persons in whose favor the Writ

ofAmparo has been sought for as soon as the same has been furnished Higher headquarters. 3.4. A parallel investigation has been directed to the same units relative to another Petition for the Writ ofAmparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeo pending before the Supreme Court. 3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the surrounding circumstances of the disappearances of the petitioners and to bring those responsible, including any military personnel if shown to have participated or had complicity in the commission of the complained acts, to the bar of justice, when warranted by the findings and the competent evidence that may be gathered in the process.50 Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeo and Merino, which averred among others, viz: 10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion detachment as detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeo and Manuel Merino being held captive; 11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan; 12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National Police, Limay, Bataan regarding the alleged detentions or deaths and were informed that none was reported to their good office; 13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeo and Manuel Merino were detained. As per the inquiry, however, no such beachhouse was used as a detention place found to have been used by armed men to detain Cadapan, Empeo and Merino.51

It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by therein petitioners could not be secured in time for the submission of the Return and would be subsequently submitted.52 Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54 On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; exCAA Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if any.57Jimenez testified that this particular investigation was initiated not by a complaint as was the usual procedure, but because the Commanding General saw news about the abduction of the Manalo brothers on the television, and he was concerned about what was happening within his territorial jurisdiction.58 Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in the morning and finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo Lingad, took the individual sworn statements of all six persons on that day. There were no other sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned and investigated61 as according to Jimenez, the directive to him was only to investigate the six persons.62 Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known to Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single question to the six persons.65 Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and Rudy Mendoza had to come back the next day to sign

their statements as the printing of their statements was interrupted by a power failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of their statements indicated that they were signed on May 29, 2006.66 When the Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He began writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He then gave his report to the Office of the Chief of Personnel.68 As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence, the report is herein substantially quoted: III. BACKGROUND OF THE CASE 4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly disappeared. After the said incident, relatives of the victims filed a case for Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the Citizen Armed Forces Geographical Unit (CAFGU). a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a church located nearby his residence, together with some neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that they only implicated him because he was a CAFGU and that they claimed that those who abducted the Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any participation or involvement on the abduction of said victims. b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their province. That at the time of the alleged abduction of the two (2) brothers

and for accusing him to be one of the suspects, he claims that on February 14, 2006, he was one of those working at the concrete chapel being constructed nearby his residence. He claims further that he just came only to know about the incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied any participation about the incident and claimed that they only implicated him because he is a member of the CAFGU. c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much aware about the background of the two (2) brothers Raymond and Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their elder brother "KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14 February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he learned only about the incident when he arrived home in their place. He claims further that the only reason why they implicated him was due to the fact that his mother has filed a criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and for that reason they implicated him in support of their brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo brothers. d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and he knew them since childhood. Being one of the accused, he claims that on 14 February 2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was being informed only about the incident lately and he was not aware of any reason why the two (2) brothers were being abducted by alleged members of the military and CAFGU. The only reason he knows why they implicated him was because there are those people who are angry with their family particularly victims of summary execution (killing) done by their brother @ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE who killed his father and he was living witness to that incident. Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers.

e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims further that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan. That he vehemently denied any participation of the alleged abduction of the two (2) brothers and learned only about the incident when rumors reached him by his barrio mates. He claims that his implication is merely fabricated because of his relationship to Roman and Maximo who are his brothers. f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged further that they are active supporters or sympathizers of the CPP/NPA and whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their concrete chapel in their place and he learned only about the incident which is the abduction of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter. He claims further that he is truly innocent of the allegation against him as being one of the abductors and he considers everything fabricated in order to destroy his name that remains loyal to his service to the government as a CAA member. IV. DISCUSSION 5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to the alleged abduction and disappearance of Raymond and Reynaldo Manalo that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is considered doubtful, hence, no basis to indict them as charged in this investigation.

Though there are previous grudges between each families (sic) in the past to quote: the killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish a fact that they were the ones who did the abduction as a form of revenge. As it was also stated in the testimony of other accused claiming that the Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean, however, that in the first place, they were in connivance with the abductors. Being their neighbors and as members of CAFGU's, they ought to be vigilant in protecting their village from any intervention by the leftist group, hence inside their village, they were fully aware of the activities of Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is concerned. V. CONCLUSION 6. Premises considered surrounding this case shows that the alleged charges of abduction committed by the above named respondents has not been established in this investigation. Hence, it lacks merit to indict them for any administrative punishment and/or criminal liability. It is therefore concluded that they are innocent of the charge. VI. RECOMMENDATIONS 7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case. 8. Upon approval, this case can be dropped and closed.69 In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing evidence and assail the December 26, 2007 Decision on the following grounds, viz: I. THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO. II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70 The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule). Let us hearken to its beginning. The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July 16-17, 2007. The Summit was "envisioned to provide a broad and factbased perspective on the issue of extrajudicial killings and enforced disappearances,"71 hence "representatives from all sides of the political and social spectrum, as well as all the stakeholders in the justice system"72 participated in mapping out ways to resolve the crisis. On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of extralegal killing and enforced disappearances."73 It was an exercise for the first time of the Court's expanded power to promulgate rules to protect our people's constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.74 As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings."75 On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to

acknowledge the deprivation of liberty which places such persons outside the protection of law."76 The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837, de Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description of the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of them, Manuel Crescencio Rejn, drafted a constitutional provision for his native state, Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz: The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation, making no general declaration concerning the statute or regulation that motivated the violation.80 Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing, the judge determines that a constitutional right of the petitioner is being violated, he orders the official, or the official's superiors, to cease the violation and to take the necessary measures to restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the principles of judicial review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in particular cases, but prevents them from using this power to make law for the entire nation.82 The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various forms, in response to the particular needs of each country.83 It became, in the words of a justice of the Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the world's legal heritage that institution which, as a shield of human dignity, her own painful history conceived."84 What began as a protection against acts or omissions of public authorities in violation of constitutional rights later evolved for several purposes: (1) Amparo libertad for the protection of personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) Amparo administrativo for

the judicial review of administrative actions; and (5) Amparo agrario for the protection of peasants' rights derived from the agrarian reform process.85 In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to protect against human rights abuses especially committed in countries under military juntas. In general, these countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including socio-economic rights.86Other countries like Colombia, Chile, Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental rights.87 In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several of the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The Clause accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison.89 While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of Amparo through summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.91 The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances. It is preventive in

that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and enforced disappearances. In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the respondents of their right to liberty and other basic rights on August 23, 2007,93 prior to the promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have their petition treated as an Amparo petition as it would be more effective and suitable to the circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion. With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in disputing the Decision of the Court of Appeals states, viz: The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving affidavit/testimony of herein respondent Raymond Manalo.94 In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof required. Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz: Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz: Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims bysubstantial evidence. xxx xxx xxx Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphases supplied) Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.95 After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless candid details of respondents' harrowing experience and tenacious will to escape, captured through his different senses and etched in his memory. A few examples are the following: "Sumilip ako sa isang haligi ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100 We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's affidavit and testimony, viz: ...the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men who barged into his house through the rear door were military men based on their attire of fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula

de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU auxiliaries. We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were either members or sympathizers of the NPA, considering that the abductors were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners. The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall could delve only into the participation of military personnel, but even then the Provost Marshall should have refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated... Gen. Palparan's participation in the abduction was also established. At the very least, he was aware of the petitioners' captivity at the hands of men in uniform assigned to his command. In fact, he or any other officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he wanted them and their parents to do or not to be doing. Gen. Palparan's direct and personal role in the abduction might not have been shown but his knowledge of the dire situation of the petitioners during their long captivity at the hands of military personnel under his command bespoke of his indubitable command policy that unavoidably encouraged and not merely tolerated the abduction of civilians without due process of law and without probable cause. In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention. Hilario's involvement could not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive the van in which the petitioners were boarded and ferried following the

abduction, did not testify. (See the decision of the habeas proceedings at rollo, p. 52) However, in this case, Raymond attested that Hilario drove the white L-300 van in which the petitioners were brought away from their houses on February 14, 2006. Raymond also attested that Hilario participated in subsequent incidents during the captivity of the petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the Revo, to an unfinished house inside the compound of Kapitan where they were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to the house of the petitioners' parents, where only Raymond was presented to the parents to relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario warned the parents that they would not again see their sons should they join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the occasion when Gen. Palparan required Raymond to take the medicines for his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a direct hand in their torture. It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the petitioners was established. The participation of other military personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly established. xxx xxx xxx As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also do, for, indeed, the evidence of their participation is overwhelming.101 We reject the claim of petitioners that respondent Raymond Manalo's statements were not corroborated by other independent and credible pieces of evidence.102 Raymond's affidavit and testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the

torture they endured while in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be the "Division Training Unit,"104 firms up respondents' story that they were detained for some time in said military facility. In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the Commission considered similar evidence, among others, in finding that complainant Sister Diana Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in early November 1989. The Commission's findings of fact were mostly based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.106 These statements were supported by her recognition of portions of the route they took when she was being driven out of the military installation where she was detained.107 She was also examined by a medical doctor whose findings showed that the 111 circular second degree burns on her back and abrasions on her cheek coincided with her account of cigarette burning and torture she suffered while in detention.108 With the secret nature of an enforced disappearance and the torture perpetrated on the victim during detention, it logically holds that much of the information and evidence of the ordeal will come from the victims themselves, and the veracity of their account will depend on their credibility and candidness in their written and/or oral statements. Their statements can be corroborated by other evidence such as physical evidence left by the torture they suffered or landmarks they can identify in the places where they were detained. Where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise. We now come to the right of the respondents to the privilege of the writ of Amparo. There is no quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as they have escaped from captivity and surfaced. But while respondents admit that they are no longer in detention and are physically free, they assert that they are not "free in every sense of the word"109 as their "movements continue to be restricted for fear that people they have named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and have not been held accountable in any way. These people are directly connected to the Armed Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty and security."110 (emphasis supplied) Respondents claim that they are under threat of being once again abducted, kept captive or even killed, which constitute a direct violation of their right to security of person.111

Elaborating on the "right to security, in general," respondents point out that this right is "often associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against torture and cruel and unusual punishment." Conceding that there is no right to security expressly mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from torture and from incommunicado detention and solitary detention places112 fall under the general coverage of the right to security of person under the writ of Amparo." They submit that the Court ought to give an expansive recognition of the right to security of person in view of the State Policy under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation of the right to security of person, respondents cite the teaching in Moncupa v. Enrile113 that "the right to liberty may be made more meaningful only if there is no undue restraint by the State on the exercise of that liberty"114 such as a requirement to "report under unreasonable restrictions that amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116 In sum, respondents assert that their cause of action consists in the threat to their right to life and liberty, and a violation of their right to security. Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides, viz: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge... At the core of this guarantee is the immunity of one's person, including the extensions of his/her person - houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power over a person's home and possessions, but more importantly, protects the privacy and sanctity of the person himself.117 The purpose of this provision was enunciated by the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz:118 The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person and property and unlawful invasion of the security of the home by officers of the law acting under legislative or judicial sanction and to give remedy

against such usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence. (Taada and Carreon, Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is closer to a man's soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable can only be for the best causes and reasons.119 (emphases supplied) While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property... pervades the whole history of man. It touches every aspect of man's existence."122 In a broad sense, the right to security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."123 A closer look at the right to security of person would yield various permutations of the exercise of this right. First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual international human right.124 It is the "right to security of person" as the word "security" itself means "freedom from fear."125 Article 3 of the UDHR provides, viz: Everyone has the right to life, liberty and security of person.126 (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) also provides for the right to security of person, viz: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. (emphasis supplied) The Philippines is a signatory to both the UDHR and the ICCPR. In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, acause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the "right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.127 Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body cannot be searched or invaded without a search warrant.128 Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.129 Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes bodily and psychological invasion, viz: (2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall be used against him (any person under

investigation for the commission of an offense). Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited. Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the sense of "freedom from threat" as aforediscussed. Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for the commission of an offense. Victims of enforced disappearances who are not even under such investigation should all the more be protected from these degradations. An overture to an interpretation of the right to security of person as a right against torture was made by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this case, the claimant, who was lawfully detained, alleged that the state authorities had physically abused him in prison, thereby violating his right to security of person. Article 5(1) of the European Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that "(n)o one shall be subjected to torture or to inhuman or degrading treatment or punishment." Although the application failed on the facts as the alleged ill-treatment was found baseless, the ECHR relied heavily on the concept of security in holding, viz: ...the applicant did not bring his allegations to the attention of domestic authorities at the time when they could reasonably have been expected to take measures in order to ensure his security and to investigate the circumstances in question. xxx xxx xxx ... the authorities failed to ensure his security in custody or to comply with the procedural obligation under Art.3 to conduct an effective investigation into his allegations.131 (emphasis supplied) The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that the protection of the bodily integrity of women may also be related to the right to security and liberty, viz: ...gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general

international law or under specific human rights conventions is discrimination within the meaning of article 1 of the Convention (on the Elimination of All Forms of Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of person.132 Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution.133 As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,134 viz: (The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.135 This third sense of the right to security of person as a guarantee of government protection has been interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article 9137 of the ICCPR. While the right to security of person appears in conjunction with the right to liberty under Article 9, the Committee has ruled that the right to security of person can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,138 a case involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz: The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux

prparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.139 (emphasis supplied) The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements following his release from detention. In a catena of cases, the ruling of the Committee was of a similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and persecution of opponents of the ruling party in that state;Tshishimbi v. Zaire,142 involving the abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of the complainant's partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia,144involving an assassination attempt on the chairman of an opposition alliance. Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty.145 The ECHR interpreted the "right to security of person" under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.147 (emphasis supplied) Applying the foregoing concept of the right to security of person to the case at bar, we now determine whether there is a continuing violation of respondents' right to security. First, the violation of the right to security as freedom from threat to respondents' life, liberty and security. While respondents were detained, they were threatened that if they escaped, their families, including them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he was caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam," who wanted to see him before he was killed, spared him. This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It should be stressed that they are now free from captivity not because they were released by virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay, Bataan, respondents' captors even told them that they were still deciding whether they should be executed. Respondent Raymond Manalo attested in his affidavit, viz: Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.148 The possibility of respondents being executed stared them in the eye while they were in detention. With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and implicated specific officers in the military not only in their own abduction and torture, but also in those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel Merino, among others.

Understandably, since their escape, respondents have been under concealment and protection by private citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they are forced to limit their movements or activities.149 Precisely because respondents are being shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat such as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the circumstances of respondents' abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of Amparo. Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents' abduction as revealed by the testimony and investigation report of petitioners' own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the

alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents.151 To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of Amparo. Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents' right to security as a guarantee of protection by the government. In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military. Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question. First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken in connection with their case, except those already in file with the court. Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas. Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and charts, and reports of any treatment given or recommended and medicines prescribed, if any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who attended to them from February 14, 2006 until August 12, 2007. With respect to the first and second reliefs, petitioners argue that the production order sought by respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for the issuance of a search warrant must be complied with prior to the grant of the production order, namely: (1) the application must be under oath or affirmation; (2) the search warrant must particularly describe the place to be searched and the things to be seized; (3) there exists probable cause with one specific offense; and (4) the probable cause must be personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving and vague allegations made by respondent Raymond Manalo in his unverified

declaration and affidavit, the documents respondents seek to be produced are only mentioned generally by name, with no other supporting details. They also argue that the relevancy of the documents to be produced must be apparent, but this is not true in the present case as the involvement of petitioners in the abduction has not been shown. Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a protection of the people from the unreasonable intrusion of the government, not a protection of the government from the demand of the people such as respondents. Instead, the Amparo production order may be likened to the production of documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz: Section 1. Motion for production or inspection order. Upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control... In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on the ground that it violated the search and seizure clause. The Court struck down the argument and held that the subpoenapertained to a civil procedure that "cannot be identified or confused with unreasonable searches prohibited by the Constitution..." Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook provide results of the investigations conducted or to be conducted by concerned unit relative to the circumstances of the alleged disappearance of persons in whose favor the Writ of Amparo has been sought for as soon as same has been furnished Higher headquarters." "to the the the

With respect to the second and third reliefs, petitioners assert that the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in the resolution of the petition for a writ ofAmparo. They add that it will unnecessarily compromise and jeopardize the exercise of official functions and duties of military officers and even unwittingly and unnecessarily expose them to threat of personal injury or even death. On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents' rights. The list of medical personnel is also relevant in securing information to create the medical history of respondents and make appropriate medical interventions, when applicable and necessary. In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that gives voice to preys of silent guns and prisoners behind secret walls. WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated December 26, 2007 is affirmed. SO ORDERED.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

EN BANC [G.R. No. 158802. November 17, 2004] IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (detained at the New Bilibid Prisons, Muntinlupa City) REYNALDO DE VILLA, petitioner, JUNE DE VILLA, petitioner-relator, vs. THE DIRECTOR, NEW BILIBID PRISONS, respondent. DECISION YNARES-SANTIAGO, J.: This is a petition for the issuance of a writ of habeas corpus under Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined by his son, petitionerrelator June de Villa, seeks a two-fold relief: First, that respondent Director of Prisons justify the basis for the imprisonment of petitioner Reynaldo de Villa; and second, that petitioner be granted a new trial.[1] These reliefs are sought on the basis of purportedly exculpatory evidence, gathered after performing deoxyribonucleic acid (DNA) testing on samples allegedly collected from the petitioner and a child born to the victim of the rape. By final judgment dated February 1, 2001, in People of the Philippines v. Reynaldo de Villa,[2] we found petitioner guilty of the rape of Aileen Mendoza, his niece by affinity; sentenced him to suffer the penalty of reclusin perpetua; and ordered him to pay the offended party civil indemnity, moral damages, costs of the suit, and support for Leahlyn Corales Mendoza, the putative child born of the rape. Petitioner is currently serving his sentence at the New Bilibid Prison, Muntinlupa City. As summarized in our Decision dated February 1, 2001, Aileen Mendoza charged petitioner Reynaldo de Villa with rape in an information dated January 9, 1995, filed with the Regional Trial Court of Pasig City. When arraigned on January 26, 1995, petitioner entered a plea of not guilty.[3] During the trial, the prosecution established that sometime in the third week of April 1994, at about 10:00 in the morning, Aileen Mendoza woke up in her familys rented room in Sagad, Pasig, Metro Manila, to find petitioner on top of her. Aileen was then aged 12 years and ten months. She was unable to shout for help because petitioner covered her mouth with a pillow and threatened to kill her. Aileen could not do anything but cry. Petitioner succeeded in inserting his

penis inside her vagina. After making thrusting motions with his body, petitioner ejaculated. This encounter allegedly resulted in Aileens pregnancy, which was noticed by her mother, Leonila Mendoza, sometime in November 1994. When confronted by her mother, Aileen revealed that petitioner raped her. Aileens parents then brought her to the Pasig Police Station, where they lodged a criminal complaint against petitioner.[4] Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was eight months pregnant and found in her hymen healed lacerations at the 5:00 and 8:00 positions. On December 19, 1994, Aileen gave birth to a baby girl whom she named Leahlyn Mendoza.[5] In his defense, petitioner alleged that, at the time of the alleged rape, he was already 67 years old. Old age and sickness had rendered him incapable of having an erection. He further averred that Aileens family had been holding a grudge against him, which accounted for the criminal charges. Finally, he interposed the defense of alibi, claiming that at the time of the incident, he was in his hometown of San Luis, Batangas.[6] The trial court found petitioner guilty beyond reasonable doubt of the crime of qualified rape, and sentenced him to death, to indemnify the victim in the amount of P50,000.00, to pay the costs of the suit and to support the child, Leahlyn Mendoza.[7] On automatic review,[8] we found that the date of birth of Aileens child was medically consistent with the time of the rape. Since it was never alleged that Aileen gave birth to a full-term nine-month old baby, we gave credence to the prosecutions contention that she prematurely gave birth to an eight-month old baby by normal delivery.[9] Thus, we affirmed petitioners conviction for rape, in a Decision the dispositive portion of which reads: WHEREFORE, the judgment of the Regional Trial Court, finding accusedappellant guilty beyond reasonable doubt of the crime of rape, is AFFIRMED with the MODIFICATIONS that he is sentenced to suffer the penalty of reclusin perpetua and ordered to pay the offended party P50,000.00 as civil indemnity; P50,000.00 as moral damages; costs of the suit and to provide support for the child Leahlyn Corales Mendoza. SO ORDERED.[10] Three years after the promulgation of our Decision, we are once more faced with the question of Reynaldo de Villas guilt or innocence. Petitioner-relator in this case, June de Villa, is the son of Reynaldo. He alleges that during the trial of the case, he was unaware that there was a scientific test that could determine once and for all if Reynaldo was the father of

the victims child, Leahlyn. Petitioner-relator was only informed during the pendency of the automatic review of petitioners case that DNA testing could resolve the issue of paternity.[11] This information was apparently furnished by the Free Legal Assistance Group (FLAG) Anti-Death Penalty Task Force, which took over as counsel for petitioner. Thus, petitioners brief in People v. de Villa sought the conduct of a blood type test and DNA test in order to determine the paternity of the child allegedly conceived as a result of the rape.[12] This relief was implicitly denied in our Decision of February 21, 2001. On March 16, 2001, Reynaldo de Villa filed a Motion for Partial Reconsideration of the Decision, wherein he once more prayed that DNA tests be conducted.[13] The Motion was denied with finality in a Resolution dated November 20, 2001.[14] Hence, the Decision became final and executory on January 16, 2002.[15] Petitioner-relator was undaunted by these challenges. Having been informed that DNA tests required a sample that could be extracted from saliva, petitionerrelator asked Billy Joe de Villa, a grandson of Reynaldo de Villa and a classmate of Leahlyn Mendoza, to ask Leahlyn to spit into a new, sterile cup.[16] Leahlyn readily agreed and did so. Billy Joe took the sample home and gave it to the petitioner-relator, who immediately labeled the cup as Container A. Petitioner-relator then gathered samples from four grandchildren of Reynaldo de Villa. These samples were placed in separate containers with distinguishing labels and temporarily stored in a refrigerator prior to transport to the DNA Analysis Laboratory at the National Science Research Institute (NSRI).[17] During transport, the containers containing the saliva samples were kept on ice. Petitioner-relator requested the NSRI to conduct DNA testing on the sample given by Leahlyn Mendoza, those given by the grandchildren of Reynaldo de Villa, and that given by Reynaldo de Villa himself. The identities of the donors of the samples, save for the sample given by Reynaldo de Villa, were not made known to the DNA Analysis Laboratory.[18] After testing, the DNA Laboratory rendered a preliminary report on March 21, 2003, which showed that Reynaldo de Villa could not have sired any of the children whose samples were tested, due to the absence of a match between the pertinent genetic markers in petitioners sample and those of any of the other samples, including Leahlyns.[19] Hence, in the instant petition for habeas corpus, petitioner argues as follows: DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE, BASED ON THE FACT THAT LEAHLYN WAS

SIRED AS A RESULT OF THE ALLEGED RAPE, CANNOT STAND AND MUST BE SET ASIDE.[20] xxx xxx xxx

A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS PROPER AND MAY BE ORDERED BY THIS COURT IN VIEW OF THE RESULTS OF THE DNA TESTS CONDUCTED.[21] Considering that the issues are inter-twined, they shall be discussed together. In brief, petitioner relies upon the DNA evidence gathered subsequent to the trial in order to re-litigate the factual issue of the paternity of the child Leahlyn Mendoza. Petitioner alleges that this issue is crucial, considering that his conviction in 2001 was based on the factual finding that he sired the said child. Since this paternity is now conclusively disproved, he argues that the 2001 conviction must be overturned. In essence, petitioner invokes the remedy of the writ of habeas corpus to collaterally attack the 2001 Decision. The ancillary remedy of a motion for new trial is resorted to solely to allow the presentation of what is alleged to be newlydiscovered evidence. This Court is thus tasked to determine, first, the propriety of the issuance of a writ of habeas corpus to release an individual already convicted and serving sentence by virtue of a final and executory judgment; and second, the propriety of granting a new trial under the same factual scenario. The extraordinary writ of habeas corpus has long been a haven of relief for those seeking liberty from any unwarranted denial of freedom of movement. Very broadly, the writ applies to all cases of illegal confinement or detention by which a person has been deprived of his liberty, or by which the rightful custody of any person has been withheld from the person entitled thereto.[22] Issuance of the writ necessitates that a person be illegally deprived of his liberty. In the celebrated case of Villavicencio v. Lukban,[23] we stated that [a]ny restraint which will preclude freedom of action is sufficient.[24] The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. If an individuals liberty is restrained via some legal process, the writ of habeas corpus is unavailing. Concomitant to this principle, the writ of habeas corpuscannot be used to directly assail a judgment rendered by a competent court or tribunal which, having duly acquired jurisdiction, was not deprived or ousted of this jurisdiction through some anomaly in the conduct of the proceedings. Thus, notwithstanding its historic function as the great writ of liberty, the writ of habeas corpus has very limited availability as a post-conviction remedy. In the

recent case of Feria v. Court of Appeals,[25] we ruled that review of a judgment of conviction is allowed in a petition for the issuance of the writ of habeas corpus only in very specific instances, such as when, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.[26] In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment of conviction, without, however, providing a legal ground on which to anchor his petition. In fine, petitioner alleges neither the deprivation of a constitutional right, the absence of jurisdiction of the court imposing the sentence, or that an excessive penalty has been imposed upon him. In fine, petitioner invokes the remedy of habeas corpus in order to seek the review of findings of fact long passed upon with finality. This relief is far outside the scope of habeas corpus proceedings. In the early case of Abriol v. Homeres,[27] for example, this Court stated the general rule that the writ of habeas corpus is not a writ of error, and should not be thus used. The writ of habeas corpus, whereas permitting a collateral challenge of the jurisdiction of the court or tribunal issuing the process or judgment by which an individual is deprived of his liberty, cannot be distorted by extending the inquiry to mere errors of trial courts acting squarely within their jurisdiction.[28] The reason for this is explained very simply in the case of Velasco v. Court of Appeals:[29] a habeas corpus petition reaches the body, but not the record of the case. [30] A record must be allowed to remain extant, and cannot be revised, modified, altered or amended by the simple expedient of resort to habeas corpus proceedings. Clearly, mere errors of fact or law, which did not have the effect of depriving the trial court of its jurisdiction over the case and the person of the defendant, are not correctible in a petition for the issuance of the writ of habeas corpus; if at all, these errors must be corrected on certiorari or on appeal, in the form and manner prescribed by law.[31] In the past, this Court has disallowed the review of a courts appreciation of the evidence in a petition for the issuance of a writ of habeas corpus, as this is not the function of said writ.[32] A survey of our decisions in habeas corpus cases demonstrates that, in general, the writ of habeas corpus is a high prerogative writ which furnishes an extraordinary remedy; it may thus be invoked only under extraordinary circumstances.[33] We have been categorical in our pronouncements that the writ of habeas corpus is not to be used as a substitute for another, more proper remedy. Resort to the writ of habeas corpus is available only in the limited instances when a judgment is rendered by a court or tribunal devoid of jurisdiction. If, for instance, it can be demonstrated that there was a deprivation of a constitutional right, the writ can

be granted even after an individual has been meted a sentence by final judgment. Thus, in the case of Chavez v. Court of Appeals,[34] the writ of habeas corpus was held to be available where an accused was deprived of the constitutional right against self-incrimination. A defect so pronounced as the denial of an accuseds constitutional rights results in the absence or loss of jurisdiction, and therefore invalidates the trial and the consequent conviction of the accused. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus.[35] Later, inGumabon v. Director of the Bureau of Prisons,[36] this Court ruled that, once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention.[37] Although in Feria v. Court of Appeals[38] this Court was inclined to allow the presentation of new evidence in a petition for the issuance of a writ of habeas corpus, this was an exceptional situation. In that case, we laid down the general rule, which states that the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. Where the return is not subject to exception, that is, where it sets forth a process which, on its face, shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.[39] In the recent case of Calvan v. Court of Appeals,[40] we summarized the scope of review allowable in a petition for the issuance of the writ of habeas corpus. We ruled that the writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked by the attendance of a special circumstance that requires immediate action. In such situations, the inquiry on a writ of habeas corpus would be addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which a person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention.[41] It is the nullity of an assailed judgment of conviction which makes it susceptible to collateral attack through the filing of a petition for the issuance of the writ of habeas corpus. Upon a perusal of the records not merely of this case but of People v. de Villa, we find that the remedy of the writ of habeas corpus is unavailing. First, the denial of a constitutional right has not been alleged by petitioner. As such, this Court is hard-pressed to find legal basis on which to anchor the grant of a writ of habeas corpus. Much as this Court sympathizes with petitioners plea, a careful scrutiny of the records does not reveal any constitutional right of which the petitioner was unduly deprived.

We are aware that other jurisdictions have seen fit to grant the writ of habeas corpus in order to test claims that a defendant was denied effective aid of counsel.[42] In this instance, we note that the record is replete with errors committed by counsel, and it can be alleged that the petitioner was, at trial, denied the effective aid of counsel. The United States Supreme Court requires a defendant alleging incompetent counsel to show that the attorneys performance was deficient under a reasonable standard, and additionally to show that the outcome of the trial would have been different with competent counsel.[43] The purpose of the right to effective assistance of counsel is to ensure that the defendant receives a fair trial.[44] The U.S. Supreme Court asserts that in judging any claim of ineffective assistance of counsel, one must examine whether counsels conduct undermined the proper functioning of the adversarial process to such an extent that the trial did not produce a fair and just result.[45] The proper measure of attorney performance is reasonable under the prevailing professional norms, and the defendant must show that the representation received fell below the objective standard of reasonableness.[46] For the petition to succeed, the strong presumption that the counsels conduct falls within the wide range or reasonable professional assistance must be overcome.[47] In the case at bar, it appears that in the middle of the appeal, the petitioners counsel of record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his appearance as counsel, giving the sole explanation that he was leaving for the United States for an indefinite period of time by virtue of a petition filed in his favor.[48] In the face of this abandonment, petitioner made an impassioned plea that his lawyer be prevented from this withdrawal in a handwritten Urgent Motion for Reconsideration and Opposition of Counsels Withdrawal of Appearance with Leave of Court received by this Court on September 14, 1999.[49] Petitioner alleged that his counsels withdrawal is an untimely and heartbreaking event, considering that he had placed all [his] trust and confidence on [his counsels] unquestionable integrity and dignity.[50] While we are sympathetic to petitioners plight, we do not, however, find that there was such negligence committed by his earlier counsel so as to amount to a denial of a constitutional right. There is likewise no showing that the proceedings were tainted with any other jurisdictional defect. In fine, we find that petitioner invokes the remedy of the petition for a writ of habeas corpus to seek a re-examination of the records of People v. de Villa, without asserting any legal grounds therefor. For all intents and purposes, petitioner seeks a reevaluation of the evidentiary basis for his conviction. We are being asked to reexamine the weight and sufficiency of the evidence in this case, not on its own, but in light of the new DNA evidence that the petitioner seeks to

present to this Court. This relief is outside the scope of ahabeas corpus petition. The petition for habeas corpus must, therefore, fail. Coupled with the prayer for the issuance of a writ of habeas corpus, petitioner seeks a new trial to re-litigate the issue of the paternity of the child Leahlyn Mendoza. It must be stressed that the issue of Leahlyn Mendozas paternity is not central to the issue of petitioners guilt or innocence. The rape of the victim Aileen Mendoza is an entirely different question, separate and distinct from the question of the father of her child. Recently, in the case of People v. Alberio,[51] we ruled that the fact or not of the victims pregnancy and resultant childbirth are irrelevant in determining whether or not she was raped. Pregnancy is not an essential element of the crime of rape. Whether the child which the victim bore was fathered by the purported rapist, or by some unknown individual, is of no moment in determining an individuals guilt. In the instant case, however, we note that the grant of child support to Leahlyn Mendoza indicates that our Decision was based, at least in small measure, on the victims claim that the petitioner fathered her child. This claim was given credence by the trial court, and, as a finding of fact, was affirmed by this Court on automatic review. The fact of the childs paternity is now in issue, centrally relevant to the civil award of child support. It is only tangentially related to the issue of petitioners guilt. However, if it can be conclusively determined that the petitioner did not sire Leahlyn Mendoza, this may cast the shadow of reasonable doubt, and allow the acquittal of the petitioner on this basis. Be that as it may, it appears that the petitioner once more relies upon erroneous legal grounds in resorting to the remedy of a motion for new trial. A motion for new trial, under the Revised Rules of Criminal Procedure, is available only for a limited period of time, and for very limited grounds. Under Section 1, Rule 121, of the Revised Rules of Criminal Procedure, a motion for new trial may be filed at any time before a judgment of conviction becomes final, that is, within fifteen (15) days from its promulgation or notice. Upon finality of the judgment, therefore, a motion for new trial is no longer an available remedy. Section 2 of Rule 121 enumerates the grounds for a new trial: SEC. 2. Grounds for a new trial.The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial;

(b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. In the case at bar, petitioner anchors his plea on the basis of purportedly newly-discovered evidence, i.e., the DNA test subsequently conducted, allegedly excluding petitioner from the child purportedly fathered as a result of the rape. The decision sought to be reviewed in this petition for the issuance of a writ of habeas corpus has long attained finality, and entry of judgment was made as far back as January 16, 2002. Moreover, upon an examination of the evidence presented by the petitioner, we do not find that the DNA evidence falls within the statutory or jurisprudential definition of newly- discovered evidence. A motion for new trial based on newly-discovered evidence may be granted only if the following requisites are met: (a) that the evidence was discovered after trial; (b) that said evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) that it is material, not merely cumulative, corroborative or impeaching; and (d) that the evidence is of such weight that that, if admitted, it would probably change the judgment.[52] It is essential that the offering party exercised reasonable diligence in seeking to locate the evidence before or during trial but nonetheless failed to secure it.[53] In this instance, although the DNA evidence was undoubtedly discovered after the trial, we nonetheless find that it does not meet the criteria for newlydiscovered evidence that would merit a new trial. Such evidence disproving paternity could have been discovered and produced at trial with the exercise of reasonable diligence. Petitioner-relators claim that he was unaware of the existence of DNA testing until the trial was concluded carries no weight with this Court. Lack of knowledge of the existence of DNA testing speaks of negligence, either on the part of petitioner, or on the part of petitioners counsel. In either instance, however, this negligence is binding upon petitioner. It is a settled rule that a party cannot blame his counsel for negligence when he himself was guilty of neglect.[54] A client is bound by the acts of his counsel, including the latters mistakes and negligence.[55] It is likewise settled that relief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy at law was due to his own negligence, or to a mistaken mode of procedure.[56] Even with all of the compelling and persuasive scientific evidence presented by petitioner and his counsel, we are not convinced that Reynaldo de Villa is entitled to outright acquittal. As correctly pointed out by the Solicitor General, even if it is conclusively proven that Reynaldo de Villa is not the father of Leahlyn

Mendoza, his conviction could, in theory, still stand, with Aileen Mendozas testimony and positive identification as its bases.[57] The Solicitor General reiterates, and correctly so, that the pregnancy of the victim has never been an element of the crime of rape.[58] Therefore, the DNA evidence has failed to conclusively prove to this Court that Reynaldo de Villa should be discharged. Although petitioner claims that conviction was based solely on a finding of paternity of the child Leahlyn, this is not the case. Our conviction was based on the clear and convincing testimonial evidence of the victim, which, given credence by the trial court, was affirmed on appeal. WHEREFORE, in view of the foregoing, the instant petition for habeas corpus and new trial is DISMISSED for lack of merit. No costs. SO ORDERED. Puno, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Davide, Jr., C.J., and Panganiban, J., joins Carpio and Callejo, Sr., JJ., in their separate opinion. Carpio, J., please see separate concurring opinion. Callejo, Sr., J., please see separate opinion. Corona, J., on leave.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

SECOND DIVISION [G.R. No. 163108. February 23, 2005] GLENN CABALLES y CHUA, petitioner, vs. COURT OF APPEALS, HON. EMMANUEL D. LAUREA, HON. BENJAMIN T. ANTONIO, and PEOPLE OF THE PHILIPPINES, respondents. DECISION CALLEJO, SR., J.: Before us is a petition for certiorari under Rule 65 of the Revised Rules of Court filed by the petitioner for the nullification of the Resolution of the Court of Appeals[1] which dismissed his petition for the issuance of a writ of habeas corpus for his release from detention despite the pendency of People of the Philippines v. Glenn Caballes[2] for rape, and its resolution denying his motion for reconsideration thereof. The antecedents are as follows: On November 19, 2001, petitioner Glenn Chua Caballes was charged with rape of a minor in the Regional Trial Court (RTC) of Malabon City. The case was docketed as Criminal Case No. 25756-MN and raffled to Branch 169, presided by Judge Emmanuel D. Laurea. Because the petitioner was charged with a nonbailable offense, he was detained. The petitioner was arraigned on February 7, 2002 and pleaded not guilty to the offense charged. The prosecution presented two (2) witnesses, namely, Venice Vera Pio, the private complainant, and her mother. The petitioner, through counsel, commenced his cross-examination of Pio, but failed to complete the same. In January 2003, the petitioner engaged the services of a new counsel, Atty. Noel S. Sorreda, who entered his appearance as defense counsel.[3] During the trial of February 26, 2003, the petitioner continued his crossexamination of Pio but still failed to terminate the same. The trial was set on March 6, 2003 for the petitioner to terminate his cross-examination of Pio. However, due to the illness of the private prosecutor, the trial on the said date did not proceed. The trial was further reset to March 17, 2003 during which the petitioner continued with his cross-examination of the private complainant. Thereafter, the continuation of trial was set on April 3, 21, and 30, 2003. On April

3, 2003, the petitioner concluded his cross-examination of Pio. The prosecution declared that its next witness would be Dr. Jose Arnel Marquez, the MedicoLegal Officer of the Philippine National Police (PNP) Crime Laboratory, who had conducted a medico-legal examination of the private complainant, but stated that he had not been subpoenad. The prosecution prayed for the cancellation of the trial scheduled on April 21, 2003 to give the prosecution time to secure and cause the service of a subpoena duces tecum on him. The petitioner conformed to the motion of the prosecution. On April 28, 2003, the petitioner filed a petition for bail.[4] The trial of April 30, 2003 did not proceed because the petitioners counsel filed a Manifestation[5] that his presence was required in an execution sale in Cavite. The said counsel manifested that he reserved his right to cross-examine any witness the prosecution would present in case trial would proceed on that date; on the other hand, in the event that the trial court would cancel the trial, he would be available in May 2003 and during the first half of June 2003. The trial court reset the hearing of the case to 8:30 a.m. of June 19, 2003 and gave the prosecution ten (10) days to file its opposition[6] to the petitioners petition for bail. It likewise ordered the issuance of a subpoena to Dr. Jose Arnel Marquez to require him to attend the trial on the said date. On May 5, 2003, the petitioner filed a motion[7] seeking an earlier trial date, invoking his right to speedy trial under the Speedy Trial Act of 1998. He also filed a motion for the urgent resolution of his petition for bail.[8] On May 12, 2003, the petitioner filed another motion[9] praying that the hearing scheduled on June 19, 2003 be moved to an earlier date, preferably on May 26, 28 or 29, 2003. In the meantime, the prosecution filed its comment/opposition[10] to the petitioners petition for bail. On May 13, 2003, the court issued an Order[11] declaring that the petition for bail was submitted for its resolution and denying the petitioners motion for an earlier trial date. On June 16, 2003, the trial court issued its Order[12] denying the petition for bail, on its finding that the evidence of guilt against the petitioner was strong. During the trial of June 19, 2003, Dr. Marquez failed to appear before the court because, in the meantime, he had been assigned to the Eastern Police District and failed to receive the subpoena issued to him by the court. The prosecution prayed for continuance, but the petitioner objected and invoked his right to speedy trial. The court, nevertheless, granted the motion and reset the trial to July 17, 2003.

On June 27, 2003, the court issued a subpoena duces tecum/ad testificandum to Dr. Jose Arnel Marquez requiring him to appear for the trial set on July 17, 2003.[13] On July 4, 2003, the petitioner filed a Motion for Reconsideration of the courts Order dated June 16, 2003 denying his petition for bail. His motion was set for hearing, also on July 17, 2003. However, the petitioner preempted the resolution of his motion for reconsideration and filed a Motion to Dismiss[14] the case on July 11, 2003 on the ground that his right to speedy trial had been violated. He made the following allegations: 1. The hearings in the instant case have more often than not been scheduled more than one month apart; 2. In the hearing on April 30, 2003, in particular, the day before undersigned counsel had filed a Manifestation stating inter alia that his available dates for the next hearing may be any Monday, Wednesday or Thursday for the whole of May 2003 and the first half of June 2003, except on May 14 and 21 yet Atty. Manalaysay asked for the next hearing on June 19 which is already outside or beyond the dates mentioned in the manifestation, and which was more than 11/2 months away, but which the Honorable Court nonetheless granted; 3. Atty. Manalaysay has never been able to present any good cause as to how come he was not able to present Dr. Marquez on April 30, 2003, and then again on June 19, 2003; and as aforesaid, his absence on March 6, 2003 has not been supported by any medical certificate; 4. The first hearing in the instant case was held on June 13, 2002, thus it has now been more than one year, or close to 400 days ago since trial started; neither has there been any authorization from the Supreme Court that the trial period may exceed 180 days; 5. There has been no statement by the Honorable Court in any of its orders granting continuance that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial; 6. As above stated, it appears that the prosecution made a false statement before the Honorable Court in claiming they had asked Dr. Marquez to testify in the June 19, 2003 hearing, when in fact they had not.[15] Dr. Jose Arnel Marquez had apparently still not received the subpoena issued by the trial court, because of which the prosecution again failed to present him as a witness during the trial of July 17, 2003. The

prosecution prayed for continuance, to which the petitioner vigorously objected. The court, however, granted the motion and reset the trial to August 11, 2003.[16] On July 24, 2003, Judge Laurea issued an Order[17] inhibiting himself from hearing the case to avoid being misunderstood, to preserve his reputation for probity and objectivity and to live up to the ideal impartial administration of justice. The case was re-raffled to Branch 170, presided by Judge Benjamin T. Antonio, who calendared the case for trial on September 8, 2003. Nevertheless, on August 11, 2003, the petitioner filed a Motion for Reconsideration[18] of Judge Laureas Order dated July 24, 2003, which the latter denied, on the finding that no cogent reason was presented to reconsider the same.[19] During the hearing on September 8, 2003, Judge Antonio granted the private prosecutors motion to be given five (5) days within which to oppose the petitioners motion to dismiss. Judge Antonio also set the trial on September 18, 2003.[20] On the latter date, the trial court issued an Omnibus Order[21] denying the petitioners motion to dismiss. The trial court reasoned that there was no violation of the petitioners right to speedy trial, considering that the apparent delays could not be attributed to the fault of the prosecution alone. The trial court noted that the petitioner also sought Postponements of the trials. Anent the motion for reconsideration of the courts Order dated June 16, 2003 which denied the petition for bail, the trial court considered the same as having been abandoned by the petitioner upon the filing of his motion to dismiss the case without waiting for the resolution of his motion for reconsideration on his petition for bail. The petitioner then filed with the Court of Appeals (CA) a Petition for Habeas Corpus and/or Certiorari and Prohibition.[22] On October 2, 2003, the CA issued a Resolution requiring the petitioner to inform the court of his choice of remedy within five (5) days from notice thereof. In compliance therewith, the petitioner filed a manifestation with the appellate court that he had chosen his petition to be treated as a petition for habeas corpus without prejudice to the concomitant application of certiorari if the court considered the same necessary or appropriate to give effect to the writ of habeas corpus. The petitioner averred that (a) he was deprived of his right to a speedy trial and his constitutional right to a speedy disposition of the case; (b) Judge Laurea erred in inhibiting himself from the case; (c) the trial court committed grave abuse of its discretion in denying his petition for bail; and (d) Judge Antonio had prejudged the case against him. On December 9, 2003, the CA issued its assailed Resolution dismissing the petition, viz:

WHEREFORE, for being the wrong or improper remedy, the PETITION FOR HABEAS CORPUS is DISMISSED. SO ORDERED.[23] According to the appellate court, while the petitioner manifested his preference that his petition be treated as a petition for habeas corpus, the same was not the proper remedy to review and examine the proceedings before the trial court and as a relief from the petitioners perceived oppressive situation in the trial court. The CA further emphasized that a writ of habeas corpus is not a writ of error; that it could not exercise its certiorari jurisdiction over the acts or omission of the respondent judge as a concomitant remedy; and that the remedy for habeas corpus and certiorari are different in nature, scope and purpose. The appellate court declared that the petitioner failed to present any evidence to prove that there was any intentional or deliberate delay caused to prejudice him; nor was there any malice in the failure of the prosecution to promptly serve the subpoena duces tecum/ad testificandum to its witnesses. The court also noted that the resetting of petitioners case may also be attributed to the voluminous work of the RTC involved. The petitioner filed a motion for reconsideration of the said decision contending that (a) the congestion of the trial courts calendar is not a valid ground for continuance of the trial; (b) the trial court failed to secure an extension of time of the trial period from the Supreme Court; (c) the trial court should have given a precedence to the case, the charge therein being a heinous crime; (d) his petition for a writ of habeas corpus was proper because his continued detention had become illegal, following the prosecutor and the trial courts violation of his right to a speedy trial, and the trial courts denial of his motion to dismiss the case and his petition for bail which was tainted with grave abuse of discretion; and (e) a writ of habeas corpus may be issued with the writ of certiorari for the purpose of review. However, the CA denied the petitioners motion for lack of merit. The petitioner filed a petition for certiorari in this Court under Rule 65 of the Rules of Court reiterating the grounds contained in his motion for reconsideration of the CA decision. The petitioner averred that the appellate court committed grave abuse of discretion amounting to excess or lack of jurisdiction in rendering its resolution, as well as the resolution denying his motion for reconsideration thereof. In its comment on the petition, the Office of the Solicitor General submits that a petition for a writ of habeas corpus is not the proper remedy to assail the trial courts order denying his petition for bail, motion to dismiss the case, and Judge Laureas order of inhibition. The OSG posits that the petitioner was not deprived of his constitutional right to a speedy disposition of his case as well as under the Speedy Trial Act.

The issues for resolution are the following: (a) whether or not the decision of the CA is already final and executory; (b) whether the proper remedy from the appellate courts denial of a petitioner for a writ if habeas corpus is a petition for certiorari under Rule 65 of the Rules of Court; and (c) if in the affirmative, whether or not the petitioner is entitled to the issuance of the writ. On the first issue, we find and so rule that the petitioners recourse to this Court via a petition for certiorari from the decision of the CA dismissing his petition for a writ of habeas corpus is inappropriate. Section 39 of Batas Pambansa Blg. 129 provides that the period for appeal from the judgment of any court in habeas corpus cases shall be forty-eight (48) hours from notice of the judgment appealed from. While the said provision was not incorporated in the 1997 Rules of Civil Procedure, this Court approved Administrative Matter No. 011-03-SC amending Section 3, Rule 41of the said Rules, which took effect on July 15, 2001, thus: SEC. 3. Period of ordinary appeal; appeal in habeas corpus cases.The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within forty-eight (48) hours from notice of the judgment or final order appealed from. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. Following the rule, the petitioner should have appealed to this Court from the CA decision denying his petition for a writ of habeas corpus, as well as the denial of his motion for reconsideration thereof; instead, the petitioner filed a petition for certiorari under Rule 65 of the Rules of Court, as amended. The well-settled rule is that certiorari is not available where the aggrieved partys remedy of appeal is plain, speedy and adequate in the ordinary course, the reason being that certiorari cannot co-exist with an appeal or any other adequate remedy. The existence and availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. These two remedies are mutually exclusive.[24] An appeal in this case would still have been a speedy and adequate remedy. Consequently, when the petitioner filed his petition in this Court, the decision of the CA was already final and executory. It bears stressing that a decision in a habeas corpus action stands in no different position than with any other proceeding and if the appealed decision is to be reviewed by an appellate court, the remedy is by writ of error because the

error committed by the court is an error of judgment and not an error of jurisdiction.[25] Besides, as correctly held by the CA, a writ of habeas corpus is not the proper remedy to assail the trial courts denial of the petitioners motion to dismiss the case, the denial of the petition for bail, as well as the voluntary inhibition of Judge Laurea. A petition for the issuance of a writ of habeas corpus is a special proceeding governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings,[26] it was held thathabeas corpus is that of a civil proceeding in character. It seeks the enforcement of civil rights. Resorting to the writ is not to inquire into the criminal act of which the complaint is made, but into the right of liberty, notwithstanding the act and the immediate purpose to be served is relief from illegal restraint. The rule applies even when instituted to arrest a criminal prosecution and secure freedom. When a prisoner petitions for a writ of habeas corpus, he thereby commences a suit and prosecutes a case in that court.[27] Habeas corpus is not in the nature of a writ of error; nor intended as substitute for the trial courts function.[28] It cannot take the place of appeal, certiorari or writ of error. The writ cannot be used to investigate and consider questions of error that might be raised relating to procedure or on the merits. The inquiry in a habeas corpus proceeding is addressed to the question of whether the proceedings and the assailed order are, for any reason, null and void.[29] The writ is not ordinarily granted where the law provides for other remedies in the regular course, and in the absence of exceptional circumstances. Moreover, habeas corpus should not be granted in advance of trial.[30] The orderly course of trial must be pursued and the usual remedies exhausted before resorting to the writ where exceptional circumstances are extant. In another case, it was held that habeas corpus cannot be issued as a writ of error or as a means of reviewing errors of law and irregularities not involving the questions of jurisdiction occurring during the course of the trial, subject to the caveat that constitutional safeguards of human life and liberty must be preserved, and not destroyed.[31] It has also been held that where restraint is under legal process, mere errors and irregularities, which do not render the proceedings void, are not grounds for relief by habeas corpus because in such cases, the restraint is not illegal.[32] Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole purpose of having the person of restraint presented before the judge in order that the cause of his detention may be inquired into and his statements final.[33] The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be the unlawful authority.[34] Hence, the only parties before the court are the petitioner (prisoner) and the person holding the petitioner in custody, and

the only question to be resolved is whether the custodian has authority to deprive the petitioner of his liberty.[35] The writ may be denied if the petitioner fails to show facts that he is entitled thereto ex merito justicias.[36] A writ of habeas corpus, which is regarded as a palladium of liberty is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge. It, is, however, a writ of right on proper formalities being made by proof.[37] Resort to the writ is to inquire into the criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and the immediate purpose to be served is relief from illegal restraint.[38] The primary, if not the only object of the writ of habeas corpus ad subjuciendum is to determine the legality of the restraint under which a person is held.[39] Our review of the petitioners material averments in his petition before the CA reveals that it was a petition for habeas corpus or, in the alternative, a petition for a writ of certiorari The petitioner assailed therein the orders of the trial court denying his petition for bail and his motion to dismiss on the ground that he was deprived of his right to a speedy disposition of the case against him, and questioned Judge Laureas order of inhibition. We agree with the CA that a petition for a writ of habeas corpus cannot be joined with the special civil action for certiorari because the two remedies are governed by a different set of rules. Rule 2, Section 5(b) of the Rules of Court mandates that the joinder of causes of action shall not include special actions or actions governed by special rules, thus proscribing the joinder of a special proceeding with a special civil action. We also agree with the ruling of the CA that a petition for a writ of habeas corpus is a remedy different from the special civil action of certiorari under Rule 65 of the Rules of Court, as amended. The writ of habeas corpus is a collateral attack on the processes, orders, or judgment of the trial court, while certiorari is a direct attack of said processes, orders, or judgment on the ground of lack of jurisdiction or grave abuse of discretion amounting to excess or lack of jurisdiction. A writ of certiorari reaches only jurisdictional errors. It has no other use, except to bring before the court a record material to be considered in exercising jurisdiction. A writ of certiorari reaches the record. On the other hand, a writ of habeas corpus reaches the body but not the record; it also reaches jurisdictional matters but does not reach the record. However, when jurisdiction is obtained by the issuance of a writ ofhabeas corpus, to bring the body of the person whose liberty is involved into court, and if it is necessary, to provide the record upon which the detention is based, that may be accomplished by using a writ of certiorari as an ancillary proceeding, i.e., it is subordinate to or in aid of the primary action for the purpose of impeaching the record. When a writ of certiorari is issued as the foundation of jurisdiction to bring it and direct upon the validity of a judicial determination by any body or officer, jurisdictional questions only are

reached, and such questions pertaining to the detention made by the officer or body particularly complained of.[40] The petitioner manifested to the appellate court that his petition should be treated as a petition for habeas corpus. Even then, the CA rightly dismissed the petition because the petitioner failed to establish his right to the writ. The records show that the petitioner was charged with rape punishable by reclusion perpetua and was detained based on the said charge; hence, if the evidence of his guilt is strong, he shall not be admitted to bail regardless of the stage of the criminal prosecution.[41] There is no question that the trial court had jurisdiction over the offense charged and over the person of the petitioner. The jail warden has the authority and, in fact, is mandated to detain the petitioner until granted bail by the court, or the case against him dismissed, or until he is acquitted after trial. The petitioner failed to establish that his incarceration pendente lite was illegal, and likewise failed to establish exceptional circumstances warranting the issuance of a writ of habeas corpus by the appellate court. In Galvez v. Court of Appeals,[42] the Court ruled that a petition for habeas corpus is not the proper remedy to assail the denial thereof: The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there.[43] The remedy of the petitioner from the Order of the trial court denying his petition for bail was to file a petition for certiorari in the CA if the trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the said order.[44] If the petitioner had done so, his petition would have been granted because as gleaned from the assailed order of the trial court, it failed to summarize the testimonies of the private complainant and that of her mother. Hence, such order is invalid.[45] The trial court would have had to issue another order containing the summary of the testimonies of the private complainant and her mother, including its findings and conclusions. However, the petitioner would still not be entitled to be released from detention in the meantime. It bears stressing that under the second paragraph of Section 1, Rule 137[46] of the Rules of Court, the voluntary inhibition of a Judge is addressed to his sound discretion for just or valid reasons, the primary consideration being that the peoples faith in the courts of justice is not impaired.[47] The petitioner should

have thus filed a petition for certiorari and/or prohibition in the CA, instead of a petition for habeas corpus. In cases where the right of the accused to a speedy trial is violated by the prosecution, the remedy lies in the procedure provided for under Republic Act No. 8493, as implemented by Rule 119 of the 2000 Rules of Criminal Procedure. Section 8 of the said Rule provides: SEC. 8. Sanctions. In any case in which private counsel for the accused, the public attorney, or the prosecutor: (a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial; (b) Files a motion solely for delay which he knows is totally frivolous and without merit; (c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or (d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows: (1) By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding twenty thousand pesos (P20,000.00); (2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and (3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these Rules. If the trial court acted with grave abuse of its discretion amounting to excess of lack of jurisdiction in granting the prosecutions motion for the resetting of the trial over the petitioners objections, the more appropriate remedy would have been to file a petition for certiorari and/or a petition for mandamus to compel the trial court to comply with the timeline provided for by the said Rule for trial and termination of the case. It was inappropriate for the petitioner to file a petition for habeas corpus assailing the trial courts order denying his motion to dismiss the case for

failure to comply with the timeline provided for by the said Rules. Reading and evaluating the assailed Order of the trial court dated September 18, 2000, it cannot be gainsaid that the court violated the right of the petitioner to speedy trial. Thus: The instant motion is anchored on the alleged violation of and/or to enforce the right of the accused to speedy trial. In invoking such right, the accused contends that the failure of the prosecution to present the medico-legal officer who examined the victim on two (2) occasions, and the non-appearance of the private prosecutor on one occasion caused undue delay in the proceedings of this case. The prosecution vigorously opposed the Motion to Dismiss and claimed that since the prosecution has not yet rested its case, the Court may not be able to appreciate the merits of the instant motion in the light of the unfinished presentation of evidence for the prosecution and that the grounds relied by the defense do not touch on the sufficiency of the prosecutions evidence to prove the guilt of the accused beyond reasonable doubt, but rather on the alleged delay and failure to present Dr. Jose Arnel Marquez of the PNP Crime Laboratory. After due consideration, the Court finds the instant motion untenable. The alleged delay and failure to present the medico-legal officer cannot be attributed to the fault of the prosecution and/or the Court. The prosecution and the Court cannot encroach on the right of the medico-legal officer to appear inasmuch as his schedule conflicted with the hearings set for his appearance. Moreover, delays assailed by defense counsel that violated accused right to speedy trial are not all at the instance of the prosecution. In fact, the defense, contributed to the delay since the former defense counsel and even the present defense counsel sought postponements of the hearings. Be that as it may, despite the non-presentation of the medico-legal officer, the Court (Branch 169) proceeded in resolving the Petition for Bail of the accused (albeit unfavorable to the cause of the accused) on the basis of the sole testimony of the complainant, which is backed up by several jurisprudence to this effect. The defense, filed a Motion for Reconsideration of said denial after he has filed a Motion to Dismiss. The filing of these pleadings adds to the delay until the Presiding Judge who denied the Petition for Bail voluntarily inhibited himself from this case. Then when the Motion to Dismiss was set for hearing, the Court, in an attempt to expedite the proceedings, suggested for the parties to stipulate on the medical findings of the medico-legal officer so as to dispense with his presentation. Defense counsel, however, would not want to enter into such a stipulation. Hence, another delay.[48]

We agree with the petitioner that a petition for the issuance of a writ of habeas corpus may be filed if one is deprived of his right to a speedy disposition of the case under Article IV, Section 16 of the 1987 Constitution and of his right to due process.[49] However, the petitioner never invoked in the trial court his constitutional right to a speedy disposition of the case against him. What he invoked was his right to a speedy trial under Rule 119 of the 2000 Rules of Criminal Procedure. He invoked his constitutional right to a speedy disposition of the case against him, for the first time, only in the Court of Appeals when he filed his petition for habeas corpus. Even then, the petitioner failed to establish his claim that he was deprived of his right to a speedy disposition of the case. In Marilyn Corpuz, et al., v. Sandiganbayan,[50] the Court had the occasion to state The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a relative term and must necessarily be a flexible concept. While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that intent. The Court emphasized in the same case that: A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis. In determining whether the accused has been deprived of his right to a speedy disposition of the case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason for the delay; (c) the defendants assertion of his right; and (d) prejudice to the defendant. Prejudice should be assessed in the light of the interest of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pre-trial incarceration; to minimize anxiety and

concerns of the accused to trial; and to limit the Possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. There is also prejudice if the defense witnesses are unable to recall accurately the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is subjected to public obloquy. Delay is a two-edged sword. It is the government that bears the burden of proving its case beyond reasonable doubt. The passage of time may make it difficult or impossible for the government to carry its burden. The Constitution and the Rules do not require impossibilities or extraordinary efforts, diligence or exertion from courts or the prosecutor, nor contemplate that such right shall deprive the State of a reasonable opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the government to sustain its right to try the accused despite a delay, it must show two things: (a) that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay; and (b) that there was no more delay than is reasonably attributable to the ordinary processes of justice. Closely related to the length of delay is the reason or justification of the State for such delay. Different weights should be assigned to different reasons or justifications invoked by the State. For instance, a deliberate attempt to delay the trial in order to hamper or prejudice the defense should be weighted heavily against the State. Also, it is improper for the prosecutor to intentionally delay to gain some tactical advantage over the defendant or to harass or prejudice him. On the other hand, the heavy case load of the prosecution or a missing witness should be weighted less heavily against the State. In this case, the petitioner was arraigned on February 7, 2002. In the meantime, he was able to present only two witnesses. The petitioner failed to terminate the cross-examination of the private complainant by the year 2002. The Court cannot determine the reason for the delay because the records of the RTC are not before it. Neither of the parties made any explanation for the delay; nor is there any showing that the counsel of the petitioner complained about the delay. Aside from the petitioners claim that the private prosecutor failed to give good cause for his failure to present Dr. Jose Arnel Marquez during the trial dates April 30, 2003 and June 19, 2003, as well as to substantiate his absence during the trial of March 6, 2003 with a medical certificate, the petitioner failed to support his claim in his pleadings before the CA and in this Court. On the other hand, the counsel of the petitioner was absent during the trial on April 30, 2003

because he had to attend an execution sale in Cavite. The petitioners counsel gave priority to the execution sale and asked for a resetting despite the fact that his client, the petitioner, was detained for a quasi-heinous crime. While it is true that the trial was reset to June 19, 2003, or more than one month from April 30, 2003, the petitioners counsel himself manifested that he was available for trial during the first half of June 2003. There was a difference of only four (4) days from the trial date set by the court and the available dates suggested by the petitioners counsel. It bears stressing that trial dates cannot be set solely at the convenience of the petitioners counsel. The trial dates available in the calendar of the court and of the prosecutor must also be taken into account. Hence, it cannot be said that the petitioner was deprived of his right to a speedy disposition of the case simply because the private prosecutor failed to submit a medical certificate for his absence during the trial of March 6, 2003. The petitioner could have asked the court to cite the private prosecutor in contempt of court for his failure to submit the said certificate; he failed to do so. Moreover, the petitioner failed to establish any serious prejudice by the delay of the trial, and that the State deliberately delayed the trial to prejudice him. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

FIRST DIVISION [G.R. No. 139789. May 12, 2000] ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm [G.R. No. 139808. May 12, 2000] POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO,respondents. DECISION PARDO, J.: May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus. A writ of habeas corpus extends to all cases of illegal confinement or detention,[1] or by which the rightful custody of a person is withheld from the one entitled thereto.[2] Slx "Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf."[3] It is a high prerogative, common-law writ, of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause.[4] It is issued when one is deprived of liberty or is wrongfully prevented from exercising legal custody over another person.[5] The petition of Erlinda K. Ilusorio[6] is to reverse the decision[7] of the Court of Appeals and its resolution[8] dismissing the application for habeas corpus to have

the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as the wife. On the other hand, the petition of Potenciano Ilusorio[9] is to annul that portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation rights. The undisputed facts are as follows: Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio. Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President of Baguio Country Club. On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived together for a period of thirty (30) years. In 1972, they separated from bed and board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City. Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age 39). On December 30, 1997, upon Potencianos arrival from the United States, he stayed with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged that during this time, their mother gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in New York, U.S.A. As a consequence, Potencianos health deteriorated. On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition[10] for guardianship over the person and property of Potenciano Ilusorio due to the latters advanced age, frail health, poor eyesight and impaired judgment. On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium, Makati. Slxsc

On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that respondents[11] refused petitioners demands to see and visit her husband and prohibited Potenciano from returning to Antipolo City. After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive portion of which reads: "WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby rendered: "(1) Ordering, for humanitarian consideration and upon petitioners manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap, the administrator of Cleveland Condominium or anywhere in its place, his guards and Potenciano Ilusorios staff especially Ms. Aurora Montemayor to allow visitation rights to Potenciano Ilusorios wife, Erlinda Ilusorio and all her children, notwithstanding any list limiting visitors thereof, under penalty of contempt in case of violation of refusal thereof; xxx "(2) ORDERING that the writ of habeas corpus previously issued be recalled and the herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby DISMISSED for lack of unlawful restraint or detention of the subject of the petition. "SO ORDERED."[12] Hence, the two petitions, which were consolidated and are herein jointly decided. As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or detention,[13] or by which the rightful custody of a person is withheld from the one entitled thereto. It is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.[14] It is devised as a speedy and effectual remedy to relieve persons from unlawful restraint, as the best and only sufficient defense of personal freedom.[15] Jksm The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.[16]

To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action.[17] The illegal restraint of liberty must be actual and effective, not merely nominal or moral.[18] The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but on the capacity of the individual to discern his actions. After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his liberty. The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the administrator of the Cleveland Condominium not to allow his wife and other children from seeing or visiting him. He made it clear that he did not object to seeing them. As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that he was of sound and alert mind, having answered all the relevant questions to the satisfaction of the court. Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the crucial choices revolve on his residence and the people he opts to see or live with. The choices he made may not appeal to some of his family members but these are choices which exclusively belong to Potenciano. He made it clear before the Court of Appeals that he was not prevented from leaving his house or seeing people. With that declaration, and absent any true restraint on his liberty, we have no reason to reverse the findings of the Court of Appeals. With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of visitation rights against his free choice. Otherwise, we will deprive him of his right to privacy. Needless to say, this will run against his fundamental constitutional right. Es m The Court of Appeals exceeded its authority when it awarded visitation rights in a petition for habeas corpus where Erlinda never even prayed for such right. The ruling is not consistent with the finding of subjects sanity. When the court ordered the grant of visitation rights, it also emphasized that the same shall be enforced under penalty of contempt in case of violation or refusal to comply. Such assertion of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right. No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and womans free choice. WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No costs. In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs. SO ORDERED. Davide, Jr., JJ., concur. C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago,

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

EN BANC [G.R. Nos. 138268-69. May 26, 1999] JURRY ANDAL, RICARDO ANDAL and EDWIN MENDOZA, petitioners, vs. PEOPLE OF THE PHILIPPINES, REGIONAL TRIAL COURT, BATANGAS BR. 05, LEMERY, THE DIRECTOR, BUREAU OF CORRECTIONS, and THE HONORABLE, THE SECRETARY OF JUSTICE, in their official capacities, respondents. RESOLUTION PER CURIAM: The power of judicial review is an aspect of judicial power that allows this Court every opportunity to review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts and to determine whether or not there has been a grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch or instrumentality of the government.[1] The case before us is a petition for a writ of habeas corpus filed by Jury Andal, Ricardo Andal and Edwin Mendoza, all convicted of rape with homicide in Criminal Case No. 148-94 and 149-94, Regional Trial Court, Batangas, Branch 05, Lemery, affirmed by this Court in a decision en banc promulgated on September 25, 1997, and a resolution promulgated on February 17, 1998. They are scheduled for execution on June 16, 17, and 18, 1999. Petitioners seek a writ of habeas corpus on the basis of a claim of mistrial and/or that the decision of the Regional Trial Court, Batangas, Branch 05, Lemery, was void. They pray for a temporary restraining order to stay their execution and/or a preliminary injunction enjoining their execution. The petitioners rely on the argument that the trial court was ousted of jurisdiction to try their case since the pre-trial identification of the accused was made without the assistance of counsel and without a valid waiver from the accused. The petitioners cite the case of Olaguer v. Military Commission No. 34[2], wherein in a separate opinion, Justice Claudio Teehankee stated that Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgement is deemed ousted of its jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention.

We agree with petitioners that the extra-ordinary writ of habeas corpus is the appropriate remedy to inquire into questions of violation of the petitioners constitutional rights and that this Court has jurisdiction to entertain this review. Indeed, under the Constitution, the jurisdiction of this Court has been expanded to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[3] And under Rule 102, Section 1 of the Revised Rules of Court, it is provided that Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. He may also avail himself of the writ where as a consequence of a judicial proceeding (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.[4] However, in this case, we find that there was no violation of the constitutional rights of the accused and a resultant deprivation of liberty or due process of law. In fact, the petition may be viewed as an attempt at a second motion for reconsideration of a final decision of the Court, disguised as one for habeas corpus. The accused were sentenced to the supreme penalty of death as a result of a valid accusation, trial, and judgment by a court of competent jurisdiction, after a fair and equitable trial. The factual milieu does not show a mistrial or a violation of the constitutional rights of the accused. As ruled by this Court, in its decision of September 25, 1997, the constitutional infirmity cannot affect the conclusion since accusedappellants did not make any confessions or admissions in regard to the crime charged. Further the earring recovered from Jury Andal was not obtained in the course of the investigation itself, but obtained through a search incident to a lawful arrest.[5] The Court has held in a long cases, that any illegality attendant during the arrest is deemed cured when the accused voluntarily submitted themselves to the jurisdiction of the court by entering their plea[6]. The trial court therefore had jurisdiction to try the case. The Court subsequently affirmed the decision based on a careful consideration of the evidence presented both by the prosecution and the defense. The absence of the testimony of Rufino Andal due to the failure of the defense counsel to present him as a witness will not make the judgment of the lower court invalid or

void. The case was decided on the evidence presented, which this Court considered sufficient to support the judgment of conviction. The issue of DNA tests as a more accurate and authoritative means of identification than eye-witness identification need not be belabored. The accused were all properly and duly identified by the prosecutions principal witness. Olimpio Corales, a brother in law of accused Jurry and Ricardo Andal. DNA testing proposed by petitioners to have an objective and scientific basis of identification of semen samples to compare with those taken from the vagina of the victim are thus unnecessary or are forgotten evidence too late to consider now. The trial court imposed and this Court affirmed the correct sentence. The death penalty is what the law prescribes in cases involving rape with homicide.[7] We agree with the accused that they should be afforded every opportunity to prove their innocence, especially in cases involving the death penalty; in this case, the Court can state categorically that every opportunity was provided the accused. However, painful the decision may be in this case, we have conscientiously reviewed the case. Four (4) Justices of the Court maintain their position as to the unconstitutionality of Republic Act No. 7659 in so far as it prescribes the death penalty for certain heinous crimes; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty may be lawfully imposed in proper cases as the one at bar. IN VIEW WHEREOF, we hereby resolve to DENY the petition for habeas corpus, and declare valid the judgment rendered by the trial court and affirmed by this Court. This resolution is final. No costs. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, GonzagaReyes, and Ynares-Santiago, JJ., concur.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

SECOND DIVISION [G.R. No. 122954. February 15, 2000] NORBERTO FERIA Y PACQUING, petitioner, vs. THE COURT OF APPEALS, THE DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF MANILA, respondents. DECISION QUISUMBING, J.: The mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which is as much a duty of the prosecution as of the defense. Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the Eighth Division of the Court of Appeals, which affirmed the dismissal of the petition forhabeas corpus filed by petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995, which denied the Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of respondent appellate court. Based on the available records and the admissions of the parties, the antecedents of the present petition are as follows: Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to present[1] by reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No. 60677, by the Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United States Peace Corps Volunteer Margaret Viviene Carmona. Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa City,[2] but the Jail Warden of the Manila City Jail informed the Presiding Judge of

the RTC-Manila, Branch 2, that the transfer cannot be effected without the submission of the requirements, namely, the Commitment Order or Mittimus, Decision, and Information.[3] It was then discovered that the entire records of the case, including the copy of the judgment, were missing. In response to the inquiries made by counsel of petitioner, both the Office of the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch 2 attested to the fact that the records of Criminal Case No. 60677 could not be found in their respective offices. Upon further inquiries, the entire records appear to have been lost or destroyed in the fire which occurred at the second and third floor of the Manila City Hall on November 3, 1986.[4] On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus[5] with the Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch 2, Regional Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from confinement on the ground that his continued detention without any valid judgment is illegal and violative of his constitutional right to due process. In its Resolution dated October 10, 1994,[6] the Second Division of this Court resolved " x x x (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the Regional Trial Court of Manila to conduct an immediate RAFFLE of this case among the incumbent judges thereof; and (c) to REQUIRE [1] the Judge to whom this case is raffled to SET the case for HEARING on Thursday, October 13, 1994 at 8:30 A.M., try and decide the same on the merits and thereafter FURNISH this Court with a copy of his decision thereon; [2] the respondents to make a RETURN of the Writ on or before the close of office hours on Wednesday, October 12, 1994 and APPEAR PERSONALLY and PRODUCE the person of Norberto Feria y Pa[c]quing on the aforesaid date and time of hearing to the Judge to whom this case is raffled, and [3] the Director General, Philippine National Police, through his duly authorized representative(s) to SERVE the Writ and Petition, and make a RETURN thereof as provided by law and, specifically, his duly authorized representative(s) to APPEAR PERSONALLY and ESCORT the person of Norberto Feria y Pa[c]quing at the aforesaid date and time of hearing." The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November 15, 1994, after hearing, issued an Order[7] dismissing the case on the ground that the mere loss of the records of the case does not

invalidate the judgment or commitment nor authorize the release of the petitioner, and that the proper remedy would be reconstitution of the records of the case which should be filed with the court which rendered the decision. Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the assailed Decision[8] affirming the decision of the trial court with the modification that "in the interest of orderly administration of justice" and "under the peculiar facts of the case" petitioner may be transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements (Mittimus, Decision and Information) but without prejudice to the reconstitution of the original records. The Motion for Reconsideration of the aforesaid Order having been denied for lack of merit,[9] petitioner is now before us on certiorari, assigning the following errors of law:[10] I. WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS OF CONVICTION WERE LOST, THE PETITIONERS CONTINUED INCARCERATION IS JUSTIFIED UNDER THE LAW. COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS RESOLUTION, AFFIRMING THE DENIAL OF HEREIN APPELLANTS PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A JUDGMENT OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR HIS INCARCERATION. II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/DESTROYED SHOULD BE INITIATED BY THE GOVERNMENT AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE PRISONER, WHOSE LIBERTY IS RESTRAINED. Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as required by Sections 1 and 2 of Rule 120 of the Rules of Court,[11] and that the evidence considered by the trial court and Court of Appeals in the habeas corpus proceedings did not establish the contents of such judgment. Petitioner further contends that our ruling in Gunabe v. Director of Prisons, 77 Phil. 993, 995 (1947), that "reconstitution is as much the duty of the prosecution as of the defense" has been modified or abandoned in the subsequent case of Ordonez v. Director of Prisons, 235 SCRA 152, 155 (1994), wherein we held that "[i]t is not the fault of the prisoners that the records cannot

now be found. If anyone is to be blamed, it surely cannot be the prisoners, who were not the custodians of those records." In its Comment,[12] the Office of the Solicitor General contends that the sole inquiry in this habeas corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains that public respondents have more than sufficiently shown the existence of a legal ground for petitioners continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not authorized. Petitioners remedy, therefore, is not a petition for habeas corpus but a proceeding for the reconstitution of judicial records. The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom.[13] It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to have the issue ascertained as to whether he is held under lawful authority.[14] Consequently, the writ may also be availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.[15] Petitioners claim is anchored on the first ground considering, as he claims, that his continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative of his constitutional right to due process. Based on the records and the hearing conducted by the trial court, there is sufficient evidence on record to establish the fact of conviction of petitioner which serves as the legal basis for his detention. Petitioner made judicial admissions, both verbal and written, that he was charged with and convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang buhay". In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that -[16] "During the trial and on manifestation and arguments made by the accused, his learned counsel and Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears clear and indubitable that:

(A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867. ... In Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a decision was read to him in open Court by a personnel of the respondent Court (RTC Branch II) sentencing him to Life Imprisonment (Habang buhay)..." (emphasis supplied) Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal Case dated June 8, 1993,[17] petitioner himself stated that "COMES NOW, the undersigned accused in the above entitled criminal case and unto this Honorable Court most respectfully move: 1. That in 1981 the accused was charge of (sic) Robbery with Homicide; 2. That after four years of trial, the court found the accused guilty and given a Life Sentence in a promulgation handed down in 1985; (emphasis supplied) 3. That after the sentence was promulgated, the Presiding Judge told the councel (sic) that accused has the right to appeal the decision; 4. That whether the de oficio counsel appealed the decision is beyond the accused comprehension (sic) because the last time he saw the counsel was when the decision was promulgated. 5. That everytime there is change of Warden at the Manila City Jail attempts were made to get the Commitment Order so that transfer of the accused to the Bureau of Corrections can be affected, but all in vain;" Petitioners declarations as to a relevant fact may be given in evidence against him under Section 23 of Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would declare anything against himself, unless such declaration were true,[18] particularly with respect to such grave matter as his conviction for the crime of Robbery with Homicide. Further, under Section 4 of Rule 129, "[a]n admission, verbal or written, made by a party in the course of the

proceedings in the same case, does not require proof. The admission may be contradicted only by a showing that it was made through palpable mistake or that no such admission was made." Petitioner does not claim any mistake nor does he deny making such admissions. The records also contain a certified true copy of the Monthly Report dated January 1985[19] of then Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of Robbery with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official records under Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facie evidence of facts therein stated. Public respondents likewise presented a certified true copy of Peoples Journal dated January 18, 1985, page 2,[20] issued by the National Library, containing a short news article that petitioner was convicted of the crime of Robbery with Homicide and was sentenced to "life imprisonment." However, newspaper articles amount to "hearsay evidence, twice removed"[21] and are therefore not only inadmissible but without any probative value at all whether objected to or not,[22] unless offered for a purpose other than proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor of the news therein stated. As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. In other words, where the return is not subject to exception, that is, where it sets forth process which on its face shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.[23] If the detention of the prisoner is by reason of lawful public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of Court provides: "SEC. 13. When the return evidence, and when only a plea.If it appears that the prisoner is in custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority, the return shall be considered only as a plea of the facts therein set forth, and the party claiming the custody must prove such facts." Public respondents having sufficiently shown good ground for the detention, petitioners release from confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which provides that -

"Sec. 4. When writ not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment." In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), accused was convicted by the trial court of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the Court of Appeals, the records of the case were, for reasons undisclosed, completely destroyed or lost. Accused then filed a petition for the issuance of the writ ofhabeas corpus with the Supreme Court. The Court denied the petition, ruling thus: "The petition does not make out a case. The Director of Prisons is holding the prisoner under process issued by a competent court in pursuance of a lawful, subsisting judgment. The prisoner himself admits the legality of his detention. The mere loss or destruction of the record of the case does not invalidate the judgment or the commitment, or authorize the prisoners release." Note further that, in the present case, there is also no showing that petitioner duly appealed his conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment has already become final and executory. When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order, or decree is not subject to collateral attack by habeas corpus.[24] Put another way, in order that a judgment may be subject to collateral attack by habeas corpus, it must be void for lack of jurisdiction.[25] Thus, petitioners invocation of our ruling in Reyes v. Director of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and ordered the release of the prisoner on the ground that "[i]t does not appear that the prisoner has been sentenced by any tribunal duly established by a competent authority during the enemy occupation" and not because there were no copies of the decision and information. Here, a copy of the mittimus is available. And, indeed, petitioner does not raise any jurisdictional issue.

The proper remedy in this case is for either petitioner or public respondents to initiate the reconstitution of the judgment of the case under either Act No. 3110,[26] the general law governing reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time the records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court.[27] Judicial records are subject to reconstitution without exception, whether they refer to pending cases or finished cases.[28] There is no sense in limiting reconstitution to pending cases; finished cases are just as important as pending ones, as evidence of rights and obligations finally adjudicated.[29] Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the missing records of the trial court. We reiterate, however, that "reconstitution is as much the duty of the prosecution as of the defense."[30] Petitioners invocation of Ordoez v. Director of Prisons, 235 SCRA 152 (1994), is misplaced since the grant of the petition forhabeas corpus therein was premised on the loss of records prior to the filing of Informations against the prisoners, and therefore "[t]he government has failed to show that their continued detention is supported by a valid conviction or by the pendency of charges against them or by any legitimate cause whatsoever." In this case, the records were lost afterpetitioner, by his own admission, was already convicted by the trial court of the offense charged. Further, the same incident which gave rise to the filing of the Information for Robbery with Homicide also gave rise to another case for Illegal Possession of Firearm,[31] the records of which could be of assistance in the reconstitution of the present case. WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is AFFIRMED. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

EN BANC G.R. No. 182795 June 5, 2008

ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA PIA, petitioners, vs. NAPICO HOMEOWNERS ASSN., I XIII, INC., ET AL., respondents. RESOLUTION REYES, R.T., J.: THE present petition filed on May 26, 2008 seeks the issuance of a Writ of Amparo upon the following premise: Petitioners were deprived of their liberty, freedom and/or rights to shelter enshrined and embodied in our Constitution, as the result of these nefarious activities of both the Private and Public Respondents. This ardent request filed before this Honorable Supreme Court is the only solution to this problem via this newly advocated principles incorporated in the Rules the "RULE ON THE WRIT OF AMPARO."1 It appears that petitioners are settlers in a certain parcel of land situated in Barangay Manggahan, Pasig City. Their dwellings/houses have either been demolished as of the time of filing of the petition, or is about to be demolished pursuant to a court judgment. While they attempted to focus on issuance of what they claimed to be fraudulent and spurious land titles, to wit: Petitioners herein are desirous to help the government, the best way they can, to unearth these so-called "syndicates" clothed with governmental functions, in cahoots with the "squatting syndicates" - - - - the low so defines. If only to give its proper meanings, the Government must be the first one to cleans (sic) its ranks from these unscrupulous political protges. If unabated would certainly ruin and/or destroy the efficacy of the Torrens System of land registration in this Country. It is therefore the ardent initiatives of the herein Petitioners, by way of the said prayer for the

issuance of the Writ of Amparo, that these unprincipled Land Officials be summoned to answer their participation in the issuances of these fraudulent and spurious titles, NOW, in the hands of the Private Respondents. The Courts of Justice, including this Honorable Supreme Court, are likewise being made to believe that said titles in the possession of the Private Respondents were issued untainted with frauds.2 what the petition ultimately seeks is the reversal of this Courts dismissal of petitions in G.R. Nos. 177448, 180768, 177701, 177038, thus: That, Petitioners herein knew before hand that: there can be no motion for reconsideration for the second or third time to be filed before this Honorable Supreme Court. As such therefore, Petitioners herein are aware of the opinion that this present petition should not in any way be treated as such motions fore reconsideration. Solely, this petition is only for the possible issuance of the writ of amparo, although it might affect the previous rulings of this Honorable Supreme Court in these cases, G.R. Nos. 177448, 180768, 177701 and 177038. Inherent in the powers of the Supreme Court of the Philippines is to modify, reverse and set aside, even its own previous decision, that can not be thwarted nor influenced by any one, but, only on the basis of merits and evidence. This is the purpose of this petition for the Writ of Amparo.3 We dismiss the petition. The Rule on the Writ of Amparo provides: Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis supplied.) The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case was affirmed with finality by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and executory judgment adverse to them, does not constitute right to

life, liberty and security. There is, therefore, no legal basis for the issuance of the writ of amparo. Besides, the factual and legal basis for petitioners claim to the land in question is not alleged in the petition at all. The Court can only surmise that these rights and interest had already been threshed out and settled in the four cases cited above. No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of the right sought to be protected. Under Section 6 of the same rules, the court shall issue the writ upon the filing of the petition, only if on its face, the court ought to issue said writ. Section 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance. Considering that there is no legal basis for its issuance, as in this case, the writ will not be issued and the petition will be dismissed outright. This new remedy of writ of amparo which is made available by this Court is intended for the protection of the highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare any time or effort on its part in order to give priority to petitions of this nature. However, the Court will also not waste its precious time and effort on matters not covered by the writ. WHEREFORE, the petition is DISMISSED. SO ORDERED.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

EN BANC G.R. No. 182484 June 17, 2008

DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-MADRIAGA, LIBERTY M. ASUNCION, LADYLYN BAMOS MADRIAGA, EVERLY TAPUZ MADRIAGA, EXCEL TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS, petitioners, vs. HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding Judge of RTC Br. 5 Kalibo, SHERIFF NELSON DELA CRUZ, in his capacity as Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE stationed in Boracay Island, represented by the PNP STATION COMMANDER, THE HONORABLE COURT OF APPEALS IN CEBU 18th DIVISION, SPOUSES GREGORIO SANSON & MA. LOURDES T. SANSON,respondents. RESOLUTION BRION, J.: Before us for the determination of sufficiency of form and substance (pursuant to Sections 1 and 4 of Rule 65 of the Revised Rules of Court; Sections 1 and 5 of the Rule on the Writ of Amparo;1 and Sections 1 and 6 of theRule on the Writ of Habeas Data2) is the petition for certiorari and for the issuance of the writs of amparo and habeas data filed by the above-named petitioners against the Honorable Judge Elmo del Rosario [in his capacity as presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the RTC], the Philippine National Police stationed in Boracay Island, represented by the PNP Station Commander, the Honorable Court of Appeals in Cebu, 18th Division, and the spouses Gregorio Sanson and Ma. Lourdes T. Sanson, respondents. The petition and its annexes disclose the following material antecedents: The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson (the "private respondents"), filed with the Fifth Municipal Circuit Trial Court of Buruanga-Malay, Aklan (the "MCTC") a complaint3 dated 24 April 2006 for forcible entry and damages with a prayer for the issuance of a writ of preliminary mandatory injunction against the petitioners Daniel Masangkay Tapuz, Aurora Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuz and Marian Timbas (the

"petitioners") and other John Does numbering about 120. The private respondents alleged in their complaint that: (1) they are the registered owners under TCT No. 35813 of a 1.0093-hectare parcel of land located at Sitio Pinaungon, Balabag, Boracay, Malay, Aklan (the "disputed land"); (2) they were the disputed land's prior possessors when the petitioners - armed with bolos and carrying suspected firearms and together with unidentified persons numbering 120 - entered the disputed land by force and intimidation, without the private respondents' permission and against the objections of the private respondents' security men, and built thereon a nipa and bamboo structure. In their Answer4 dated 14 May 2006, the petitioners denied the material allegations of the complaint. They essentially claimed that: (1) they are the actual and prior possessors of the disputed land; (2) on the contrary, the private respondents are the intruders; and (3) the private respondents' certificate of title to the disputed property is spurious. They asked for the dismissal of the complaint and interposed a counterclaim for damages. The MCTC, after due proceedings, rendered on 2 January 2007 a decision5 in the private respondents' favor. It found prior possession - the key issue in forcible entry cases - in the private respondents' favor, thus: "The key that could unravel the answer to this question lies in the Amended Commissioner's Report and Sketch found on pages 245 to 248 of the records and the evidence the parties have submitted. It is shown in the Amended Commissioner's Report and Sketch that the land in question is enclosed by a concrete and cyclone wire perimeter fence in pink and green highlighter as shown in the Sketch Plan (p. 248). Said perimeter fence was constructed by the plaintiffs 14 years ago. The foregoing findings of the Commissioner in his report and sketch collaborated the claim of the plaintiffs that after they acquired the land in question on May 27, 1993 through a Deed of Sale (Annex 'A', Affidavit of Gregorio Sanson, p. 276, rec.), they caused the construction of the perimeter fence sometime in 1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.). From the foregoing established facts, it could be safely inferred that the plaintiffs were in actual physical possession of the whole lot in question since 1993 when it was interrupted by the defendants (sic) when on January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a portion of the land in question with view of inhabiting the same and building structures therein prompting plaintiff Gregorio Sanson to confront them before BSPU, Police Chief Inspector Jack L. Wanky and Barangay Captain Glenn Sacapao. As a result of their confrontation, the parties signed an Agreement (Annex 'D', Complaint p. 20) wherein they agreed to vacate the

disputed portion of the land in question and agreed not to build any structures thereon. The foregoing is the prevailing situation of the parties after the incident of January 4, 2005 when the plaintiff posted security guards, however, sometime on or about 6:30 A.M. of April 19, 2006, the defendants some with bolos and one carrying a sack suspected to contain firearms with other John Does numbering about 120 persons by force and intimidation forcibly entered the premises along the road and built a nipa and bamboo structure (Annex 'E', Complaint, p. 11) inside the lot in question which incident was promptly reported to the proper authorities as shown by plaintiffs' Certification (Annex 'F', Complaint, p. 12) of the entry in the police blotter and on same date April 19, 2006, the plaintiffs filed a complaint with the Office of the Lupong Tagapamayapa of Barangay Balabag, Boracay Island, Malay, Aklan but no settlement was reached as shown in their Certificate to File Action (Annex 'G', Complaint, p. 13); hence the present action. Defendants' (sic) contend in their answer that 'prior to January 4, 2005, they were already occupants of the property, being indigenous settlers of the same, under claim of ownership by open continuous, adverse possession to the exclusion of other (sic)'. (Paragraph 4, Answer, p. 25). The contention is untenable. As adverted earlier, the land in question is enclosed by a perimeter fence constructed by the plaintiffs sometime in 1993 as noted by the Commissioner in his Report and reflected in his Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in actual physical possession of the land in question from 1993 up to April 19, 2006 when they were ousted therefrom by the defendants by means of force. Applying by analogy the ruling of the Honorable Supreme Court in the case of Molina, et al. vs. De Bacud, 19 SCRA 956, if the land were in the possession of plaintiffs from 1993 to April 19, 2006, defendants' claims to an older possession must be rejected as untenable because possession as a fact cannot be recognized at the same time in two different personalities. Defendants likewise contend that it was the plaintiffs who forcibly entered the land in question on April 18, 2006 at about 3:00 o'clock in the afternoon as shown in their Certification (Annex 'D', Defendants' Position Paper, p. 135, rec.). The contention is untenable for being inconsistent with their allegations made to the commissioner who constituted (sic) the land in question that

they built structures on the land in question only on April 19, 2006 (Par. D.4, Commissioner's Amended Report, pp. 246 to 247), after there (sic) entry thereto on even date. Likewise, said contention is contradicted by the categorical statements of defendants' witnesses, Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143'144, rec.) [sic] categorically stated 'that on or about April 19, 2006, a group of armed men entered the property of our said neighbors and built plastic roofed tents. These armed men threatened to drive our said neighbors away from their homes but they refused to leave and resisted the intruding armed men'. From the foregoing, it could be safely inferred that no incident of forcible entry happened on April 18, 2006 but it was only on April 19, 2006 when the defendants overpowered by their numbers the security guards posted by the plaintiffs prior to the controversy. Likewise, defendants (sic) alleged burnt and other structures depicted in their pictures attached as annexes to their position paper were not noted and reflected in the amended report and sketch submitted by the Commissioner, hence, it could be safely inferred that these structures are built and (sic) situated outside the premises of the land in question, accordingly, they are irrelevant to the instant case and cannot be considered as evidence of their actual possession of the land in question prior to April 19, 20066." The petitioners appealed the MCTC decision to the Regional Trial Court ("RTC," Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M. Marin ("Judge Marin"). On appeal, Judge Marin granted the private respondents' motion for the issuance of a writ of preliminary mandatory injunction through an Order dated 26 February 2007, with the issuance conditioned on the private respondents' posting of a bond. The writ7 - authorizing the immediate implementation of the MCTC decision - was actually issued by respondent Judge Elmo F. del Rosario (the "respondent Judge") on 12 March 2007 after the private respondents had complied with the imposed condition. The petitioners moved to reconsider the issuance of the writ; the private respondents, on the other hand, filed a motion for demolition. The respondent Judge subsequently denied the petitioners' Motion for Reconsideration and to Defer Enforcement of Preliminary Mandatory Injunction in an Order dated 17 May 20078.

Meanwhile, the petitioners opposed the motion for demolition.9 The respondent Judge nevertheless issued via a Special Order10 a writ of demolition to be implemented fifteen (15) days after the Sheriff's written notice to the petitioners to voluntarily demolish their house/s to allow the private respondents to effectively take actual possession of the land. The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu City, a Petition for Review11(under Rule 42 of the 1997 Rules of Civil Procedure) of the Permanent Mandatory Injunction and Order of Demolition of the RTC of Kalibo, Br. 6 in Civil Case No. 7990. Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate and for Demolition on 19 March 2008.12 It was against this factual backdrop that the petitioners filed the present petition last 29 April 2008. The petition contains and prays for three remedies, namely: a petition for certiorari under Rule 65 of the Revised Rules of Court; the issuance of a writ of habeas data under the Rule on the Writ of Habeas Data; and finally, the issuance of the writ of amparo under the Rule on the Writ of Amparo. To support the petition and the remedies prayed for, the petitioners present factual positions diametrically opposed to the MCTC's findings and legal reasons. Most importantly, the petitioners maintain their claims of prior possession of the disputed land and of intrusion into this land by the private respondents. The material factual allegations of the petition - bases as well of the petition for the issuance of the writ of amparo - read: "29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot guns intruded into the property of the defendants [the land in dispute]. They were not in uniform. They fired their shotguns at the defendants. Later the following day at 2:00 a.m. two houses of the defendants were burned to ashes. 30. These armed men [without uniforms] removed the barbed wire fence put up by defendants to protect their property from intruders. Two of the armed men trained their shotguns at the defendants who resisted their intrusion. One of them who was identified as SAMUEL LONGNO y GEGANSO, 19 years old, single, and a resident of Binun-an, Batad, Iloilo, fired twice. 31. The armed men torched two houses of the defendants reducing them to ashes. [...]

32. These acts of TERRORISM and (heinous crime) of ARSON were reported by one of the HEIRS OF ANTONIO TAPUZ [...]. The terrorists trained their shotguns and fired at minors namely IVAN GAJISAN and MICHAEL MAGBANUA, who resisted their intrusion. Their act is a blatant violation of the law penalizing Acts of Violence against women and children, which is aggravated by the use of high-powered weapons. [] 34. That the threats to the life and security of the poor indigent and unlettered petitioners continue because the private respondents Sansons have under their employ armed men and they are influential with the police authorities owing to their financial and political clout. 35. The actual prior occupancy, as well as the ownership of the lot in dispute by defendants and the atrocities of the terrorists [introduced into the property in dispute by the plaintiffs] are attested by witnesses who are persons not related to the defendants are therefore disinterested witnesses in the case namely: Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Penarada. Likewise, the affidavit of Nemia T. Carmen is submitted to prove that the plaintiffs resorted to atrocious acts through hired men in their bid to unjustly evict the defendants.13" The petitioners posit as well that the MCTC has no jurisdiction over the complaint for forcible entry that the private respondents filed below. Citing Section 33 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691,14 they maintain that the forcible entry case in fact involves issues of title to or possession of real property or an interest therein, with the assessed value of the property involved exceeding P20,000.00; thus, the case should be originally cognizable by the RTC. Accordingly, the petitioners reason out that the RTC - to where the MCTC decision was appealed - equally has no jurisdiction to rule on the case on appeal and could not have validly issued the assailed orders. OUR RULING We find the petitions for certiorari and issuance of a writ of habeas data fatally defective, both in substance and in form. The petition for the issuance of the writ of amparo, on the other hand, is fatally defective with respect to content and substance. The Petition for Certiorari

We conclude, based on the outlined material antecedents that led to the petition, that the petition for certiorari to nullify the assailed RTC orders has been filed out of time. It is not lost on us that the petitioners have a pending petition with the Court of Appeals (the "CA petition") for the review of the same RTC orders now assailed in the present petition, although the petitioners never disclosed in the body of the present petition the exact status of their pending CA petition. The CA petition, however, was filed with the Court of Appeals on 2 August 2007, which indicates to us that the assailed orders (or at the very least, the latest of the interrelated assailed orders) were received on 1 August 2007 at the latest. The present petition, on the other hand, was filed on April 29, 2008 or more than eight months from the time the CA petition was filed. Thus, the present petition is separated in point of time from the assumed receipt of the assailed RTC orders by at least eight (8) months, i.e., beyond the reglementary period of sixty (60) days15 from receipt of the assailed order or orders or from notice of the denial of a seasonably filed motion for reconsideration. We note in this regard that the petitioners' counsel stated in his attached "Certificate of Compliance with Circular #1-88 of the Supreme Court"16 ("Certificate of Compliance") that "in the meantime the RTC and the Sheriff issued a NOTICE TO VACATE AND FOR DEMOLITION not served to counsel but to the petitioners who sent photo copy of the same NOTICE to their counsel on April 18, 2008 by LBC." To guard against any insidious argument that the present petition is timely filed because of this Notice to Vacate, we feel it best to declare now that the counting of the 60-day reglementary period under Rule 65 cannot start from the April 18, 2008 date cited by the petitioners' counsel. The Notice to Vacate and for Demolition is not an order that exists independently from the RTC orders assailed in this petition and in the previously filed CA petition. It is merely a notice, made in compliance with one of the assailed orders, and is thus an administrative enforcement medium that has no life of its own separately from the assailed order on which it is based. It cannot therefore be the appropriate subject of an independent petition for certiorari under Rule 65 in the context of this case. The April 18, 2008 date cannot likewise be the material date for Rule 65 purposes as the above-mentioned Notice to Vacate is not even directly assailed in this petition, as the petition's Prayer patently shows.17 Based on the same material antecedents, we find too that the petitioners have been guilty of willful and deliberate misrepresentation before this Court and, at the very least, of forum shopping. By the petitioners' own admissions, they filed a petition with the Court of Appeals (docketed as CA - G.R. SP No. 02859) for the review of the orders now also assailed in this petition, but brought the present recourse to us, allegedly because "the CA did not act on the petition up to this date and for the petitioner

(sic) to seek relief in the CA would be a waste of time and would render the case moot and academic since the CA refused to resolve pending urgent motions and the Sheriff is determined to enforce a writ of demolition despite the defect of LACK OF JURISDICTION."18 Interestingly, the petitioners' counsel - while making this claim in the body of the petition - at the same time represented in his Certificate of Compliance19 that: "x x x (e) the petitioners went up to the Court of Appeals to question the WRIT OF PRELIMINARY INJUNCTION copy of the petition is attached (sic); (f) the CA initially issued a resolution denying the PETITION because it held that the ORDER TO VACATE AND FOR DEMOLITION OF THE HOMES OF PETITIONERS is not capable of being the subject of a PETITION FOR RELIEF, copy of the resolution of the CA is attached hereto; (underscoring supplied) (g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to this date the same had not been resolved copy of the MR is attached (sic). x x x" The difference between the above representations on what transpired at the appellate court level is replete with significance regarding the petitioners' intentions. We discern -- from the petitioners' act of misrepresenting in the body of their petition that "the CA did not act on the petition up to this date" while stating the real Court of Appeals action in the Certification of Compliance -- the intent to hide the real state of the remedies the petitioners sought below in order to mislead us into action on the RTC orders without frontally considering the action that the Court of Appeals had already undertaken. At the very least, the petitioners are obviously seeking to obtain from us, via the present petition, the same relief that it could not wait for from the Court of Appeals in CA-G.R. SP No. 02859. The petitioners' act of seekingagainst the same parties the nullification of the same RTC orders before the appellate court and before us at the same time, although made through different mediums that are both improperly used, constitutes willful and deliberate forum shopping that can sufficiently serve as basis for the summary dismissal of the petition under the combined application of the fourth and penultimate paragraphs of Section 3, Rule 46; Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all of the Revised Rules

of Court. That a wrong remedy may have been used with the Court of Appeals and possibly with us will not save the petitioner from a forum-shopping violation where there is identity of parties, involving the same assailed interlocutory orders, with the recourses existing side by side at the same time. To restate the prevailing rules, "forum shopping is the institution of two or more actions or proceedings involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would make a favorable disposition. Forum shopping may be resorted to by any party against whom an adverse judgment or order has been issued in one forum, in an attempt to seek a favorable opinion in another, other than by appeal or a special civil action for certiorari. Forum shopping trifles with the courts, abuses their processes, degrades the administration of justice and congest court dockets. Willful and deliberate violation of the rule against it is a ground for summary dismissal of the case; it may also constitute direct contempt."20 Additionally, the required verification and certification of non-forum shopping is defective as one (1) of the seven (7) petitioners - Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65; all in relation with Rule 56 of the Revised Rules of Court. Of those who signed, only five (5) exhibited their postal identification cards with the Notary Public. In any event, we find the present petition for certiorari, on its face and on the basis of the supporting attachments, to be devoid of merit. The MCTC correctly assumed jurisdiction over the private respondents' complaint, which specifically alleged a cause for forcible entry and not - as petitioners may have misread or misappreciated - a case involving title to or possession of realty or an interest therein. Under Section 33, par. 2 of The Judiciary Reorganization Act, as amended by Republic Act (R.A.) No. 7691, exclusive jurisdiction over forcible entry and unlawful detainer cases lies with the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. These first-level courts have had jurisdiction over these cases - called accion interdictal - even before the R.A. 7691 amendment, based on the issue of pure physical possession (as opposed to the right of possession). This jurisdiction is regardless of the assessed value of the property involved; the law established no distinctions based on the assessed value of the property forced into or unlawfully detained. Separately from accion interdictalare accion publiciana for the recovery of the right of possession as a plenary action, and accion reivindicacion for the recovery of ownership.21 Apparently, these latter actions are the ones the petitioners refer to when they cite Section 33, par. 3, in relation with Section 19, par. 2 of The Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in which jurisdiction may either be with the first-level courts or the regional trial courts,depending on the assessed value of the realty subject of the litigation. As

the complaint at the MCTC was patently for forcible entry, that court committed no jurisdictional error correctible by certiorari under the present petition. In sum, the petition for certiorari should be dismissed for the cited formal deficiencies, for violation of the non-forum shopping rule, for having been filed out of time, and for substantive deficiencies. The Writ of Amparo To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands - requires that every petition for the issuance of the Pwrit must be supported by justifying allegations of fact, to wit: "(a) The personal circumstances of the petitioner; (b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; (d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for. The petition may include a general prayer for other just and equitable reliefs."22 The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. The issuance of the writ of amparo in the present case is anchored on the factual allegations heretofore quoted,23that are essentially repeated in paragraph 54 of the petition. These allegations are supported by the following documents: "(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, supporting the factual positions of the petitioners, id., petitioners' prior possession, private respondents' intrusion and the illegal acts committed by the private respondents and their security guards on 19 April 2006; (b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts (firing of guns, etc.) committed by a security guard against minors descendants of Antonio Tapuz; (c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially corroborating Nemia's affidavit; (d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod regarding the incident of petitioners' intrusion into the disputed land; (e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis, narrating the altercation between the Tapuz family and the security guards of the private respondents, including the gun-poking and shooting incident involving one of the security guards; (f) Certification issued by Police Officer Christopher R. Mendoza, narrating that a house owned by Josiel Tapuz, Jr., rented by a certain Jorge Buenavente, was accidentally burned by a fire." On the whole, what is clear from these statements - both sworn and unsworn - is the overriding involvement of property issues as the petition traces its roots to questions of physical possession of the property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned

except to the extent that the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent of the threats and harassments implied from the presence of "armed men bare to the waist" and the alleged pointing and firing of weapons. Notably, none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or is continuing. A closer look at the statements shows that at least two of them - the statements of Nemia Carreon y Tapuz and Melanie Tapuz are practically identical and unsworn. The Certification by Police Officer Jackson Jauod, on the other hand, simply narrates what had been reported by one Danny Tapuz y Masangkay, and even mentions that the burning of two residential houses was "accidental." As against these allegations are the cited MCTC factual findings in its decision in the forcible entry case which rejected all the petitioners' factual claims. These findings are significantly complete and detailed, as they were made under a fullblown judicial process, i.e., after examination and evaluation of the contending parties' positions, evidence and arguments and based on the report of a courtappointed commissioner. We preliminarily examine these conflicting factual positions under the backdrop of a dispute (with incidents giving rise to allegations of violence or threat thereof) that was brought to and ruled upon by the MCTC; subsequently brought to the RTC on an appeal that is still pending; still much later brought to the appellate court without conclusive results; and then brought to us on interlocutory incidents involving a plea for the issuance of the writ of amparo that, if decided as the petitioners advocate, may render the pending RTC appeal moot. Under these legal and factual situations, we are far from satisfied with the prima facie existence of the ultimate facts that would justify the issuance of a writ of amparo. Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo. Nor do we believe it appropriate at this time to disturb the MCTC findings, as our action may carry the unintended effect, not only of reversing the MCTC ruling independently of the appeal to the RTC that is now in place, but also of nullifying the ongoing appeal process. Such effect, though unintended, will obviously

wreak havoc on the orderly administration of justice, an overriding goal that the Rule on the Writ of Amparo does not intend to weaken or negate. Separately from these considerations, we cannot fail but consider too at this point the indicators, clear and patent to us, that the petitioners' present recourse via the remedy of the writ of amparo is a mere subterfuge to negate the assailed orders that the petitioners sought and failed to nullify before the appellate court because of the use of an improper remedial measure. We discern this from the petitioners' misrepresentations pointed out above; from their obvious act of forum shopping; and from the recourse itself to the extraordinary remedies of the writs of certiorari and amparo based on grounds that are far from forthright and sufficiently compelling. To be sure, when recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo extraordinary though they may be - will suffice to serve as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes - the situation obtaining in the present case. While we say all these, we note too that the Rule on the Writ of Amparo provides for rules on the institution of separate actions,24 for the effect of earlier-filed criminal actions,25 and for the consolidation of petitions for the issuance of a writ of amparo with a subsequently filed criminal and civil action.26 These rules were adopted to promote an orderly procedure for dealing with petitions for the issuance of the writ of amparo when the parties resort to other parallel recourses. Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or security the personalconcern that the writ is intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case. The Writ of Habeas Data Section 6 of the Rule on the Writ of Habeas Data requires the following material allegations of ultimate facts in a petition for the issuance of a writ of habeas data: "(a) The personal circumstances of the petitioner and the respondent;

(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable." Support for the habeas data aspect of the present petition only alleges that: "1. [ ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that the PNP may release the report on the burning of the homes of the petitioners and the acts of violence employed against them by the private respondents, furnishing the Court and the petitioners with copy of the same; [] 66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine National Police [PNP] to produce the police report pertaining to the burning of the houses of the petitioners in the land in dispute and likewise the investigation report if an investigation was conducted by the PNP." These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum, thus rendering the petition fatally deficient. Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy related to the right to life, liberty or security. The petition likewise has not alleged, much less demonstrated, any need for information under the control of police authorities other than those it has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based on the insufficiency of previous efforts made to secure information, has not also been shown. In sum,

the prayer for the issuance of a writ of habeas data is nothing more than the "fishing expedition" that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ of habeas data is fully in order. WHEREFORE, premises considered, we hereby DISMISS the present petition OUTRIGHT for deficiencies of form and substance patent from its body and attachments. SO ORDERED.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

EN BANC P/SUPT. FELIXBERTO CASTILLO, POLICE OFFICERS ROMEO BAGTAS, RUPERTO BORLONGAN, EDMUNDO DIONISIO, RONNIE MORALES, ARNOLD TRIA, and GILBERTO PUNZALAN, ENGR. RICASOL P. MILLAN, ENGR. REDENTOR S. DELA CRUZ, MR. ANASTACIO L. BORLONGAN, MR. ARTEMIO ESGUERRA, TISOY, and JOHN DOES, Petitioners, - versus G.R. No. 182165 Present: PUNO, CJ, CARPIO, CORONA* CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR.,* NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,* BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., JJ. Promulgated: November 25, 2009

DR. AMANDA T. CRUZ, NIXON T. CRUZ, and FERDINAND T. CRUZ, Respondents.

X--------------------------------------------------x DECISION CARPIO MORALES, J. Petitioners[1], employees and members of the local police force of the City Government of Malolos, challenge the March 28, 2008 Decision of the Regional Trial Court (RTC) of Malolos, Branch 10 in a petition for issuance of writs of amparo and habeas data instituted by respondents. The factual antecedents.

Respondent Amanda Cruz (Amanda) who, along with her husband Francisco G. Cruz (Spouses Cruz), leased a parcel of land situated at Barrio Guinhawa, Malolos (the property), refused to vacate the property, despite demands by the lessor Provincial Government of Bulacan (the Province) which intended to utilize it for local projects. The Province thus filed a complaint for unlawful detainer against the Spouses Cruz before the then Municipal Trial Court (MTC) of Bulacan, Bulacan. By Decision of September 5, 1997, the MTC rendered judgment against the Spouses Cruz, which judgment, following its affirmance by the RTC, became final and executory. The finality of the decision in the ejectment case notwithstanding, the spouses Cruz refused to vacate the property. They thereupon filed cases against the Province[2] and the judges who presided over the case.[3] Those cases were dismissed except their petition for annulment of judgment lodged before Branch 18 of the RTC of Malolos, and a civil case for injunction 833-M2004 lodged before Branch 10 of the same RTC Malolos. The Spouses Cruz sought in the case for injunction the issuance of a permanent writ of injunction to prevent the execution of the final and executory judgment against them. By Order of July 19, 2005, the RTC, finding merit in the Spouses Cruzes allegation that subsequent events changed the situation of the parties to justify a suspension of the execution of the final and executory judgment, issued a permanent writ of injunction, the dispositive portion of which reads: WHEREFORE, the foregoing petitioners Motion for Reconsideration of the Order dated August 10, 2004 is hereby GRANTED. Order dated August 10, 2004 is herebyRECONSIDERED and SET ASIDE. Further, the verified petition dated November 05, 2002 are hereby REINSTATED and MADE PERMANENT until the MTCBulacan, Bulacan finally resolves the pending motions of petitioners with the same determines the metes and bounds of 400 sq. meters leased premises subject matter of this case with immediate dispatch. Accordingly, REMAND the determination of the issues raised by the petitioners on the issued writ of demolition to the MTC of Bulacan, Bulacan. SO ORDERED.[4] (Emphasis in the original; underscoring supplied)

Finding that the fallo of the RTC July 19, 2005 Order treats, as a suspensive condition for the lifting of the permanent injunction, the determination of the boundaries of the property, the Province returned the issue for the consideration of the MTC. In a Geodetic Engineers Report submitted to the MTC on August 31, 2007, the metes and bounds of the property were indicated. The MTC, by Order of January 2, 2008, approved the Report and ruled that the permanent injunction which the RTC issued is ineffective. On motion of the Province, the MTC, by Order of January 21, 2008, thus issued a Second Alias Writ of Demolition. On receiving notice of the January 2, 2008 MTC Order, the Spouses Cruz filed a motion before Branch 10 of the RTC for the issuance of a temporary restraining order (TRO) which it set for hearing on January 25, 2008 on which date, however, the demolition had, earlier in the day, been implemented. Such notwithstanding, the RTC issued a TRO.[5] The Spouses Cruz, along with their sons-respondents Nixon and Ferdinand, thereupon entered the property, placed several container vans and purportedly represented themselves as owners of the property which was for lease. On February 21, 2008, petitioners Police Superintendent Felixberto Castillo et al., who were deployed by the City Mayor in compliance with a memorandum issued by Governor Joselito R. Mendoza instructing him to protect, secure and maintain the possession of the property, entered the property. Amanda and her co-respondents refused to turn over the property, however. Insisting that the RTC July 19, 2005 Order of Permanent Injunction enjoined the Province from repossessing it, they shoved petitioners, forcing the latter to arrest them and cause their indictment for direct assault, trespassing and other forms of light threats. Respondents later filed on March 3, 2008 a Respectful Motion-Petition for Writ of Amparo and Habeas Data, docketed as Special Civil Action No. 53-M2008, which was coincidentally raffled to Branch 10 of the RTC Malolos. Respondents averred that despite the Permanent Injunction, petitioners unlawfully entered the property with the use of heavy equipment, tore down the barbed wire fences and tents,[6] and arrested them when they resisted petitioners entry; and that as early as in the evening of February 20, 2008, members of the Philippine National Police had already camped in front of the property.

On the basis of respondents allegations in their petition and the supporting affidavits, the RTC, by Order of March 4, 2008, issued writs of amparo and habeas data.[7] The RTC, crediting respondents version in this wise: Petitioners have shown by preponderant evidence that the facts and circumstances of the alleged offenses examined into on Writs of Amparo and Habeas Data that there have been an on-going hearings on the verified Petition for Contempt, docketed as Special Proceedings No. 306-M-2006, before this Court for alleged violation by the respondents of the Preliminary Injunction Order dated July 16, 2005 [sic] in Sp. Civil Action No. 833-M-2002, hearings were held on January 25, 2008, February 12 and 19, 2008, where the respondents prayed for an April 22, 2008 continuance, however, in the pitch darkness of February 20, 2008, police officers, some personnel from the Engineering department, and some civilians proceeded purposely to the Pinoy Compound, converged therein and with continuing threats of bodily harm and danger and stonethrowing of the roofs of the homes thereat from voices around its premises, on a pretext of an ordinary police operation when enterviewed [sic] by the media then present, but at 8:00 a.m. to late in the afternoon of February 21, 2008, zoomed in on the petitioners, subjecting them to bodily harm, mental torture, degradation, and the debasement of a human being, reminiscent of the martial law police brutality, sending chill in any ordinary citizen,[8] rendered judgment, by Decision respondents, disposing as follows: of March 28, 2008, in favor of

WHEREFORE, premises considered, the Commitment Orders and waivers in Crim. Cases Nos. 08-77 for Direct assault; Crim. Case No. 08-77 for Other Forms of Trespass; and Crim. Case No. 08-78 for Light Threats are hereby DECLARED illegal, null and void, as petitioners were deprived of their substantial rights, induced by duress or a well-founded fear of personal violence. Accordingly, the commitment orders and waivers are hereby SET ASIDE. The temporary release of the petitioners is declared ABSOLUTE. Without any pronouncement as to costs.

SO ORDERED.[9] (Emphasis in the original; underscoring supplied) Hence, the present petition for review on certiorari, pursuant to Section 19 of The Rule on the Writ of Amparo (A.M. No. 07-9-12-SC),[11] which is essentially reproduced in the Rule on the Writ of Habeas Data (A.M. No. 08-1-16SC).[12]
[10]

In the main, petitioners fault the RTC for giving due course and issuing writs of amparo and habeas data when from the allegations of the petition, the same ought not to have been issued as (1) the petition in [sic] insufficient in substance as the same involves property rights; and (2) criminal cases had already been filed and pending with the Municipal Trial Court in Cities, Branch 1, City of Malolos. (Underscoring supplied) The petition is impressed with merit. The Court is, under the Constitution, empowered to promulgate rules for the protection and enforcement of constitutional rights.[13] In view of the heightening prevalence of extrajudicial killings and enforced disappearances, the Rule on the Writ of Amparo was issued and took effect on October 24, 2007 which coincided with the celebration of United Nations Day and affirmed the Courts commitment towards internationalization of human rights. More than three months later or on February 2, 2008, the Rule on the Writ of Habeas Data was promulgated. Section 1 of the Rule on the Writ of Amparo provides: Section 1. Petition. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis and underscoring supplied) Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. Habeas Data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. (Emphasis and underscoring supplied) From the above-quoted provisions, the coverage of the writs is limited to the protection of rights to life, liberty and security. And the writs cover not only actual but also threats of unlawful acts or omissions. Secretary of National Defense v. Manalo[14] teaches: As the Amparo Rule was intended to address the intractable problem of extralegal killings and enforced disappearances, its coverage, in its present form, is confined to these two instances or to threats thereof. Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearances are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.[15] (Underscoring supplied, citations omitted) To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty and security is violated or threatened with an unlawful act or omission. Evidently, the present controversy arose out of a property dispute between the Provincial Government and respondents. Absent any considerable nexus between the acts complained of and its effect on respondents right to life, liberty and security, the Court will not delve on the propriety of petitioners entry into the property. Apropos is the Courts ruling in Tapuz v. Del Rosario:[16] To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of

killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit: xxxx The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being [17] (Emphasis and italics in the original, citation omitted) committed. Tapuz also arose out of a property dispute, albeit between private individuals, with the petitioners therein branding as acts of terrorism the therein respondents alleged entry into the disputed land with armed men in tow. The Court therein held: On the whole, what is clear from these statements both sworn and unsworn is the overriding involvement of property issues as the petition traces its roots to questions of physical possession of the property disputed by the private parties. If at all, issues relating to the right to life or to liberty can hardly be discerned except to the extent that the occurrence of past violence has been alleged. The right to security, on the other hand, is alleged only to the extent of the treats and harassments implied from the presence of armed men bare to the waist and the alleged pointing and firing of weapons. Notably, none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or [18] continuing. (Emphasis in the original; underscoring supplied)

It bears emphasis that respondents petition did not show any actual violation, imminent or continuing threat to their life, liberty and security. Bare allegations that petitioners in unison, conspiracy and in contempt of court, there and then willfully, forcibly and feloniously with the use of force and intimidation entered and forcibly, physically manhandled the petitioners (respondents) and arrested the herein petitioners (respondents)[19] will not suffice to prove entitlement to the remedy of the writ of amparo. No undue confinement or detention was present. In fact, respondents were even able to post bail for the offenses a day after their arrest.[20] Although respondents release from confinement does not necessarily hinder supplication for the writ of amparo, absent any evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified. That respondents are merely seeking the protection of their property rights is gathered from their Joint Affidavit, viz: xxxx 11. Kami ay humarang at humiga sa harap ng mga heavy equipment na hawak hawak ang nasabing kautusan ng RTC Branch 10 (PERMANENT INJUNCTION at RTC ORDERS DATED February 12, 17 at 19 2008) upang ipaglaban ang dignidad ng kautusan ng korte, ipaglaban ang prinsipyo ng SELF-HELP at batas ukol sa PROPERTY RIGHTS, Wala kaming nagawa ipagtanggol ang aming karapatan sa lupa na 45 years naming IN POSSESSION. (Underscoring supplied) Oddly, respondents also seek the issuance of a writ of habeas data when it is not even alleged that petitioners are gathering, collecting or storing data or information regarding their person, family, home and correspondence. As for respondents assertion of past incidents[21] wherein the Province allegedly violated the Permanent Injunction order, these incidents were already raised in the injunction proceedings on account of which respondents filed a case for criminal contempt against petitioners.[22]

Before the filing of the petition for writs of amparo and habeas data, or on February 22, 2008, petitioners even instituted a petition for habeas corpus which was considered moot and academic by Branch 14 of the Malolos RTC and was accordingly denied by Order of April 8, 2008. More. Respondent Amanda and one of her sons, Francisco Jr., likewise filed a petition for writs of amparo and habeas data before the Sandiganbayan, they alleging the commission of continuing threats by petitioners after the issuance of the writs by the RTC, which petition was dismissed for insufficiency and forum shopping. It thus appears that respondents are not without recourse and have in fact taken full advantage of the legal system with the filing of civil, criminal and administrative charges.[23] It need not be underlined that respondents petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute. AT ALL EVENTS, respondents filing of the petitions for writs of amparo and habeas data should have been barred, for criminal proceedings against them had commenced after they were arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112[24] of the Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that may be set up by respondents during trial and not before a petition for writs of amparo and habeas data. The reliefs afforded by the writs may, however, be made available to the aggrieved party by motion in the criminal proceedings.[25] WHEREFORE, the petition is GRANTED. The challenged March 4, 2008 Order of Branch 10 of the Regional Trial Court of Malolos is DECLARED NULL AND VOID, and its March 28, 2008 Decision is REVERSED and SET ASIDE. Special Civil Action No. 53-M-2008 is DISMISSED. SO ORDERED.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

EN BANC GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners, - versus G.R. No. 182498 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: February 16, 2010

MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent.

x-----------------------------------------------------------------------------------------x RESOLUTION BRION, J.: We resolve in this Resolution the Motion for Reconsideration filed by the petitioners -- Gen. Avelino I. Razon, former Chief of the Philippine National Police (PNP);[1] Gen. Edgardo M. Doromal, former Chief of the Criminal Investigation and Detection Group (CIDG), PNP;[2] Police Senior Superintendent Leonardo A. Espina, former Chief of the Police Anti-Crime and Emergency Response (PACER), PNP;[3] and Gen. Joel Goltiao, former Regional Director of

the PNP-Autonomous Region of Muslim Mindanao[4] (petitioners) -- addressing our Decision of December 3, 2009. This Decision affirmed the Court of Appeals (CA) decision of March 7, 2008 confirming the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granting the Writ of Amparo. Our December 3, 2009 Decision was based, among other considerations, on the finding that Col. Julasirim Ahadin Kasim (Col. Kasim) informed the respondent Mary Jean Tagitis (respondent) and her friends that her husband had been under surveillance since January 2007 because an informant notified the authorities, through a letter, that Tagitis was a liaison for the JI;[5] that he was in good hands and under custodial investigation for complicity with the JI after he was seen talking to one Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism (Kasim evidence). We considered Col. Kasims information, together with the consistent denials by government authorities of any complicity in the disappearance of Tagitis, the dismissive approach of the police authorities to the report of the disappearance, as well as the haphazard investigations conducted that did not translate into any meaningful results, to be indicative of government complicity in the disappearance of Tagitis (for purposes of the Rule on the Writ of Amparo). We explained that although the Kasim evidence was patently hearsay (and was thus incompetent and inadmissible under our rules of evidence), the unique evidentiary difficulties posed by enforced disappearance cases compel us to adopt standards that were appropriate and responsive to the evidentiary difficulties faced. We noted that while we must follow the substantial evidence rule, we must also observe flexibility in considering the evidence that we shall take into account. Thus, we introduced a new evidentiary standard for Writ of Amparo cases in this wise: The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to the issue at hand and its consistency with all the other pieces of adduced evidence, Thus, even hearsay evidence can be admitted if it satisfies this minimum test. [Emphasis in the original]

We held further that the Kasim evidence was crucial to the resolution of the present case for two reasons: first, it supplied the gaps that were never looked into or clarified by police investigation; and second, it qualified a simple missing person report into an enforced disappearance case by injecting the element of participation by agents of the State and thus brought into question how the State reacted to the disappearance. Based on these considerations, we held that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations, together with Col. Kasim, were fully accountable[6] for the enforced disappearance of Tagitis. Specifically, we held Col. Kasim accountable for his failure to disclose under oath information relating to the enforced disappearance; for the purpose of this accountability, we ordered that Col. Kasim be impleaded as a party to this case. Similarly, we also held the PNP accountable for the suppression of vital information that Col. Kasim could, but did not, provide with the same obligation of disclosure that Col. Kasim carries. The Motion for Reconsideration The petitioners cited two grounds in support of their Motion for Reconsideration. First, the petitioners argue that there was no sufficient evidence to conclude that Col. Kasims disclosure unequivocally points to some government complicity in the disappearance of Tagitis. Specifically, the petitioners contend that this Court erred in unduly relying on the raw information given to Col. Kasim by a personal intelligence asset without any other evidence to support it. The petitioners also point out that the Court misapplied its cited cases (Secretary of Defense v. Manalo,[7] Velasquez Rodriguez v. Honduras,[8] and Timurtas v. Turkey[9]) to support its December 3, 2009 decision; in those cases, more than one circumstance pointed to the complicity of the government and its agents. The petitioners emphasize that in the present case, the respondent only presented a token piece of evidence that points to Col. Kasim as the source of information that Tagitis was under custodial investigation for having been suspected as a terrorist supporter. This, according to the petitioners, cannot be equated to the substantial evidence required by the Rule on the Writ of Amparo.[10] Second, the petitioners contend that Col. Kasims death renders impossible compliance with the Courts directive in its December 3, 2009 decision that Col. Kasim be impleaded in the present case and held accountable with the obligation to disclose information known to him and to his assets on the enforced disappearance of Tagitis. The petitioners alleged that

Col. Kasim was killed in an encounter with the Abu Sayaff Group on May 7, 2009. To prove Col. Kasims death, the petitioners attached to their motion a copy of an article entitled Abus kill Sulu police director published by the Philippine Daily Inquirer on May 8, 2009.[11] This article alleged that Senior Supt. Julasirim Kasim, his brother Rosalin, a police trainee, and two other police officers were killed in a fire fight with Abu Sayyaf bandits that started at about 1 p.m. on Thursday, May 7, 2009 at the boundaries of Barangays Kulasi and Bulabog in Maimbung town, Sulu. The petitioners also attached an official copy of General Order No. 1089 dated May 15, 2009 issued by the PNP National Headquarters, indicating that PS SUPT [Police Senior Superintendent] Julasirim Ahadin Kasim 0-05530, PRO ARMM, is posthumously retired from PNP service effective May 8, 2009.[12] Additionally, the petitioners point out that the intelligence assets who supplied the information that Tagitis was under custodial investigation were personal to Col. Kasim; hence, the movants can no longer comply with this Courts order to disclose any information known to Col. Kasim and his assets. The Courts Ruling We hold that our directive to implead Col. Kasim as a party to the present case has been rendered moot and academic by his death. Nevertheless, we resolve to deny the petitioners motion for reconsideration for lack of merit. Paragraph (e) 2009 decision directs: of the dispositive portion of our December 3,

e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his assets in relation with the enforced disappearance of Engineer Morced N. Tagitis; Undisputably, this directive can no longer be enforced, and has been rendered moot and academic, given Col. Kasim's demise. His intervening death, however, does not necessarily signify the loss of the information Col. Kasim may have left behind, particularly the network of assets he utilized while he was in the service. Intelligence gathering is not an activity conducted in isolation, and involves an interwoven network of informants existing on the basis of symbiotic relationships with the police and the military. It is not farfetched that a resourceful investigator, utilizing the extraordinary diligence that the Rule on the

Writ of Amparo requires,[13] can still access or reconstruct the information Col. Kasim received from his asset or network of assets during his lifetime. The extinction of Col. Kasims personal accountability and obligation to disclose material information, known to him and his assets, does not also erase the burden of disclosure and investigation that rests with the PNP and the CIDG. Lest this Court be misunderstood, we reiterate that our holding in our December 3, 2009 Decision that the PNP -- through the incumbent PNP Chief; and the PNP-CIDG, through its incumbent Chief -- are directly responsible[14] for the disclosure of material facts known to the government and to their offices regarding the disappearance of Tagitis; and that the conduct of proper investigation using extraordinary diligence still subsists. These are continuing obligations that will not truly be terminated until the enforced disappearance of the victim, Engr. Morced N. Tagitis, is fully addressed by the responsible or accountable parties, as we directed in our Decision. We now turn to the petitioners substantial challenge to the merits of our December 3, 2009 decision. We see no merit in the petitioners submitted position that no sufficient evidence exists to support the conclusion that the Kasim evidence unequivocally points to some government complicity in the disappearance. Contrary to the petitioners claim that our conclusions only relied on Col. Kasims report, our Decision plainly and pointedly considered other evidence supporting our conclusion, particularly the consistent denials by government authorities of any complicity in the disappearance of Tagitis; the dismissive approach of the police authorities to the report of the disappearance; and the conduct of haphazard investigations that did not translate into any meaningful results. We painstakingly ruled: To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we should at least take a close look at the available evidence to determine the correct import of every piece of evidence even of those usually considered inadmissible under the general rules of evidence taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement. In the present case, we should at least determine whether the Kasim evidence before us is relevant and meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in the case.

x x x The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the evidence, too, that colors a simple missing person report into an enforced disappearance case, as it injects the element of participation by agents of the State and thus brings into question how the State reacted to the disappearance. x x x We glean from all these pieces of evidence and developments a consistency in the governments denial of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive trait that runs through these developments is the governments dismissive approach to the disappearance, starting from the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to the responses made to the respondent when she herself reported and inquired about her husbands disappearance, and even at TASK FORCE TAGITIS itself. As the CA found through TASK FORCE TAGITIS, the investigation was at best haphazard since the authorities were looking for a man whose picture they initially did not even secure. The returns and reports made to the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis was a black operation because it was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG records;

Tagitis, too, would not be detained in the usual police or CIDG detention places. In sum, none of the reports on record contains any meaningful results or details on the depth and extent of the investigation made. To be sure, reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for Tagitis. Indisputably, the police authorities from the very beginning failed to come up to the extraordinary diligence that the Amparo Rule requires. [Emphasis in the original] Likewise, we see no merit in the petitioners claim that the Kasim evidence does not amount to substantial evidence required by the Rule on the Writ of Amparo. This is not a new issue; we extensively and thoroughly considered and resolved it in our December 3, 2009 Decision. At this point, we need not go into another full discussion of the justifications supporting an evidentiary standard specific to the Writ of Amparo. Suffice it to say that we continue to adhere to the substantial evidence rule that the Rule on the Writ of Amparo requires, with some adjustments for flexibility in considering the evidence presented. When we ruled that hearsay evidence (usually considered inadmissible under the general rules of evidence) may be admitted as the circumstances of the case may require, we did not thereby dispense with the substantial evidence rule; we merely relaxed the evidentiary rule on the admissibility of evidence, maintaining all the time the standards of reason and relevance that underlie every evidentiary situation. This, we did, by considering the totality of the obtaining situation and the consistency of the hearsay evidence with the other available evidence in the case. We also cannot agree with the petitioners contention that we misapplied Secretary of Defense v. Manalo,[15] Velasquez Rodriguez v. v. Turkey[17] to support our December 3, Honduras,[16] andTimurtas 2009 decision. The petitioners make this claim with the view that in these cases, more than one circumstance pointed to the government or its agents as the parties responsible for the disappearance, while we can only point to the Kasim evidence. A close reading of ourDecember 3, 2009 Decision shows that it rests on more than one basis. At the risk of repetition, we stress that other pieces of evidence point the way towards our conclusion, particularly the unfounded and consistent denials by

government authorities of any complicity in the disappearance; the dismissive approach of the police to the report of the disappearance; and the haphazard handling of the investigation that did not produce any meaningful results. In cruder but more understandable language, the run-around given to the respondent and the government responses to the request for meaningful investigation, considered in the light of the Kasim evidence, pointed to the conclusion that the Tagitis affair carried a foul smell indicative of government complicity or, at the very least, an attempt at cover-up and concealment. This is the situation that the Writ of Amparo specifically seeks to address. Manalo, Velasquez Rodriguez and Timurtas, read in proper perspective, fully support our findings and conclusions in this case. Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case. The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity and surfaced, while Tagitis is still nowhere to be found and remains missing more than two years after his reported disappearance. An Amparo situation subsisted in Manalo, however, because of the continuing threat to the brothers right to security; the brothers claimed that since the persons responsible for their enforced disappearance were still at large and had not been held accountable, the former were still under the threat of being once again abducted, kept captive or even killed, which threat constituted a direct violation of their right to security of person. In ruling that substantial evidence existed to support the conclusion that the respondents right to security had been violated, the Court not only considered the respondents affidavit and testimony which positively identified the perpetrators, but also noted other evidence showing the ineffective investigation and protection on the part of the military. The Court significantly found that: Next, the violation of the right to security as protection by the government. Apart from the failure of military elements to provide protection to respondents by themselves perpetrating the abduction, detention, and torture, they also miserably failed in conducting an effective investigation of respondents abduction as revealed by the testimony and investigation report of petitioners own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division. The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely relied on the Sworn Statements of the six implicated

members of the CAFGU and civilians whom he met in the investigation for the first time. He was present at the investigation when his subordinate Lingad was taking the sworn statements, but he did not propound a single question to ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test the alibis given by the six implicated persons nor for the family or neighbors of the respondents. In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the event the writ of amparo is issued by a competent court against any members of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and securing statements from them; determination of the cause, manner, location and time of death or disappearance; identification and apprehension of the person or persons involved in the death or disappearance; and bringing of the suspected offenders before a competent court. Petitioner AFP Chief of Staff also submitted his own affidavit attesting that he received the above directive of respondent Secretary of National Defense and that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of the respondents, and undertook to provide results of the investigations to respondents. To this day, however, almost a year after the policy directive was issued by petitioner Secretary of National Defense on October 31, 2007, respondents have not been furnished the results of the investigation which they now seek through the instant petition for a writ of amparo. Under these circumstances, there is substantial evidence to warrant the conclusion that there is a violation of respondents right to security as a guarantee of protection by the government. [Emphasis supplied][18]

Similarly in Velasquez Rodriguez, the Inter-American Court of Human Rights (IACHR) acknowledged that when the Honduran Government carried out or tolerated enforced disappearances, the police customarily used a distinctive form of kidnapping. Consequently, the IACHR presumed that Velasquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice. Moreover, the IACHR found that negative inferences may be drawn from the fact that the government failed to investigate or to inquire into his disappearance, and thwarted the attempts by the victims family to do so; these according to the Court strongly suggested the governments involvement in the disappearance, even if there was no direct evidence indicating that the government kidnapped Velasquez.[19] The Court thus held:[20] iii. In the case of Manfredo Velsquez, there were the same type of denials by his captors and the Armed Forces, the same omissions of the latter and of the Government in investigating and revealing his whereabouts, and the same ineffectiveness of the courts where three writs of HABEAS corpus and two criminal complaints were brought ( testimony of Miguel Angel Pavn Salazar, Ramn Custodio Lpez, Zenaida Velsquez, press clippings and documentary evidence ). h. There is no evidence in the record that Manfredo Velsquez had disappeared in order to join subversive groups, other than a letter from the Mayor of Langue, which contained rumors to that effect. The letter itself shows that the Government associated him with activities it considered a threat to national security. However, the Government did not corroborate the view expressed in the letter with any other evidence. Nor is there any evidence that he was kidnapped by common criminals or other persons unrelated to the practice of disappearances existing at that time." 148. Based upon the above, the Court finds that the following facts have been proven in this proceeding: (1) a practice of disappearances carried out or tolerated by Honduran officials existed between 1981 and 1984; ( 2) Manfredo Velsquez disappeared at the hands of or with the acquiescence of those officials within the framework of that practice; and (3) the Government of Honduras failed to guarantee the human rights affected by that practice.

Finally, in Timurtas, the European Court of Human Rights (ECHR) altered the prevailing jurisprudence by permitting a lesser evidentiary burden in cases of enforced disappearances. The ECHR dismissed the need for direct evidence previously held necessary in the leading case of Kurt v. Turkey,[21] and insteadpermitted the use of circumstantial evidence to establish a violation of the right to life. It stated that whether the failure on the part of authorities to provide a plausible explanation as to a detainees fate, in the absence of a body, might raise issues under Article 2 of the Convention (right to life), will depend on the circumstances of the case and, in particular, on the existence of sufficient circumstantial evidence based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody.[22] The ECHR found that:[23] Noting that more than six and a half years has gone by since Abdulvahap Timurtas apprehension and having regard to all the other circumstances of the case, the Court found that the disappearance of Abdulvahap Timurtas after he had been taken into detention led, in the circumstances of this case, to a presumption that he had died. No explanation having been provided by the Government as to what had happened to him during his detention, the Government was liable for his death and there was a violation of Article 2 of the Convention. [Emphasis supplied] Significantly (in the context of the present case), the ECHR also noted that the inadequacy of the investigation into the disappearance of Timurtas also constituted a violation of his right to life under Article 2 of the European Convention on Human Rights. Thus viewed, common threads that plainly run in the three cited cases are applicable to the present case. There is the evidence of ineffective investigation inManalo and Velasquez Rodriguez, while in all three was the recognition that the burden of proof must be lowered or relaxed (either through the use of circumstantial or indirect evidence or even by logical inference); the requirement for direct evidence to establish that an enforced disappearance occurred -- as the petitioners effectively suggest -- would render it extremely difficult, if not impossible, to prove that an individual has been made to disappear. In these lights, we emphasized in our December 3, 2009 Decision that while the need for substantial evidence remains the rule, flexibility must be observed where appropriate (as the Courts in Velasquez Rodriguezand Timurtas did) for the

protection of the precious rights to life, liberty and security. This flexibility, we noted, requires that we should take a close look at the available evidence to determine the correct import of every piece of evidence even of those usually considered inadmissible under the general rules of evidence taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement. From these perspectives, we see no error that we should rectify or reconsider. WHEREFORE, premises considered, we resolve to GRANT the motion to declare the inclusion of PS/Supt. Julasirim Ahadin Kasim moot and academic, but, otherwise, DENY the petitioners motion for reconsideration. Let this case be remanded to the Court of Appeals for further proceedings as directed in our Decision of December 3, 2009. SO ORDERED.

SC Rules on Writs of Amparo and Habeas Data /Writ of Kalikasan

EN BANC GEN. ALEXANDER B. YANO, Chief of Staff, Armed Forces of the Philippines, LT. GEN. VICTOR S. IBRADO, Commanding General, Philippine Army, and MAJ. GEN. RALPH A. VILLANUEVA, Commander, th 7 Infantry Division, Philippine Army, Petitioners, G.R. No. 186640 Present: PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated:

- versus -

CLEOFAS SANCHEZ and MARCIANA MEDINA, Respondents.

February 11, 2010 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: On December 28, 2007, respondent Cleofas Sanchez (Cleofas) filed before this Court a petition docketed as G.R. No. 180839 for issuance of a Writ of Amparowith Motion for Production and Inspection directed against Gen. Hermogenes Esperon (Gen. Esperon), the then Chief of Staff of the Armed Forces of the Philippines (AFP).

On January 2, 2008, the Court[1] resolved to issue a Writ of Amparo and ordered Gen. Esperon to make a verified return of the writ before Court of Appeals Justice Edgardo Sundiam, who was ordered to hear and decide the case which was eventually redocketed as CA-G.R. SP No. 00010 WR/A. Cleofas amended her petition[2] on January 14, 2008 to include herein corespondent Marciana Medina (Marciana) as therein additional petitioner, and to implead other military officers[3] including Lt. Ali Sumangil (Lt. Sumangil) and Sgt. Gil Villalobos[4] (Sgt. Villalobos) as therein additional respondents. In the Amended Petition, Cleofas and Marciana (respondents) alleged that on September 17, 2006 at around 8:00 p.m., their respective sons Nicolas Sanchez and Heherson Medina were catching frogs outside their home in Sitio Dalin, Barangay Bueno, Capas, Tarlac; that at around 1:00 a.m. of the next day, September 18, 2006, Nicolas wives Lourdez and Rosalie Sanchez, who were then at home, heard gunshots and saw armed men in soldiers uniforms passing by; that at around 4:00 a.m. of the same day, Lourdez and Rosalie went out to check on Nicolas and Heherson but only saw their caps, slippers, pana and airgun for catching frogs, as well as bloodstains; and that they immediately reported the matter to the barangay officials. Respondents narrated that they, together with other family members, proceeded on September 19, 2006 to the Capas Station of the Philippine National Police (PNP). Accompanied by officials of the National Commission on Indigenous Peoples (NCIP),[5] they also tried to search for Nicolas and Heherson at the Camp Detachment of the 71st Infantry Batallion of the Philippine Army (Army) in Barangay Burgos, San Jose, Tarlac, and at the Camp of the Bravo Company of the Armys 71st Infantry Batallion inside Hacienda Luisita, Tarlac City, but to no avail. Furthermore, respondents alleged that Josephine Galang Victoria, also known as Antonina Galang (Josephine), niece of a neighbor, later informed them that she had seen two men inside Camp Servillano Aquino of the Northern Luzon Command (Nolcom) in San Miguel, Tarlac City on September 21, 2006, whom Josephine later identified as Nicolas and Heherson (the victims) after respondents had shown her their photographs; and that Josephine informed them that she saw the victims again on September 24, 2006 and November 1, 2006,[6] this time at the Camp of the Bravo Company of the Armys 71st Infantry Batallion inside Hacienda Luisita, where she had occasion to talk to Lt. Sumangil and Sgt. Villalobos. Respondents filed a case on December 21, 2006 before the Commission on Human Rights (CHR), which endorsed[7] the same to the Ombudsman for appropriate action.

Contending that the victims life, liberty and security had been and continued to be violated on account of their forced disappearance, respondents prayed for the issuance of a writ of Amparo, the production of the victims bodies during the hearing on the Writ, the inspection of certain military camps,[8] the issuance of temporary and permanent protection orders, and the rendition of judgment under Section 18 of the Rule on the Writ of Amparo.[9] Meanwhile, a consolidated Return of the Writ,[10] verified by Gen. Esperon, Lt. Sumangil, Sgt. Villalobos, Maj. Gen. Juanito Gomez (Maj. Gen. Gomez) as Commander of the Armys 7th Infantry Division, and Lt. Col. Victor Bayani (Lt. Col. Bayani) as Camp Commander of Camp Servillano Aquino of the Nolcom in Tarlac City, was filed with the appellate court on January 24, 2008. Lt. Gen. Alexander Yano (Lt. Gen. Yano), Commanding General of the Army, filed a Return of the Writ upon his return from an official trip abroad. In their Return, the military officers denied having custody of the victims. They posited that the proper remedy of respondents was to file a petition for the issuance of a Writ of Habeas Corpus, since the petitions ultimate objective was the production of the bodies of the victims, as they were allegedly abducted and illegally detained by military personnel;[11] that the petition failed to indicate the matters required by paragraphs (c), (d) and (e), Section 5 of the Rule on the Writ ofAmparo, such that the allegations were incomplete to constitute a cause of action, aside from being based on mere hearsay evidence, and are, at best, speculative; that respondents failed to present the affidavits of some other competent persons which would clearly validate their claim that the military violated the victims right to life, liberty or security by abducting or detaining them; and that the petition did not allege any specific action or inaction attributable to the military officers with respect to their duties; or allege that respondents took any action by filing a formal complaint or visiting the military camps adverted to in order to verify Josephines claim that she saw the victims on two different occasions inside the camps, or that they took efforts to follow up on the PNP Capas Stations further action on their complaint.[12] Denying he violated the victims right to life, liberty and security, Gen. Esperon specifically asserted that, in compliance with the Defense Secretarys directive in relation to cases of Writ of Amparo against the AFP, he issued directives to the Nolcom Commander and the Armys Commanding General to investigate and establish the circumstances surrounding reported disappearances of victims insofar as the claim on the possible involvement of the military units was concerned; and undertook to bring any military personnel involved, when warranted by the evidence, to the bar of justice.[13]

Maj. Gen. Gomez likewise denied having custody or knowledge of the whereabouts of the victims, stating that it was not army policy to abduct civilians in his area of responsibility,[14] and that he was away on official business at the time of the alleged disappearance of the victims.[15] Lt. Col. Bayani attested that he was designated Camp Commander only on September 1, 2007 and thus had no personal knowledge about the victims alleged disappearance or abduction on September 18, 2006; that he was informed by his immediate predecessor that no individuals were detained in the camp as it did not even have detention facilities; and that in compliance with Gen. Esperons directive, their command was conducting further investigation to verify the allegations in the petition.[16] Lt. Sumangil denied having spoken to Josephine inside the camp on September 24, 2006, on which date civilians were not allowed to enter except on official missions or when duly authorized to conduct transactions inside the camp. He thus concluded that Josephine lied in claiming to have seen the two victims inside the Camp of the Bravo Company of the 71st Infantry Batallion inside Hacienda Luisita on September 24, 2006 or at any time thereafter. He instead recounted that on September 24, 2006, he spoke for the first and only time, but only at the gate of the camp, with a person who identified herself as Antonina Galang, who informed him about the disappearance of the victims since September 18, 2006. Warning him that these men were members of the New Peoples Army (NPA), she advised him not to entertain any queries or complaints relative to their alleged disappearance.[17] Sgt. Villalobos echoed Sumangils disclaimer about having any of the victims in his custody or meeting anyone named Josephine Victoria, or about the latter having entered the camps kitchen to drink water. Lt. Gen. Yano stated that upon his return from his official functions overseas, he immediately inquired on the actions taken on the case. He averred that he had never participated directly or indirectly; or consented, permitted or sanctioned any illegal or illegitimate military operations. He declared that it had always been his policy to respect human rights and uphold the rule of law, and to bring those who violated the law before the court of justice. In opposing the request for issuance of inspection and production orders, the military officers posited that apart from compromising national security should entry into these military camps/bases be allowed, these orders partook of the nature of a search warrant, such that the requisites for the issuance thereof must be complied with prior to their issuance. They went on to argue that such request relied solely on bare, self-serving and vague allegations contained in

Josephines affidavit, for aside from merely mentioning that she saw Nicolas and Heherson on board an army truck near the Nolcom gate and, days later, inside the kitchen of the 71st Infantry Battalion Camp inside Hacienda Luisita and while logging outside said camp, Josephine had stated nothing more to ascertain the veracity of the places where she allegedly saw Nicolas and Heherson.[18] On whether the impleaded military officers were either directly or indirectly connected with the disappearance of the victims, the appellate court, after hearing, absolved, by the assailed Decision of September 17, 2008,[19] Gen. Esperon, Lt. Gen. Yano, Maj. Gen. Gomez, and Lt. Col. Bayani for lack of evidence linking them to the disappearances, and further ruled as follows: All said, this Court is convinced that petitioners have not adequately and convincingly established any direct or indirect link between respondents individual military officers and the disappearances of Nicolas and Heherson. Neither did the concerned Philippine Army Units have exerted fully their efforts to investigate and unearth the truth and bring the culprits before the bar of justice. The concerned Philippine Army units (such as the Northern Command and the 7th Infantry Division, which had jurisdiction over the place of disappearance of Nicolas and Heherson, should exert extraordinary diligence to follow all possible leads to solve the disappearances of Nicolas and Heherson. The Philippine Army should be reminded of its constitutional mandate as the protector of the people and the State. RELIEFS While as We stated hereinbefore that We could not find any link between respondents individual military officers to the disappearance of Nicolas and Heherson, nonetheless, the fact remains that the two men are still missing. Hence, We find it equitable to grant petitioners some reliefs in the interest of human rights and justice as follows: 1. Inspections of the following camps: Camp Servillano Aquino, San Miguel, Tarlac City, any military camp of the 7th Infantry Division located in Aqua Farm, Hacienda Luisita, Tarlac City, within reasonable working hours of any day except when the military camp is on red alert status.

2. Thorough and Impartial Investigation for the appropriate Investigating Unit of the Philippine Army at Camp Servillano Aquino and the Philippine Army, 7th Infantry Division in Fort Magsaysay to conduct their respective investigation of all angles pertaining to the disappearances of Nicolas and Heherson and to immediately file charges against those found guilty and submit their written report to this Court within three (3) months from notice. SO ORDERED.[20] (underscoring supplied) The military officers filed a Motion for Partial Reconsideration (Motion), arguing in the main that since respondents failed to prove the allegations in their petition by substantial evidence, the appellate court should not have granted those reliefs.[21] The appellate court denied the Motion by the assailed Resolution of March 3, 2009.[22] Taking up the cudgels for the military, Gen. Alexander Yano,[23] Lt. Gen. Victor Ibrado,[24] and Maj. Gen. Ralph Villanueva[25] (petitioners) filed the present petition for review of the appellate courts assailed issuances, faulting it for . . . NOT CATEGORICALLY DENYING THE PRIVILEGE OF THE WRIT OF AMPARO PURSUANT TO SECTION 18 OF THE RULE ON THE WRIT OF AMPARODESPITE ITS FINDING THAT RESPONDENTS FAILED TO PROVE THEIR ALLEGATIONS IN THEIR PETITION FOR AMPARO BY SUBSTANTIAL EVIDENCE. . . . [AND] . . . DIRECTING PETITIONERS TO: (A) ALLOW RESPONDENTS TO INSPECT CAMP SERVILLANO AQUINO, NORTH LUZON COMMAND, PHILIPPINE ARMY, SAN MIGUEL, TARLAC CITY AND ANY MILITARY CAMP OF THE 7TH INFANTRY DIVISION LOCATED IN AQUA FARM, HACIENDA LUISITA, TARLAC CITY; AND. (B) CONDUCT THOROUGH AND IMPARTIAL INVESTIGATION OF THE DISAPPEARANCE OF THE AGGRIEVED PARTIES, FILE CHARGES AGAINST THOSE FOUND GUILTY AND SUBMIT WRITTEN REPORT WITHIN THREE MONTHS FROM [26] (emphasis and underscoring supplied) NOTICE.

The Court finds merit in the petition. In ruling in favor of Lt. Sumangil and Sgt. Villalobos, the appellate court resolved the case on the basis of the credibility of Josephine as a witness. It arrived at the following findings: To prove that these two military officers took or have custody of Nicolas and Heherson, petitioners presented Josephine Galang Victoria, also known as Antonina Galang, a niece of petitioner Cleofas Sanchez neighbor, who allegedly saw Nicolas and Heherson inside Camp Servillano Aquino on September 21, 2006 when she visited her uncle, a certain Major Henry Galang, who is allegedly living inside the camp; that a few days later, she again saw Nicolas and Heherson at Aqua Farm at Hacienda Luisita, where the camp of Bravo Company of the 71stInfantry Battalion is located and where Heherson was seen sweeping the floor and Nicolas was seen cooking, having wounds in their legs near the feet as if sustained from a gunshot wound; that on November 1, 2006, she went back upon advice of Lt. Sumangil to give her a cellfone which Tech. Sgt. Villalobos handed to her for her to know where Nicolas and Heherson will be brought; that they [sic] saw the two outside getting some woods under the watchful eye of a soldier when Sumangil kicked Nicolas for being slow and thereafter, she did not see the two anymore. While Josephine Galang Victorias story of how she saw the subject two missing persons (Nicolas and Heherson) appeared initially as plausible, however, her credibility as a witness had been successfully destroyed by the following witnesses presented by the respondents. 1) Barangay Captain Rodolfo P. Supan of Cut-Cut II, Tarlac City, attested that she knows a certain woman named Josephine Galang Victoria who introduces herself as Antonina Galang, niece through the cousin of his wife and a long-time resident of Cut-Cut II since birth until she lived with her partner Philip Victoria and they still visit and goes to her auntie or siblings house; that he knows the reputation of Josephine Victoria as bad regarding her telling the truth, her truthfulness and integrity, known to fool others and invents

stories for money reasons, that she cannot be trusted even if she is under oath before God and the State. 2) As if that is not yet enough, Gloria Galang Mansalay testified that she is a resident of Cut-Cut II since birth in 1964 and she knows Josephine Galang Victoria because she is her niece being the daughter of her older brother; that she even took care of Antonina as a child but her general reputation in telling the truth, her fidelity and integrity is bad, known to fool others, a liar and invent [sic] stories for reason of money. 3) Clarita Galang Ricafrente saying that she is a resident of Cut-cut II and Antonina Galang is a niece and attested the same negative reputations against Antonina. It appears that said negative testimonies of Josephine Galang Victorias relatives were never successfully rebutted by her and the Court gives credence to them. No ill motive [sic] were established against the said witnesses to testify against Antonina Galang. Furthermore, Antonina Galang stated that she was in Camp Servillano Aquino when she first saw Nicolas and Heherson riding in an army truck because she was visiting her uncle, Major Henry Galang, allegedly living in the camp. Parenthetically, this story of Antonina Galang was put to doubt. TSG Edgard Reyes who attested that as a meter reader in the camp, Major Galang was no longer residing there in September 2006. This testimony and revelation of TSG Reyes only bolstered the testimonies of the other witnesses on Antonina Galangs penchant to invent stories or tell a lie. In sum, We are not inclined to give credence to the claims of Antonina Galang that the two missing person [sic] she saw first in Camp Servillano Aquino and later, in Aqua Farm, were Nicolas and Heherson. Notably, Antonina Galang never did see the faces of the two but were known to her through photographs. Certainly, there may be a difference between photographs and the faces in person. To be noted also is that even the two wives of Nicolas did not make an express attestation that they saw Nicolas and Heherson in the company of those armed men who passed their place in the early morning of September 18, 2006.[27] (underscoring supplied)

NOTABLY, respondents neither moved for reconsideration nor appealed the appellate courts September 17, 2008 Decision. The entrenched procedural rule in this jurisdiction is that a party who did not appeal cannot assign such errors as are designed to have the judgment modified. All that said appellee can do is to make a counter-assignment of errors or to argue on issues raised at the trial only for the purpose of sustaining the judgment in his favor, even on grounds not included in the decision of the court a quo or raised in the appellants assignment of errors or arguments.[28] This tenet is enshrined as one of the basic principles in our rules of procedure, specifically to avoid ambiguity in the presentation of issues, facilitate the setting forth of arguments by the parties, and aid the court in making its determinations. A party who fails to acquire complete relief from a decision of the court has various remedies to correct an omission by the court. He may move for a correction or clarification of judgment, or even seek its modification through ordinary appeal. There is thus no basis for the Court to skip the rule and excuse herein respondents for failure to properly avail themselves of the remedies in the face of the parties contentions that have remained disputed.[29] What is thus left for the Court to resolve is the issue of whether the [30] grant of the RELIEFS by the appellate court after finding want of substantial evidence are valid and proper. Sections 17 and 18 of the Amparo Rule lay down the requisite standard of proof necessary to prove either partys claim, viz: SEC. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claim by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

SEC. 18. Judgment. - The Court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (emphasis and underscoring supplied) The requisite standard of proof substantial evidence - speaks of the clear intent of the Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in resolving amparo petitions. To the appellate court, the evidence adduced in the present case failed to measure up to that standard substantial evidence which a reasonable mind might accept as adequate to support a conclusion. Since respondents did not avail of any remedy against the adverse judgment, the appellate courts decision is, insofar as it concerns them, now beyond the ambit of review. Meanwhile, the requirement for a government official or employee to observe extraordinary diligence in the performance of duty stresses the extraordinary measures expected to be taken in safeguarding every citizens constitutional rights as well as in the investigation of cases of extra-judicial killings and enforced disappearances.[31] The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however, some basis for the petitioner to move and for the court to grant certain interim reliefs. In line with this, Section 14 of the Amparo Rule provides for interim or provisional reliefs that the courts may grant in order to, inter alia, protect the witnesses and the rights of the parties, and preserve all relevant evidence, viz: SEC. 14. Interim Reliefs. Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be

protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3 (c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order. The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.

(c) Production Order. The court, justice, or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (emphasis and underscoring supplied) These provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition. For the appellate court to, in the present case, still order the inspection of the military camps and order the army units to conduct an investigation into the disappearance of Nicolas and Heherson after it absolved petitioners is thus not in order. The reliefs granted by the appellate court to respondents are not in sync with a finding that petitioners could not be held accountable for the disappearance of the victims. Respondents posit that there appears to be some shared confusion as to whether the reliefs granted by the appellate court are final or interlocutory. They thus implore this Court to modify the appellate courts judgment by considering the reliefs as temporary or interlocutory and by adding thereto an order for the production of logbooks and reports.[32] At this late stage, respondents can no longer avail themselves of their stale remedies in the guise of praying for affirmative reliefs in their Comment. No modification of judgment could be granted to a party who did not appeal.[33] If respondents believed that the September 17, 2008 Decision of the appellate court was merely interlocutory, they had every opportunity to question the conclusion of said court, but they did not. They could have opposed petitioners motion for reconsideration filed with the appellate court, it being a prohibited pleading[34] under the Amparo Rule, but they did not.

WHEREFORE, the petition is GRANTED. The assailed September 17, 2008 Decision and March 3, 2009 Resolution of the Court of Appeals, insofar as it grants the assailed earlier-quoted reliefs are SET ASIDE. SO ORDERED.

Rule 103 Change of Name RA 9048 Clerical Error Law RA 9255 An act allowing illegitimate children to use the surname of their father
FIRST DIVISION G.R. No. 153883 January 13, 2004

REPUBLIC OF THE PHILIPPINES, petitioner, vs. CHULE Y. LIM, respondent. DECISION YNARES-SANTIAGO, J.: This petition for review on certiorari under Rule 45 of the Rules of Court stemmed from a petition for correction of entries under Rule 108 of the Rules of Court filed by respondent Chule Y. Lim with the Regional Trial Court of Lanao del Norte, Branch 4, docketed as Sp. Proc. No. 4933. In her petition, respondent claimed that she was born on October 29, 1954 in Buru-an, Iligan City. Her birth was registered in Kauswagan, Lanao del Norte but the Municipal Civil Registrar of Kauswagan transferred her record of birth to Iligan City. She alleged that both her Kauswagan and Iligan City records of birth have four erroneous entries, and prays that they be corrected. The trial court then issued an Order,1 which reads: WHEREFORE, finding the petition to be sufficient in form and substance, let the hearing of this case be set on December 27, 1999 before this Court, Hall of Justice, Rosario Heights, Tubod, Iligan City at 8:30 oclock in the afternoon at which date, place and time any interested person may appear and show cause why the petition should not be granted. Let this order be published in a newspaper of general circulation in the City of Iligan and the Province of Lanao del Norte once a week for three (3) consecutive weeks at the expense of the petitioner.

Furnish copies of this order the Office of the Solicitor General at 134 Amorsolo St., Legaspi Vill., Makati City and the Office of the Local Civil Registrar of Iligan City at Quezon Ave., Pala-o, Iligan City. SO ORDERED. During the hearing, respondent testified thus: First, she claims that her surname "Yu" was misspelled as "Yo". She has been using "Yu" in all her school records and in her marriage certificate.2 She presented a clearance from the National Bureau of Investigation (NBI)3 to further show the consistency in her use of the surname "Yu". Second, she claims that her fathers name in her birth record was written as "Yo Diu To (Co Tian)" when it should have been "Yu Dio To (Co Tian)." Third, her nationality was entered as Chinese when it should have been Filipino considering that her father and mother never got married. Only her deceased father was Chinese, while her mother is Filipina. She claims that her being a registered voter attests to the fact that she is a Filipino citizen. Finally, it was erroneously indicated in her birth certificate that she was a legitimate child when she should have been described as illegitimate considering that her parents were never married. Placida Anto, respondents mother, testified that she is a Filipino citizen as her parents were both Filipinos from Camiguin. She added that she and her daughters father were never married because the latter had a prior subsisting marriage contracted in China. In this connection, respondent presented a certification attested by officials of the local civil registries of Iligan City and Kauswagan, Lanao del Norte that there is no record of marriage between Placida Anto and Yu Dio To from 1948 to the present. The Republic, through the City Prosecutor of Iligan City, did not present any evidence although it actively participated in the proceedings by attending hearings and cross-examining respondent and her witnesses. On February 22, 2000, the trial court granted respondents petition and rendered judgment as follows:

WHEREFORE, the foregoing premises considered, to set the records of the petitioner straight and in their proper perspective, the petition is granted and the Civil Registrar of Iligan City is directed to make the following corrections in the birth records of the petitioner, to wit: 1. Her family name from "YO" to "YU"; 2. Her fathers name from "YO DIU TO (CO TIAN)" to "YU DIOTO (CO TIAN)"; 3. Her status from "legitimate" to "illegitimate" by changing "YES" to "NO" in answer to the question "LEGITIMATE?"; and, 4. Her citizenship from "Chinese" to "Filipino". SO ORDERED.4 The Republic of the Philippines appealed the decision to the Court of Appeals which affirmed the trial courts decision.5 Hence, this petition on the following assigned errors: I THE COURT OF APPEALS ERRED IN ORDERING THE CORRECTION OF THE CITIZENSHIP OF RESPONDENT CHULE Y. LIM FROM "CHINESE" TO "FILIPINO" DESPITE THE FACT THAT RESPONDENT NEVER DEMONSTRATED ANY COMPLIANCE WITH THE LEGAL REQUIREMENTS FOR ELECTION OF CITIZENSHIP. II THE COURT OF APPEALS ERRED IN ALLOWING RESPONDENT TO CONTINUE USING HER FATHERS SURNAME DESPITE ITS FINDING THAT RESPONDENT IS AN ILLEGITIMATE CHILD.6 To digress, it is just as well that the Republic did not cite as error respondents recourse to Rule 108 of the Rules of Court to effect what indisputably are substantial corrections and changes in entries in the civil register. To clarify, Rule 108 of the Revised Rules of Court provides the procedure for cancellation or correction of entries in the civil registry. The proceedings under said rule may either be summary or adversary in nature. If the correction sought to be made in the civil register is clerical, then the procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of a party, it is

deemed substantial, and the procedure to be adopted is adversary. This is our ruling in Republic v. Valencia7 where we held that even substantial errors in a civil registry may be corrected and the true facts established under Rule 108 provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. An appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite partys case, and where the evidence has been thoroughly weighed and considered.8 As likewise observed by the Court of Appeals, we take it that the Republics failure to cite this error amounts to a recognition that this case properly falls under Rule 108 of the Revised Rules of Court considering that the proceeding can be appropriately classified as adversarial. Instead, in its first assignment of error, the Republic avers that respondent did not comply with the constitutional requirement of electing Filipino citizenship when she reached the age of majority. It cites Article IV, Section 1(3) of the 1935 Constitution, which provides that the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship.9 Likewise, the Republic invokes the provision in Section 1 of Commonwealth Act No. 625, that legitimate children born of Filipino mothers may elect Philippine citizenship by expressing such intention "in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines."10 Plainly, the above constitutional and statutory requirements of electing Filipino citizenship apply only to legitimatechildren. These do not apply in the case of respondent who was concededly an illegitimate child, considering that her Chinese father and Filipino mother were never married. As such, she was not required to comply with said constitutional and statutory requirements to become a Filipino citizen. By being an illegitimate child of a Filipino mother, respondent automatically became a Filipino upon birth. Stated differently, she is a Filipino since birth without having to elect Filipino citizenship when she reached the age of majority. In Ching, Re: Application for Admission to the Bar,11 citing In re Florencio Mallare,12 we held:

Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a Filipino, and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co vs. Government of the Philippine Islands, 42 Phil. 543; Serra vs. Republic, L-4223, May 12, 1952; Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28, 1954). Neither could any act be taken on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled.13 This notwithstanding, the records show that respondent elected Filipino citizenship when she reached the age of majority. She registered as a voter in Misamis Oriental when she was 18 years old.14 The exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship.15 In its second assignment of error, the Republic assails the Court of Appeals decision in allowing respondent to use her fathers surname despite its finding that she is illegitimate. The Republics submission is misleading. The Court of Appeals did not allow respondent to use her fathers surname. What it did allow was the correction of her fathers misspelled surname which she has been using ever since she can remember. In this regard, respondent does not need a court pronouncement for her to use her fathers surname. We agree with the Court of Appeals when it held: Firstly, Petitioner-appellee is now 47 years old. To bar her at this time from using her fathers surname which she has used for four decades without any known objection from anybody, would only sow confusion. Concededly, one of the reasons allowed for changing ones name or surname is to avoid confusion. Secondly, under Sec. 1 of Commonwealth Act No. 142, the law regulating the use of aliases, a person is allowed to use a name "by which he has been known since childhood." Thirdly, the Supreme Court has already addressed the same issue. In Pabellar v. Rep. of the Phils.,16 we held: Section 1 of Commonwealth Act No. 142, which regulates the use of aliases, allows a person to use a name "by which he has been known

since childhood" (Lim Hok Albano v. Republic, 104 Phil. 795; People v. Uy Jui Pio, 102 Phil. 679; Republic v. Taada, infra). Even legitimate children cannot enjoin the illegitimate children of their father from using his surname (De Valencia v. Rodriguez, 84 Phil. 222).17 While judicial authority is required for a change of name or surname,18 there is no such requirement for the continued use of a surname which a person has already been using since childhood.19 The doctrine that disallows such change of name as would give the false impression of family relationship remains valid but only to the extent that the proposed change of name would in great probability cause prejudice or future mischief to the family whose surname it is that is involved or to the community in general.20 In this case, the Republic has not shown that the Yu family in China would probably be prejudiced or be the object of future mischief. In respondents case, the change in the surname that she has been using for 40 years would even avoid confusion to her community in general. WHEREFORE, in view of the foregoing, the instant petition for review is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 68893 dated May 29, 2002, is AFFIRMED. Accordingly, the Civil Registrar of Iligan City is DIRECTED to make the following corrections in the birth record of respondent Chule Y. Lim, to wit: 1. Her family name from "YO" to "YU"; 2. Her fathers name from "YO DIU TO (CO TIAN)" to "YU DIOTO (CO TIAN)"; 3. Her status from "legitimate" to "illegitimate" by changing "YES" to "NO" in answer to the question "LEGITIMATE?"; and, 4. Her citizenship from "Chinese" to "Filipino". SO ORDERED. Davide, Jr., C.J., (Chairman), Panganiban, Carpio, and Azcuna, JJ., concur.

Change of Name
SECOND DIVISION [G.R. No. 159966. March 30, 2005] IN RE: PETITION FOR CHANGE OF NAME AND/OR CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN WANG, to be amended/corrected as JULIAN LIN WANG, JULIAN LIN WANG, duly represented by his mother ANNA LISA WANG, petitioner, vs. CEBU CITY CIVIL REGISTRAR, duly represented by the Registrar OSCAR B. MOLO, respondent. DECISION TINGA, J.: I will not blot out his name out of the book of life. Revelation 3:5 On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor, represented by his mother Anna Lisa Wang, filed a petition dated 19 September 2002 for change of name and/or correction/cancellation of entry in the Civil Registry of Julian Lin Carulasan Wang. Petitioner sought to drop his middle name and have his registered name changed from Julian Lin Carulasan Wang to Julian Lin Wang. The petition was docketed as Special Proceedings Case No. 11458 CEB and raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57. The RTC established the following facts: Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to parents Anna Lisa Wang and Sing-Foe Wang who were then not yet married to each other. When his parents subsequently got married on September 22, 1998, ...they executed a deed of legitimation of their son so that the childs name was changed from Julian Lin Carulasan to Julian Lin Carulasan Wang. The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a long time because they will let him study there together with his sister named Wang Mei Jasmine who was born in Singapore. Since in Singapore middle names or the maiden surname of the mother are not carried in a persons name, they

anticipate that Julian Lin Carulasan Wang will be discriminated against because of his current registered name which carries a middle name. Julian and his sister might also be asking whether they are brother and sister since they have different surnames. Carulasan sounds funny in Singapores Mandarin language since they do not have the letter R but if there is, they pronounce it as L. It is for these reasons that the name of Julian Lin Carulasan Wang is requested to be changed to Julian Lin Wang.[1] On 30 April 2003, the RTC rendered a decision denying the petition.[2] The trial court found that the reason given for the change of name sought in the petitionthat is, that petitioner Julian may be discriminated against when studies in Singapore because of his middle namedid not fall within the grounds recognized by law. The trial court ruled that the change sought is merely for the convenience of the child. Since the State has an interest in the name of a person, names cannot be changed to suit the convenience of the bearers. Under Article 174 of the Family Code, legitimate children have the right to bear the surnames of the father and the mother, and there is no reason why this right should now be taken from petitioner Julian, considering that he is still a minor. The trial court added that when petitioner Julian reaches the age of majority, he could then decide whether he will change his name by dropping his middle name.[3] Petitioner filed a motion for reconsideration of the decision but this was denied in a resolution dated 20 May 2004.[4] The trial court maintained that the Singaporean practice of not carrying a middle name does not justify the dropping of the middle name of a legitimate Filipino child who intends to study there. The dropping of the middle name would be tantamount to giving due recognition to or application of the laws of Singapore instead of Philippine law which is controlling. That the change of name would not prejudice public interest or would not be for a fraudulent purpose would not suffice to grant the petition if the reason for the change of name is itself not reasonable.[5] Petitioner then filed this Petition for Review on Certiorari (Under Rule 45) arguing that the trial court has decided a question of substance not theretofore determined by the Court, that is: whether or not dropping the middle name of a minor child is contrary to Article 174[7] of the Family Code. Petitioner contends that [W]ith globalization and mixed marriages, there is a need for the Supreme Court to rule on the matter of dropping of family name for a child to adjust to his new environment, for consistency and harmony among siblings, taking into consideration the best interest of the child.[8] It is argued that convenience of the child is a valid reason for changing the name as long as it will not prejudice the State and others. Petitioner points out that the middle name Carulasan will cause him undue embarrassment and the difficulty in writing or pronouncing it will be an obstacle to his social acceptance and integration in the
[6]

Singaporean community. Petitioner also alleges that it is error for the trial court to have denied the petition for change of name until he had reached the age of majority for him to decide the name to use, contrary to previous cases[9] decided by this Court that allowed a minor to petition for change of name.[10] The Court required the Office of the Solicitor General (OSG) to comment on the petition. The OSG filed its Comment[11] positing that the trial court correctly denied the petition for change of name. The OSG argues that under Article 174 of the Family Code, legitimate children have the right to bear the surnames of their father and mother, and such right cannot be denied by the mere expedient of dropping the same. According to the OSG, there is also no showing that the dropping of the middle name Carulasan is in the best interest of petitioner, since mere convenience is not sufficient to support a petition for change of name and/or cancellation of entry.[12] The OSG also adds that the petitioner has not shown any compelling reason to justify the change of name or the dropping of the middle name, for that matter. Petitioners allegation that the continued use of the middle name may result in confusion and difficulty is allegedly more imaginary than real. The OSG reiterates its argument raised before the trial court that the dropping of the childs middle name could only trigger much deeper inquiries regarding the true parentage of petitioner. Hence, while petitioner Julian has a sister named Jasmine Wei Wang, there is no confusion since both use the surname of their father, Wang. Even assuming that it is customary in Singapore to drop the middle name, it has also not been shown that the use of such middle name is actually proscribed by Singaporean law.[13] We affirm the decision of the trial court. The petition should be denied. The Court has had occasion to express the view that the State has an interest in the names borne by individuals and entities for purposes of identification, and that a change of name is a privilege and not a right, so that before a person can be authorized to change his name given him either in his certificate of birth or civil registry, he must show proper or reasonable cause, or any compelling reason which may justify such change. Otherwise, the request should be denied.[14] The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought.[15] To justify a request for change of name, petitioner must show not only some proper or compelling reason therefore but also that he will be prejudiced by the use of his true and official name. Among the grounds for change of name which have been held valid are: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to

erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.[16] In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available. What is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts.[17] The petition before us is unlike other petitions for change of name, as it does not simply seek to change the name of the minor petitioner and adopt another, but instead seeks to drop the middle name altogether. Decided cases in this jurisdiction involving petitions for change of name usually deal with requests for change of surname. There are only a handful of cases involving requests for change of the given name[18] and none on requests for changing or dropping of the middle name. Does the law allow one to drop the middle name from his registered name? We have to answer in the negative. A discussion on the legal significance of a persons name is relevant at this point. We quote, thus: For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him. Names are used merely as one method of indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of, the name is immaterial. The names of individuals usually have two parts: the given name or proper name, and the surname or family name. The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the surname to which the child is entitled is fixed by law.

A name is said to have the following characteristics: (1) It is absolute, intended to protect the individual from being confused with others. (2) It is obligatory in certain respects, for nobody can be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter vivos or mortis causa. (5) It is imprescriptible.[19] This citation does not make any reference to middle names, but this does not mean that middle names have no practical or legal significance. Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who may have the same given name and surname as he has. Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father.[20] The Family Code gives legitimate children the right to bear the surnames of the father and the mother,[21] while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the fathers surname.[22] Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mothers surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child. Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a given or proper name, a middle name, and a surname. Petitioner theorizes that it would be for his best interest to drop his middle name as this would help him to adjust more easily to and integrate himself into Singaporean society. In support, he cites Oshita v. Republic[23] and Calderon v. Republic,[24] which, however, are not apropos both. In Oshita, the petitioner therein, a legitimate daughter of a Filipino mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita, sought to change her name from Antonina B. Oshita to Antonina Bartolome. The Court granted her petition based on the following considerations: she had elected Philippine citizenship upon reaching the age of majority; her other siblings who had also elected Philippine citizenship have been using their mothers surname; she was

embarrassed to bear a Japanese surname there still being ill feeling against the Japanese due to the last World War; and there was no showing that the change of name was motivated by a fraudulent purpose or that it will prejudice public interest. In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado, an illegitimate minor child acting through her mother who filed the petition in her behalf, to change her name to Gertudes Josefina Calderon, taking the surname of her stepfather, Romeo C. Calderon, her mothers husband. The Court held that a petition for change of name of an infant should be granted where to do is clearly for the best interest of the child. The Court took into consideration the opportunity provided for the minor petitioner to eliminate the stigma of illegitimacy which she would carry if she continued to use the surname of her illegitimate father. The Court pronounced that justice dictates that every person be allowed to avail of any opportunity to improve his social standing as long as doing so he does not cause prejudice or injury to the interests of the State or of other people. Petitioner cites Alfon v. Republic,[25] in arguing that although Article 174 of the Family Code gives the legitimate child the right to use the surnames of the father and the mother, it is not mandatory such that the child could use only one family name, even the family name of the mother. In Alfon, the petitioner therein, the legitimate daughter of Filomeno Duterte and Estrella Alfon, sought to change her name from Maria Estrella Veronica Primitiva Duterte (her name as registered in the Local Civil Registry) to Estrella S. Alfon (the name she had been using since childhood, in her school records and in her voters registration). The trial court denied her petition but this Court overturned the denial, ruling that while Article 364 of the Civil Code states that she, as a legitimate child, should principally use the surname of her father, there is no legal obstacle for her to choose to use the surname of herm other to which she is entitled. In addition, the Court found that there was ample justification to grant her petition, i.e., to avoid confusion. Weighing petitioners reason of convenience for the change of his name against the standards set in the cases he cites to support his contention would show that his justification is amorphous, to say the least, and could not warrant favorable action on his petition. The factual antecedents and unique circumstances of the cited cases are not at all analogous to the case at bar. The instant case is clearly distinguishable from the cases ofOshita and Alfon, where the petitioners were already of age when they filed their petitions for change of name. Being of age, they are considered to have exercised their discretion and judgment, fully knowing the effects of their decision to change their surnames. It can also be unmistakably observed that the reason for the grant of the petitions for change of name in these two cases was the presence of reasonable or compelling grounds therefore. The Court, in Oshita, recognized the tangible animosity most Filipinos

had during that time against the Japanese as a result of World War II, in addition to the fact of therein petitioners election of Philippine citizenship. In Alfon, the Court granted the petition since the petitioner had been known since childhood by a name different from her registered name and she had not used her registered name in her school records and voters registration records; thus, denying the petition would only result to confusion. Calderon, on the other hand, granted the petition for change of name filed by a mother in behalf of her illegitimate minor child. Petitioner cites this case to buttress his argument that he does not have to reach the age of majority to petition for change of name. However, it is manifest in Calderon that the Court, in granting the petition for change of name, gave paramount consideration to the best interests of the minor petitioner therein. In the case at bar, the only reason advanced by petitioner for the dropping his middle name is convenience. However, how such change of name would make his integration into Singaporean society easier and convenient is not clearly established. That the continued use of his middle name would cause confusion and difficulty does not constitute proper and reasonable cause to drop it from his registered complete name. In addition, petitioner is only a minor. Considering the nebulous foundation on which his petition for change of name is based, it is best that the matter of change of his name be left to his judgment and discretion when he reaches the age of majority.[26] As he is of tender age, he may not yet understand and appreciate the value of the change of his name and granting of the same at this point may just prejudice him in his rights under our laws. WHEREFORE, in view of the foregoing, the Petition for Review on Certiorari is DENIED. SO ORDERED. Puno, (Chairman), JJ., concur. Austria-Martinez, Callejo, Sr., and Chico-Nazario,

Change of Name
FIRST DIVISION G.R. No. 157043 February 2, 2007

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. TRINIDAD R.A. CAPOTE, Respondent. DECISION CORONA, J.: This petition for review on certiorari1 seeks to set aside the Court of Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No. 66128, which affirmed the decision of the Regional Trial Court (RTC), Branch 23 of San Juan, Southern Leyte dated September 14, 1999 granting a petition for change of name. Respondent Trinidad R. A. Capote filed a petition for change of name of her ward from Giovanni N. Gallamaso toGiovanni Nadores on September 9, 1998. In Special Proceeding No. R-481,3 Capote as Giovannis guardian ad litem averred: xxx xxx xxx 1. [Respondent] is a Filipino citizen, of legal age, married, while minor GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years old and both are residents of San Juan, Southern Leyte where they can be served with summons and other court processes; 2. [Respondent] was appointed guardian [ad litem] of minor Giovanni N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459, dated [August 18, 1998] xxx xxx authorizing her to file in court a petition for change of name of said minor in accordance with the desire of his mother [who is residing and working abroad]; 3. Both [respondent] and minor have permanently resided in San Juan, Southern Leyte, Philippines for more than fifteen (15) years prior to the filing of this instant petition, the former since 1970 while the latter since his birth [in 1982];

4. The minor was left under the care of [respondent] since he was yet nine (9) years old up to the present; 5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9, 1982 [,] prior to the effectivity of the New Family Code and as such, his mother used the surname of the natural father despite the absence of marriage between them; and [Giovanni] has been known by that name since birth [as per his birth certificate registered at the Local Civil Register of San Juan, Southern Leyte]; 6. The father, Diosdado Gallamaso, from the time [Giovanni] was born and up to the present, failed to take up his responsibilities [to him] on matters of financial, physical, emotional and spiritual concerns. [Giovannis pleas] for attention along that line [fell] on deaf ears xxx xxx xxx; 7. [Giovanni] is now fully aware of how he stands with his father and he desires to have his surname changed to that of his mothers surname; 8. [Giovannis] mother might eventually petition [him] to join her in the United States and [his] continued use of the surname Gallamaso, the surname of his natural father, may complicate [his] status as natural child; and 9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI NADORES will be for the benefit of the minor. xxx xxx xxx4 Respondent prayed for an order directing the local civil registrar to effect the change of name on Giovannis birth certificate. Having found respondents petition sufficient in form and substance, the trial court gave due course to the petition.5 Publication of the petition in a newspaper of general circulation in the province of Southern Leyte once a week for three consecutive weeks was likewise ordered.6 The trial court also directed that the local civil registrar be notified and that the Office of the Solicitor General (OSG) be sent a copy of the petition and order.7 Since there was no opposition to the petition, respondent moved for leave of court to present her evidence ex parte before a court-appointed commissioner. The OSG, acting through the Provincial Prosecutor, did not object; hence, the lower court granted the motion.

After the reception of evidence, the trial court rendered a decision ordering the change of name from Giovanni N. Gallamaso to Giovanni Nadores.8 From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal with a lone assignment of error: the court a quo erred in granting the petition in a summary proceeding. Ruling that the proceedings were sufficiently adversarial in nature as required, the CA affirmed the RTC decision ordering the change of name.9 In this petition, the Republic contends that the CA erred in affirming the trial courts decision which granted the petition for change of name despite the nonjoinder of indispensable parties.10 Petitioner cites Republic of the Philippines v. Labrador11 and claims that the purported parents and all other persons who may be adversely affected by the childs change of name should have been made respondents to make the proceeding adversarial.12 We deny the petition. "The subject of rights must have a fixed symbol for individualization which serves to distinguish him from all others; this symbol is his name."13 Understandably, therefore, no person can change his name or surname without judicial authority.14 This is a reasonable requirement for those seeking such change because a persons name necessarily affects his identity, interests and interactions. The State must be involved in the process and decision to change the name of any of its citizens. The Rules of Court provides the requirements and procedure for change of name. Here, the appropriate remedy is covered by Rule 103,15 a separate and distinct proceeding from Rule 108 on mere cancellation and correction of entries in the civil registry (usually dealing only with innocuous or clerical errors thereon).16 The issue of non-joinder of alleged indispensable parties in the action before the court a quo is intertwined with the nature of the proceedings there. The point is whether the proceedings were sufficiently adversarial. Summary proceedings do not extensively address the issues of a case since the reason for their conduct is expediency. This, according to petitioner, is not sufficient to deal with substantial or contentious issues allegedly resulting from a change of name, meaning, legitimacy as well as successional rights.17 Such issues are ventilated only in adversarial proceedings wherein all interested parties are impleaded and due process is observed.18

When Giovanni was born in 1982 (prior to the enactment and effectivity of the Family Code of the Philippines),19the pertinent provision of the Civil Code then as regards his use of a surname, read: Art. 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. (emphasis ours) Based on this provision, Giovanni should have carried his mothers surname from birth. The records do not reveal any act or intention on the part of Giovannis putative father to actually recognize him. Meanwhile, according to the Family Code which repealed, among others, Article 366 of the Civil Code: Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. xxx xxx xxx (emphasis ours) Our ruling in the recent case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang20 is enlightening: Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the fathers surname. Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged child.1awphi1.net21 The foregoing discussion establishes the significant connection of a persons name to his identity, his status in relation to his parents and his successional rights as a legitimate or illegitimate child. For sure, these matters should not be taken lightly as to deprive those who may, in any way, be affected by the right to present evidence in favor of or against such change.

The law and facts obtaining here favor Giovannis petition. Giovanni availed of the proper remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied with all the procedural requirements. After hearing, the trial court found (and the appellate court affirmed) that the evidence presented during the hearing of Giovannis petition sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will facilitate his mothers intended petition to have him join her in the United States. This Court will not stand in the way of the reunification of mother and son. Moreover, it is noteworthy that the cases cited by petitioner22 in support of its position deal with cancellation or correction of entries in the civil registry, a proceeding separate and distinct from the special proceedings for change of name. Those cases deal with the application and interpretation of Rule 108 of the Rules of Court while this case was correctly filed under Rule 103. Thus, the cases cited by petitioner are irrelevant and have no bearing on respondents case. While the OSG is correct in its stance that the proceedings for change of name should be adversarial, the OSG cannot void the proceedings in the trial court on account of its own failure to participate therein. As the CA correctly ruled: The OSG is correct in stating that a petition for change of name must be heard in an adversarial proceeding. Unlike petitions for the cancellation or correction of clerical errors in entries in the civil registry under Rule 108 of the Rules of Court, a petition for change of name under Rule 103 cannot be decided through a summary proceeding. There is no doubt that this petition does not fall under Rule 108 for it is not alleged that the entry in the civil registry suffers from clerical or typographical errors. The relief sought clearly goes beyond correcting erroneous entries in the civil registry, although by granting the petition, the result is the same in that a corresponding change in the entry is also required to reflect the change in name. In this regard, [appellee] Capote complied with the requirement for an adversarial proceeding by posting in a newspaper of general circulation notice of the filing of the petition. The lower court also furnished the OSG a copy thereof. Despite the notice, no one came forward to oppose the petition including the OSG. The fact that no one opposed the petition did not deprive the court of its jurisdiction to hear the same nor does it make the proceeding less adversarial in nature. The lower court is still expected to exercise its judgment to determine whether the petition is meritorious or not and not merely accept as true the arguments propounded. Considering that the OSG neither opposed the petition nor the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain

that the proceedings in the lower court were not adversarial enough.23 (emphasis supplied) A proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it.24 Respondent gave notice of the petition through publication as required by the rules.25 With this, all interested parties were deemed notified and the whole world considered bound by the judgment therein. In addition, the trial court gave due notice to the OSG by serving a copy of the petition on it. Thus, all the requirements to make a proceeding adversarial were satisfied when all interested parties, including petitioner as represented by the OSG, were afforded the opportunity to contest the petition. WHEREFORE, the petition is hereby DENIED and the January 13, 2003 decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED. SO ORDERED.

Rule 108 Cancellation or Correction of Entries in the Civil Registry

EN BANC G.R. No. 138496 February 23, 2004

HUBERT TAN CO and ARLENE TAN CO, petitioners, vs. THE CIVIL REGISTER OF MANILA and any person having or claiming an interest under the entry whose cancellation or correction is sought, respondent. DECISION CALLEJO, SR., J.: Before the Court is the petition for review on certiorari filed by Hubert Tan Co and Arlene Tan Co seeking to reverse and set aside the Order1 dated September 23, 1998 of the Regional Trial Court of Manila, Branch 26, dismissing their petition for correction of entries in the Civil Register. Likewise sought to be reversed and set aside is the Order dated April 27, 1999 of the court a quo denying the petitioners motion for reconsideration of the said order. The factual antecedents are as follows: Hubert Tan Co was born on March 23, 1974. His sister, Arlene Tan Co, was born on May 19, 1975. In their respective certificates of birth, it is stated that their parents Co Boon Peng and Lourdes Vihong K. Tan are Chinese citizens. Thereafter, Co Boon Peng filed an application for his naturalization as a citizen of the Philippines with the Special Committee on Naturalization under Letter of Instruction (LOI) No. 270. His application was granted and he was conferred Philippine citizenship under Presidential Decree (P.D.) No. 1055. The Chairman of the Committee issued on February 15, 1977 Certificate of Naturalization No. 020778 in his favor. Thus, on February 15, 1977, Co Boon Peng took his oath as a Philippine citizen. In the meantime, Hubert and Arlene Co finished college and earned their respective degrees in architecture and accountancy in Philippine schools. On August 27, 1998, they filed with the Regional Trial Court of Manila a petition under Rule 108 of the Rules of Court for correction of entries in their certificates

of birth. The case was docketed as Sp. Proc. Case No. 98-90470. They alleged, inter alia, in their petition that: (3) They were born in the Philippines and the legitimate children of CO BOON PENG; (4) Co Boon Peng, who is formerly a citizen of China, was conferred Philippine citizenship by naturalization under Presidential Decree No. 1055 and had taken his oath of allegiance to the Republic of the Philippines on 15th February, 1977 in the City of Manila; (5) At the time of birth of [the] petitioners, their father CO BOON PENG was still a Chinese citizen that is why entry in their respective birth certificates as to their fathers citizenship was Chinese; (6) Upon granting of Philippine citizenship by naturalization to Co Boon Peng in 1977, [the] petitioners who were born in the Philippines and still minors at that time became Filipino citizens through the derivative mode of naturalization. Our Naturalization Law, specifically Section 15 of Commonwealth Act No. 473, as amended by Commonwealth Act No. 535 which provides: "Minor children of persons naturalized under this law who have been born in the Philippines shall be considered citizens thereof;" (7) The naturalization of petitioners father in 1977 was an act or event affecting and concerning their civil status that must be recorded in the Civil Register, Article 407 of the New Civil Code of the Philippines which provides: "Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the Civil Register."2 The petitioners prayed that, after due proceedings, the trial court render judgment correcting and changing the entries in their respective birth certificates as to the citizenship of their father Co Boon Peng, from "Chinese" to "Filipino."3 On September 23, 1998, the court a quo issued an order dismissing the petition outright on the ground that the petition was insufficient, solely because the petitioners father Co Boon Peng applied for naturalization under LOI No. 270 and was conferred Philippine citizenship by naturalization under PD No. 1055 and not under Commonwealth Act (CA) No. 473. 4

The petitioners sought the reconsideration of the assailed order arguing that LOI No. 270 and CA No. 473 were designed to grant citizenship to deserving aliens; hence, should be construed together. They averred that the benefit of Section 15 of CA No. 473 should also be granted to the petitioners whose father was granted naturalization under LOI No. 270. However, the RTC issued an Order on April 27, 1999, denying their motion for reconsideration for the following reasons: (a) although Commonwealth Act No. 473 and Letter of Instructions No. 270 are statutes relating to the same subject matter, they do not provide the same beneficial effects with respect to the minor children of the applicant. Section 15 of CA No. 473 expressly provides for the effect of the naturalization on the wife and children of the applicant while LOI No. 270 does not have any proviso to that effect; (b) LOI No. 270 clearly refers to qualified individuals only. The rules and regulations promulgated by the Committee established pursuant to LOI No. 270 and the amendments issued by then President Ferdinand E. Marcos (LOI Nos. 292 and 491) clearly speak of qualified individuals only; no proviso therein referred to its effect on the wife and children of the individual; (c) Section 15 of CA No. 473 should not be deemed and incorporated in and applied to LOI No. 270; and, (d) the application of the so-called "pari materia" rule of construction made by the petitioners is misplaced, as what should be applied in the instant case is the rule on strict construction of legislative grants or franchise. The court a quo stressed that legislative grants, whether they be of property, rights or privileges, whether granted to corporations or individuals, must be strictly construed against the grantee and in favor of the grantor. Aggrieved, the petitioners now come to this Court assailing the court a quos Order dismissing their petition outright and its Order denying their motion for the reconsideration of the same. The petitioners contend that the trial court erred in holding that their petition was insufficient. They assert that contrary to the ruling of the trial court, they are qualified to claim the benefit of Section 15 of CA No. 473, which provides that minor children of persons naturalized thereunder who were born in the Philippines shall likewise be considered citizens thereof. They contend that although LOI No. 270, under which the petitioners father was naturalized does not contain a provision similar to Section 15 of CA No. 473, the latter provision should be deemed incorporated therein. They point out that both laws have the same purpose and objective, i.e., to grant Philippine citizenship to qualified aliens permanently residing in the Philippines. The petitioners invoke the rule that statutes in pari materia are to be read together.5 They posit that CA No. 473 and LOI No. 270 should be harmonized and reconciled since "all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, and should be construed together as they constitute one law."6

The petitioners maintain that the letter and spirit of LOI No. 270 was to grant the privilege of Philippine citizenship not only to qualified aliens but also to their minor children who were born in the country. They assert that this is apparent from paragraph 4-A thereof, which extends the option to adopt Filipino names not only to qualified applicants for naturalization but also to their wives and minor children. They submit that when then President Ferdinand E. Marcos enacted LOI No. 270, he must be presumed to have been acquainted with the provisions of CA No. 473 and did not intend to abrogate and discontinue the beneficial effects of Section 15 thereof; otherwise, Pres. Marcos would have expressly repealed Section 15 of CA No. 473 in relation to LOI No. 270. Thus, according to the petitioners, the naturalization of their father during their minority is an act or event affecting their civil status that must be recorded in the Civil Register pursuant to Article 407 of the Civil Code. In his Comment, the Solicitor General contends that the court a quo did not err in issuing the assailed orders. Contrary to the petitioners theory, LOI No. 270 and CA No. 473 are separate and distinct laws; therefore, are not in pari materia. He points out that although LOI No. 270 and CA No. 473 both govern the naturalization of aliens, CA No. 473 deals with the requirements and procedure for naturalization by judicial decree; LOI No. 270, on the other hand, deals with the requirements and procedure for naturalization by presidential decree. The Solicitor General further asserts that the petitioners contention that the naturalization of their father is an event affecting and concerning their civil status envisaged in Article 407 of the Civil Code has no legal basis. The correction sought and allowed under Rule 108 of the Rules of Court must be one that reflects a fact existing before or at the time of birth. In the petitioners case, the naturalization of their father in 1977 took place long after they were born. Moreover, according to the Solicitor General, under LOI No. 270 and its amendatory laws, the naturalization of a father did not ipso facto render his children also naturalized. The petitioners thus cannot invoke Article 407 of the Civil Code and Rule 108 of the Rules of Court to avoid strict compliance with the naturalization laws. The petition is meritorious. The rule on statutory construction provides that: Statutes in pari materia should be read and construed together because enactments of the same legislature on the same subject are supposed to form part of one uniform system; later statutes are supplementary or complimentary (sic) to the earlier enactments and in the passage of its acts the legislature is

supposed to have in mind the existing legislations on the subject and to have enacted its new act with reference thereto.7 Statutes in pari materia should be construed together to attain the purpose of an expressed national policy, thus: On the presumption that whenever the legislature enacts a provision it has in mind the previous statutes relating to the same subject matter, it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they all should be construed together. Provisions in an act which are omitted in another act relating to the same subject matter will be applied in a proceeding under the other act, when not inconsistent with its purpose. Prior statutes relating to the same subject matter are to be compared with the new provisions; and if possible by reasonable construction, both are to be construed that effect is given to every provision of each. Statutes in pari materia, although in apparent conflict, are so far as reasonably possible construed to be in harmony with each other.8 LOI No. 270 and CA No. 473 are laws governing the naturalization of qualified aliens residing in the Philippines. While they provide for different procedures, CA No. 473 governs naturalization by judicial decree while LOI No. 270 governs naturalization by presidential decree; both statutes have the same purpose and objective: to enable aliens permanently residing in the Philippines, who, having demonstrated and developed love for and loyalty to the Philippines, as well as affinity to the culture, tradition and ideals of the Filipino people, and contributed to the economic, social and cultural development of our country, to be integrated into the national fabric by being granted Filipino citizenship. Under the LOI, the procedure for the acquisition of citizenship by naturalization is more expeditious, less cumbersome and less expensive. The sooner qualified aliens are naturalized, the faster they are able to integrate themselves into the national fabric, and are thus able to contribute to the cultural, social and political wellbeing of the country and its people. Clearly, LOI No. 270 and CA No. 473 are, as the petitioners correctly posit, statutes in pari materia. Absent any express repeal of Section 15 of CA No. 473 in LOI No. 270, the said provision should be read into the latter law as an integral part thereof, not being inconsistent with its purpose. Thus, Section 15 of CA No. 473,9 which extends the grant of Philippine citizenship to the minor children of those naturalized thereunder, should be similarly applied to the minor children of those naturalized under LOI No. 270, like the petitioners in this case. It is not enough that the petitioners adduce in evidence the certificate of naturalization of their father, Co Boon Peng, and of his oath of allegiance to the

Republic of the Philippines, to entitle them to Philippine citizenship. They are likewise mandated to prove the following material allegations in their petition: (a) that they are the legitimate children of Co Boon Peng; (b) that they were born in the Philippines; and, (c) that they were still minors when Co Boon Peng was naturalized as a Filipino citizen; The petitioners recourse to Rule 108 of the Rules of Court, as amended, is appropriate. Under Article 412 of the New Civil Code, no entry in a civil register shall be changed or corrected without a judicial order. The law does not provide for a specific procedure of law to be followed. But the Court approved Rule 108 of the Rules of Court to provide for a procedure to implement the law.10 The entries envisaged in Article 412 of the New Civil Code are those provided in Articles 407 and 408 of the New Civil Code which reads: Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. Art. 408. The following shall be entered in the civil register: (1) Births; (2) Marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. Specific matters covered by the said provision include not only status but also nationality.11 The acts, events or factual errors envisaged in Article 407 of the New Civil Code include even those that occur after the birth of the petitioner. However, in such cases, the entries in the certificates of birth will not be corrected or changed. The decision of the court granting the petition shall be annotated in the certificates of birth and shall form part of the civil register in the Office of the Local Civil Registrar.12 To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute. Article 412 of the New Civil Code does not qualify as to the kind of entry to be changed or corrected or distinguished on the basis of the effect that the correction or change may be.13 Such entries include not only those clerical in nature but also substantial errors. After all, the role of the Court under Rule 108 of the Rules of Court is to ascertain the truths about the facts recorded therein.14

The proceedings in Rule 108 of the Rules of Court are summary if the entries in the civil register sought to be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or changed are substantial: i.e., the status and nationality of the petitioners or the citizenship of their parents,15 the proceedings are adversarial in nature as defined by this Court in Republic v. Valencia, thus: One having opposing parties; contested, as distinguished from an ex parte application, one of which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it. Excludes an adoption proceeding.16 In such a proceeding, the parties to be impleaded as respective defendants are (a) the local civil registrar; and, (b) all persons who have claims any interest which would be affected thereby.17 In this case, the petitioners alleged in their petition that they are the legitimate children of Co Boon Peng, who was naturalized as a Filipino citizen, but that their certificates of birth still indicate that he is a Chinese national. In view of their fathers naturalization, they pray that the entries in their certificates of birth relating to the citizenship of their father be changed from "Chinese" to "Filipino." The petitioners recourse to the procedure in Rule 108 of the Rules of Court, as amended, being appropriate, it behooved the trial court to do its duty under Section 4, Rule 108 of the Rules of Court, namely: Sec. 4. Notice and Publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the person named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. After hearing, the court shall issue an order either dismissing the petition or issue an order granting the same. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in the certificates of birth of the petitioners. The judgment of the court shall form part of the records of the local civil register.18 In this case, the trial court dismissed the petition outright in violation of Rule 108 of the Rules of Court. Patently, then, the trial court erred in so doing. IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional Trial Court of Manila, Branch 26, are SET ASIDE and

REVERSED. The trial court is DIRECTED to reinstate the petition in Special Proceedings NO. 98-90470 in the court docket, and ORDERED to continue with the proceedings in the said case under Rule 108 of the Rules of Court, as amended. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio- Morales, Azcuna, and Tinga, JJ., concur.

Cancellation or Correction of Entries in the Civil Registry

SECOND DIVISION G.R. No. 118387 October 11, 2001

MARCELO LEE, ALBINA LEE-YOUNG, MARIANO LEE, PABLO LEE, HELEN LEE, CATALINO K. LEE, EUSEBIO LEE, EMMA LEE, and TIU CHUAN, petitioners, vs. COURT OF APPEALS and HON. LORENZO B. VENERACION and HON. JAIME T. HAMOY, in their capacities as Presiding Judge of Branch 47, Regional Trial Court of Manila and Branch 130, Regional Trial Court of Kalookan City, respectively and RITA K. LEE, LEONCIO LEE TEK SHENG in their personal capacities and ROSA K. LEE-VANDERLEK, MELODY K. LEECHIN, LUCIA K. LEE TEK SHENG, JULIAN K. LEE, HENRY K. LEE, MARTIN K. LEE, VICTORIANO K. LEE, NATIVIDAD K. LEE-MIGUEL, and THOMAS K. LEE, represented by RITA K. LEE, respondents. DE LEON, JR., J.: This Petition for Review on Certiorari, with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, seeks the reversal of the Decision1 of the Court of Appeals dated October 28, 1994 in CAG.R. SP NO. 317862 . The assailed decision of the Court of Appeals upheld the Orders issued by respondents Judges Hon. Lorenzo B. Veneracion3 and Hon. Jaime T. Hamoy4 taking cognizance of two (2) separate petitions filed by private respondents before their respective salas for the cancellation and/or correction of entries in the records of birth of petitioners pursuant to Rule 108 of the Revised Rules of Court. This is a story of two (2) sets of children sired by one and the same man but begotten of two (2) different mothers. One set, the private respondents herein, are the children of Lee Tek Sheng and his lawful wife, Keh Shiok Cheng. The other set, the petitioners herein, are allegedly children of Lee Tek Sheng and his concubine, Tiu Chuan. Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-Vanderlek, Melody K. LeeChin, Lucia K. Lee Tek Sheng-Ong, Julian K. Lee, Henry K. Lee, Martin K. Lee, Victoriano K. Lee, Natividad K. Lee-Miguel and Thomas K. Lee (hereinafter referred to as private respondents) filed two (2) separate petitions for the cancellation and/or correction of entries in the records of birth of Marcelo Lee,

Albina Lee-Young, Mariano Lee, Pablo Lee, Helen Lee, Catalino K. Lee, Eusebio Lee, and Emma Lee (hereinafter referred to as petitioners). On December 2, 1992, the petition against all petitioners, with the exception of Emma Lee, was filed before the Regional Trial Court (RTC) of Manila and docketed as SP. PROC. NO. 92-636925 and later assigned to Branch 47 presided over by respondent Judge Lorenzo B. Veneracion. On February 3, 1993, a similar petition against Emma Lee was filed before the RTC of Kalookan and docketed as SP. PROC. NO. C-16746 and assigned to the sala of respondent Judge Jaime T. Hamoy of Branch 130. Both petitions sought to cancel and/or correct the false and erroneous entries in all pertinent records of birth of petitioners by deleting and/or canceling therein the name of "Keh Shiok Cheng" as their mother, and by substituting the same with the name "Tiu Chuan", who is allegedly the petitioners' true birth mother. The private respondents alleged in their petitions before the trial courts that they are the legitimate children of spouses Lee Tek Sheng and Keh Shiok Cheng who were legally married in China sometime in 1931. Except for Rita K. Lee who was born and raised in China, private respondents herein were all born and raised in the Philippines. Sometime in October, 1948, Lee Tek Sheng, facilitated the arrival in the Philippines from China of a young girl named Tiu Chuan. She was introduced by Lee Tek Sheng to his family as their new housemaid but far from becoming their housemaid, Tiu Chuan immediately became Lee Tek Sheng's mistress. As a result of their illicit relations, Tiu Chuan gave birth to petitioners. Unknown to Keh Shiok Cheng and private respondents, every time Tiu Chuan gave birth to each of the petitioners, their common father, Lee Tek Sheng, falsified the entries in the records of birth of petitioners by making it appear that petitioners' mother was Keh Shiok Cheng. Since the birth of petitioners, it was Tiu Chuan who gave maternal care and guidance to the petitioners. They all lived in the same compound Keh Shiok Cheng and private respondents were residing in. All was well, therefore, before private respondents' discovery of the dishonesty and fraud perpetrated by their father, Lee Tek Sheng. The tides turned after Keh Shiok Cheng's demise on May 9, 1989. Lee Tek Sheng insisted that the names of all his children, including those of petitioners', be included in the obituary notice of Keh Shiok Cheng's death that was to be published in the newspapers. It was this seemingly irrational act that piqued private respondents' curiosity, if not suspicion.7

Acting on their suspicion, the private respondents requested the National Bureau of Investigation (NBI) to conduct an investigation into the matter. After investigation and verification of all pertinent records, the NBI prepared a report that pointed out, among others, the false entries in the records of birth of petitioners, specifically the following. 1. As per Birth Certificate MARCELO LEE (Annex F-1), their father, LEE TEK SHENG made it appear that he is the 12th child of Mrs. KEH SHIOK CHENG, but upon investigation, it was found out that her Hospital Records, the mother who gave birth to MARCELO LEE had given birth for the 1st time, as per diagnosis of the attending physician, Dr. R. LIM, it was "GRAVIDA I, PARA I" which means "first pregnancy, first live birth delivery" (refer to: MASTER PATIENT'S RECORDS SUMMARY Annex I). Also, the age of the mother when she gave birth to MARCELO LEE as per record was only 17 years old, when in fact and in truth, KEH SHIOK CHENG's age was then already 38 years old. The address used by their father in the Master Patient record was also the same as the Birth Certificate of MARCELO LEE (2425 Rizal Avenue, Manila). The name of MARCELO LEE was recorded under Hospital No. 221768, page 73. 2. As per Birth Certificate of ALBINA LEE (Annex F-2), it was made to appear that ALBINA LEE was the third child which is without any rationality, because the 3rd child of KEH SHIOK CHENG is MELODY LEE TEK SHENG (Annex E-2). Note also, that the age of the mother as per Hospital Records jump (sic) from 17 to 22 years old, but the only age gap of MARCELO LEE and ALBINA LEE is only 2 years. 3. As per Birth Certificate of MARIANO LEE (Annex F-3), it was made to appear that MARIANO LEE was the 5th child, but the truth is, KEH SHIOK CHENG's 5th child is LUCIA LEE TEK SHENG (Annex E-4). As per Hospital Record, the age of KEH SHIOK CHENG was only 23 years old, while the actual age of KEH SHIOK CHENG, was then already 40 years old. 4. As per Birth Certificate of PABLO LEE (Annex F-4), it was made to appear that PABLO LEE was the 16th child of KEH SHIOK CHENG which is impossible to be true, considering the fact that KEH SHIOK CHENG have stopped conceiving after her 11th child. Also as per Hospital Record, the age of the mother was omitted in the records. If PABLO LEE is the 16th child of KEH SHIOK CHENG, it would only mean that she have (sic) given birth to her first born child at the age of 8 to 9 years, which is impossible to be true.

Based on the birth record of MARIANO LEE in 1953, the recorded age of KEH SHIOK CHENG was 23 years old. Two years after PABLO LEE was born in 1955, the difference is only 2 years, so it is impossible for PABLO LEE to be the 16th child of KEH SHIOK CHENG, as it will only mean that she have (sic) given birth at that impossible age. 5. As per Birth Certificate of HELEN LEE (Annex F-5), it was made to appear that she is the 6th child of KEH SHIOK CHENG, but as per Birth Certificate of JULIAN LEE (Annex E-5), he is the true 6th child of KEH SHIOK CHENG. Per Hospital Record, KEH SHIOK CHENG is only 28 years old, while KEH SHIOK CHENG'S true age at that time was 45 years old. 6. EMMA LEE has no record in the hospital because, as per complainant's allegation, she was born at their house, and was later admitted at Chinese General Hospital. 7. As per Birth Certificate of CATALINO LEE (Annex F-7), it was made to appear that he is the 14th child of KEH SHIOK CHENG, and that the age of KEH SHIOK CHENG a.k.a. Mrs. LEE TEK SHENG, jumped from 28 years old at the birth of HELEN LEE on 23 August 1957 to 38 years old at the birth of CATALINO LEE on 22 April 1959. 8. As per Birth Certificate of EUSEBIO LEE, the alleged last son of KEH SHIOK CHENG, the age of the mother is 48 years old. However, as per Hospital Record, the age of Mrs. LEE TEK SHENG, then was only 39 years old. Considering the fact, that at the time of MARCELO's birth on 11 May 1950. KEH SHIOK CHENG's age is 38 years old and at the time of EUSEBIO's birth, she is already 48 years old, it is already impossible that she could have given birth to 8 children in a span of only 10 years at her age. As per diagnosis, the alleged mother registered on EUSEBIO's birth indicate that she had undergone CEASARIAN SECTION, which Dr. RITA K. LEE said is not true. In view of the foregoing facts, the NBI concluded that: 10. In conclusion, as per Chinese General Hospital Patients Records, it is very obvious that the mother of these 8 children is certainly not KEH SHIOK CHENG, but a much younger woman, most probably TIU CHUAN. Upon further evaluation and analysis by these Agents, LEE TEK SHENG, is in a quandary in fixing the age of KEH SHIOK CHENG possibly to conform with his grand design of making his 8 children as their own legitimate children, consequently

elevating the status of his 2nd family and secure their future. The doctor lamented that this complaint would not have been necessary had not the father and his 2nd family kept on insisting that the 8 children are the legitimate children of KEH SHIOK CHENG.8 It was this report that prompted private respondents to file the petitions for cancellation and/or correction of entries in petitioners' records of birth with the lower courts. The petitioners filed a motion to dismiss both petitions SP. PROC. NO. 9263692 and SP. PROC. NO. C-1674 on the grounds that: (1) resort to Rule 108 is improper where the ultimate objective is to assail the legitimacy and filiation of petitioners; (2) the petition, which is essentially an action to impugn legitimacy was filed prematurely; and (3) the action to impugn has already prescribed.9 On February 12, 1993, respondent Judge Veneracion denied the motion to dismiss SP. PROC. NO. 92-63692 for failure of the herein petitioners (defendants in the lower court) to appear at the hearing of the said motion.10 Then on February 17, 1993, Judge Veneracion issued an Order, the pertinent portion of which, reads as follows: Finding the petition to be sufficient in form and substance, the same is hereby given due course. Let this petition be set for hearing on March 29, 1993 at 8:30 in the morning before this Court located at the 5th Floor of the City Hall of Manila. Notice is hereby given that anyone who has any objection to the petition should file on or before the date of hearing his opposition thereto with a statement of the grounds therefor. Let a copy of this Order be published, at the expense of the petitioners, once a week for three (3) consecutive weeks in a newspaper of general circulation in the Philippines. Let copies of the verified petition with its annexes and of this Order be served upon the Office of the Solicitor General, and the respondents, and be posted on the Bulletin Board of this Court, also at the expense of the petitioners. SO ORDERED.11 On the other hand, respondent Judge Hamoy issued an Order dated April 15, 1993 taking cognizance of SP. PROC. No. C-1674, to wit:

It appearing from the documentary evidence presented and marked by the petitioners that the Order of the Court setting the case for hearing was published in "Media Update" once a week for three (3) consecutive weeks, that is on February 20, 27, and March 6, 1993 as evidenced by the Affidavit of Publication and the clippings attached to the affidavit, and by the copies of the "Media Update" published on the aforementioned dates; further, copy of the order setting the case for hearing together with copy of the petition had been served upon the Solicitor General, City Prosecutor of Kalookan City, Civil Registrar of Kalookan City and the private respondents, the Court holds that the petitioners have complied with the jurisdictional requirements for the Court to take cognizance of this case. xxx xxx xxx

SO ORDERED.12 Petitioners' attempts at seeking a reconsideration of the above-mentioned orders of Judge Veneracion and Judge Hamoy failed, hence their recourse to the Court of Appeals via a Petition for Certiorari and Prohibition with Application for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction. Petitioners averred that respondents judges had acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed orders allowing the petitions for the cancellation and/or correction of entries in petitioners' records of birth to prosper in the lower courts. In their petition before the Court of Appeals, the petitioners raised the following arguments: (1) Rule 108 is inappropriate for impugning the legitimacy and filiation of children; (2) Respondents judges are sanctioning a collateral attack against the filiation and legitimacy of children; (3) Respondents judges are allowing private respondents to impugn the legitimacy and filiation of their siblings despite the fact that their undisputed common father is still alive; (4) Respondents judges are entertaining petitions which are already time-barred; and (5) The petitions below are part of a forum-shopping spree.13 Finding no merit in petitioners' arguments, the Court of Appeals dismissed their petition in a Decision dated October 28, 1994.14 Petitioners' Motion for Reconsideration of the said decision was also denied by the Court of Appeals in a Resolution dated December 19, 1994.15 Hence, this petition. 1. Petitioners contend that resort to Rule 108 of the Revised Rules of Court is improper since private respondents seek to have the entry for the name of

petitioners' mother changed from "Keh Shiok Cheng" to "Tiu Chuan" who is a completely different person. What private respondents therefore seek is not merely a correction in name but a declaration that petitioners were not born of Lee Tek Sheng's legitimate wife, Keh Shiok Cheng, but of his mistress, Tiu Chuan, in effect a "bastardization of petitioners."16 Petitioners thus label private respondents' suits before the lower courts as a collateral attack against their legitimacy in the guise of a Rule 108 proceeding. Debunking petitioners' above contention, the Court of Appeals observed: xxx xxx xxx

As correctly pointed out by the private respondents in their comment . . . , the proceedings are simply aimed at establishing a particular fact, status and/or right. Stated differently, the thrust of said proceedings was to establish the factual truth regarding the occurrence of certain events which created or affected the status of persons and/or otherwise deprived said persons of rights.17 xxx xxx xxx

It is precisely the province of a special proceeding such as the one outlined under Rule 108 of the Revised Rules of Court to establish the status or right of a party, or a particular fact.18 The petitions filed by private respondents for the correction of entries in the petitioners' records of birth were intended to establish that for physical and/or biological reasons it was impossible for Keh Shiok Cheng to have conceived and given birth to the petitioners as shown in their birth records. Contrary to petitioners' contention that the petitions before the lower courts were actually actions to impugn legitimacy, the prayer therein is not to declare that petitioners are illegitimate children of Keh Shiok Cheng, but to establish that the former are not the latter's children. There is nothing to impugn as there is no blood relation at all between Keh Shiok Cheng and petitioners.19 Further sanctioning private respondents' resort to Rule 108, the Court of Appeals adverted to our ruling in the leading case of Republic vs. Valencia20 where we affirmed the decision of Branch XI of the then Court of First Instance (CFI) of Cebu City ordering the correction in the nationality and civil status of petitioner's minor children as stated in their records of birth from "Chinese" to "Filipino", and "legitimate" to "illegitimate", respectively. Although recognizing that the changes or corrections sought to be effected are not mere clerical errors of a harmless or innocuous nature, this Court, sitting en banc, held therein that even substantial errors in a civil register may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary

proceeding.21 In the said case, we also laid down the rule that a proceeding for correction and/or cancellation of entries in the civil register under Rule 108 ceases to be summary in nature and takes on the characteristics of an appropriate adversary proceeding when all the procedural requirements under Rule 108 are complied with. Thus we held: "Provided the trial court has conducted proceedings where all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party's case, and where the evidence has been thoroughly weighed and considered, the suit or proceeding is 'appropriate.' The pertinent sections of rule 108 provide: 'SECTION 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.' 'SECTION 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once in a week for three (3) consecutive weeks in a newspaper of general circulation in the province.' 'SECTION 5. Opposition. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.' "Thus, the persons who must be made parties to a proceeding concerning the cancellation or correction of an entry in the civil register are (1) the civil registrar, and (2) all persons who have or claim any interest which would be affected thereby. Upon the filing of the petition, it becomes the duty of the court to (1) issue an order fixing the time and place for the hearing of the petition, and (2) cause the order for hearing to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. The following are likewise entitled to oppose the petition: (1) the civil registrar, and (2) any person having or claiming any interest under the entry whose cancellation or correction is sought.

"If all these procedural requirements have been followed, a petition for correction and/or cancellation of entries in the record of birth even if filed and conducted under Rule 108 of the Revised Rules of Court can no longer be described as "summary". There can be no doubt that when an opposition to the petition is filed either by the Civil Registrar or any person having or claiming any interest in the entries sought to be cancelled and/or corrected and the opposition is actively prosecuted, the proceedings thereon become adversary proceedings."22 (Emphasis supplied.) To the mind of the Court of Appeals, the proceedings taken in both petitions for cancellation and/or correction of entries in the records of birth of petitioners in the lower courts are appropriate adversary proceedings. We agree. As correctly observed by the Court of Appeals: In the instant case, a petition for cancellation and/or correction of entries of birth was filed by private respondents and pursuant to the order of the RTC-Manila, dated February 17, 1993, a copy of the order setting the case for hearing was ordered published once a week for three (3) consecutive weeks in a newspaper of general circulation in the Philippines. In the RTCKalookan, there was an actual publication of the order setting the case for hearing in "Media Update" once a week for three (3) consecutive weeks. In both cases notices of the orders were ordered served upon the Solicitor General, the Civil Registrars of Manila and Kalookan and upon the petitioners herein. Both orders set the case for hearing and directed the Civil Registrars and the other respondents in the case below to file their oppositions to the said petitions. A motion to dismiss was consequently filed by herein petitioners Marcelo, Mariano, Pablo, Helen, Catalino and Eusebio, all surnamed Lee, and Albina Lee-Young in the RTC-Manila, and an opposition was filed by Emma Lee in the RTC-Kalookan. In view of the foregoing, we hold that the petitions filed by the private respondents in the courts below by way of a special proceeding cancellation and/or correction of entries in the civil registers with the requisite parties, notices and publications could very well be regarded as that proper suit or appropriate action.23(Emphasis supplied.) The petitioners assert, however, that making the proceedings adversarial does not give trial courts the license to go beyond the ambit of Rule 108 which is limited to those corrections contemplated by Article 412 of the New Civil Code or mere clerical errors of a harmless or innocuous nature.24 The petitioners point to the case of Labayo-Rowe vs. Republic,25 which is of a later date than Republic vs. Valencia,26 where this Court reverted to the doctrine laid down in earlier

cases,27 starting with Ty Kong Tin vs. Republic,28 prohibiting the extension of the application of Rule 108 beyond innocuous or harmless changes or corrections. Petitioners contend that as held inGo, et al. vs. Civil Registrar,29 allowing substantial changes under Rule 108 would render the said rule unconstitutional as the same would have the effect of increasing or modifying substantive rights. At the outset, it should be pointed out that in the cited case of Labayo-Rowe vs. Republic,30 the reason we declared null and void the portion of the lower court's order directing the change of Labayo-Rowe's civil status and the filiation of one of her children as appearing in the latter's record of birth, is not because Rule 108 was inappropriate to effect such changes, but because Labayo-Rowe's petition before the lower court failed to implead all indispensable parties to the case. We explained in this wise: "x x x An appropriate proceeding is required wherein all the indispensable parties should be made parties to the case as required under Section 3, Rule 108 of the Revised Rules of Court. "In the case before Us, since only the Office of the Solicitor General was notified through the Office of the Provincial Fiscal, representing the Republic of the Philippines as the only respondent, the proceedings taken, which is summary in nature, is short of what is required in cases where substantial alterations are sought. Aside from the Office of the Solicitor General, all other indispensable parties should have been made respondents. They include not only the declared father of the child but the child as well, together with the paternal grandparents, if any, as their hereditary rights would be adversely affected thereby. All other persons who may be affected by the change should be notified or represented x x x. xxx xxx xxx

"The right of the child Victoria to inherit from her parents would be substantially impaired if her status would be changed from 'legitimate' to 'illegitimate'. Moreover, she would be exposed to humiliation and embarrassment resulting from the stigma of an illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the petition was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. Rule 108, like all the other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making authority under Section 13, Article VIII of the 1973 Constitution, which directs that

such rules 'shall not diminish, increase or modify substantive rights.' If Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, without observing the proper proceedings as earlier mentioned, said rule would thereby become an unconstitutional exercise which would tend to increase or modify substantive rights. This situation is not contemplated under Article 412 of the Civil Code."31 (italics supplied). Far from petitioners' theory, this Court's ruling in Labayo-Rowe vs. Republic32 does not exclude recourse to Rule 108 of the Revised Rules of Court to effect substantial changes or corrections in entries of the civil register. The only requisite is that the proceedings under Rule 108 be an appropriate adversary proceeding as contra-distinguished from a summary proceeding. Thus: "If the purpose of the petition [for cancellation and/or correction of entries in the civil register] is merely to correct the clerical errors which are visible to the eye or obvious to the understanding, the court may, under a summary procedure, issue an order for the correction of a mistake. However, as repeatedly construed, changes which may affect the civil status from legitimate to illegitimate, as well as sex, are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings depending upon the nature of the issues involved. Changes which affect the civil status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the nature of the issues in controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted x x x."33 (Emphasis supplied.) It is true that in special proceedings formal pleadings and a hearing may be dispensed with, and the remedy granted upon mere application or motion. But this is not always the case, as when the statute expressly provides.34 Hence, a special proceeding is not always summary. One only has to take a look at the procedure outlined in Rule 108 to see that what is contemplated therein is not a summary proceeding per se. Rule 108 requires publication of the petition three (3) times, i.e., once a week for three (3) consecutive weeks (Sec.4). The Rule also requires inclusion as parties of all persons who claim any interest which would be affected by the cancellation or correction (Sec. 3). The civil registrar and any person in interest are also required to file their opposition, if any, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice (Sec. 5). Last, but not the least, although the court may make orders

expediting the proceedings, it is after hearing that the court shall either dismiss the petition or issue an order granting the same (Sec. 7). Thus, we find no reason to depart from our ruling in Republic vs. Valencia,35 that Rule 108, when all the procedural requirements thereunder are followed, is the appropriate adversary proceeding to effect substantial corrections and changes in entries of the civil register. It must be conceded, however, that even after Republic vs. Valencia36 there continues to be a seesawing of opinion on the issue of whether or not substantial corrections in entries of the civil register may be effected by means of Rule 108 in relation to Article 412 of the New Civil Code. The more recent cases of Leonor vs. Court of Appeals37 and Republic vs. Labrador38 do seem to signal a reversion to the Ty Kong Tin ruling which delimited the scope of application of Article 412 to clerical or typographical errors in entries of the civil register. In Republic vs. Labrador, the Court held that Rule 108 cannot be used to modify, alter or increase substantive rights, such as those involving the legitimacy or illegitimacy of a child. We ruled thus: "This issue has been resolved in Leonor vs. Court of Appeals. In that case, Respondent Mauricio Leonor filed a petition before the trial court seeking the cancellation of the registration of his marriage to Petitioner Virginia Leonor. He alleged, among others, the nullity of their legal vows arising from the "non-observance of the legal requirements for a valid marriage." In debunking the trial court's ruling granting such petition, the Court held as follows: 'On its face, the Rule would appear to authorize the cancellation of any entry regarding "marriages" in the civil registry for any reason by the mere filing of a verified petition for the purpose. However, it is not as simple as it looks. Doctrinally, the only errors that can be canceled or corrected under this Rule are typographical or clerical errors, not material or substantial ones like the validity or nullity of a marriage. A clerical error is one which is visible to the eyes or obvious to the understanding; error made by a clerk or a transcriber; a mistake in copying or writing (Black vs. Republic, L-10869, Nov. 28, 1958); or some harmless and innocuous change such as a correction of name that is clearly misspelled or of a misstatement of the occupation of the parent (Ansalada vs. Republic, L-10226, Feb. 14, 1958).'

'Where the effect of a correction in a civil registry will change the civil status of petitioner and her children from legitimate to illegitimate, the same cannot be granted except only in an adversarial x x x .' 'Clearly and unequivocally, the summary procedure under Rule 108, and for that matter under Article 412 of the Civil Code cannot be used by Mauricio to change his and Virginia's civil status from married to single and of their three children from legitimate to illegitimate x x x ' "Thus, where the effect of a correction of an entry in a civil registry will change the status of a person from "legitimate to "illegitimate," as in Sarah Zita's case, the same cannot be granted in summary proceedings."39 It is, therefore, high time that we put an end to the confusion sown by pronouncements seemingly in conflict with each other, and perhaps, in the process, stem the continuing influx of cases raising the same substantial issue. The basis for the pronouncement that extending the scope of Rule 108 to substantial corrections is unconstitutional is embodied in the early case of Ty Kong Tin vs. Republic40 that first delineated the extent or scope of the matters that may be changed or corrected pursuant to Article 412 of the New Civil Code. The Supreme Court ruled in this case that: "x x x After a mature deliberation, the opinion was reached that what was contemplated therein are mere corrections of mistakes that are clerical in nature and not those that may affect the civil status or the nationality or citizenship of the persons involved. If the purpose of the petition is merely a clerical error then the court may issue an order in order that the error or mistake may be corrected. If it refers to a substantial change, which affects the status or citizenship of a party, the matter should be threshed out in a proper action depending upon the nature of the issue involved. Such action can be found at random in our substantive and remedial laws the implementation of which will naturally depend upon the factors and circumstances that might arise affecting the interested parties. This opinion is predicated upon the theory that the procedure contemplated in article 412 is summary in nature which cannot cover cases involving controversial issues."41 This doctrine was taken a step further in the case of Chua Wee, et al. vs. Republic42 where the Court said that:

"From the time the New Civil Code took effect on August 30, 1950 until the promulgation of the Revised Rules of Court on January 1, 1964, there was no law nor rule of court prescribing the procedure to secure judicial authorization to effect the desired innocuous rectifications or alterations in the civil register pursuant to Article 412 of the New Civil Code. Rule 108 of the Revised Rules of Court now provides for such a procedure which should be limited solely to the implementation of Article 412, the substantive law on the matter of correcting entries in the civil register. Rule 108, like all the other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making authority under Section 13 of Art. VIII of the Constitution, which directs that such rules of court 'shall not diminish or increase or modify substantive rights.' If Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, said Rule 108 would thereby become unconstitutional for it would be increasing or modifying substantive rights, which changes are not authorized under Article 412 of the New Civil Code."43 (Italics supplied). We venture to say now that the above pronouncements proceed from a wrong premise, that is, the interpretation that Article 412 pertains only to clerical errors of a harmless or innocuous nature, effectively excluding from its domain, and the scope of its implementing rule, substantial changes that may affect nationality, status, filiation and the like. Why the limited scope of Article 412? Unfortunately, Ty Kong Tin does not satisfactorily answer this question except to opine that the procedure contemplated in Article 412 is summary in nature and cannot, therefore, cover cases involving controversial issues. Subsequent cases have merely echoed the Ty Kong Tindoctrine without, however, shedding light on the matter. The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a summary procedure. First of all, Article 412 is a substantive law that provides as follows: "No entry in a civil register shall be changed or corrected, without a judicial order." It does not provide for a specific procedure of law to be followed except to say that the corrections or changes must be effected by judicial order. As such, it cannot be gleaned therefrom that the procedure contemplated for obtaining such judicial order is summary in nature.

Secondly, it is important to note that Article 412 uses both the terms "corrected" and "changed". In its ordinary sense, to correct means to make or set right"; "to remove the faults or errors from"44 while to change means "to replace something with something else of the same kind or with something that serves as a substitute".45 The provision neither qualifies as to the kind of entry to be changed or corrected nor does it distinguish on the basis of the effect that the correction or change may have. Hence, it is proper to conclude that all entries in the civil register may be changed or corrected under Article 412. What are the entries in the civil register? We need not go further than Articles 407 and 408 of the same title to find the answer. "Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register." "Art. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name." It is beyond doubt that the specific matters covered by the preceding provisions include not only status but also nationality. Therefore, the Ty Kong Tin pronouncement that Article 412 does not contemplate matters that may affect civil status, nationality or citizenship is erroneous. This interpretation has the effect of isolating Article 412 from the rest of the articles in Title XVI, Book I of the New Civil Code, in clear contravention of the rule of statutory construction that a statute must always be construed as a whole such that the particular meaning to be attached to any word or phrase is ascertained from the context and the nature of the subject treated.46 Thirdly, Republic Act No. 904847 which was passed by Congress on February 8, 2001 substantially amended Article 412 of the New Civil Code, to wit: "SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations."

The above law speaks clearly. Clerical or typographical errors in entries of the civil register are now to be corrected and changed without need of a judicial order and by the city or municipal civil registrar or consul general. The obvious effect is to remove from the ambit of Rule 108 the correction or changing of such errors in entries of the civil register. Hence, what is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register. This is precisely the opposite of what Ty Kong Tin and other cases of itsgenre had said, perhaps another indication that it was not sound doctrine after all. It may be very well said that Republic Act No. 9048 is Congress' response to the confusion wrought by the failure to delineate as to what exactly is that socalled summary procedure for changes or corrections of a harmless or innocuous nature as distinguished from that appropriate adversary proceeding for changes or corrections of a substantial kind. For we must admit that though we have constantly referred to an appropriate adversary proceeding, we have failed to categorically state just what that procedure is. Republic Act No. 9048 now embodies that summary procedure while Rule 108 is that appropriate adversary proceeding. Be that as it may, the case at bar cannot be decided on the basis of Republic Act No. 9048 which has prospective application. Hence, the necessity for the preceding treatise. II. The petitioners contend that the private respondents have no cause of action to bring the cases below as Article 171 of the Family Code allows the heirs of the father to bring an action to impugn the legitimacy of his children only after his death.48 Article 171 provides: "The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: "(1) If the husband should die before the expiration of the period fixed for bringing this action; "(2) If he should die after the filing of the complaint, without having desisted therefrom; or "(3) If the child was born after the death of the husband." Petitioner's contention is without merit. In the recent case of Babiera vs. Catotal,49 we upheld the decision of the Court of Appeals that affirmed the judgment of the RTC of Lanao del Norte declaring the

birth certificate of one Teofista Guinto as null and void ab initio, and ordering the Local Civil Registrar of Iligan City to cancel the same from the Registry of Live Births. We ruled therein that private respondent Presentacion Catotal, child of spouses Eugenio Babiera and Hermogena Cariosa, had the requisite standing to initiate an action to cancel the entry of birth of Teofista Babiera, another alleged child of the same spouses because she is the one who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.50 We likewise held therein that: "x x x Article 171 of the Family Code is not applicable to the present case. A close reading of the provision shows that it applies to instances in which the father impugns the legitimacy of his wife's child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner. In other words, the prayer therein is not to declare that petitioner is an illegitimate child of Hermogena, but to establish that the former is not the latter's child at all x x x. ''51 Similarly, we ruled in Benitez-Badua vs. Court of Appeals52 that: "Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171 of the Family Code to the case at bench cannot be sustained. x x x. xxx xxx xxx

"A careful reading of the above articles will show that they do not contemplate a situation, like in the instant case, where a child is alleged not be the child of nature or biological child of a certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply these articles to the

case at bench. For the case at bench is not one where the heirs of the late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel. Our ruling inCabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz: 'Petitioners' recourse to Article 263 of the New Civil Code [now Art. 170 of the Family Code] is not well taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all. Being neither legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. "'53 III. Petitioners claim that private respondents' cause of action had already prescribed as more than five (5) years had lapsed between the registration of the latest birth among the petitioners in 1960 and the filing of the actions in December of 1992 and February of 1993.54 We disagree. As correctly pointed out by the Court of Appeals, inasmuch as no law or rule specifically prescribes a fixed time for filing the special proceeding under Rule 108 in relation to Article 412 of the New Civil Code, it is the following provision of the New Civil Code that applies: "Art. 1149. other actions whose periods are not fixed in this Code or in other laws must be brought within five years from the time the right of action accrues." The right of action accrues when there exists a cause of action, which consists of three (3) elements, namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of the defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff. It is only when the last element occurs or takes place that it can be said in law that a cause of action has arisen.55 It is indubitable that private respondents have a cause of action. The last element of their cause of action, that is, the act of their father in falsifying the entries in petitioners' birth records, occurred more than thirty (30) years ago. Strictly

speaking, it was upon this occurrence that private respondents' right of action or right to sue accrued. However, we must take into account the fact that it was only sometime in 1989 that private respondents discovered that they in fact had a cause of action against petitioners who continue to use said falsified birth records. Hence, it would result in manifest injustice if we were to deprive private respondents of their right to establish the truth about a fact, in this case, petitioners' true mother, and their real status, simply because they had discovered the dishonesty perpetrated upon them by their common father at a much later date. This is especially true in the case of private respondents who, as their father's legitimate children, did not have any reason to suspect that he would commit such deception against them and deprive them of their sole right to inherit from their mother's (Keh Shiok Cheng's) estate. It was only sometime in 1989 that private respondents' suspicions were aroused and confirmed. From that time until 1992 and 1993, less than five (5) years had lapsed. Petitioners would have us reckon the five-year prescriptive period from the date of the registration of the last birth among the petitioners-siblings in 1960, and not from the date private respondents had discovered the false entries in petitioners' birth records in 1989. Petitioners base their position on the fact that birth records are public documents, hence, the period of prescription for the right of action available to the private respondents started to run from the time of the registration of their birth certificates in the Civil Registry. We cannot agree with petitioners' thinking on that point. It is true that the books making up the Civil Register and all documents relating thereto are public documents and shall be prima facie evidence of the facts therein contained.56 Petitioners liken their birth records to land titles, public documents that serve as notice to the whole world. Unfortunately for the petitioners, this analogy does not hold water. Unlike a title to a parcel of land, a person's parentage cannot be acquired by prescription. One is either born of a particular mother or not. It is that simple. IV. Finally, petitioners accuse private respondents of forum shopping. They enumerate the other actions filed by private respondents against them prior to the filing of their Rule 108 petitions in the lower courts, as follows: (1) A criminal complaint for falsification of entries in the birth certificates filed against their father as principal and against defendants as alleged accessories;

(2) A petition for the cancellation of the naturalization certificate of their father, Lee Tek Sheng; and (3) A petition for partition of Keh Shiok Cheng's estate.57 According to the petitioners, all the three (3) actions above-mentioned, as well as the Rule 108 petitions, subject of the case before us, raise the common issue of whether petitioners are the natural children of Keh Shiok Cheng or Tiu Chuan. They contend that in all these cases, the judge or hearing officer would have to resolve this issue in order to determine whether or not to grant the relief prayed for.58 Forum shopping is present when in the two or more cases pending there is identity of parties, rights or causes of action and reliefs sought.59 Even a cursory examination of the pleadings filed by private respondents in their various cases against petitioners would reveal that at the very least there is no identity of rights or causes of action and reliefs prayed for. The present case has its roots in two (2) petitions filed under Rule 108, the purpose of which is to correct and/or cancel certain entries in petitioners' birth records. Suffice it to state, the cause of action in these Rule 108 petitions and the relief sought therefrom are very different from those in the criminal complaint against petitioners and their father which has for its cause of action, the commission of a crime as defined and penalized under the Revised Penal Code, and which seeks the punishment of the accused; or the action for the cancellation of Lee Tek Sheng naturalization certificate which has for its cause of action the commission by Lee Tek Sheng of an immoral act, and his ultimate deportation for its object; or for that matter, the action for partition of Keh Shiok Cheng's estate which has for its cause of action the private respondents' right under the New Civil Code to inherit from their mother's estate. We therefore concur in the finding of the Court of Appeals that there is no forum shopping to speak of in the concept that this is described and contemplated in Circular No. 28-91 of the Supreme Court. HCISED WHEREFORE, the petition is hereby DENIED and the assailed decision of the Court of Appeals dated October 28, 1994 is AFFIRMED. SO ORDERED. Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.

Cancellation or Correction of Entries in the Civil Registry

SECOND DIVISION [G.R. No. 120587. January 20, 2004] MILAGROS M. BARCO, as the Natural Guardian and Guardian Ad Litem of MARY JOY ANN GUSTILO, petitioner, vs. COURT OF APPEALS (SPECIAL SIXTEENTH DIVISION), REGIONAL TRIAL COURT (BR. 133MAKATI), NCJR; THE LOCAL CIVIL REGISTRAR OF MAKATI; and NADINA G. MARAVILLA, respondents. DECISION TINGA, J.: The story behind the present petition is a portrait of dysfunction. The familial situation of the parties is complicated, to say the least. The judicial conferment of the status of illegitimacy on a daughter who is by law legitimate has created a tangled braid of various legal doctrines that, like the Gordian knot of yore, is in this case ultimately unbound through one fell swoop of the sword. On 24 December 1970, private respondent Nadina Maravilla (Nadina) married Francisco Maravilla (Francisco). By February of 1977, the spouses had opted to live separately,[1] and in February of the following year they obtained an ecclesiastical annulment of marriage issued by the Catholic Diocese of Bacolod City.[2] On 9 June 1978, Nadina gave birth to a daughter named June Salvacion (June) in Makati, Metro Manila. Junes birth certificate listed Francisco Maravilla as the father, and Maravilla as the childs surname.[3]Nadina signed the birth certificate shortly after it was accomplished. Despite the notation in Junes birth certificate, Nadina subsequently claimed that all along, the real father of her child was Armando Gustilo (Gustilo), a former Congressman with whom she maintained a relationship. At the time of Junes birth, Gustilo was married to one Consuelo Caraycong, who would later perish in the MV Don Juan naval accident of 1981.[4]On 21 August 1982, Nadina and Gustilo were married in the United States.[5] This marriage took place two and a half years before Nadinas marriage to Francisco was alleged to have been annulled in the Philippines. On 12 March 1985, Nadina apparently was able to obtain a judicial declaration annulling her marriage to Francisco.[6] On 17 March 1983, Nadina filed in her own name a Petition for Correction of Entries in the Certificate of Birth of her daughter June with the Regional Trial Court (RTC) of Makati.[7] Therein, she alleged that she had been living

separately from her lawful spouse Francisco since February of 1977, and that Gustilo was the real father of June.[8] She claimed that she did not allow Francisco to have any sexual congress with her within the first 20 days of the three hundred days preceding the birth of June.[9] She prayed that the Local Civil Registrar of Makati be directed to correct the birth certificate of June to the effect that the latters full name be made June Salvacion C. Gustilo, and that the name of her father be changed from Francisco Maravilla to Armando Gustilo. Notably, Francisco affixed his signature to the Petition signifying his conformity thereto.[10] On 20 March 1983. Gustilo filed a Constancia, wherein he acknowledged June as his daughter with Nadina, and that he was posing no objection to Nadinas petition.[11] The Petition was docketed as SP Proc. No. M-130. On 26 July 1983, the RTC, in accordance with Rule 108 of the Rules of Court, issued an Order setting the case for hearing and directing that a copy of the order be published once a week for three consecutive weeks in a newspaper of general circulation. On 7 September 1983, Nadina filed an Amended Petition,[12] this time impleading Francisco and Gustilo as respondents. Correspondingly, the RTC amended the Order on 22 September 1983 to reflect the additional impleaded parties.[13] The Office of the Solicitor General filed a Motion to Dismiss the petition on the ground that the RTC had no jurisdiction over the subject matter and/or the nature of th[e] suit.[14]They cited various jurisprudence holding that only innocuous or clerical errors may be corrected under a Rule 108 petition for correction of entries, and that the Petition seeks changes are substantial and controversial in character which directly affect the filiation and legitimacy of petitioners daughter.[15] On 23 February 1984, the Motion to Dismiss was denied by the RTC, which also subsequently denied a Motion for Reconsideration thereto filed by the Solicitor General. On 7 January 1985, the RTC issued an Order (RTC Order) granting the petition and ordering the requested corrections to be effected. The RTC considered the claim of Nadina that she had relied completely on her uncle William R. Veto[16] to facilitate the preparation of Junes birth certificate, that it was through his inadvertence that the mistaken entries were made, and that she was in intense physical discomfort when she had affixed her signature to the birth certificate containing the incorrect entries.[17] The RTC also noted that Francisco had signified his conformity to the action by signing the original petition, and that Gustilo had manifested through a Constancia dated 20 March 1983 that he was acknowledging June as his daughter and expressing no objection to the petition.[18]

Gustilo died in 19 December 1986.[19] Two estate proceedings arose from his death, one lodged in Makati,[20] the other in Harris County, Texas.[21] Among the participants in both estate proceedings was Jose Vicente Gustilo (Jose Vicente), allegedly a biological child of Gustilo.[22] On 5 March 1993, he filed with the Court of Appeals a Petition[23] seeking the annulment of the RTC Order of 7 January 1985 which had effected changes in the civil status of June. Jose Vicente amended his Petition in July of 1993 to implead Nadina as an indispensable party.[24] In her Comment, Nadina countered that Jose Vicente had not sufficiently proven that he was a child of Armando, and there was neither extrinsic fraud or lack of jurisdiction that would justify the annulment of the RTC Order.[25] Nadina also pointed out that the Makati intestate court had approved a compromise agreement wherein the parties had agreed that the only heirs of the decedent Armando are the surviving spouse, Nadina G. Gustilo, the daughter, June Salvacion G. Gustilo, the son, Jose Vicente Gustilo III, and another daughter, Mary Joy Ann Gustilo.[26] However, this compromise agreement was subsequently voided on petition by Jose Vicente to the Court of Appeals, on the ground that the Civil Code prohibited compromise as to the civil status of persons.[27] After the Court of Appeals commenced hearings on the petition, petitioner Milagros Barco (Barco), on 11 January 1994, filed in her capacity as the natural guardian and/or guardian ad litem of her daughter, Mary Joy Ann Gustilo (Mary Joy), a Motion for Intervention with a Complaint-in-Intervention attached thereto.[28] Barco alleged that Mary Joy had a legal interest in the annulment of the RTC Order as she was likewise fathered by Gustilo. In her Complaint-inIntervention, Barco claimed that she and Gustilo had maintained a relationship since 1967, and to them was born Mary Joy in 1977.[29] Barco also alleged that she actually moved in with Gustilo after the death of the latters wife in 1980, and maintained her affair with Gustilo until 1983, when she was purportedly supplanted by Nadina as Gustilos common-law companion after Gustilo had become gravely ill.[30] After the parties had filed their respective memoranda, the Court of Appeals rendered a Decision on 13 March 1995, dismissing both the Petition and the Complaint-in-Intervention.[31] The appellate court held that neither Jose Vicente nor Barco were able to establish the existence of lack of jurisdiction and extrinsic fraud, the two grounds that would justify the annulment of a final judgment.[32] It ruled that while Jose Vicente and Barco had not been made parties in the Petition for Correction, the subsequent notice and publication of the Order setting the case for hearing served as constructive notice to all parties who might have an interest to participate in the case. The publication of the Order conferred upon the RTC the jurisdiction to try and decide the case.[33] It also found no merit in Jose Vicentes claim that he learned of the

RTC Order only in November of 1992, pointing out that as early as 1987, he filed a pleading with the intestate court alleging that Junes birth certificate had been amended to record the name of her true father.[34] Only the intervenor Barco filed a Motion for Reconsideration[35] of the Court of Appeals Decision, which the appellate court denied on 16 May 1995.[36] Thus, Barco filed the present Petition for Review on Certiorari seeking the reversal of the Court of Appeals Decision and the annulment of the 1985 RTC Order. Before this Court, Barco assails that RTC Order on the ground of lack of jurisdiction. That was the same ground she invoked in the Court of Appeals. Specifically, she raises the following issues: 1) Barco should have been made a party to the Nadinas petition and the failure to implead her deprived the RTC of jurisdiction; 2) This RTC could not have entertained Nadinas petition, since the Courts ruling in a long line of cases, beginning with Republic v. Valencia,[37] that a petition for correction of entries in the civil register is not limited to innocuous or clerical mistakes, applies only to citizenship cases; 3) The petition for correction was filed out of time, as Article 263 of the Civil Code of 1950 sets a prescriptive period for impugning the legitimacy of a child which is one year from the recording of birth in the Civil Registry, if the husband should be in the same place, or in a proper case, any of his heirs; 4) Nadinas petition should have been treated as a petition for change of name, which can only be filed by the person whose name is sought to be changed; 5) The RTC Order contravenes the legal presumption that children born during the pendency of a marriage are legitimate and the rule that legitimate children cannot adopt the surname of a person who is not their father; and 6) The RTC should have excluded as hearsay the Constancia allegedly signed by Gustilo and that the surrounding circumstances under which it was issued gave reason to doubt its authenticity and credibility. Interestingly, the questions that Barco raised would tickle the fancies of erudite civilists yearning for a challenge. However, the ultimate resolution of this case hinges on whether the de rigueur requirements of the extraordinary remedy of annulment of judgment have been satisfied. First, a brief revisit of the action to annul judgment.

The recourse is equitable in character, allowed only in exceptional cases, as where there is no available or other adequate remedy. Annulment of judgments is a remedy long authorized and sanctioned in our jurisdiction.[38] As far back as 1918, this Court in Banco Espaol-Filipino v. Palanca[39] recognized the availability of a direct attack of a final judgment on the ground that it is void for want of jurisdiction. In Reyes v. Datu[40] we held that the validity of a final judgment or order of the court may be attacked only by a direct action or proceeding or by motion in another case on the ground of lack of jurisdiction. Yet, it was only in the 1997 Rules of Civil Procedure that for the first time the procedure for the annulment of judgments or final orders and resolutions in civil cases of regional trial courts, through a petition before the Court of Appeals, was formally provided. Rule 47 thereof under which the procedure was integrated incorporates settled jurisprudence on annulment of judgment. Statutory basis for the remedy was laid way back in 1980, with the enactment of The Judiciary Reorganization Act of 1980.[41] Section 9 thereof vests in the Court of Appeals exclusive original jurisdiction over actions for annulment of judgments of the lower courts. Section 2, Rule 47 of the 1997 Rules of Civil Procedure explicitly provides only two grounds for annulment of judgment, namely: extrinsic fraud and lack of jurisdiction. This express limitation is significant since previous jurisprudence recognized other grounds as well.[42] The underlying reason is traceable to the notion that annulling final judgments goes against the grain of finality of judgment. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final the issue or cause involved therein should be laid to rest. The basic rule of finality of judgment is grounded on the fundamental principle of public policy and sound practice that at the risk of occasional error, the judgment of courts and the award of quasi-judicial agencies must become final at some definite date fixed by law.[43] Even if the rule on annulment of judgment is grounded on equity, the relief is of an extraordinary character, and not as readily available as the remedies obtaining to a judgment that is not yet final. There are two aspects of jurisdiction which are vital for disposition of this case - jurisdiction over the nature of the action or subject matter, and jurisdiction over the parties.[44]Barco claims that the RTC failed to satisfy both aspects of jurisdiction. She opines that the RTC did not acquire jurisdiction over the parties due to the failure to implead her as a party to the petition for correction. On the other hand, the remaining issues that she raises as errors put into question whether the RTC had jurisdiction over the subject matter of Nadinas petition.

We shall first tackle the question of whether the RTC had acquired jurisdiction over Barco and all other indispensable parties to the petition for correction. The essential requisite for allowing substantial corrections of entries in the civil registry is that the true facts be established in an appropriate adversarial proceeding. This is embodied in Section 3, Rule 108 of the Rules of Court, which states: Section 3. Parties When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. The Court of Appeals held that jurisdiction over the parties was properly acquired through the notice by publication effected in conformity with Section 4 of Rule 108. Barco assails this holding and claims that the failure to implead her as a party to the petition for correction deprived the RTC of jurisdiction. Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her interest was affected by the petition for correction, as any judicial determination that June was the daughter of Armando would affect her wards share in the estate of her father. It cannot be established whether Nadina knew of Mary Joys existence at the time she filed the petition for correction. Indeed, doubt may always be cast as to whether a petitioner under Rule 108 would know of all the parties whose interests may be affected by the granting of a petition. For example, a petitioner cannot be presumed to be aware of all the legitimate or illegitimate offsprings of his/her spouse or paramour. The fact that Nadina amended her petition to implead Francisco and Gustilo indicates earnest effort on her part to comply with Section 3 as quoted above. Yet, even though Barco was not impleaded in the petition, the Court of Appeals correctly pointed out that the defect was cured by compliance with Section 4, Rule 108, which requires notice by publication, thus: Section 4. Upon the filing of the petition, the court shall, by order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent judgment on the petition. The sweep of the decision would cover even parties who should have been impleaded under Section 3, Rule 108, but were inadvertently left out. The Court of Appeals correctly noted:

The publication being ordered was in compliance with, and borne out by the Order of January 7, 1985. The actual publication of the September 22, 1983 Order, conferred jurisdiction upon the respondent court to try and decide the case. While nobody appeared to oppose the instant petition during the December 6, 1984 hearing, that did not divest the court from its jurisdiction over the case and of its authority to continue trying the case. For, the rule is wellsettled, that jurisdiction, once acquired continues until termination of the case.[45] Verily, a petition for correction is an action in rem, an action against a thing and not against a person.[46] The decision on the petition binds not only the parties thereto[47] but the whole world.[48] An in rem proceeding is validated essentially through publication.[49] Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established.[50] It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it.[51] Since the RTC properly acquired jurisdiction over the parties, what remains for determination is whether it had acquired jurisdiction over Nadinas cause of action. It should be emphasized that jurisdiction over the nature of the action or the subject matter is conferred by law. This Courts recent holding in Durisol Philippines, Inc. v. Court of Appeals[52] is instructive in this regard: [I]t should be stressed that in a petition for annulment of judgment based on lack of jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion but an absolute lack of jurisdiction. Lack of jurisdiction means absence of or no jurisdiction, that is, the court should not have taken cognizance of the petition because the law does not vest it with jurisdiction over the subject matter.[53] The question of whether a court has jurisdiction over the subject matter can be answered simply by determining if on the basis of the complaint or petition the court has, under the law, the power to hear and decide the case. Barcos remaining arguments are to be tested against this standard. One of Barcos striking assertions is that the general rule still is that the jurisdiction of the court in the correction of entries in the civil register is limited to innocuous or clerical mistakes, as what she insinuates as the apparent contrary holding in Republic v. Valencia[54] applies only to citizenship cases. Since the promulgation of the Valencia ruling in 1986 the Court has repeatedly ruled that even substantial errors in a civil registry may be corrected through a petition filed under Rule 108, with the true facts established and the parties aggrieved by the error availing themselves of the appropriate adversarial

proceeding. Barco, by seeking to limit the application of the Valencia doctrine to citizenship cases, is flogging a dead horse. This argument was debunked in subsequent cases,[55] notably the recent case of Lee v. Court of Appeals.[56] The exhaustive disquisition therein of Justice Sabino de Leon should preclude any further arguments on the scope of Rule 108. The Court in Lee acknowledged that there existed a line of decided cases, some of them decided after Valencia, stating that Rule 108 cannot be used to effect substantial corrections in entries of the civil register.[57] The doctrine was traced back to the 1954 case of Ty Kong Tin v. Republic,[58] the rationale of which the Court reevaluated in Lee: We venture to say now that the above pronouncements proceed from a wrong premise, that is, the interpretation that Article 412 pertains only to clerical errors of a harmless or innocuous nature, effectively excluding from its domain, and the scope of its implementing rule, substantial changes that may affect nationality, status, filiation and the like. Why the limited scope of Article 412? Unfortunately, Ty Kong Tin does not satisfactorily answer this question except to opine that the procedure contemplated in Article 412 is summary in nature and cannot, therefore, cover cases involving controversial issues. Subsequent cases have merely echoed the Ty Kong Tin doctrine without, however, shedding light on the matter. The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a summary procedure. First of all, Article 412 is a substantive law that provides as follows: No entry in a civil register shall be changed or corrected, without a judicial order. It does not provide for a specific procedure of law to be followed except to say that the corrections or changes must be effected by judicial order. As such, it cannot be gleaned therefrom that the procedure contemplated for obtaining such judicial order is summary in nature. Secondly, it is important to note that Article 412 uses both the terms corrected and changed. In its ordinary sense, to correct means to make or set right; to remove the faults or errors from while to change means to replace something with something else of the same kind or with something that serves as a substitute. The provision neither qualifies as to the kind of entry to be changed or corrected nor does it distinguish on the basis of the effect that the correction or change may have. Hence, it is proper to conclude that all entries in the civil

register may be changed or corrected under Article 412. What are the entries in the civil register? We need not go further than Articles 407 and 408 of the same title to find the answer. Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. Art. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. It is beyond doubt that the specific matters covered by the preceding provisions include not only status but also nationality. Therefore, the Ty Kong Tin pronouncement that Article 412 does not contemplate matters that may affect civil status, nationality or citizenship is erroneous. This interpretation has the effect of isolating Article 412 from the rest of the articles in Title XVI, Book I of the New Civil Code, in clear contravention of the rule of statutory construction that a statute must always be construed as a whole such that the particular meaning to be attached to any word or phrase is ascertained from the context and the nature of the subject treated.[59] Lee also points out that Republic Act No. 9048, enacted in 2001, has effectively changed the nature of a proceeding under Rule 108. Under this new law, clerical or typographical errors and change of first name or nickname may now be corrected or changed by the concerned city or municipal registrar or consul general, without need of any judicial order. The obvious effect is to remove from the ambit of Rule 108 the correction or changing of such errors in entries of the civil register. Hence, what is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register.[60] It may be very well said that Republic Act No. 9048 is Congresss response to the confusion wrought by the failure to delineate as to what exactly is that socalled summary procedure for changes or corrections of a harmless or innocuous nature as distinguished from that appropriate adversary proceeding for changes or corrections of a substantial kind. For we must admit that though we have constantly referred to an appropriate adversary proceeding, we have failed to categorically state just what that procedure is. Republic Act No. 9048 now

embodies that summary procedure while Rule 108 is that appropriate adversary proceeding. xxx[61] Republic Act No. 9048 may not find application in this case, yet it is clearly another indicium of how entrenched the Valencia ruling is today. With the enactment of the law, the legislature acknowledged the potency of the ruling. To repeat, substantial corrections to the civil status of persons recorded in the civil registry may be effected through the filing of a petition under Rule 108. Any further attempt to limit the scope of application of Rule 108 runs against the wall of judicial precedent cemented by legislative affirmation. Next, Barco argues that the petition for correction had prescribed under the Civil Code; and that the petition for correction should be treated as a petition for change of name which can only be filed by the person whose name is sought to be changed. These arguments can be decided jointly. They both are not well taken as they cannot allude to a lack of jurisdiction that would render the RTC Order subject to annulment. Assuming arguendo that Nadinas petition for correction had prescribed and/or that the action seeking the change of name can only be filed by the party whose name is sought to be changed, this does not alter the reality that under the law the Makati RTC had jurisdiction over the subject matter of the petition for correction. The Judiciary Reorganization Act of 1980, the applicable law at the time, clearly conferred on the Makati RTC exclusive original jurisdiction in all civil actions in which the subject of the litigation is incapable of pecuniary estimation.[62] In complementation of grant of jurisdiction, Section 1 of Rule 108 provides that the verified petition to the cancellation or correction of any entry relating thereto should be filed with the Court of First Instance (now Regional Trial Court) of the province where the corresponding civil registry is located. Prescription and lack of capacity to bring action cannot be ignored by a court of law in properly resolving an action, to the extent that a finding that any of these grounds exist will be sufficient to cause the dismissal of the action.[63] Yet, the existence of these grounds does not oust the court from its power to decide the case. Jurisdiction cannot be acquired through, waived, enlarged or diminished by any act or omission of the parties.[64] Contrariwise, lack of capacity to sue and prescriptions as grounds for dismissal of an action may generally be rendered unavailing, if not raised within the proper period.[65] It thus follows that assuming that the petition for correction had prescribed, or that Nadina lacked the capacity to file the action which led to the change of her daughters name, the fact that the RTC granted the Order despite the existence of these two grounds only characterizes the decision as erroneous. An erroneous

judgment is one though rendered according to the course and practice of the court is contrary to law.[66] It is not a void judgment.[67] As for Barcos remaining arguments, they similarly fail, as the worst they could establish is that the RTC Order is an erroneous judgment. Barco correctly notes, however, that the RTC erred in directing that the name of Nadinas daughter be changed from June Salvacion Maravilla to June Salvacion Gustilo. Following the trial courts determination that Gustilo was the father of June, but prescinding from the conclusive presumption of legitimacy for the nonce assuming it could be done, the child would obviously be illegitimate. The applicable laws mandate that June, as an illegitimate child, should bear the surname of her mother, and not the father. [68] From another perspective, the RTCs error in ordering the change of name is merely an error in the exercise of jurisdiction which neither affects the courts jurisdiction over Nadinas petition nor constitutes a ground for the annulment of a final judgment. As the seminal case of Herrera v. Barretto[69] explains: xxx Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction of the person and subject matter xxx the decision of all other questions arising in the case is but an exercise of that jurisdiction.[70] In the same vein, it is of no moment that the RTC Order contravenes the legal presumption accorded June of being the legitimate child of Francisco and Nadina.[71] A review of the records does indicate the insufficiency of the evidence offered to defeat the presumption, against which the only evidence admissible is the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child.[72] It seems that the RTC relied primarily on the testimony of Nadina in adjudging that Gustilo, and not Francisco, was the father of June. Yet, Article 256 of the Civil Code renders ineffectual any pronouncement against legitimacy made by the mother.[73] The testimony proffered by the mother has no probative value as regards Junes paternity. The RTCs cognizance of [74] Gustilos Constancia might likewise be subject to critical scrutiny. But the Court is now precluded from reviewing the RTCs appreciation of the evidence, however erroneous it may be, because the Order is already final. The RTCs possible misappreciation of evidence is again at most, an error in the exercise of jurisdiction, which is different from lack of jurisdiction. These purported errors do not extend to the competence of the RTC to decide the matter and as such does not constitute a valid ground to annul the final order.

The law sanctions the annulment of certain judgments which, though final, are ultimately void. Annulment of judgment is an equitable principle not because it allows a party-litigant another opportunity to reopen a judgment that has long lapsed into finality but because it enables him to be discharged from the burden of being bound to a judgment that is an absolute nullity to begin with. The inevitable conclusion is that the RTC Order, despite its apparent flaws, is not null and void, and thus cannot be annulled. Consequently, the Court of Appeals committed no reversible error in issuing the assailed decision. This Court has been constrained in the past to leave erroneous decisions as they were.[75] Our fealty to justice in its pristine form the upholding of right over wrong is equipoised with our adherence to due process, and the rules that emanate from that principle. The Court takes great care in drafting rules of procedure so that the axioms that govern the legal battleground may live up to Justice Frankfurters approximation of due process as the embodiment of the sporting idea of fair play.[76] Due process dictates that litigants be afforded a reasonable opportunity to attack erroneous judgments and be shielded from the adverse effects of void judgments. Due process likewise demands that a party, after trekking the long road of litigation should be permitted to enjoy the fruits of an auspicious final judgment. Absent any convincing demonstration that the RTC Order is patently null and void, there is no reason under law and jurisprudence to upset it, given the reality that it has long become final. WHEREFORE, the above premises considered, the Petition is hereby dismissed for lack of merit. Costs against petitioner. SO ORDERED. Puno, (Chairman), JJ., concur. Quisumbing, Austria-Martinez, and Callejo, Sr.,

Cancellation or Correction of Entries in the Civil Registry

THIRD DIVISION G.R. No. 186571 August 11, 2010

GERBERT R. CORPUZ, Petitioner, vs. DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL, Respondents. DECISION BRION, J.: Before the Court is a direct appeal from the decision1 of the Regional Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for review on certiorari2 under Rule 45 of the Rules of Court (present petition). Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired Canadian citizenship through naturalization on November 29, 2000.3 On January 18, 2005, Gerbert married respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig City.4 Due to work and other professional commitments, Gerbert left for Canada soon after the wedding. He returned to the Philippines sometime in April 2005 to surprise Daisylyn, but was shocked to discover that his wife was having an affair with another man. Hurt and disappointed, Gerbert returned to Canada and filed a petition for divorce. The Superior Court of Justice, Windsor, Ontario, Canada granted Gerberts petition for divorce on December 8, 2005. The divorce decree took effect a month later, on January 8, 2006.5 Two years after the divorce, Gerbert has moved on and has found another Filipina to love. Desirous of marrying his new Filipina fiance in the Philippines, Gerbert went to the Pasig City Civil Registry Office and registered the Canadian divorce decree on his and Daisylyns marriage certificate. Despite the registration of the divorce decree, an official of the National Statistics Office (NSO) informed Gerbert that the marriage between him and Daisylyn still subsists under Philippine law; to be enforceable, the foreign divorce decree must first be judicially recognized by a competent Philippine court, pursuant to NSO Circular No. 4, series of 1982.6 Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce and/or declaration of marriage as dissolved (petition) with the RTC. Although

summoned, Daisylyn did not file any responsive pleading but submitted instead a notarized letter/manifestation to the trial court. She offered no opposition to Gerberts petition and, in fact, alleged her desire to file a similar case herself but was prevented by financial and personal circumstances. She, thus, requested that she be considered as a party-in-interest with a similar prayer to Gerberts. In its October 30, 2008 decision,7 the RTC denied Gerberts petition. The RTC concluded that Gerbert was not the proper party to institute the action for judicial recognition of the foreign divorce decree as he is a naturalized Canadian citizen. It ruled that only the Filipino spouse can avail of the remedy, under the second paragraph of Article 26 of the Family Code,8 in order for him or her to be able to remarry under Philippine law.9 Article 26 of the Family Code reads: Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. This conclusion, the RTC stated, is consistent with the legislative intent behind the enactment of the second paragraph of Article 26 of the Family Code, as determined by the Court in Republic v. Orbecido III;10 the provision was enacted to "avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse."11 THE PETITION From the RTCs ruling,12 Gerbert filed the present petition.13 Gerbert asserts that his petition before the RTC is essentially for declaratory relief, similar to that filed in Orbecido; he, thus, similarly asks for a determination of his rights under the second paragraph of Article 26 of the Family Code. Taking into account the rationale behind the second paragraph of Article 26 of the Family Code, he contends that the provision applies as well to the benefit of the alien spouse. He claims that the RTC ruling unduly stretched the doctrine in Orbecido by limiting the standing to file the petition only to the Filipino spouse an interpretation he claims to be contrary to the essence of the second paragraph of Article 26 of the Family Code. He considers himself as a proper

party, vested with sufficient legal interest, to institute the case, as there is a possibility that he might be prosecuted for bigamy if he marries his Filipina fiance in the Philippines since two marriage certificates, involving him, would be on file with the Civil Registry Office. The Office of the Solicitor General and Daisylyn, in their respective Comments,14 both support Gerberts position. Essentially, the petition raises the issue of whether the second paragraph of Article 26 of the Family Code extends to aliens the right to petition a court of this jurisdiction for the recognition of a foreign divorce decree. THE COURTS RULING The alien spouse can claim no right under the second paragraph of Article 26 of the Family Code as the substantive right it establishes is in favor of the Filipino spouse The resolution of the issue requires a review of the legislative history and intent behind the second paragraph of Article 26 of the Family Code. The Family Code recognizes only two types of defective marriages void15 and voidable16 marriages. In both cases, the basis for the judicial declaration of absolute nullity or annulment of the marriage exists before or at the time of the marriage. Divorce, on the other hand, contemplates the dissolution of the lawful union for cause arising after the marriage.17 Our family laws do not recognize absolute divorce between Filipino citizens.18 Recognizing the reality that divorce is a possibility in marriages between a Filipino and an alien, President Corazon C. Aquino, in the exercise of her legislative powers under the Freedom Constitution,19 enacted Executive Order No. (EO) 227, amending Article 26 of the Family Code to its present wording, as follows: Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.

Through the second paragraph of Article 26 of the Family Code, EO 227 effectively incorporated into the law this Courts holding in Van Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-Somera.21 In both cases, the Court refused to acknowledge the alien spouses assertion of marital rights after a foreign courts divorce decree between the alien and the Filipino. The Court, thus, recognized that the foreign divorce had already severed the marital bond between the spouses. The Court reasoned in Van Dorn v. Romillo that: To maintain x x x that, under our laws, [the Filipino spouse] has to be considered still married to [the alien spouse] and still subject to a wife's obligations x x x cannot be just. [The Filipino spouse] should not be obliged to live together with, observe respect and fidelity, and render support to [the alien spouse]. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served.22 As the RTC correctly stated, the provision was included in the law "to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse."23 The legislative intent is for the benefit of the Filipino spouse, by clarifying his or her marital status, settling the doubts created by the divorce decree. Essentially, the second paragraph of Article 26 of the Family Code provided the Filipino spouse a substantive right to have his or her marriage to the alien spouse considered as dissolved, capacitating him or her to remarry.24 Without the second paragraph of Article 26 of the Family Code, the judicial recognition of the foreign decree of divorce, whether in a proceeding instituted precisely for that purpose or as a related issue in another proceeding, would be of no significance to the Filipino spouse since our laws do not recognize divorce as a mode of severing the marital bond;25 Article 17 of the Civil Code provides that the policy against absolute divorces cannot be subverted by judgments promulgated in a foreign country. The inclusion of the second paragraph in Article 26 of the Family Code provides the direct exception to this rule and serves as basis for recognizing the dissolution of the marriage between the Filipino spouse and his or her alien spouse. Additionally, an action based on the second paragraph of Article 26 of the Family Code is not limited to the recognition of the foreign divorce decree. If the court finds that the decree capacitated the alien spouse to remarry, the courts can declare that the Filipino spouse is likewise capacitated to contract another marriage. No court in this jurisdiction, however, can make a similar declaration for the alien spouse (other than that already established by the decree), whose status and legal capacity are generally governed by his national law.26

Given the rationale and intent behind the enactment, and the purpose of the second paragraph of Article 26 of the Family Code, the RTC was correct in limiting the applicability of the provision for the benefit of the Filipino spouse. In other words, only the Filipino spouse can invoke the second paragraph of Article 26 of the Family Code; the alien spouse can claim no right under this provision. The foreign divorce decree is presumptive evidence of a right that clothes the party with legal interest to petition for its recognition in this jurisdiction We qualify our above conclusion i.e., that the second paragraph of Article 26 of the Family Code bestows no rights in favor of aliens with the complementary statement that this conclusion is not sufficient basis to dismiss Gerberts petition before the RTC. In other words, the unavailability of the second paragraph of Article 26 of the Family Code to aliens does not necessarily strip Gerbert of legal interest to petition the RTC for the recognition of his foreign divorce decree. The foreign divorce decree itself, after its authenticity and conformity with the aliens national law have been duly proven according to our rules of evidence, serves as a presumptive evidence of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules of Court which provides for the effect of foreign judgments. This Section states: SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title of the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. To our mind, direct involvement or being the subject of the foreign judgment is sufficient to clothe a party with the requisite interest to institute an action before our courts for the recognition of the foreign judgment. In a divorce situation, we have declared, no less, that the divorce obtained by an alien abroad may be recognized in the Philippines, provided the divorce is valid according to his or her national law.27

The starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts do not take judicial notice of foreign judgments and laws. Justice Herrera explained that, as a rule, "no sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another country."28 This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the aliens applicable national law to show the effect of the judgment on the alien himself or herself.29 The recognition may be made in an action instituted specifically for the purpose or in another action where a party invokes the foreign decree as an integral aspect of his claim or defense. In Gerberts case, since both the foreign divorce decree and the national law of the alien, recognizing his or her capacity to obtain a divorce, purport to be official acts of a sovereign authority, Section 24, Rule 132 of the Rules of Court comes into play. This Section requires proof, either by (1) official publications or (2) copies attested by the officer having legal custody of the documents. If the copies of official records are not kept in the Philippines, these must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. The records show that Gerbert attached to his petition a copy of the divorce decree, as well as the required certificates proving its authenticity,30 but failed to include a copy of the Canadian law on divorce.31 Under this situation, we can, at this point, simply dismiss the petition for insufficiency of supporting evidence, unless we deem it more appropriate to remand the case to the RTC to determine whether the divorce decree is consistent with the Canadian divorce law. We deem it more appropriate to take this latter course of action, given the Article 26 interests that will be served and the Filipina wifes (Daisylyns) obvious conformity with the petition. A remand, at the same time, will allow other interested parties to oppose the foreign judgment and overcome a petitioners presumptive evidence of a right by proving want of jurisdiction, want of notice to a party, collusion, fraud, or clear mistake of law or fact. Needless to state, every precaution must be taken to ensure conformity with our laws before a recognition is made, as the foreign judgment, once recognized, shall have the effect of res judicata32 between the parties, as provided in Section 48, Rule 39 of the Rules of Court.33 In fact, more than the principle of comity that is served by the practice of reciprocal recognition of foreign judgments between nations, the res judicata effect of the foreign judgments of divorce serves as the deeper basis for extending judicial recognition and for considering the alien spouse bound by its

terms. This same effect, as discussed above, will not obtain for the Filipino spouse were it not for the substantive rule that the second paragraph of Article 26 of the Family Code provides. Considerations beyond the recognition of the foreign divorce decree As a matter of "housekeeping" concern, we note that the Pasig City Civil Registry Office has already recorded the divorce decree on Gerbert and Daisylyns marriage certificate based on the mere presentation of the decree.34We consider the recording to be legally improper; hence, the need to draw attention of the bench and the bar to what had been done. Article 407 of the Civil Code states that "[a]cts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register." The law requires the entry in the civil registry of judicial decrees that produce legal consequences touching upon a persons legal capacity and status, i.e., those affecting "all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not."35 A judgment of divorce is a judicial decree, although a foreign one, affecting a persons legal capacity and status that must be recorded. In fact, Act No. 3753 or the Law on Registry of Civil Status specifically requires the registration of divorce decrees in the civil registry: Sec. 1. Civil Register. A civil register is established for recording the civil status of persons, in which shall be entered: (a) births; (b) deaths; (c) marriages; (d) annulments of marriages; (e) divorces; (f) legitimations; (g) adoptions; (h) acknowledgment of natural children;

(i) naturalization; and (j) changes of name. xxxx Sec. 4. Civil Register Books. The local registrars shall keep and preserve in their offices the following books, in which they shall, respectively make the proper entries concerning the civil status of persons: (1) Birth and death register; (2) Marriage register, in which shall be entered not only the marriages solemnized but also divorces and dissolved marriages. (3) Legitimation, acknowledgment, adoption, change of name and naturalization register. But while the law requires the entry of the divorce decree in the civil registry, the law and the submission of the decree by themselves do not ipso facto authorize the decrees registration. The law should be read in relation with the requirement of a judicial recognition of the foreign judgment before it can be given res judicata effect. In the context of the present case, no judicial order as yet exists recognizing the foreign divorce decree. Thus, the Pasig City Civil Registry Office acted totally out of turn and without authority of law when it annotated the Canadian divorce decree on Gerbert and Daisylyns marriage certificate, on the strength alone of the foreign decree presented by Gerbert. Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court recognition, as it cited NSO Circular No. 4, series of 1982,36 and Department of Justice Opinion No. 181, series of 198237 both of which required a final order from a competent Philippine court before a foreign judgment, dissolving a marriage, can be registered in the civil registry, but it, nonetheless, allowed the registration of the decree. For being contrary to law, the registration of the foreign divorce decree without the requisite judicial recognition is patently void and cannot produce any legal effect.1avvphi1 Another point we wish to draw attention to is that the recognition that the RTC may extend to the Canadian divorce decree does not, by itself, authorize the cancellation of the entry in the civil registry. A petition for recognition of a foreign judgment is not the proper proceeding, contemplated under the Rules of Court, for the cancellation of entries in the civil registry.

Article 412 of the Civil Code declares that "no entry in a civil register shall be changed or corrected, without judicial order." The Rules of Court supplements Article 412 of the Civil Code by specifically providing for a special remedial proceeding by which entries in the civil registry may be judicially cancelled or corrected. Rule 108 of the Rules of Court sets in detail the jurisdictional and procedural requirements that must be complied with before a judgment, authorizing the cancellation or correction, may be annotated in the civil registry. It also requires, among others, that the verified petition must be filed with the RTC of the province where the corresponding civil registry is located;38 that the civil registrar and all persons who have or claim any interest must be made parties to the proceedings;39 and that the time and place for hearing must be published in a newspaper of general circulation.40As these basic jurisdictional requirements have not been met in the present case, we cannot consider the petition Gerbert filed with the RTC as one filed under Rule 108 of the Rules of Court. We hasten to point out, however, that this ruling should not be construed as requiring two separate proceedings for the registration of a foreign divorce decree in the civil registry one for recognition of the foreign decree and another specifically for cancellation of the entry under Rule 108 of the Rules of Court. The recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a particular fact. Moreover, Rule 108 of the Rules of Court can serve as the appropriate adversarial proceeding41 by which the applicability of the foreign judgment can be measured and tested in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact. WHEREFORE, we GRANT the petition for review on certiorari, and REVERSE the October 30, 2008 decision of the Regional Trial Court of Laoag City, Branch 11, as well as its February 17, 2009 order. We order the REMAND of the case to the trial court for further proceedings in accordance with our ruling above. Let a copy of this Decision be furnished the Civil Registrar General. No costs. SO ORDERED.

Rule 109 Appeals in Special Proceedings Appeals in Special Proceedings

THIRD DIVISION [G.R. No. 138731. December 11, 2000] TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs. ROSALINA C. BIASCAN, respondent. DECISION GONZAGA-REYES, J.: This is a petition for review of the decision[1] of the Court of Appeals in CAG.R. SP Case No. 44306 affirming the orders dated October 22, 1996 and February 12, 1997 of the Regional Trial Court, Branch 4, Manila. These orders dismissed the appeal of petitioner from the orders dated April 2, 1981 and April 30, 1985 of the same Regional Trial Court. The facts of the case are as follows: On June 3, 1975, private respondent Rosalina J. Biascan filed a petition[2] denominated as Special Proceeding No. 98037 at the then Court of First Instance, Branch 4, Manila praying for her appointment as administratrix of the intestate estate of Florencio Biascan and Timotea Zulueta. In an Order dated August 13, 1975, private respondent was appointed as regular administratrix of the estates. On October 10, 1975, Maria Manuel Vda. De Biascan, the legal wife of Florencio Biascan entered her appearance as Oppositor-Movant in SP. Proc. No. 98037.[3] Simultaneous with her appearance, she filed a pleading containing several motions including a motion for intervention, a motion for the setting aside of private respondents appointment as special administratrix and administratrix, and a motion for her appointment as administratrix of the estate of Florencio Biascan.[4] After an exchange of pleadings between the parties, Judge Serafin Cuevas, then presiding judge of CFI Manila, Branch 4, issued an Omnibus Order[5] dated November 13, 1975 which, among others, granted Marias intervention and set for trial the motion to set aside the Orders appointing respondent as administratrix.

On April 2, 1981, the trial court issued an Order[6] resolving that: (1) Maria is the lawful wife of Florencio; (2) respondent and her brother are the acknowledged natural children of Florencio; (3) all three are the legal heirs of Florencio who are entitled to participate in the settlement proceedings; (4) the motion to set aside the order appointing private respondent as administratrix is denied; and (5) the motion to approve inventory and appraisal of private respondent be deferred. Maria, through her counsel, received a copy of this April 2, 1981 Order on April 9, 1981.[7] On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981 Order, Maria filed her motion for reconsideration[8] which private respondent opposed.[9] On November 15, 1981, the fourth floor of the City Hall of Manila was completely gutted by fire. The records of the settlement proceedings were among those lost in the fire. Thus, on January 2, 1985, private respondent filed a Petition for Reconstitution[10] of the said records. Due to the delay caused by the fire and the reconstitution of the records, it was only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4 issued an Order[11] denying Marias June 6, 1981 Motion for Reconsideration. Sometime thereafter, Maria died and her testate estate also became the subject of settlement proceedings. Atty. Marcial F. Lopez was appointed as interim special administrator and engaged the services of the Siguion Reyna Montecillo and Ongsiako Law Offices on Behalf of the estate. On August 21, 1996, the law firm was allegedly made aware of and given notice of the April 30, 1985 Order when its associate visited Branch 4 of the Regional Trial Court of Manila to inquire about the status of the case. The associate checked the records if there was proof of service of the April 30, 1985 Order to the former counsel of Maria, Atty. Marcial F. Lopez, but he discovered that there was none.[12] He was able to secure a certification[13] from the Clerk of Court of the Regional Trial Court of Manila, Branch 4 which stated that there was no proof of service of the Order dated April 30, 1985 contained in the records of SP. Proc. No. 98037. A Notice of Appeal[14] dated April 22, 1996 was filed by petitioner from the Orders dated April 2, 1981 and April 30, 1985 of the trial court. While the said notice of appeal was dated April 22, 1996, the stamp of the trial court on the first page of the notice clearly indicated that the same was received by the trial court on September 20, 1996. A Record of Appeal[15] dated September 20, 1996 was likewise filed by petitioner. On October 22, 1996, the trial court issued an Order[16] denying petitioners appeal on the ground that the appeal was filed out of time. The trial court ruled

that the April 2, 1981 Order which was the subject of the appeal already became final as the Motion for Reconsideration thereof was filed sixty-five (65) days after petitioner received the same. In addition, the court ruled that the notice of appeal itself was filed manifestly late as the same was filed more than 11 years after the issuance of the June 11, 1985 Order denying petitioners Motion for Reconsideration. The Motion for Reconsideration dated November 13, 1996 of petitioner was likewise denied by the trial court in an Order[17] dated February 12, 1997. Not satisfied with this decision, petitioner filed a Petition for Certiorari with Prayer for Mandatory Injunction[18] with the Court of Appeals questioning the October 12, 1996 and February 12, 1997 Orders of the Regional Trial Court. In a Decision[19] dated February 16, 1999, the First Division of the Court of Appeals denied the petition for certiorari of petitioner. Petitioners Motion for Reconsideration was likewise denied by the appellate court in a Resolution[20] dated May 18, 1999. Hence, this Petition for Review on Certiorari where petitioner sets forth the following ground for the reversal of the decision of the appellate court: THE FIRST DIVISION OF THE COURT OF APPEALS (REVIEWING COURT) HAS SANCTIONED THE DEPARTURE BY THE REGIONAL TRIAL COURT OF MANILA BRANCH 4 (TRIAL COURT) FROM THE USUAL COURSE OF JUDICIAL PROCEEDING IN ISSUING THE ASSAILED 16 FEBRUARY 1999 DECISION AND THE 18 MAY 1999 RESOLUTION WHEN IT AFFIRMED THE ERRONEOUS FINDING OF THE TRIAL COURT THAT THE ORDER DATED APRIL 2, 1981 BECAME FINAL AND EXECUTORY DESPITE THE FACT THAT NO OPPOSITION ON ITS TIMELINESS WAS FILED AND MOREOVER NO RULING AS REGARDS ITS TIMELINESS WAS MADE.[21] There is no merit in the petition. Section 1, Rule 109 of the Rules of Court enumerates the orders and judgments in special proceedings which may be the subject of an appeal. Thus: Section 1. Orders or judgments from which appeals may be taken. An interested person may appeal in a special proceeding from an order or judgment rendered by a Regional Trial Court or a Juvenile and domestic Relations Court, where such order or judgment: (a) Allows or disallows a will;

(b) Determines who are the lawful heirs of a deceased person, or the distributive shares of the estate to which such person is entitled; (c) Allows, or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; (d) Settles the account of an executor, administrator, trustee or guardian;

(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and (f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, unless it be an order granting or denying a motion for new trial or for reconsideration. An appeal is allowed in these aforesaid cases as these orders, decrees or judgments issued by a court in a special proceeding constitute a final determination of the rights of the parties so appealing.[22] In contrast, interlocutory orders are not appealable as these are merely incidental to judicial proceedings. In these cases, the court issuing such orders retains control over the same and may thus modify, rescind, or revoke the same on sufficient grounds at any time before the final judgment.[23] In the instant case, the Order dated April 2, 1981 of the trial court decreed, among others, that Maria Manuel Vda. De Biascan, the lawful wife of the deceased Florencio Biascan, private respondent Rosalina Biascan and her brother, German Biascan, are entitled to participate in the settlement proceedings. Moreover, the said Order likewise denied Marias motion to set aside the order appointing private respondent as regular administratrix of the estate. These rulings of the trial court were precisely questioned by Maria in her Motion for Reconsideration dated June 6, 1981. The ruling of the trial court that Maria, private respondent Rosalina Biascan and German Biascan were entitled to participate in the settlement proceedings falls squarely under paragraph (b), Section 1, Rule 109 of the Rules of Court as a proper subject of appeal. By so ruling, the trial court has effectively determined that the three persons are the lawful heirs of the deceased. As such, the same may be the proper subject of an appeal. Similarly, the ruling of the trial court denying petitioners motion to set aside the order appointing private respondent as the regular administratrix of the estate of Florencio Bisacan is likewise a proper subject of an appeal. We have

previously held that an order of the trial court appointing a regular administrator of a deceased persons estate is a final determination of the rights of the parties thereunder, and is thus, appealable.[24] This is in contrast with an order appointing a special administrator who is appointed only for a limited time and for a specific purpose. Because of the temporary character and special character of this appointment, the Rules deem it not advisable for any party to appeal from said temporary appointment.[25] Considering however that private respondent has aleready been appointed as regular administratrix of the estate of Florencio Biascan, her appointment as such may be questioned before the appellate court by way of appeal. It is thus clear that the Order dated April 2, 1981 may be the proper subject of an appeal in a special proceeding. In special proceedings, such as the instant proceeding for settlement of estate, the period of appeal from any decision or final order rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required.[26] The appeal period may only be interrupted by the filing of a motion for new trial or reconsideration. Once the appeal period expires without an appeal or a motion for reconsideration or new trial being perfected, the decision or order becomes final. With respect to the Order dated April 2, 1981 issued by the trial court, petitioner admits that Maria Manuel Vda. De Biascan, its predecessor-in-interest, received a copy of the same of April 9, 1981. Applying these rules, Maria or her counsel had thirty (30) days or until May 9 within which to file a notice of appeal with record on appeal. She may also file a motion for reconsideration, in which case the appeal period is deemed interrupted. Considering that it was only June 6, 1981, or a full fifty-eight (58) days after receipt of the order, that a motion for reconsideration was filed, it is clear that the same was filed out of time. As such, when the said motion for reconsideration was filed, there was no more appeal period to interrupt as the Order had already become final. Petitioner insists, however, that the order dated April 2, 1981 of the trial court did not become final and executory as no opposition on its timeliness was filed and no ruling as regards its timeliness was made. Petitioner argues that although its motion for reconsideration was denied in the Order dated April 30, 1985, the denial was made on grounds other than its failure to ask for a reconsideration within the period prescribed by law. As such, petitioner concludes, any procedural defect attending the Motion for Reconsideration was deemed cured when the trial court, in its Order dated April 30, 1985, took cognizance of the same and rendered its ruling thereon. There is no merit in this argument.

It is well-settled that judgment or orders become final and executory by operation of law and not by judicial declaration. Thus, finality of a judgment becomes a fact upon the lapse of the reglementary period of appeal if no appeal is perfected[27] or motion for reconsideration or new trial is filed. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. In fact, the trial court could not even validly entertain a motion for reconsideration filed after the lapse of the period for taking an appeal.[28]As such, it is of no moment that the opposing party failed to object to the timeliness of the motion for reconsideration or that the court denied the same on grounds other than timeliness considering that at the time the motion was filed, the Order dated April 2, 1981 had already become final and executory. Being final and executory, the trial court can no longer alter, modify, or reverse the questioned order.[29] The subsequent filing of the motion for reconsideration cannot disturb the finality of the judgment or order.[30] Even if we assume that the Motion for Reconsideration filed by petitioner had the effect of suspending the running of the appeal period for the April 2, 1981 Order, it is clear that petitioners notice of appeal of the orders of the trial court was still filed out of time. Under Section 3, Rule 41 of the Rules of Court then applicable, the time during which a motion to set aside the judgment or order or for a new trial shall be deducted from the period from which to make an appeal. The rule further states that where the motion was filed during office hours of the last day of the appeal period, the appeal must be perfected within the day following that in which the party appealing received notice of the denial of said motion. The Order of the trial court denying petitioners Motion for Reconsideration of the April 2, 1981 Order was issued on April 30, 1985. Allegedly, petitioner was only made aware of this April 30, 1985 Order on August 21, 1996 when it inquired from the trial court about the status of the case. Giving petitioner the benefit of the doubt that it had indeed received notice of the order denying its motion for reconsideration on August 21, 1996, it follows that petitioner only had until the following day or on August 22, 1996 within which to perfect the appeal. At this point, we note with disapproval petitioners attempt to pass off its Notice of Appeal as having been filed on August 22, 1996. In all its pleadings before this Court and the Court of Appeals, petitioner insists that its Notice of Appeal was filed the day after it secured the August 21, 1996 Certification from the trial court. While the Notice of Appeal was ostensibly dated August 22, 1996, it is clear from the stamp[31] of the trial court that the same was received only on September 20, 1996. Moreover, in the Order dated October 22, 1996 of the trial court denying petitioners appeal, the court clearly stated that the Notice of Appeal with accompanying Record on Appeal was filed on September 20, 1996.

Considering that it is clear from the records that petitioners notice of appeal was filed on September 20, 1996, the same was clearly filed out of time as it only had until August 22, 1996 within which to file the said pleading. And while the rules on special proceedings recognize that a motion for extension of time to file the notice of appeal and record of appeal may be granted,[32] WHEREFORE, premises considered, we hereby DISMISS the petition for lack of merit. The decision dated February 16, 1999 and the Resolution dated May 18, 1999 of the Court of Appeals are hereby AFFIRMED. SO ORDERED. Melo, (Chairman), Vitug, and Panganiban, JJ., concur.

Appeals in Special Proceedings

SECOND DIVISION G.R. No. 159130 August 22, 2008

ATTY. GEORGE S. BRIONES, petitioner, vs. LILIA J. HENSON-CRUZ, RUBY J. HENSON, and ANTONIO J. HENSON respondents. DECISION BRION, J.: We review in this petition1 the Decision of the Court of Appeals (Fifteenth Division) dated February 11, 20032 in CA-G.R. SP No. 71844. THE ANTECEDENTS Respondent Ruby J. Henson filed on February 23, 1999 a petition for the allowance of the will of her late mother, Luz J. Henson, with the Regional Trial Court (RTC) of Manila, docketed as Special Proceedings No. 99-92870. Lilia Henson-Cruz, one of the deceased's daughters and also a respondent in this petition, opposed Ruby's petition. She alleged that Ruby understated the value of their late mother's estate and acted with "unconscionable bad faith" in the management thereof. Lilia prayed that her mother's holographic will be disallowed and that she be appointed as the Intestate Administratrix. Lilia subsequently moved for the appointment of an Interim Special Administrator of the estate of her late mother, praying that the Prudential Bank & Trust Company-Ermita Branch be appointed as Interim Special Administrator. The trial court granted the motion but designated Jose V. Ferro (Senior Vice-President and Trust Officer, Trust Banking Group of the Philippines National Bank) as the Special Administrator. Ferro, however, declined the appointment. The trial court then designated petitioner Atty. George S. Briones as Special Administrator of the estate. Atty. Briones accepted the appointment, took his oath of office, and started the administration of the estate. The significant highlights of his administration are listed below:

1. On November 22, 1999, the trial court directed the heirs of Luz J. Henson to turn over the possession of all the properties of the deceased to the Special Administrator. 2. On February 16, 2000, Atty. Briones moved that the trial court approve Special Administrator's fees of P75,000.00 per month. These fees were in addition to the commission referred to in Section 7, Rule 85 of the Revised Rules of Court. The trial court granted the motion but reduced the fees to P60,000.00 per month, retroactive to the date Atty. Briones assumed office. 3. Atty. Briones filed a Special Administrator's Report No. 1 dated September 8, 2000 which contained an inventory of the properties in his custody and a statement of the income received and the disbursements made for the estate. The trial court issued an Order dated March 5, 2001 approving the report. 4. On September 17, 2001, the heirs of Luz J. Henson submitted a project of partition of the estate for the trial court's approval. 5. On January 8, 2002, Atty. Briones submitted the Special Administrator's Final Report for the approval of the court. He prayed that he be paid a commission of P97,850,191.26 representing eight percent (8%) of the value of the estate under his administration. 6. The respondents opposed the approval of the final report and prayed that they be granted an opportunity to examine the documents, vouchers, and receipts mentioned in the statement of income and disbursements. They likewise asked the trial court to deny the Atty. Briones' claim for commission and that he be ordered to refund the sum of P134,126.33 to the estate. 7. On February 21, 2002, the respondents filed an audit request with the trial court. Atty. Briones filed his comment suggesting that the audit be done by an independent auditor at the expense of the estate. 8. In an Order dated March 12, 2002, the trial court granted the request for audit and appointed the accounting firm Alba, Romeo & Co. to conduct the audit. 9. The respondents moved for the reconsideration of Order dated March 12, 2002, alleging that in view of the partition of the estate there was no more need for a special administrator. They also clarified that they were

not asking for an external audit; they merely wanted to be allowed to examine the receipts, vouchers, bank statements, and other documents in support of the Special Administrator's Final Report and to examine the Special Administrator under oath. 10. The trial court handed down an Order dated April 13, 2002, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, the court hereby: 1. Reiterates its designation of the accounting firm of Messrs. Alba, Romeo & Co. to immediately conduct an audit of the administration by Atty. George S. Briones of the estate of the late Luz J. Henson, the expenses of which shall be charged against the estate. 2. Suspends the approval of the report of the special administrator except the payment of his commission, which is hereby fixed at 1.8% of the value of the estate. 3. Directs the special administrator to deliver the residue to the heirs in proportion to their shares. From the shares of Lilia J. Henson-Cruz, there shall be deducted the advances made to her. IT IS SO ORDERED. On April 29, 2002, respondents filed with the Court of Appeals (CA) a Petition for Certiorari, Prohibition, and Mandamus which was raffled to the CA's Ninth Division and docketed as CA-G.R. SP No. 70349. The petition assailed the Order dated March 12, 2002 which appointed accounting firm Alba, Romeo & Co. as auditors and the Order dated April 3, 2002 which reiterated the appointment. Prior the filing of the petition for certiorari in CA G.R. SP No. 70349, the heirs of Luz Henzon filed on April 9, 2002 a Notice of Appeal with the RTC assailing the Order dated April 3, 2003 insofar as it directed the payment of Atty. Briones' commission. They subsequently filed their record on appeal. The trial court, however, denied the appeal and disapproved the record on appeal on May 23, 2002 on the ground of forum shopping. Respondents' motion for reconsideration was likewise denied.

On July 26, 2002, the respondents filed a Petition for Mandamus with the appellate court, docketed asCA-G.R. SP No. 71844. They claimed that the trial court unlawfully refused to comply with its ministerial duty to approve their seasonably-perfected appeal. They refuted the trial court's finding of forum shopping by declaring that the issues in their appeal and in their petition for certiorari (CA-G.R. SP No. 70349) are not identical, although both stemmed from the same Order of April 3, 2002. The appeal involved the payment of the special administrator's commission, while the petition for certiorari assailed the appointment of an accounting firm to conduct an external audit. On the other hand, the petitioner insisted that the respondents committed forum shopping when they assailed the Order of April 3, 2002 twice, i.e., through a special civil action for certiorari and by ordinary appeal. Forum shopping took place because of the identity of the reliefs prayed for in the two cases. The petitioner likewise posited that the trial court's error, if any, in dismissing the appeal on the ground of forum shopping is an error of judgment, not of jurisdiction, and hence is not correctible by certiorari. On February 11, 2003, the Court of Appeals decided the respondents' petition for Mandamus (CA-G.R. SP No. 71844) as follows: WHEREFORE, the petition is GRANTED and respondent Judge is directed to give due course to the appeal of petitioners from the Order dated April 3, 2002 insofar as it directed the payment of commission to private respondent. [Emphasis supplied.] SO ORDERED. The Court of Appeals held that the trial court had neither the power nor the authority to deny the appeal on the ground of forum shopping. It pointed out that under Section 13, Rule 41 of the 1997 Rules of Civil Procedure, as amended, the authority of the trial court to dismiss an appeal, either motu proprio or on motion, may be exercised only if the appeal was taken out of time or if the appellate court docket and other fees were not paid within the reglementary period. Atty. Briones moved for the reconsideration of this decision. The appellate court denied his motion in its Resolution dated July 17, 2003. Thereupon, he seasonably filed the present Petition for Review on Certiorari on September 4, 2003 on the ground that the CA refused to resolve the issue of forum shopping in its Decision of February 11, 2003 and its resolution of July 17, 2003 in CA-G.R. SP No. 71844 (Petition for Mandamus to give due course to the appeal).

In the interim, on August 5, 2003, the Court of Appeals (Ninth Division) handed down its Decision3 in CA-G.R. SP No. 70439 (Petition for Certiorari, Prohibition, and Mandamus on the appointment of the auditing firm), whose fallo reads: WHEREFORE, premises considered, the petition is GRANTED. The assailed Orders dated March 12, 2002 and April 3, 2002 are REVERSED and SET ASIDE. Public respondent Judge Artemio S. Tipon is hereby COMMANDED to allow petitioner-heirs: 1) to examine all the receipts, bank statements, bank passbook, treasury bills, and other documents in support of the Special Administrator's Final Report, as well as the Statement of the Income and Disbusement Made from the Estate; and 2) to cross-examine private respondent Briones, before finally approving the Special Administrator's Final Report. [Emphasis supplied.] SO ORDERED. THE PARTIES' POSITIONS The petitioner faults the appellate court for refusing to resolve the forum shopping issue in its Decision of February 11, 2003 and the Resolution of July 17, 2003, thereby deciding the case in a way not in accord with law or with applicable decisions of this Court. On the matter of forum shopping, the appellate court simply stated in its decision that "In view of the fact that respondent Judge had no power to disallow the appeal on the ground of forum shopping, we deem it unnecessary to discuss whether or not petitioners committed forum shopping." Neither did the appellate court pass upon the issue of forum shopping in its ruling on the petitioner's motion for reconsideration, stating that forum shopping should be resolved either in the respondent's appeal or in their petition for certiorari, prohibition, and mandamus (CA-G.R. SP No. 70349). As basis, the petitioner cites Section 3 of this Court's Circular No. 28-91 which provides that "(a) Any violation of this Circular shall be a cause for the summary dismissal of the multiple petition or complaint; and (b) Any willful and deliberate forum shopping by any party and his lawyer with the filing of multiple petitions and complaints to ensure favorable action shall constitute direct contempt of court." To prove that forum shopping transpired, the petitioner cites the respondents' petition for certiorari, prohibition, and mandamus (CA-G.R. SP No. 70349) that prayed for the annulment of the assailed Order of April 3, 2002 in its entirety. To the petitioner, the attack on the entire Order meant that even the payment of the special administrator's commission - which was the subject of a separate appeal - was covered by the petition. The petitioner further alleged that "to conceal the

attempt at forum shopping, respondents deliberately failed to mention the existence of their ordinary appeal of the same Order of April 3, 2002 in the certification against forum shopping attached to their petition for certiorari, prohibition, and mandamus in CA-G.R. SP No. 70349." The petitioner cites in support of his position the cases of Silahis International, Inc. v. National Labor Relations Commission,4 Tantoy Sr. v. Court of Appeals,5 and First Philippine International Bank v. Court of Appeals.6 Silahis was cited for the proposition that only one recourse - the appeal - should have been filed because the issues were inter-related. Tantoy, Sr. spoke of related causes or the same or substantially the same reliefs in considering whether there is forum shopping. On the other hand, First Philippine International Bank was cited to emphasize that the key to a finding of forum shopping is the objective of the relief; though differently worded, there is violation of the rule against forum shopping if the objective in all the actions filed involves the same relief - in this case, the setting aside of the Order of April 3, 2002. The petitioner noted that the respondents had succeeded in obtaining this relief in their petition for certiorari, prohibition, and mandamus (CA-G.R. SP No. 70349) and the ruling in this petition already constituted res judicata on the validity of the Order of April 3, 2002. The respondents, for their part, claim that "the mere failure to specify in the decision the contentions of the appellant and the reason for refusing to believe them is not sufficient to hold the same contrary to the provisions of the law and the Constitution."7 In support of the twin recourses they took, they cite Argel v. Court of Appeals8 where this Court rejected the ground for objection similar to present petitioner's because "the special civil action for certiorari and the appeal did not involve the same issue." The respondents saw as ineffective the argument that the petition for certiorari prayed for the annulment of the entire Order of April 3, 2002 since the petition and the appeal were very specific on the portions of the Order that were being assailed. They pointed, too, to the decision in CA-G.R. SP No. 70349 which only passed upon the issues specified in the petition for certiorari, leaving untouched the issue that they chose to raise via an appeal. As their last point, the respondents claimed they saw no need to mention the pendency of the appeal in their non-forum shopping certification because the appeal dealt with an issue altogether different from the issues raised in the petition for certiorari, citing for this purpose the specific wordings of Section 5, Rule 7 of the Revised Rules of Court. THE ISSUE

The sole issue presented to us for resolution is: Did the Court of Appeals (Fifteenth Division) err in not dismissing the respondents' petition for mandamus (CA-G.R. SP No. 71844) on the ground of forum shopping? THE COURT'S RULING We find the petition devoid of merit as the discussions below will show. The Order of April 3, 2002 An examination of the RTC Order of April 3, 2002 shows that it resolved three matters, namely: (1) the designation of the accounting firm of Alba, Romeo & Co. to conduct an audit of the administration of Atty. George S. Briones of the estate of Luz J. Henson, at the expense of the estate; (2) the payment of the petitioner's commission as the estate's Special Administrator; and (3) the directive to the petitioner to deliver the residue of the estate to the heirs in their proportional shares. Of these, only the first two are relevant to the present petition as the third is the ultimate directive that will close the settlement of estate proceedings. The first part of the Order (the auditor's appointment) was the subject of the petition for certiorari, prohibition, and mandamus that the respondents filed before the appellate court (CA-G.R. SP No. 70349). Whether this part is interlocutory or one that fully settles the case on the merits can be answered by the test that this Court laid down in Mirada v. Court of Appeals: "The test to ascertain whether or not an order is interlocutory or final is - Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not it is final." 9 The terms of the trial court's order with respect to the appointment or "designation" of the accounting firm is clear: "to immediately conduct an audit of the administration by Atty. George S. Briones of the estate of the late Luz J. Henson, the expenses of which shall be charged against the estate." To audit, is "to examine and verify (as the books of account of a company or a treasurer's accounts)." An audit is the "formal or official examination and verification of books of account (as for reporting on the financial condition of a business at a given date or on the results of its operations for a given period)."10Black's Law Dictionary defines it no differently: "a systematic inspection of accounting records involving analyses, tests and confirmations; a formal or official examination and authentication of accounts, with witnesses, vouchers, etc."11

Given that the subject matter of the audit is Atty. Briones' Final Report in the administration of the estate of the decedent, its preparatory character is obvious; it is a prelude to the court's final settlement and distribution of the properties of the decedent to the heirs. In the context of what the court's order accomplishes, the court's designation of an auditor does not have the effect of ruling on the pending estate proceeding on its merits (i.e., in terms of finally determining the extent of the net estate of the deceased and distributing it to the heirs) or on the merits of any independently determinable aspect of the estate proceeding; it is only for purposes of confirming the accuracy of the Special Administrator's Final Report, particularly of the reported charges against the estate. In other words, the designation of the auditor did not resolve Special Proceedings No. 99-92870 or any independently determinable issue therein, and left much to be done on the merits of the case. Thus, the April 3, 2002 Order of the RTC is interlocutory in so far as it designated an accounting firm to audit the petitioner's special administration of the estate. In contrast with the interlocutory character of the auditor's appointment, the second part is limited to the Special Administrator's commission which was fixed at 1.8% of the value of the estate. To quote from the Order: the court hereby. . . 2. Suspends the approval of the report of the special administrator except the payment of his commission, which is hereby fixed at 1.8% of the value of the estate." Under these terms, it is immediately apparent that this pronouncement on an independently determinable issue - the special administrator's commission - is the court's definite and final word on the matter, subject only to whatever a higher body may decide if an appeal is made from the court's ruling. From an estate proceeding perspective, the Special Administrator's commission is no less a claim against the estate than a claim that third parties may make. Section 8, Rule 86 of the Rules recognizes this when it provides for "Claim of Executor or Administrator Against an Estate."12 Under Section 13 of the same Rule, the action of the court on a claim against the estate "is appealable as in ordinary cases."13 Hence, by the express terms of the Rules, the ruling on the extent of the Special Administrator's commission - effectively, a claim by the special administrator against the estate - is the lower court's last word on the matter and one that is appealable. Available the April 3, 2002 Order Recourses against

We bring up the above distinctions between the first two parts of the Order of April 3, 2002 to highlight that the directives or determinations under the Order are not similarly final and appealable in character. In this regard, Section 1, Rule 41

of the 1997 Rules of Rules of Court lays down the rules on what are or are not subject to appeal and it provides: Section 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein when declared by these Rules to be appealable. No appeal shall be taken from: xxx (c) An interlocutory order. xxx In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Under these terms and taking into account the previous discussion of the nature of the various parts of the Order of April 3, 2002, the lower court's determination of the special administrator's commission is clearly appealable while the auditor's appointment is not. The latter, under the express terms of the above provision, can be the subject of an "appropriate special civil action under Rule 65." Rulings abound on when an appeal or a petition for certiorari is the appropriate recourse to take from a lower court ruling.14 The twist in the present case is that the losing party took two available recourses from the same Order of the lower court: an appeal was made with respect to that portion of the Order that is final in character, and a petition for certiorari was taken against the portion that, again by its nature, is interlocutory. It was under these circumstances that the petitioner posited that forum shopping had been committed as the respondents should have simply appealed, citing the interlocutory aspect as an error in the appeal of the final aspect of the Order of April 3, 2002. While the petitioner's position may be legally correct as a general rule, it is not true in the present case considering the unique nature of the case that gave rise to the present petition. The petitioner is the special administrator in a settlement of estate, a special proceeding governed by Rule 72 to 109 of the Revised Rules of Court. Section 1, Rule 109 in part states: Section 1. Orders or judgments from which appeals may be taken. - An interested person may appeal in special proceedings from an order or

judgment rendered by a Court of First Instance or a Juvenile Domestic Relations Court, where such order or judgment: xxxxxxxxx (c) allows or disallows, in whole or in part, any claim against the estate of a deceased person, or any claim presented on behalf of the estate in offset to a claim against it; (d) settles the account of an executor, administrator, trustee or guardian; (e) constitutes, in the proceedings relating to the settlement of the estate of a deceased person x x x a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator. The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to proceed in the event that a separate and distinct issue is resolved by the court and held to be final.15 In this multi-appeal mode, the probate court loses jurisdiction only over the subject matter of the appeal but retains jurisdiction over the special proceeding from which the appeal was taken for purposes of further remedies the parties may avail of.16 Where multi-appeals are allowed, we see no reason why a separate petition for certiorari cannot be allowed on an interlocutory aspect of the case that is separate and distinct as an issue from the aspect of the case that has been adjudged with finality by the lower court. To reiterate, the matter appealed matter was the special administrator's commission, a charge that is effectively a claim against the estate under administration, while the matter covered by the petition for certiorari was the appointment of an auditor who would pass upon the special administrator's final account. By their respective natures, these matters can exist independently of one another and can proceed separately as envisioned by the Rules under Rule 109. The Forum Shopping Issue Forum shopping is the act of a litigant who "repetitively availed of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other court to increase his chances of obtaining a favorable decision if not in one court, then in another."17 It is directly addressed and prohibited under Section 5, Rule 7 of the 1997 Rules of Civil

Procedure, and is signaled by the presence of the following requisites: (1) identity of parties, or at least such parties who represent the same interests in both actions, (2) identity of the rights asserted and the relief prayed for, the relief being founded on the same facts, and (3) identity of the two preceding particulars such that any judgment rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other.18 In simpler terms, the test to determine whether a party has violated the rule against forum shopping is where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other.19 We see no forum shopping after considering these standards as neither litis pendentia nor res judicatawould result in one case from a ruling in the other, notwithstanding that the appeal that subsequently became the subject of CAG.R. SP No. 71844 and the petition for certiorari in CA-G.R. SP No. 70439 both stemmed from the trial court's Order dated April 3, 2002. The simple reason - as already discussed above - is that the petition and the appeal involve two different and distinct issues so that a ruling in either one will not affect the other. Forum shopping is further negated when the nature of, and the developments in, the proceedings are taken into account - i.e., an estate proceedings where the Rules expressly allow separate appeals and where the respondents have meticulously distinguished what aspect of the RTC's single Order could be appealed and what could not. Thus, the petitioner cannot take comfort in the cases it cited relating to forum shopping; these cases, correct and proper in their own factual settings, simply do not apply to the attendant circumstances and special nature of the present case where the issues, although pertaining to the same settlement of estate proceedings and although covered by the same court order, differ in substance and in stage of finality and can be treated independently of one another for the purposes of appellate review. Did the Court of Appeals err in refusing to resolve the issue of forum shopping? Given our above discussion and conclusions, we do not see forum shopping as an issue that would have made a difference in the appellate court's ruling. Nor is it an issue that the appellate court should, by law, have fully ruled upon on the merits. We agree with the respondent that the appellate court is not required "to resolve every contention and issue raised by a party if it believes it is not necessary to do so to decide the case." 20 The reality though is that the appellate court did rule on the issue when it stated that "it becomes unnecessary to discuss whether the latter engaged in forum shopping. Apparently, the issue on forum shopping was also raised in CA-G.R. SP No. 70349 and private respondent can again raise the same in the appeal

from the order dated April 3, 2002, where the issue should be properly resolved."21 To the appellate court - faced with the task of ruling on a petition for mandamus to compel the trial court to allow the respondents' appeal - forum shopping was not an issue material to whether the trial court should or should not be compelled; what was material are the requisite filing of a notice of appeal and record on appeal, and the question of whether these have been satisfied. We cannot find fault with this reasoning as the forum shopping issue - i.e., whether there was abuse of court processes in the respondents' use of two recourses to assail the same trial court order - has specific pertinence and relevance in the sufficiency and merits of the recourses the respondents took. In sum, we hold that the Court of Appeals did not err in refusing to resolve forum shopping as an issue in its Decision in CA-G.R. SP No. 71844. WHEREFORE, we hereby DENY the petition and, accordingly, AFFIRM the Decision of the Court of Appeals dated February 11, 2003 in CA-G.R. SP No. 71844. Costs against the petitioner. SO ORDERED.

Appeals in Special Proceedings

SECOND DIVISION G.R. No. 184799 September 1, 2010

HEIRS and/or ESTATE OF ATTY. ROLANDO P. SIAPIAN, represented by SUSAN S. MENDOZA, Petitioners, vs. INTESTATE ESTATE OF THE LATE EUFROCINA G. MACKAY as represented by DR. RODERICK MACKAY and ENGR. ELVIN MACKAY IN THEIR CAPACITY AS THE NEWLY COURT APPOINTED COADMINISTRATORS,Respondents. DECISION ABAD, J.: This case is about, first, the propriety of hearing and adjudicating a claim for attorneys fees in the case in which the lawyer rendered his services and, second, the need to establish extrinsic fraud or lack of jurisdiction in actions for annulment of judgment or final order. The Facts and the Case On May 14, 1994 Eufrocina G. Mackay died intestate in Caloocan City. She left four children: Antonio, Arturo, Domingo, and Elpidio. Another child, Honorato, predeceased Eufrocina. On July 1, 1994 Antonio filed before the Regional Trial Court (RTC) of Caloocan City a petition for the settlement of Eufrocinas intestate Estate1 and for his appointment as the Estates administrator. But the other heirs, namely, Arturo, Domingo, Elpidio, and Honorato (represented by Rolando Mackay), collectively referred to as Arturo, et al, opposed Antonios appointment as administrator and pushed instead for the appointment of Arturo. To represent them in the case, Arturo, et al engaged the services of Atty. Rolando P. Siapian and agreed to pay him the equivalent of 1% of what they will receive from the Estate. The parties later fixed Atty. Siapians attorneys fees atP3 million.2 On November 2, 1994 the intestate court issued an order appointing Antonio and Arturo as co-special administrators of the Estate. About a year and a half later or in April 1996, Arturo, et al told the RTC3 that they had terminated Atty. Siapians

services. This prompted Atty. Siapian to file a motion,4 claiming payment of his attorneys fees. He asked the court not to recognize in the meantime any new counsel for Arturo, et al since they illegally terminated his services. The Estate opposed the motion, saying that it cannot be held answerable for Atty. Siapians claim for attorneys fees against his clients. On August 1, 1996 the court denied Atty. Siapians motion on the ground that it had limited jurisdiction and could not resolve issues relating to attorneys fees which was a concern only of the lawyer and his clients. Despite this order, Atty. Siapian filed on September 2, 1996 a motion for enforcement and annotation of his attorneys lien.5 He also asked the court to: 1) reconsider its August 1, 1996 order; 2) direct Arturo, et al to pay his attorneys fees; and 3) order the Register of Deeds to inscribe his claim as a lien on the titles of the Estate to its properties. On April 3, 1997 the intestate court granted the motion.6 The court said that, while the Estate itself cannot be held liable for subject attorneys fees for lack of privity of contract, Arturo, et al should jointly pay the P3 million attorneys fees of Atty. Siapian. His clients, said the court, must judiciously and fairly exercise their right to terminate the services of counsel and this cannot be for the purpose of evading an obligation to pay his fees. The court pointed out that Arturo, et al did not present proof that Atty. Siapian was inept and remiss in his duties. Rather, the records showed that he competently handled the case. Arturo, et al appealed7 the order. On September 8, 1997, however, the intestate court issued an order, 1) denying due course to the appeal for having been filed beyond the reglementary period and, 2) granting Atty. Siapians motion for issuance of a writ of execution.8 Arturo, et al filed a special civil action of certiorari before the Court of Appeals (CA). On September 18, 1997 the CA dismissed the petition for their failure to deposit the amount required as payment for costs.9 On October 11, 1997 the order of dismissal became final and later an entry of judgment was made on its account.10 On September 17, 1997 Atty. Siapian moved for the entry and inscription of his attorneys lien on the titles of the Estates properties. Meanwhile, on October 15, 1997 Atty. Siapian died and was substituted by his heirs. On June 18, 1998 the intestate court issued an Order, directing the Register of Deeds of Caloocan City, Quezon City, Marikina City and the Province of Rizal to annotate the attorneys lien of Atty. Siapian on the titles mentioned.11The court explicitly stated that the attorneys lien was to affect only the distributive shares of Arturo, et al. The latter heirs did not question the order. Seven years later or on October 10, 2005 Arturo, et al filed before the CA a Petition for Annulment of Judgment or Final Orders and Resolutions under Rule

47 of the Rules of Court, asking the CA to declare null and void the following orders for having been issued by the intestate court without jurisdiction: 1) The April 3, 1997 Order, requiring Arturo, et al to jointly pay the attorneys fees; 2) The July 4, 1997 Order, denying the motion to reconsider the April 3 order; 3) The September 8, 1997 Order, granting Atty. Siapians motion for issuance of writ of execution; and 4) The June 18, 1998 order, directing the Register of Deeds to annotate the attorneys lien on the titles of the Estates property. On April 22, 2008 the CA rendered a decision, declaring the June 18, 1998 order of the intestate court null and void.12 The CA ruled that the Estate cannot be held liable for attorneys fees arising out of the dispute between the Estates beneficiaries and their lawyer. Only Arturo, et al, in their personal capacities, should be held liable to Atty. Siapian. The April 3 and September 8, 1997 orders clearly stated that only they are liable to the lawyer since the Estate was not a party to their fee agreement. The CA annulled the June 18, 1998 order since it encumbered and made the Estates properties answerable to Atty. Siapians claim for attorneys fees. Further, the CA noted that the late Atty. Siapian failed to fully accomplish the purpose for which his services were engaged and that the shares of Arturo, et al in the properties of the Estate remained to be ascertained. The inventory of assets was still to be completed and the Estates debts settled. Even so, said the CA, the reasonableness of Atty. Siapians claim for attorneys fees was yet to be determined. The heirs of Atty. Siapian moved for the reconsideration of the decision but the CA denied the same.13 Questions Presented Petitioner heirs of Atty. Siapian present the following issues: 1. Whether or not the CA erred in effectively setting aside the intestate courts order of April 3, 1997 for Arturo, et al to pay Atty. Siapians P3 million claim for attorneys fees; and

2. Whether or not the CA erred in nullifying the June 18, 1998 order of the intestate court which directed the annotation of the attorneys lien on the titles of the properties of the Estate. The Courts Rulings One. It is settled that a claim for attorneys fees may be asserted either in the very action in which a lawyer rendered his services or in a separate action.14 But enforcing it in the main case bodes well as it forestalls multiplicity of suits. The intestate court in this case, therefore, correctly allowed Atty. Siapian to interject his claim for attorneys fees in the estate proceedings against some of the heirs and, after hearing, adjudicate the same on April 3, 1997 with an order for Arturo, et al to pay Atty. Siapian the fees of P3 million due him.15 The record shows that Arturo, et al filed a notice of appeal from the intestate courts April 3, 1997 order but the latter court declined to give due course to it for having been filed out of time.16 This prompted them to file a special civil action for certiorari with the CA.17 But the latter dismissed the petition for the failure of Arturo, et al to deposit the amount required as payment for costs. The dismissal became final and an entry of judgment was made in the case on September 8, 1997. Arturo, et al has failed to establish any ground for the CA to annul the April 3, 1997 order. They allege no extrinsic fraud committed in the issuance of that order. Nor were they able to show that the intestate court lacked jurisdiction to adjudicate the claim of Atty. Siapian for attorneys fees. Parenthetically, the Court cannot but give credence to the intestate courts finding that Atty. Siapian competently handled the cause of Arturo, et al18 up until they terminated his services. Two. Since the award of P3 million in attorneys fees in favor of Atty. Siapian had already become final and executory, the intestate court was within its powers to order the Register of Deeds to annotate his lien on the Estates titles to its properties. The Estate has no cause for complaint since the lien was neither a claim nor a burden against the Estate itself. It was not enforceable against the Estate but only against Arturo, et al, who constituted the majority of the heirs. It is a lien contingent on the intestate courts final determination of Arturo, et als shares of what would remain of the estates properties after payment of taxes and debts. Thus, the June 18, 1998 order explicitly stated that "The attorneys lien however shall affect the distributive share of the Oppositors, namely: Arturo, Elpidio, Domingo and Ronald, all surnamed Mackay."191avvphi1

At any rate, the Estates petition under Rule 47 of the Rules of Court was not the proper remedy for nullifying the June 18, 1998 order of the intestate court, which directed the annotation of Atty. Siapians lien on the titles of the Estates properties. That order is interlocutory. An interlocutory order refers to a ruling respecting some point or matter between the commencement and end of the suit, but is not a final adjudication of the claims and liabilities of the parties that are in dispute in that suit. The June 18, 1998 order only dealt with and resolved the incidental matter of whether to allow the annotation of an attorneys lien on the properties of the Estate. Evidently, that order did not settle any claim for money or impose any liability against any of the parties to the case. The Court ruled in Palanca v. Pecson20 that an attorney may cause a statement of his lien to be registered even before the rendition of any judgment, the purpose being merely to establish his right to the lien. The recording of an attorneys lien is distinct from its enforcement, which may only take place after the judgment is secured in favor of the client. The CA therefore erred in declaring null and void the June 18, 1998 order of the intestate court. WHEREFORE, the Court GRANTS the petition, SETS ASIDE the decision of the Court of Appeals in CA-G.R. SP 91652 dated April 22, 2008, and REINSTATES the June 18, 1998 Order of the Regional Trial Court of Caloocan City in Special Proceeding C-1814. SO ORDERED.

Special Proceedings under Other Laws or SC rules Sec. 5/2 RA 8799

AM 01-2-04 SC Interim Rules of Procedure governing Intra-corporate Controversies 2008 Rules on Corporate Rehabilitation (see rules 2 and 4 re: pre-trial)

Other Laws or SC rules

FIRST DIVISION G.R. No. 172302 February 4, 2008

PRYCE CORPORATION, petitioner, vs. THE COURT OF APPEALS and CHINA BANKING CORPORATION, respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is a petition for review on certiorari seeking to reverse the Decision1 of the Court of Appeals (Seventh Division) dated July 28, 2005 in CAG.R. SP No. 88479. Pryce Corporation, petitioner, was incorporated under Philippine laws on September 7, 1989. Its primary purpose was to develop real estate in Mindanao. It engaged in the development of memorial parks, operated a major hotel in Cagayan de Oro City, and produced industrial gases. The 1997 Asian financial crisis, however, badly affected petitioners operations, resulting in heavy losses. It could not meet its obligations as they became due. It incurred losses of P943.09 million in 2001, P479.05 million in 2002, and P125.86 million in 2003. Thus, on July 12, 2004, petitioner filed with the Regional Trial Court (RTC), Branch 138, Makati City, acting as Commercial Court, a petition for rehabilitation,2 docketed as Special Proceedings No. M-5901. Petitioner prayed for the appointment of a Rehabilitation Receiver from among the nominees

named therein and the staying of the enforcement of all claims, monetary or otherwise against it. Petitioner also prayed that after due hearing, its proposed Rehabilitation Plan be approved. The salient features of the proposed Rehabilitation Plan3 are: [1] the bank creditors will be paid through dacion en pago of assets already mortgaged to them, to the extent sufficient to pay off the outstanding obligations. The excess assets, if any, will be freed from liens and encumbrances and released to the petitioner. [2] in case the value of the mortgaged assets for dacion is less than the amount of the obligation to be paid, the deficiency shall be settled by way of dacion of memorial park lots owned by the petitioner. [3] pricing of the assets for dacion shall be based on the average of two valuation appraisals from independent third-party appraisers accredited with the Bangko Sentral ng Pilipinas (BSP) to be chosen by the creditors and acceptable to the petitioner, except for memorial park lots which shall be valued atP16,000 per lot. [4] all penalties shall be waived by the creditors. [5] interest on the loans shall be accrued only up to June 30, 2003. [6] titles of properties and sales documents held by the bank as additional security but without actual mortgage on the properties will also be released to the petitioner after the dacion. [7] memorial park mother titles mortgaged to a creditor bank shall be priced based on the value of individual memorial lots comprising those titles, the mother titles shall be released to the petitioner. [8] for purpose of the dacion, the foreign currency loan from China Banking Corporation, the only US Dollar-denominated obligation, will be converted to peso based on the average exchange rate for the year 2003 (P54.2033 to US$1.00), being the mean of 12 monthly averages, as quoted on the statistics web page of the Bangko Sentral ng Pilipinas. [9] the bank creditors will avail of the tax exemption and benefits offered under the Special Purpose Vehicle (SPV) Law or R.A. No. 9182 to minimize the dacion-related costs for all parties concerned. Any concerned bank or financial institution which does not avail of said tax exemption

through its own fault will shoulder the applicable taxes and related fees for the dacion transaction. [10] trade creditors will be paid through dacion of memorial park lots. [11] any other debt not covered by mortgaged (sic) of assets or not falling under the aforementioned categories shall be paid through dacion of memorial park lots. On July 13, 2004, the RTC issued a "Stay Order"4 directing that: all claims against petitioner be deferred; the initial hearing of the petition for rehabilitation be set on September 1, 2004; and all creditors and interested parties should file their respective comments/oppositions to the petition. In the same Order, the RTC then appointed Gener T. Mendoza as Rehabilitation Receiver. The petition was opposed by petitioners bank-creditors. The Bank of the Philippine Islands claimed that the petition and the proposed Rehabilitation Plan are coercive and violative of the contract. The Land Bank of the Philippines contended, among others, that the petition is unacceptable because of the unrealistic valuation of the properties subject of the dacion en pago. The China Banking Corporation, respondent herein, alleged in its opposition that petitioner is solvent and that it filed the petition to force its creditors to accept dacion payments. In effect, petitioner passed on to the creditors the burden of marketing and financing unwanted memorial lots, while exempting it (petitioner) from paying interests and penalties. On September 13, 2004, the RTC issued an Order,5 the dispositive portion of which reads: WHEREFORE, the Petition is given due course. Let the Rehabilitation Plan, Annex J, Petition, be referred to Mr. Gener Mendoza, Rehabilitation Receiver, for evaluation and recommendation to be submitted not later than December 15, 2004. SO ORDERED. On December 6, 2004, the Rehabilitation Receiver, in compliance with the above Order, submitted an Amended Rehabilitation Plan, recommending the following: 1. Payment of all bank loans and long-term commercial papers (LTCP) through dacion en pago of PCs real estate assets;

2. Payment of all non-bank, trade and other payables amounting to at least P500,000 each through adacion of memorial park lots; and 3. Payment in cash over a three-year period, without interest, of all nonbank, trade and other payables amounting to less than P500,000 each. There are 290 of these creditors but their aggregate exposure to PC is only P7.64 million. The Rehabilitation Receiver further proposed the following amendments with respect to the dacion payments to petitioners bank creditors: 1. The asset base from which the creditors may choose to be paid has been broadened. Each creditor will no longer be limited to assets already mortgaged to it and may elect to be paid from the many other assets of the company, including even those mortgaged to other creditors. Any secured creditor, however, shall have priority to acquire the assets mortgaged to it. 2. A third appraiser has been added to the two proposed by PC to undertake valuation of assets earmarked for dacion. With three appraisers, more representative values are likely to be obtained. 3. Valuation of the memorial lots has been configured to dovetail with values approved in the corporate rehabilitation of Pryce Gases, Inc. (PGI), a subsidiary of PC. Thus, any memorial lot ceded to secured creditors shall be valued at P13,125 per lot, and P17,500/lot for unsecured creditors. On January 17, 2005, the RTC issued an Order approving the Amended Rehabilitation Plan and finding petitioner eligible to be placed in a state of corporate rehabilitation; and directing that its assets shall be held and disposed of and its liabilities paid and liquidated in the manner specified in the said Order. Consequently, on February 23, 2005, respondent filed with the Court of Appeals a petition for review, docketed as CA-G.R. SP No. 88479. Respondent alleged that in approving the Amended Rehabilitation Plan, the RTC impaired the obligations of contracts, voided contractual stipulation and contravened the "avowed policy of the State" to maintain a competitive financial system. On July 28, 2005, the Court of Appeals rendered its Decision granting respondents petition and reversing the assailed Orders of the RTC, thus: WHEREFORE, premises considered, petition is hereby GRANTED. The assailed July 13, 2004, September 13, 2004 and January 17, 2005 Orders

of the Regional Trial Court of Makati City, Branch 138, are hereby REVERSED and SET ASIDE. SO ORDERED. Petitioner herein seasonably filed a motion for reconsideration but it was denied by the appellate court in its Resolution dated April 12, 2006. Hence, the instant recourse raising the sole issue of whether the Court of Appeals erred in denying the petition for rehabilitation of petitioner Pryce Corporation. Section 6 of the Rehabilitation6 provides: Interim Rules of Procedure on Corporate

SEC. 6. Stay Order. If the court finds the petition to be sufficient in form and substance, it shall, not later than five (5) days from the filing of the petition, issue an Order (a) appointing a Rehabilitation Receiver and fixing his bond; (b) staying enforcement of all claims, whether for money or otherwise and whether such enforcement is by court action or otherwise, against the debtor, its guarantors and sureties not solidarily liable with the debtor; (c) prohibiting the debtor from selling, encumbering, transferring, or disposing in any manner any of its properties except in the ordinary course of business; (d) prohibiting the debtor from making any payment of its liabilities outstanding as of the date of filing of the petition; (e) prohibiting the debtors suppliers of goods or services from withholding supply of goods and services in the ordinary course of business for as long as the debtor makes payments for the services and goods supplied after the issuance of the stay order; (f) directing the payment in full of all administrative expenses incurred after the issuance of the stay order; (g) fixing the initial hearing on the petition not earlier than forty five (45) days but not later than sixty (60) days from the filing thereof; (h) directing the petitioner to publish the Order in a newspaper of general circulation in the Philippines once a week for two (2) consecutive weeks; (i) directing all creditors and all interested parties (including the Securities and Exchange Commission) to file and serve on the debtor a verified comment on or opposition to the petition, with supporting affidavits and documents, not later than ten (10) days before the date of the initial hearing and putting them on notice that their failure to do so will bar them from participating in the proceedings; and (j)directing the creditors and interested parties to secure from the court copies of the petition and its annexes within such time as to enable themselves to file

their comment on or opposition to the petition and to prepare for the initial hearing of the petition. Section 6 provides that the petition must be "sufficient in form and substance." In Rizal Commercial Banking Corporation v. Intermediate Appellate Court,7 this Court held that under Section 6(c) of P.D. No. 902-A,8receivers may be appointed whenever: (1) necessary in order to preserve the rights of the parties-litigants; and/or (2) protect the interest of the investing public and creditors. The situations contemplated in these instances are serious in nature. There must exist a clear and imminent danger of losing the corporate assets if a receiver is not appointed. Absent such danger, such as where there are sufficient assets to sustain the rehabilitation plan and both investors and creditors are amply protected, the need for appointing a receiver does not exist. Simply put, the purpose of the law in directing the appointment of receivers is to protect the interests of the corporate investors and creditors. We agree with the Court of Appeals that the petition for rehabilitation does not allege that there is a clear and imminent danger that petitioner will lose its corporate assets if a receiver is not appointed. In other words, the "serious situation test" laid down by Rizal Commercial Banking Corporation has not been met or at least substantially complied with. Significantly, the Stay Order dated July 13, 2004 issued by the RTC does not state any serious situation affecting petitioners corporate assets. We observe that in appointing Mr. Gener T. Mendoza as Rehabilitation Receiver, the only basis of the lower court was its finding that "the petition is sufficient in form and substance." However, it did not specify any reason or ground to sustain such finding. Clearly, thepetition failed to comply with the "serious situation test." As aptly held by the Court of Appeals: There are serious requirements before rehabilitation can be ordered. That is why this stay order is issued only after a management committee or receiver is appointed. Before a management committee or receiver is appointed, the law expressly states the serious requirements that must first exist: (1) an imminent danger (National Development Company and New Agrix, Inc. v. Philippine Veterans Bank, G.R. Nos. 84132-33, December 10, 1990, 192 SCRA 257) of dissipation, loss, wastage or destruction of assets or of paralization of business operations of the liquid corporation which may be prejudicial to the interest of minority stockholders, partieslitigants or to the general public, or (2) there is a necessity to preserve the rights and interests of the parties-litigants, of the investing public and of creditors.

In the case at bench, when the commercial court appointed a rehabilitation receiver, the very next day after the filing of the Petition for Rehabilitation, it is highly doubtful and well-nigh impossible, that, without any hearing yet held, the commercial court could have already gathered enough evidence before it to determine whether there was any imminent danger of dissipation of assets or of paralization of business operations to warrant the appointment of a rehabilitation receiver.9 In determining whether petitioners financial situation is serious and whether there is a clear and imminent danger that it will lose its corporate assets, the RTC, acting as commercial court, should conduct a hearing wherein both parties can present their respective evidence. Hence, a remand of the records of this case to the RTC is imperative. WHEREFORE, we DENY the petition. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 88479 isAFFIRMED with the modification discussed above. Let the records of this case be REMANDED to the RTC, Branch 138, Makati City, sitting as Commercial Court, for further proceedings with dispatch to determine the merits of the petition for rehabilitation. No costs. SO ORDERED. Puno, C.J., Chairperson, Corona, Azcuna, Leonardo-de Castro, JJ., concur.

Other Laws or SC rules

SECOND DIVISION G.R. No. 165571 January 20, 2009

PHILIPPINE NATIONAL BANK and EQUITABLE PCI BANK, Petitioners, vs. HONORABLE COURT OF APPEALS, SECURITIES AND EXCHANGE COMMISSION EN BANC, ASB HOLDINGS, INC., ASB REALTY CORPORATION, ASB DEVELOPMENT CORPORATION (formerly TIFFANY TOWER REALTY CORPORATION), ASB LAND INC., ASB FINANCE, INC., MAKATI HOPE CHRISTIAN SCHOOL, INC., BEL-AIR HOLDINGS CORPORATION, WINCHESTER TRADING, INC., VYL DEVELOPMENT CORPORATION, GERICK HOLDINGS CORPORATION, and NEIGHBORHOOD HOLDINGS, INC., Respondents. DECISION VELASCO, JR., J.: This is a petition for review under Rule 45 which seeks the reversal of the July 16, 2004 Decision1 and October 1, 2004 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 82800. The CA upheld the November 11, 2003en banc resolution3 of the Securities and Exchange Commission (SEC) and the orders dated October 10, 20004and April 26, 20015 by the SEC Hearing Panel in SEC Case No. 05-00-6609, thus effectively affirming the Rehabilitation Plan submitted by private respondents herein and the appointment of a rehabilitation receiver. The Facts Petitioners Philippine National Bank (PNB) and Equitable PCI Bank are members of the consortium of creditor banks constituted pursuant to the Mortgage Trust Indenture (MTI) 6 dated May 29, 1989, as amended, by and between Rizal Commercial Banking Corporation-Trust and Investments Division, acting as trustee for the consortium, and ASB Development Corporation (ASBDC, formerly Tiffany Tower Realty Corporation). Other members of the consortium include Metropolitan Bank and Trust Company (Metrobank), Prudential Bank, Union Bank of the Philippines, and United Coconut Planters Bank. Private respondents ASB Holdings, Inc., ASBDC, ASB Land, Inc., ASB Finance, Inc., Makati Hope Christian School, Inc., Bel-Air Holdings Corporation, Winchester Trading, Inc.,

VYL Holdings Corporation, and Neighborhood Holdings, Inc. (ASB Group) are corporations engaged in real estate development. The ASB Group is owned by Luke C. Roxas.7 Under the MTI, petitioners granted a loan of PhP 1,081,000,000 to ASBDC secured by a mortgage of five parcels of land with improvements.8 On May 2, 2000, private respondents filed with the SEC a verified petition for rehabilitation with prayer for suspension of actions and proceedings pending rehabilitation pursuant to Presidential Decree No. (PD) 902-A, as amended. The case was docketed as SEC Case No. 05-00-6609. Private respondents stated that they possess sufficient properties to cover their obligations but foresee inability to pay them within a period of one year. They cited the sudden nonrenewal and/or massive withdrawal by creditors of their loans to ASB Holdings, the glut in the real estate market, severe drop in the sale of real properties, peso devaluation, and decreased investor confidence in the economy which resulted in the non-completion of and failure to sell their projects and default in the servicing of their credits as they fell due. The ASB Group had assets worth PhP 19,410,000,000 and liabilities worth PhP 12,700,000,000. Faced with at least 712 creditors, 317 contractors/suppliers, and 492 condominium unit buyers, and the prospect of having secured and non-secured creditors press for payments and threaten to initiate foreclosure proceedings, the ASB Group pleaded for suspension of payments while working for rehabilitation with the help of the SEC.9 Private respondents mentioned that in March 2000 and immediately after ASB Holdings incurred financial problems, they agreed to constitute a Creditors Committee composed of representatives of individual creditors, and to appoint a Comptroller. Private respondents stated that the Comptroller, upon instruction from the Creditors Committee, withheld approval of payments of obligations in the ordinary course of business such as those due to contractors, unless Roxas agrees to the payment of interest and other arrangements. Private respondents believed that said conditions would eventually harm the general body of their creditors. Private respondents prayed for the suspension of payments to creditors while working out the final terms of a rehabilitation plan with all the parties concerned. Private respondents petition to the SEC was accompanied by documentary requirements in accordance with Section 4-2 in relation to Sec. 3-2 of the Rules of Procedure on Corporate Recovery.10 Finding the petition sufficient in form and substance, the SEC Hearing Panel11 issued on May 4, 2000 an order suspending for 60 days all actions for claims against the ASB Group, enjoining the latter from disposing its properties in any manner except in the ordinary course of business and from paying outstanding liabilities, and appointing Atty. Monico V. Jacob as interim receiver of

the ASB Group. Atty. Jacob was later replaced by Atty. Fortunato Cruz as interim receiver. 12 The consortium of creditor banks, which included petitioners, filed their Comments/Opposition praying for the dismissal of the petition based on the following grounds: (a) Petitioners failed to state a valid cause of action; (b) Petitioners failed to comply with the requirements of the Rules of Procedure on Corporate Recovery; (c) The Rehabilitation Plan has no basis and offers no solution to address the financial difficulties of petitioners; (d) There is no need for a Receiver as petitioners claim that they are solvent; (e) The filing of the Petition does not warrant the issuance of a suspension order; (f) The Petition should cover only one (1) corporation and should not include the affiliates and subsidiaries (g) Petitioners are under the regulatory supervision of various governmental agencies and their respective consents to the filing of the instant Petition have not been obtained; (h) The circumstances surrounding the filing of the Petition are replete with evidence of fraud and bad faith; and (i) Petitioners do not appear to have sufficient properties to cover their liabilities.13 On August 18, 2000, the ASB Group submitted a rehabilitation plan to enable it to meet all of its obligations. The consortium of creditor banks moved for its disapproval on the ground that it is not viable; the proposals are unrealistic; and it collides with the freedom of contract and the constitutional right against nonimpairment of contracts, particularly the release of portions of mortgaged properties and waiver of interest, penalties, and other charges. The banks further asserted that the Rehabilitation Plan does not explain the basis of the selling values and the net realizable values of the properties; it irregularly nets out intercorporation transactions and offsets the receivables amounting to PhP 5.23 billion from Roxas; and it shows that the ASB Group is insolvent and should be

subjected to liquidation proceedings. The banks opposed the extension of the suspension order sought by the ASB Group. The consortium also prayed for the early resolution of their opposition to the petition. On October 10, 2000, the Hearing Panel denied the opposition of the banks and held that the ASB Group complied with the requirements of Sec. 4-1 of the Rules of Procedure on Corporate Recovery, which allows debtors who are technically insolvent to file a petition for rehabilitation. Since the ASB Group foresees its inability to meet its obligations within one year, it was considered technically insolvent and, thus, qualified for rehabilitation under Sec. 4-1. The Panel further held that under Sec. 4-4, suspension of payments is necessarily an effect of the filing of the petition. The appointment of an Interim Receiver as well as the issuance of a 60-day suspension order is mandatory under Sec. 4-4, Rule IV. The ASB corporations are not precluded from jointly filing the petition for rehabilitation since these are beneficially owned by Roxas, their businesses and finances are intertwined such that they made advances to each other and secured their obligations with each others properties. Joint filing of petition is allowed under Secs. 6 and 7, Rule 3 of the 1997 Rules of Civil Procedure and under case law. As regards the regulatory jurisdiction of the Housing and Land Use Regulatory Board and the Department of Education, Culture and Sports (now the Department of Education) over the business of selling real estate and academic activities of the school, the Hearing Panel held that said jurisdiction does not extend to the petitioning corporations as juridical entities by themselves. With regard to ASB Holdings, the consent of the Central Bank is not required since said corporation is not engaged in quasi-banking operations. Also, the Hearing Panel held that the Creditors Committee was created to address the concerns of the investors of ASB Holdings and did not include the creditor banks. The Hearing Panel found the filing of the petition for suspension of payments and rehabilitation as a sign of good faith on the part of private respondents to settle their obligations. Upon motion by the ASB Group, the suspension period was extended through an order dated October 27, 2000. The creditor banks appealed the October 10 and 27, 2000 orders by filing before the SEC en banc a Petition for Review on Certiorari with application for a temporary restraining order.14 On April 26, 2001, the Hearing Panel approved the Rehabilitation Plan based on the following rationale: After due deliberation, the Hearing Panel finds that the objections raised by the oppositors are unreasonable and rules to approve the rehabilitation plan.

With regard to the contention of the secured creditors that the Plan infringes upon preference over secured property, the Panel finds this objection unreasonable. According to the Supreme Court in the RCBC vs. IAC G.R. No. 74851 December 9, 1999, and we quote: The majority ruling in our 1992 decision that preferred creditors of distressed corporations shall, in a way, stand on equal footing with all other creditors, must be read and understood in the light of the foregoing rulings. All claims of both a secured or unsecured creditor, without distinction on this score, are suspended once a management committee is appointed. Secured creditors, in the meantime, shall not be allowed to assert such preference before the Securities and Exchange Commission. x x x With our approval of the Plan and the appointment of a rehabilitation receiver, the secured creditors may not assert their preferred status while the case is pending before the Commission. It is only when the assets of the corporation, partnership, or association are finally liquidated, that the secured and preferred creditors under the applicable provisions of the Civil Code will apply. As to the creditors contention that the plan did not explain or provide for the basis of the selling values and the net realizable values of the property, we find the same untenable. A reading of the plan as well as the explanation made by the Petitioners, show that the computation was shown as to the manner upon which the petitioners derived the Net Realizable Values. Moreover the Petitioners explained that these values are not much higher than the Cuervo appraisals in 1997 and 2000. The Interim Receiver appointed by the Commission recommended the approval of the Plan. According to him, the fixed assets of Petitioners are mortgaged to banks and that the bank loans are mostly over collateralized. If the Plan is not approved, the secured creditors will foreclose on the mortgages and will acquire these properties at a value much less than the fair market value. When the Petitioners lose these fixed property, it will not be able to pay their obligation to the 172 individual unsecured creditors with an exposure of P3,951,216,266 and the 317 contractors with an exposure of P58,116,903, and will not be able to deliver sold units to 725 buyers. Therefore, the disapproval of the Plan will greatly prejudice all the other creditors who will be left unpaid. The Panel agrees with the position taken by the Interim Receiver that we should look into the far-reaching effect of the Plan. The Panel should balance the interests between the secured creditors and the unsecured who may not have any recourse if the Plan is not approved. In this manner we agree with the argument of the individual creditors that we should consider the public interest

aspect of this rehabilitation proceeding wherein there are about 725 individually affected creditors with a total stakes of P4 Billion, more than the stake of the bank creditors. The approval of the Plan will not deprive the secured creditors of their right to the mortgaged assets. If there is a subsequent failure of rehabilitation, the availment of their suspended rights over the mortgaged assets will be restored. On the other hand, as earlier stated, the unjustified disapproval of the Plan will greatly prejudice the unsecured creditors who will be left unable to recover their investments or collect their claims. The Panel however finds that adjustments and set off with regard to the advances made by Mr. Luke Roxas should not be allowed. This however, does not in anyway affect the viability of the Plan. Meanwhile, the resolution on the Motion for Exclusion of the ASB-Malayan Towers from the assets claimed by petitioners is hereby deferred. PREMISES CONSIDERED, the objections to the rehabilitation plan raised by the creditors are hereby considered unreasonable. Accordingly, the Rehabilitation Plan submitted by petitioners is hereby APPROVED, except those pertaining to Mr. Roxas advances, and the ASBMalayan Towers. Finally, Interim Receiver Mr. Fortunato Cruz is appointed as Rehabilitation Receiver. SO ORDERED.15 The creditors filed a Supplemental Petition for Review on Certiorari with the SEC en banc to question the foregoing order. On November 11, 2003, the SEC en banc dismissed the petition and its supplement, thus affirming the October 10, 2000 and April 26, 2001 orders of the Hearing Panel. The SEC en banc held: We rule against petitioner. First, the Commission En Banc, in three separate cases, had affirmed the approval by the Hearing Panel of the Rehabilitation Plan of private respondents. We declared that the Hearing Panel acted within its legal authority in resolving the petition for rehabilitation of private respondents. Neither it overstepped its lawful authority nor acted whimsically in approving the subject Rehabilitation Plan. Hence, it could not be faulted of grave abuse of discretion. We could not arrive at different conclusion in the instant case other than uphold the approval of private respondents Rehabilitation Plan.

Second, it is noteworthy to mention that as of 31 December 2002, fifty-four percent (54%) of the total obligations of private respondents with creditor banks have been settled. That constitutes majority of the total obligations owned by private respondents to secured creditors. WHEREFORE, premises considered, the instant petition is DISMISSED. Accordingly, the assailed Orders are AFFIRMED. SO ORDERED.16 The Ruling of the CA Petitioners went to the CA via a petition for certiorari under Rule 65, alleging grave abuse of discretion on the part of the SEC in dismissing the creditors petition for review on the ground that 54% of the total obligations of the ASB Group with creditor banks have been settled. The SEC also allegedly did not make its own independent findings much less come up with substantial evidence to support its resolution, thus violating petitioners right to due process and ignoring the constitutional rights of the banks against non-impairment of contracts. Petitioners also questioned the remedy availed of by the ASB Group since a solvent corporation cannot file a petition for rehabilitation nor be placed under receivership. They maintained that the SEC should not have approved the Rehabilitation Plan over the objection of the consortium of creditor banks. The CA held that the Rules of Procedure on Corporate Recovery allows financially distressed corporations to file for either suspension of payments (Rule III, Sec. 3-1) or rehabilitation (Rule IV, Sec. 4-1). The Rules, the CA said, does not preclude a solvent corporation, like the ASB Group, to file a petition for rehabilitation instead of just a petition for suspension of payments because such temporary inability to pay obligations may extend beyond one year or the corporation may become insolvent in the interim. It stated that the determination of the sufficiency of the petition and the question of propriety of the petition filed by the ASB Group are matters within the technical competence and administrative discretion of the SEC. Also, according to the CA, there was no grave abuse of discretion on the part of the Hearing Panel in appointing an interim receiver because such is prescribed by the Rules. As regards the Rehabilitation Plan, the CA agreed with the Hearing Panels finding that the plans disapproval will greatly prejudice all the other creditors who will be left unpaid. Moreover, the CA explained that the approval of the Rehabilitation Plan does not violate the right against impairment of contracts since the legal consequence of rehabilitation proceedings is merely a temporary suspension of such payments of obligations falling due and not cancellation or repudiation of those contractual obligations. The CA further held that petitioners were afforded

the opportunity to be heard through the comments and oppositions they filed. Lastly, the appellate court ruled that the SEC en banc may rely on the factual findings of the Hearing Officer; thus, it need not make its own independent findings unless clear error has been committed. The dispositive portion of the July 16, 2004 Decision of the CA reads: WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED for lack of merit. The challenged En Banc Resolution dated November 11, 2000 of the Securities and Exchange Commission, affirming the Orders dated October 10, 2000 and April 26, 2001 of the SEC Hearing Panel in SEC Case No. 05-00-609, is hereby AFFIRMED.17 Petitioners motion for reconsideration was denied through the October 1, 2004 CA Resolution. Hence, we have this petition. The Issues Petitioners assign the following errors18 on the appellate court: I Respondent court committed serious error in ruling that the Rules does not preclude a solvent corporation or debtor to file a petition for rehabilitation instead of just a petition for suspension of payments. II Respondent court committed serious error in ruling that all the grounds for the opposition raised by the consortium of creditor banks have been duly heard and resolved by the Hearing Panel in its October 10, 2000 order and that there is no grave abuse of discretion on the part of the Hearing Panel when it appointed an interim receiver pursuant to Section 4-4. III Respondent court committed serious error in holding that the filing of a motion to override the objections against the Rehabilitation Plan by any class of creditor is not an absolute requirement nor is it a precondition for the Commission to resolve the objections so filed by the creditors. IV

Respondent court committed serious error in ruling that the legal consequence of rehabilitation proceedings is merely a temporary suspension of such payments of obligations falling due by the distressed corporation and not cancellation or repudiation of those contractual obligations. V Respondent court committed serious error in ruling that the Commission correctly ruled on the issue of the alleged impairment of contracts arising from the suspension order and approval of the Rehabilitation Plan. VI Respondent court committed serious error in finding that petitioners as creditors and mortgagees cannot, by contractual commitments imposed on their borrowers-mortgagors, defeat the purpose of the legislation by rendering nugatory the supervisory and regulatory power of the SEC over private corporations, partnerships and associations under existing laws. VII Respondent court committed serious error in ruling that the SEC in this case not only applied liberally the provisions of the rules of procedure on corporate recovery, afforded sufficient opportunity to be heard on all the creditors, both secured and unsecured individual creditors, but also carefully weighed their competing and conflicting interests with the end in view of maintaining the financial viability of the petitioning corporations and preserving its assets for the protection of all creditors. VIII Respondent court committed serious error in ruling that the decision and resolution in question should be affirmed and that there is no delay, arbitrariness, serious disregard of the law and rules, and whimsical or oppressive exercise of judgment on the part of the SEC en banc and the Hearing Panel. IX It is error for respondent appellate court not to grant petitioners prayer to dismiss the petition for rehabilitation on the ground that the consent of the administrative agencies concerned was not obtained before the filing of said petition. On April 25, 2007, PNB sold the account of ASBDC to Golden Dragon Star Equities, Inc. and its assignee, Opal Portfolio Investments, Inc. (Opal). PNB then

requested this Court to be substituted by Opal. Meanwhile, respondents ASB Holdings, ASB Realty Corporation, ASB Development Corporation, and ASB Land have changed their corporate names to St. Francis Square Holdings, Inc., St. Francis Square Realty Corporation, St. Francis Square Development Corporation, and St. Francis Square Land, Inc., respectively. On February 27, 2007, the First Division of this Court promulgated its Decision in Metropolitan Bank & Trust Company v. ASB Holdings, Inc. under G.R. No. 166197.19 This case dealt with the petition filed by Metrobank, a member of the consortium of creditor banks. The Courts Ruling We affirm the ruling of the appellate court. Petition for Suspension of Payments vis--vis Petition for Rehabilitation Anent the issue regarding the appropriate remedy available to private respondents, petitioners argue that a petition for rehabilitation and suspension of payments cannot be filed without previously filing a petition for suspension of payments since these refer to different reliefs under the Rules which provides: RULE III, Section 3-1. Suspension of Payments.Any debtor which possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due may petition the Commission that it be declared in a state of suspension of payments. RULE IV, Section 4-1. Who may petition.A debtor which is insolvent because its assets are not sufficient to cover its liabilities, or which is technically insolvent under Section 3-12 of these Rules, but which may still be rescued or revived through the institution of some changes in its management, organization, policies, strategies, operations, or finances, may petition the Commission to be placed under rehabilitation. Petitioners argue that Sec. 3-1 refers to debtors with sufficient property to cover its debts; thus, it refers to solvent debtors. Sec. 4-1, on the other hand, refers to debtors with insufficient assets to cover its liabilities, that is, debtors who are insolvent or technically insolvent. The former falls under the rules on suspension of payments while the latter falls under the rules on rehabilitation. Petitioners then conclude that a solvent corporation, such as private respondents, cannot file a petition for rehabilitation. Also, the ASB Group cannot be considered technically insolvent under Secs. 3-12 and 3-13 which state:

Section 3-12. Technical insolvency of petitioner.If it is established that the inability of the petitioner to pay, although temporary, will last for a period longer than one (1) year from the filing of the petition, the petitioner shall be considered technically insolvent and the petition shall be dismissed accordingly. Section 3-13. Supervening insolvency or violation of Suspension Order.If at anytime during the pendency of the proceedings, the petitioner has become or is shown to be insolvent, whether actual or technical, or that it has violated any of the conditions of the suspension order or has failed to make payments on its obligations in accordance with the approved Repayment Schedule, the Commission shall terminate the proceedings and dismiss the petition. Instead of terminating the proceedings, however, the Commission may, upon motion, treat the petition as one for rehabilitation of the debtor. Thereupon, the pertinent provisions of the succeeding Rule shall govern the proceedings. Petitioners point out that the foregoing rules prescribe a determination by the SEC that the ailing corporations inability to pay will last more than one year from the filing of the petition for suspension of payments. Petitioners conclude that technical insolvency only arises one year after the petition for suspension of payments had been filed; therefore, the SEC committed a serious error when it entertained the ASB Groups petition for rehabilitation without a previous finding of technical insolvency. To further support their theory, petitioners quoted Sec. 4-2(g) as follows: Section 4-2. Contents of the petition.The petition filed by the debtor must be verified and must set forth with sufficient particularity all the following material facts: xxxx (g) the status of any Repayment Schedule if one has been approved by the Commission under the preceding Rule. According to petitioners, the mere mention of a Repayment Schedule under Rule IV on Rehabilitation only proves that technical insolvency can only arise from or initiated by the filing of a petition for suspension of payments under Rule III. Such interpretation of the Rules deserves no merit. Petitioners raise issues which mainly relate to technical insolvency; hence, we will limit our interpretation of the rules based on the aforequoted sections. Based on the foregoing, we can deduce the following:

(1) A corporation which has sufficient assets to cover its liabilities but foresees its inability to pay its obligations as they fall due may file a petition for suspension of payments under Rule III of the Rules (Sec. 3-1); (2) If the SEC finds that the corporations inability to pay will last more than one year from the filing of the petition for suspension of payments, that is, the corporation becomes technically insolvent, the petition shall be dismissed (Sec. 3-12); (3) If the corporation is shown or actually becomes technically insolvent anytime during the pendency of the proceedings (supervening technical insolvency), the SEC may either terminate the proceedings or it may, upon motion, treat the petition as one for rehabilitation (Sec. 3-13); and (4) If from the start, a corporation which has enough assets foresees its inability to meet its obligations for more than one year, i.e., existing technical insolvency, it may file a petition for rehabilitation under Rule IV, Sec. 4-1. A reading of Sec. 4-1 shows that there are two kinds of insolvency contemplated in it: (1) actual insolvency, i.e., the corporations assets are not enough to cover its liabilities; and (2) technical insolvency defined under Sec. 3-12, i.e., the corporation has enough assets but it foresees its inability to pay its obligations for more than one year. In the case at bar, the ASB Group filed with the SEC a petition for rehabilitation with prayer for suspension of actions and proceedings pending rehabilitation. Contrary to petitioners arguments, the mere fact that the ASB Group averred that it has sufficient assets to cover its obligations does not make it "solvent" enough to prevent it from filing a petition for rehabilitation. A corporation may have considerable assets but if it foresees the impossibility of meeting its obligations for more than one year, it is considered as technically insolvent. Thus, at the first instance, a corporation may file a petition for rehabilitationa remedy provided under Sec. 4-1. When Sec. 4-1 mentioned technical insolvency under Sec. 3-12, it was referring to the definition of technical insolvency in the said section; it was not requiring a previous filing of a petition for suspension of payments which petitioners would have us believe. Petitioners harp on the SECs failure to examine whether the ASB Group is technically insolvent. They contend that the SEC should wait for a year after the filing of the petition for suspension of payments when technical insolvency may

or may not arise. This is erroneous. The period mentioned under Sec. 3-12, "longer than one year from the filing of the petition," does not refer to a year-long waiting period when the SEC can finally say that the ailing corporation is technically insolvent to qualify for rehabilitation. The period referred to the corporations inability to pay its obligations; when such inability extends beyond one year, the corporation is considered technically insolvent. Said inability may be established from the start by way of a petition for rehabilitation, or it may be proved during the proceedings for suspension of payments, if the latter was the first remedy chosen by the ailing corporation. If the corporation opts for a direct petition for rehabilitation on the ground of technical insolvency, it should show in its petition and later prove during the proceedings that it will not be able to meet its obligations for longer than one year from the filing of the petition. As regards the status of the Repayment Schedule required to be attached to the petition for rehabilitation (Sec. 4-2[g]), this requirement is conditioned on whether one was approved by the SEC in the first place. If there is none, as in the case of a petition for rehabilitation due to technical insolvency directly filed under Rule IV, Sec. 4-1, then there is no status report to submit with the petition. Appointment of an Interim Receiver Petitioners impute error on the part of the SEC in appointing an interim receiver since, allegedly, the requirements for it have not been met. Petitioners, however, assume that private respondents were not entitled to file a petition for rehabilitation. As previously discussed, private respondents may file a petition for rehabilitation for being technically insolvent. Once the petition is filed, the appointment of an interim receiver becomes automatic. As pertinently provided under the Rules: Section 4-4. Effect of filing of the petition.Immediately upon the filing of the petition, the Commission shall issue an Order (a) appointing an Interim Receiver and fixing his bond; (b) suspending all actions and proceedings for claims against the debtor; (c) prohibiting the debtor from selling, encumbering, transferring or disposing in any manner any of its properties except in the normal course of business in which the debtor is engaged; (d) prohibiting the debtor from making any payment of its liabilities outstanding as of the date of filing of the petition; (e) directing the payment in full of all administrative expenses incurred after the filing of the petition; (f) fixing the initial hearing on the petition not later than forty-five (45) days from the filing thereof; (g) directing the debtor to publish the Order once a week for two consecutive weeks in a newspaper of general circulation in the Philippines; and (h) directing the debtor to serve on each of the parties on the list of creditors the following documents at least ten days before the date of the said hearing:

1. A copy of the Order; 2. A copy of the petition; 3. A copy of the Schedule of Debts and Liabilities; and 4. A notification that copies of the other documents filed with the Commission may be obtained therefrom or from the Interim Receiver. Petitioners assert that there two kinds of receivers that can be appointed: a rehabilitation receiver or an interim receiver. A rehabilitation receiver under PD 902-A, Sec. 6 may only be appointed when there is a showing that (1) the receiver is necessary in order to preserve the rights of the parties-litigants; and/or (2) in order to protect the interest of the investing public and creditors. In contrast, the appointment of an interim receiver is automatic from the time the petition for rehabilitation is filed; there are no other standards that need to be met. According to Rizal Commercial Banking Corporation v. Intermediate Appellate Court, a petition for rehabilitation does not necessarily result in the appointment of a rehabilitation receiver.20 Prior to the appointment of a rehabilitation receiver or management committee, as the case may be, the right of secured creditors to foreclose mortgages cannot be denied. Also, since PD 902-A does not provide for the appointment of an interim receiver, then the Rules of Procedure on Corporate Recovery, an administrative issuance, went beyond the law it seeks to implement. As found by the appellate court, the appointment of an interim receiver should be understood as a necessary and urgent step to protect the interests of both creditors and stockholders of the petitioning corporations, particularly the assets and business operations during the pendency of the proceedings, and to ensure the viability and success of the rehabilitation plan as eventually implemented.21 Motion to Override the Creditors Objections Petitioners insist that the Rehabilitation Plan should not have been approved by the SEC over the objection by the secured creditors without the filing of a motion to override the objections filed by private respondents. This is in accordance with Sec. 4-20 which provide: Section 4-20. Approval of the Rehabilitation Plan.No Rehabilitation Plan shall be approved by the Commission if opposed by a majority of any class of creditors. The Commission may, upon motion, however, override said disapproval if such is manifestly unreasonable. The Rehabilitation Plan shall be deemed ipso facto disapproved and the petition dismissed if the Commission

fails to grant the motion to override within thirty (30) days from the time it is submitted for resolution. The CA held that the filing of a motion is not a precondition for the SEC to resolve the objections filed by the creditors, as evident in the word "may." We disagree. The requirement of a motion by the petitioning corporation is essential in enabling the SEC to decide on the proposed rehabilitation plan. The words "upon motion" were deliberately added to emphasize this requirement. In the case bar, while private respondents failed to file a motion to override the creditors objections, nevertheless, they were able to file a reply to the opposition of the consortium of creditor banks. Presumably, this reply addressed the objections of the consortium. Considering that procedural rules should be liberally interpreted, we find said pleading as tantamount to filing a motion required by Sec. 4-20. Right Against Non-Impairment of Contracts Petitioners contend that the SECs approval of the Rehabilitation Plan impairs the MTI by forcing them to release the real properties secured in their favor to become part of the asset pool. They argue that the SECs approval of the Rehabilitation Plan is a state action that impairs the remedies available to petitioners under the MTI, which essentially abrogates the contract itself. In the Metropolitan Bank & Trust Company Decision in G.R. No. 166197,22 Metrobank likewise questioned the approval of the Rehabilitation Plan by the SEC and the CA, particularly the provisions relating to the payment bydacion en pago and waiver of interests and penalties. Metrobank asserted that the Rehabilitation Plan compelled it to release part of the collateral and accept the mortgaged properties as payment by dacion en pago based on the ASB Groups transfer values, violating the constitutional right to non-impairment of contracts. On this issue, we adopt the ruling of the First Division in Metropolitan Bank & Trust Company, to wit: We are not convinced that the approval of the Rehabilitation Plan impairs petitioner banks lien over the mortgaged properties. Section 6 [c] of P.D. No. 902-A provides that "upon appointment of a management committee, rehabilitation receiver, board or body, pursuant to this Decree, all actions for claims against corporations, partnerships or associations under management or receivership pending before any court, tribunal, board or body shall be suspended."

By that statutory provision, it is clear that the approval of the Rehabilitation Plan and the appointment of a rehabilitation receiver merely suspend the actions for claims against respondent corporations. Petitioner banks preferred status over the unsecured creditors relative to the mortgage liens is retained, but the enforcement of such preference is suspended. The loan agreements between the parties have not been set aside and petitioner bank may still enforce its preference when the assets of ASB Group of Companies will be liquidated. Considering that the provisions of the loan agreements are merely suspended, there is no impairment of contracts, specifically its lien in the mortgaged properties. As we stressed in Rizal Commercial Banking Corporation v. Intermediate Appellate Court, such suspension "shall not prejudice or render ineffective the status of a secured creditor as compared to a totally unsecured creditor," for what P.D. No. 902-A merely provides is that all actions for claims against the distressed corporation, partnership or association shall be suspended. This arrangement provided by law is intended to give the receiver a chance to rehabilitate the corporation if there should still be a possibility for doing so, without being unnecessarily disturbed by the creditors actions against the distressed corporation. However, in the event that rehabilitation is no longer feasible and the claims against the distressed corporation would eventually have to be settled, the secured creditors, like petitioner bank, shall enjoy preference over the unsecured creditors.23 Contrary to petitioners belief, they are not forced to accept the terms of the Rehabilitation Plan. As held inMetropolitan Bank & Trust Company, they are merely proposals for the creditors to accept. Due Process and the Regulatory Power of the SEC Petitioners contend that private respondents were not entitled to the suspension order and its extension if opposed by a majority class of creditors. The consortium, which has a total exposure of PhP 1.8 billion, was allegedly deprived of substantive due process when the SEC issued and extended the suspension order despite the objection of the creditor banks. The right to due process was again allegedly violated when the Hearing Panel set the Rehabilitation Plan for hearing without ruling on the issues raised in petitioners Comment/Opposition. Furthermore, according to private respondents, ASBDC, the borrower in the MTI, is not insolvent; thus, its inclusion in the petition for rehabilitation was not proper. As regards the SEC en banc, private respondents claimed that the three-year delay in acting on the petition for review filed by the consortium amounted to a denial of due process and caused undue damage to the creditors.

Petitioners arguments have no merit. The appellate court correctly ruled that petitioners were given the opportunity to be heard. They filed their Comment/Opposition and a petition for review before the SEC en banc. Due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or an opportunity to move for a reconsideration of the action or ruling complained of.24 Also, the SECen banc is not required to come up with its own findings since findings of the Hearing Officer shall remain undisturbed unless the SEC en banc finds manifest errors. Sec. 167 of the Rules also states that proceedings before the SEC en banc shall be summary in nature. The purpose of rehabilitation proceedings is to enable the company to gain new lease on life and thereby allows creditors to be paid their claims from its earnings. Rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the financially distressed corporation to its former position of successful operation and solvency. This is in consonance with the States objective to promote a wider and more meaningful equitable distribution of wealth to protect investments and the general public.25 It is precisely based on these principles that the SEC decided the petition for rehabilitation. We agree with the findings of the appellate court: x x x In holding that the oppositions of the creditor banks are unreasonable, the SEC took into consideration the fact that compared to the creditor banks who have existing mortgages with private respondents, the 725 individually affected unsecured creditors with a much higher stake in their combined claims of P4 Billion, the SEC found it prejudicial to disapprove the Rehabilitation Plan and thereby allow the creditor banks to foreclose the mortgages and sell the fixed assets at prices lower than the market value, a prospect that will deprive the unsecured creditors of any hope of being paid while the corporations will eventually become insolvent unable to pay its obligations to the greater number of unsecured creditors. In view of the urgency of the situation and the serious prejudice that will result to other investors and creditors and to the public in general, the SEC opted to proceed decisively and promptly in approving the petition for rehabilitation filed by private respondents in order to continue the rehabilitation process and keep the companies financial afloat, a measure ultimately aimed at protecting the interest of the larger number of unsecured creditors. Under such factual scenario, delay is farthest from the minds of all those concerned particularly the Hearing Panel and the unsecured creditors. The longer the approval of the rehabilitation plan is delayed, the greater the peril becomes that the assets of the corporations will be dissipated and their business operations jeopardized. The view has been expressed that the power of the SEC to issue injunctive relief in these cases

should be upheld by the courts as otherwise "a distressed company would be exposed to grave danger that may precipitate its untimely demise, the very evil sought by a suspension of payments."26 In the exercise of judicial review, the function of the court is to determine whether the administrative agency has not been arbitrary or whimsical in the exercise of its power given the facts and the law. Absent such unreasonable or unlawful exercise of power, courts should not interfere. In this case, such arbitrariness is absent. WHEREFORE, this petition is DENIED. The July 16, 2004 Decision and October 1, 2004 Resolution of the CA in CA-G.R. SP No. 82800 are AFFIRMED. Costs against petitioners. SO ORDERED.

Other Laws or SC rules

SECOND DIVISION JERRY ONG, Petitioner, Present: - versus CARPIO, J., Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA, JJ. Promulgated: August 18, 2010 G.R. No. 175116

PHILIPPINE DEPOSIT INSURANCE CORP., Respondent.

x-----------------------------------------------------------------------------------------x DECISION PERALTA, J.: Before us is a petition for review on certiorari filed by petitioner Jerry Ong seeking to annul and set aside the Decision[1] dated July 31, 2006 and the Resolution[2] dated October 5, 2006 issued by the Court of Appeals (CA) in CAG.R. SP No. 93441. Sometime in 1982 and 1983, petitioner Jerry Ong made some money market placements with Omnibus Finance Inc. (OFI), which later on suffered serious financial difficulties. As petitioner's money market placements matured, he demanded from OFI the return of the same. However, OFI's checks issued thereby were dishonored by the drawee bank. It was alleged that OFI sought the assistance of its sister companies which included the Rural Bank of Olongapo (RBO). On December 29, 1983, Jose Ma. Carballo, OFI President, and Cynthia Gonzales, Chairperson of the Board of Directors of RBO, executed in favor of petitioner a Deed of Real Estate Mortgage[3] over two parcels of land located in Tagaytay City covered by Transfer Certificates of Title Nos. T-13769 and T13770, which are both registered in RBO's name, as collateral to guarantee the payment of OFI's money market obligations to petitioner in the amount

of P863,517.02. The mortgage was executed by Gonzales by virtue of a Secretary's Certificate[4] issued by Atty. Efren L. Legaspi, RBO's alleged Assistant Corporate Secretary, showing that Gonzales was authorized by the RBO Board to execute such mortgage. The deed of mortgage was annotated on TCT Nos. T-13769 and T-13770 of the Register of Deeds of Tagaytay City on January 13, 1984. As OFI failed to pay petitioner the obligation secured by the real estate mortgage, petitioner foreclosed the mortgage on March 18, 1984. A Certificate of Sale was correspondingly issued which was registered with the Register of Deeds of Tagaytay City on July 16, 1985. Petitioner alleged that representatives of the Central Bank of the Philippines (Central Bank) had approached him and borrowed TCT Nos. T-13769 and T-13770 for the on- going audit and inventory of the assets of the RBO; however, these titles were not returned despite petitioner's demand. Petitioner filed with the RTC of Tagaytay City, Branch 18, a case for the surrender of said titles, docketed as TC-803. The case was subsequently dismissed for being premature as the one year redemption period had not yet expired. On May 22, 1984, RBO's Corporate Secretary and Acting Manager, Atty. Rodolfo C. Soriano, filed with the RTC of Tagaytay City, an action for the annulment of real estate mortgage, extrajudicial foreclosure of mortgage proceedings, sheriff's certificate of sale with damages against petitioner, OFI, Cynthia Gonzales, the Sheriff and the Register of Deeds of Tagaytay City, raffled off to Branch 18, and was docketed as Civil Case No. TG-805. However, the case was later suspended due to OFI's pending application for rehabilitation with the Securities and Exchange Commission. On May 9, 1985, the Central Bank, as petitioner, which was later substituted by respondent Philippine Deposit Insurance Corporation[5] (PDIC) filed with the RTC of Olongapo City a petition for assistance in the liquidation of RBO, docketed as Sp. Proc. No. 170-0-85 and was raffled off to Branch 73. Later, upon respondent's motion, Civil Case No. TG-805, i.e., for annulment of mortgage, was consolidated with RBO's liquidation proceedings. On February 5, 1991, petitioner filed with Branch 79 of the RTC of Quezon City[6] a petition for the surrender of the titles of the Tagaytay properties against RBO, which petition was eventually ordered dismissed by the CA after finding that the RTC lacked jurisdiction to try the case, but without prejudice to petitioner's right to file his claim in RBO's liquidation proceedings pending before Branch 73 of the RTC of Olongapo City.

Consequently, on February 16, 1996, petitioner filed in Sp. Proc. No. 170-085 a Motion to Admit Claim against RBO's assets as a secured creditor and the winning bidder and/or purchaser of the Tagaytay properties in the foreclosure sale. Respondent filed its Comment/Opposition to the motion. Trial, thereafter, ensued on petitioner's claim. On June 25, 2001, Acting Presiding Judge Philbert I. Iturralde issued an Order declaring petitioner's claim against RBO valid and legitimate, the dispositive portion of which reads:
[7]

WHEREFORE, under the foregoing circumstance, the claim of Jerry Ong is hereby declared valid and legitimate and therefore GRANTED. As prayed for, the two (2) parcels of land covered under TCT Nos. 13769 and 13770, with all its improvements be awarded to Claimant Jerry Ong. The titles subject matter of this claim allegedly in possession of the Central Bank or its appointed liquidator, or any person presently in possession of said Transfer Certificate of Title is directed and ordered to immediately surrender the same to the Claimant. Should the same be lost and/or upon proof of its loss the Register of Deeds is ordered to issue in the claimant's name new titles pursuant to the consolidation of property earlier made by the claimant over the property. SO ORDERED.[8] Respondent filed its motion for reconsideration. In a Resolution[9] dated June 27, 2002, Judge Renato J. Dilag reversed the June 25, 2001 Decision. The decretal portion of the Resolution reads: WHEREFORE, foregoing considered, the Order of this Court dated June 25, 2001 is hereby reconsidered and set aside. The real estate mortgage executed on December 29, 1983 by and between Cynthia Gonzales representing RBO and Jose Ma. Carballo, representing OFI is hereby declared null and void. The Extrajudicial Proceedings conducted in March 1984 and the Sheriff's Certificate of Sale dated March 23, 1984 issued in the name of Jerry Ong are, likewise, declared null and void. And, for failure to substantiate his claim against RBO, Jerry Ong's claim is hereby denied. SO ORDERED.[10]

Petitioner's motion for reconsideration was denied in an Order[11] dated May 26, 2003, a copy of which was received by petitioner on June 16, 2003. On June 17, 2003, petitioner, thru counsel, filed a Notice of Appeal[12] which the RTC gave due course in an Order[13] dated July 14, 2004, after finding that the appeal had been filed within the reglementary period. The RTC also ordered the elevation of the entire records to the CA for further proceedings. Respondent sought reconsideration of the Order giving due course to petitioner's appeal as the latter failed to file a record on appeal within the reglementary period; thus, the appeal was not perfected. Petitioner filed his Comment/Opposition to such motion and at the same time attaching the Record on Appeal dated August 25, 2004. On May 31, 2005, the RTC issued an Order, [14] the dispositive portion of which reads: FOREGOING CONSIDERED, the Order of this Court dated July 14, 2004 is hereby reconsidered and set aside. Consequently, as provided under Rule 41, Sec. 13 of the Revised Rules of Court, the appeal is hereby dismissed for having been taken out of time. SO ORDERED. Petitioner's motion for reconsideration was denied in an Order dated December 7, 2005.[15] Petitioner then filed with the CA a petition for certiorari with prayer for the issuance of a writ of preliminary injunction assailing the RTC Orders dated May 31, 2005 and December 7, 2005 for having been issued with grave abuse of discretion. After the parties submitted their respective pleadings, the CA issued its assailed Decision on July 31, 2006, dismissing the petition. In so ruling, the CA found that since Sp. Proc. No. 170-0-85 was for the liquidation of RBO, it was a special proceeding and not an ordinary action; that liquidation proceedings are considered special proceedings as held in Pacific Banking Corporation Employees Organization v. Court of Appeals;[16] that since multiple appeals are allowed in proceedings for liquidation of an insolvent

corporation, a record on appeal was necessary in petitioner's case for the perfection of his appeal. The CA found unpersuasive petitioners plea to consider his failure to submit a record on appeal on time as excusable neglect saying that petitioner was fully aware that Sp. Proc No. 170-0-85 was a petition for liquidation, because he filed his claim as a preferred creditor of RBO, he participated in the trial thereof and filed the notice of appeal under the title of the said liquidation case; that petitioners feigned ignorance and miscalculation cannot justify an exception to the strict rule on perfection of appeal within the reglementary period; that petitioner filed the record on appeal 426 days after the lapse of the reglementary period, and certiorari cannot be a substitute for a lost remedy of appeal. The CA ruled that petitioner's failure to perfect his appeal within the prescribed period rendered the RTC decision final and executory which deprived the appellate court of jurisdiction to alter the final judgment, much less entertain the appeal. On petitioners claim that there was a grave abuse of discretion committed by the RTC in giving credence to the testimonies of respondents witnesses, the CA ruled that such matter was beyond the jurisdictional parameter of a special civil action of certiorari as such issue dwelt into questions of facts and evaluation of evidence. Petitioner's motion for reconsideration was denied in a Resolution dated October 5, 2006. Hence, the present petition on the following grounds: THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THE PETITION FOR CERTIORARI BASED SOLELY ON TECHNICAL RULES OF PROCEDURE. THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DISMISSED THE PETITION FOR CERTIORARI WITHOUT PASSING UPON THE MERIT OF PETITIONER'S APPEAL.[17]

Petitioner reiterates his argument raised before the CA that his counsel's failure to submit a record on appeal on time is an excusable neglect as the failure was due to the serious complications surrounding the case that led her to commit an error of judgment; that petitioner's counsel honestly believed that their claim filed against RBO in the special proceedings and the civil case filed by RBO against petitioner for the annulment of mortgage under Civil Case No. TG-805, which was eventually consolidated with the special proceedings, were ordinary civil actions since they sought the enforcement or protection of a right or prevention or redress of a wrong; thus, a mere notice of appeal would be sufficient to perfect petitioner's appeal. Petitioner argues that we have liberalized in some instances the rule on perfection of appeals and cites Gregorio v. CA[18] and Gonzales-Orense v. Court of Appeals,[19] thus, he asks for the same leniency in the interest of substantial justice so as to give him the chance to ventilate his appeal on the merit. Petitioner claims that the issue on the admissibility of the testimonies of respondent's witnesses is a question of law as its resolution calls for the application of the law on hearsay evidence and not the evaluation of evidence; that respondent's witnesses came only upon RBO's liquidation process and were not even connected with RBO at the time of the execution of the real estate mortgage among RBO, OFI and petitioner; thus, their testimonies are inadmissible for being hearsay evidence, and a special civil action of certiorari is the proper remedy to assail the admission of the same; that it would serve the ends of justice if the CA had taken a second look on the facts and evidence of the case to determine the merit of petitioner's appeal. In its Comment, respondent avers that while the petition was denominated as a petition for review under Rule 45, the same imputes lack or excess of jurisdiction on the part of the CA in issuing its assailed decision; thus, petitioner availed of the wrong remedy. Petitioner filed his Reply thereto. We first resolve the issue raised by respondent anent the mode of appeal availed of by petitioner. Petitioner filed a petition for review on certiorari assailing the Decision and Resolution of the CA which were final dispositions of the case on the merits, thus, a petition under Rule 45 of the Rules of Court is proper. Rule 45 provides that an appeal by certiorari from the judgments or final orders or resolutions of the appellate court is by a verified petition for review on certiorari. Contrary to respondent's claim that petitioner in this petition merely alleges that the CA abused its discretion in dismissing his appeal, we find that petitioner also imputes grave error committed by the CA in rendering its assailed decision finding that the appeal was not perfected. As to the main issues raised by petitioner, we find the same unmeritorious.

Sections 2 (a) and 3 of Rule 41 of the Rules of Court provide: SEC. 2. Modes of Appeal x x x (a) Ordinary appeal. The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. xxxx SEC. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from the notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from the notice of judgment or final order. The period to appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. It has been held that a petition for liquidation of an insolvent corporation is classified as a special proceeding.[20] The RTC decision, which petitioner sought to appeal from, was rendered in the special proceeding for the liquidation of RBO's assets; thus, applying the above-quoted provisions, an appeal in a special proceeding requires both the filing of a notice of appeal and the record on appeal within thirty days from receipt of the notice of judgment or final order. In this case, petitioner filed his Notice of Appeal on June 17, 2003, and the RTC gave due course to the appeal after it found that the notice of appeal was filed within the reglementary period. However, upon respondent's motion for reconsideration, where it argued that petitioner failed to file a record on appeal,

considering that the decision was rendered in a petition for liquidation of RBO which was a special proceeding, the RTC reversed itself as no record on appeal was filed, and dismissed petitioner's appeal for having been taken out of time. The RTC did not commit a grave abuse of discretion in dismissing petitioner's appeal, since it is clearly stated under the Rules that filing of the notice of appeal must be accompanied by a record on appeal to perfect one's appeal in a special proceeding. In fact, the RTC's dismissal of petitioner's appeal was expressly allowed under Section 13 of Rule 41 of the Rules of Court which states: SECTION 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu propio or on motion to dismiss the appeal for having been taken out of time. Thus, we find no error committed by the CA when it sustained the RTC's dismissal of petitioner's appeal for failure to comply with the Rules. In In the Matter of the Heirship (Intestate Estates) of the Late Hermogenes Rodriguez, et al. v. Jaime M. Robles,[21] we nullified the CA decision for lack of jurisdiction in taking cognizance of an appeal from the RTC decision which had already lapsed into finality for failure of the party to file a record on appeal within the reglementary period, and said: This Court has invariably ruled that perfection of an appeal in the manner and within the period laid down by law is not only mandatory but also jurisdictional. The failure to perfect an appeal as required by the rules has the effect of defeating the right to appeal of a party and precluding the appellate court from acquiring jurisdiction over the case. The right to appeal is not a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. The party who seeks to avail of the same must comply with the requirement of the rules. Failing to do so, the right to appeal is lost. The reason for rules of this nature is because the dispatch of business by courts would be impossible, and intolerable delays would result, without rules governing practice. Public policy and sound practice demand that judgments of courts should become final and irrevocable at some definite date fixed by law. Such rules are a necessary incident to the proper, efficient and orderly discharge of judicial functions. Thus, we have held that the failure to perfect an appeal within the prescribed reglementary period is not a mere technicality, but jurisdictional. Just as a losing party has the

privilege to file an appeal within the prescribed period, so does the winner also have the correlative right to enjoy the finality of the decision. Failure to meet the requirements of an appeal deprives the appellate court of jurisdiction to entertain any appeal. There are exceptions to this rule, unfortunately respondents did not present any circumstances that would justify the relaxation of said rule. The rules of procedure must be faithfully followed, except only when, for persuasive reasons, they may be relaxed to relieve a litigant of an injustice commensurate with his failure to comply within the prescribed procedure. [22] Concomitant to a liberal interpretation of the rules of procedure should be an effort on the part of the party invoking liberality to adequately explain his failure to abide by the rules.[23] Petitioner's argument that his counsel's honest belief that their claim against the RBO assets and the civil case filed by RBO against petitioner for the annulment of mortgage were ordinary civil actions and a mere notice of appeal would be sufficient to perfect his appeal is not a satisfactory reason to warrant a relaxation of the mandatory rule on the filing of a record on appeal. We find apropros the CA's disposition on the matter in this wise: Withal, petitioner's ratiocinations that he failed to submit a Record on Appeal on time could be taken as excusable neglect due to serious complications surrounding the case leading him to an error of judgment where an ordinary human being, courts, not excepted, is susceptible to commit, is highly unsustainable. Petitioner counsel's honest belief that the claim of petitioner Ong and the civil case for annulment of mortgage under TG-085 were ordinary actions and, as such, mere filing of a notice of appeal would be sufficient, is far from being persuasive. This is not the excusable neglect as envisioned by the rules in order to sidestep on the strict compliance with the rules on appeal. Petitioner was fully aware that Sp. Proc. No. 170-0-85 is a petition for liquidation because they filed their claim in the case claiming to be a preferred creditor, participated in the trial thereof in every step of the way, and filed the disputed Notice of Appeal under the title of the said case. We cannot find any reason to accept petitioner's feigned ignorance that the case they were appealing is a liquidation petition. In fine, such miscalculation of the petitioner cannot justify an exception to the rules, and to apply the liberal construction rule.[24]

Thus, the erroneous assumption of petitioner's counsel could not excuse her from complying with the Rules. If we are to accept such reason and grant petitioner's petition would be putting a premium on his counsel's ignorance or lack of knowledge of existing Rules.[25] An erroneous application of the law or rules is not excusable error.[26] Petitioner is bound by the mistake of his counsel. The cases of Gregorio v. CA and Gonzales-Orense v. Court of Appeals, cited by petitioner to support his plea for the relaxation of the rules on the application of the reglementary periods of appeal, find no application in his case. Gregorio v. CA involved the failure of therein petitioner to file appellant's brief within the extended period on the basis of which the CA dismissed the appeal. We reinstated the appeal saying that the CA may allow the extension of time to file brief as long as good and sufficient cause was shown and the motion was filed before the expiration of the time sought to be extended; that expiration of time to file brief, unlike lateness in filing the notice of appeal, appeal bond or record on appeal was not a jurisdictional matter and may be waived by the parties. The case before us deals with the matter of the non-filing of the record on appeal within the reglementary period prescribed by law which is not only mandatory but jurisdictional. Gonzales Orense v. CA though involving the issue of the non-filing of a record on appeal, the factual mileu of that case was different. In that case, petitioner filed his notice of appeal from the order of the probate court awarding the amount of P20,000.00 for his services in the probate of the will of the husband of his client. The probate court transmitted the records to the CA, and later petitioner submitted his appellants' brief and respondent her appellee's brief. However, the CA dismissed the appeal as petitioner failed to submit a record on appeal. In a petition filed with us, we reinstated the appeal since we found that the question presented to us, i.e., whether or not a record on appeal was necessary when an award of attorney's fees by the probate court was elevated to the CA, was one of first impression; that petitioner acted in honest, if mistaken interpretation of the applicable law; that the probate itself believed that the record on appeal was unnecessary and respondent herself apparently thought so too for she did not move to dismiss the appeal and instead impliedly recognized its validity by filing the appellee's brief. In the present case, petitioner filed in Sp. Proc. No. 170-0-85 his claim against the assets of RBO as a secured creditor by virtue of the real estate mortgage; that a petition for liquidation is in the nature of a special proceeding was already settled in Pacific Banking Corporation Employees Organization v. Court of Appeals,[27] decided in 1995, thus, no longer a novel issue when petitioner's appeal was filed in 2003. Moreover, unlike in Gonzales-Orense, where therein respondent did not move for the dismissal of

the appeal and even filed her appellee's brief, herein respondent had moved in the RTC for the dismissal of the appeal for failure of petitioner to file the record on appeal. Petitioner's claim that the issue on the admissibility of testimonies of respondent's witnesses does not call for an evaluation of evidence but a question of law as it calls for the application of the law on hearsay evidence; thus, within the remedy of a petition for certiorari is not meritorious. We find no error committed by the CA when it held that such issue was beyond the jurisdictional parameter of a special civil action of certiorari as such issue dwelt into questions of facts and evaluation of evidence. The sole office of a writ of certiorari is the correction of errors of jurisdiction and does not include a review of public respondents evaluation of the evidence and factual findings.[28] In a special civil action for certiorari under Rule 65 of the Rules of Court, questions of fact are generally not permitted, the inquiry being limited to whether the public respondent acted without or in excess of its jurisdiction or with grave abuse of discretion.[29] WHEREFORE, the petition is hereby DENIED. The Decision dated July 31, 2006 and the Resolution dated October 5, 2006 of the Court of Appeals in CA-G.R. SP. No. 93441 are AFFIRMED. SO ORDERED.

Other Laws or SC rules

SECOND DIVISION G.R. No. 172880 August 11, 2010

CHINA BANKING CORPORATION, Petitioner, vs. CEBU PRINTING AND PACKAGING CORPORATION, Respondent. DECISION PERALTA, J.: This is a petition for review on certiorari1 under Rule 45 of the Rules of Court which seeks to annul and set aside the Amended Decision2 dated March 3, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 71017. The facts, as shown in the records, are the following: On January 29, 2002, Cebu Printing and Packaging Corporation (CEPRI) filed a Petition for Rehabilitation3 with the Regional Trial Court (RTC) of Cebu City, Branch 11.4 Finding the petition sufficient in form and substance, the RTC issued a Stay Order5 dated February 11, 2002: staying enforcement of all claims against CEPRI, its guarantors and sureties; appointing Mr. Sergio D. Lim, Jr. as rehabilitation receiver and fixing his bond atP100,000.00; directing CEPRI to publish said Order in a newspaper of general circulation in the Philippines once a week for two (2) consecutive weeks; fixing the initial hearing on the petition on March 21, 2002; and directing all creditors and all interested parties (including the Securities and Exchange Commission) to file and serve on CEPRI a verified comment on or opposition to the petition, with supporting affidavits and documents, not later than ten (10) days before March 21, 2002, and putting them on notice that their failure to do so will bar them from participating in the proceedings, among others. After due publication of the Stay Order, only China Banking Corporation (Chinabank) filed a Comment/Opposition6dated March 8, 2002. After the initial hearing, the RTC issued the Order7 dated April 30, 2002 denying due course to the petition for rehabilitation. The Order reads in part:

WHEREFORE, in view of the foregoing premises, this Court hereby does not give due course to the petition for rehabilitation filed in this case. Accordingly, the Court lifts the stay order issued in this case on February 11, 2002 and recalls the appointment of Mr. Carlos G. Co as rehabilitation receiver. IT IS SO ORDERED. CEPRI received the Order of the RTC on May 8, 2002, and filed an Urgent Motion for Reconsideration8 on May 14, 2002, which the court, in an Order9 dated May 23, 2002, desisted from taking cognizance because such motion is a prohibited pleading. Thus: The Court hereby desists from taking cognizance of the petitioner's urgent motion for reconsideration of the order issued in this case on April 30, 2002 because a motion for reconsideration of an order is a prohibited pleading under Section 1 of Rule 3 of the Interim Rules of Procedure on Corporate Rehabilitation. On June 4, 2002, or past the period within which to file an appeal, CEPRI filed with the CA a Petition for Certiorari10 which the court denied, and affirmed in toto the Order dated April 30, 2002 of the RTC, the dispositive portion of which reads: WHEREFORE, premises considered, the Petition is hereby DENIED. Accordingly, the Orders dated April 30, 2002 and May 23, 2002 are AFFIRMED in toto. SO ORDERED.11 Aggrieved, CEPRI filed a Motion for Reconsideration12 dated September 27, 2005 which the CA granted in its Amended Decision13 dated March 3, 2006, the dispositive portion of which reads as follows: WHEREFORE, premises considered, the Petition is hereby GRANTED. The Orders dated April 30, 2002 and May 23, 2002 are REVERSED, and the case is remanded to the lower court. The Stay Order issued by the public respondent is REINSTATED, and the appointment of the Rehabilitation Receiver, Mr. Carlos G. Co, is RESTORED. The Petition for Rehabilitation is given DUE COURSE, and the petition is referred to the Rehabilitation Receiver for the evaluation of the rehabilitation plan. The Rehabilitation Receiver is given ONE HUNDRED TWENTY (120) days from receipt of this Amended Decision to submit his recommendations to the lower court for the proper disposition thereof.

SO ORDERED. Due to the above ruling, Chinabank filed a motion for reconsideration14 dated March 23, 2006, which was denied by the CA in its Resolution15 dated May 29, 2006. Hence, the present petition with the following issues raised: ATHE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT EVEN A PETITION FOR CERTIORARI UNDER RULE 65 OF THE RULES OF COURT IS EMBRACED UNDER A.M. NO. 04-9-07-SC PROMULGATED ON SEPTEMBER 14, 2004 AND TOOK EFFECT ON OCTOBER 15, 2004, GOVERNING APPEALS IN CORPORATE REHABILITATION CASES. BTHE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT CONVENIENTLY DISREGARDED THE FACTUAL FINDINGS OF THE COMMERCIAL COURT, AND SUBSTITUTED THE SAME WITH ITS OWN JUDGMENT, BY MERELY RELYING ON THE OPINION OF AN AUTHOR IN CORPORATE REHABILITATION, WHOSE EXPERTISE IN THE FIELD IS NOT EVEN WELL ESTABLISHED. CTHE ASSAILED AMENDED DECISION REINSTATING THE REHABILITATION CASE HAD UNWITTINGLY SANCTIONED THE DESPICABLE PRACTICE OF FORUM SHOPPING BY THE RESPONDENT AND ITS COUNSEL, WHEREBY THERE ARE NOW TWO (2) CASES PENDING, ONE FOR CORPORATE REHABILITATION UNDER SRC CASE NO. 001-CEB, AND THE OTHER, FOR ANNULMENT OF LOANS AND MORTGAGE CONTRACTS, AMONG OTHERS, UNDER CIVIL CASE NO. MAN-4372, PRESENTLY PURSUED SIMULTANEOUSLY BY THE RESPONDENT, EACH ASKING FOR RELIEF INCOMPATIBLE WITH THE OTHER.16 In its Comment17 dated October 23, 2006, CEPRI argued that the CA did not commit any reversible error when it ruled that even a petition for certiorari under Rule 65 of the Rules of Court is embraced under A.M. No. 04-9-07-SC promulgated on September 14, 2004 and took effect on October 15, 2004, governing appeals in corporate rehabilitation cases. It further claimed that the CA

did not err in disregarding the factual findings of the RTC. It also pointed out that the issue on forum shopping should not have been raised in this Court, because the said issue had already been addressed by the CA. The petition is impressed with merit. Petitioner contends that a special civil action under Rule 65 of the 1997 Rules of Civil Procedure is not a remedy for the failure to timely file a petition for review under Rule 45. It adds that Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, especially if such loss or lapse was occasioned by one's own negligence or error in the choice of remedies. It also claims that CEPRI was prompted to file the petition for certiorari not because of its firm conviction that grave abuse of discretion attended the issuance of the commercial court's Order dated April 30, 2002, denying due course on the petition for rehabilitation, but in a bid to make up for the lost remedy of appeal. Nevertheless, the CA, in its Amended Decision dated March 3, 2006, treated the petition for certiorari as a petition for review citing several decisions18 of this Court. The CA went on to state that the petition for certiorari filed by CEPRI was pursuant to A.M. No. 04-9-07-SC which treats the said petition as a petition for review under Rule 43. This is an error on the part of the CA. The foremost issue to be resolved is whether or not CEPRI availed of the proper remedy. This Court rules in the negative. Section 5,19 Rule 3 of the Interim Rules of Procedure on Corporate Rehabilitation provides: Sec. 5. Executory Nature of Orders. - Any order issued by the court under these Rules is immediately executory. A petition for review or an appeal therefrom shall not stay the execution of the order unless restrained or enjoined by the appellate court. The review of any order or decision of the court or an appeal therefrom shall be in accordance with the Rules of Court: Provided, however, that the reliefs ordered by the trial or appellate courts shall take into account the need for resolution of proceedings in a just, equitable, and speedy manner. As correctly argued by petitioner, the proceedings for corporate rehabilitation is categorized as a special proceeding; hence, as supplied in A.M. 00-8-10-SC: Following the discussion above, the period of appeal provided in section 3, Rule 4120 of the 1997 Rules of Civil Procedure for ordinary civil actions shall apply to

cases involving intra-corporate disputes. Corollarily, the period of appeal provided in paragraph 19 (b) of the Interim Rules Relative to the Implementation of B.P. Blg. 129 for special proceedings shall apply to petitions for rehabilitation. However, this Court issued A.M. No. 04-9-07-SC21 as a clarification on the proper mode of appeal of cases which were formerly under the jurisdiction of the Securities and Exchange Commission, such as those cases involving corporate rehabilitation. Now, there is no more need to file a notice of appeal and record on appeal. An appeal may now be perfected by filing a petition for review within fifteen (15) days from notice of the decision or final order of the trial court, directly to the CA under Rule 43 of the Rules of Court. As stated: WHEREFORE, the Court Resolves: 1. All decisions and final orders in cases falling under the Interim Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799 shall be appealable to the Court of Appeals through a petition for review under Rule 43 of the Rules of Court. 2. The petition for review shall be taken within fifteen (15) days from notice of the decision or final order of the Regional Commercial Court. Upon proper motion and the payment of the full amount of the legal fee prescribed in Rule 141, as amended before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days within which to file the petition for review. No further extension shall be granted except for the most compelling reasons and in no case to exceed fifteen (15) days. 3. This Resolution shall apply to all pending appeals filed within the reglementary period from decisions and final orders in cases falling under the Interim Corporate Rehabilitation and the Interim Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No. 8799, regardless of the mode of appeal or petition resorted to by the appellant. 4. These pending appeals or petitions shall be treated in the following manner: a. In case a notice of appeal and/or record on appeal was filed with the Regional Commercial Court within the period provided in A.M. No. 00-8-10-SC, and the original record or the approved record on appeal has not been transmitted to the Court of Appeals, the appealing party shall have fifteen (15) days from the effectivity of this Resolution to file a petition for review under Rule 43 with the Court of

Appeals, without prejudice to filing a motion for extension in accordance with 1 hereof. The notice of appeal and/or record on appeal shall remain in the original record but the Regional Commercial Court and/or its clerk shall not transmit the original record or the approved record on appeal to the Court of Appeals anymore. An appealing party who fails to file a petition for review with the Court of Appeals within the prescribed period shall not be deemed to have abandoned his appeal, in which case the appeal shall run its due course. b. In case a notice of appeal and/or record on appeal was filed with the Regional Commercial Court within the period provided in A.M. No. 00-8-10-SC, and the original record or the approved record on appeal has been transmitted to the Court of Appeals, the case shall continue as an appeal. c. In case a petition appealing or assailing the decision and/or final order is filed directly with the Court of Appeals within the reglementary period, such petition shall be considered a petition for review under Rule 43. d. In case a notice of appeal and/or record on appeal is filed with the Regional Commercial Court and a petition appealing or assailing the decision and/or final order is likewise filed with the Court of Appeals, the cases shall be consolidated and treated as a petition for review under Rule 43. (Emphasis supplied.) The above resolution emphasizes the need to perfect an appeal within the given period which is fifteen (15) days by specifically stating that Rule 43 of the Rules of Court is the mode of appeal that is applicable for those appealing or assailing the decisions and/or final orders of the RTC. Thus, when it is mentioned in paragraph 4 (c) of A.M. No. 04-9-07-SC that in case a petition appealing or assailing the decision and/or final order is filed directly with the Court of Appeals within the reglementary period, such petition shall be considered a petition for review under Rule 43, it is presumed that the mode of appeal resorted to was an ordinary appeal and not a special civil action. Otherwise, the Resolution should have categorically included certiorari under Rule 65 as among those that should be considered as a petition for review under Rule 43 of the Rules of Court. Again, Rule 43 of the Rules of Court pertains to an ordinary mode of appeal, whereas CEPRI availed of Rule 65, a special civil action.

In New Frontier Sugar Corporation v. RTC, Branch 39, Iloilo City,22 this Court already ruled that the proper mode of appeal in cases of corporate rehabilitation is through a petition for review under Rule 43 of the Rules of Court to be filed within fifteen (15) days from notice of the decision or final order of the RTC. As ruled: However, it should be noted that the Court issued A.M. No. 04-9-07-SC on September 14, 2004, clarifying the proper mode of appeal in cases involving corporate rehabilitation and intra-corporate controversies. It is provided therein that all decisions and final orders in cases falling under the Interim Rules of Corporate Rehabilitation and the Interim Rules of Procedure Governing IntraCorporate Controversies under Republic Act No. 8799 shall be appealed to the CA through a petition for review under Rule 43 of the Rules of Court to be filed within fifteen (15) days from notice of the decision or final order of the RTC.23 Through the above decision of this Court, it can be gleaned that the reglementary period of fifteen (15) days from notice of the decision or final order of the RTC within which to file an appeal is of utmost importance. In reversing its original ruling that CEPRI availed of wrong mode of appeal, the CA in its Amended Decision reasoned out that although the petition for certiorari was an incorrect remedy, it allowed the treatment of such petition as a petition for review based on earlier rulings of this Court. While it may be true that this Court, in various cases, has treated a petition for certiorari under Rule 65 as a petition for review, it does not follow that the appellate courts should subscribe to those rulings as a general rule. In those decisions, certain exceptional circumstances were present which necessitated the relaxing of the rule. Highly instructive is this Court's ruling inTagle v. Equitable PCI Bank:24 The remedies of appeal in the ordinary course of law and that of certiorari under Rule 65 of the Revised Rules of Court are mutually exclusive and not alternative or cumulative. Time and again, this Court has reminded members of the bench and bar that the special civil action of Certiorari cannot be used as a substitute for a lost appeal where the latter remedy is available; especially if such loss or lapse was occasioned by ones own negligence or error in the choice of remedies. To be sure, once again, we take this opportunity to distinguish between a Petition for Review on Certiorari (an appeal by certiorari) and a Petition for Certiorari (a special civil action/an original action for Certiorari), under Rules 45 and 65, respectively, of the Revised Rules of Court. Madrigal Transport Inc. v. Lapanday

Holdings Corporation summarizes the distinctions between these two remedies, to wit: As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light: When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari.1avvphi1> The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact a mistake of judgment appeal is the remedy. As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the public and the private respondents, respectively). As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy.

As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration. On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion. As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available under the law. Such motion is not required before appealing a judgment or final order. xxxx It is true that in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice, this Court has, before, treated a petition for certiorari as a petition for review on certiorari, particularly (1) if the petition for certiorari was filed within the reglementary period within which to file a petition for review on certiorari; (2) when errors of judgment are averred; and (3) when there is sufficient reason to justify the relaxation of the rules.25 This Court was also liberal in its treatment of a wrong mode of appeal in Land Bank of the Philippines v. CA,26wherein it was ruled that: x x x However, there are cases where the cert writ may still issue even if the aggrieved party has a remedy of appeal in the ordinary course of law. Thus, where the exigencies of the case are such that the ordinary methods of appeal may not prove adequate either in point of promptness or completeness so that a partial or total failure of justice may result, a cert writ may issue. The same was also applied in Leyte IV Electric Cooperative, Inc. v. LEYECO IV Employees Union-ALU,27 thus:

In addition, while the settled rule is that an independent action for certiorari may be availed of only when there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law and certiorari is not a substitute for the lapsed remedy of appeal, there are a few significant exceptions when the extraordinary remedy of certiorari may be resorted to despite the availability of an appeal, namely: (a) when public welfare and the advancement of public policy dictate; (b) when the broader interests of justice so require; (c) when the writs issued are null; and (d) when the questioned order amounts to an oppressive exercise of judicial authority.28 With the above-cited rulings of this Court in mind, the Amended Decision, as well as the records and the antecedent circumstances of the present case are devoid of any justification that would merit the deviation from the strict rule of procedure. The fact still remains that CEPRI had chosen to file an inappropriate mode of appeal and regardless of the reason behind it, whether it was to substitute a lost appeal or merely through plain negligence, such can no longer be corrected. It is elementary that the special civil action of certiorari is not and cannot be a substitute for an appeal, where the latter remedy is available, as it was in this case.29 A special civil action under Rule 65 of the Rules of Court will not be a cure for failure to timely file an appeal under Rule 43 of the Rules of Court. Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, especially if such loss or lapse was occasioned by ones own neglect or error in the choice of remedies.30 Notwithstanding the error committed by the CA in disregarding the proper mode of appeal or even under the presumption that it committed no mistake in treating the petition for certiorari under Rule 65 as a petition for review, the CA was still amiss in disregarding the factual findings of the RTC. The RTC found CEPRI to be in the state of insolvency which precludes it from being entitled to rehabilitation. The findings of fact of the RTC must be given respect as it is clear and categorical in ruling that CEPRI is not merely in the state of illiquidity, but in an apparent state of insolvency. There is nothing more detailed than the contents of the said Order, which reads, in part: After the aforesaid initial hearing, this Court made a careful and judicious scrutiny and evaluation as to whether the petition for rehabilitation filed by the petitioner is impressed with merit or not. Up to this time, this Court is not satisfied that there is merit in the said petition. Foremost of all, it appears that the petitioner does not really have enough assets, net worth and earning to meet and settle its outstanding liabilities. As stated by it in paragraph 7.8 of the petition, it has outstanding liabilities in the aggregate sum

of P69,539,903.57 to the Bank of Philippine Islands and China Banking Corporation. These major liabilities are broken down as follows: P20,230,000.00 to BPI and P49,309,903.57 to China Banking Corporation as of December 31, 2001. There is a strong probability that these may still increase substantially after December 31, 2001. However, the petitioner has relatively less assets to answer for these liabilities. As historically shown by its audited financial statements, the petitioner's assets from 1990 to 2000 were only worth as follows:P352,222.40 in 1990 (Exhibit K), P452,723.33 in 1991 (Exhibit K), P569,948.19 in 1992 (Exhibit L), P787,300.65 in 1993 (Exhibit M), P761,310.69 in 1994 (Exhibit N), P3,042,411.81 in 1995 (Exhibit O), P5,608,866.70 in 1996 (Exhibit P), P8,100,022.81 in 1997 (Exhibit Q), P10,007,490.26 in 1998 (Exhibit R), P10,905,649.83 in 1999 (Exhibit S) and P11,615,251.75 in 2000 (Exhibit T). Of course, there is a sudden and tremendous supposed increase or leap of the worth of petitioner's assets as of December 31, 2001, as shown by Annex A of the petition, from P11,615,251.75 as of December 31, 2000 to P65,766,094.28 as of December 31, 2001. But this is actually of no moment. The fact is that the petitioner booked as its assets certain properties not actually belonging to it, like the parcels of land covered by Transfer Certificates of Title Nos. 34039, 34040, 34041 and 30696 in the name of Rolando S. Go. The petitioner, through its counsel, admitted this fact during the hearing on its petition. And so, the balance sheet of the petitioner as of December 31, 2001 is not really a faithful one. The revaluation increments stated or indicated therein are questionable. For all intents and purposes, it can thus be said that the petitioner was not actually better off in terms of its assets and equity in 2001 than in 2000. In view thereof, this Court concurs with the oppositor, China Banking Corporation, that the petitioner is actually now in a state of insolvency, not illiquidity. In other words, it cannot be the proper subject of rehabilitation. Secondly, this Court is not really prepared to give full faith to the financial projections of the petitioner (Annex H-1 of the petition). The assumption that petitioner's gross sales will increase by 25% to 30% within the next five years is without adequate basis. It is too speculative and unrealistic. It is not borne by petitioner's historical operations. Neither is it borne by an objective industry forecast. It is even belied by the Packaging Industry Profile prepared by the DTI Cebu Provincial Office which the petitioner submitted to this Court (Exhibit U). In said Packaging Industry Profile, it is categorically and explicitly stated that "packaging demand is projected by the Strategic Industry Research and Analysis (SIRA) to increase only by around 4.7% compound per annum over the period 1997-2003." And so, there is actually no faithful and adequate showing by the petitioner that it has ample capacity to pay its outstanding and overdue loans to its major creditors such as the BPI and China Banking Corporation, even if it be given a breathing spell.

In the third place, the petitioner has not met all the conditions which are required or necessary to place it under rehabilitation. It has not been shown categorically and specifically by the petitioner that its stockholders had irrevocably approved and/or consented to all actions or matters necessary and desirable to rehabilitate it, such as amending its articles of incorporation and by-laws, increasing or decreasing its authorized capital stock, its issuing bonded indebtedness, alienating or encumbering its assets and modifying the rights of its shareholders. Such is not specifically shown in Annex L of the petition and Exhibits J and J-1 for the petitioner. In the absence of it, this Court cannot be in a position to approve the petitioner's proposed rehabilitation plan.31 Based on the above Order of the RTC, this Court finds no reason to disturb the RTC's findings of fact, and neither should the CA. It must be remembered that the trial court has the authority to dismiss a petition for rehabilitation after hearing, or even after due consideration of the pleadings filed before it.32 This is in accord with the trial court's authority to give due course to the petition or not under Rule 4,33 Section 9 of the Interim Rules.34 The trial court, acting in its capacity as a commercial court, has the expertise and knowledge over matters under its jurisdiction and is in a better position to pass judgment thereon. It is no different than that of administrative departments and, as such, its findings of fact are generally accorded respect, if not finality. Anent the issue of forum shopping, the resolution of the first two issues renders it inconsequential. In summary, had the CA not reversed its original decision, which was more in tune with the law and the prevailing jurisprudence, the simple issues presented before this Court would have been settled expeditiously. WHEREFORE, the petition for review dated July 18, 2006 of China Banking Corporation is hereby GRANTED. The Amended Decision dated March 3, 2006 of the Court of Appeals in CA-G.R. SP No. 71017 is hereby ANNULLEDand SET ASIDE. Consequently, the Order dated April 30, 2002 of the Regional Trial Court, Branch 11, Cebu City is hereby AFFIRMED. SO ORDERED.