Callejo Notes 09

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CALLEJO NOTES in POLITICAL LAW

BILL OF RIGHTS

1. The Migrant Workers and Overseas Filipinos Act of 1995, took effect on July 15, 1995. The Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas Filipino Act of 1995 was, thereafter, published in the Manila Bulletin. However, even before the law took effect, the Asian Recruitment Council Philippine Chapter, Inc. (ARCO-Phil.) filed, a petition for declaratory relief under Rule 63 of the Rules of Court with the Regional Trial Court to declare as unconstitutional Section 6(g) and (i).According to the respondent, Section 6(g) and (i) discriminated against unskilled workers and their families and, as such, violated the equal protection clause, as well as Article II, Section 12 and Article XV, Sections 1 and 3(3) of the Constitution. As the law encouraged the deployment of skilled Filipino workers, only overseas skilled workers are granted rights. The respondent stressed that unskilled workers also have the right to seek employment abroad. Is the assailed order unconstitutional as it violated the equal protection clause?

NO. Respondent suggests that the singling out of entertainers and performing artists under the assailed department orders constitutes class legislation which violates the equal protection clause of the Constitution. We do not agree.

The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, but merely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed. We have held, time and again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real and substantial differences having a reasonable relation to the subject of the particular legislation. If classification is germane to the purpose of the law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection guarantee. (EXECUTIVE SECRETARY vs. COURT OF APPEALS and ARCO-PHIL.), INC, G.R. No. 131719, May 25, 2004)

2. A Summary Deportation Order was issued against respondent Herbert Markus Emil Scheer, a German citizen holding a permanent resident status in the Philippines, on the basis of Note Verbale No. 369/95 sent by the German Embassy to the Department of Foreign Affairs, informing the latter that Scheer was wanted by the German Federal Police; that a warrant of arrest had been issued against him; and that the respondent will be served with an official document requesting him to turn over his German passport to the Embassy which was invalidated. Scheer filed an Urgent Motion for Reconsideration of the Order of the BOC but the latter did not resolve Scheer’s motion and he was neither arrested nor deported. Meanwhile, the criminal case against the respondent for physical injuries was dismissed by the German court and subsequently, the German Embassy issued to the respondent a regular passport. The BOC still failed to resolve the respondent’s Motion and he remained and maintained his business in Palawan, Philippines. Petitioner Commissioner Andrea Domingo assumed office. Despite information from the German Embassy that Scheer was not wanted by the German police, Scheer was apprehended by the Marine operatives and BID agents in his residence on orders of the petitioner. He was held in custody in the BID Manila Office, and petitioner commissioner refused to release him. Scheer filed a petition for certiorari, prohibition and mandamus in the Court of Appeals against petitioner and the court ruled in his favor. Petitioner now contests this decision claiming inter alia that [a] BOC did not commit grave abuse of discretion in issuing the Summary Deportation Order and [b] that Scheer’s arrest and detention was not premature, unwarranted or arbitrary. Are the contentions of petitioner correct?

NO. [a] The BOC committed grave abuse of discretion in issuing the Summary Deportation Order. The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a matter of grace; such privilege is not absolute nor permanent and may be revoked. However, aliens may be expelled or deported

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from the Philippines only on grounds and in the manner provided for by the Constitution, the Immigration Act of 1940, as amended, and administrative issuances pursuant thereto. In this case, the BOC ordered the private respondent's deportation on September 27, 1995 without even conducting summary deportation proceedings. Section 37(c) of Commonwealth Act No. 613, as amended, provides that “no alien shall be deported without being informed of the specific grounds for deportation or without being given a hearing under rules of procedure to be prescribed by the Commissioner of Immigration.” The respondent was not afforded any hearing at all nor was he afforded a chance to refute the charges. He cannot, thus, be arrested and deported without due process of law as required by the Bill of Rights of the Constitution.

[b] The Court agrees that the Immigration Commissioner is mandated to implement a legal and valid Summary Deportation Order within a reasonable time. But in this case, the arrest of the respondent in his house, at near midnight, and his subsequent detention was premature, unwarranted and arbitrary. Under the basic rudiments of fair play and due process, the petitioner was required to first resolve the respondent's Urgent Motion for Reconsideration of the said Order, which was filed more than six years before or on December 5, 1995. The BOC should have set the respondent's motion for hearing to afford him a chance to be heard and adduce evidence in support thereon. (Domingo vs. Scheer, G.R. No. 154745. January 29, 2004)

3. Before the Court is the petitioners' Motion for Reconsideration of the Resolution dated May 28, 2002, remanding this case to the Regional Trial Court (RTC) of Quezon City, Branch 81, for the determination of several factual issues relative to the application of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure on the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 filed against the respondent and his co-accused with the said court. In the aforesaid criminal cases, the respondent and his co-accused were charged with multiple murder for the shooting and killing of eleven male persons bandied as members of the Kuratong Baleleng Gang. The respondent opposed petitioners’ motion for reconsideration.

The Court ruled in the Resolution sought to be reconsidered that the provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 were with the express consent of the respondent as he himself moved for said provisional dismissal when he filed his motion for judicial determination of probable cause and for examination of witnesses. The Court also held therein that although Section 8, Rule 117 of the Revised Rules of Criminal Procedure could be given retroactive effect, there is still a need to determine whether the requirements for its application are attendant.

The Court further held that the reckoning date of the two-year bar had to be first determined whether it shall be from the date of the order of then Judge Agnir, Jr. dismissing the cases, or from the dates of receipt thereof by the various offended parties, or from the date of effectivity of the new rule. Petitioners however argue that the time bar stated in the aforementioned rule should not be applied retroactively in the present case. May the time-bar in Section 8, Rule 117 of the Revised Rules on Criminal Procedure be applied retroactively?

NO. In this case, the Court agrees with the petitioners that the time-bar of two years under the new rule should not be applied retroactively against the State.

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties.

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The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year period commenced to run on March 31, 1999 when the public prosecutor received his copy of the resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court applied the new time-bar retroactively, the State would have only one year and three months or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the administration of justice. (PEOPLE vs. LACSON, G.R. No. 149453. April 1, 2003.)

4. After being terminated from work, Elenito Lariosa ‘s former employer discovered that he had lost P45,000.00 in cash. He suspected that Lariosa was the culprit because the latter, as a former employee, had a duplicate key to the side door of the United Products Enterprise Store. In search of evidence for the crime of robbery with force upon things, the accuser, together with two men who claimed to be policemen, drew out their guns and barged into the house of Paulina Matillano, Elenito’s aunt. Over her vehement protests, Paulina Matillano consented to the accuser’s entry into her house, as well as to the taking of the clothes, shoes and pieces of jewelry owned by her and her family. Was the search and seizure valid?

NO. Under Article III, Section 2 of the Constitution, "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." This provision protects not only those who appear to be innocent but also those who appear to be guilty, who must nevertheless be presumed innocent until the contrary is proved. The general rule is that a search and seizure must be carried through or with judicial warrant; otherwise, such a search and seizure becomes unconstitutional within the context of the constitutional provision. Peace officers who effect a warrantless search cannot invoke regularity in the performance of official functions.

The right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. But a waiver by implication cannot be presumed. There must be clear and convincing evidence of an actual intention to relinquish the right to constitute a waiver of a constitutional right. There must be proof of the following: (a) that the right exists; (b) that the person involved had knowledge, either actual or constructive, of the existence of such right; and, (c) that the said person had an actual intention to relinquish the right. The waiver must be made voluntarily, knowingly and intelligently. The Court indulges every reasonable presumption against any waiver of fundamental constitutional rights. The fact that the aggrieved person did not object to the entry into her house by the police officers does not amount to a permission to make a search therein. A peaceful submission to search and seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (ELI LUI, ET AL vs. MATILLANO, G.R. NO. 141176, May 27,2004)

5. NBI Agent Franklin M. Javier filed a sworn application for search warrant before the RTC of Iligan, Isabela, for the purpose of seizing “undetermined number of fake land titles,” “blank forms of land titles kept inside the drawers of every table of employees of the Registry of Deeds,” and “undetermined number of land transfer transactions without the corresponding payment of documentary stamps and capital gains tax,” all of which documents are being used or intended to be used in the commission of a felony that is falsification of land titles under Article 171 RPC, Article 213 RPC and R.A. 3019. Petitioner Ariel Vallejo, a lawyer in the Register of Deeds of Isabela, filed a motion to quash the search warrant on the ground that the

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questioned search warrant was in the form of a general warrant for failure to describe the persons or things to be seized and was violative of the Constitution hence, null and void. It was denied for lack of merit. Vallejo filed a notice of appeal to the Court of Appeals but such was denied on the ground that the appealed order denying a motion to quash the search warrant is interlocutory and not appealable. May the technical rules be relaxed in the case at bar and if so, was the warrant issued by the RTC valid?

YES, the technical rules may be relaxed in the case at bar. This is in keeping with the principle that rules of procedure are mere tools designed to facilitate the attainment of justice and that strict and rigid application of rules which would result in technicalities that tend to frustrate rather than promote substantial justice must always be avoided.

NO, the warrant issued by the RTC is not valid. The Constitution guarantees the right to be free from unreasonable searches and seizures. The things to be seized must be described with particularity. Technical precision of description is not required. It is only necessary that there be reasonable particularity and certainty as to the identity of the property to be searched for and seized, so that the warrant shall not be a mere roving commission. The terms expressly used in the warrant were too all embracing, with the obvious intent of subjecting all the records pertaining to all the transactions of the petitioner's office at the Register of Deeds to search and seizure. Such tenor of a seizure warrant contravenes the explicit command of the Constitution that there be a particular description of the things to be seized. Moreover, the questioned warrant in this case is a scatter-shot warrant for having been issued for more than one offense— Falsification of Land Titles under Article 171 and Article 213 of the Revised Penal Code, and violation of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. A warrant must be issued upon probable cause in connection with one specific offense. (Vallejo vs. Court of Appeals, et al, G.R. No. 156413 April 14, 2004)

6. Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others.

In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. ; Petitioner asserts that he is charged under the amended information of bribery and illegal gambling and others. Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse

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of discretion in charging him with plunder. (a) Does the amended Information against Serapio constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense? (b) Is it proper that the SC order the Ombudsman to conduct a reinvestigation of the case? (c) Should petitioner should first be arraigned before the hearings of his petition for bail may be conducted;

(a) No. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation', 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees."

This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed.

(b) Case law has it that the Supreme Court does not interfere with the Ombudsman's discretion in the conduct of preliminary investigations. The Court ruled that in the performance of his task to determine probable cause, the Ombudsman's discretion is paramount. The Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish 'probable cause' for filing of information against the supposed offender." The Court has furthermore stated that the Ombudsman’s findings are factual in nature. the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. The Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsman's resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsman's resolution may be granted. It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute. The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information. If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial.(SERAPIO vs. SANDIGANBAYAN; G.R. No. 149116. January 28, 2003)

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(c). NO. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals, this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. . We held therein that "in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash." However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him. (SERAPIO vs. SANDIGANBAYAN; G.R. No. 148769. January 28, 2003.)

7. Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide which took place on a passenger bus was filed with the Regional Trial Court. The trial court rendered its Decision judgment finding Juan and Victor guilty beyond reasonable doubt of the crime charged and meted on each of them the penalty of death. Juan and Victor contend that the trial court committed a reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the crime charged. They aver that although their counsel was able to initially cross-examine Rodolfo, the former failed to continue with and terminate his cross-examination of the said witness through no fault of his as the witness failed to appear in subsequent proceedings. Is petitioners’ contention correct?NO. There is no factual and legal basis for their claim that they were illegally deprived of their constitutional and statutory right to fully cross-examine Rodolfo. The Court agrees that the right to cross-examine is a constitutional right anchored on due process. However, the right has always been understood as requiring not necessarily an actual cross-examination but merely an opportunity to exercise the right to cross-examine if desired. What is proscribed by statutory norm and jurisprudential precept is the absence of the opportunity to cross-examine. The right is a personal one and may be waived expressly or impliedly. There is an implied waiver when the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. If by his actuations, the accused lost his opportunity to cross-examine wholly or in part the witnesses against him, his right to cross-examine is impliedly waived. The testimony given on direct examination of the witness will be received or allowed to remain in the record. (PEOPLE vs. ESCOTE, G.R. No. 140756, April 4, 2003)

8. Quirico Dagpin was accused of murder in killing Nilo Caemare using a homemade shotgun. The lower court found the accused guilty of murder and was sentenced to Reclusion Perpetua. Dagpin now questions the decision of the trial court and averred that the trial court erred in convicting him of the crime charged on the basis mainly of his having been identified by Randy, Rona and Rena at the police station on March 27, 1996. He was not assisted by counsel when the three pointed to him as the culprit in the police station. Hence, according to the appellant, such identification is inadmissible in evidence. Was the accused Dagpin’s contention meritorious?

NO. The appellant was not deprived of his right under the Constitution to be assisted by counsel because the appellant was not subjected to a custodial investigation where he was identified by the prosecution’s witnesses in a police line-up. Indeed, the appellant even denied that there was no police line-up and that he was merely with the police officers when the prosecution’s witnesses arrived in the police station. (PEOPLE OF THE PHIL. vs. QUIRICO E. DAGPIN, G.R. No. 149560. June 10, 2004)

CITIZENSHIP

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9. Petitioners Hubert Tan Co and Arlene Tan Co filed with the RTC of Manila a petition for correction of entries in their certificates of birth, to correct and change the entries in their respective birth certificates as to the citizenship of their father Co Boon Peng, from "Chinese" to "Filipino." The court dismissed 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, reasoning out that 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 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. Was the court correct in dismissing the petition?

NO. 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 complementary 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.” Statutes in pari materia should be construed together to attain the purpose of an expressed national policy. While they provide for different procedures, 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. 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. (Co et al. vs. Civil Register of Manila, G.R. No. 138496. February 23, 2004)

LEGISLATIVE DEPARTMENT

10. Congress enacted RA 9006, entitled An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices, with section 14 thereof repealing Section 67 of BP 881 or the Omnibus Election Code, which provides for the ipso facto resignation of an elective official upon filing of a Certificate of Candidacy. RA 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary of the Senate and the Secretary General of the House of Representatives and finally passed by both Houses on February 7, 2001. President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.

a. Is the law unconstitutional insofar as it repeals Section 67 of the Omnibus Election Code; hence in violation of the Constitution requiring every law to have only one subject which should be expressed in its title?

b. Was there a violation of the equal protection clause?

a. NO. The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title. To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be expressed in its title, the Court laid down the rule that Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the general object which a statute seeks to effect, without expressing each and every end and means necessary

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or convenient for the accomplishing of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act.

b. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. (FARINAS vs. EXECUTIVE SECRETARY, G.R. NO. 147387, December 10, 2003)

CIVIL SERVICE COMMISSION

11. Acting Secretary Jose S. Brilliantes of the DOLE designated the petitioner Director Benedicto Ernesto R. Bitonio to be the DOLE representative to the Board of Directors of PEZA. As representative, the petitioner was receiving a per diem for every board meeting he attended during the years 1995 to 1997. After a post audit of the PEZA’s disbursement transactions, the COA disallowed the payment of per diems to the petitioner. The uniform reason for the disallowance was that, Cabinet members, their deputies and assistants holding other offices in addition to their primary office and receiving compensation therefore was declared unconstitutional by the Supreme Court in the Civil Liberties Union vs. Executive Secretary. The petitioner filed his motion for reconsideration to the COA, positing that officials given the rank equivalent to a Secretary, Undersecretary or Assistant Secretary and other appointive officials below the rank of Assistant Secretary are not covered by the prohibition. Did the COA correctly disallow the per diems received by the petitioner?

YES. It must be noted that the petitioner’s presence in the PEZA Board meetings is solely by virtue of his capacity as representative of the Secretary of Labor. Since the Secretary of Labor is prohibited from receiving compensation for his additional office or employment, such prohibition likewise applies to the petitioner who sat in the Board only in behalf of the Secretary of Labor. The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. Whatever laws and rules the member in the Board is covered, so is the representative; and whatever prohibitions or restrictions the member is subjected, the representative is, likewise, not exempted. (BITONIO VS. COA, G.R. NO. 147392. MARCH 12, 2004)

12. Petitioner Bernando is an officer of the Land Band of the Philippines, Baliuag Branch. During that time he deposited P500,000 in his savings account in the said bank. However on the same

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day he withdrew the same amount. Coincidentally, during that time he was also an officer and one of the alleged incorporators of Mackay Trading and Manpower Services Inc. He likewise executed in his capacity as treasurer in trust of the said company, falsely certifying that “… at least 25% of the authorized capital stock of the corporation has been subscribed and 25% of the total subscription has been paid and received by me in cash or property…” Because of such action, LBP President Vistan filed a formal charge against Bernardo charging him of gross neglect, grave misconduct, conduct prejudicial to the best interest of the bank and serious violation of CSC rules and regulations. Petitioner was found guilty of said charges. The LBP, MSPB, CSC, Court of Appeals all affirmed the said decision. However petitioner appealed to the SC that he did not violate CSC Rules and Regulation pertaining to the prohibition of an official of GOCC in acting as an incorporator of another corporation which had some transaction with the same GOCC without any permit or authorization from the GOCC( which in this case is LBP). He likewise argued that the constitutional right of due process was denied in his case. Does Bernardo fall under the above stated prohibition? Was he denied of the right of due process?

YES. The evidence on record shows that he was not only an incorporator, but was also a member of the Board of Directors and was, in fact, the treasurer of MTMSI. Even after the incorporation of the MTMSI, the petitioner remained as a stockholder and a member of the Board of Directors. He was even elected treasurer of the corporation. He and his wife signed check vouchers of the corporation during the period of November 16, 1986 to August 24, 1987. Thus he violated the CSC Rules and Regulation on the said prohibition.

NO. As held in T. H. Valderama & Sons, Inc. v. Drilon (181 SCRA 308), denial of due process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration. In the case at bar, assuming, in gratia argumenti, that the CSC's initial decision was defective as argued by petitioner, such defect was nevertheless cured when petitioner filed a Motion for Reconsideration and Supplemental Motion for Reconsideration. (BERNARDO V. CA, CSC, LBP, G.R. No. 124261, May 27, 2004)

COMMISSION ON ELECTIONS

13. Resolution No. 6712 “Instructions for the Electronic Transmission and Consolidation of Advanced Results in the May 2004 Elections” has been issued by respondent and which herein petitioners seek to nullify. Petitioners, voters and taxpayers, aside from alleging that there has been a grave abuse of discretion amounting to a lack or excess of jurisdiction pray for the issuance of a TRO and a writ of prohibition to permanently enjoin said respondent from enforcing and implementing the said resolution. The petitioner assails said implementation of the said resolution on the following grounds: First, that any quick count with the use of the said automated system and conducted by the COMELEC would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also would be lacking of any Constitutional authority. Second, there would be constitutional violations with regard to financing the said project and its operations including personnel. Third, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches upon the authority of NAMFREL, as the citizens' accredited arm, to conduct the "unofficial" quick count as provided under pertinent election laws. Are grounds for nullification as set forth by the petitioners tenable? But preliminarily, do the petitioners have locus standi?

YES. Since the implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the petitioners-in-intervention, as taxpayers, possess the requisite standing to question its validity as they have sufficient interest in preventing the illegal expenditure of money raised by taxation. In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public money is being deflected to any improper purpose, or where the petitioners seek to restrain the respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.

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YES. Speaking in a nutshell, the nullification of the said resolution must be upheld in pursuance of the provisions of the Constitution, the Omnibus Election Code and other signification statutes. First, the assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution. Second, The assailed COMELEC resolution contravenes the constitutional provision that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law." Third, the assailed resolution disregards existing laws which authorize solely the duly-accredited citizens' arm to conduct the "unofficial" counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173, 49 and reiterated in Section 18 of Rep. Act No. 8436, 50 the accredited citizen's arm — in this case, NAMFREL — is exclusively authorized to use a copy of the election returns in the conduct of an "unofficial" counting of the votes, whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting an "unofficial" count. (SIXTO S. BRILLANTES, JR., et al. vs. COMELEC, G.R. No. 163193, June 15, 2004)

NATIONAL ECONOMY AND PATRIMONY

14. AF, an Australian citizen of German descent, met EC, a Filipina. AF bought a building in Ermita, Manila for P20,000. since AF knew that he was disqualified from owning lands in the Philippines, he agreed that only the name of EC would appear in the deed of sale as the buyer of the property as well as in the title covering the same. The relationship began to deteriorate. Shortly thereafter, AF filed a complaint for recovery of real and personal properties. Will the action prosper?

NO. Section 14, Article XIV of the 1973 Constitution provides that save in cases of hereditary succession, no private land shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands in the public domain. Lands of the public domain, which include private lands, may be transferred or conveyed only to individuals or entities qualified to acquire or hold private lands or lands of the public domain. Aliens, whether individuals or corporations, have been disqualified from acquiring lands of the public domain. Hence, they have also been disqualified from acquiring private lands.

Even if, as claimed by the petitioner, the sales in question were entered into by him as the real vendee, the said transactions are in violation of the Constitution; hence, are null and void ab initio. A contract that violates the Constitution and the law, is null and void and vests no rights and creates no obligations. It produces no legal effect at all. The petitioner, being a party to an illegal contract, cannot come into a court of law and ask to have his illegal objective carried out. One who loses his money or property by knowingly engaging in a contract or transaction which involves his own moral turpitude may not maintain an action for his losses. To him who moves in deliberation and premeditation, the law is unyielding. The law will not aid either party to an illegal contract or agreement; it leaves the parties where it finds them. Under Article 1412 of the New Civil Code, the petitioner cannot have the subject properties deeded to him or allow him to recover the money he had spent for the purchase thereof. Equity as a rule will follow the law and will not permit that to be done indirectly which, because of public policy, cannot be done directly. Where the wrong of one party equals that of the other, the defendant is in the stronger position . . . it signifies that in such a situation, neither a court of equity nor a court of law will administer a remedy. The rule is expressed in the maxims: EX DOLO ORITUR ACTIO and IN PARI DELICTO POTIOR EST CONDITIO DEFENDENTIS. (FRENZEL vs. CATITO, G.R.NO. 143958, July 11,2003)

15. Royal Cargo Corporation is a stock corporation duly organized and existing under and by virtue of Philippine laws, seventy percent (70%) of which is owned by Filipino citizens and thirty percent (30%) by foreigners. The President of the petitioner company is a foreign. On April 11, 1990, the petitioner applied for a renewal to operate thereof for another five years. The Air

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Carrier Accounts System and Field Audit Division of the respondent Board recommended the granting of the petition, provided that the position of president was transferred within thirty days from notice thereof, otherwise the permit would be cancelled. During the pendency of the case, the petitioner's authority to operate as an international airfreight forwarder as applied for under the permit in question expired in 1995. The petitioner likewise affirmed to this Court that the respondent Board had already renewed the petitioner's authority to operate as an International Airfreight Forwarder for a period of five (5) years up to April 12, 2005. Was the Filipinization requirement complied with when the Board renewed the petitioner’s authority to operate in our country?

YES. Clearly, the instant petition has become moot and academic. This is evident from the fact that the permit to operate as an international airfreight forwarder the respondent Board sought to withhold from the petitioner for failing to meet the constitutional Filipinization requirement had already lapsed in 1995. Also, with the current renewal of the petitioner's authority to operate, it is to be assumed that it has finally decided to comply with the citizenship requirement mandated by the constitution for its line of business. Under the circumstances, the dismissal of the case is clearly warranted as the petitioner no longer has any legal interest in the present case. (ROYAL CARGO CORP. vs. CIVIL AERONAUTICS BOARD, G.R. Nos. 103055-56. January 26, 2004)

16. Respondent CAI undertook to develop its 75-hectare property into a residential and industrial estate. The CAI filed an application under Republic Act No. 3844 with the Office of the Minister of Agrarian Reform for the conversion of a portion of the 75-hectare property consisting of 35.80 hectares covered by TCT No. 62972 from agricultural to residential. On July 3, 1979, then Minister of Agrarian Reform Conrado F. Estrella issued an Order granting the petition. The PBFAI-KASAMA, representing the farmers-tenants, filed a complaint for Maintenance of Peaceful Possession and Cultivation with Damages with Prayer for the Issuance of a Temporary Restraining Order and Preliminary Injunction before the Department of Agrarian Reform Adjudication Board (DARAB), against the CAI. The plaintiffs therein alleged that since 1961, its members had been in actual possession of the 27-hectare property. Is the property subject of the suit covered by RA 6657, the Agrarian Reform Law (CARL)?

NO. The petitioners contend that the property subject of the suit is agricultural land; hence, covered by the CARL. The contention of the petitioners has no merit. Under the said law, agricultural lands refer to lands devoted to agriculture as conferred in the said law and not classified as industrial land. Agricultural lands are only those lands which are arable or suitable lands that do not include commercial, industrial and residential lands; it covers all private lands devoted to or suitable for agriculture regardless of the agricultural products raised or that can be raised thereon. But long before the law took effect, the property subject of the suit had already been reclassified and converted from agricultural to non-agricultural or residential land by the several administrative agencies. Lands not devoted to agricultural activity are outside the coverage of CARL. These include lands previously converted to non-agricultural uses prior to the effectivity of CARL by government agencies other than respondent DAR. The power of the local government to convert or reclassify lands to residential lands to non-agricultural lands reclassified is not subject to the approval of the Department of Agrarian Reform. When Agrarian Reform Minister Conrado F. Estrella confirmed the reclassification of the property by the Municipal Council of Carmona to non-agricultural land when he approved, on July 3, 1979, the application of the private respondent/LDC for the conversion of 35.80 hectares of the property covered by TCT No. 62972 into non-agricultural land, he did so pursuant to his authority under Rep. Act No. 3844, as amended, by P.D. No. 815 and P.D. No. 946 . (PASONG BAYABAS FARMERS ASSOC. ET AL. VS. COURT OF APPEALS ET AL., GR NOS. 142359 & 142980, MAY 25, 2004)

OFFICE OF THE OMBUDSMAN

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17. After conducting a preliminary investigation, the Graft Investigator prepared a Resolution dated July 28, 1997 stating that there was probable cause for violation of Section 3(g) of Republic Act 3019, and recommending the filing of an Information against the malefactors for said crime. On October 22, 1997, the corresponding Information was filed against said respondents with the SB. The SB found probable cause for the issuance of warrants for the arrest of respondents and accordingly, arrest warrants were issued against them. On the same day, respondents filed with the Office of the Ombudsman a Motion for Reconsideration of its resolution dated July 28, 1997 but the latter denied the motion for reconsideration filed by respondents with the ratiocination that the filing of an Information before the SB precluded said Office from still taking cognizance of said motion. Undaunted, respondents filed with the SB on November 24, 1997 a "Joint Motion for Reconsideration/Reinvestigation" with respect to the findings of the Office of the Ombudsman in its Resolution dated July 28, 1997. Petitioner Salmingo opposed the said motion and contended that it was in effect and for all intents and purposes a second motion for reconsideration of the resolution of the Office of the Ombudsman dated July 28, 1997. He averred that the filing of a second motion for reconsideration was proscribed by Section 27 of Republic Act 6770 and Administrative Order No. 07 issued by the Office of the Ombudsman implementing said law. Is petitioner Salmingo’s contention correct?

NO. Contrary to the contention of Salmingo, the SB did not violate Section 27 of Republic Act 6770 when it treated the Motion for Reconsideration/Reinvestigation of respondents as a motion for reconsideration under Section 27 of Republic Act 6770. The records show that the Office of the Ombudsman approved the resolution prepared by the Graft Investigator finding probable cause against respondents for violation of Section 3(e) of Republic Act 3019 on October 17, 1997. Consequently, respondents had five days from notice of said resolution within which to file their motion for reconsideration. Even assuming that respondents received the aforesaid resolution on October 17, 1997, they had until October 22, 1997 within which to file their motion for reconsideration. However, the Office of the Ombudsman filed the Information against respondents with the SB on October 22, 1997, the last day for respondents to file their motion for reconsideration. Patently, the Office of the Ombudsman filed the Information prematurely, thus depriving respondents of their right to file their motion for reconsideration as provided for in Section 27 of Republic Act 6770. By its agreement, the Office of the Ombudsman merely corrected itself when it curtly denied the motion for reconsideration/reinvestigation filed by respondents with the Office of the Ombudsman after receiving the resolution of the Office of the Ombudsman dated July 28, 1997 on the sole ground that the Information had already been filed with the SB. While the Office of the Ombudsman has the discretion to determine whether an Information should be withdrawn and a criminal case should be dismissed, and to move for the withdrawal of such Information or dismissal of a criminal case, the final disposition of the said motion and of the case is addressed to the sound discretion of the SB subject only to the caveat that the action of the SB must not impair the substantial rights of the accused and of the right of the People to due process of law. (PEOPLE OF THE PHILIPPINES AND IGNACIO SALMINGO VS. VELEZ ET AL.,G.R. No. 138093. February 19, 2003)

PUBLIC OFFICERS

18. NR was arrested without a warrant of arrest and charged in the Office of the City Prosecutor with violation of PD No. 1866 (possession of unlicensed firearm). Public Prosecutor ZCI conducted an inquest investigation of the case and issued a resolution recommending that the case be dismissed for lack of probable cause. However, Regional State Prosecutor A decided to assume jurisdiction over the case and to order the conduct of a new preliminary investigation thereof. RSP A designated the assistant regional state prosecutor to conduct the new preliminary investigation. The Assistant Regional State Prosecutor issued a subpoena notifying NR of the preliminary investigation not only for violation of PD 1866 but also for the crimes of "Violation of COMELEC Resolution No. 2323 (gun ban), possession of deadly weapon and Malicious Mischief.

When served with the subpoena barely a week before the scheduled preliminary investigation, NR counsel forthwith filed with the RTC a petition for prohibition with prayer for a

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temporary restraining order or a writ of preliminary injunction. NR alleged that under the 1987 Revised Administrative Code and PD 1275, a regional state prosecutor was vested only with administrative supervision over the city prosecutor and had no power to motu proprio review, revise, or modify the resolution of the city prosecutor on the latter's conduct of a preliminary or inquest investigation of a criminal complaint filed directly therewith. Is RSP A empowered to motu proprio take over and conduct a preliminary investigation of a case after the inquest investigation thereof had already been terminated and approved by city prosecutor.

NO. RSP A acted without authority and with grave abuse of discretion amounting to excess or lack of jurisdiction when he took over motu proprio the preliminary investigation of I.S. No. 95-043 and ordered a new preliminary investigation thereof; hence, his actuations were a nullity.In this case, when RSP A motu proprio took over the preliminary investigation of the case after the same had already been dismissed by the city prosecutor and ordered the assistant regional state prosecutor to conduct a preliminary investigation of the case, he exercised not only administrative supervision but control over the city prosecutor in the performance of the latter's quasi-judicial functions. The office of the regional state prosecutor does not conduct any preliminary investigation or prosecute any criminal case in court at all. The bulk of the work of the office of the regional state prosecutor consists of administrative supervision over city or provincial or city fiscals and their assistants. The authority of the regional state prosecutors to prosecute or investigate specific criminal cases within the region pursuant to DO No. 318 can be exercise only upon the directives of the Secretary of Justice. No directive hast been issued in this case.(AURILLO, JR. vs NOEL RABI, G.R. No. 120014. November 26, 2002).

ELECTION LAW

19. JS filed a petition with the COMELEC against SM and the proclaimed Vice-Mayor and Municipal Councilors, as well as the members of the Municipal Board of Canvassers, to annul the elections and the proclamation of candidates in the Municipality of Saguiaran. JS alleged that there was a massive substitution of voters, rampant and pervasive irregularities in voting procedures in Precincts Nos. 19, 20, 28 and 29, and a failure of the Board of Election Inspectors (BEI) to comply with Sections 28 and 29 of COMELEC Resolution No. 3743 and Section 193 of the Omnibus Election Code, thus rendering the election process in those precincts a sham and a mockery and the proclamation of the winning candidates a nullity. In his answer, SM denied the truth of the material allegations in the petition and averred that it raised a pre-proclamation controversy. SM further alleged that the grounds relied upon by JS would be proper in an election protest but not in a pre-proclamation controversy. The COMELEC En Banc took cognizance of the petition and issued an order directing the Election Officer of Saguiran, to bring to and produce before the COMELEC Office in Manila the original VRRs of the questioned precincts for technical examination. In the same order, the COMELEC declared that contrary to petitioner's claims, the petition did not allege a pre-proclamation controversy. The Commission characterized the petition as one for the annulment of the election or declaration of failure of election in the municipality, a special action covered by Rule 26 of the COMELEC Rules of Procedure. Accordingly, the COMELEC set aside the docketing of the petition as a Special Case (SPC) and ordered the re-docketing thereof as a Special Action (SPA). After its examination of the evidence submitted by JS, the COMELEC concluded that there was convincing proof of massive fraud in the conduct of the elections in the four (4) precincts that necessitated a technical examination of the original copies of the VRRs and their comparison with the voters' signatures and fingerprints. SM filed with the SC the instant special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the order of the COMELEC En Banc. (a) whether or not SM’s recourse to SC under Rule 65 is in order; and (b) whether or not the petition filed by JS with the COMELEC is a pre-proclamation controversy or a petition for the declaration of failure of election.(a) YES. The assailed order of the COMELEC declaring JS’s petition to be one for annulment of the elections or for a declaration of a failure of elections in the municipality and ordering the production of the original copies of the VRRs for the technical examination is administrative in nature. Rule 64, a procedural device for the review of final orders, resolutions or decision of the COMELEC, does not foreclose

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recourse to this Court under Rule 65 from administrative orders of said Commission issued in the exercise of its administrative function. As a general rule, an administrative order of the COMELEC is not a proper subject of a special civil action for certiorari. But when the COMELEC acts capriciously or whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing such an order, the aggrieved party may seek redress from this Court via a special civil action for certiorari under Rule 65 of the Rules.

(b) NO. The petition before the COMELEC does not pose a pre-proclamation controversy. Pre-proclamation controversies are properly limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. The proceedings are summary in nature; thus, the reception of evidence aliunde, e.g. the original copies of the VRRs, is proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to look beyond or behind election returns which are on their face regular and authentic returns. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest within the original jurisdiction of the Regional Trial Court. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest. Neither is private respondent's petition before the COMELEC one for declaration of a failure of elections. While fraud is a ground to declare a failure of election, such fraud must be one that prevents or suspends the holding of an election, including the preparation and transmission of the election returns. "Failure to elect" must be understood in its literal sense — which is, nobody emerges as a winner. (MACABAGO vs. COMELEC, G.R. No. 152163. November 18, 2002)

20. On May 9, 1996, B filed an election protest with the 13th MCTC Loay, Bohol. However, B failed to append to her election protest a certification of non-forum shopping as mandated by Supreme Court Administrative Circular No. 04-94. On May 20, 1996, petitioner submitted to the court the requisite Certification of Non-Forum Shopping and filed an opposition to the motion to dismiss filed by C claiming that her failure to comply with Supreme Court Administrative Circular No. 04-94 was merely a technical deficiency. The MCTC granted the motion to dismiss of C and dismiss the election protest of B. The latter filed a motion for reconsideration of said order, insisting that the failure to submit the requisite certification on non-forum shopping had already been cured when the requisite certification was filed on May 20, 1996 but the MCTC denied the motion. B filed with the RTC a Petition for Certiorari, Prohibition and Mandamus, for the nullification of the aforesaid orders of the MCTC. RTC dismissed the petition and denied the motion for reconsideration. 1) Did MCTC err in dismissing the election protest because it has substantially comply with the requirements of Administrative Circular 04-09. 2) Was the proper remedy from the assailed orders of the MCTC a petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court instead of an appeal to the COMELEC.

1. NO. Petitioner's reliance of the pronouncement of this Court in Loyola vs. Court of Appeals, et al., is misplaced. In said case, the protestant submitted the requisite certification within the ten-day period for the filing of an election protest. In this case, petitioner submitted to the MCTC the requisite certification only on May 20, 1996, long after the lapse of the ten-day period for her to file an election protest. The submission by petitioner of the requisite certificate after the reglementary ten-day period for the filing of an election protest did not operate as a substantial compliance with the Circular. 2. NO. The RTC correctly dismissed the petition for certiorari for the added reason that it had no appellate jurisdiction over said petition. Section 49 of Resolution No. 2824 of the COMELEC governing the barangay elections on May 6, 1996, promulgated on February 6, 1996, provides that the COMELEC has appellate jurisdiction over decisions of the MCTC or MTC on election protests. MCTC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing the protest for

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her failure to comply with Administrative Circular 04-09. (BATOY vs RTC, G.R. No. 126833. February 17, 2003).

21. A criminal complaint for violation of Section 261 (a) of the Omnibus Election Code (vote selling) was filed against the witnesses of Florentino A. Bautista. The Office of the Cavite Provincial Prosecutor conducted a preliminary investigation of the complaint, in his capacity as a deputy of the petitioner. On April 10, 2000, the Office of the Cavite Provincial Prosecutor issued a resolution finding probable cause against the respondents for violations of Section 261 (a) and (b) of the Omnibus Election Code, and filed separate Informations against them with the RTC of Cavite. COMELEC, after due deliberation, resolved to defer the action and referred the same to the Law Department for comment and recommendation. However, the Provincial Prosecutor refused to give way to the Legal Officer of the petitioner and even opposed the said motion. Was the action of the Provincial Prosecutor correct?

NO. Under Article IX, Section 2(b) of the Constitution, the petitioner is empowered to investigate and, when appropriate, prosecute election offenses. The grant by the Constitution to the petitioner of the express power to investigate and prosecute election offenses is intended to enable the petitioner to assure the people of a fine, orderly, honest, peaceful and credible election. Under Section 265 of the Omnibus Election Code, the petitioner, through its duly authorized legal officers, has the exclusive power to conduct preliminary investigation of all election offenses punishable under the Omnibus Election Code, and to prosecute the same. The petitioner may avail of the assistance of the prosecuting arms of the government.

The prosecutors deputized by the petitioner are subject to its authority, control and supervision in respect of the particular functions covered by such deputation. The acts of such deputies within the lawful scope of their delegated authority are, in legal contemplation, the acts of the petitioner itself. Such authority may be revoked or withdrawn any time by the petitioner, either expressly or impliedly, when in its judgment such revocation or withdrawal is necessary to protect the integrity of the process to promote the common good, or where it believes that successful prosecution of the case can be done by the petitioner. Moreover, being mere deputies or agents of the petitioner, provincial or city prosecutors deputized by the petitioner are expected to act in accord with and not contrary to or in derogation of the resolutions, directives or orders of the petitioner in relation to election cases such prosecutors are deputized to investigate and prosecute. Otherwise, the only option of such provincial or city prosecutor is to seek relief from the petitioner as its deputy. (COMELEC vs. HON. ESPANOL, G.R. NO. 149164-73, December 10, 2003)

22. Arsenio Latasa was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995 and 1998. During his third term, the Municipality of Digos was declared a component city, to be known as the City of Digos. This event also marked the end of petitioner's tenure as mayor of the Municipality of Digos. However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor.

On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos and is now running for the first time for the position of city mayor. Private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For Disqualification against petitioner Latasa Sunga alleging therein that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since petitioner had already been elected and served for three consecutive terms as mayor from 1992 to 2001.

a. Is petitioner Latasa disqualified from running as City Mayor?b. Who must be proclaimed City Mayor?

a. YES. Although the new city acquired a new corporate existence separate and distinct from that of the municipality. This does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal

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mayor would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held power and authority as their chief executive for nine years.

b. This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate's election a nullity. In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa. The second placer is obviously not the choice of the people in that particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession. (LATASA vs. COMELEC, G.R. NO. 154829, December 10, 2003)

23. AT filed a petition to declare failure of elections in all the precincts in the Municipality of Luuk, Province of Sulu. Acting on said motion, COMELEC issued an order suspending the proclamation of the winning candidates. However, the Provincial Board of Canvassers was not served with a copy of the order. Consequently, the respondents were proclaimed as the winning candidates for the position of Governor, Vice-Governor and Board Members. Is there a basis for filing an action for failure of elections?

NO. In their amended petitions before the public respondent, it was substantially alleged that the respondents were the duly proclaimed winning candidates; that the elections in the Municipalities of Luuk, Parang and Indanan, Province of Sulu, were marred by massive substitution of voters, fraud, terrorism and other anomalies, impelling them to file their petitions pursuant to Section 4 of Rep. Act No. 7166 in relation to Section 6, Omnibus Election Code, and reiterated in Section 2, Rule 26 26 of the 1993 COMELEC Rules of Procedure, as amended. But Section 6 of the Omnibus Election Code lays down three instances where a failure of election may be declared, namely, (1) the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes; (2) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes; or (3) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous cases. In all instances there must have been a failure to elect. This is obvious in the first two scenarios, where the election was not held and where the election was suspended. As to the third scenario, the preparation and the transmission of the election returns, which give rise to the consequence of failure to elect, must as aforesaid be literally interpreted to mean that "nobody emerged as a winner."

Hence, before the COMELEC can act on a verified petition seeking to declare a failure of elections, two conditions must concur, namely, (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes. (TAN vs. COMELEC, G.R. NO. 148575-76, December 10, 2003)

24. During the May 14, 2001 elections, Bai Susan A. Samad, Salipongan I. Dagloc and Kennedy Dilangalen were among the mayoralty candidates in the Municipality of Kabuntalan, Province of Maguindanao. During the canvassing of the election returns for the Municipality of Kabuntalan,

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Samad, Dagloc and Dilangalen filed their respective objections and oppositions to the inclusion or exclusion from the canvass of certain election returns from several precincts. Samad contested the inclusion of the election returns from all of Brgy. Bagumbayan, on the grounds that: (a) the returns were tampered and falsified, and (b) the returns were prepared under duress, threats, coercion and intimidation. COMELEC in its resolution invalidated the Certificate of Canvass. Is the action of COMLELEC proper?NO. The policy consideration underlying the delimitation of both substantive ground and legal procedure is the policy to determine as quickly as possible the result of the election on the basis of the canvass. The prevailing doctrine in this jurisdiction, therefore, is that as long as the returns appear to be authentic, and duly accomplished on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of irregularities in the casting and counting of the votes.

Outright exclusion of election returns on the ground that they were fraudulently prepared by some members or non-members of the BEI disenfranchises the voters. Hence, when election returns are found to be spurious or falsified, Section 235 of the Omnibus Election Code provides the procedure which enables the COMELEC to ascertain the will of the electorate.

The COMELEC, therefore, gravely abused its discretion when it excluded outright the subject election returns after finding that they were fraudulent returns. Instead, the COMELEC should have followed the procedure laid down in Section 235 of the Omnibus Election Code: ". . . The Commission shall then, after giving notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be used by the board of canvassers as basis of the canvass." (DAGLOC vs. COMELEC, GR NO 154442-47, December 10, 2003)

25. The petitioners and the private respondents in the case are candidates for the members of the Sangguniang ng Bayan elections in Palimbang, Sultan, Kudarat. On May 20, 2001, the Municipal Board of Canvasser of Palimbang issued Certificate of Canvass of Votes and Proclamation (COCVP) No. 8031108 which contained, inter alia, the petitioners as winners. The said candidates took their oath, and assumed their offices on June 30, 2001 4 as members of the Sangguniang Bayan of Palimbang.

The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang issued COCVP No. 8031109 which listed the private respondents as winners. The matter was then investigated and resolved the issue finding that the private respondents were the winning candidates. The COMELEC approved it. Petitioners’ questioned this contending that they were not afforded due process. COMELEC on the other hand asserted that the twin requirement of notice and hearing in annulment of proclamation is not applicable since the proclamation is null and void, citing Utto vs. Commission on Elections. Was the COMELEC correct in dispensing notice and hearing since the proclamation was null and void?

NO. While it is true that the COMELEC is vested with a broad power to enforce all election laws, the same is subject to the right of the parties to due process. In this case, the petitioners had been proclaimed as the winning candidates and had assumed their office. Since then, they had been exercising their rights and performing their duties as members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Their proclamation on May 20, 2001 enjoys the presumption of regularity and validity since no contest or protest was even filed assailing the same. The petitioners cannot be removed from office without due process of law. Due process in the proceedings before the public respondent exercising its quasi-judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, we also ruled in Fariñas vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of

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a proclamation without notice and hearing. (NAMIL, et.al. vs. COMELEC, et.al. G.R. No. 150540. October 28, 2003)

CALLEJO NOTES: BASED ON LOWER COURT POLITICAL LAW DECISIONS THAT HAVE BEEN AFFIRMED BY THE SC

REGIONAL TRIAL COURT:1. Mr. Marti, a foreigner, delivered a package to the cargo forwarding business of Mr. Reyes so that it can be sent to the former’s friend in Switzerland. Mr. Reyes sought to inspect the package but Mr. Marti refused. However before the package was delivered to the Bureau of Customs, Mr. Reyes conducted a final inspection of the packages in his possession, and he found marijuana in the package of Mr. Marti. He then informed the NBI of what he found and invited them to his place of business. Upon the NBI agents arrival he open in their presence Mr. Marti’s package and it was confirmed that it contained marijuana leaves. Mr. Marti was charged of a violation of the Dangerous Drugs Act. He was later convicted by then Judge Callejo, Sr.(now Supreme Court Justice). Mr. Marti contends that he was wrongfully convicted of the crime, because the contraband was obtained in violation of his constitutional right against unreasonable search and seizure. A. Was the search conducted by Mr. Reyes, a private person, a violation of Mr. Marti’s right?B. Was the search conducted converted into an illegal search by the mere presence of NBI agents when the box was opened?C. Does the Bill of Rights govern the relationships between individuals?

A. NO. The constitutional proscription against unlawful searches and seizures could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

B. NO. The mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search. Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the Constitution.C. NO. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (PEOPLE VS. MARTI, G.R. No. 81561. January 18, 1991)

2: Marlo was immediately subjected to an interrogation upon his arrest in the house of his friend in Tayabas, Quezon. He was then brought to the Tayabas Police Station where he was further questioned. And while on their way to Manila, the arresting agents again elicited incriminating information. In all three instances, he confessed to the commission of the crime and admitted his participation therein. In all those instances, he was not assisted by counsel. He now questions the admissibility of his extrajudicial confession contending that he was not appraised of his constitutional right to remain silent and to counsel. On the other hand the prosecution contends that the constitutional infirmity was cured by the fact that the Marlo’s lawyer was there when the extra judicial confession was signed.

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A. Would the failure to inform Marlo of his constitutional rights and absence of his lawyer render the extra judicial confession inadmissible?B. Are the constitutional infirmities cured by the belated arrival of Marlo’s lawyer?

A. Yes. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf . . . Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

B. NO. The belated arrival of the Marlo’s lawyer the following day even if prior to the actual signing of the uncounseled confession does not cure the defect for the investigators were already able to extract incriminatory statements from accused-appellant. The operative act, it has been stressed, is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements, and not the signing by the suspect of his supposed extrajudicial confession. Admissions obtained during custodial interrogations without the benefit of counsel although later reduced to writing and signed in the presence of counsel are still flawed under the Constitution. (PEOPLE VS. COMPIL, G.R. No. 95028. May 15, 1995)

3. Based on a confidential information that Pedro is engaged in selling shabu, and in possession of firearms and ammunitions without the necessary license NBI Agent Tim, conducted a surveillance on the vicinity of Pedro's residence. After confirming said confidential information, Agent Tim applied for the issuance of search warrants before the Regional Trial Court of Manila. The court issued the search warrant applied for and the same was served. Illegal drugs and unlicensed firearms were seized from Pedro’s house. He now questions the legality of the search warrant, claiming that the applicant, Agent Tim, does not have personal knowledge of his alleged illegal activities and hence his testimony is not sufficient for the issuance of the said warrants. Can it be said that Agent Tim has personal knowledge sufficient to justify the issuance of the search warrant?

YES. In determining probable cause in the issuance of a search warrant, the oath required must refer to the truth of the facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual, making the affidavit and seeking the issuance of the warrant, of the existence of probable cause.

In the case at bar, NBI Agent Tim who applied for the issuance of Search Warrant, had personal knowledge of the circumstances on which the warrants were based. Admittedly, Rejano's knowledge of petitioner's illegal possession of firearms and prohibited drugs came from a confidential informant, and therefore, initially hearsay. Nevertheless, the surveillance and investigation he conducted on the basis of said confidential information enabled him to gain personal knowledge of the illegal activities of Pedro. Hence, his testimony was sufficient justification for the examining judge to conclude that there was probable cause for the issuance of a search warrant. (CUPCUPIN VS. PEOPLE, G.R. No. 132389. November 19, 2002)

COURT OF APPEALS

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4. The NHA sought to expropriate the land owned by Isidro and the trial court found that it has the right to expropriate the land. Socialized housing has been recognized as public use for purposes of exercising the power of eminent domain. The trial court fixed in an order that the just compensation for the subject property to be P11,200.00 per square meter. However after sometime NHA moved that the expropriation proceedings be dismissed citing that the implementation of its socialized housing project was rendered impossible by the unconscionable value of the land sought to be expropriated, which the intended beneficiaries can not afford.

A. What are the stages in expropriation proceedings?B. Can the State be compelled or coerced by the courts to exercise the power of eminent domain in the case at bar?C. Are the funds of the NHA subject to garnishment?

A. Expropriation proceedings consists of two stages: first, condemnation of the property after it is determined that its acquisition will be for a public purpose or public use and, second, the determination of just compensation to be paid for the taking of private property to be made by the court with the assistance of not more than three commissioners. B. Yes. The right of the plaintiff to dismiss an action with the consent of the court is universally recognized with certain well-defined exceptions. The dismissal of an action for eminent domain at the instance of the plaintiff during the pendency of the case is permissible. However the rule is different where the case had been decided and the judgment had already become final and executory.

Respondent landowners had already been prejudiced by the expropriation case. Petitioner NHA cannot be permitted to institute condemnation proceedings against respondents only to abandon it later when it finds the amount of just compensation unacceptable. It is arbitrary and capricious for a government agency to initiate expropriation proceedings, seize a person's property, allow the judgment of the court to become final and executory and then refuse to pay on the ground that there are no appropriations for the property earlier taken and profitably used. We condemn in the strongest possible terms the cavalier attitude of government officials who adopt such a despotic and irresponsible stance.C. Yes. The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant's action "only up to the completion of proceedings anterior to the stage of execution" and that the power of the Courts ends when the judgment is rendered, since government funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law.

However, if the funds belong to a public corporation or a government-owned or controlled corporation which is clothed with a personality of its own, separate and distinct from that of the government, then its funds are not exempt from garnishment. This is so because when the government enters into commercial business, it abandons its sovereign capacity and is to be treated like any other corporation.

The NHA having a juridical personality separate and distinct from the government, the funds of such government-owned and controlled corporations and non-corporate agency, although considered public in character, are not exempt from garnishment. (NHA VS. HEIRS OF GUIVELONDO & CA, G.R. NO. 154411. JUNE 19, 2003)

CALLEJO NOTES in LABOR LAW

1. Does the penal provisions of RA 8042 violate the equal protection clause of the Constitution?

The equal protection clause is directed principally against undue favor and individual or class privilege. It is not to prohibit legislation which is limited to the object to which it is directed and by the territory in which it is to operate. It does not require absolute equality, but merely all persons be treated under like conditions both as to privileges conferred and liabilities imposed. (EXEC. SECRETARY VS. CA, May 25, 2004)

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2. Is every controversy or money claim by an employee against the employer or vice versa within the exclusive jurisdiction of the labor arbiter?

No. Not every controversy or money claim by an employee against the meployer or vice versa is within the exclusive jurisdiction of the labor arbiter. A money claim by a worker against the employer or vice versa is within the exclusive jurisdiction of the labor arbiter only if there is a reasonable causal connection between the claim asserted and the employer-employee relation. Absent such link, the complaint will be cognizable by the regular courts of justice. (EVIOTA VS. CA, July 29, 2003)

3. Natividad works with TCM College as a liaison officer with a rank of “Assistant Registrar.” He was arrested by police authorities for violation of he Dangerous Drugs Act without warrant, and a criminal complaint was filed against him. TCM College sent a Memorandum to Natividad informing him that his employment is already terminated. The criminal case was dismissed for lack of merit. Natividad did not, however, file any complaint to the NLRC against the college on account of his dismissal.

Natividad was arrested anew for violation of the same Act. This time, he filed with the NLRC a complaint for illegal dismissal. The Labor Arbiter and the NLRC denied Natividad but on certiorari, the CA affirmed, with modification, holding that although there was a valid cause for private respondent’s dismissal, the petitioner did not follow the procedure for the termination of his employment. Was Natividad illegally dismissed so as to entitle him to backwages?

The normal consequences of finding that an employee is illegally dismissed are, firstly, the employee becomes entitled to reinstatement without loss of seniority rights and second, payment of backwages to the period from his illegal dismissal up to actual reinstatement. The award of backwages is not conditioned on the employer’s ability or inability to pay. While it may be true that Natividad was detained, he was not convicted by final judgement in the Criminal Case. Indeed, he is presumed innocent until his guilt is proved beyond reasonable doubt. (TOMAS CLAUDIO MEMORIAL COLLEGE, INC. VS. CA, February 16, 2004)

4. Is an order of execution of a final and executory judgement in a labor case still appealable?

No. Settled is the rule that after a judgemnt has become final, no additions can be made thereto, and nothing can be done therewith except execution; otherwise, there would be no end to litigations, thus settling at naught the main role of courts of justice, which is to assist in the enforcement of the rule of law and the maintenance of peace and order, by setting justiceable controversies with finality. (KING INTEGRATED SECURITY SERVICES, INC. VS. GALO S. GATAN, July 7, 2003)

5. What evidence is needed to show that employer committed ULP under the Labor Code?

Substantial evidence is required to support the claim. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In the case at bar, the complaint was made only after a deadlock was declared by the Union. It is clear that such ULP charge was merely an afterthought. (STANDARD CHARTERD BANK EMPLOYEES UNION VS. CONFESOR, June 16, 2004)

6. What is surface bargaining?

It is defined as “going through the motions of negotiating” without any legal intent to reach an agreement. (STANDARD CHARTERD BANK EMPLOYEES UNION VS. CONFESOR, June 16, 2004)

7. Petitioner and respondent union entered into and signed a CBA covering the period of July 10, 1988 to July 9, 1991. On September 27, 1990, the respondent union filed a notice of strike based on violation of CBA, among others. On October 16, 1990,

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the petitioner's general manager, wrote the Acting Secretary of Labor and Employment (SOLE for brevity) informing him of the petitioner's decision to retrench 171 employees on a staggered basis, spread over a period of 60 days, to lessen the daily financial losses being incurred by the petitioner. The next day, the respondent union informed the DOLE-NCR that the union will conduct a strike vote referendum. The members of the respondent union voted to stage a strike. DOLE-NCR was thereafter informed of the results of the strike vote referendum. On October 31, 1990, the SOLE issued a status quo ante bellum order certifying the case to the NLRC for compulsory arbitration and enjoining the parties from engaging in any strike or lockout.

The petitioner wrote the SOLE of its decision to implement its retrenchment program to stem its huge losses. Subsequently, the petitioner terminated the employment of 148 employees. The remaining employees were also informed that it will close in six months. The respondent union protested the actions of the petitioner invoking Section 15, Article VI of the CBA. By way of riposte, the respondent union filed on November 16, 1990 another notice of strike because of what it perceived as the petitioner's continuing unfair labor practices (ULP). On the same day, the officers of the respondent union and some members staged a picket in the premises of the hotel, obstructing the free ingress and egress thereto. The following day, petitioner terminated the employment of the officers and members of the respondent union. On November 28, 1990, the SOLE issued an order certifying the labor dispute to the NLRC. The SOLE issued a return-to-work order, which the respondent officers and members complied.

Petitioner however filed a complaint with the Regional Arbitration Office of the NLRC for illegal strike against the respondents on the ground that the latter failed to comply with the requirements provided under Arts. 263 and 264 of the Labor Code. In their answer, the respondents alleged that the petitioner committed ULP prior to the filing of the November 16, 1990 notice of strike. Hence, there was no need for the respondent union to comply with Arts. 263 and 264 of the Labor Code, as the notice filed by the union on September 27, 1990 was sufficient compliance with the law. Is the strike staged by the respondent union on November 16 legal?

NO. The requisites for a valid strike are as follows: (a) a notice of strike filed with the DOLE thirty days before the intended date thereof or fifteen days in case of ULP; (b) strike vote approved by a majority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting called for that purpose; and (c) notice given to the DOLE of the results of the voting at least seven days before the intended strike. The requisite seven-day period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the approval of the majority of the union members. The notice of strike and the cooling-off period were intended to provide an opportunity for mediation and conciliation. The requirements are mandatory and failure of a union to comply therewith renders the strike illegal. A strike simultaneously with or immediately after a notice of strike will render the requisite periods nugatory. Moreover, a strike that is undertaken, despite the issuance by the SOLE of an assumption or certification order, becomes a prohibited activity and, thus, illegal pursuant to Art. 264 of the Labor Code, as amended. Consequently, the union officers and members are deemed to have lost their employment status for having knowingly participated in an illegal act.

In this case, the respondent union filed its notice of strike with the DOLE on November 16, 1990 and on the same day, staged a picket on the premises of the hotel, in violation of the law. The respondents cannot argue that since the notice of strike on November 16, 1990 were for the same grounds as those contained in their notice of strike on September 27, 1990 which complied with the requirements of the law on the cooling-off period, strike ban, strike vote and strike vote report, the strike staged by them on November 16, 1990 was lawful. The matters contained in the notice of strike of September 27, 1990 had already been taken cognizance of by the SOLE when he issued on October 31, 1990 a status quo ante bellum order enjoining the respondent union from intending or staging a strike. Despite the SOLE order, the respondent union nevertheless staged a strike on November 16, 1990 simultaneously with its notice of

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strike, thus violating Art. 264(a) of the Labor Code, as amended, which provides that “ x x x No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.” (GRAND BOULEVARD HOTEL VS. GENUINE LABOR ORGANIZATION OF WORKERS IN HOTEL, RESTAURANT AND ALLIED INDUSTRIES, July 8, 2003)

8. Respondents applied for employment in Taiwan with petitioner, Phil. Employ Services and Resources, Inc. (PSRI for brevity). The respondents were deployed in Taiwan. When they encountered problems, they brought their attention to the manager who told them to forget about it and refrain to air their complaints.

Respondent Navarra and another employee, Pio Gabito, were summoned by the management and told that they were to be repatriated, without specifying the ground or cause therefor. They pleaded that they be informed of the cause or causes for their repatriation, but their requests were rejected. The manager of their employer summoned the police, who arrived and escorted them to the airport. Upon respondent Navarra's arrival in Manila, the petitioner sought to settle his complaints. After the negotiations, the petitioner agreed to pay P49,000 to the said respondent but, in consideration thereof, the latter executed a quitclaim releasing the petitioner from any or all liabilities for his repatriation. Were petitioners illegally dismissed when they repatriated by their Taiwan employers? Was Navarra’s execution of quitclaim and receipt of P 49, 000 sufficient to conclude his waiver of right against illegal dismissal?

Yes. Respondents’ dismissal was not based on just, valid and legal grounds. As such, the rule lex loci contractus (the law of the place where the contract is made) governs. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor, apply in this case. In order to effect a valid dismissal of an employee, the law requires that there be just and valid cause as provided in Article 282 and that the employee was afforded an opportunity to be heard and to defend himself. Dismissal may also be based on any of the authorized causes provided for in Articles 283 and 284 of the Labor Code.

The petitioner failed to substantiate its claim that respondent Navarra's repatriation was based on a valid, legal and just cause. We thus rule that the respondents were constructively dismissed from their employment. There is constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice by him except to forego his continued employment. It exists where there is cessation of work because "continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay."

We rule that the deed of release executed by respondent Navarra did not completely release the petitioner from its liability on the latter's claim. As a rule, quitclaims, waivers or releases are looked upon with disfavor and are commonly frowned upon as contrary to public policy and ineffective to bar claims for the measure of a worker's legal rights. If (a) there is clear proof that the waiver was wangled from an unsuspecting or gullible person; or (b) the terms of the settlement are unconscionable, and on their face invalid, such quitclaims must be struck down as invalid or illegal. (PHIL EMPLOY SERVICES VS. PARAMIO, ET AL, April 15, 2004) 9. The petitioner is a domestic corporation engaged in the business of providing telegraph and communication services thru its branches all over the country. It employed various employees, among whom were private respondents. The petitioner came up with a Relocation and Restructuring Program. Private respondents received separate letters from the petitioner, giving them the option to choose the branch to which they could be transferred. Thereafter, the private respondents and other petitioner's employees were directed to "relocate" to their new PT&T Branches.

The petitioner offered benefits/allowances to those employees who would agree to be transferred under its new program. Moreover, the employees who would agree to the transfers would be considered promoted. The private respondents rejected the petitioner's offer. Hence, the petitioner sent letters to the private

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respondents requiring them to explain in writing why no disciplinary action should be taken against them for their refusal to be transferred/relocated. In their respective replies to the petitioner's letters, the private respondents explained that the transfers imposed by the management would cause enormous difficulties on the individual complainants. Dissatisfied with this explanation, the petitioner considered the private respondents' refusal as insubordination and willful disobedience to a lawful order; hence, the private respondents were dismissed from work. Subsequently, the private respondents' bargaining agent, PT&T Workers Union-NAFLU-KMU, filed a complaint against the petitioner for illegal dismissal and unfair labor practice for and in behalf of the private respondents. Are the respective transfers of the private respondents considered promotions? If so, is the denial of a promotion a just and authorized cause for dismissal?

Yes. With or without a corresponding increase in salary, the respective transfers of the private respondents were in fact promotions, following the ruling enunciated in Homeowners Savings and Loan Association, Inc. v. NLRC: “Promotion, as we defined in Millares v. Subido, is ‘the advancement from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary.’ Apparently, the indispensable element for there to be a promotion is that there must be an ‘advancement from one position to another’ or an upward vertical movement of the employee's rank or position. Any increase in salary should only be considered incidental but never determinative of whether or not a promotion is bestowed upon an employee.

However, An employee cannot be promoted, even if merely as a result of a transfer, without his consent. A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to 'lure the employee away from his permanent position cannot be done without the employees' consent. There is no law that compels an employee to accept a promotion for the reason that a promotion is in the nature of a gift or reward, which a person has a right to refuse. Hence, the exercise by the private respondents of their right cannot be considered in law as insubordination, or willful disobedience of a lawful order of the employer. As such, there was no valid cause for the private respondents' dismissal. (PT&T VS. CA, September 29, 2003)

10. The petitioner is a domestic corporation engaged in garments manufacturing using the brand name “KAMISETA.” The petitioner employed private respondent Torno as trimmer. The private respondent and a co-employee, Maricar Buan, were tasked to handle the inventory of finished products. Sometime thereafter, the petitioner started to receive information from the head of its production department that, according to other employees, Buan and the private respondent had been stealing “KAMISETA” items from the factory. On the basis of a report, the petitioner issued a disciplinary action form suspending the private respondent indefinitely without pay. A notice of dismissal was addressed to the private respondent specifying the charge against her, the factual basis thereof and the imposable penalties for the said charge if proven.

The private respondent failed to appear during the scheduled hearing. Consequently, the petitioner decided to dismiss the private respondent from her employment. When notified of the petitioner’s decision, the private respondent filed a complaint for illegal dismissal with prayer for reinstatement and payment of backwages, non-payment of service incentive leave pay and 13th-month pay against the petitioner before the National Capital Regional Arbitration Branch. LA rendered a decision holding that the respondent was illegally dismissed and directed the petitioner to pay backwages and separation pay to the private respondent. However, according to the labor arbiter, reinstatement could no longer be effected, as the relationship between the private respondent and the petitioner had been strained and ruptured. Aggrieved, the petitioner appealed the decision to the NLRC, alleging that it was deprived of its right to a formal hearing before the labor arbiter rendered her decision. LA’s failure to conduct a hearing deprived the petitioner of its vested right; consequently, her decision was null and void. Does the absence of a formal

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hearing amount to denial of petitioner’s right to due process? Is termination of the private respondent’s employment based on a just and valid cause?

We agree with the CA that the petitioner did not have a vested right to a formal hearing simply and merely because LA Tumanong granted its motion and set the case for hearing. Pursuant to Section 5, Rule V of the New Rules of Procedure of the NLRC, the labor arbiter has the authority to determine whether or not there is a necessity to conduct formal hearings in cases brought before him for adjudication. The holding of a formal hearing or trial is discretionary with the labor arbiter and is something that the parties cannot demand as a matter of right. It is entirely within his authority to decide a labor case before him, based on the position papers and supporting documents of the parties, without a trial or formal hearing. The requirements of due process are satisfied when the parties are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in case it be decided that no hearing should be conducted or was necessary.

The private respondent was illegally dismissed. In order to effect a valid dismissal, the law requires that (a) there be just and valid cause as provided under Article 282 of the Labor Code; and (b) the employee be afforded an opportunity to be heard and to defend himself. As stated by the CA, the petitioner had failed to show that it had complied with the two-notice requirement: (a) a written notice containing a statement of the cause for the termination to afford the employee ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires; (b) if the employer decides to terminate the services of the employee, the employer must notify him in writing of the decision to dismiss him, stating clearly the reason therefor. (SHOPPES MANILA VS. NLRC, January 14, 2004)

CALLEJO NOTES in CIVIL LAW

Persons and Family Relations

QUESTION No.1: Four employees of Act Theater Inc. were apprehended by the police officers for allegedly tampering a water meter. On the basis of the foregoing, the Metropolitan Waterworks and Sewerage System cut the water service connection of Act Theater a few hours after a notice to such effect was served upon the latter.

Did MWSS properly exercise its proprietary rights?

ANSWER: NO. Concededly, MWSS, as the owner of the utility providing water supply to certain consumers including the respondent, had the right to exclude any person from the enjoyment and disposal thereof. However, the exercise of rights is not without limitations. Having the right should not be confused with the manner by which such right is to be exercised. Article 19 of the New Civil Code states that “Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. When a right is exercised in a manner which discards these norms resulting in damage to another, a legal wrong is committed for which actor can be held accountable. In this case, MWSS failed to act with justice and gave Theater Act what is due to it when the former unceremoniously cut off the latter’s water service connection. (Metropolitan Waterworks and Sewerage System vs Act Theater Inc., GR No. 147076, June 17, 2004)

QUESTION No.2: The spouses Pahang obtained a loan from Metrobank. The said loan was secured by a real estate mortgage on a parcel of land owned by the spouses Pahang. For failure of the latter to settle their obligation, Matrobank extrajudicially foreclosed the real estate mortgage and the mortgaged property was sold to Metrobank as the highest bidder.

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Before the expiration of the one-year redemption period, the spouses Pahang filed a complaint for annulment of extrajudicial sale alleging that Metrobank bloated their obligation to frustrate their chances of paying the loan.

After the expiration of the one-year redemption period, Metrobank consolidated its ownership over the foreclosed property and, thereafter, filed a petition for Writ of Possession. This was opposed by the spouses Pahang on the ground that the complaint filed by them is a prejudicial question which warranted the suspension of the proceedings before the court.

Is the complaint filed by the spouses Pahang a prejudicial question to Metrobank’s petition for the issuance of a Writ of Possession?

ANSWER: NO. A prejudicial question is one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue that must be preemptively resolved before the criminal action may proceed because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The complaint of the petitioners for annulment of extrajudicial sale is a civil action and the respondent’s petition for the issuance of a writ of possession is but an incident in the land registration case and, therefore no prejudicial question can arise from the existence of the two actions. (Spouses Pahang vs Vestil, GR No. 148595, July 12, 2004)

QUESTION No.3: Rodolfo and Marietta were married on March 5, 1959. On December 6, 1992, Rodolfo left the conjugal home and abandoned Marietta and their children.

In the meantime, Rodolfo, who was desirous of contracting another marriage, filed a petition for the declaration of the nullity of his marriage with Marrieta on the ground of psychological incapacity. Fully aware that Marrieta had already transferred to another residence, Rodolfo still indicated in his petition that summons can be served upon Marrieta in her previous address. As a consequence of which, Marrieta did not receive any summons and failed to file an answer. The court, upon motion, declared Marrieta in default and allowed Rodolfo to adduce evidence ex parte. The public prosecutor who appeared for the state offered no objection to the motion of Rodolfo. The court rendered a decision declaring the marriage of Rodolfo and Marrieta void ab initio.

Was the grant of annulment of marriage by default proper?

ANSWER: NO. The actuations of the trial court and the public prosecutor are in defiance of Article 48 of the Family Code. A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application of legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. (Ancheta vs Ancheta, GR No. 145370, March 4, 2004)

QUESTION No.4: Alfredo and Encarnacion were married on January 8, 1960. During the subsistence of their marriage, they acquired 100,000 shares of stock in Citycorp and registered the same in the name of Alfredo.

On September 26, 1978, the Philippine Blooming Mills Company, Inc (PBMCI)obtained a loan from Allied Bank. As added security for the said loan, Alfredo, as the Executive Vice President of PBMCI executed a continuing guarantee with Allied Bank binding himself to jointly and severally guarantee the payment of all the PBMCI obligations owing to Allied Bank.

PBMCI failed to settle its obligation with Allied Bank. Allied Bank filed an application for a writ of preliminary attachment which was granted by the court. As a

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consequence of which, the sheriff levied on attachment the 100,000 shares of Citycom stocks in the name of Alfredo.

Encarnacion, assisted by Alfredo, thereafter filed a Motion to Set Aside the levy on attachment.

Should the Motion to Set Aside the levy on execution be granted? ANSWER: YES. Article 160 of the New Civil Code provides that all the properties acquired during the marriage are presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to the husband, or to the wife. It is not even necessary to prove that the properties were acquired with funds of the partnership. As long as the properties were acquired by the parties during the marriage, they are presumed to be conjugal in nature. In fact, even when the manner in which the properties were acquired does not appear, the presumption will still apply, and the properties will still be considered conjugal.

In this case, the evidence adduced by Encarnacion is that the 100,000 shares of stocks in Citycorp were issued and registered in its corporate books in the name of Alfredo when the said corporation was incorporated on May, 14, 1979. This was done during the subsistence of the marriage of Alfredo and Encarnacion. The shares of stock are thus presumed to be the conjugal partnership property of Alfredo and Encarnacion. The barefaced fact that the shares of stocks were registered in the corporate books of Citycorp solely in the name of Alfredo does not constitute proof that Alfredo, not the conjugal partnership, owned the same. (Ching vs Court of Appeals, GR No. 124642, February 23, 2004)

Note: Under the Family Code, Article 93, the presumption is that property acquired during the marriage belong to the community, unless it is proved that it is one of those exclused therefrom. The presumption in Article 116 of the Family Code will only arise if the future spouses agree in their marriage settlements that the regime of conjugal partnership of gains shall govern their property relations during the marriage pursuant to Article 105 FC.

Property

QUESTION No.1: The spouses Pascua executed a Deed of Absolute Sale over their property and the improvements thereon in favor of the spouses Chua. On the basis of the said deed, Transfer Certificate of Title No. 87610 over the property was issued to the latter.

The spouses Chua thereafter demanded that the spouses Apostol vacate the property but the latter stubbornly refused to do so claiming, among others, that they bought the said property and have been in possession of the same in the concept of an owner though they were not able to register the deed of sale.

The spouses Chua filed a complaint for unlawful detainer against the spouses Apostol. The latter, on the otherhand, filed a complaint for annulment of the deed of sale and TCT and for reconveyance.

Can the spouses Apostol be dispossessed of the property notwithstanding the fact that they are possessors in the concept of owner?

ANSWER: YES. The subject property is registered under the Torrens System in the names of the spouses Chua whose title to the property is presumed legal and cannot be collaterally attacked, much less in an action for unlawful detainer. It is an accepted rule that a person who has a Torrens title over the property is entitled to the possession thereof. In Javelosa vs CA (265 SCRA 493), the Supreme Court declared that the registered owners are entitled to the possession of the property covered by the said title from the time such title was issued in their favor. Moreover, the fact that the respondents were never in prior physical possession of the subject land is of no moment, as prior physical possession is necessary only in forcible entry cases. (Spouses Apostol vs Court of Appeals, GR No. 125375. June 17, 2004)

QUESTION No.2: Jose is the owner of a parcel of land situated in San Agustin, Dasmarinas, Cavite. Sometime in the middle of 1970, Paolo, the brother of Jose who was then the president of Cavite Electric Cooperative, verbally requested the latter to grant National Power Corporation the right of way over a portion of the subject

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property and to allow it to install wooden electrical posts and transmission lines for the electrification of Puerto Azul. Jose acceded to the said request but upon the condition that the said installations would only be temporary in nature.

Sometime in 1994 and thereafter in 1995, agents of NPC entered the property of Jose and conducted engineering surveys thereon for the purpose of erecting an all-steel transmission line tower.

Jose thereupon filed an action for a sum of money and damages alleging therein that contrary to their verbal agreement, NPC continued to use his property for its wooden electrical posts and transmission lines without compensating him therefore.

Instead of filing an answer, NPC filed a motion to dismiss on the ground that it had already acquired by prescription the easement of right-of-way over that portion of Jose’s property where its posts and transmissions were established.

Has NPC acquired by prescription the easement of right of way?

ANSWER: NO. Article 620 of the Civil Code reads: “Continuous and apparent easements are acquired either by virtue of a title or by prescription of then years.” Prescription as a mode of acquisition requires the existence of the following: (1) capacity to acquire by prescription; (2) a thing capable of acquisition by prescription; (3) possession of the thing under certain conditions; and (4) lapse of time provided by law. Acquisitive prescription may either be ordinary, in which case the possession must be in good faith and with just title, or extraordinary, in which case there is neither good faith nor just title. In either case, there has to be possession which must be in the concept of an owner, public, peaceful, and uninterrupted. As a corollary, Article 1119 of the NCC provides that: “Acts of possessory character executed in virtue of license or by mere tolerance of the owner shall not be available for the purposes of possession.

In the present case, the facts reveal that NPC’s possession of that portion of Jose’s property where it erected the wooden posts and transmission lines was merely upon the tolerance of the latter. Accordingly, this permissive use by NPC of that portion of the subject property, no matter how long continued, will not create an easement of right of way by prescription. (NPC vs. Spouses Campos Jr. GR no. 143643 June 27, 2003)

QUESTION No.3: Teresa owned a residential lot with the certificate of title in her name. In 1960, she allowed Rosendo to construct a house on the said lot and stay therein without any rentals therefore. In 1966, she leased the property to Bienvenido Santos and assigned her leasehold rights to the Second Quezon City Development Bank, to which she had an outstanding loan.

Teresa died in 1978. In deference to her wishes, her heirs allowed Rosendo to stay in the property. Rosendo died in 1995. The heirs of Teresa thereafter filed an ejectment suit against the heirs of Rosendo after the later refused to vacate the property despite repeated demands.

The heirs of Rosendo interposed the defense that Teresa donated the parcel of land to Rosendo in 1976. They produced as evidence the photocopy of the deed of donation. An examination of the deed reveals that the same is notarized and appears to have complied with all the requisites of donation. Hence, its validity, according to the heirs of Rosendo, must be presumed.

It appears however, that the title to the property remained with Teresa; that the Deed of Donation was not registered in the Office of the Register of Deeds; nor was the deed annotated in the certificate of title.

a) Do the heirs of Rosendo have the better right of possession?b) What are the essential elements of a valid donation?c) Is registration of the Deed of Donation necessary for its validity?

ANSWERS: a) NO. The fundamental principle is that a certificate of title serves as evidence of an

indefeasible and incontrovertible title to the property in favor of the person whose name appears therein as the registered owner. The registered owner has the right to posses, enjoy and dispose of the property without any limitations other than those imposed by law.

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Furthermore, the following facts and circumstances engender veritable doubts as to whether they have a better right of possession: the fact that the title to the property remained with Teresa, and that no new title had been issued in the name of Rosendo because the deed was not registered in the Office of the Register of Deeds; the fact that the deed was not annotated at the dorsal portion of the certificate of title; and the fact that it was only after eighteen years, after the heirs of Rosendo were sued for ejectment, that this defense of donation came out for the first time.

b) The essential elements of donation are as follows: (a) the essential reduction of the patrimony of the donor; (b) the increase in the patrimony of the donee; (c) the intent to do an act of liberality or animus donandi. When applied to a donation of an immovable property, the law further requires that the donation be made in the same deed or in a separate public instrument; in cases where the acceptance is made in a separate instrument, it is mandated that the donor be notified thereof in an authentic form, to be noted in both instruments.

c) NO. In order that the donation of an immovable property may be valid, it must be made in a public document. Registration of the deed in the Office of the Register of Deeds or in the Assessor’s Office is not necessary for it to be considered valid and official. Registration does not vest title; it is merely evidence of such title over a particular parcel of land. The necessity of registration comes into play only when the rights of third persons are affected.

Obligations and Contracts

QUESTION No. 1: Concepcion and her sister, Nieves were co-owners of a parcel of land. Nieves and her husband Angel constructed on the said property a two-storey commercial building. Concepcion thereafter acquired her undivided share of the property by virtue of a court order which had become final and executory. She then filed a complaint for unlawful detainer against Nieves and Angel which was decided by the MTC in her favor.

Concepcion subsequently executed a deed of absolute sale covering her undivided share to Iluminada who made a partial payment of the purchase price and promised, pursuant to the contract, to pay the balance upon delivery by Concepcion of the corresponding certificate of title.

After the death of Concepcion, Iluminada filed a complaint for the revival and execution of the decision of the MTC in the unlawful detainer case. She alleged therein that she is the successor in interest of Concepcion, and as such, she acquired the right of action to enforce the abovementioned decision of the MTC. Nieves and Angel, on the otherhand, maintains that the complaint should be dismissed because Concepcion had not yet paid the balance of the purchase price of the property, and as such, had not acquired title over the lot and the right to evict them. This is so because they maintained that the deed of absolute sale executed by Concepcion in favor of Iluminada was an executory, and not an executed deed; hence, the failure of Iluminada to pay the balance of purchase price during the lifetime of Conception rendered the sale null and void.

Iluminada, thereafter, consigned before the court, after the lapse of 21 years from the execution of the deed of absolute sale, the amount representing the balance of the purchase price and filed a motion for the execution of the decision of the MTC in the unlawful detainer case.

a) Did Iluminada’s failure to pay the balance of the purchase price render the sale null and void?

b) What is the effect of Iluminada’s act of consigning the balance of the purchase price before the court?

ANSWERS:a) NO. In a perfected contract of sale of realty, the right to rescind the said contract

depends upon the fulfillment or non-fulfillment of the prescribed condition. The Supreme Court has held in a number of cases that the non-payment of the purchase price of property is a resolutory condition for which the remedy is either rescission or specific

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performance under Article 1191 of the New Civil Code. This is true for reciprocal obligations where the obligation is a resolutory condition of the other. The vendee is entitled to retain the purchase price or a part of the purchase price of realty if the vendor fails to perform any essential obligation of the contract. Such right is premised on the general principles of reciprocal obligations.

Iluminada paid the downpayment of the purchase price. By the terms of the contract, the obligation of the vendee to pay the balance of the purchase price ensued only upon the issuance of the certificate of title by the Register of Deeds over the property sold to and under the name of the vendee, and delivery thereof by the vendor Concepcion to the latter. Concepcion failed to secure a certificate of title over the property. When she died, her obligation to deliver the said title to the vendee devolved upon her heirs, including Nieves. The said heirs, including Nieves failed to do so, despite lapse of eighteen years since Concepcion’s death.

b) The consignation by the vendee of the purchase price of the property is sufficient to defeat the right of the petitioners to demand for a rescission of the said deed of absolute sale.

It bears stressing that when the vendee consigned part of the purchase price with he Court and secured title over the property in her name, the heirs of Concepcion, including the petitioners, had not yet sent any notarial demand for the rescission of the deed of absolute sale to the vendee, or filed any action for the rescission of the said deed with the appropriate court.

Although Iluminada consigned consigned with the court an amount short of the purchase price, it cannot be claimed that Concepcion was an unpaid seller because under the deed of sale, she was still obligated to transfer the property in the name of the vendee, which she failed to do. According to Article 1167 of the NCC: “If a person obliged to do something fails to do it, the same shall be executed at his cost. The same rule shall be observed if he does it in contravention of the tenor of the obligation. Furthermore, it may be decreed that what has been poorly done be undone.” (Gil vs Court of Appeals, GR No.127206. September 12, 2003)

QUESTION No.2: Alfred, an Australian citizen, met Ederlina, a Filipina who was working in Australia as a masseuse. Ederlina is married to Klaus, a German citizen. When the two became close, Alfred convinced Ederlina to return to the Philippines and establish her own business there with the former providing for the capital. While in the Philippines, the two purchased a number of real estate with the use of Alfred’s money though the deed of absolute sale designated Ederlina as the vendee. Their relationship, however, did not work out. As a consequence of which, Alfred now demands that Ederlina execute the corresponding deeds of transfer over the disputed properties in his name so that he can sell the same at public auction and recover the value of the same. It is his contention that since it was his money which was used in purchasing the properties, the same belongs to him as the real vendee.

a) Will Alfred be allowed to recover the properties on the basis of Article 1412 of the Civil Code?

b) Will he be allowed to recover on the ground that the agreement is not illegal per se pursuant to Article 1416?

c) Will the denial of relief to Alfred not run counter to Article 22 of the New Civil Code?

ANSWERS:a) NO. A contract that violates the Constitution and the law, is null and void and vests no

rights and creates no obligations. It produces no legal effect at all. Alfred, being a party to an illegal contract cannot come into a court of law and ask to have his illegal objective carried out. One who looses his money or property by knowingly engaging in a contract or transaction which involves his own moral turpitude may not maintain an action for his losses. The law will not aid either party to an illegal contract or agreement; it leaves the parties where it finds them. Under Article 1412 of the New Civil Code, the petitioner cannot have the subject properties deeded to him or allow him to recover the money he had spent for the purchase thereof. Equity as a rule will follow the law and will not

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permit that to be done indirectly, which, because of public policy, cannot be done directly. Where the wrong of one party equals that of the other, the defendant is in the stronger position… it signifies that in such situation, neither a court of equity nor a court of law will administer a remedy.

b) NO. Alfred cannot find solace in Article 1416 NCC which reads: “When the agreement is not illegal per se but is merely prohibited, and the prohibition by the law is designated for the protection of the plaintiff, he may, if public policy is thereby enhanced , recover what he has paid or delivered.” The provision applies only to those contracts which are merely prohibited, in order to benefit private interests. It does not apply to contracts void ab initio. The sales of three parcels of land in favor of Alfred who is a foreigner is illegal per se. The transactions are void ab initio because they were entered into in violation of the Constitution. To allow Alfred to recover the properties or the money used in the purchase of the same would be subversive of public policy.

c) NO. The said provision is expressed in the maxim: “Memo cum alterius deter detremento protest” (No person should unjustly enrich himself at the expense of another). An action for recovery of what has been paid without just cause has been designated as an accion in rem verso. The provision does not apply if, as in this case, the action is proscribed by the Constitution or by the application of the pari delicto doctrine. It may be unfair and unjust to bar Alfred from filing an accion in rem verso over the subject properties, or from recovering the money he paid for the sid properties, but as Lord Mansfield stated in the early case of Holman vs Johnson: “the objection that a contract is immoral or illegal as between the plaintiff and the defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake that the objection is ever allowed; but it is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff. (Frenzel vs Catito, GR No.143958, July 11, 2003)

QUESTION No.3: Angelica and her children were the registered owners of 3 parcels of land. These properties were tenanted and tilled by farmers. The said farmers assigned their rights to the land in favor of Herminio in consideration of P50/ sqm to be payable when the legal impediments to the sale of the said land ceased to exist.

Herminio demanded for the implementation of the contract. The latter, however, desisted and informed Herminio that they were rescinding the contract and they will instead sell their rights to the Lacson’s who offered him better terms.

Are the Lacson’s guilty of interference?

Answer: No. Under Art. 1314 of the NCC any third person who induces another to violate his contract shall be liable for damages to the other contracting party. It has been held that the pleader has the burden of proving: 1) the existence of a valid contract; 2) knowledge by the third person of the existence of the contract; and 3) interference by the third person in the contractual relation without legal justification.

One who is not a party to a contract and who interferes thereon is not necessarily an officious or malicious intermeddler. Where there was no malice in the interference of a contract, and the impulse behind one’s conduct lies in a proper business interest rather than in wrongful motives, a party cannot be a malicious interferer. Where the alleged interferer is financially interested, and such interest motivates his conduct, it cannot be said that he is an officious or malicious intermeddler. Such is the case at bar. (Tayag vs. LacsonGR # 134971 March 25, 2004)

Wills and Succession

QUESTION No.1: On September 20, 1953, Pastor Lim married Rufina Luy. During the early part of their marriage, Pastor established a number of family corporations using their conjugal funds. Among these corporations was Skyline International Corporation wherein the spouses Lim were incorporators and employees. In 1971, Rufina filed a petition for legal separation on the ground of infidelity against Pastor. The court granted the same and upon motion ordered the sheriff to have the properties of Skyline levied to answer for the award of support granted to Rufina.

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On August 21, 1987, Speed Distributing Corporation was registered with SEC with Pastor as one of the incorporators. Then on June 21, 1991, Leslim Corporation was also registered with SEC with Pastor as the majority shareholder.

On June 11, 1994, Pastor died intestate and was survived by his wife who was thereafter appointed as special administratrix of Pastor’s estate.

It appears that on two occasions, Leslim Corporation sold to Speed Distributing Corp. parcels of land. Upon knowing this, Rufina filed a complaint against Speed for the nullification of the deed of sale executed by Leslim in its favor. She alleged that the subject properties, although registered in the name of those entities, were acquired by Pastor during their marriage. She further alleged that the sale was unauthorized since at the time of its execution, her husband who was major stockholder, was already dead and could no longer manifest his approval over the same.

Can Rufina legally question the validity of the sale?

Answer: Yes. Rufina filed the complaint as one of the heirs of Pastor, who died intestate. She was, in fact, the surviving spouse of the deceased, a compulsory heir by operation of law. The general rule under the law on succession is that successional rights are transmitted from the moment of death of the decedent and compulsory heirs are called upon to succeed by operation of law to the inheritance without the need of further proceedings. Under Art. 776, NCC, inheritance includes all the properties, rights and obligations of a party, not extinguished by his death. Although Rufina was appointed by the probate court as special administratrix of the estate of Pastor, she had the right, apart from her being a special administratrix, to file the complaint against Speed for the nullification of the deed of absolute sale.

A prior settlement of the estate or even the appointment of Rufina as administratrix, is not necessary for any of Pastor’s heirs to acquire legal capacity to sue. As successors who stepped into the shoes of their decedent upon his death, they can commence any action originally pertaining to the decedent. From the moment of Pastor’s death, all his rights not extinguished by his death were transmitted to his heirs. (Speed Distributing Corp. vs. CA, GR No. 149351, March 17, 2004)

Sales and Lease

QUESTION No.1: Agricom leased its rubber plantation to Pioneer Enterprises. As a consequence of which, Agricom terminated its employees in the plantation and gave them their separation pay.

While Pioneer was managing the plantation, some of Agricom’s severed employees filed a complaint for illegal dismissal against Agricom and Pioneer which was decided by the labor arbiter in favor of the employees. Some individuals fenced certain portions of the plantation, went to the office of Pioneer bringing tax declarations and claimed that they were the owners of the same.

Pioneer defaulted in its payment of the monthly rental. Agricom thereafter filed a complaint for sum of money with damages. In its answer, Pioneer maintained that she had the right to suspend payment of the rentals since Agricom failed to maintain her in peaceful and adequate enjoyment of the leased property.

a) Does Agricom have the obligation to maintain the lessee in peaceful and adequate enjoyment of the property?

b) Granting that the above obligation exists, was Agricom able to comply with the same?

ANSWERS:a) YES. As lessor, the Agricom had the duty to maintain Pioneer in the peaceful and

adequate enjoyment of the leased premises. Such duty was made as part of the contract of lease entered into by the parties. Even if it had not been so, the lessor is still duty-bound under Article 1654(3) of the Civil Code.

b) YES. The duty to maintain the lessee in the peaceful and adequate enjoyment of the lease for the duration of the contract mentioned in Article 1654 (3) is merely a warranty that the lessee shall not be disturbed in his legal, and not physical, possession. In the

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case at bar, no action to quiet title was filed by any of the said claimants against Pioneer during the time that it occupied the premises. When Pioneer’s representative saw that a portion of the leased premises was being fenced by the claimants, it had all the right to sue the intruders who had disturbed its physical possession as provided in Article 1664 of the New Civil Code. However, Pioneer did not file any suit against the claimants. Patently, then, Pioneer had not been disturbed in its legal possession of the property in derogation of Article 1654 of the New Civil Code. (Chua Tee Dee vs Court of Appeals, GR No.135721. May 27, 2004)

QUESTION No.2: Orlando obtained a loan from Philippine Savings bank payable within a period of one year in quarterly installments of P29,190.28. The said loan was secured by a real estate mortgage covering Orlando’s property.

On December 26, 1985, Orlando, as vendor, and Rogelio as vendee executed a Deed of Sale with Assumption of Mortgage over the said property. A month later, Orlando executed a Contract to Sell involving the same property in favor of Rogelio for P250,000.00. In the said document, he obliged himself to execute a deed of absolute sale over the property in favor of Rogelio upon the full payment of the purchase price thereof. The contract futher obliged Rogelio to pay the said amount to PSB as part of the purchase price.

Rogelio paid the first, second and third quarterly installments in Orlando’s name with PSB. However, on November 27, 1986, Orlando was notified by PSB that his loan would mature on December 24 of that year. Fearing that Rogelio would not be able to pay the last installment, Orlando was compelled to pay the same. Orlando sent a notice to Rogelio that he was ready to execute the deed of absolute sale and turn over the title to the property upon latter’s remittance of the amount which Orlando paid to PSB.

On December 24, 1986, Rogelio went to PSB to pay the last installment and informed the latter that Orlando had executed a deed of sale with assumption of mortgage in his favor. PSB however refused to accept the payment and informed Rogelio that it was not bound by the said deed.

Rogelio thereafter filed a complaint for specific performance against Orlando.a) What is the nature of the contract entered into between Orlando and

Rogelio?b) What is the effect of Rogelio’s failure in paying the last installment to PSB?c) What remedy, if any, is available to Rogelio?

ANSWERS:a) CONTRACT TO SELL. It bears stressing that Orlando and Rogelio executed two

interrelated contracts, vis: the Deed of Sale with Assumption of Mortgage and the Contract to Sell. To determine the intention of the parties, the two contracts must be read and interpreted together. Under the two contracts, Orlando bound and obliged himself to execute a deed of absolute sale over the property and transfer title thereon to Rogelio after the payment of the full purchase price of the property, inclusive of the quarterly installments due on the petitioner’s loan with PSB.

Construing the contracts together, it is evident that the parties executed a contract to sell and not a contract of sale. It is well established that where the seller promised to execute a deed of absolute sale upon completion of payment of the purchase price by the buyer, the agreement is contract to sell.

b) In contracts to sell, where ownership is retained by the seller until the payment of the price in full, such payment is a positive suspensive condition , failure of which is not really a breach but an event that prevents the obligation of the vendor Orlando to convey title in accordance with Article 1184 of the Civil Code. The non-fulfillment by Rogelio of his obligation to pay, which is a suspensive condition to the obligation of Orlando to sell and deliver the title to the property, rendered the contract to sell ineffective and without force and effect. The parties stand as if the conditional obligation had never existed. Article 1191 will not apply because it presupposes an obligation already extant. There can be no rescission of an obligation that is still non-existing, the suspensive condition not having happened.

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c) Rogelio may reinstate the contract to sell by paying the amount paid by Orlando to PSB when the latter settled the last installment, and Orlando may agree thereto and accept Rogelio’s late payment. In this case, Orlando had already decided before and after Rogelio filed the complaint to accept the payment and to execute the deed of absolute sale over the property and cause the transfer of the title of the subject property to Rogelio. (Rayos vs Court of Appeals, GR No. 135528, July 14, 2004)

Partnership, Agency and Trusts

QUESTION No.1: The heirs of Tecson and Eleosida are the owners of a parcel of land covered by TCT Nos. T-36766 and T-36745 respectively. The abovementioned owners are represented by Mary.

On one occasion, Mary met Antonio and Aurelio who offered to purchase the property, of which the former agreed. Antonio and Aurelio thereafter demanded that a deed of absolute sale be executed by Mary pursuant to their verbal agreement. When the said demand reached Mary, she sent a letter to Antonio and Aurelio informing them that she is no longer selling the property as she was encountering problems with the tenants thereon.

Antonio and Aurelio subsequently filed a complaint for specific performance with damages against Mary and the registered owners of the parcels of land grounded on the alleged perfected contract of sale as evidenced by the letter sent to them by Mary.

a) Was there a perfected contract of sale?b) Was the letter sent by Grace a sufficient note or memorandum of the

perfected contract to remove the same from the coverage of the statute of frauds?

ANSWERS:a) NO. There is no documentary evidence that the respondent-owners authorized

respondent Mary to sell their properties to another. Article 1878 of the New Civil Code provides that a special power of attorney is necessary to enter into a contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration, or to create or convey real rights over immovable property, or for any other act of strict dominion. Any sale of real property by one purporting to be the agent of the registered owner without any authority therefore in writing from the said owner is null and void. He declarations of the agent alone are generally insufficient to establish the fact or extent of her authority.

b) NO. Contrary to Antonio and Aurelio’s contention, the letter sent by Grace is not a note or memorandum within the context of Article 1403 (2) of the New Civil Code because it does not contain the following: (a) all the essential terms and conditions of the sale of the properties; (b) an accurate description of the property subject of the sale; and (c) the names of the respondents-owners of the properties. (Litonjua vs Fernandez, GR No.148116. April 14, 2004)

Credit Transactions

QUESTION No.1: The spouses Serrano obtained a loan from GSIS secured by a real estate mortgage upon a house and lot owned by the former.

The spouses Serrano executed on June 3, 1969 a deed of absolute sale with partial assumption of mortgage over the property in favor of the spouses Geli who immediately took possession of the same. The spouses Geli failed to settle their obligation. As a consequence of which, GSIS filed a complaint for the rescission of the deed of absolute sale with partial assumption of mortgage. The court thereafter ordered the rescission of the said deed.

The spouses Geli elevated the case to the Court of Appeals. During the pendency of the appeal, GSIS foreclosed the real estate mortgage over the property. During the auction sale, the property was awarded to GSIS as the highest bidder and a certificate of sale was issued to it on August 30, 1986. Unknown to both the

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spouses Serrano and the Court of Appeals, the spouses Geli paid the redemption price on October 30, 1987 and a certificate of redemption was executed by GSIS in their favor. The Court of Appeals however dismissed the appeal and the same became final and executory.

(optional) The spouses Geli thereafter filed a petition for certiorari praying for the nullification of the order of the trial court. They alleged that when they paid the redemption price to the GSIS, their appeal of the decision of the lower court was still pending before the CA. Consequently, under the terms of the deed of absolute sale with assumption of mortgage which was still standing at that time, they were ipso facto subrogated to the rights of the spouses Serrano as mortgagors of the property; hence, they became owners of the property and were entitled to the possession thereof.

Did the act of the spouses Geli in redeeming the property and of GSIS in executing the certificate of redemption in favor of the former operated to vest in them the ownership over the same?

ANSWER: NO. Before the lapse of the one year period, the mortgagor-debtor remains the owner of the property. The right acquired by the purchaser at public auction is merely inchoate until the period of redemption has expired without the right being exercised by the redemptioner. Such right becomes absolute only after the expiration of the redemption period without the right of redemption having been exercised.

In this case, there is no showing that that the sheriff’s certificate of sale in favor of the GSIS has been registered in the Office of the register of Deed and if so, when it was in fact registered in the said office. It cannot thus be argued that when the spouses Geli paid the redemption price in full payment of the account of the spouses Serrano, the one year period to redeem the property had by then lapsed. Hence, the spouses Serrano remained the owners of the property. The GSIS never acquired title over the property and could not have conveyed and transferred ownership over the same when it executed the certificate of redemption to and in the name of the spouses Serrano. (Serrano vs Court of Appeals, GR No. 133883, December 10, 2003)

QUESTION No.2: Franklin was asked by his friend Angeles to help Arturo in incorporating his business by depositing a certain amount of money in the bank account of Sterela Marketing. Angeles assured Vives that he could withdraw the said amount from the same account in a months time. Relying on the aforementioned assurances and representations, Franklin issued a check in the amount of P200,000.00 in favor of Sterela Marketing.

Franklin thereafter went to Producer’s Bank to verify if his money was still intact. He was however informed that part of the money in the account had been withdrawn by Arturo and that the remaining P90,000.00 could not be withdrawn since it had to answer for some postdated checks issued by Arturo.

Arturo issued a postdated check in the amount of P212,000.00 in favor of Franklin which was however dishonored upon presentment. As a consequence of which, Franklin filed an action for recovery of sum of money.

a) Was the transaction between Franklin and Arturo one of loan or commodatum?

b) Can a consumable thing be a subject of commodatum?

ANSWER: a) COMMODATUM. Franklin agreed to deposit his money in the savings account of Sterela

specifically for the purpose of making it appear that the same had sufficient capitalization for incorporation, with the promise that the amount shall be returned within thirty days. Franklin merely accommodated Arturo by lending his money without consideration as favor to his good friend Angeles. It was however clear to the parties that the money will not be removed from Sterela’s savings accountand would be returned to Franklin after thirty days.

Arturo’s attemps to return to Franklin the amount of P200,000.00 together with an additional P12,000.00, allegedly representing interest on the mutuum, did not convert the transaction from the commodatum into a mutuum because such was not the intent of

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the parties and because the additional P12,000.00 corresponds to the fruits of the lending of the P200,000.00. Article 1935 of the Civil Code expressly states that “the bailee in commodatum acquires the use if the thing loaned but not the fruits. As such, it was only proper for Arturo to remit to Franklin the interest accruing to the latter’s money deposited with Producer’s Bank.

b) YES. There are some instances where a commodatum may have for its object a consumable thing. Article 1936 of the New Civil Code provides that “Consummable goods may be the subject of commodatum if the purpose of the contract is not the consumption of the object, as when it is merely for distribution.” Thus, if consumable goods are loaned only for purposes of exhibition, or when the intention of the parties is to lend consumable goods and to have the very same goods returned at the end of the period agreed upon, the loan is a commodatum and not a mutuum. (Producers Bank of the Philippines vs CA, GR No.115324, February 19, 2003)

QUESTION No.3: Superlines Transportation Co. decided to acquire five new buses from Diamond Motors. ICC Leasing agreed to finance the purchase of the said buses in the amount of P13 Million via a loan upon the condition that the buses shall be used as security for the loan. Superlines however defaulted in the payment of its obligation to ICC. As a consequence of which, ICC extrajudicially foreclosed the chattel mortgage. During the auction sale, ICC offered a bid of P7 Million for the motor vehicles and was declared the winning bidder, resulting in the deficiency of P6 Million from the total amount of the loan.

a) Is Article 1484 (3) of the Civil Code applicable in the present case?b) Is Superlines still liable for the P6 Million deficiency?

ANSWERS: a) NO. Article 1484 (3) of the New Civil Code is inapplicable to the instant transaction

between the parties. It was Diamond Motors and not ICC which sold the subject buses to Superlines. No evidence had been presented by Superlines to show that ICC bought the said buses from Diamond Motors Corporation under a special arrangement and that ICC sold the buses to Superlines. Article 1484 (3) is applicable only where there is vendor-vendee relationship between the parties and since ICC did not sell the buses to Superlines, the latter cannot invoke the said law.

b) YES. Applying the Chattel Mortgage Law, it is settled that if in an extra-judicial foreclosure of a chattel mortgage a deficiency exists, an independent civil action may be instituted for the recovery of the said deficiency. To deny the mortgagee the right to maintain an action to recover the deficiency after foreclosure of the chattel mortgage would be to overlook the fact that the chattel mortgage is only given as security and not as payment for the debt in case of failure of payment. Both the Chattel Mortgage Law and Act 3135 governing extra-judicial foreclosure of real estate mortgage, do not contain any provision, expressly or impliedly, precluding the mortgagee from recovering deficiency of the principal obligation. (Superlines Transportation Company vs ICC Leasing and Financing Corporation, GR No. 150673, February 28, 2003)

Torts and Damages

QUESTION No.1: Errol was found guilty beyond reasonable doubt by the RTC of Romblon for the murder, qualified by abuse of superior strength, of Alejandro. The court sentenced him to suffer the penalty of reclusion perpetua and ordered him to pay the heirs of Alejandro the following: a) P50,000.00 as civil indemnity; b) actual damages based on the testimony that the heirs incurred burial and other expenses as a consequence of Alejandro’s death; and c) P25,000.00 as exemplary damages.

a) Was the court correct in awarding P50,000.00 as civil indemnity?b) Was the court correct in awarding actual damages?c) Was the court correct in awarding exemplary damages?

ANSWERS:

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a) YES. Conformably to recent jurisprudence, the amount of P50,000.00 for civil indemnity should be sustained. Artcile 2206 of the Civil Code provides that when death occurs as a result of a crime, the heirs of the deceased are entitled to be indemnified without need of any proof thereof.

b) NO. While there was testimony that the heirs incurred burial and other expenses resulting from the death of Alejandro, no competent evidence was presented to prove his claim. Under Artile 2199 of the Civil Code, a party is entitled to compensation only for such pecuniary loss suffered by him as he has duly proved. Only substantiated an proven expenses, or those that appear to have been genuinely incurred in connection with the death , wake or burial of the victim will be recognized.

However, under Article 2224 of the same Code, temperate damages may be recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. In the present case, the heirs of Alejandro clearly incurred funeral and burial expenses. Hence, the award of temperate damages is justified.

c) YES. Given the attendance of the qualifying circumstance of abuse of superior strength, the award of exemplary damages in the amount of P25,000.00 to the heirs of the victim in accordance with Article 2230 of the Civil Code, is in order. (People vs Lachica, GR No.131915. September 3, 2003)

QUESTION No.2: Zamboanga Development Corporation (ZDC) obtained from United Coconut Planters Bank (UCPB) in which the spouses Teofilo Ramos, Sr. and Amelita Ramos acted as sureties. Teofilo Sr. was the Executive Officer of the Iglesia ni Cristo. For failure of ZDC to settle its obligation, UCPB filed a complaint (Civil Case 16453) for a sum of money against it and the sureties. Judgment was rendered in favor of UCPB. A writ of execution was thereafter issued which contained the name Teofilo Ramos.

In the process of implementing the above writ, UCPB was informed by one of its appraisers that they have located a house and lot covered by TCT 275167 owned by Teofilo C. Ramos, President and Chairman of the Borad of Directors of the Ramdustrial Corporation, and married to Rebecca Ramos.

Meanwhile, Ramdustrial Corp. who was in need of money to participate in a bidding project of San Miguel Corporation, applied for a loan with UCPB using the house and lot owned by Teofilo C. Ramos as collateral therefore. Much to their surprise, they were informed by UCPB that it had to hold in abeyance any action on its loan application because a notice of levy was annotated on the title of the property belonging to Teofilo C. Ramos. As a consequence of which, Teofilo C. Ramos has to rush to the hospital due to hypertension problems and Ramdustrial Corporation forfeited its chances to participate in the bidding. Teofilo C. Ramos thereafter filed a complaint praying that judgment be rendered ordering UCPB to pay moral and exemplary damages on account of its negligence.

a) Was UCPB negligent?b) Is the award of moral damages proper?c) Is the award of exemplary damages proper?

ANSWERS:a) YES. In determining whether or not the petitioner acted negligently, the constant test is:

“Did the defendant in doing the negligent act use that reasonable care and caution which an ordinary prudent person would have used in the same situation? If not, then he is guilty of negligence.”

UCPB has access to more facilities in confirming the identity of their judgment debtors. It should have acted more cautiously, especially since some uncertainty had been reported by the appraiser whom it had tasked to make verifications. It appears that UCPB treated the uncertainty as a flimsy matter. It placed more importance on the information regarding the marketability and market value of the property, utterly disregarding the identity of the registered owner thereof.

Furthermore, the name of the judgment debtor in Civil Case 16453 was Teofilo Ramos, Sr.. The name of the owner of the property covered by TCT 275167 was Teofilo C. Ramos. It behoved upon UCPB to ascertain whether Teofilo Ramos Sr. in Civil Case

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16453 was the same person who appeared as the owner of the property covered by the said title. If the petitioner had done so, it should have surely discovered that the respondent was not the surety and the judgment debtor in Civil Case 16453. UCPB failed to do so, and merely assumed that the respondent and the judgment debtor Teofilo Ramos Sr. were one and the same person.

b) YES. For the award of moral damages to be granted, the following must exist: (1) there must be an injury clearly sustained by the claimant, whether physical, mental, or psychological; (2) there must be a culpable act or omission factually established; (3) the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and (4) the award for damages is predicated on any of the cases stated in Article 2219 of the Civil Code.

In the case at bar, all the four requisites are present. First, Teofilo C. Ramos sustained injuries in that his physical health and cardio-vascular ailment were aggravated; his fear that his one and only property would be foreclosed, hounded him endlessly; and his reputation as mortgagor has been tarnished. Second, the annotation of the notice of levy on the TCT of Teofilo C. Ramos was wrongful, arising as it did from UCPB’s negligent act of allowing the levy without verifying the identity of its judgment debtor. Third, such wrongful levy was the proximate cause of Teofilo’s misery. Fourth, the award for damages is predicated on article 2219 of the Civil Code, particularly No. 10 thereof (Acts and actions referred to in Article 21, 26, 27, 28, 29, 30, 32, 34, and 35).

c) NO. Teofilo C. Ramos failed to show that UCPB acted with malice and bad faith. It is a requisite in the grant of exemplary damages that the act of the offender must be accompanied by bad faith or done in wanton, fraudulent, or malevolent manner.

QUESTION No. 3: The RTC of Malolos, Bulacan, convicted Trinidad, Sampaga, and Corona of murder and was sentenced accordingly. As to the civil liability of the accused, the trial court awarded, among others, the sum of P500,000 for loss of earning capacity of the victim based solely on the testimony of Josephine, the victim’s daughter.

Was the award proper?

Answer: No. The award of P500,000 to the heirs of the victim for the latter’s unearned income is barren of factual basis. The prosecution was mandated to adduce documentary evidence to prove the same. The bare testimony of Josephine is not sufficient basis for the award.

Compensation for lost income is in the nature of damages, and requires adequate proof thereof. For loss of income due to death, there must be unbiased proof of the deceased’s average income as well as proof of average expenses. The award for lost income refers to the net income of the deceased; that is the total income less average expenses. No proof of the victim’s average expenses was adduced in evidence; as such, there can be no reliable estimate of lost earnings. Indeed, the award of the trial court was based merely on speculation and surmises. (People vs. Sampaga, GR No. 139823, March 12, 2004)

Land Titles and Deeds

QUESTION No.1: Angel filed a petition for registration of a parcel of land on June 22, 1994 claiming that he has been in actual, open, continuous and notorious possession, in the concept of an owner over the same. It appears that he likewise filed a foreshore lease application over the same land in 1977. During the trial, the court ordered the LRA and the CENRO to file with it a report on the status of the subject land. The court thereafter rendered a decision on May 3 1995 granting the petition. The said decision became final and executory.

The Office of the Solicitor general subsequently filed a petition for annulment of the above judgment on the ground that based on the report of the LRA which was received by it on June 22, 1995, the land applied for is foreshore land.

a) What is the nature and classification of foreshore land?b) Will the action of the Republic through the OSG prosper?

ANSWERS:

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a) NO. Foreshore land is that strip of land that lies between the high and low water marks and is alternatively wet and dry to the flow of the tide. It is that part of the land adjacent to the sea, which is alternatively covered and left dry by the ordinary flow of tides. It is part of the alienable land of the public domain and may be disposed of only by lease and not otherwise. Foreshore land remains part of the public domain and is outside the commerce of man. It is not capable of private appropriation.

b) YES. Even if the decision of the RTC has become final and executory, the action for annulment of judgment should be sustained since it is impressed with public interest. The State has to protect its interests and cannot be bound by, or estopped from, the mistakes or negligent acts of its officials or agents, mush more, non-suited as a result thereof.

Furthermore, Angel had in fact filed a foreshore lease application in 1977 and paid the corresponding fees thereon. There is therefore doubt to Angel’s claim that he had been in actual, open, notorious, and continuous possession in the concept of an owner.(Republic vs Court of Appeals, GR No. 126316, June 25, 2004)

QUESTION No.2: On December 27, 1976, Francisco filed a petition for registration of the three parcels of land. He alleged therein that there were hardly any big trees in the subject property and that he and his predecessors-in-interest even planted bananas, cassava, coconut trees and camotes on the same. He further alleged that he had been in actual, open, notorious and continuous possession of the property in the concept of owner.

The application was opposed by the Director of Lands on the ground that the subject property was forest land and was only reclassified as alienable and disposable only on April 16, 1973.

a) Should the petition for registration be granted?b) Is the absence of big trees conclusive as regards to the classification of a

parcel of land as not belonging to forest land?

ANSWERS:a) NO. Under Section 6 of Commonwealth Act No.141, the classification and reclassification

of public lands into alienable or disposable, mineral or forest land is the prerogative of the Executive Department. The rule on the confirmation of imperfect title does not apply unless and until the land classified as forest land is released in an official proclamation to that effect so that it may form part of the disposable agricultural lands of the public domain. Francisco failed to adduce in evidence any certification from the Bureau of Lands or the Bureau of Forestry to the effect that the property is alienable or disposable. Furthermore, since the property was reclassified as alienable and disposable only on April 16, 1973 and Francisco filed his application only on December 27, 1976, he irrefragably failed to prove his possession of the property for the requisite thirty (30)-year period.

b) NO. A forested area classified as forest land of the public domain does not lose such classification simply because loggers or settlers may have stripped it of its forest cover. Parcels of land classified as forest land may actually be covered with grass or planted to crops by Kaingin cultivators or other farmers. “Forest Lands” do not have to be in the mountains or in out of the way places. Swampy areas covered by mangrove trees, nipa palms and other trees growing in brackish or sea water may also be classified as forest land. The classification is descriptive of its legal nature or status and does not have to be descriptive of what the land actually looks like. (Zarate vs Director of Lands, GR No. 131501, July 14, 2004)

QUESTION No.3: The spouses Zulueta obtained from GSIS various loans secured by real estate mortgages over parcels of land. The spouses Zulueta failed to pay their loans which prompted GSIS to foreclose the real estate mortgages. During the auction sale, some of the mortgaged properties were awarded to GSIS. However, some lots which were covered by the mortgaged titles were expressly excluded from the auction since those that were sold were sufficient to pay for all the mortgage debts. This notwithstanding, GSIS included the excluded lots when it executed on

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November 25, 1975 an Affidavit of Consolidation of Ownership on the basis of which, certificates of title over the same were issued in the name of GSIS.

Zulueta thereafter transferred his rights over the excluded lots to Eduardo in 1989 who consequently demanded from GSIS the return of the said excluded lots. Eduardo then filed on May 7, 1990 a complaint for reconveyance of real estate against the GSIS.

a) Can GSIS legally claim ownership over the excluded properties on the basis of the certificates of title over the same which were issued in its name?

b) Has the action for reconveyance prescribed?

ANSWERS:a) NO. Even if titles over the lots had been issued in the name of the GSIS, still it could not

legally claim ownership and absolute dominion over them because indefeasibility of title under the Torrens system does not attach to titles secured by fraud or misrepresentation. The fraud committed by GSIS in the form of concealment of the existence of said lots and failure to return the same to the real owners after their exclusion from the foreclosure sale made GSIS holders in bad faith. It is well settled that a holder in bad faith of a certificate of title is not entitled to the protection of the law for the law cannot be used as a shield for fraud.

b) NO. Article 1456 of the Civil Code provides: If the 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. An action for reconveyance based on implied or constructive trust prescribes in ten years from the alleged fraudulent registration or date of issuance of the certificate of title over the property.

The general rule that the discovery of fraud is deemed to have taken place upon the registration of real property because it is “considered a constructive notice to all persons” does not apply in this case. The case in point is Samonte vs Court of Appeals where the Supreme Court reckoned the prescriptive period for the filing of the action based on implied trust from the actual discovery of the fraud. Santiago came know of GSIS’ fraudulent acts only in 1989 and the complaint was filed in 1990. Following the Court’s pronouncement in Samonte, the institution of the action for reconveyance was thus well within the prescriptive period. (GSIS vs Santiago, GR No. 155206, October 28, 2003)

QUESTION No. 4: In August 1950, the Republic of the Philippines filed an application with the cadastral court claiming ownership over certain properties which covered Lot 4329. Guillermo filed an answer claiming therein a right over Lot 4329. Guillermo died during the pendency of the case.

Gregorio, who claimed to be the only son of Guillermo, substituted the latter, and to him, Lot 4329 was adjudicated by the court. The decision became final and executory. On July 8, 1985, OCT No. 0-6,151 was issued in the name of Gregorio.

Sometime thereafter, the brothers and sisters of Guillermo filed a complaint for recovery of possession with damages against Gregorio, alleging that Guillermo died single and without issue and that Gregorio obtained title to the property through fraud deceit and gross misrepresentation. They prayed that Gregorio’s title be cancelled and the property be reconveyed to them. After the trial, the court declared that Gregorio has not sufficiently proved that he is the son of Guillermo but ruled that he has the right of possession of the disputed property.

Is Gregorio entitled to the possession of the disputed property?

ANSWER: YES. Gregorio was able to obtain a title in his name over the questioned property after the cadastral proceedings instituted by the Republic. This Torrens title is now a conclusive evidence of his ownership of the subject land. After the expiration of the one-year period from the issuance of the decree of registration, the said certificate of title became incontrovertible. In fine, whether or not his title was obtained fraudulently is beyond the competence of the Supreme Court to determine. The issue should have been raised during the proceeding before the cadastral court. A Torrens title cannot be collaterally attacked, the issue on the validity of title, i.e. whether or not it was fraudulently issued can only be raised in an action expressly

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instituted for that purpose. The prayer for the cancellation of Gregorio’s title and the reconveyance of the same to brothers and sisters of Guillermo is legally impossible. To sustain the said action would be inconsistent with the rule that the act of registration is the operative act that conveys a parcel of land to its registered owner under the Torrens system.

What we are emphasizing is that, although Gregorio has not sufficiently proved his filiation to the late Guillermo, the fact that he has a legal title over the subject land entitles him to possession thereof, pending the final determination of the validity of the title issued to him in an appropriate proceeding.

CALLEJO NOTES in TAXATION LAW

I. The Sangguniang Bayan of Makati enacted Municipal, Ordinance No. 92-072 which provides, inter alia, for the schedule of real estate, business and franchise taxes in the Municipality of Makati. Thereafter, the Department of Justice came out with a resolution after an appeal from a taxpayer, declaring "null and void and without legal effect" the said ordinance for having been enacted in contravention of Section 187 of the Local Government Code of 1991. Makati thereby file a petition with the RTC of Makati. In the meantime, Makati continued to implement the ordinance. Jardine Davies Insurance Brokers, Inc., a duly-organized corporation, was assessed and billed by Makati an amount for taxes, fees and charges. Petitioner did not protest the assessment but in fact, paid the said amounts without any protest.

The RTC rendered judgment declaring the ordinance valid. Jardine Davies, relying on the resolution of the DOJ, filed a complaint with the RTC of Makati against Makati and its Acting Municipal Treasurer for a refund or tax credit. The defendants filed a motion to dismiss the complaint on the ground of prematurity.

Is Jardine Davies proscribed from filing its complaint with the RTC for a refund of the alleged payment without any protest of the taxes due and without any appeal with the Secretary of Justice as to legality or constitutionality of the ordinance?

YES. As a general precept, a taxpayer may file a complaint assailing the validity of the ordinance and praying for a refund of its perceived overpayments without first filing a protest to the payment of taxes due under the ordinance.

As held in the case of Reyes vs. Court of Appeals (320 SCRA 486. 1999), “Clearly, the law requires that the dissatisfied taxpayer who questions the

validity or legality of a tax ordinance must file his appeal to the Secretary of Justice, within 30 days from effectivity thereof. In case the Secretary decides the appeal, a period also of 30 days is allowed for an aggrieved party to go to court. But if the Secretary does not act thereon, after the lapse of 60 days, a party could already proceed to seek relief in court. These three separate periods are clearly given for compliance as a prerequisite before seeking redress in a competent court. Such statutory periods are set to prevent delays as well as enhance the orderly and speedy discharge of judicial functions. For this reason the courts construe these provisions of statutes as mandatory.”

In the instant case, the failure of Jardine Davies to appeal to the Secretary of Justice within 30 days as required by Sec. 187 of R.A. 7160 is fatal to their cause. Moreover, Jardine Davies even paid without any protest the amounts of taxes assessed by respondents Makati and Acting Treasurer as provided for in the ordinance. (Jardine Davies Insurance Brokers, Inc. vs. Aliposa. G.R. No. 118900; February 27, 2003)

II. Lung Center of the Philippines is a non-profit and non-stock corporation which was organized for the welfare and benefit of the Filipino people principally to help combat the high incidence of lung and pulmonary diseases in the Philippines. Its medical services are to be

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rendered to the public in general. It accepts paying and non-paying patients, including out-patients. It also receives annual subsidies from the government.

It owns of a parcel of land with a hospital in the middle, located at Quezon City. A big space at the ground floor is being leased to private parties, for canteen and small store spaces, and to medical or professional practitioners who use the same as their private clinics. A big portion of the land is being leased for commercial purposes to a private enterprise. Both the land and the hospital building were assessed for real property taxes. Thereby the entity filed a Claim for Exemption from real property taxes with the City Assessor, predicated on its claim that it is a charitable institution.

1. Is the Lung Center of the Philippines a charitable institution?2. Are its real properties exempt from real property taxes?

1. YES. As a general principle, a charitable institution does not lose its character as such and its exemption from taxes simply because it derives income from paying patients, whether out-patient, or confined in the hospital, or receives subsidies from the government, so long as the money received is devoted or used altogether to the charitable object which it is intended to achieve; and no money inures to the private benefit of the persons managing or operating the institution.

The fundamental ground upon which all exemptions in favor of charitable institutions are based is the benefit conferred upon the public by them, and a consequent relief, to some extent, of the burden upon the state to care for and advance the interests of its citizens.

2. NO. Even though the petitioner is a charitable institution, those portions of its real property that are leased to private entities are not exempt from real property taxes as these are not actually, directly and exclusively used for charitable purposes.

The settled rule in this jurisdiction is that laws granting exemption from tax are construed strictissimi juris against the taxpayer and liberally in favor of the taxing power. Taxation is the rule and exemption is the exception.

The tax exemption under Section 28(3), Article VI of the 1987 Philippine Constitution covers property taxes only. What is exempted is not the institution itself; those exempted from real estate taxes are lands, buildings and improvements actually, directly and exclusively used for religious, charitable or educational purposes.

Under the 1973 and 1987 Constitutions and Rep. Act No. 7160 in order to be entitled to the exemption, the petitioner is burdened to prove, by clear and unequivocal proof, that (a) it is a charitable institution; and (b) its real properties are ACTUALLY, DIRECTLY and EXCLUSIVELY used for charitable purposes. If real property is used for one or more commercial purposes, it is not exclusively used for the exempted purposes but is subject to taxation. The words "dominant use" or "principal use" cannot be substituted for the words "used exclusively" without doing violence to the Constitutions and the law. (Lung Center of the Philippines vs. Quezon City and Rosas. G.R. No. 144104. June 29, 2004.)

III. MERALCO filed its tax declarations covering its Sucat power plants, including the buildings thereon as well as the machineries and equipment. From 1995 to 1998, MERALCO paid the real property taxes on the said properties on the basis of their assessed value as stated in its tax declarations. Thereafter, MERALCO sold all the power-generating plants including the landsite to the NAPOCOR.

In 2005, the Municipal Assessor of Muntinlupa discovered that MERALCO, for the years 1996-1998, misdeclared and/or failed to declare for taxation purposes a number of real properties consisting of several equipment and machineries found in the said power plants. Thereafter, the Municipal Treasurer of Muntinlupa issued three notices to MERALCO, requesting it to pay the full amount of the claimed deficiency with a warning that its properties could be sold at public auction unless the tax due was paid. Still, MERALCO did not pay, nor take other steps.

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MERALCO filed before the RTC of Makati a Petition for Prohibition enjoining the Municipal Treasurer of Muntinlupa from enforcing the warrants of garnishment. The Municipal Treasurer filed a Motion to Dismiss on ground of lack of jurisdiction.

1. Is MERALCO liable for the deficiency in real property taxes for the years 1996-1998?2. Are the letters sent to the MERALCO by the municipal treasurer mere collection letters or

notices of assessment?3. Will the Motion to Dismiss prosper?

1. YES. The fact that NAPOCOR is the present owner of the Sucat power plant machineries and equipment does not constitute a legal barrier to the collection of delinquent taxes from the previous owner, MERALCO, who has defaulted in its payment. In Testate Estate of Concordia T. Lim vs. City of Manila, the Court held that the unpaid tax attaches to the property and is chargeable against the person who had actual or beneficial use and possession of it regardless of whether or not he is the owner. To impose the real property tax on the subsequent owner that was neither the owner nor the beneficial user of the property during the designated periods would not only be contrary to law but also unjust.

2. NO. The letters cannot qualify as notices of tax assessment. A notice of assessment as provided for in the Real Property Tax Code should effectively inform the taxpayer of the value of a specific property, or proportion thereof subject to tax, including the discovery, listing, classification, and appraisal of properties. The notices do not contain the essential information that a notice of assessment must specify, namely, the value of a specific property or proportion thereof which is being taxed, nor does it state the discovery, listing, classification and appraisal of the property subject to taxation. In fact, the tenor of the notices bespeaks an intention to collect unpaid taxes, thus the reminder to the taxpayer that the failure to pay the taxes shall authorize the government to auction off the properties subject to taxes.

3. YES. The Motion to Dismiss will prosper since the trial court is without authority to address the alleged irregularity in the issuance of the notices of assessment without prior tax payment, under protest, by petitioner. Section 64 of the RPTC, prohibits courts from declaring any tax invalid by reason of irregularities or informalities in the proceedings of the officers charged with the assessment or collection of taxes except upon the condition that the taxpayer pays the just amount of the tax, as determined by the court in the pending proceeding. As MERALCO failed to make a protest payment of the tax assessed, any argument regarding the procedure observed in the preparation of the notice of assessment and collection is futile as the trial court in such a scenario cannot assume jurisdiction over the matter. (MERALCO vs. Barlis. G.R. No. 114231. June 29, 2004)

IV. Raw materials consigned to RRC Manufacting arrived in the warehouse of CLT Freight Inc. The Bureau of Customs treated the raw materials as subject to ordinary import taxes. The consignee failed to file the requisite import entry of cargo and to claim the cargo immediately. Thus, the District Collector of Customs initiated an abandonment proceedings over said cargo and issued a notice to the RRC Manufacturing giving them fifteen (15) days from notice thereof to file entry of the cargoes; otherwise, the cargoes would be deemed abandoned and sold at public auction. The declaration of abandonment became final and executory.

RRC Manufacturing filed a complaint for damages before the RTC against CLT Freight Inc. The latter contends that the RTC has no jurisdiction to review and nullify the declaration by the Collector of Customs. Is the contention of CLT Freight Inc. tenable?

YES. The trial court has no jurisdiction. The RTC is devoid of any competence to pass upon the validity or regularity of seizure and forfeiture proceedings conducted by the Bureau of Customs, and to enjoin or otherwise interfere with the said proceedings even if the seizure was illegal. Such act does not deprive the Bureau of Customs of jurisdiction thereon. The Collector of Customs sitting in seizure and forfeiture proceedings has exclusive jurisdiction to hear and determine all questions touching on the seizure and forfeiture of dutiable goods. The Regional Trial Courts

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are precluded from assuming cognizance over such matters even through petitions of certiorari, prohibition or mandamus. (R.V. Marzan Freight, Inc. vs Court of Appeals. G.R. No. 128064. March 4, 2004)

CALLEJO NOTES in COMMERCIAL LAW

NEGOTIABLE INSTRUMENTS LAW

Q: A Manager’s Check in the amount of P1 Million was purchased by Bonito Agustin from ABC Bank payable to Franco Tan. Subsequently, the check was deposited with SBC bank to the account of Alberto Rodriguez. Both banks cleared and paid the check to Alberto Rodriguez. When Bonito learned of this fact, he demanded reimbursement from both ABC and SBC bank respectively on the ground of payment to an improper party and despite the absence of an indorsement by the payee as a result of which the payee did not receive the proceeds of the check.

Through the efforts of ABC bank, it was able to establish that Franco Tan and Alberto Rodriguez are the same person, Franco Tan Guan Leng being the Chinese name of the payee. Both names are being used by the supposed payee in his transactions with ABC bank. Hence, ABC and SBC bank refused to heed the demand for reimbursement by Bonito.

Claiming that the banks violated its obligations under the Negotiable Instruments Law and that their acts contravene standard banking practice, Bonito filed a complaint for restitution of the amount of the check against ABC and SBC bank. Will the suit prosper?A: No. There was evidence to prove that Franco Tan and Alberto Rodriguez are the same person so the intended payee did actually receive the proceeds of the check. Hence, the banks did not violate their obligations under the NIL nor did their clearance and payment of the value of the check contravene any standard banking practice. In addition, the Negotiable Instruments Law was enacted for the purpose of facilitating, not hindering or hampering transactions in commercial paper. Thus, the said statute should not be tampered with haphazardly or lightly. Nor should it be brushed aside in order to meet the necessities in a single case. (MICHAEL A. OSMEÑA VS. CITIBANK, N.A., ASSOCIATED BANK, ET AL. G.R. NO. 141278. MARCH 23, 2004)

CORPORATION LAW

Q: Hero Tan, President of Tilapia Foundation, Inc., obtained four loans from Star Circle Banking Corporation covered by four promissory notes. He submitted a notarized Secretary’s Certificate from the corporation, attesting that he has been authorized, inter alia, to sign for and in behalf of the Tilapia Foundation any and all checks, drafts or other orders with respect to the bank; to transact business with the Bank, negotiate loans, agreements, obligations, promissory notes and other commercial documents; and to initially obtain a loan for P100, 000.00 from any bank.

When the entire obligation became due, it was not paid despite demands by the bank. The Bank was constrained to file a collection case against the Foundation. The Foundation however maintained that it never authorized petitioner Tan to co-sign in his capacity as its President any promissory note and that the Bank fully knew that the loans contracted were made in Tan’s personal capacity and for his own use and that the Foundation never benefited, directly or indirectly, there from.

Is Tilapia Foundation, Inc. liable?

A: Yes. Tilapia Foundation, Inc. is liable to Star Circle Banking Corporation. It is a familiar doctrine that if a corporation knowingly permits one of its officers, or any other agent, to act within the scope of an apparent authority, it holds him out to the public as possessing the power to do those acts; and thus, the corporation will, as against anyone who has in good faith dealt with it through such agent, be estopped from denying the agent’s authority. In the case at bar, Per its Secretary’s Certificate, the Foundation had given Tan ostensible and apparent authority to inter alia deal with the Bank. Accordingly, the petitioner Foundation is estopped from

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questioning Tan’s authority to obtain the subject loans from the Bank. (LAPU LAPU FOUNDATION INC. VS. ELIAS TAN, G.R. NO. 126006. JANUARY 29, 2004)

TRANSPORTATION LAWS

Q: Nikita Supladita, a well-known Bruneiyuki, carried a confirmed ticket from XYZ airlines for the two-legged trip from Frankfurt to Manila. From Manila, she will then proceed to Brunei to perform before the Sultan. It was necessary for her to drop-by Manila so that she can fetch her back-up dancers. However, the flight from Frankfurt arrived late causing Supladita to miss her flight to Manila. Supladita sued the airline company. The airline company invoked the defense of fortuitous event. Decide with reasons.

A: Fernandez may sue the airline company. When an airline issues a ticket to a passenger, confirmed for a particular flight on a certain date, a contract of carriage arises. The passenger then has every right to expect that he be transported on that flight and on that date. If he does not, then the carrier opens itself to a suit for a breach of contract of carriage. The contract of air carriage is a peculiar one. Imbued with public interest, the law requires common carriers to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons with due regard for all the circumstances. In an action for breach of contract of carriage, the aggrieved party does not have to prove that the common carrier was at fault or was negligent. All that is necessary to prove is the existence of the contract and the fact of its non-performance by the carrier.

In the case at bar, it is undisputed that Supladita carried a confirmed ticket for the two-legged trip from Frankfurt to Manila. In her contract of carriage with the airline, Supladita certainly expected that she would fly to Manila on the designated Flight. Since the airline did not transport her as covenanted by it on said terms, the airline clearly breached its contract of carriage. Supladita had every right to sue the airline for this breach.

The defense of a fortuitous event is unavailing. Tagged as a premiere airline as it claims to be and with the complexities of air travel, it was certainly well equipped to be able to foresee and deal with such situation. (SINGAPORE AIRLINES VS. FERNANDEZ, G.R. NO. 142305. DECEMBER 10, 2003)

BANKING LAWS

Q: Jose Reyes Sr, married to Maria Reyes was indebted to UCPB Bank. Reyes defaulted prompting the bank to file an action for sum of money. The bank obtained a favorable judgement. Upon motion, the court issued a writ of execution and directed the sheriff to levy all real and personal property of Jose Reyes Sr. To help the Sheriff implement the writ, the head of the litigation department of UCPB bank requested an appraiser to ascertain if defendants have any leviable property. In the course of his investigation, the appraiser found a residential lot, under the name of Jose Reyes, President and Chairman of the Board of Directors of the Trust Corporation, married to Gloria Reyes. A notice of levy was annotated on the Certificate of Title of the lot.

Trust Corporation applied for loan with B bank with the same lot as the collateral. The loan application was denied because of the annotation of levy on the certificate of title. Jose Reyes was shocked upon realizing his property was attached when he was not a party to the case. This prompted Jose Reyes to file an action for damages against UCPB Bank. Will the action prosper?

A: Yes, the action will prosper. In approving the loan of an applicant, the bank concerns itself with proper information regarding its debtors. UCPB, as a bank and a financial institution engaged in the grant of loans, is expected to ascertain and verify the identities of the persons it transacts business with. UCPB has access to more facilities in confirming the identity of their judgment debtors. (UNITED COCONUT PLANTERS BANK VS. TEOFILO C. RAMOS G.R. NO. 147800. NOVEMBER 11, 2003)

Q: Does the diligence required of banks extend to the GSIS or to any entity regularly engaged in the business of lending money with real estate as collateral?

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A: Yes. GSIS is not an ordinary mortgagee. It is a government financial institution and, like banks, is expected to exercise greater care and prudence in its dealings, including those involving registered lands. Due diligence required of banks extend even to persons, or institutions like the GSIS, regularly engaged in the business of lending money secured by real estate mortgages. (GSIS VS. SANTIAGO, G.R. NO. 155206. OCTOBER 28, 2003)

CALLEJO NOTES in CRIMINAL LAW

Question No. 1A armed with a revolver, suddenly approached C who was seated at the

driver’s seat of an FX taxi and shot him on the abdomen. After which A moved back while B shot the victim again this time twice. A and B then fled together from the scene. A and B were convicted of murder qualified by treachery for conspiring to kill B and sentenced to suffer the penalty of reclusion perpetua.

(a) Was there conspiracy between A and B?(b) Was the there treachery in the mode of attack?(c) Was the penalty properly imposed?

ANSWERS:(a) YES, A and B conspired to kill C. Conspiracy may be implied if two or more persons

aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. It may be deduced from the acts of the malefactors before, during and after the commission of the crime which are indicative of a joint purpose, concerted acts and concurrence of sentiments. Once conspiracy is established, the act of one is deemed the act of all. In this case, the collective acts of A and B before, during and after the shooting, evince no other conclusion than that they conspired to kill C.

(b) YES, although the attack was frontal and in broad daylight, it was sudden and unexpected, giving C no opportunity to repel the same or offer any defense on his person.

(c) YES, under Article 248 of the Revised Penal Code, the imposable penalty for murder is reclusion perpetua to death. There being no modifying circumstances attendant to the crime, the appellants should be sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal Code, which provides that when the penalty consists of two indivisible penalties, the lesser penalty shall be imposed in the absence of any modifying circumstance. (PEOPLE vs. ALLAWAN, G.R. No. 149887. February 13, 2004)

Question No. 2Lex was found guilty by the RTC of four counts of rape and imposed upon him

the supreme penalty of triple death sentence and life imprisonment.Was the imposition of the penalty of life imprisonment proper?

ANSWER:NO, the Revised Penal Code does not impose the penalty of life imprisonment in any

of the crimes punishable therein. The proper penalty imposable is reclusion perpetua, not life imprisonment. It bears reiterating that reclusion perpetua and life imprisonment are not synonymous penalties. They are distinct in nature, in duration and in accessory penalties.. Reclusion perpetua entails imprisonment for 20 years and 1 day to 40 years. It also carries with it accessory penalties, namely: perpetual absolute disqualification and civil interdiction for life or for the duration of the sentence. It is not the same as "life imprisonment" which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration. (PEOPLE vs. MEDINA, SR. G.R. Nos. 127756-58. June 18, 2003.)

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Question No. 3Armed with shotguns, R, C, and J barged into the house of Mody while the

latter was having dinner with his family. R poked his gun at Mody while C and J simultaneously grabbed the hog-tied Mody. A piece of cloth was placed in the mouth of Mody and he was herded into a van. Mody was taken to a secluded area in the next town and was shot to death.

Were the R, C, and J guilty of murder or kidnapping?

ANSWER:They are guilty of murder, not kidnapping. The act of the malefactors of abducting Mody

was merely incidental to their primary purpose of killing him. Where the detention and/or forcible taking away of the victim by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention. What is primordial then is the specific intent of the malefactors as disclosed in the information or criminal complaint that is determinative of what crime the accused is charged with — that of murder or kidnapping. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to deprive the victim of his/her liberty. In this case, it is evident that the specific intent of R, C, and J in barging into the house of Mody was to kill him and that he was seized precisely to kill him with the attendant modifying circumstances. (PEOPLE vs. DELIM, G.R. No. 142773, January 28, 2003)

Question No. 4One evening, A, B, C and D, each armed with handguns, barged into the house

of George and his 10-year old son Christopher. The four intruders dragged George and Christopher out of the house into their get away car and drove off. After about fifteen minutes, A and B alighted from the car bringing Christopher with them. In the meantime, the police received a radio report that George and his son Christopher had been kidnapped. A checkpoint was put up and it was there that the police intercepted the car carrying George, and was thus able to rescue the latter. After one week, George received a handwritten letter, demanding P3M for Christopher’s release. No ransom money, however, was ever paid, for the police was able to rescue Christopher.

What crime or crimes were committed by A, B, C, and D?

ANSWER:As to the abduction of Christopher, A, B, C, and D are liable for kidnapping and serious

illegal detention under Art. 267 of the Revised Penal Code (RPC), the elements of which are as follows:

1. That the offender is a private individual;2. That he detains another or in any manner deprives the latter of his liberty;3. That the act of detention must be illegal; and4. That in the commission of the offense, any of the following circumstances is present:

a. That the detention lasts for more than 3 days;b. That it is committed simulating public authority;c. That any serious physical injuries are inflicted upon the person detained or

threats to kill him are made; ord. That the person detained is a minor, female, or a public officer.

In the problem at hand, the detention of Christopher lasted for more than 3 days. Furthermore, Christopher is a minor. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. Although kidnapping for a certain purpose is a qualifying circumstance, the law does not require that the purpose be accomplished.

As to the abduction of George, they are liable for slight illegal detention, which is committed if the kidnapping is committed in the absence of any of the circumstances qualifying the crime to serious illegal detention. In the instant case, George was kidnapped and detained

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illegally by the malefactors only for less than a day. Also George was not detained for the purpose of extorting ransom for his release. Neither was he inflicted with any serious physical injuries, nor did the malefactors simulate public authority, or threatened to kill George.

Although A, B, C, and D kidnapped George and Christopher on the same occasion and from the same situs, they are guilty of two separate crimes: kidnapping and serious illegal detention and slight illegal detention. The malefactors were animated by two sets of separate criminal intents and criminal resolutions in kidnapping and illegally detaining the two victims. The criminal intent in kidnapping Christopher was separate from and independent of the criminal intent and resolution in kidnapping and detaining George for less than three days. In the mind and conscience of the malefactors, they had committed two separate felonies; hence, should be meted two separate penalties for the said crimes. (PEOPLE vs. PAGALASAN, G.R. Nos. 131926 & 138991, June 18, 2003)

Question No. 5On September 28, 1996, Juan and Victor boarded at around 3:00 a.m. a Five

Star Bus driven by Rodolfo Cacatian, bound for Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later, when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Expressway, the accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the announcement of a hold-up, Juan fired his gun upwards. Victor, meanwhile, took the gun of a man seated at the back. Both then went on to take the money and valuables of the passengers, including the bus conductor's collections. Thereafter, the duo approached the man at the back telling him in the vernacular "Pasensiya ka na pare, papatayin ka namin. Baril mo rin ang papatay sa iyo." They pointed their guns at him and fired several shots oblivious of the plea for mercy of their victim afterwhich the latter collapsed on the floor. The two (2) then alighted from the bus and fled. During the investigation conducted by the police, it was found out that the slain passenger was a policeman.

Juan and Victor were charged with and found guilty of Robbery with Homicide as penalized under Art. 294 of the RPC.

(a) Was treachery attendant in the commission of the crime?(b) Is treachery a generic aggravating circumstance in robbery with homicide?

ANSWER:(a) YES, treachery was attendant in the commission of the crime. There is treachery

when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him. The essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk to himself. Treachery may also be appreciated even if the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the infliction of the coup de grace. In the case at bar, the victim was disarmed and then shot even as he pleaded for dear life. When the victim was shot, he was defenseless. He was shot at close range, thus insuring his death.

(b) YES, treachery is applied to the constituent crime of "homicide" and not to the constituent crime of "robbery" of the special complex crime of robbery with homicide. Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of Spain has consistently applied treachery to robbery with homicide, classified as a crime against property. Citing decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the Spanish Penal Code says that despite the strict and express reference of the penal code to treachery being applicable to persons, treachery also applies to other crimes such as robbery with homicide. Thus, treachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property. (PEOPLE vs. ESCOTE, et al., G.R. No. 140756, April 4, 2003)

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Question No. 6On the night in question, Manuel and Jose went to the house of Ronito and

Maria Fe to borrow money. Maria Fe refused at first to lend the money but she was prevailed upon by Ronito. Manuel, Jose and Ronito then had a drinking spree in the sala. After midnight, Maria Fe spread a mat for Manuel and Jose to sleep on, while she and Ronito went to their room to sleep.

At around 2:00 a.m., Manuel, armed with a .38 caliber gun, and Jose, armed with a knife, entered the bedroom of Ronito and Maria Fe who were sleeping. Manuel poked the said gun on Maria Fe. She woke up and attempted to stand up but Manuel ordered her to lie down. Manuel ordered Jose to tie the hands of Maria Fe behind her back and put a tape on her mouth. Jose complied. They then divested Maria Fe of her jewelries and later on her money.

Manuel took a blanket and ordered Jose to kill Ronito with it. Jose went to the kitchen, got a knife, covered Ronito with the blanket and sat on top of him then stabbed the latter several times. Manuel also stabbed Ronito on different parts of his body. Manuel hit Ronito with the butt of his gun. Jose slit the throat of Ronito and took the latter's wristwatch and ring.

Manuel and Jose stayed in the house until 4:00 a.m. Before they left, Manuel and Jose told Maria Fe that they were acting on orders of certain people. They also warned her not to report the incident to the police authorities, otherwise they will kill her. Maria Fe managed to untie herself and reported the incident to police authorities.

May Manuel and Jose be convicted of the special complex crime of robbery with homicide or separate crimes of murder and robbery?

ANSWER:Manuel and Jose are liable of the special complex crime of robbery with homicide. The

elements of the crime are as follows: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is done with animo lucrandi; and (4) by reason of the robbery or on the occasion thereof, homicide is committed.

A conviction for robbery with homicide requires certitude that the robbery is the main purpose and objective of the malefactor and the killing is merely incidental to the robbery. The animo lucrandi must preceed the killing. If the original design does not comprehend robbery, but robbery follows the homicide either as an afterthought or merely as an incident of the homicide, then the malefactor is guilty of two separate crimes, that of homicide or murder and robbery, and not of the special complex crime of robbery with homicide, a single and indivisible offense. It is the intent of the actor to rob which supplies the connection between the homicide and the robbery necessary to constitute the complex crime of robbery with homicide.

However, the law does not require that the sole motive of the malefactor is robbery and commits homicide by reason or on the occasion thereof. In People vs. Tidula, et al., this Court ruled that even if the malefactor intends to kill and rob another, it does not preclude his conviction for the special complex crime of robbery with homicide. A conviction for robbery with homicide is proper even if the homicide is committed before, during or after the commission of the robbery. The homicide may be committed by the actor at the spur of the moment or by mere accident. Even if two or more persons are killed and a woman is raped and physical injuries are inflicted on another, on the occasion or by reason of robbery, there is only one special complex crime of robbery with homicide. What is primordial is the result obtained without reference or distinction as to the circumstances, cause, modes or persons intervening in the commission of the crime.

Furthermore, robbery with homicide is committed even if the victim of the robbery is different from the victim of homicide, as long as the homicide is committed by reason or on the occasion of the robbery. It is not even necessary that the victim of the robbery is the very person the malefactor intended to rob. For the conviction of the special complex crime, the robbery itself must be proved as conclusively as any other element of the crime. In this case, the prosecution proved through the testimony of Maria Fe that the appellants threatened to kill her and her family and robbed her of her money and jewelry.

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It may be true that the original intent of appellant Manuel was to borrow money from Ronito and Maria Fe but later on conspired with Jose and robbed the couple of their money and pieces of jewelry, and on the occasion thereof, they killed Ronito. Nonetheless, the appellants are guilty of robbery with homicide. In People v. Tidong, this Court held that the appellant was guilty of robbery with homicide even if his original intention was to demand for separation pay from his employer and ended up killing his employer in the process. (PEOPLE vs. DANIELA, et al., G.R. No. 139230, April 24, 2003)

Question No. 7Orlando was the owner of a parcel of land located in Talisay, Cebu. On

December 14, 1987 Orlando sold the above mentioned property for P60,000.00 to Abraham pursuant to a contract to sell entered into between them. It was stipulated in the contract that Abraham will tender an initial down payment of P20,000.00, while the balance of the total amount of the property will be paid on a monthly basis; that failure on the part of the buyer to pay any monthly installments within 60 days from its due date will entitle the seller to sell the property to third persons; and that the deed of sale and the title to the property will be transferred to the vendee only after full payment of the purchase price has been tendered.

Abraham faithfully paid the monthly installments. He also obtained Orlando’s consent in having the property fenced. However, on January 13, 1989, Orlando sold the same parcel of land to William for P200,000.00 as evidenced by the Deed of Absolute Sale executed by the former in favor of the latter. Consequently, while Abraham was in the process of fencing the lot, he was shocked to know that the same had been sold by Orlando to William. This event prompted William to file a case of estafa under Art. 316 (2) of the RPC Orlando for disposing previously encumbered property.

Is Orlando liable for the crime of estafa as defined in Art. 316 (2) of the Revised Penal Code?

ANSWER:NO, the gravamen of the crime is the disposition of legally encumbered real property by

the offender under the express representation that there is no encumbrance thereon. Hence, for one to be criminally liable for estafa under the law, the accused must make an express representation in the deed of conveyance that the property sold or disposed of is free from any encumbrance.

The prosecution is burdened to allege in the information and prove the confluence of the following essential elements of the crime for the accused to be criminally liable for estafa under Art 316, paragraph 2 of the RPC: (1) that the thing disposed of be real property; (2) that the offender knew that the real property was encumbered, whether the encumbrance is recorded or not; (3) that there must be express representation by the offender that the real property is free from encumbrance; and (4) that the act of disposing of the real property be made to the damage of another. However, Orlando did not expressly represented in the sale of the subject property to William that the said property was free from any encumbrance. Irrefragably, then, petitioner may not be charged with estafa under Art. 316, par. 2 of the RPC. (NAYA vs. SPS. ABRAHAM AND GUILLERMA ABING and PEOPLE OF THE PHILIPPINES, GR. No. 146770. February 27, 2003)

Question No. 8Joel, Agapito, and Isidro were having a drinking spree near the Agapito’s

rented apartment. By the time they had consumed about two-and-a-half round bottles of gin, Joel started singing on top of his lungs the song "Si Aida, Si Lorna, o Si Fe." He was immediately cautioned by Agapito to lower his voice as the singing might disturb the neighborhood. Peeved, Joel confronted Agapito. An altercation ensued. Joel warned Agapito "Babalikan kita. Makita mo," (I'll get back at you. You'll see.) then left in a huff. The group decided to end their drinking spree. By then, it was past 9:00 p.m. Isidro advised Agapito to get inside their house. However, Agapito was still upset about his argument with Joel and lingered outside his house.

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Meanwhile, Isidro went inside their rented apartment at the second floor of the house, while his wife prepared his dinner. At around 10:00 p.m. while he was taking his supper, Isidro heard somebody shouting "Huwag, Joel Saklolo, may tama ako!" Isidro then peeped outside and saw Joel pulling out from Agapito's chest a bladed weapon. Shocked, Isidro and his wife went down to help Agapito. By then, Joel had already fled from the scene. The couple woke up some of their neighbors to help them carry Agapito and bring him to the hospital. Some neighbors arrived and brought Agapito to the hospital. On the way, Agapito expired.

Joel was charged with and convicted of murder qualified by treachery for the fatal stabbing of Agapito, with Isidro as prosecution witness. On appeal, he asserts the trial court’s appreciation of the circumstance of treachery on the ground that the prosecution witness Isidro did not see the initial stage of the stabbing and the particulars of the attack on the victim, treachery cannot thus be appreciated.

May treachery be appreciated in the case at bar?

ANSWER:NO, because Isidro failed to see how the attack started. When he looked out through the

window, he saw Joel pulling out his knife from the chest of the victim. Isidro did not see the initial stage of the stabbing and the particulars of the attack on the victim. Treachery cannot thus be appreciated. The mere fact that Agapito was unarmed when he was stabbed is not sufficient to prove treachery. The settled rule is that treachery cannot be presumed. It must be proved by clear and convincing evidence, as the crime itself. It behooves the prosecution to prove that the appellant deliberately and consciously adopted such means, method or manner of attack as would deprive the victim of an opportunity for self-defense or retaliation. Hence, the appellant is guilty only of homicide and not murder. (PEOPLE OF THE PHILIPPINES vs.JOEL PEREZ, G.R. No. 140772, December 10, 2003)

Question No. 9At about 7 o’clock in the morning, Miguel went to his farm to clear his land

preparatory to plowing and planting. While he was cutting weeds in the farm, Roberto and his group, namely: Hilario, Felix, Pepito, Leonardo, Domingo and Berto arrived at the farm. From a distance of about 10 meters, Miguel noticed that Roberto and his group were all armed with either a long bolo or slingshot or buckshot (shotgun). As Roberto approached Miguel, he drew his shotgun, aimed it at Miguel and fired hitting the latter on the chest. Hilario also fired his shotgun which was directed at Miguel. Immediately thereafter, Roberto and his group ran away. Miguel went directly to the police station to report the incident.

Then Miguel was taken to the hospital for treatment of his gunshot wounds on his chest and left side of the body.

Roberto was then tried for frustrated homicide. He contends that he had no intent to kill Miguel, thus, he is guilty only of slight or less serious physical injuries.

Is Roberto correct?

ANSWER:NO, Roberto acted with intent to kill in firing the gun at Miguel. Usually, the intent to kill

is shown by the kind of weapon used by the offender and the parts of the victim’s body at which the weapon was aimed, as shown by the wounds inflicted. Corollarily, conviction for a frustrated felony requires that the offender must have performed all the acts of execution which would produce the felony as a result but nevertheless did not produce it due to a cause independent of the offender’s will.

Here, it is undisputed that appellant fired his gun point-blank at Migeul, hitting the latter at his breast. The nature of the weapon used and the location of the wounds speak for themselves of Roberto’s intent to finish off Miguel Beran who, by now, must have been dead if no timely medical attendance was given him. (GOROSPE vs. PEOPLE OF THE PHILIPPINES, G.R. No. 147974, January 29, 2004)

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Question No. 10Norma was charged with violation of Batas Pambansa Blg. 22 before the

Municipal Trial Court. After trial she was convicted and sentenced to suffer imprisonment of one year. The petitioner remained at large and no appeal was filed from any of the said decisions. In the meantime, the Supreme Court issued Supreme Court Administrative Circular No. 12-2000 enjoining all courts and judges concerned to take notice of the ruling and policy of the Court enunciated in Vaca v. Court of Appeals and Lim v. People with regard to the imposition of the penalty for violations of B.P. Blg. 22.

After five years, the petitioner was finally arrested while she was applying for an NBI clearance. She was forthwith detained. She then filed an urgent motion with the Municipal Trial Court asking the court to apply SC Admin. Circular No. 12-2000 and order her release from detention. She posits that SC Admin. Circular No. 12-2000 deleted the penalty of imprisonment for violation of B.P. Blg. 22 and allows only the imposition of a fine.

Is Norma’s contention correct?

ANSWER:NO, SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-2000 merely lays down a

rule of preference in the application of the penalties for violation of B.P. Blg. 22. It does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law. The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law. Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. (DE JOYA vs. THE JAIL WARDEN OF BATANGAS CITY AND HON. RUBEN A. GALVEZ, G.R. Nos. 159418-19, December 10, 2003.)

Question No. 11Adam, a dealer in shabu was contacted by a poseur buyer for the purchase of

shabu. They met at the parking lot of a shopping mall. When Adam showed the poseur-buyer a transparent plastic tea bag which contained white crystalline substances, the said poseur-buyer in turn handed over an envelope containing the marked P1,000.00 bills and the boodle money to Adam. The poseur buyer then immediately identified himself as a police officer and arrested Adam.

When tried for violation of the Dangerous Drugs Act of 2002, Adam contends that he cannot be convicted of the consummated crime of selling shabu for he was arrested before he could hand over the plastic tea bag to the poseur-buyer and that he was not aware that the envelope handed to him contained the marked money nor was there meeting of the minds between him and the poseur-buyer to transfer ownership in exchange for the price. He insists that the prosecution was not able to prove the that a sale of 200 grams of shabu took place between him and the poseur-buyer for Republic Act No. 9165 defines the sale of illicit drugs as "the act of giving a dangerous drug, whether for money or any material consideration."

May Adam be convicted of the consummated crime of selling shabu when he was arrested even before he could hand over the plastic tea bag containing shabu?

ANSWER:

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NO, because Adam merely showed the bag containing the shabu and held on to it before it was confiscated. There is no evidence that the poseur-buyer talked about and agreed with Adam on the purchase price of the shabu. There is no evidence that Adam handed over the shabu to the poseur buyer. The elements necessary for the prosecution of illegal sale of drugs are the identity of the buyer and the seller, the object, and consideration; and the delivery of the thing sold and the payment therefor. Neither was there evidence to prove that Adam was aware that the envelope contained money.

However, Adam is guilty of the crime of attempted sale of shabu. Adam intended to sell shabu and commenced by overt acts the commission of the intended crime by showing the substance to the poseur-buyer. (PEOPLE vs. ADAM, G.R. No. 143842, October 13, 2003)

Question No. 12At about 9:00 a.m., Marilyn and Ailyn were asked by their parents to buy

tinapa (dried fish) from a store about half a kilometer away from their residence. They used a foot path to get to the store. After buying the dried fish, they walked back home. Momentarily, they saw the fifteen-year-old Dario emerge from a catmon tree. He struck Ailyn twice with a piece of wood on her back and boxed her on the left side of her face. She felt excruciating pain on her back and face, and all over her body. She fell unconscious. Dario then struck Marilyn twice on the back with the piece of wood. He then carried Ailyn to a grassy area and left her there. When Ailyn regained her bearings, she looked for Marilyn but Dario and her sister were nowhere to be found.

Upon investigation made by the policemen, Marilyn's dead body was found in a grassy area near bushes and trees along a river. She was lying face down; her legs spread apart and was completely naked. There was blood on her nose, her mouth, and her vagina. Her hair was disheveled. The policemen arrested Dario and had him detained in jail. After trial, Dario was convicted of rape with homicide and attempted muder and sentenced to suffer the penalty of imprisonment of reclusion perpetua and imprisonment of TWO (2) MONTHS and ONE (1) DAY to FOUR (4) MONTHS of arresto mayor in its medium period, respectively.

Were the penalties properly imposed?

ANSWER:NO. Dario was over 9 years but under 15 years old when he committed the crime and

clearly acted with discernment when he committed the same. Article 6 of the Revised Penal Code provides that the imposable penalty should be reduced by two degrees. Under the RPC, rape with homicide is punishable by death. Reducing the penalty by two degrees, the imposable penalty is reclusion temporal, from which the maximum of the indeterminate penalty should be taken. To determine the minimum of the penalty, it should be reduced by one degree, which is prision mayor. Applying the indeterminate sentence law and taking into account how the ghastly crime was committed, Dario should be sentenced to suffer an indeterminate penalty of from 6 years and one day of prision mayor in its medium period, as minimum, to 17 years and 4 months of reclusion temporal in its medium period, as maximum.

For attempted murder, the trial court sentenced Dario to an indeterminate penalty, from 2 months and one day to 4 months of arresto mayor. The penalty imposed by the trial court is erroneous. The penalty of consummated murder under Article 248 of the Revised Penal Code, as amended, is reclusion perpetua to death. The imposable penalty should be reduced by two degrees under Article 68 of the Revised Penal Code because the appellant is a minor. As reduced, the penalty is reclusion temporal. Reclusion temporal should be reduced by two degrees lower, conformably to Article 51 of the Revised Penal Code which is prision correccional, because the murder was committed in the attempted stage. This penalty should be reduced by one degree, which is arresto mayor, to determine the minimum of the indeterminate penalty. Accordingly, Dario should be sentenced to a straight penalty of four (4) months. It goes without saying that if the trial court decides to impose on the accused a penalty of imprisonment of one year or less, it should impose a straight penalty and not an indeterminate penalty. (PEOPLE vs. DARILAY, G.R. Nos. 139751-52, January 26, 2004)

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Question No. 13Alfredo after having a drinking spree with other crew members went back to

F/B Ever IV, were he was working as a cook. Xander, the captain of the vessel, ordered food from Alfredo. Alfredo only gave rice to Xander, and told the latter that he was not able to cook any viand. Xander was incensed and told Alferdo that he was a useless cook and it would be better for him to resign from his employment. Alfredo ignored Xander's diatribes and went to the kitchen to tidy things up. Meanwhile, Xander went to the kitchen and took the knife from the tray near the door. With the knife in his hand, Xander went near Alfredo, who moved backward towards the front part of the boat; but Xander pursued the him. When he was cornered, Alfredo was forced to grapple with Xander for the possession of the knife. With his left hand, Alfredo held Xander’s right forearm, and with his left hand, twisted Xander’s right hand towards the chest. Xander placed his left hand on Alfredo's shoulder. Alfredo was able to wrest possession of the knife, and stabbed Xander on the chest. Xander placed his right hand on Alfredo's other shoulder, as he was stabbed on the chest, on the abdomen and on the back. Xander fell, his head hitting the edge of the deck. Alfredo could no longer remember the number of times he stabbed Xander.

Charged with and convicted of murder, Alfredo argues that the killing of Xander was made in self-defense.

Did the appellant act in self-defense?

ANSWER:NO, the inceptual aggression of Xander had already ceased after Alfredo had wrested

possession of the knife. Alfredo managed to wrest possession of the knife from the victim. While Alfredo was grappling for the possession of the knife, Xander placed his left hand on Alfredo’s right shoulder. Even after Alfredo had wrested possession of the knife, he stabbed Xander while the latter placed his right hand on Alfredo’s other shoulder. Nevertheless, Alfredo stabbed the hapless Xander six more times. Two of the stab wounds were at the back of Xander.

Furthermore, the number, locations and depth of the wounds sustained by Xander belie Alfredo's pretension that he killed the victim in self-defense; the same are proof that Alfredo intended to kill the victim and not merely to defend himself. The victim sustained no less than six (6) stab wounds. It certainly defies reason why Alfredo had to inflict such injuries on the victim if he was only defending himself.

Self-defense must be distinguished from retaliation; in that in retaliation, the inceptual unlawful aggression had already ceased when the accused attacked him. In self-defense, the unlawful aggression was still existing when the aggressor was injured or disabled by the person making the defense. (PEOPLE OF THE PHILIPPINES vs. GALLEGO, G.R. No. 127489, July 11, 2003)

Question No. 14Late in the evening on October 10, 1997, Totoy, Randy, Rot-Rot, and Jon-Jon,

boarded a NED MAJ Taxicab in Alabang, driven by Manny. When the taxi stopped under the bridge at Moonwalk subdivision, Totoy told Manny, “Tol, pera-pera lang ito, dahil kailangan lang.” However, Manny resisted and tried to get out of the taxi cab. Totoy pulled him back in and stabbed him with a bladed weapon on the chest. Randy, Rot-Rot, and Jon-Jon took turns in stabbing Manny with bladed weapons. Manny managed to get out of the taxicab, and flee from the scene. He was later on taken to a hospital where he expired.

Are Totoy and his confederates guilty of the consummated crime of robbery with homicide?

ANSWER:NO, there was no showing that Totoy and his cohorts managed to take any money from

the victim. For Totoy and his cohorts to be guilty of consummated robbery, there must be incontrovertible proof that property was taken from the victim. The malefactors are guilty of attempted robbery with homicide only, because they commenced the commission of robbery directly by overt acts but was not able to perform all the acts of execution which would produce robbery by reason of some causes or accident other than their own spontaneous desistance.

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In this case, Totoy demanded from the victim, "Tol, pera-pera lang ito, dahil kailangan lang." The victim refused to part with his earnings and resisted. He even tried to get out of the taxicab but Totoy pulled him back and stabbed him. Randy, Rot-Rot and Jon-Jon followed suit and stabbed the victim with their bladed weapons. The victim was able to flee from the vehicle without anything being taken from him. Totoy and his confederates commenced by overt acts the execution of the robbery, but failed to perform all the acts of execution by reason of the victim's resistance. (PEOPLE vs. BOCALAN, G.R. No. 141527, September 4, 2003)

Question No. 15At around 12:00 noon, Cesar saw his cousin-in-law, Lito and Papang dragging

his seventy-two-year-old auntie, Natividad, in the direction of a forested area where there were also mango and coconut trees. Cesar shouted, "Hoy, bakit ninyo kinakaladkad ang aking tiya?" Papang and Lito approached and told him not to interfere. Then Papang pointed a knife at Cesar and warned him not to reveal what he saw to anyone; otherwise, they would kill him and his family, including his children. Later Cesar saw how Lito and Papang forcibly took the possessions of Natividad and also saw how they strangled Natividad using a white rope. Initially, Cesar kept what he saw to himself because of fear of retaliation from the accused. Later on however, he revealed what he saw during the commission of the crime. As a result, a criminal information for robbery with homicide was filed against Lito and Papang.

Are Lito and Papang guilty of robbery with homicide?

ANSWER:YES, the accused are guilty of robbery with homicide. In robbery, there must be an

unlawful taking or apoderamiento which is defined as the taking of items without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things. Taking is considered complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. There is, likewise, no need to prove the exact amount of money taken, as long as there is proof of the unlawful taking. Intent to gain, or animus lucrandi, as an element of the crime of robbery, is an internal act, hence, presumed from the unlawful taking of things.

In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide perpetrated on the occasion or by reason of the robbery. The intent to commit robbery must precede the taking of human life. The homicide may take place before, during or after the robbery. There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The constitutive elements of the crime, namely, robbery and homicide, must be consummated. As long as there is a nexus between the robbery and the homicide, the latter crime may be committed in a place other than the situs of the robbery. (PEOPLE vs. HERNANDEZ, G.R. No. 139697, June 15, 2004)

Question No. 16From behind Dominador, Artemio pointed his shotgun at Dominador and shot

the latter once on the back. Dominador fell to the ground face down. Then came Arturo and Zosimo, who were armed with a small bolos. Arturo turned Dominador's body face up, and stabbed him more than once with the bolo. Zosimo followed suit and stabbed Dominador once with his bolo. The three then fled from the scene, towards the direction of Baliri river.

The three were then tried and convicted of murder for the killing of Dominador. The trial court concluded there was a conspiracy between Artemio, Arturo, and Zosimo. On appeal, the appellants contend that the trial court erroneously ruled on the existence of conspiracy because no agreement among the appellants to kill the victim was proved.

May conspiracy exist despite absence of an express agreement to kill the victim?

ANSWER:

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YES. Direct evidence is not required to prove conspiracy. It may be proved by circumstantial evidence. It is not even required that they have an agreement for an appreciable period to commence it. What is important is that all participants performed specific acts with such cooperation and coordination bringing about the death of the victim. When conspiracy is present, the act of one is the act of all. In this case, Artemio, Arturo, and Zosimo acted in concert to achieve a common purpose, i.e., to kill Dominador. Artemio shot Dominador at close range. Artemio and Zosimo followed suit and stabbed Dominador with their bolos. The three fled from the scene together, carrying their weapons with them. Indubitably, the three acted in concert; hence, all are guilty for the killing of Dominador. (PEOPLE vs. ELLORABA, et al., G.R. No. 123917. December 10, 2003)

QUESTION NO. 17On May 6, 1990, while Leah was sleeping, she saw Joel and Bernardo, 13 and

12 years old respectively, holding her hands and feet as she was being undressed. Leah struggled but was easily overpowered by the two. She threatened to shout, but she was told that nobody would hear her. Joel wetted Leah’s vagina with his saliva and proceeded to have carnal knowledge with her. Bernardo stood by the door of the room as a lookout while Joel was having his way with Leah. After their dastardly deed, Joel and Bernardo then called Lou and Lionel, Lea’s sisters, into the room, letting them see their sister naked. Joel and Bernardo threatened to kill her and the members of the family if she told anyone about what happened to her. Joel and Bernardo left the room together.

In a prosecution for rape, should Joel and Bernardo be exempted from criminal liability on the ground of minority?

ANSWER:NO, the facts show beyond cavil that Joel and Bernardo acted with discernment when

they raped the victim, thus: (a) they wetted the victim's vagina before they raped her; (b) one of them acted as a lookout while the other was raping the victim; (c) they threatened to kill the victim if she divulged to her parents what they did to her; (d) they ordered Leah Lou and Lionel to look at their sister naked after they had raped her. A minor who is over nine years old and under fifteen years old at the time of the commission of the crimes is exempt from criminal liability only when the said minor acted without discernment. It is the burden of the prosecution to prove that a minor acted with discernment when he committed the crime charged. The discernment that constitutes an exception to the exemption from criminal liability of a minor under fifteen years of age but over nine, who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong, and such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case, the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during the trial. (PEOPLE vs. CORTEZANO, G.R. No. 123140. September 23, 2003)

QUESTION NO. 18Between 11:00 p.m. and 12:00 midnight, Bobby was sitting infront of the

house of a certain Aling Pet. Bobby reeked of liquor and appeared to be drunk. Greg arrived together with Jaime and began talking about the basketball game that they had just seen. Bobby, who was seated beside Jaime, did not take part in the conversation. Suddenly, Bobby frisked Jaime’s waist and uttered that he “wanted to kill.” Jaime and Greg became frightened and immediately went to their house, which was just adjacent to Aling Pet’s house. While Greg was about to open the door to his house, Bobby, carrying two knives, emerged and immediately and without warning, stabbed Gregorio at the right side of the belly with one of the knives.

Was the aggravating circumstance of evident premeditation present in this case?

ANSWER:

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NO. For evident premeditation to be appreciated as an aggravating circumstance, it is indispensable to show how and when the plan to kill was hatched or how much time had elapsed before it was carried out. The facts does not show when Bobby decided to commit the crime and that a sufficient amount of time elapsed for him to reflect upon his resolution to kill Gregorio. Where there is no evidence as to how and when the plan to kill was decided and what time had elapsed before it was carried out, evident premeditation cannot be considered as an aggravating circumstance.

For evident premeditation to be appreciated, the following requisites must concur: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination; and (3) sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act. The essence of evident premeditation is that the execution of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment. It must be based on external acts which must be notorious, manifest and evident – not merely suspecting – indicating deliberate planning. Evident premeditation, like other circumstances that would qualify a killing as murder, must be established by clear and positive evidence showing the planning and preparation stages prior to the killing. Without such evidence, mere presumptions and inferences, no matter how logical and probable, will not suffice. (PEOPLE vs. BORBON, G.R. No. 143085. March 10, 2004)

QUESTION NO. 19Oscar was cleaning his car infront of Jimmy’s house when the latter arrived and

confronted Oscar about the noise coming from Oscar’s car stereo. Oscar ignored Jimmy and proceeded to clean his car. Insulted, Jimmy raised his voice and shouted invectives at Oscar. This time Oscar faced Jimmy and retorted with invectives of his own. Then Oscar boarded his car and sped away. After an hour, Oscar came back and parked his car a few meters away from Jimmy’s house. He took a hand gun and stealthily approached Jimmy from behind as the latter was sweeping the sidewalk. Oscar then called Jimmy’s name, and when the latter turned around he was shot by Jimmy in the stomach. Jimmy died as a consequence.

Can treachery be considered to exist in this case?

ANSWER:YES, Jimmy had no opportunity to anticipate the imminence of the Oscar’s attack, nor

was Jimmy in a position to defend himself or repel the aggression because he was unarmed. As a rule, there can be no treachery when an altercation ensued between the offender and the victim. However, the facts reveal that after the altercation, Oscar left and Jimmy was not aware that Oscar had come back armed with a hand gun.

That Jimmy was shot facing Oscar does not negate treachery. The settled rule is that treachery can exist even if the attack is frontal, as long as the attack is sudden and unexpected, giving the victim no opportunity to repel it or to defend himself. What is decisive is that the execution of the attack, without the slightest provocation from an unarmed victim, made it impossible for the latter to defend himself or to retaliate. (PEOPLE vs. PEREZ, G.R. No. 134485. October 23, 2003)

QUESTION NO. 20On June 24, 2005, Ondo and his friends went to the Clear Water Resort for a

swimming party. At about 5:00 p.m., Ondo and his friends headed back home. Two men, one of whom was Edgar, were having some drinks. When they saw Ondo, Edgar and his friend offered him a drink of Tanduay. Ondo, declined, saying "Bay, I am not drinking now." Thereafter, Ondo left. Edgar was peeved. He rose from his seat and followed Ondo. Edgar then took hold of Ondo's right shoulder, took out a stainless knife and stabbed the latter on the breast. Edgar left the scene. Mortally wounded, Ondo ran towards the vehicle and fell inside it. Ondo's companions brought him to the Hospital, where he was pronounced dead on arrival.

Was there treachery in the fatal stabbing Ondo?

ANSWER:

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NO, mere suddenness of the attack on the unarmed and unsuspecting victim does not justify the finding of treachery. As a general rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply if the attack was not preconceived but merely triggered by infuriation of Edgar on an act made by Ondo. In the present case, it is apparent that the attack was not preconceived. It was triggered by Edgar’s anger because of the Ondo’s refusal to have a drink with the former and his companion.

Treachery cannot be appreciated if it has not been proved beyond reasonable doubt that the assailant did not make any preparation to kill the victim in such a manner as to insure the killing or to make it impossible or difficult for the victim to defend himself. The prosecution must prove that the killing was premeditated or that the assailant chose a method of attack directly and specially to facilitate and insure the killing without risk to himself. The mode of attack must be planned by the offender and must not spring from the unexpected turn of events. (PEOPLE vs. DUMADAG, G.R. No. 147196. June 4, 2004)

QUESTION NO. 21Jojo was convicted of the crime of murder, and was sentenced to suffer the

penalty of death by lethal injection, for causing the death of Ricardo on February 23, 1997, with the use of an unlicensed firearm. The trial court sentenced Jojo to suffer the penalty of death, appreciating the use of an unlicensed firearm as a special aggravating circumstance pursuant to R.A.8294 which took effect after the killing on July 6, 1997.

Was the trial court correct in imposing the death penalty?

ANSWER:NO. Under Article 248 of the RPC, as amended by RA No. 7659, the imposable penalty for

murder is Reclusion Perpetua to Death. Since RA No. 8294 took effect after the crime charged was committed, it should be applied prospectively and not retroactively. For if the new law were to be applied retroactively as the trial court did, the same would aggravate the criminal liability of Jojo and the imposable penalty for the crime charged. (PEOPLE vs. AQUINDE ET. AL., G.R. No. 133733. August 29, 2003)

QUESTION NO. 22Marita was charged with and convicted of the crime of theft for stealing

jewelries. She was also ordered to pay the private offended party the sums of P1,500,000 for the value of the stolen jewelries and P100,000 for moral damages. During the pendency of her appeal to the Supreme Court she died. The private offended party moves that she be paid the sums awarded representing the Marita’s civil liability.

May amounts representing civil liability ex-delicto be awarded despite the death of the accused pending appeal?

ANSWER:NO, the civil action instituted with the criminal action for recovery of civil liability ex

delicto is ipso facto extinguished, upon the extinction of the criminal action due to the death of the accused. The pecuniary liabilities adjudged against Marita are undeniably ex delicto. She was ordered to pay actual damages, which is the value of the pieces of jewelry allegedly taken from the private complainant, and moral damages for the fear and trauma caused to the complainant by reason of the commission of the crime. These civil liabilities arose from the crime of Theft and are based solely on said delict. (DE GUZMAN vs. PEOPLE, G.R. No. 154579. October 8, 2003)

QUESTION NO. 23Does the absence of spermatozoa in the victim’s genitalia disprove rape?

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ANSWER:NO, the negative findings of spermatozoa does not prove that rape was not committed.

The absence of spermatozoa does not disprove rape. It has been long settled that absence of spermatozoa does not necessarily mean that rape was not committed; the slightest penetration of the female organ is enough. In any case, a negative sperm-detection test is immaterial to the crime of rape, it being firmly settled that the important consideration in rape is penetration and not emission. (PEOPLE vs. MALONES, G.R. Nos. 124388-90. March 11, 2004)

QUESTION NO. 24Mida, after being berated by her mother, left their house. Tupeng, who was a

neighbor of Mida, invited the latter to his apartment to spend the night therein to which Mida voluntarily agreed. Tupeng led Mida to a room where she was to sleep. Ten minutes after leaving the room, Tupeng returned and sat on the bed in the evening of the same day, completely naked. He then had carnal knowledge with Mida against her will. After gratifying his lust, Tupeng warned Mida not to tell anyone about the incident and warned her that her mother would condemn her for sleeping at his apartment. Mida was padlocked inside the house for five days until she was rescued.

Was the complex crime of serious illegal detention with rape committed?

ANSWER:NO, Tupeng is guilty only of rape and not of serious illegal detention. The original and

primordial intention of Tupeng in keeping Mida in his apartment was to rape her and not to deprive her of her liberty. Forcible abduction is absorbed in the crime of rape if the real objective of the accused is to rape the victim. Hence, Tupeng is guilty only of rape under Article 335, paragraph 1 of the Revised Penal Code, and not of the complex crime of serious illegal detention with rape under Article 267, in relation to Articles 335 and 48 of the Code. Although Mida initially agreed to stay at appellant’s apartment, she did so because she had nowhere to go and she believed, at that time, that she was safe with Tupeng, who was her neighbor. (PEOPLE vs. SABARDAN, G.R. No. 132135. May 21, 2004.)

QUESTION NO. 25May kidnapping be committed if the private complainant never resisted nor

complained to go with the offender at the inception of the crime?

ANSWER:YES. The essence of the crime of kidnapping is the actual deprivation of the victim’s

liberty under any of circumstances mentioned in Article 267 coupled with indubitable proof of intent of the accused to effect the same. The victim’s lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim my have inceptually consented to go with the offender to a place but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is guilty of kidnapping and serious illegal detention. (PEOPLE vs. PICKRELL, G.R No. 120409. October 23, 2003)

QUESTION NO. 26Jose was convicted of rape for allegedly ravishing Marina, a mental retardate.

Marina testified that Jose kissed and undressed her, and then pulled her yellow-colored pants down to her knees. He then mounted her and inserted his private organ into her vagina. He put his clothes back on and left. The information charged that Jose, by means of force, violence, threats and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of Marina, against her will.

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On appeal, Jose asserts that under the criminal complaint, he was charged of rape under paragraph 1, Article 335 of the Revised Penal Code, as amended. However, the prosecution, through the victim herself, failed to prove that he forced, threatened or intimidated her into having sexual intercourse with him. Furthermore, according to Jose, the prosecutor merely proved that the victim was a mental retardate and that he had sexual intercourse with her. He cannot be convicted of rape under paragraph 2, Article 335 of the Revised Penal Code; otherwise, he would be deprived of his right to be informed of the nature of the crime charged against him. Despite the trial court’s findings that the prosecution failed to prove rape as charged in the criminal complaint under paragraph 1, Article 335 of the Revised Penal Code, the court still convicted him of rape under the second paragraph of the said Article

May the appellant be convicted of rape through force or intimidation?

ANSWER:YES, it bears stressing that force or intimidation may be actual or constructive. In this

case, the victim is a mental retardate. Jose took advantage of her condition and succeeded in having sexual intercourse with her. Hence, he is guilty of forcible rape.

Carnal knowledge of an insane woman, knowing her to be insane, is rape. There is a lack of capacity to consent, and it is presumed that the act was done without her consent, hence it is against the female’s will; the force required may be in the wrongful act itself. It follows that such act is done ‘forcibly and against her will.’ In an indictment the office of the words ‘against her will’ is merely to negative consent. (PEOPLE vs. BALATAZO, G.R. No. 118027. January 29, 2004)

QUESTION NO. 27Francisco rented a room in the house under the care of Purita. Purita occupied

another room in the house. She had a very close relationship with Francisco, but became disillusioned when he failed to pay the monthly rentals. Exasperated, Purita had the matter placed in the police blotter. This infuriated Francisco.

One evening, Francisco arrived at his neighbor’s residence and blurted: “Pare, I will kill Purita.” However, the neighbor told Francisco that Purita was very kind to him and counseled against killing her. At 5:00 a.m. on October 11, 1995, Francisco stabbed Purita while the later was asleep inside her room, thereby causing her death.

Were the aggravating circumstances of treachery and evident premeditation present in this case?

ANSWER:NO, the facts fail to show that Francisco deliberately or consciously adopted a mode of

attack to ensure the killing. There is even no showing of the particulars as to how the aggression commenced or the events that led to the stabbing. For treachery to be qualifying, the prosecution must prove the confluence of the following requisites: (a) the employment of means of execution that gives the person attacked the opportunity to defend himself or retaliate; (b) that the accused deliberately and consciously adopted the means of execution.

Neither was evident premeditation attendant in the commission of the crime. Francisco may have intended to kill the victim even before October 11, 1995. However, there is nothing in the facts to show that from that time on, until the victim was stabbed and killed, Francisco performed overt acts indicating his determination to commit the crime. For evident premeditation to be appreciated the following must be present: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to their determination to commit the crime; and (3) the lapse of a sufficient period of time, as to allow the accused to reflect upon the consequences of the act. (PEOPLE vs. SANTIAGO, G.R. No. 147314. February 6, 2004)

QUESTION NO. 28

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Rogelio was convicted by the trial court of homicide, with the mitigating circumstance of voluntary surrender appreciated in his favor. He was sentenced to the penalty of imprisonment ranging from EIGHT (8) YEARS and ONE (1) DAY of prision mayor, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of Reclusion Temporal minimum.

Was the penalty properly imposed?

ANSWER:YES. The imposable penalty for homicide under Article 249 of the Revised Penal Code is

reclusion temporal in its full range. From this penalty, the maximum of the indeterminate penalty shall be determined by taking into account the attendant modifying circumstances. Under Article 64, paragraph 2 of the Revised Penal Code, when only a mitigating circumstance is present in the commission of a crime, the maximum of the indeterminate penalty shall be taken from the minimum of the penalty imposed by law, viz., reclusion temporal in its minimum period which has a range of 12 years and 1 day to 14 years and 8 months. To determine the minimum of the indeterminate penalty, reclusion temporal has to be reduced by one degree without taking into account the attendant modifying circumstances. The penalty lower by degree is prision mayor in its full range. Under Section 1 of the Indeterminate Sentence Law, the minimum of the penalty shall be within the full range of prision mayor which is 6 years and 1 day to 12 years. The trial court is given the widest discretion to fix the minimum of the indeterminate penalty provided that such penalty is within the range of prision mayor. In fixing the minimum of the indeterminate penalty, the trial court is to consider two aspects, namely: first, the more or less mechanical determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the ascertained limits.

Hence, the trial court may impose prision mayor in its minimum, or medium, or maximum period as the minimum of the indeterminate penalty. In this case, the trial court correctly imposed 8 years and 1 day of prision mayor as minimum. (GARCIA vs. PEOPLE, G.R. No. 144699. March 10, 2004)

QUESTION NO. 29A criminal complaint was filed against Esteban for acts of lasciviousness

allegedly committed against Marilyn, the former’s 13-yr-old step-daughter. During the trial Marilyn testified that Esteban would torment her day-by-day by

persistently kissing her and touching her private parts. On August 5, 1996, Esteban and Marilyn were alone in the house. He again touched Marilyn’s private parts, kissed her on the lips, mashed her breasts, and touched her thighs and legs. Unable to bear the acts of Esteban, Marilyn ran away and went to her sister who was working as a housemaid. Marilyn related to him her traumatic ordeals at the hands of Esteban. Marilyn’s sister took pity on her and accompanied her to the police station where she reported Esteban’s sexual assault and lascivious acts on her. Marilyn was also subjected to a medical examination.

At the arraignment, Esteban entered a plea of not guilty. After trial, the trial court convicted him of the crime charged. Esteban contends that although he touched the private parts of Marilyn and grabbed her breasts, held her thighs and legs and kissed her, the said acts were not lewd and do not constitute the felony of acts of lasciviousness.

Did the trial court commit error in convicting Esteban of acts of lasciviousness?

ANSWER:NO. There can be no doubt that Esteban was propelled by lewd designs when he

touched Marilyn’s private part, mashed her breasts, touched her thighs and legs and kissed her. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. The presence or absence of the lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. Esteban had been subjecting Marilyn to lascivious acts whenever he and Marilyn were alone by themselves in the house.

The elements of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done under any of the following circumstances: (a) by

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using force or intimidation; (b) when the offended woman is deprived of reason or otherwise unconscious; or (c) when the offended party is under twelve (12) years of age. (PEOPLE vs. VICTOR, G.R. No. 127904. December 5, 2002)

QUESTION NO. 30Vicente, on his way home from work, found his wife and daughter, Teodora and

Julia respectively, at a neighbor’s house hiding. He found out that, Gabby, the husband of his other daughter Julia, earlier came to Vicente’s house drunk and started boxing and kicking Julia; after which Gabby went home and slept.

Frightened of further trouble from Gabby, Vicente referred the matter to Juan, the leader of “Greenan,” an aggrupation of civilians armed with bolos and hunting knives who tasked themselves to preserve the peace and order in the community. Vicente talked to Juan and the latter agreed to arrest Gabby. The other members of Greenan were then called to help in the arrest. They went to Gabby’s house and were able to eventually awaken him and tied his hands behind him. Gabby was brought before Julia and was asked why he had boxed Julia. Gabyy said it was because he was angry and that he was drunk. Juan then and there adjudged him guilty. They then started walking. When Juan and the others were 3 meters ahead of Gabby, they stopped. Gabby was then stabbed at his side and back and then finally shot. Greenan dumped the dead body at a meat grinder where it was shredded beyond recognition.

Can cruelty be appreciated as an aggravating circumstance in this case?

ANSWER:NO. Paragraph 21, Article 14 of the Revised Penal Code provides that there is cruelty in

the commission of a felony when the wrong done in the commission of the crime is deliberately augmented by causing other wrong not necessary for its commission. There is no cruelty when the other wrong is done after the victim is already dead. The test in appreciating cruelty as an aggravating circumstance is whether the accused deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission, or inhumanly increased the victim's suffering or outraged or scoffed at his person or corpse. In this case, Juan and his confederates threw Gabby into the meat grinder, the latter was already dead. (PEOPLE vs. SIBONGA, et al., G.R. No. 95901. June 16, 2003)

QUESTION NO. 31In a party, Leo and his wife were singing together. After their duet, the couple

decided to go home. Leo handed the microphone to Bernabe, remarking, "Bayaw, its your turn because we are going home with my wife." Bernabe took the microphone and began to sing with his wife Gracia. However, he was enraged when the videoke suddenly stopped. Bernabe shouted. "Vulva of your mother, who is tough here, you are fouling me." Simultaneously, Bernabe pulled a table and turned it upside down. He grabbed an empty bottle of beer grande and smashed it. He then shouted invectives at the Pontawe family: "Vulva of your mother, you Pontawe family" Leo confronted Bernabe and demanded to know why Bernabe was so mad at his family. To prevent the already tense situation from further escalating, Gracia prodded Leo to leave. As Leo was retrieving his slippers, Bernabe tried to hit him with the broken bottle. Leo parried the thrust and boxed Bernabe on the nose.

They were separated by the Barangay Kagawads who brought Bernabe to his tricycle. On his way, to the tricycle, Bernabe warned Leo: "Wait for me and I will come back." Nonong, Bernabe's son, drove the tricycle and brought the latter home.

After about thirty to forty minutes, Bernabe returned, armed with a short gun. He positioned himself in a dark place. Suddenly, Gracia heard a gunshot. She turned her head towards the direction where the gunshot emanated from and saw that Leo was hit on the left temple and fell to the ground, mortally wounded.

After trial, the court rendered a decision finding Bernabe guilty beyond reasonable doubt of murder qualified by treachery and evident premeditation.

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(1) Did the trial court gravely err in finding that the crime committed was one of murder qualified by treachery?

(2) Did the trial court gravely err in appreciating evident premeditation as an aggravating circumstance?

ANSWER:(1) NO. Treachery is committed when two conditions concur, namely: (1) at the time of

the attack, the victim was not in a position to defend himself; and (b) the assailant consciously and deliberately adopted the particular means, methods or forms of attack employed by him. The essence of treachery is the sudden and unexpected attack by the assailant on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself. There may still be treachery even if before the assault, the assailant and the victim had an altercation and a fisticuffs where, after the lapse of some time from the said altercation, the assailant attacked the unsuspecting victim without affording him of any real chance to defend himself. In this case, Bernabe, armed with a gun, shot the victim as the latter was conversing with his wife and Beverly's other guests in front of the gate of the latter's house. The victim was unarmed. The attack of the appellant was sudden. The victim had no inkling that the appellant had returned, armed with a gun.

(2) YES. For evident premeditation to be appreciated, it must be proved the confluence of the following elements: (1) the time when the offender determined to commit the crime; (b) an act manifestly indicating that he has clung to such determination; and (c) sufficient lapse of time between the determination and execution to allow the offender to reflect upon the consequence of his act. The aggravating circumstance must be proved with equal certainty as the commission of the crime charged. The mere lapse of time does not prove evident premeditation. There must be proof of overt acts of the appellant, showing when he conceived the plan to kill the deceased, and that in the interim, he clung to his determination to kill, and that sufficient time had elapsed between his determination and the execution of the crime to allow his conscience to overcome the resolution of his will. The mere fact that after his fight with Leo, Bernabe came back with a gun and shot Leo does not constitute proof of evident premeditation. The facts show that after Bernabe left the gathering at Beverly's house, he returned armed with a gun after the lapse of thirty to forty minutes. Considering that it took Bernabe twenty to thirty minutes to get to his house and a similar period of time to return to Beverly's residence, it cannot be said that Bernabe had sufficient time to ponder upon the dire consequences of the crime he had decided to commit. (PEOPLE vs. MONTEMAYOR, G.R. No. 125305. June 18, 2003)

QUESTION NO. 32On November 9, 1995, Rolando asked Leah and Lettymar, could stay in his

house to watch over his daughter, Princess, while he was out on his tricycle making a living. The two consented and stayed at Rolando’s house. At that particular moment, Samuel, was staying with his brother Rolando.

At about 6:30 pm, Leah was seen emerging from the house of Rolando, running towards the street while shouting “uncle Sam, uncle Sam!” She was followed by Samuel who was in possession of an 8-inch knife. Samuel stabbed Leah eighteen times which ultimately caused her death.

After trial on the merits, the court a quo found Samuel guilty beyond reasonable doubt of murder, qualified by the circumstance of abuse of superior strength, for the death of Leah. Samuel contends that the trial court erred in holding him guilty of murder since the killing was not made with abuse of superior strength.

Was there present in the killing abuse of superior strength as to qualify the crime to murder?

ANSWER:YES. Samuel was armed with a knife and used the same in repeatedly stabbing Leah, a

young wisp of a girl, no less than eighteen times after overtaking her. Infragably, then, Samuel abused his superior strength in stabbing Leah. There are no fixed and invariable rules regarding abuse of superior strength or employing means to weaken the defense of the victim. Superiority does not always means numerical superiority. Abuse of superiority depends upon the relative

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strength of the aggressor vis-a-vis the victim. There is abuse of superior strength even if there is only one malefactor and one victim. Abuse of superiority is determined by the excess of the aggressor’s natural strength over that of the victim, considering the position of both and the employment of means to weaken the defense, although not annulling it. The aggressor must have taken advantage of his natural strength to insure the commission of the crime. (PEOPLE vs. LORETO, GR No. 137411-13. February 28, 2003)

QUESTION NO. 33Diego, who was wearing a pair of short pants but naked from waist up, entered

the bedroom of Mona, went on top of her, held her hands, removed her panty, mashed her breasts and touched her sex organ. However, Diego saw Rossel, Mona’s younger brother peeping through the door of the room and dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep. Diego then left Mona’s room.

Is Diego guilty of consummated acts of lasciviousness defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the said Code?

ANSWER:Diego is guilty of attempted rape and not of acts of lasciviousness. Diego intended to

have carnal knowledge of Mona, and by the series of his overt acts he commenced the execution of rape which, if not for his desistance, will ripen into the crime of rape. Although Diego desisted from performing all the acts of execution however his desistance was not spontaneous as he was impelled to do so only because of the sudden and unexpected arrival of Rossel. (PEOPLE vs. LIZADA, G.R. Nos. 143468-71, January 24, 2003)

CALLEJO NOTES in REMEDIAL LAW

QUESTION 1:

Shirley was charged of violation of BP 22. After Shirley pleaded “ Not Guilty” to the charge, the Prosecutor filed a motion with the Court praying for leave to amend the Information to change the amount of the check from P 20,000 to P 200,000. Shirley opposed the motion on the ground that the amendment of the Information is substantial and will prejudice her. The Court granted the motion of the Prosecution and allowed the amendment.

1.) Is the order of the Court correct? Explain.2.) Would your answer be the same if, instead of praying for leave to amend the

Information, the Prosecutor prayed for leave to withdraw the Information and to substitute the same with another Information containing the amount of P200,000 and the court granted the motion of the Prosecution? Explain.

SUGGESTED ANSWERS:1.) YES. Sec. 14 of Rule 110 pertinently provides that after the plea and during trial, a

formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. The change of the amount of the check in this case is only a matter of form and not of substance. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matter are merely of form. An amendment which merely states with additional precision something which is already contained in the original information and which, therefore, adds nothing essential for conviction of the crime charged is a formal amendment as in the instant case.

2.) NO. Substitution is not proper in this case because the new information would refer to the same offense charged in the original information ( i.e. Violation of B.P. 22) and that would result to double jeopardy.

QUESTION 2:

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Juana issued and delivered on February 15, 1995 in Iba, Zambales, to Perla, her townmate, two (2) checks, one of which was for P60,000, postdated May 1, 1995, and the other for P100,000 postdated June 1, 1995 against her account with Metrobank in Limay, Bataan in payment of jewelries Juana purchased from Perla. Perla deposited the checks, on due date, in her account with the Asia Bank, in Manila. When the checks were dishonored for insufficiency of funds, Perla signed and filed, without prior conciliation proceedings before the Barangay officials, one (1) verified criminal complaint for violation of BP 22 with the Manila MTC against Juana. The court issued an order dismissing the case, motu propio, the criminal complaint.

1.) Is the order of dismissal correct? Explain.2.) If the court issued an order quashing the criminal complaint would such order be

correct? Explain.

SUGGESTED ANSWERS:1.) NO. Violation of PB 22 is now covered by the Rules on Summary Procedure. As such,

the court is mandated to issue an order declaring whether or not the case shall be governed by the Rules on Summary Procedure. He cannot outrightly dismiss the case without making such determination.

2.) It depends on what ground the motion to quash is based. A motion to quash is a prohibited pleading under the rule of summary procedure. However, under Sec. 19 (a) of the rule the said prohibition does not apply when the motion is based on lack of jurisdiction over the case or failure of the complainant to refer the case to barangay conciliation.

QUESTION 3:

Pedro and Juan were charged of Estafa under Article 315 of the Revised Penal Code, under an Information, based on the complaint of Jessica. After the prosecution rested its case, Juan, without prior leave of court, filed a “ Demurrer to Evidence.” Despite the opposition of the Prosecutor, the Court issued an order granting the demurrer on the ground that there was insufficient evidence of estafa committed by Pedro and Juan and dismissed the case against both of them but ordered Jessica to file a separate civil complaint for the civil liability of both accused.

1.) Is the order of the court dismissing the case against both Pedro and Juan correct? Explain.

2.) Is the order of the court ordering Jessica to file a separate civil complaint against them in their civil liability correct? Explain.

3.) Does the order of the court amount to an acquittal of both Pedro and Juan? Explain.

SUGGESTED ANSWER:1.) YES. After the prosecution rests its case, the court may dismiss the action on the

ground of insufficiency of evidence upon demurrer to evidence filed by the accused with or without leave of court. However, when the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. ( Sec. 23, Rule 119 )

2.) YES. Well settled is the rule in criminal procedure that extinction of the penal action does not carry with it the extinction of the civil action, unless the extinction proceed from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. Hence, the court may order for the filing of a separate civil complaint for the civil liability of both accused.

3.) YES. If the demurrer to evidence is sustained, such dismissal being on the merits is equivalent to an acquittal. ( People vs. City Court of Silay, et. al. L-43790, Dec. 9, 1976 )

QUESTION 4:

Juan, Pedro and Victor were charged of Rape with the RTC on complaint of Jessica. All of the Accused filed a petition for Bail. The Prosecutor did not oppose the petition. Nevertheless, the court set the hearing of said petition during which the Prosecutor presented three (3)

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witnesses, including Jessica and rested its case on said Petition. Juan, Pedro and Victor testified in support of their Petition. The court issued an order denying the Petition, in this language:

“OrderFor lack of merit, the Petition for Bail is hereby denied.”

The prosecutor then filed a motion with the court for the discharge of Pedro as a state witness. Juan and Victor opposed the motion on the grounds that (a) the prosecution has already rested its case; (b) the denial by the court of the Petition for Bail of the accused precluded the prosecution from praying for the discharge of one of the accused as a state witness.

1.) Was it proper for the Court to set the Petition for Bail for hearing and receive evidence even if the prosecutor did not oppose the petition? Explain.

2.) Is the order of the court denying bail to the accused proper? Explain.3.) Is the petition of the prosecution to discharge Pedro as a state witness proper and

meritorious? Explain.4.) If the court denied the petition of the prosecution for the discharge of Pedro, may

Pedro testify for the prosecution? Explain.5.) Is it proper for the court to consider only the evidence presented during the Petition

for Bail in resolving the petition for the discharge of Pedro as a state witness? Explain.

SUGGESTED ANSWERS:1.) YES. Since Rape is a capital offense being punishable by death, bail is not a matter

of right. The court will still have to determine whether the evidence of guilt is strong for purposes of granting the petition for Bail. In view thereof, a hearing is necessary even if the prosecution did not oppose the petition.

2.) NO. The Order of the court denying or granting a petition for bail should spell out at least a resume of the evidence on which its order is based. In once case it was held that an order of the court merely stating the number of witnesses and the court’s conclusion that the evidence of guilt was not “sufficiently strong” such order is defective in for m and substance and consequently voidable. ( Carpio, et.al. vs. Maglalang, etc. G.R. No. 78162, April 19, 1991 ).

3.) NO. Under Rule 119, Sec. 17, when two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution, before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the State. Thus, where the motion is made after the prosecution rests its case, such motion is not proper and meritorious.

4.) NO. To order Pedro to testify for the prosecution despite denial of the prosecution’s motion for his discharge as state witness would violate his right against self-incrimination.

5.) NO. In a petition for bail, the court receives evidence to determine whether the evidence of guilt of the accused is strong. On the other hand, in a petition for the discharge of an accused to be a state witness, the prosecution presents evidence to prove that: (a) There is absolute necessity for the testimony of the accused whose discharge is required; (b) There is no other direct evidence available for the proper prosecution of the offense committed except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpiture.

QUESTION 5:

Peter was charged with the RTC of the crime of murder. At arraignment, he pleaded “ Not Guilty” to the charge. After the prosecution rested its case, Peter filed, without prior leave of court, a “ Demurrer to Evidence.” The prosecution opposed the motion. The court then promulgated a decision declaring that Peter committed only “Homicide” convicting him of said crime.

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1.) Assuming that the Prosecution proved only Homicide, was it proper for the Court to render a Decision on the basis of said demurrer convicting Peter for said crime? Explain.

2.) Would it be proper for the Prosecutor to file a motion for the reconsideration of the Decision of the Court without placing Peter in double jeopardy? Explain.

SUGGESTED ANSWERS:1.) YES. When the demurrer to evidence is filed without leave of court, the accused

waives his right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. Hence, where the evidence presented by the prosecution proves Homicide, the court may render a decision convicting the accused of Homicide.

2.) NO. Section 1 of Rule 121 does not provide for a motion for new trial or reconsideration by the prosecution as the reopening of the case and introduction of additional evidence by the prosecution, without the consent of the accused, would result in double jeopardy.

QUESTION 6:

Rene drove his car with gross negligence resulting in his car colliding with the car of Bert. Because of the impact, the car of Bert bumped the car owned by Lando. As a result of said accident, the cars of Bert and Lando wee damaged at the cost of P 100,000 each. Bert died while Rosa, his wife who was also in the car, sustained serious physical injuries. After Preliminary investigation, the prosecutor filed two (2) separate Information, namely an Information for “ Reckless Imprudence resulting in Homicide, Damage to Property ( referring to the car of Bert ) and Serious Physical Injuries” and another Information for “Reckless Imprudence resulting in Damage to Property for the damage to the car of Lando.

1.) Was it proper for the prosecutor to file two (2) separate informations? Explain.2.) Would it be proper for the prosecutor to file only one (1) information based on said

accident? Explain.3.) If two (2) separate Information were filed by the prosecutor, may the trial of the 2

cases be consolidated in one court? Explain.

SUGGESTED ANSWER:1.) YES. Sec. 13 of Rule 110 states that a complaint or information must charge only one

offense, except when the law prescribes a single punishment for various offenses. In this case, the two felonies allegedly committed by the accused must be contained in two separate informations because they have different objects.

2.) NO. The felonies involved do not constitute as an exception to the rule proscribing duplicity of offense. The two offenses do not fall under the complex crime under the RPC where a single penalty is imposed and the special complex crimes or composite crimes penalized therein.

3.) YES, this is authorized by Sec. 22 of Rule 119 which provides that charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the discretion of the court.

QUESTION 7

After Mario pleaded “ Not Guilty” to the charge of Rape, Mario proceeded to the house of Perla and threatened to kill her unless she agreed to marry him. Afraid, Perla married Mario. Immediately thereafter, Perla filed a complaint with the RTC for the declaration of the nullity of her marriage to Mario. During pre-trial in the criminal case, Mario filed a motion to quash the Information on the grounds of extinction of the crime of Rape and of his criminal liability for said crime. Mario attached to his motion a certified true copy of his marriage contract with Perla. The prosecutor opposed the Motion of Mario claiming that such a motion cannot be filed after arraignment. The prosecutor moved that the criminal case be suspended until after the termination of the civil case for nullity of the marriage. Mario opposed the motion of the prosecutor and moved that the civil case should be suspended instead.

Resolve the respective claims/motions of the Prosecutor and Mario.

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SUGGESTED ANSWER:As a general rule, a motion to quash must be filed before the arraignment, otherwise,

they are deemed waived. This rule however admits of several exceptions. One of which is when the ground invoked is that the criminal action or liability has been extinguished. In case of Rape, marriage of the offended woman and the accused extinguishes criminal liability. Hence, the motion to quash filed by Mario can still be entertained by the court even after his arraignment.

The motion of the Prosecutor to suspend the criminal case is proper. The decision in the civil case for declaration of nullity of marriage is prejudicial to the outcome of the criminal case. Although one of the elements of a prejudicial question is that is must have been previously instituted than the criminal case, the same should not be strictly applied in the case at bar. The resolution in the case for declaration of the nullity of marriage between the herein accused and the offended party is determinative of whether the case for rape will prosper. If the marriage is declared void, the criminal liability of Mario would not be distinguished and will result to the denial of his motion to quash.

QUESTION 8:

Pedro was charged of the complex crime of “Murder” and “Frustrated Murder” under Art. 248 in relation with Articles 6 and 48 of the RPC, punishable with death penalty. It was alleged in the Information that Pedro shot Juan and Rodolfo with his licensed gun killing Juan and inflicting serious physical injuries on Rodolfo who managed to survive despite his wounds. Upon arraignment, Pedro offered to plead guilty to the “lesser offense of “Murder.”

1.) May the court grant Pedro’s offer if the Public Prosecutor and the heirs of Juan agree but Rodolfo does not? Explain.

2.) If Rodolfo, the heirs of Juan, the Public Prosecutor and the Court agree to the offer of Pedro, is the Court mandated to conduct searching inquiry into the voluntariness and full comprehension of Pedro’s plea? Explain.

SUGGESTED ANSWERS:1.) NO. For a plea of guilty to a lesser offense, the consent of the prosecutor, as well as

of the offended party, and the approval of the court must be obtained. Where these requirements were not observed, the accused cannot claim double jeopardy if he should be charged anew with the graver offense subject of the original information or complaint. ( Sec. 2, Rule 116 )

2.) YES. The rules provide that when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability . ( Sec. 3, Rule 116 )

QUESTION 9:

Appended to the Information for Rape against William were the Affidavits of Perla, the private complainant, the Medico-Legal Report on Perla, and the Police Report on the Police investigation of Perla’s comlaint.

May the trial court rely solely on the allegations of the information and the appendages thereof for the purpose of ascertaining probable cause for the issuance of a warrant of arrest against William? Explain.

SUGGESTED ANSWER: NO. The case involved in the present case requires a preliminary investigation. As

such, the judge conducting the preliminary investigation cannot outrightly issue a warrant of arrest solely on the basis of the information and supporting affidavits of the prosecution. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. He shall thereafter submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The warrant of arrest may only issue if the trial judge is satisfied that a probable

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cause exists and that in his sound judgment there is necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

QUESTION 10:Although Alex committed the special complex crime of “Roberry with Homicide” under

Art. 294 par. 1 of the RPC, the Public Prosecutor filed two ( 2 )separate Informations against Alex for “Robbery” and “Homicide.” The court ordered a joint trial of the 2 cases.

May Alex file, before arraignment, a “Motion to Quash” the Information for “Homicide” on the ground of double jeopardy? Explain.

SUGGESTED ANSWER:NO. As a general rule the Rules prohibit a duplicitous information and declares the same

to be quashable including a situation where a complex crime which should properly be charged in a single information is made the subject of several informations by charging each component crime thereof separately.

However, in People vs. Milflores ( L-32144-45, July 30, 1882 ), where the accused was charged with multiple murder in one information and murder in another, although said offenses constituted a single complex crime caused by a single explosive, it was held that since said cases were jointly tried, the technical error was deemed cured and the accused could not claim double jeopardy.

QUESTION 11:

The court rendered judgment convicting Jojo of “Less Serious Phyical Injuries” and imposed on him the penalty of four ( 4 ) months of arresto mayor. However, the court did not, despite the evidence on record, order Jojo to pay actual damages and moral damages. A day after the promulgation of the Decision, Jojo filed a “Petition for Probation” with the court. Two (2)Days after Jojo had filed his petition, the private prosecutor, without the conformity of the Public Prosecutor, filed a “ Motion for Reconsideration” of the Decision only on the civil liability of Jojo.

1.) Did the decision of the court become final and executory when Jojo filed his Petition for Probation? Explain.

2.) Did the court retain jurisdiction over the case to take cognizance of and resolve the motion of the Private Prosecutor? Explain.

3.) If the court granted the motion of the Private Prosecutor, may the court amend its Decision to include civil liability of Jojo without violating Jojo’s right against double jeopardy? Explain.

SUGGESTED ANSWERS:1.) YES. Section 7 of Rule 120 provides that a judgment in criminal case become final (a)

when no appeal is seasonably filed; (b) when the accused commenced to serve sentence: (c) when the right to appeal is expressly waived in writing, except where the death penalty was imposed by trial court, and (d) when the accused applies for probation as he thereby waives the right to appeal.

2.) YES. The trial court can validly amend the civil portion of its decision within 15 days from promulgation thereof even though the appeal had in the meantime been perfected by the accused from the judgment of conviction. ( People vs. Ursua, 60 Phil 252 ). It can, within the said period, order the accused to indemnify the offended party, although the judgment had become final. ( People vs. Rodriguez, 97 Phil 349 ). The reason for this is that the court continues to retain jurisdiction insofar as the civil aspect is concerned. After the lapse if the 15-day period, there can no longer be any amendment of the decision.

3.) YES. This is an exception to the rule that a judgment of conviction cannot be modified after it has become final, otherwise such modification would amount to double jeopardy. As previously stated, the trial court can validly amend the civil portion of its decision within 15 days from promulgation thereof.

QUESTION 12:

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The trial court found Allan guilty of violation of PD 1866 ( possession of unlicensed firearm ) and meted on him the penalty of from fifteen (15) years of reclusion temporal, as minimum, to 18 years of reclusion temporal, as maximum. Allan appealed the Decision to the Court of Appeals. During the pendency of the appeal, RA 8294 took effect. The Court of Appeals affirmed the Decision of the trial court but reduced the penalty to one (1) year of prision correctional as minimum, to 5 years of prision correccional, as maximum. The decision of the Court of Appeals became final and executory after which the records of the case were remanded to the trial court.

Is Allan entitled to probation under the Probation Law? Explain.

SUGGESTED ANSWER:NO. Section 4 of PD 968 ( Probation Law) provides that no application for probation

shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. Thus, when Allan has perfected his appeal, his right to apply for probation was lost.

QUESTION 13:

Pedro was charged in the RTC of the crime of theft under Art. 308 of the RPC. However, the Information did not allege the value of the property stolen.

If you are the counsel of Pedro, would you file a “Motion for a Bill of Particulars” or a “Motion to Quash” the Information? Explain.

SUGGESTED ANSWER:I would file a Motion for a Bill of Particulars praying that the prosecution specify the value

of the property stolen to enable my client, Pedro, to properly plead and prepare for trial. If the value of the property is considerably small, my client could raise the defense that one of the elements in the crime of theft is lacking, i.e., intent to gain.

QUESTION 14:

After the requisite preliminary investigation, the Ombudsman approved a resolution finding probable cause against Governor Pedro for violation of the Anti-Graft and Corrupt Practices Act. Governor Pedro filed a Petition for Certiorari with the Sandiganbayan, under the provisions of RA 7975, questioning the factual basis for the resolution. However, the Sandiganbayan dismissed the Petition contending that the Petition should be filed with the Supreme Court pursuant to Sec. 27 of the RA 6770.

Is the Sandiganbayan correct? Explain.

SUGGESTED ANSWER:NO. In Fabian vs. Disierto ( GRN 129742, Sept. 16, 1998) , Sec. 27 of RA 6770, which

authorizes an appeal to the Supreme Court from decisions of the Office of the Ombudsman in administrative disciplinary cases, was declared violative of the proscription in Sec. 30, Art. VI, of the Constitution against a law which increases the appellate jurisdiction of the Supreme Court without its advice and consent. In addition, the Court noted that Rule 45 of the 1997 Rules of Civil Procedure precludes appeals from quasi-judicial agencies, like the Office of the Ombudsman, to the Supreme Court. Consequently, appeals from decisions of the Office of the Ombudsman in administrative cases should be taken to the Court of Appeals under Rule 43, as reiterated in the subsequent case of Namuhe v. Ombudsman.

In both Fabian and Namuhe, the petitions were referred to the Court of Appeals for final disposition and considered as petitions for review under Rule 43 of the 1997 Rules of Civil Procedure. ( Villavert vs. Disierto, GRN 133715, February 23,2000 )

QUESTION 15:

Upon the filing of the Information of Homicide against Pedro, who was then at large, he filed a “Motion to Quash” the Information on the ground of lack of territorial jurisdiction of the Court and a “Motion to Suspend the Issuance of a Warrant of Arrest” pending resolution of his “Motion to Quash.” May Pedro file the Motion to Quash before he is arrested or before he surrenders? Explain.

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SUGGESTED ANSWERS:YES. The Rules provide that “at any time before entering his plea, the accused may

move to quash the complaint or information.” ( Sec. 1, Rule 117 )

QUESTION 16:

Juan was charged of “Frustrated Murder” with the RTC. During the pendency of the trial, the victim of the crime died but the Information was not amended to “ Murder” although the prosecution informed the court of the death of the victim.

If the court finds Juan criminally liable for the killing of the victim, would it be proper for the court to convict Juan of “Murder” ? Explain.

SUGGESTED ANSWER:NO. In the absence of an amendment, with leave of court, to the original complaint of

Frustrated Murder, the accused cannot be convicted of Murder because that it would be in violation of his right to be informed of the nature of the accusation against him. However, such conviction shall not be a bar to the filing of a case for Murder. Sec. 7 of rule 117 provides that the conviction of an accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint when the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge.

QUESTION 17:

Juan was charged of Murder with the RTC. During the trial, the prosecution, over the objection of Juan, presented evidence that the victim of the murder was the illegitimate son of Juan. After the prosecution rested its case, Juan escaped from detention. The court, thereupon, rendered its Decision convicting Juan of parricide with one generic aggravating circumstance and sentenced Juan to death. The court declared in its Decision that the Information was deemed amended to Parricide to conform to evidence.

1.) Was it proper for the court to render judgment after the escape of Juan form detention? Explain.

2.) Is the Decision of the court convicting Juan of parricide on the premise that the information was deemed amended to conform to evidence correct? Explain.

3.) Would it be proper for the court to promulgate its Decision despite the absence of Juan? Explain.

4.) Will the decision of the court become final and executory after the lapse of 15 days form promulgation if Juan is not arrested or does not surrender within said period? Explain.

SUGGESTED ANSWERS:1.) NO. The escape of Juan from detention does not warrant an immediate rendition of

judgment as the trial can proceed in absentia. 2.) NO, because after arraignment during trial , the prosecution cannot alter, add or

modify the accusations stated in the information over the objection of the accused.3.) YES, provided that notice was properly served in accordance with Sec. 6 of Rule 120

of the Revised Rules in Criminal Procedure. The said rule provides that if the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address.

4.) YES, if Juan does not surrender within 15 days from promulgation of judgment, he shall lose the remedies available in the Rules.

QUESTION 18:

What court has exclusive original jurisdiction over the following offenses?1.) Libel punishable with prision correccional in its minimum and medium periods or a fine

from P 2 00 to P 6,000, or both;2.) Violation of BP 22 covering a check in the amount of P300,000

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SUGGESTED ANSWERS:1.) The Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts

have jurisdiction since the imposable penalty does not exceed four years and two months and a fine of not more than four thousand pesos. ( Sec. 31 [2] of BP 129 )

2.) The jurisdiction for violation of BP 22 belongs to the aforesaid courts because it is now governed by the Rules on Summary Procedure.

QUESTION 19:

Under what circumstances may the MTC issue a warrant of arrest under the Rules on Summary Procedure? Explain.

SUGGESTED ANSWER:Section 16 of the Revised Rules on Summary Procedure provides that “ the court shall

not order the arrest of the accused unless for failure to appear whenever required. Xxxxxx”

QUESTION 20:

May the Accused file a “Demurrer to Evidence” under the Rules on Summary Procedure? Explain.

SUGGESTED ANSWER:YES. A petition for Demurrer to Evidence is not among the prohibited pleadings under

the Rules on Summary Procedure.

QUESTION 21:

Pedro was charged of the crime of squatting penalized by PD 772. Pedro, in turn, filed a civil complaint against Juan, the Private Complainant in the criminal case, claiming ownership over the said property. Thereafter, Pedro filed, in the criminal case, a motion to suspend the proceedings on the ground of a prejudicial question. The court issued an Order granting the said motion. While Pedro was adducing evidence in the civil case, PD 772 was absolutely repealed.

Is the order of the court suspending the criminal case for squatting, on the ground of a prejudicial question correct? Explain.

SUGGESTED ANSWER:NO. It has been held that a prejudicial question that which must precede the criminal

case and the resolution of which is detrminative of the innocence or guilt of the accused. In this case, the civil case was filed after the institution of the criminal case, thus, it is not a prejudicial question.

QUESTION 22:

May the filiation of illegitimate children be proved by hearsay evidence? Explain.

SUGGESTED ANSWER:YES, under Section 30 of Rule 130, pedigree may be proved by acts or declarations of

relatives ( whether legitimate or illegitimate since the law does not distinguish) provided that: (a) the actor or declarant is dead or unable to testify; (b) the act or declaration is made by a person related to the subject by birth or marriage; (c) the relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration; and (d) the act or declaratioin was made ante litem mortam, or prior to the controversy. QUESTION 23:

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If an Accused executed a valid extrajudicial confession, may he be convicted of the crime charges if the Prosecution adduced, in addition to the confession, only circumstancial evidence to prove corpus delicti? Explain.

SUGGESTED ANSWER:YES. Section 3 of Rule 133 states that a mere voluntary extrajudicial confession

uncorroborated by independent proof of the corpus delicti is not sufficient to sustain a judgment of conviction. There must be independent proof of the corpus delicti. The evidence may be circumstantial but just the same, there should be some evidence substantiating the confession. ( US vs. De la Crux, 2 Phil. 148 )

QUESTION 24:

Would you answer to the immediately preceding question be the same if the Prosecution adduced, an addition to the confession, only substantial evidence to prove corpus delicti? Explain.

SUGGESTED ANSWER:YES. What is required is that some evidence apart from the confession would tend to

show that the crime was in fact committed. This may be supplied by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

QUESTION 25:

Lucio was charged of Parricide. Upon arraignment, Lucio pleaded not guilty. During pre-trial, Lucio, with the assistance of counsel, admitted that the deceased was his wife and that he killed her. The court issued a Pre-Trial Order embodying the admissions of Lucio during the pre-trial. Both Lucio and his counsel signed the Pre-Trial Order.

1.) Are the admissions of Lucio during the pre-trial judicial admission against penal interest? Explain.

2.) Would your answer be the same if the admissions of Lucio, during the pre-trial, were not embodied in a “Pre-Trial Order” of the Court? Explain.

3.) If the Court rendered a Decision convicting Lucio of Parricide on the basis of his Admissions during the pre-trial embodied in the Pre-Trial Order of the Court, is not Lucio thereby deprived of his right to adduce evidence in his behalf? Explain.

SUGGESTED ANSWERS:1.) YES. The testimony of the accused in a parricide case to the effect that he was

married to the victim is an admission against his penal interest and can sustain his conviction even in the absence if independent evidence to prove such marriage. ( People vs. Aling, L-38833, March 12, 1980 ). The same can be applied to the admission made by the accused during the pre-trial.

2.) NO. Where the admission is not embodied in the Pre-trial Order, the same cannot be used against the accused.

3.) NO. The admission of the accused in embodied in the Pre-trial order, being a judicial admission, does not require further proof. The admitter can no longer contradict such admission unless to show that it was made through palpable mistake or that no such admission was made.

CALLEJO NOTES in LEGAL ETHICS

PRACTICE OF LAW

NOTARY PUBLIC

Heck filed a complaint praying for the disbarment of retired Judge Santos. It was alleged that Judge Santos, prior to his appointment as RTC judge, notarized documents without the requisite

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notarial commission therefor. Should a retired judge charged with notarizing documents without the requisite notarial commission more than twenty years ago be disciplined for such delinquency?

YES. It is settled that a judge may be disciplined for acts committed prior to his

appointment to the judiciary. Although the judge has already retired from the judiciary, he is still considered as a member of the bar and as such, is not immune to the disciplining arm of the Supreme Court. The fact that a judge has retired or has otherwise been separated from the service does not necessarily divest the Court of its jurisdiction to determine the veracity of the allegations of the complaint, pursuant to its disciplinary authority over members of the bench. An administrative complaint against an erring lawyer who was thereafter appointed as a judge, albeit filed only twenty-four years after the offending act was committed, is not barred by prescription. It is the duty of this Court to protect the integrity of the practice of law as well as the administration of justice. No matter how much time has elapsed from the time of the commission of the act complained of and the time of the institution of the complaint, erring members of the bench and bar cannot escape the disciplining arm of the Court. Accordingly, it must be remembered that notarization is invested with public interest, such that only those who are qualified or authorized may act as notaries public. The Court has characterized a lawyer's act of notarizing documents without the requisite commission therefore as "reprehensible, constituting as it does not only constitute malpractice, but also the crime of falsification of public documents." For such reprehensible conduct, the Court has sanctioned erring lawyers by suspension from the practice of law, revocation of the notarial commission and disqualification from acting as such, and even disbarment. Time and again, we have stressed the settled principle that the practice of law is not a right but a privilege bestowed by the State on those who show that they possess the qualifications required by law for the conferment of such privilege. Possession of good moral character is not only a prerequisite to admission to the bar but also a continuing requirement to the practice of law. A high sense of morality, honesty, and fair dealing is expected and required of a member of the bar. By his actuations, Judge Santos failed to live up to such standards; he undermined the confidence of the public on notarial documents and thereby breached Canon I of the CPR, which requires lawyers to uphold the Constitution, obey the laws of the land and promote respect for the law and legal processes. (HEINZ R. HECK vs. JUDGE ANTHONY E. SANTOS, REGIONAL TRIAL COURT, BRANCH 19, CAGAYAN DE ORO CITY [A.M. No. RTJ-01-1657. February 23, 2004.])

DUTY OF A SHERIFF

Daguman is a special assistant of the Spouses Oscar Martin and Mercedes Yvette Lopez and is authorized to represent and attend the auction sale of their property. The auction was to be held at 10:00 a.m. on August 28, 2002, at the Muntinlupa City Hall Quadrangle, National Road, Putatan, City of Muntinlupa. Daguman reported to the Office of the Clerk of Court of the RTC of Muntinlupa City, while Sheriff Bagabaldo arrived at his office at about 11:40 a.m. The sheriff assured Daguman that the auction sale would be conducted after the lunch break, upon the arrival of the mortgagee's representative. Daguman then returned to the sheriff's office at 1:05 p.m., and, to his surprise, the latter informed him that the auction sale had already been conducted at 12:20 p.m. The sheriff showed him the minutes of the auction sale indicating that the subject property was "sold" to DBS Bank of the Philippines, Inc. A complaint for dereliction of duty was filed against the sheriff. Should the sheriff be held guilty of dereliction of duty?

YES. By his actuations, the sheriff displayed conduct short of the stringent standards required of court employees. He is guilty of simple neglect of duty, which has been defined as the failure of an employee to give one's attention to a task expected of him, and signifies a disregard of a duty resulting from carelessness or indifference. Sheriffs play an important role in the administration of justice and as agents of the law, high standards are expected of them. The sheriff should be reminded that as an officer of the court, he should at all times show a high degree of professionalism in the performance of his duties. The imperative and sacred duty of each and everyone in the court is to maintain its good name and standing as a temple of justice. The Court condemns and would never countenance any conduct, act or omission on the part of

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all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary. (RENATO M. DAGUMAN vs. MELVIN T. BAGABALDO [A.M. No. P-04-1799. March 31, 2004.])

A notice to vacate was issued by Sheriff Amoranto regarding a writ of execution that was issued by a judge. Thereafter, the order was enforced, however, the subject ejectment was actually and illegally executed at a different premise than that referred to in the order. Should the sheriff be held liable for negligence?

YES. The unfortunate incident could have been avoided had the sheriff observed due care and diligence in ascertaining the exact location of the property subject of the execution. The sheriff is a ranking officer of the court, a public official entrusted with a fiduciary role. He plays an important part in the administration of justice and is called upon to discharge his duties with integrity, due care and circumspection. Anything less is unacceptable. This is because in serving the court's writs and processes and in implementing the orders of the court, sheriffs cannot afford to err without affecting the efficiency of the process of the administration of justice. Good faith on the part of the sheriff, or lack of it, in proceeding to properly execute his mandate would be of no moment, for he is chargeable with the knowledge that being an officer of the court tasked therefore, it behooves him to make due compliances. His duty in the execution of a writ is purely ministerial; he is to execute the order of the court strictly to the letter. (ANDY LOBREGAT vs. CENEN L. AMORANTO, SHERIFF III, BRANCH 36, MeTC, QUEZON CITY [A.M. No. P-04-1781. February 18, 2004.])

Notices to vacate were served to residents of San Isidro, Makati by Sheriffs Camposano and Acle. A few days thereafter, the sheriffs together with police escorts and a demolition team went to the barangay to implement the demolition order. The demolition was not implemented due to the strong resistance put up by the affected residents, including the Eberos. A heated argument ensued. In the course of the argument, the sheriffs ordered the police escorts to place the Eberos inside the patrol vehicle and bring them to Makati Police Station. A complaint for obstruction of justice were filed against the Eberos and they were detained and were released only when the charge of obstruction of justice was dismissed by the inquest prosecutor. The Eberos then filed an administrative complaint against the sheriffs. Should the sheriffs be held liable even if no adequate evidence was presented by the Eberos?

NO. The quantum of proof necessary for a finding of guilt is substantial evidence or such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. The presumption of regularity in the performance by the sheriffs of their duties must prevail. Allegations of the Eberos are not supported by those of another witness; neither are the contentions of respondents corroborated by those of another witness. In other words, the evidence on record deals only with the word of complainants to be pitted against that of respondents. Sheriff's duty to execute a judgment is ministerial. In the implementation of writs of demolition, as in the instant case, the sheriffs are mandated to use reasonable and necessary force to see that the judgment debtors vacate the premises. (INOCENCIO D. EBERO and JUANITO D. EBERO vs. MAKATI CITY SHERIFFS RAUL T. CAMPOSANO and BAYANI T. ACLE [A.M. No. P-04-1792. March 12, 2004])

ADMINISTRATIVE CASE; DESISTANCE OF COMPLAINANT

Guinto filed an election case against Manlastas which requires the revision of a number of ballot boxes. Judge Flores who is handling the case appointed a revision committee which thereafter submitted its report to the court. Judge Flores then issued an Order declaring the case submitted for decision despite Manalastas’ objections and demands for a hearing. A complaint was thereafter filed against Judge Flores. Thereafter, the complainant withdrew his complaint. Should Judge Flores be held administratively liable even if the complainant already withdrew his complaint?

YES, Judge Flores is administratively liable. The withdrawal of the complaint or the execution of an affidavit of desistance does not automatically result in the dismissal of an

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administrative case. To condition as administrative action upon the will of the complainant, who for one reason or another, condones a detestable act, would be to strip this Court of its power to supervise and discipline erring members of the judiciary. The withdrawal of the complaints cannot divest the Court of its jurisdiction nor deprive of its power to determine the veracity of the charges made and to discipline, such as the results of its investigation may warrant, an erring respondent. (MANALASTAS VS. JUDGE FLORES [A.M. No. MTJ-04-1523. Feb. 06, 2004.])

Does the dismissal or withdrawal of charges and the desistance of witnesses automatically result in the dismissal of an administrative case?

NO. The withdrawal of the complaint does not have the legal effect of automatically exonerating the respondent from any administrative disciplinary action. It does not operate to divest this Court with jurisdiction to determine the truth behind the matter stated in the complaint. Furthermore, the need to maintain the faith and confidence of the people in the government and its agencies and instrumentalities should not be made to depend on the whims and caprices of the complainants who are, in a real sense, only witnesses therein. (ARTEMIO SABATIN vs. JUDGE EFREN B. MALLARE [A.M. No. MTJ-04-1537. March 25, 2004.])

ADMINISTRATIVE CASE; BURDEN OF PROOF

Montes is the accused in a criminal case for estafa which is being heard by Judge Mallare. Montes then filed a complaint against Judge Mallare for allegedly conspiring with the complainant in the criminal case in having him arrested and jailed. The complaint filed by Montes was referred to an executive judge for investigation, report and recommendation. The case was scheduled for hearing but the notice thereof to Montes was returned unserved. According to the Sheriff, Montes changed residence without leaving a forwarding address. The hearing of the case was reset to another date but Montes again failed to appear. The Executive Judge recommended that as the complainant presented no evidence at all to substantiate the charges against Judge Mallare, the complaint should be dismissed for lack of evidence. Thereafter, the Office of the Court Administrator received a letter from Montes requesting that the Executive Judge be discharged as the investigating officer on the averment that he likewise instituted a complaint against the Executive Judge but it was dismissed. Is there merit in the complaint?

NONE. It must be stressed that in administrative proceedings, the complainant has the burden of proving the allegations in his complaint with substantial evidence. In the absence of evidence to the contrary, the presumption that the respondent has regularly performed his duties will prevail. Even in administrative cases, if a respondent judge should be disciplined for a grave offense, the evidence against him should be competent and should be derived from direct knowledge. In this case, the complainant failed to substantiate the charges he made against the respondent judge, let alone appear before the investigating magistrate to prove his allegations. While it is our duty to investigate and determine the truth behind every matter in complaints against judges and other court personnel, it is also our duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its responsibility of imposing discipline upon its magistrates, but neither will it hesitate to shield them from unfounded suits that serve to disrupt rather than promote the orderly administration of justice. (MONTES VS. JUDGE MALLARE [A.M. NO. MTJ-04-1528. Feb. 06, 2004])

CODE OF PROFESSIONAL RESPONSIBILTY

CONFLICT OF INTEREST

Atty. Sorsogon was Nava’s counsel for many years but due to the lawyer’s health condition, he withdrew as her counsel. However, Atty. Sorsogon allegedly represented another client in a case against Nava. Atty. Sorsogon is insisting that the attorney-client relationship between him and Nava had ceased and that his health incapacitated him from further performing his obligations. Should Atty. Sorsogon be held liable for violating the Code of Professional Responsibility by

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representing clients with conflicting interests even if no formal investigation was mad by the IBP?

YES. At the time respondent accepted his engagement as counsel for another client and filed a case against the complainant, he was still acting as counsel for the latter in a number of cases. In complaints for disbarment, a formal investigation is a mandatory requirement. The Court may dispense with the normal referral to the Integrated Bar of the Philippines if the records are complete and the question raised is simple. Similarly, if no further factual determination is necessary, the Court may decide the case on the basis of the extensive pleadings on record. Complaints against lawyers for misconduct are normally addressed to the Court. If, at the outset, the Court finds a complaint to be clearly wanting in merit, it outrightly dismisses the case. If, however, the Court deems it necessary that further inquiry should be made, such as when the matter could not be resolved by merely evaluating the pleadings submitted, a referral is made to the IBP for a formal investigation of the case during which the parties are accorded an opportunity to be heard. (MERCEDES NAVA vs. ATTY. BENJAMIN P. SORSOGON [A.C. No. 5442. January 26, 2004])

ATTORNEY’S FEES

A deed of sale covering a parcel of land located in Baguio was executed by Malecdan and Eliza Fanged. The amount paid by the former was received by Eliza Fanged and deposited in the account of Atty. Artemio Bustamante, then counsel for the latter. It was found out later by Malecdan that the land is subject to a controversy. When Atty. Bustamante refused to release the proceeds of the sale to Eliza Fanged, the latter, through her new counsel respondent Atty. Kollin, filed a complaint for rescission of contract. A compromise agreement was then executed wherein Malecdan was not a signatory as she was in the United States at the time. The money was then transferred to the respective accounts as prayed for in the compromise settlement. Thereafter, Malecdan filed a complaint charging Atty. Kollin, with violation of the lawyer's oath, on the account that the lawyer knowingly caused the withdrawal from the bank of the purchase price of the lot in question, despite their knowledge of a defect in their client's right to claim the said amount. Does the lawyer have the right to apply the subject amount as payment of their professional fees despite the existence of a dispute on the legality of the amount?

NONE. A lawyer may legally apply a client's funds in his possession to satisfy professional fees which the client owes him, in the absence of any dispute as to the legality of the amount thereof. However, the fact that a lawyer has a lien for his fees on the client's money in his possession or the circumstance that the client owes him more than the client's funds in his hands may not excuse him from making an accounting nor entitle him to unilaterally apply the client's money to satisfy his disputed claims. It is a settled principle that the compensation of a lawyer should be but a mere incident of the practice of law, the primary purpose of which is to render public service. The practice of law is a profession and not a money-making trade. As they are an indispensable part of the system of administering justice, attorneys must comply strictly with the oath of office and the canons of professional ethics — a duty more than imperative during these critical times when strong and disturbing criticisms are hurled at the practice of law. Canon 1 of the Code of Professional Responsibility mandates all members of the bar to obey the laws of the land and promote respect for the law. Rule 1.01 of the Code specifically provides that "a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct." A lawyer is expected, at all times, to uphold the integrity of the legal profession. Whenever it is made to appear that a lawyer is no longer worthy of the trust and confidence of the public, it becomes not only the right but the duty of the Court which made him one of its officers and gave him the privilege of ministering within its bar to withdraw the privilege. (MARY D. MALECDAN vs. ATTY. PERCIVAL L. PEKAS and ATTY. MATTHEW P. KOLLIN [A.C. No. 5830. January 26, 2004.])

CODE OF JUDICIAL CONDUCT

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GROSS IGNORANCE OF LAW

Cortes filed an administrative complaint against three Justices claiming that the proceedings made before the Sandiganbayan were irregular, as it terminated the case without the defense having conducted a cross-examination on him to rebut the direct testimonies against the accused. Cortes also questioned the pronouncement made by the Sandiganbayan that "he slept on his rights" for failing to redeem the property in question within the one-year period as required under the law. He avers that there was no need for him to redeem the property as the auction sale was not duly registered with the Register of Deeds of the Province of Bataan, hence, null and void. Should the complaint filed by Cortes prosper?

NO. It must be stressed that as a matter of policy, the acts of a judge in his judicial capacity are not subject to disciplinary action. He cannot be subjected to liability — civil, criminal or administrative — for any of his official acts, no matter how erroneous, as long as he acts in good faith. Only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do an injustice will be administratively sanctioned. To hold otherwise would be to render judicial office untenable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. The provisions of Article 204 of the Revised Penal Code as to "rendering knowingly unjust judgment" refer to an individual judge who does so "in any case submitted to him for decision" and has no application to the members of a collegiate court such as the Sandiganbayan or its divisions, who reach their conclusions in consultation and accordingly render their collective judgment after due deliberation. The remedy of the aggrieved party is not to file an administrative complaint against the judge, but to elevate the assailed decision or order to the higher court for review and correction. An administrative complaint is not an appropriate remedy where judicial recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari, unless the assailed order or decision is tainted with fraud, malice, or dishonesty. (LEONIDES T. CORTES vs. SANDIGANBAYAN JUSTICES MINITA V. CHICO-NAZARIO, MA. CRISTINA G. CORTEZ-ESTRADA and RODOLFO G. PALATTAO [A.M. No. SB-04-11-J. February 13, 2004.])

A complaint was filed against Judge Pamintuan for ignorance of the law and arrogance. It was alleged that in seventeen different cases, Judge Pamintuan had misapplied the Indeterminate Sentence Law. Furthermore, complainants also alleged that Judge Pamintuan insults lawyers by means of intemperate and harsh words in the presence of litigants in public and that he verbally assault lawyers. Furthermore, he promulgated decisions with copies thereof not readily released to the parties. Should Judge Pamintuan be disciplined administratively?

YES. The application of the Indeterminate Sentence Law in the imposition of penalties in crimes punishable by the Revised Penal Code is a basic precept. Judge Pamintuan’s repeated misapplication thereof in quite a number of criminal cases he had rendered constitutes gross ignorance of the law. A judge is presumed to know the law and when the law is so elementary, not to be aware of it constitutes gross ignorance of the law. Indeed, judges are duty bound to have more than a cursory acquaintance with laws and jurisprudence. Failure to follow basic legal commands constitutes gross ignorance of the law from which no one may be excused, not even a judge. With regards to the other allegation, a judge should be courteous both in his conduct and in his language especially to those appearing before him. He can hold counsels to a proper appreciation of their duties to the court, their clients, and the public without being petty, arbitrary, overbearing, or tyrannical. He should refrain from conduct that demeans his office and remember always that courtesy begets courtesy. Above all, he must conduct himself in such a manner that he gives no reason for reproach. Clearly, the respondent judge has failed to observe courtesy and civility to the lawyers as well as to the litigants who appeared before him. The Court frowns upon the highly irregular practice of the respondent judge of promulgating a decision, copies of which were not then ready for release to the parties. (THE OFFICERS AND MEMBERS OF THE IBP BAGUIO-BENGUET CHAPTER vs. FERNANDO VIL PAMINTUAN [A.M. No. RTJ-02-1691. January 16, 2004.])

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Should a judge be held administratively liable for ignorance of the law for granting bail to an accused in a criminal case without the requisite bail hearing, and despite the fact that there was an eyewitness to the murder who made a positive identification of the accused?

YES. It is already settled that when a judge grants bail to a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment without conducting the required bail hearing, he is considered guilty of ignorance or incompetence the gravity of which cannot be excused by a claim of good faith or excusable negligence. When a judge displays an utter unfamiliarity with the law and the rules, he erodes the confidence of the public in the courts. A judge owes the public and the court the duty to be proficient in the law and is expected to keep abreast of laws and the prevailing jurisprudence. Ignorance of the law by a judge can easily be the mainspring of injustice. (JOCELYN V. GRAGEDA vs. JUDGE NIETO T. TRESVALLES [A.M. MTJ No. 04-1526. February 2, 2004])

PROMPT DISPOSITION OF CASES

Imbang is the plaintiff in a case involving a collection of money with damages. Judge del Rosario failed to decide on the case within the 90-day reglementary period and even after the lapse of ten months, the judge had not yet resolved the case. Should Judge del Rosario be sanctioned administratively for his failure to resolve a case within the reglementary period?

YES. The Failure Of A Judge To Immediately Resolve Pending Motions and to Decide Cases Within The 90-Day Reglementary Period Constitutes Gross Inefficiency. Rule 3.05 of The Code of Judicial Conduct requires judges to dispose of the court's business promptly and to act, one way or the other, on cases pending before him within the prescribed period therefore. Undue delay in resolving a pending motion constitutes gross inefficiency. Delay results in undermining the people's faith in the judiciary and from whom the prompt hearing of their supplications is anticipated and expected, and reinforces in the mind of the litigants the impression that the wheels of justice grind ever so slowly. Certainly, undue delay cannot be countenanced at a time when the clogging of the court dockets is still the bane of the judiciary. Judges are expected to observe utmost diligence and dedication in the performance of their judicial functions and the discharge of their duties. Judge Del Rosario is meted with a fine in the amount of Ten Thousand Pesos. (DOLORES IMBANG vs. JUDGE DEOGRACIAS K. DEL ROSARIO [A.M. No. MTJ-03-1515. February 3, 2004.])

Should a judge be disciplined for his failure to decide the election cases within the reglementary period?

YES. Judges should dispose of court business promptly within the period prescribed by law or the extended time granted them by this Court. This is mandated by Rule 3.05 of Canon 3 of the Code of Judicial Conduct, and by no less than the Constitution itself. Canon 6 reminds a judge to be prompt in disposing of all matters submitted to him or her, remembering that justice delayed is often justice denied. Delay in the disposition of cases erodes the faith and confidence of the public in the institution of justice, lowers its standards and brings them into disrepute. Every judge must cultivate a capacity for quick decision; he must not delay the judgment which a party justly deserves. The public trust reposed in a judge’s office imposes upon him the highest degree of responsibility to promptly administer justice. The Court, however, is not unaware of the heavy caseload of judges and the rigors of travel that they sometimes have to make because of detail to vacant salas. It is precisely for this reason that the Court has been sympathetic to requests for extensions of time within which to decide cases and resolve matters and incidents related thereto. Indeed, the Court allows a certain degree of latitude to judges and grants them a reasonable extension of time to decide and resolve cases upon proper application by the judge concerned and on meritorious grounds. (ROMERO TEODOSIO, ROLANDO RICO vs. HON. JUDGE ARTURO R. CARPIO [A. M. No. MTJ-02-1416. February 27, 2004])

PARTIALITY

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Does a judge’s active participation during the hearing of the writ of preliminary injunction amount to an evident display of his bias and partiality in favor of the private respondents and should he therefore disqualify himself from further hearing the civil case?

NO. Paragraph (2), Section 1 of Rule 137, Rules of Court, provides that a judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned in the said provision. But it does not give judges the unfettered discretion to decide whether to desist from hearing a case. The inhibition must be for just and valid reasons. The mere imputation of bias or partiality is not enough ground for them to inhibit, especially when the charge is without basis. Mere intervention of the respondent judge during the hearing of preliminary injunction by simply asking the materiality of a question directed upon the witness and ruling against the petitioners are within the prerogatives and powers of the judge. The fact that the judge asked questions in the course of the trial does not make him a biased judge. It is not only the right but also the duty of a trial judge to examine witnesses when it appears necessary for the elucidation of the record. A judge may also properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time and clarify obscure and incomplete details after the witness has given direct testimony. Mere suspicion of partiality is not enough. There should be hard evidence to prove it, as well as a manifest showing of bias and partiality stemming from extrajudicial source or some other basis. In the absence of clear and convincing evidence to prove the charge, a ruling not to inhibit oneself cannot just be overturned. Furthermore, just because the opinion of a party is at variance with that of the judge, the former cannot use it as an excuse to hurl imputations of unfairness and partiality in the absence of clear and convincing proof. (SPOUSES LEOPOLDO HIZON and PERLITA DELA FUENTE HIZON vs. SPOUSES GIGI DELA FUENTE and JOSEPHINE MANGAHAS, SPOUSES JORGE MAGBITANG and ADELAIDA VILLACORTA MAGBITANG [G.R. No. 152328. March 23, 2004.]