Pre Sons

EN BANCG.R. No. L-63915 April 24, 1985LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs.HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents. ESCOLIN, J.:Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1

as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.Specifically, the publication of the following presidential issuances is sought:a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-

1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering

that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case.Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ...The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ...The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no

basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication.The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.Consistently with the above principle, this Court in Rutter vs. Esteban 9

sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.SO ORDERED.

FIRST DIVISIONA.M. No. MTJ-00-1329 March 8, 2001(Formerly A.M. No. OCA IPI No. 99-706-MTJ)HERMINIA BORJA-MANZANO, petitioner, vs.JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent.R E S O L U T I O NDAVIDE, JR., C.J.:The solemnization of a marriage between two contracting parties who were both bound by a prior existing marriage is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan. For this act, complainant Herminia Borja-

Manzano charges respondent Judge with gross ignorance of the law in a sworn Complaint-Affidavit filed with the Office of the Court Administrator on 12 May 1999.Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City.1 Four children were born out of that marriage.2 On 22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao before respondent Judge.3 When respondent Judge solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the marriage contract clearly stated that both contracting parties were "separated."Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been living together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint affidavit.4 According to him, had he known that the late Manzano was married, he would have advised the latter not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed for lack of merit and for being designed merely to harass him.After an evaluation of the Complaint and the Comment, the Court Administrator recommended that respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000, with a warning that a repetition of the same or similar act would be dealt with more severely.On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the case for resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative.For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and setting aside his earlier Comment. He therein invites the attention of the Court to two separate affidavits5 of the late Manzano and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those affidavits, both David Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja and Domingo Relos, respectively; and that since their respective marriages had been marked by constant quarrels, they had both left their families and had never cohabited or communicated with their spouses anymore. Respondent Judge alleges that on the basis of those affidavits, he agreed to solemnize the marriage in question in accordance with Article 34 of the Family Code.

We find merit in the complaint.Article 34 of the Family Code provides:No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur:1. The man and woman must have been living together as husband and wife for at least five years before the marriage;2. The parties must have no legal impediment to marry each other;3. The fact of absence of legal impediment between the parties must be present at the time of marriage;4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage.6

Not all of these requirements are present in the case at bar. It is significant to note that in their separate affidavits executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and Luzviminda Payao expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was indicated that both were "separated."Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void.7 In fact, in his Comment, he stated that had he known that the late Manzano was married he would have discouraged him from contracting another marriage. And respondent Judge cannot deny knowledge of Manzano’s and Payao’s subsisting previous marriage, as the same was clearly stated in their separate affidavits which were subscribed and sworn to before him.The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal separation does not dissolve the

marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar.Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao stating that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for respondent Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage.Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous marriage. The maxim "ignorance of the law excuses no one" has special application to judges,8 who, under Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is highly imperative that judges be conversant with the law and basic legal principles.9 And when the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law.10

ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to P20,000.SO ORDERED.A.M. No. MTJ-92-706 March 29, 1995LUPO ALMODIEL ATIENZA, complainant, vs.JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28, Manila, respondent.QUIASON, J.:This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against Judge Francisco Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila.Complainant alleges that he has two children with Yolanda De Castro, who are living together at No. 34 Galaxy Street, Bel-Air Subdivision, Makati, Metro Manila. He stays in said house, which he purchased in 1987, whenever he is in Manila.In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his (complainant's) bed. Upon inquiry, he was told by the houseboy that respondent had been cohabiting with De Castro.

Complainant did not bother to wake up respondent and instead left the house after giving instructions to his houseboy to take care of his children.Thereafter, respondent prevented him from visiting his children and even alienated the affection of his children for him.Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five children, as appearing in his 1986 and 1991 sworn statements of assets and liabilities. Furthermore, he alleges that respondent caused his arrest on January 13, 1992, after he had a heated argument with De Castro inside the latter's office.For his part, respondent alleges that complainant was not married to De Castro and that the filing of the administrative action was related to complainant's claim on the Bel-Air residence, which was disputed by De Castro.Respondent denies that he caused complainant's arrest and claims that he was even a witness to the withdrawal of the complaint for Grave Slander filed by De Castro against complainant. According to him, it was the sister of De Castro who called the police to arrest complainant.Respondent also denies having been married to Ongkiko, although he admits having five children with her. He alleges that while he and Ongkiko went through a marriage ceremony before a Nueva Ecija town mayor on April 25, 1965, the same was not a valid marriage for lack of a marriage license. Upon the request of the parents of Ongkiko, respondent went through another marriage ceremony with her in Manila on June 5, 1965. Again, neither party applied for a marriage license. Ongkiko abandoned respondent 17 years ago, leaving their children to his care and custody as a single parent.Respondent claims that when he married De Castro in civil rites in Los Angeles, California on December 4, 1991, he believed, in all good faith and for all legal intents and purposes, that he was single because his first marriage was solemnized without a license.Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage before a party thereto can enter into a second marriage. Article 40 of said Code provides:The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.Respondent argues that the provision of Article 40 of the Family Code does not apply to him considering that his first marriage took place in 1965 and was governed by the Civil Code of the Philippines; while the second marriage took place in 1991 and governed by the Family Code.

Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code, said Article is given "retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." This is particularly true with Article 40, which is a rule of procedure. Respondent has not shown any vested right that was impaired by the application of Article 40 to his case.The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected (Gregorio v. Court of Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws (Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]).Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of marriage and employed deceit to be able to cohabit with a woman, who beget him five children.Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963. At the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer. Yet, he never secured any marriage license. Any law student would know that a marriage license is necessary before one can get married. Respondent was given an opportunity to correct the flaw in his first marriage when he and Ongkiko were married for the second time. His failure to secure a marriage license on these two occasions betrays his sinister motives and bad faith.It is evident that respondent failed to meet the standard of moral fitness for membership in the legal profession.While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial Judge, his immoral and illegal act of cohabiting with De Castro began and continued when he was already in the judiciary.The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of impropriety, not only with respect to his performance of his judicial duties but also as to his behavior as a private individual. There is no duality of morality. A public figure is also judged by his private life. A judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must behave with propriety at all times, in the performance of his judicial duties and in his everyday life. These are judicial guideposts too self-evident to be overlooked. No position exacts a greater demand on

moral righteousness and uprightness of an individual than a seat in the judiciary (Imbing v. Tiongzon, 229 SCRA 690 [1994]).WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement benefits and with prejudice to reappointment in any branch, instrumentality, or agency of the government, including government-owned and controlled corporations. This decision is immediately executory.SO ORDERED.FIRST DIVISIONG.R. No. 133978 November 12, 2002JOSE S. CANCIO, JR., represented by ROBERTO L. CANCIO, petitioner, vs.EMERENCIANA ISIP, respondent.D E C I S I O NYNARES-SANTIAGO, J.:The instant petition for review under Rule 45 of the Rules of Court raises pure questions of law involving the March 20, 19981 and June 1, 19982

Orders3 rendered by the Regional Trial Court of Pampanga, Branch 49, in Civil Case No. G-3272.The undisputed facts are as follows:Petitioner, assisted by a private prosecutor, filed three cases of Violation of B.P. No. 22 and three cases of Estafa, against respondent for allegedly issuing the following checks without sufficient funds, to wit: 1) Interbank Check No. 25001151 in the amount of P80,000.00; 2) Interbank Check No. 25001152 in the amount of P 80,000.00; and 3) Interbank Check No. 25001157 in the amount of P30,000.00.4

The Office of the Provincial Prosecutor dismissed Criminal Case No. 13356, for Violation of B.P. No. 22 covering check no. 25001151 on the ground that the check was deposited with the drawee bank after 90 days from the date of the check. The two other cases for Violation of B.P. No. 22 (Criminal Case No. 13359 and 13360) were filed with and subsequently dismissed by the Municipal Trial Court of Guagua, Pampanga, Branch 1, on the ground of "failure to prosecute."5

Meanwhile, the three cases for Estafa were filed with the Regional Trial Court of Pampanga, Branch 49, and docketed as Criminal Case Nos. G-3611 to G-3613. On October 21, 1997, after failing to present its second witness, the prosecution moved to dismiss the estafa cases against respondent. The prosecution likewise reserved its right to file a separate civil action arising from the said criminal cases. On the same date, the trial court granted the motions of the prosecution. Thus-

Upon motion of the prosecution for the dismissal of these cases without prejudice to the refiling of the civil aspect thereof and there being no comment from the defense, let these cases be dismissed without prejudice to the refiling of the civil aspect of the cases.SO ORDER[ED].6

On December 15, 1997, petitioner filed the instant case for collection of sum of money, seeking to recover the amount of the checks subject of the estafa cases. On February 18, 1998, respondent filed a motion to dismiss the complaint contending that petitioner’s action is barred by the doctrine of res judicata. Respondent further prayed that petitioner should be held in contempt of court for forum-shopping.7

On March 20, 1998, the trial court found in favor of respondent and dismissed the complaint. The court held that the dismissal of the criminal cases against respondent on the ground of lack of interest or failure to prosecute is an adjudication on the merits which amounted to res judicata on the civil case for collection. It further held that the filing of said civil case amounted to forum-shopping.On June 1, 1998, the trial court denied petitioner’s motion for reconsideration.8 Hence, the instant petition.The legal issues for resolution in the case at bar are: 1) whether the dismissal of the estafa cases against respondent bars the institution of a civil action for collection of the value of the checks subject of the estafa cases; and 2) whether the filing of said civil action violated the anti-forum-shopping rule.An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of the Revised Penal Code;9 and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as felony [e.g. culpa contractual or obligations arising from law under Article 3110 of the Civil Code,11 intentional torts under Articles 3212 and 34,13

and culpa aquiliana under Article 217614 of the Civil Code]; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action [Article 33,15 Civil Code].16 Either of these two possible liabilities may be enforced against the offender subject, however, to the caveat under Article 2177 of the Civil Code that the offended party "cannot recover damages twice for the same act or omission" or under both causes.17

The modes of enforcement of the foregoing civil liabilities are provided for in the Revised Rules of Criminal Procedure. Though the assailed order of the trial court was issued on March 20, 1998, the said Rules, which took effect

on December 1, 2000, must be given retroactive effect in the instant case considering that statutes regulating the procedure of the court are construed as applicable to actions pending and undetermined at the time of their passage.18

Section 1, Rule 111, of the Revised Rules of Criminal Procedure provides:SECTION 1. Institution of criminal and civil actions. – (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.x x x x x x x x xWhere the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.Under the 1985 Rules on Criminal Procedure, as amended in 1988 and under the present Rules, the civil liability ex-delicto is deemed instituted with the criminal action, but the offended party is given the option to file a separate civil action before the prosecution starts to present evidence.19

Anent the independent civil actions under Articles 31, 32, 33, 34 and 2176 of the Civil Code, the old rules considered them impliedly instituted with the civil liability ex-delicto in the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Under the present Rules, however, the independent civil actions may be filed separately and prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code.20

In the case at bar, a reading of the complaint filed by petitioner show that his cause of action is based on culpa contractual, an independent civil action. Pertinent portion of the complaint reads:x x x x x x x x x

2. That plaintiff is the owner/proprietor to CANCIO’S MONEY EXCHANGE with office address at Guagua, Pampanga;3. That on several occasions, particularly on February 27, 1993 to April 17 1993, inclusive, defendant drew, issued and made in favor of the plaintiff the following checks:CHECK NO. DATE AMOUNT1. Interbank Check No. 25001151 March 10, 1993 P80,000.002. Interbank Check No. 25001152 March 27, 1993 P80,000.003. Interbank Check No. 25001157 May 17, 1993 P30,000.00in exchange of cash with the assurance that the said checks will be honored for payment on their maturity dates, copy of the aforementioned checks are hereto attached and marked.4. That when the said checks were presented to the drawee bank for encashment, the same were all dishonored for reason of DRAWN AGAINST INSUFFICIENT FUNDS (DAIF);5. That several demands were made upon the defendant to make good the checks but she failed and refused and still fails and refuses without justifiable reason to pay plaintiff;6. That for failure of the defendant without any justifiable reason to pay plaintiff the value of the checks, the latter was forced to hire the services of undersigned counsel and agreed to pay the amount of P30,000.00 as attorney’s fees and P1,000.00 per appearance in court;7. That for failure of the defendant without any justifiable reason to pay plaintiff and forcing the plaintiff to litigate, the latter will incur litigation expenses in the amount of P20,000.00.IN VIEW OF THE FOREGOING, it is prayed of this Court that after due notice and hearing a judgment be rendered ordering defendant to pay plaintiff as follows:a. the principal sum of P190,000.00 plus the legal interest;b. attorney’s fees of P30,000.00 plus P1,000.00 per court appearance;c. litigation expenses in the amount of P20,000.00PLAINTIFF prays for other reliefs just and equitable under the premises.x x x x x x x x x.21

Evidently, petitioner sought to enforce respondent’s obligation to make good the value of the checks in exchange for the cash he delivered to respondent. In other words, petitioner’s cause of action is the respondent’s breach of the contractual obligation. It matters not that petitioner claims his cause of action to be one based on delict.22 The nature of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action. The purpose of an action or suit and the law to govern it is to be

determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint itself, its allegations and prayer for relief.23

Neither does it matter that the civil action reserved in the October 21, 1997 order of the trial court was the civil action ex delicto. To reiterate, an independent civil action arising from contracts, as in the instant case, may be filed separately and prosecuted independently even without any reservation in the criminal action. Under Article 31 of the Civil Code "[w]hen the civil action is based on an obligation not arising from the act or omission complained of as a felony, [e.g. culpa contractual] such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter." Thus, in Vitola, et al. v. Insular Bank of Asia and America,24 the Court, applying Article 31 of the Civil Code, held that a civil case seeking to recover the value of the goods subject of a Letter of Credit-Trust Receipt is a civil action ex contractu and not ex delicto. As such, it is distinct and independent from the estafa case filed against the offender and may proceed regardless of the result of the criminal proceedings.One of the elements of res judicata is identity of causes of action.25 In the instant case, it must be stressed that the action filed by petitioner is an independent civil action, which remains separate and distinct from any criminal prosecution based on the same act.26 Not being deemed instituted in the criminal action based on culpa criminal, a ruling on the culpability of the offender will have no bearing on said independent civil action based on an entirely different cause of action, i.e., culpa contractual.In the same vein, the filing of the collection case after the dismissal of the estafa cases against respondent did not amount to forum-shopping. The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Although the cases filed by petitioner arose from the same act or omission of respondent, they are, however, based on different causes of action. The criminal cases for estafa are based on culpa criminal while the civil action for collection is anchored on culpa contractual. Moreover, there can be no forum-shopping in the instant case because the law expressly allows the filing of a separate civil action which can proceed independently of the criminal action.27

Clearly, therefore, the trial court erred in dismissing petitioner’s complaint for collection of the value of the checks issued by respondent. Being an independent civil action which is separate and distinct from any criminal prosecution and which require no prior reservation for its institution, the

doctrine of res judicata and forum-shopping will not operate to bar the same.WHEREFORE, in view of all the foregoing, the instant petition is GRANTED. The March 20, 1998 and June 1, 1998 Orders of the Regional Trial Court of Pampanga, Branch 49, in Civil Case No. G-3272 are REVERSED and SET ASIDE. The instant case is REMANDED to the trial court for further proceedings.SO ORDEREDFIRST DIVISIONG.R. No. 163707 September 15, 2006MICHAEL C. GUY, petitioner, vs.HON. COURT OF APPEALS, HON. SIXTO MARELLA, JR., Presiding Judge, RTC, Branch 138, Makati City and minors, KAREN DANES WEI and KAMILLE DANES WEI, represented by their mother, REMEDIOS OANES, respondents.D E C I S I O NYNARES-SANTIAGO, J.:This petition for review on certiorari assails the January 22, 2004 Decision1

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

signed by their counsel, Atty. Sedfrey A. Ordoñez.

In his Comment/Opposition,7 petitioner prayed for the dismissal of the petition. He asserted that his deceased father left no debts and that his estate can be settled without securing letters of administration pursuant to Section 1, Rule 74 of the Rules of Court. He further argued that private respondents should have established their status as illegitimate children during the lifetime of Sima Wei pursuant to Article 175 of the Family Code. The other heirs of Sima Wei filed a Joint Motion to Dismiss8 on the ground that the certification against forum shopping should have been signed by private respondents and not their counsel. They contended that Remedios should have executed the certification on behalf of her minor daughters as mandated by Section 5, Rule 7 of the Rules of Court. In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss,9

petitioner and his co-heirs alleged that private respondents' claim had been paid, waived, abandoned or otherwise extinguished by reason of Remedios' June 7, 1993 Release and Waiver of Claim stating that in exchange for the financial and educational assistance received from petitioner, Remedios and her minor children discharge the estate of Sima Wei from any and all liabilities.The Regional Trial Court denied the Joint Motion to Dismiss as well as the Supplemental Motion to Dismiss. It ruled that while the Release and Waiver of Claim was signed by Remedios, it had not been established that she was the duly constituted guardian of her minor daughters. Thus, no renunciation of right occurred. Applying a liberal application of the rules, the trial court also rejected petitioner's objections on the certification against forum shopping. Petitioner moved for reconsideration but was denied. He filed a petition for certiorari before the Court of Appeals which affirmed the orders of the Regional Trial Court in its assailed Decision dated January 22, 2004, the dispositive portion of which states:WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED, for lack of merit. Consequently, the assailed Orders dated July 21, 2000 and July 17, 2003 are hereby both AFFIRMED. Respondent Judge is hereby DIRECTED to resolve the controversy over the illegitimate filiation of the private respondents (sic) minors [-] Karen Oanes Wei and Kamille Oanes Wei who are claiming successional rights in the intestate estate of the deceased Sima Wei, a.k.a. Rufino Guy Susim.SO ORDERED.10

The Court of Appeals denied petitioner's motion for reconsideration, hence, this petition.

Petitioner argues that the Court of Appeals disregarded existing rules on certification against forum shopping; that the Release and Waiver of Claim executed by Remedios released and discharged the Guy family and the estate of Sima Wei from any claims or liabilities; and that private respondents do not have the legal personality to institute the petition for letters of administration as they failed to prove their filiation during the lifetime of Sima Wei in accordance with Article 175 of the Family Code. Private respondents contend that their counsel's certification can be considered substantial compliance with the rules on certification of non-forum shopping, and that the petition raises no new issues to warrant the reversal of the decisions of the Regional Trial Court and the Court of Appeals.The issues for resolution are: 1) whether private respondents' petition should be dismissed for failure to comply with the rules on certification of non-forum shopping; 2) whether the Release and Waiver of Claim precludes private respondents from claiming their successional rights; and 3) whether private respondents are barred by prescription from proving their filiation.The petition lacks merit. Rule 7, Section 5 of the Rules of Court provides that the certification of non-forum shopping should be executed by the plaintiff or the principal party. Failure to comply with the requirement shall be cause for dismissal of the case. However, a liberal application of the rules is proper where the higher interest of justice would be served. In Sy Chin v. Court of Appeals,11 we ruled that while a petition may have been flawed where the certificate of non-forum shopping was signed only by counsel and not by the party, this procedural lapse may be overlooked in the interest of substantial justice. 12

So it is in the present controversy where the merits13 of the case and the absence of an intention to violate the rules with impunity should be considered as compelling reasons to temper the strict application of the rules.As regards Remedios' Release and Waiver of Claim, the same does not bar private respondents from claiming successional rights. To be valid and effective, a waiver must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him. A waiver may not be attributed to a person when its terms do not explicitly and clearly evince an intent to abandon a right.14

In this case, we find that there was no waiver of hereditary rights. The Release and Waiver of Claim does not state with clarity the purpose of its execution. It merely states that Remedios received P300,000.00 and an

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

took effect, the governing law on actions for recognition of illegitimate children was Article 285 of the Civil Code, to wit: ART. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases:(1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority;(2) If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child.In this case, the action must be commenced within four years from the finding of the document. (Emphasis supplied)We ruled in Bernabe v. Alejo18 that illegitimate children who were still minors at the time the Family Code took effect and whose putative parent died during their minority are given the right to seek recognition for a period of up to four years from attaining majority age. This vested right was not impaired or taken away by the passage of the Family Code.19 On the other hand, Articles 172, 173 and 175 of the Family Code, which superseded Article 285 of the Civil Code, provide: ART. 172. The filiation of legitimate children is established by any of the following:(1) The record of birth appearing in the civil register or a final judgment; or(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.In the absence of the foregoing evidence, the legitimate filiation shall be proved by:(1) The open and continuous possession of the status of a legitimate child; or(2) Any other means allowed by the Rules of Court and special laws.ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children.The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in

which case the action may be brought during the lifetime of the alleged parent. Under the Family Code, when filiation of an illegitimate child is established by a record of birth appearing in the civil register or a final judgment, or an admission of filiation in a public document or a private handwritten instrument signed by the parent concerned, the action for recognition may be brought by the child during his or her lifetime. However, if the action is based upon open and continuous possession of the status of an illegitimate child, or any other means allowed by the rules or special laws, it may only be brought during the lifetime of the alleged parent. It is clear therefore that the resolution of the issue of prescription depends on the type of evidence to be adduced by private respondents in proving their filiation. However, it would be impossible to determine the same in this case as there has been no reception of evidence yet. This Court is not a trier of facts. Such matters may be resolved only by the Regional Trial Court after a full-blown trial. While the original action filed by private respondents was a petition for letters of administration, the trial court is not precluded from receiving evidence on private respondents' filiation. Its jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate, including the determination of the status of each heir.20 That the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence.21 As held in Briz v. Briz:22

The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. x x xThe conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment,

but who has not been in fact acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil., 62); and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother (Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings.WHEREFORE, the instant petition is DENIED. The Decision dated January 22, 2004 of the Court of Appeals in CA-G.R. SP No. 79742 affirming the denial of petitioner's motion to dismiss; and its Resolution dated May 25, 2004 denying petitioner's motion for reconsideration, are AFFIRMED. Let the records be REMANDED to the Regional Trial Court of Makati City, Branch 138 for further proceedings.SO ORDERED.FIRST DIVISIONG.R. No. 174689 October 22, 2007ROMMEL JACINTO DANTES SILVERIO, petitioner, vs.REPUBLIC OF THE PHILIPPINES, respondent.D E C I S I O NCORONA, J.:When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a man’s body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure.From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made.During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex.The sole issue here is whether or not petitioner is entitled to the relief asked for.The [c]ourt rules in the affirmative. Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a

woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any way taken against him.Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fiancé] and the realization of their dreams.Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition.WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals. 6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition.Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10 The petition lacks merit.A Person’s First Name Cannot Be Changed On the Ground of Sex ReassignmentPetitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court:Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree.The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right.12

Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:ART. 376. No person can change his name or surname without judicial authority.This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16

form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.RA 9048 likewise provides the grounds for which change of first name may be allowed:SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be allowed in any of the following cases:(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest.Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name.In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first name was concerned.No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex ReassignmentThe determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:xxx xxx xxx(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied)Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.ART. 408. The following shall be entered in the civil register:(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of

marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly."Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.27 The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status… include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied) A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued.xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error,30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary." 36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female."For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of EquityThe trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social

institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40

and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted. It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress.Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences

and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts.WHEREFORE, the petition is hereby DENIED.Costs against petitioner. SO ORDERED.FIRST DIVISION G.R. No. L-68470 October 8, 1985ALICE REYES VAN DORN, petitioner, vs.HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON respondents. MELENCIO-HERRERA, J.:\In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively. The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn. Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so that the Divorce Decree

has no bearing in the case. The denial is now the subject of this certiorari proceeding. Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it due course. For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines. Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by prior judgment. For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction. For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent, after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties. The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings: xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do an things necessary and proper to represent me, without further contesting, subject to the following: 1. That my spouse seeks a divorce on the ground of incompatibility. 2. That there is no community of property to be adjudicated by the Court. 3. 'I'hat there are no community obligations to be adjudicated by the court. xxx xxx xxx 4

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a

wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court. Without costs. SO ORDEREDSECOND DIVISIONG.R. No. 80116 June 30, 1989IMELDA MANALAYSAY PILAPIL, petitioner, vs.HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents. REGALADO, J.:An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1 Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them. After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2 Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch

XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3 On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4 On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7 On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his office for review. 9 Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before

such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14 On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint." 15 On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoñez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints against the petitioner. 16 We find this petition meritorious. The writs prayed for shall accordingly issue. Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option. This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so. To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22 In the cited Loftus case, the Supreme Court of Iowa held that — 'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.) We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the

complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons. Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ...It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. ... Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the

particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other. The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce. Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein. WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made permanent. SO ORDERED.THIRD DIVISIONG.R. No. 138322 October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.REDERICK A. RECIO, respondents.PANGANIBAN, J.:A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.The CaseBefore us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows:"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties."3

The assailed Order denied reconsideration of the above-quoted Decision.The FactsRederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court.On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the Australian government.6

Petitioner – a Filipina – and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a marriage license, respondent was declared as "single" and "Filipino."8

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.9

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a quo, on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he married her on

January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997.In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.1âwphi1.nêtOn July 7, 1998 – or about five years after the couple's wedding and while the suit for the declaration of nullity was pending – respondent was able to secure a divorce decree from a family court in Sydney, Australia because the "marriage ha[d] irretrievably broken down."13

Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and admitted the documentary evidence of both parties.16 After they submitted their respective memoranda, the case was submitted for resolution.17

Thereafter, the trial court rendered the assailed Decision and Order.Ruling of the Trial CourtThe trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more martial union to nullify or annual.Hence, this Petition.18

IssuesPetitioner submits the following issues for our consideration:"IThe trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner."2The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent."3The trial court seriously erred in the application of Art. 26 of the Family Code in this case.

"4The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case."5The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts."19

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest.The Court's RulingThe Petition is partly meritorious.First Issue:Proving the Divorce Between Respondent and Editha SamsonPetitioner assails the trial court's recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,20

petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements.Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed.At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to remarry."26 A divorce

obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.27

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law."28 Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.29 Presentation solely of the divorce decree is insufficient.Divorce as a Question of FactPetitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:"ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following:x x x x x x x x x"(5) If previously married, how, when and where the previous marriage was dissolved or annulled;x x x x x x x x x"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x."ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons."Respondent, on the other hand, argues that the Australian divorce decree is a public document – a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution.Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of a foreign country.32

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.34

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be demonstrated.Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's qualification.37 Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.38

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.Burden of Proving Australian LawRespondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound discretion.We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of proving the material

allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.42 Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him.It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.43 Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.44 The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.Second Issue:Respondent's Legal Capacity to RemarryPetitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994.Hence, she concludes that their marriage was void ab initio.Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law.Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was procured by respondent.Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.46

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a remarriage only after proof of good behavior.47

On its face, the herein Australian divorce decree contains a restriction that reads:

"1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy."48

This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this matter.We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws.Significance of the Certificate of Legal CapacityPetitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50

As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit "A" – Complaint;51 (b) Exhibit "B" – Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;52 (c) Exhibit "C" – Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D" – Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54 and (e) Exhibit "E" – Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit "1" – Amended Answer;56 (b) Exhibit "S" – Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" – Certificate of Australian Citizenship of Rederick A. Recto;58 (d) Exhibit "4" – Decree Nisi of Dissolution of Marriage in the

Family Court of Australia Certificate;59 and Exhibit "5" – Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995.60

Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage.Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy, as above discussed. No costs.SO ORDERED.SECOND DIVISIONG.R. No. 124862 December 22, 1998FE D. QUITA, petitioner, vs.COURT OF APPEALS and BLANDINA DANDAN, * respondents.BELLOSILLO, J.:FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in the Philippines on 18 May 1941. They were not however blessed with children. Somewhere along the way their relationship soured. Eventually Fe sued Arturo for divorce in San Francisco, California, U.S.A. She submitted in the divorce proceedings a private writing dated 19 July 1950 evidencing their agreement to live separately from each other and a settlement of their

conjugal properties. On 23 July 1954 she obtained a final judgment of divorce. Three (3) weeks thereafter she married a certain Felix Tupaz in the same locality but their relationship also ended in a divorce. Still in the U.S.A., she married for the third time, to a certain Wernimont.On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a petition with the Regional Trial Court of Quezon City for issuance of letters of administration concerning the estate of Arturo in favor of the Philippine Trust Company. Respondent Blandina Dandan (also referred to as Blandina Padlan), claiming to be the surviving spouse of Arturo Padlan, and Claro, Alexis, Ricardo, Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the children of Arturo Padlan opposed the petition and prayed for the appointment instead of Atty. Leonardo Casaba, which was resolved in favor of the latter. Upon motion of the oppositors themselves, Atty. Cabasal was later replaced by Higino Castillon. On 30 April 1973 the oppositors (Blandina and Padlan children) submitted certified photocopies of the 19 July 1950 private writing and the final judgment of divorce between petitioner and Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving brother of the deceased Arturo, intervened.On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and the distribution of his estate. At the scheduled hearing on 23 October 1987, private respondent as well as the six (6) Padlan children and Ruperto failed to appear despite due notice. On the same day, the trial court required the submission of the records of birth of the Padlan children within ten (10) days from receipt thereof, after which, with or without the documents, the issue on the declaration of heirs would be considered submitted for resolution. The prescribed period lapsed without the required documents being submitted.The trial court invoking Tenchavez v. Escaño 1 which held that "a foreign divorce between Filipino citizens sought and decreed after the effectivity of the present Civil Code (Rep. Act 386) was not entitled to recognition as valid in this jurisdiction," 2 disregarded the divorce between petitioner and Arturo. Consecuently, it expressed the view that their marriage subsisted until the death of Arturo in 1972. Neither did it consider valid their extrajudicial settlement of conjugal properties due to lack of judicial approval. 3 On the other hand, it opined that there was no showing that marriage existed between private respondent and Arturo, much less was it shown that the alleged Padlan children had been acknowledged by the deceased as his children with her. As regards Ruperto, it found that he was a brother of Arturo. On 27 November 1987 4 only petitioner and Ruperto were

declared the intestate heirs of Arturo. Accordingly, equal adjudication of the net hereditary estate was ordered in favor of the two intestate heirs. 5

On motion for reconsideration, Blandina and the Padlan children were allowed to present proofs that the recognition of the children by the deceased as his legitimate children, except Alexis who was recognized as his illegitimate child, had been made in their respective records of birth. Thus on 15 February 1988 6 partial reconsideration was granted declaring the Padlan children, with the exception of Alexis, entitled to one-half of the estate to the exclusion of Ruperto Padlan, and petitioner to the other half. 7

Private respondent was not declared an heir. Although it was stated in the aforementioned records of birth that she and Arturo were married on 22 April 1947, their marriage was clearly void since it was celebrated during the existence of his previous marriage to petitioner.In their appeal to the Court of Appeals, Blandina and her children assigned as one of the errors allegedly committed by the trial court the circumstance that the case was decided without a hearing, in violation of Sec. 1, Rule 90, of the Rules of Court, which provides that if there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.Respondent appellate court found this ground alone sufficient to sustain the appeal; hence, on 11 September 1995 it declared null and void the 27 November 1987 decision and 15 February 1988 order of the trial court, and directed the remand of the case to the trial court for further proceedings. 8

On 18 April 1996 it denied reconsideration. 9

Should this case be remanded to the lower court for further proceedings? Petitioner insists that there is no need because, first, no legal or factual issue obtains for resolution either as to the heirship of the Padlan children or as to the decedent; and, second, the issue as to who between petitioner and private respondent is the proper hier of the decedent is one of law which can be resolved in the present petition based on establish facts and admissions of the parties.We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan children to inherit from the decedent because there are proofs that they have been duly acknowledged by him and petitioner

herself even recognizes them as heirs of Arturo Padlan; 10 nor as to their respective hereditary shares. But controversy remains as to who is the legitimate surviving spouse of Arturo. The trial court, after the parties other than petitioner failed to appear during the scheduled hearing on 23 October 1987 of the motion for immediate declaration of heirs and distribution of estate, simply issued an order requiring the submission of the records of birth of the Padlan children within ten (10) days from receipt thereof, after which, with or without the documents, the issue on declaration of heirs would be deemed submitted for resolution.We note that in her comment to petitioner's motion private respondent raised, among others, the issue as to whether petitioner was still entitled to inherit from the decedent considering that she had secured a divorce in the U.S.A. and in fact had twice remarried. She also invoked the above quoted procedural rule. 11 To this, petitioner replied that Arturo was a Filipino and as such remained legally married to her in spite of the divorce they obtained. 12 Reading between the lines, the implication is that petitioner was no longer a Filipino citizen at the time of her divorce from Arturo. This should have prompted the trial court to conduct a hearing to establish her citizenship. The purpose of a hearing is to ascertain the truth of the matters in issue with the aid of documentary and testimonial evidence as well as the arguments of the parties either supporting or opposing the evidence. Instead, the lower court perfunctorily settled her claim in her favor by merely applying the ruling in Tenchavez v. Escaño.Then in private respondent's motion to set aside and/or reconsider the lower court's decision she stressed that the citizenship of petitioner was relevant in the light of the ruling in Van Dorn v. Romillo Jr. 13 that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. She prayed therefore that the case be set for hearing. 14 Petitioner opposed the motion but failed to squarely address the issue on her citizenship. 15 The trial court did not grant private respondent's prayer for a hearing but proceeded to resolve her motion with the finding that both petitioner and Arturo were "Filipino citizens and were married in the Philippines." 16 It maintained that their divorce obtained in 1954 in San Francisco, California, U.S.A., was not valid in Philippine jurisdiction. We deduce that the finding on their citizenship pertained solely to the time of their marriage as the trial court was not supplied with a basis to determine petitioner's citizenship at the time of their divorce. The doubt persisted as to whether she was still a Filipino citizen when their divorce was decreed. The trial court must have overlooked the materiality of this aspect. Once proved that she was no

longer a Filipino citizen at the time of their divorce, Van Dorn would become applicable and petitioner could very well lose her right to inherit from Arturo.Respondent again raised in her appeal the issue on petitioner's citizenship; 17 it did not merit enlightenment however from petitioner. 18 In the present proceeding, petitioner's citizenship is brought anew to the fore by private respondent. She even furnishes the Court with the transcript of stenographic notes taken on 5 May 1995 during the hearing for the reconstitution of the original of a certain transfer certificate title as well as the issuance of new owner's duplicate copy thereof before another trial court. When asked whether she was an American citizen petitioner answered that she was since 1954. 19 Significantly, the decree of divorce of petitioner and Arturo was obtained in the same year. Petitioner however did not bother to file a reply memorandum to erase the uncertainty about her citizenship at the time of their divorce, a factual issue requiring hearings to be conducted by the trial court. Consequently, respondent appellate court did not err in ordering the case returned to the trial court for further proceedings.We emphasize however that the question to be determined by the trial court should be limited only to the right of petitioner to inherit from Arturo as his surviving spouse. Private respondent's claim to heirship was already resolved by the trial court. She and Arturo were married on 22 April 1947 while the prior marriage of petitioner and Arturo was subsisting thereby resulting in a bigamous marriage considered void from the beginning under Arts. 80 and 83 of the Civil Code. Consequently, she is not a surviving spouse that can inherit from him as this status presupposes a legitimate relationship. 20

As regards the motion of private respondent for petitioner and a her counsel to be declared in contempt of court and that the present petition be dismissed for forum shopping, 21 the same lacks merit. For forum shopping to exist the actions must involve the same transactions and same essential facts and circumstances. There must also be identical causes of action, subject matter and issue. 22 The present petition deals with declaration of heirship while the subsequent petitions filed before the three (3) trial courts concern the issuance of new owner's duplicate copies of titles of certain properties belonging to the estate of Arturo. Obviously, there is no reason to declare the existence of forum shopping.WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals ordering the remand of the case to the court of origin for further proceedings and declaring null and void its decision holding petitioner Fe D.

Quita and Ruperto T. Padlan as intestate heirs is AFFIRMED. The order of the appellate court modifying its previous decision by granting one-half (1/2) of the net hereditary estate to the Padlan children, namely, Claro, Ricardo, Emmanuel, Zenaida and Yolanda, with the exception of Alexis, all surnamed Padlan, instead of Arturo's brother Ruperto Padlan, is likewise AFFIRMED. The Court however emphasizes that the reception of evidence by the trial court should he limited to the hereditary rights of petitioner as the surviving spouse of Arturo Padlan.The motion to declare petitioner and her counsel in contempt of court and to dismiss the present petition for forum shopping is DENIED.SO ORDEREDFIRST DIVISIONG.R. No. 162580 January 27, 2006ELMAR O. PEREZ, Petitioner, vs.COURT OF APPEALS, Fifth Division, TRISTAN A. CATINDIG and LILY GOMEZ-CATINDIG, Respondents. D E C I S I O NYNARES-SANTIAGO, J.:This petition for certiorari and prohibition under Rule 65 of the Rules of Court assails the July 25, 2003 Decision1 of the Court of Appeals in CA-G.R. SP No. 74456 which set aside and declared as null and void the September 30, 2002 Order2 of the Regional Trial Court of Quezon City, Branch 84, granting petitioner’s motion for leave to file intervention and admitting the Complaint-in-Intervention3 in Civil Case No. Q-01-44847; and its January 23, 2004 Resolution4 denying the motion for reconsideration. Private respondent Tristan A. Catindig married Lily Gomez Catindig5 twice on May 16, 1968. The first marriage ceremony was celebrated at the Central Methodist Church at T.M. Kalaw Street, Ermita, Manila while the second took place at the Lourdes Catholic Church in La Loma, Quezon City. The marriage produced four children. Several years later, the couple encountered marital problems that they decided to separate from each other. Upon advice of a mutual friend, they decided to obtain a divorce from the Dominican Republic. Thus, on April 27, 1984, Tristan and Lily executed a Special Power of Attorney addressed to the Judge of the First Civil Court of San Cristobal, Dominican Republic, appointing an attorney-in-fact to institute a divorce action under its laws.6 Thereafter, on April 30, 1984, the private respondents filed a joint petition for dissolution of conjugal partnership with the Regional Trial Court of Makati. On June 12, 1984, the civil court in the Dominican Republic ratified

the divorce by mutual consent of Tristan and Lily. Subsequently, on June 23, 1984, the Regional Trial Court of Makati City, Branch 133, ordered the complete separation of properties between Tristan and Lily.On July 14, 1984, Tristan married petitioner Elmar O. Perez in the State of Virginia in the United States7 and both lived as husband and wife until October 2001. Their union produced one offspring.8 During their cohabitation, petitioner learned that the divorce decree issued by the court in the Dominican Republic which "dissolved" the marriage between Tristan and Lily was not recognized in the Philippines and that her marriage to Tristan was deemed void under Philippine law. When she confronted Tristan about this, the latter assured her that he would legalize their union after he obtains an annulment of his marriage with Lily. Tristan further promised the petitioner that he would adopt their son so that he would be entitled to an equal share in his estate as that of each of his children with Lily.9 On August 13, 2001, Tristan filed a petition for the declaration of nullity of his marriage to Lily with the Regional Trial Court of Quezon City, docketed as Case No. Q-01-44847. Subsequently, petitioner filed a Motion for Leave to File Intervention10

claiming that she has a legal interest in the matter in litigation because she knows certain information which might aid the trial court at a truthful, fair and just adjudication of the annulment case, which the trial court granted on September 30, 2002. Petitioner’s complaint-in-intervention was also ordered admitted.Tristan filed a petition for certiorari and prohibition with the Court of Appeals seeking to annul the order dated September 30, 2002 of the trial court. The Court of Appeals granted the petition and declared as null and void the September 30, 2002 Order of the trial court granting the motion for leave to file intervention and admitting the complaint-in-intervention. Petitioner’s motion for reconsideration was denied, hence this petition for certiorari and prohibition filed under Rule 65 of the Rules of Court. Petitioner contends that the Court of Appeals gravely abused its discretion in disregarding her legal interest in the annulment case between Tristan and Lily.The petition lacks merit.Ordinarily, the proper recourse of an aggrieved party from a decision of the Court of Appeals is a petition for review on certiorari under Rule 45 of the Rules of Court. However, if the error subject of the recourse is one of jurisdiction, or the act complained of was granted by a court with grave abuse of discretion amounting to lack or excess of jurisdiction, as alleged in

this case, the proper remedy is a petition for certiorari under Rule 65 of the said Rules.11 This is based on the premise that in issuing the assailed decision and resolution, the Court of Appeals acted with grave abuse of discretion, amounting to excess of lack of jurisdiction and there is no plain, speedy and adequate remedy in the ordinary course of law. A remedy is considered plain, speedy, and adequate if it will promptly relieve the petitioner from the injurious effect of the judgment and the acts of the lower court.12

It is therefore incumbent upon the petitioner to establish that the Court of Appeals acted with grave abuse of discretion amounting to excess or lack of jurisdiction when it promulgated the assailed decision and resolution. We have previously ruled that grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the Constitution, the law or existing jurisprudence. By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.13 The word "capricious," usually used in tandem with the term "arbitrary," conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative.14

The Rules of Court laid down the parameters before a person, not a party to a case can intervene, thus:Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s rights may be fully protected in a separate proceeding.15

The requirements for intervention are: [a] legal interest in the matter in litigation; and [b] consideration must be given as to whether the adjudication of the original parties may be delayed or prejudiced, or whether the intervenor’s rights may be protected in a separate proceeding or not.16

Legal interest, which entitles a person to intervene, must be in the matter in litigation and of such direct and immediate character that the intervenor

will either gain or lose by direct legal operation and effect of the judgment. 17

Such interest must be actual, direct and material, and not simply contingent and expectant.18

Petitioner claims that her status as the wife and companion of Tristan for 17 years vests her with the requisite legal interest required of a would-be intervenor under the Rules of Court. Petitioner’s claim lacks merit. Under the law, petitioner was never the legal wife of Tristan, hence her claim of legal interest has no basis.When petitioner and Tristan married on July 14, 1984, Tristan was still lawfully married to Lily. The divorce decree that Tristan and Lily obtained from the Dominican Republic never dissolved the marriage bond between them. It is basic that laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.19 Regardless of where a citizen of the Philippines might be, he or she will be governed by Philippine laws with respect to his or her family rights and duties, or to his or her status, condition and legal capacity. Hence, if a Filipino regardless of whether he or she was married here or abroad, initiates a petition abroad to obtain an absolute divorce from spouse and eventually becomes successful in getting an absolute divorce decree, the Philippines will not recognize such absolute divorce.20

When Tristan and Lily married on May 18, 1968, their marriage was governed by the provisions of the Civil Code21 which took effect on August 30, 1950. In the case of Tenchavez v. Escano22 we held:(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act No. 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country. (Emphasis added)Thus, petitioner’s claim that she is the wife of Tristan even if their marriage was celebrated abroad lacks merit. Thus, petitioner never acquired the legal interest as a wife upon which her motion for intervention is based. Since petitioner’s motion for leave to file intervention was bereft of the indispensable requirement of legal interest, the issuance by the trial court of the order granting the same and admitting the complaint-in-intervention was attended with grave abuse of discretion. Consequently, the Court of Appeals correctly set aside and declared as null and void the said order.

WHEREFORE, the petition is DISMISSED. The assailed Decision dated July 25, 2003 and Resolution dated January 23, 2004 of the Court of Appeals in CA-G.R. SP No. 74456 are AFFIRMED. No pronouncement as to costs.SO ORDERED.THIRD DIVISIONG.R. No. 133743 February 6, 2007EDGAR SAN LUIS, Petitioner, vs.FELICIDAD SAN LUIS, Respondent. x ---------------------------------------------------- xG.R. No. 134029 February 6, 2007 RODOLFO SAN LUIS, Petitioner, vs.FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.D E C I S I O NYNARES-SANTIAGO, J.:Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and January 31, 1996 3

Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners’ motion for reconsideration.The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo. Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child Custody on December 14, 1973. 6 On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from the time of their marriage up to his death on December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement of Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708 which was raffled to Branch 146 thereof. Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila; that the decedent’s surviving heirs are respondent as legal spouse, his six children by his first marriage, and son by his second marriage; that the decedent left real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any unpaid debts. Respondent prayed that the conjugal partnership assets be liquidated and that letters of administration be issued to her.On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of action. Rodolfo claimed that the petition for letters of administration should have been filed in the Province of Laguna because this was Felicisimo’s place of residence prior to his death. He further claimed that respondent has no legal personality to file the petition because she was only a mistress of Felicisimo since the latter, at the time of his death, was still legally married to Merry Lee. On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking the dismissal 10 of the petition. On February 28, 1994, the trial court issued an Order 11 denying the two motions to dismiss. Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised the powers of his public office in Laguna, he regularly went home to their house in New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14 Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to validate respondent’s bigamous

marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the Family Code.On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case. On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It ruled that respondent, as widow of the decedent, possessed the legal standing to file the petition and that venue was properly laid. Meanwhile, the motion for disqualification was deemed moot and academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S. Tensuan pending the resolution of said motion.Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date, Edgar also filed a motion for reconsideration 20 from the Order denying their motion for reconsideration arguing that it does not state the facts and law on which it was based. On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel. On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June 14, 24 and June 20, 25 1995, respectively.On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that, at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It also ruled that respondent was without legal capacity to file the petition for letters of administration because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of absolute divorce dissolving Felicisimo’s marriage to Merry Lee was not valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it would impair the vested rights of Felicisimo’s legitimate children. Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but said motions were denied. 28 Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial court in its assailed Decision dated February 4, 1998, the dispositive portion of which states:

WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are REINSTATED; and the records of the case is REMANDED to the trial court for further proceedings. 29 The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to the personal, actual or physical habitation, or actual residence or place of abode of a person as distinguished from legal residence or domicile. It noted that although Felicisimo discharged his functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for letters of administration was properly filed in Makati City.The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved by virtue of the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage with respondent. Thus –With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment of E.O. No. 227, — there is no justiciable reason to sustain the individual view — sweeping statement — of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic policy of our state against divorce in any form whatsoever." Indeed, courts cannot deny what the law grants. All that the courts should do is to give force and effect to the express mandate of the law. The foreign divorce having been obtained by the Foreigner on December 14, 1992, 32 the Filipino divorcee, "shall x x x have capacity to remarry under Philippine laws". For this reason, the marriage between the deceased and petitioner should not be denominated as "a bigamous marriage.Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33 Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34

which were denied by the Court of Appeals.

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which was granted. 36 In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition for letters of administration was improperly laid because at the time of his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent residence to which when absent, one intends to return. They claim that a person can only have one domicile at any given time. Since Felicisimo never changed his domicile, the petition for letters of administration should have been filed in Sta. Cruz, Laguna.Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous because it was performed during the subsistence of the latter’s marriage to Merry Lee. They argue that paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and ratify the void bigamous marriage. As such, respondent cannot be considered the surviving wife of Felicisimo; hence, she has no legal capacity to file the petition for letters of administration. The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal capacity to file the subject petition for letters of administration.The petition lacks merit.Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal rule for determining the residence – as contradistinguished from domicile – of the decedent for purposes of fixing the venue of the settlement of his estate:[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms

"residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary. 41

(Emphasis supplied)It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and Romualdez are inapplicable to the instant case because they involve election cases. Needless to say, there is a distinction between "residence" for purposes of election laws and "residence" for purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as synonymous terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the "residence" of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. 43 Hence, it is possible that a person may have his residence in one place and domicile in another. In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5, 1983 showing that the deceased purchased the aforesaid property. She also presented billing statements 45 from the Philippine Heart Center and Chinese General Hospital for the period August to December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of membership of the deceased in the Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceased’s children to him at his Alabang address, and the deceased’s calling cards 49 stating that his home/city address is at "100 San Juanico, Ayala Alabang Village,

Muntinlupa" while his office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna." From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the Regional Trial Court of Makati City.Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of administration, we must first resolve the issue of whether a Filipino who is divorced by his alien spouse abroad may validly remarry under the Civil Code, considering that Felicidad’s marriage to Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August 3, 1988. In resolving this issue, we need not retroactively apply the provisions of the Family Code, particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis allowing us to rule in the affirmative. The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife, which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the properties from their conjugal partnership should be protected. The Court, however, recognized the validity of the divorce and held that the alien spouse had no interest in the properties acquired by the Filipino wife after the divorce. Thus:In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:"The purpose and effect of a decree of divorce from the bond of matrimony by a competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party

shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage."Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. 53 As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be considered married to the alien spouse. Further, she should not be required to perform her marital duties and obligations. It held:To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. 54 (Emphasis added)This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a proper party in filing the adultery suit against his Filipino wife. The Court stated that "the severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other." 56 Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on December 22, 1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in effect. The significance of the Van Dorn case to the development of limited recognition of divorce in the Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary consequence of upholding the validity of a divorce obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse shall

have capacity to remarry under Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61 In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent behind paragraph 2, Article 26 of the Family Code were discussed, to wit:Brief Historical BackgroundOn July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38.On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides:ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)x x x xLegislative IntentRecords of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. 63 (Emphasis added)As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly obtained abroad by the alien spouse. With the enactment

of the Family Code and paragraph 2, Article 26 thereof, our lawmakers codified the law already established through judicial precedent.1awphi1.netIndeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. 64

Marriage, being a mutual and shared commitment between two parties, cannot possibly be productive of any good to the society where one is considered released from the marital bond while the other remains bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce abroad against the Filipino spouse, as in this case. Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under Philippine law insofar as Filipinos are concerned. However, in light of this Court’s rulings in the cases discussed above, the Filipino spouse should not be discriminated against in his own country if the ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated:But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice. Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed. As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." x x x xMore than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his due." That wish continues to motivate this Court when it assesses the facts and the law in every case

brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. 69 Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimo’s surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. 71 With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of California which purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved. 73 Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo. Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find that the latter has the legal personality to file the subject petition for letters of administration, as she may be considered the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their cohabitation. Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:

SEC. 2. Contents of petition for letters of administration. – A petition for letters of administration must be filed by an interested person and must show, as far as known to the petitioner: x x x. An "interested person" has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent. 75 In the instant case, respondent would qualify as an interested person who has a direct interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by petitioners. If she proves the validity of the divorce and Felicisimo’s capacity to remarry, but fails to prove that her marriage with him was validly performed under the laws of the U.S.A., then she may be considered as a co-owner under Article 144 76 of the Civil Code. This provision governs the property relations between parties who live together as husband and wife without the benefit of marriage, or their marriage is void from the beginning. It provides that the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. In a co-ownership, it is not necessary that the property be acquired through their joint labor, efforts and industry. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. Hence, the portions belonging to the co-owners shall be presumed equal, unless the contrary is proven. 77 Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the applicable provision would be Article 148 of the Family Code which has filled the hiatus in Article 144 of the Civil Code by expressly regulating the property relations of couples living together as husband and wife but are incapacitated to marry. 78 In Saguid v. Court of Appeals, 79 we held that even if the cohabitation or the acquisition of property occurred before the Family Code took effect, Article 148 governs. 80 The Court described the property regime under this provision as follows:The regime of limited co-ownership of property governing the union of parties who are not legally capacitated to marry each other, but who nonetheless live together as husband and wife, applies to properties acquired during said cohabitation in proportion to their respective contributions. Co-ownership will only be up to the extent of the proven actual contribution of money, property or industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be presumed to be equal.x x x x

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of properties acquired by the parties to a bigamous marriage and an adulterous relationship, respectively, we ruled that proof of actual contribution in the acquisition of the property is essential. x x xAs in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the party’s own evidence and not upon the weakness of the opponent’s defense. x x x 81 In view of the foregoing, we find that respondent’s legal capacity to file the subject petition for letters of administration may arise from her status as the surviving wife of Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the Family Code. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners’ motion to dismiss and its October 24, 1994 Order which dismissed petitioners’ motion for reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further proceedings. SO ORDERED.SECOND DIVISIONG.R. No. 146322 December 6, 2006ERNESTO RAMAS UYPITCHING and RAMAS UYPITCHING SONS, INC., petitioners, vs.ERNESTO QUIAMCO, respondent.

D E C I S I O N

CORONA, J.: Honeste vivere, non alterum laedere et jus suum cuique tribuere. To live virtuously, not to injure others and to give everyone his due. These supreme norms of justice are the underlying principles of law and order in society. We reaffirm them in this petition for review on certiorari assailing the July 26, 2000 decision1 and October 18, 2000 resolution of the Court of Appeals (CA) in CA-G.R. CV No. 47571. In 1982, respondent Ernesto C. Quiamco was approached by Juan Davalan,2

Josefino Gabutero and Raul Generoso to amicably settle the civil aspect of a criminal case for robbery3 filed by Quiamco against them. They surrendered to him a red Honda XL-100 motorcycle and a photocopy of its certificate of

registration. Respondent asked for the original certificate of registration but the three accused never came to see him again. Meanwhile, the motorcycle was parked in an open space inside respondent’s business establishment, Avesco-AVNE Enterprises, where it was visible and accessible to the public. It turned out that, in October 1981, the motorcycle had been sold on installment basis to Gabutero by petitioner Ramas Uypitching Sons, Inc., a family-owned corporation managed by petitioner Atty. Ernesto Ramas Uypitching. To secure its payment, the motorcycle was mortgaged to petitioner corporation.4 When Gabutero could no longer pay the installments, Davalan assumed the obligation and continued the payments. In September 1982, however, Davalan stopped paying the remaining installments and told petitioner corporation’s collector, Wilfredo Veraño, that the motorcycle had allegedly been "taken by respondent’s men." Nine years later, on January 26, 1991, petitioner Uypitching, accompanied by policemen,5 went to Avesco-AVNE Enterprises to recover the motorcycle. The leader of the police team, P/Lt. Arturo Vendiola, talked to the clerk in charge and asked for respondent. While P/Lt. Vendiola and the clerk were talking, petitioner Uypitching paced back and forth inside the establishment uttering "Quiamco is a thief of a motorcycle." On learning that respondent was not in Avesco-AVNE Enterprises, the policemen left to look for respondent in his residence while petitioner Uypitching stayed in the establishment to take photographs of the motorcycle. Unable to find respondent, the policemen went back to Avesco-AVNE Enterprises and, on petitioner Uypitching’s instruction and over the clerk’s objection, took the motorcycle. On February 18, 1991, petitioner Uypitching filed a criminal complaint for qualified theft and/or violation of the Anti-Fencing Law6 against respondent in the Office of the City Prosecutor of Dumaguete City.7 Respondent moved for dismissal because the complaint did not charge an offense as he had neither stolen nor bought the motorcycle. The Office of the City Prosecutor dismissed the complaint8 and denied petitioner Uypitching’s subsequent motion for reconsideration. Respondent filed an action for damages against petitioners in the RTC of Dumaguete City, Negros Oriental, Branch 37.9 He sought to hold the petitioners liable for the following: (1) unlawful taking of the motorcycle; (2) utterance of a defamatory remark (that respondent was a thief) and (3) precipitate filing of a baseless and malicious complaint. These acts humiliated and embarrassed the respondent and injured his reputation and integrity.

On July 30, 1994, the trial court rendered a decision10 finding that petitioner Uypitching was motivated with malice and ill will when he called respondent a thief, took the motorcycle in an abusive manner and filed a baseless complaint for qualified theft and/or violation of the Anti-Fencing Law. Petitioners’ acts were found to be contrary to Articles 1911 and 2012 of the Civil Code. Hence, the trial court held petitioners liable to respondent for P500,000 moral damages, P200,000 exemplary damages and P50,000 attorney’s fees plus costs. Petitioners appealed the RTC decision but the CA affirmed the trial court’s decision with modification, reducing the award of moral and exemplary damages to P300,000 and P100,000, respectively.13 Petitioners sought reconsideration but it was denied. Thus, this petition. In their petition and memorandum, petitioners submit that the sole (allegedly) issue to be resolved here is whether the filing of a complaint for qualified theft and/or violation of the Anti-Fencing Law in the Office of the City Prosecutor warranted the award of moral damages, exemplary damages, attorney’s fees and costs in favor of respondent. Petitioners’ suggestion is misleading. They were held liable for damages not only for instituting a groundless complaint against respondent but also for making a slanderous remark and for taking the motorcycle from respondent’s establishment in an abusive manner. Correctness of the Findings of the RTC and CA As they never questioned the findings of the RTC and CA that malice and ill will attended not only the public imputation of a crime to respondent14 but also the taking of the motorcycle, petitioners were deemed to have accepted the correctness of such findings. This alone was sufficient to hold petitioners liable for damages to respondent. Nevertheless, to address petitioners’ concern, we also find that the trial and appellate courts correctly ruled that the filing of the complaint was tainted with malice and bad faith. Petitioners themselves in fact described their action as a "precipitate act."15 Petitioners were bent on portraying respondent as a thief. In this connection, we quote with approval the following findings of the RTC, as adopted by the CA: x x x There was malice or ill-will [in filing the complaint before the City Prosecutor’s Office] because Atty. Ernesto Ramas Uypitching knew or ought to have known as he is a lawyer, that there was no probable cause at all for filing a criminal complaint for qualified theft and fencing activity against [respondent]. Atty. Uypitching had no personal knowledge that [respondent] stole the motorcycle in question. He was merely told by his bill collector ([i.e.] the bill collector of Ramas Uypitching Sons, Inc.)[,] Wilfredo

Veraño[,] that Juan Dabalan will [no longer] pay the remaining installment(s) for the motorcycle because the motorcycle was taken by the men of [respondent]. It must be noted that the term used by Wilfredo Veraño in informing Atty. Ernesto Ramas Uypitching of the refusal of Juan Dabalan to pay for the remaining installment was [‘]taken[’], not [‘]unlawfully taken[’] or ‘stolen.’ Yet, despite the double hearsay, Atty. Ernesto Ramas Uypitching not only executed the [complaint-affidavit] wherein he named [respondent] as ‘the suspect’ of the stolen motorcycle but also charged [respondent] of ‘qualified theft and fencing activity’ before the City [Prosecutor’s] Office of Dumaguete. The absence of probable cause necessarily signifies the presence of malice. What is deplorable in all these is that Juan Dabalan, the owner of the motorcycle, did not accuse [respondent] or the latter’s men of stealing the motorcycle[,] much less bother[ed] to file a case for qualified theft before the authorities. That Atty. Uypitching’s act in charging [respondent] with qualified theft and fencing activity is tainted with malice is also shown by his answer to the question of Cupid Gonzaga16 [during one of their conversations] - "why should you still file a complaint? You have already recovered the motorcycle…"[:] "Aron motagam ang kawatan ug motor." ("To teach a lesson to the thief of motorcycle.")17 Moreover, the existence of malice, ill will or bad faith is a factual matter. As a rule, findings of fact of the trial court, when affirmed by the appellate court, are conclusive on this Court. We see no compelling reason to reverse the findings of the RTC and the CA. Petitioners Abused Their Right of Recovery as Mortgagee(s) Petitioners claim that they should not be held liable for petitioner corporation’s exercise of its right as seller-mortgagee to recover the mortgaged vehicle preliminary to the enforcement of its right to foreclose on the mortgage in case of default. They are clearly mistaken. True, a mortgagee may take steps to recover the mortgaged property to enable it to enforce or protect its foreclosure right thereon. There is, however, a well-defined procedure for the recovery of possession of mortgaged property: if a mortgagee is unable to obtain possession of a mortgaged property for its sale on foreclosure, he must bring a civil action either to recover such possession as a preliminary step to the sale, or to obtain judicial foreclosure.18 Petitioner corporation failed to bring the proper civil action necessary to acquire legal possession of the motorcycle. Instead, petitioner Uypitching descended on respondent’s establishment with his policemen and ordered the seizure of the motorcycle without a search warrant or court order.

Worse, in the course of the illegal seizure of the motorcycle, petitioner Uypitching even mouthed a slanderous statement. No doubt, petitioner corporation, acting through its co-petitioner Uypitching, blatantly disregarded the lawful procedure for the enforcement of its right, to the prejudice of respondent. Petitioners’ acts violated the law as well as public morals, and transgressed the proper norms of human relations. The basic principle of human relations, embodied in Article 19 of the Civil Code, provides: Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with justice, give every one his due, and observe honesty and good faith. Article 19, also known as the "principle of abuse of right," prescribes that a person should not use his right unjustly or contrary to honesty and good faith, otherwise he opens himself to liability.19 It seeks to preclude the use of, or the tendency to use, a legal right (or duty) as a means to unjust ends. There is an abuse of right when it is exercised solely to prejudice or injure another.20 The exercise of a right must be in accordance with the purpose for which it was established and must not be excessive or unduly harsh; there must be no intention to harm another.21 Otherwise, liability for damages to the injured party will attach. In this case, the manner by which the motorcycle was taken at petitioners’ instance was not only attended by bad faith but also contrary to the procedure laid down by law. Considered in conjunction with the defamatory statement, petitioners’ exercise of the right to recover the mortgaged vehicle was utterly prejudicial and injurious to respondent. On the other hand, the precipitate act of filing an unfounded complaint could not in any way be considered to be in accordance with the purpose for which the right to prosecute a crime was established. Thus, the totality of petitioners’ actions showed a calculated design to embarrass, humiliate and publicly ridicule respondent. Petitioners acted in an excessively harsh fashion to the prejudice of respondent. Contrary to law, petitioners willfully caused damage to respondent. Hence, they should indemnify him.22 WHEREFORE, the petition is hereby DENIED. The July 26, 2000 decision and October 18, 2000 resolution of the Court of Appeals in CA-G.R. CV No. 47571 are AFFIRMED. Triple costs against petitioners, considering that petitioner Ernesto Ramas Uypitching is a lawyer and an officer of the court, for his improper behavior. SO ORDERED. SECOND DIVISION

FAR EAST BANK AND TRUST G.R. No. 157314COMPANY, NOW BANK OFTHE PHILIPPINE ISLANDS, Present:Petitioner,PUNO, J., Chairman,AUSTRIA-MARTINEZ,CALLEJO, SR., - versus - TINGA, andCHICO-NAZARIO, JJ.Promulgated:THEMISTOCLES PACILAN, JR.,Respondent. July 29, 2005x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xD E C I S I O NCALLEJO, SR., J.:Before the Court is the petition for review on certiorari filed by Far East Bank and Trust Company (now Bank of the Philippines Islands) seeking the reversal of the Decision[1] dated August 30, 2002 of the Court of Appeals (CA) in CA-G.R. CV No. 36627 which ordered it, together with its branch accountant, Roger Villadelgado, to pay respondent Themistocles Pacilan, Jr.[2] the total sum of P100,000.00 as moral and exemplary damages. The assailed decision affirmed with modification that of the Regional Trial Court (RTC) of Negros Occidental, Bacolod City, Branch 54, in Civil Case No. 4908. Likewise sought to be reversed and set aside is the Resolution dated January 17, 2003 of the appellate court, denying petitioner bank’s motion for reconsideration.The case stemmed from the following undisputed facts:Respondent Pacilan opened a current account with petitioner bank’s Bacolod Branch on May 23, 1980. His account was denominated as Current Account No. 53208 (0052-00407-4). The respondent had since then issued several postdated checks to different payees drawn against the said account. Sometime in March 1988, the respondent issued Check No. 2434886 in the amount of P680.00 and the same was presented for payment to petitioner bank on April 4, 1988.Upon its presentment on the said date, Check No. 2434886 was dishonored by petitioner bank. The next day, or on April 5, 1988, the respondent deposited to his current account the amount of P800.00. The said amount was accepted by petitioner bank; hence, increasing the balance of the respondent’s deposit to P1,051.43.

Subsequently, when the respondent verified with petitioner bank about the dishonor of Check No. 2434866, he discovered that his current account was closed on the ground that it was “improperly handled.” The records of petitioner bank disclosed that between the period of March 30, 1988 and April 5, 1988, the respondent issued four checks, to wit: Check No. 2480416 for P6,000.00; Check No. 2480419 for P50.00; Check No. 2434880 for P680.00 and; Check No. 2434886 for P680.00, or a total amount of P7,410.00. At the time, however, the respondent’s current account with petitioner bank only had a deposit of P6,981.43. Thus, the total amount of the checks presented for payment on April 4, 1988 exceeded the balance of the respondent’s deposit in his account. For this reason, petitioner bank, through its branch accountant, Villadelgado, closed the respondent’s current account effective the evening of April 4, 1988 as it then had an overdraft of P428.57. As a consequence of the overdraft, Check No. 2434886 was dishonored.On April 18, 1988, the respondent wrote to petitioner bank complaining that the closure of his account was unjustified. When he did not receive a reply from petitioner bank, the respondent filed with the RTC of Negros Occidental, Bacolod City, Branch 54, a complaint for damages against petitioner bank and Villadelgado. The case was docketed as Civil Case No. 4908. The respondent, as complainant therein, alleged that the closure of his current account by petitioner bank was unjustified because on the first banking hour of April 5, 1988, he already deposited an amount sufficient to fund his checks. The respondent pointed out that Check No. 2434886, in particular, was delivered to petitioner bank at the close of banking hours on April 4, 1988 and, following normal banking procedure, it (petitioner bank) had until the last clearing hour of the following day, or on April 5, 1988, to honor the check or return it, if not funded. In disregard of this banking procedure and practice, however, petitioner bank hastily closed the respondent’s current account and dishonored his Check No. 2434886. The respondent further alleged that prior to the closure of his current account, he had issued several other postdated checks. The petitioner bank’s act of closing his current account allegedly preempted the deposits that he intended to make to fund those checks. Further, the petitioner bank’s act exposed him to criminal prosecution for violation of Batas Pambansa Blg. 22.According to the respondent, the indecent haste that attended the closure of his account was patently malicious and intended to embarrass him. He claimed that he is a Cashier of Prudential Bank and Trust Company, whose branch office is located just across that of petitioner bank, and a prominent

and respected leader both in the civic and banking communities. The alleged malicious acts of petitioner bank besmirched the respondent’s reputation and caused him “social humiliation, wounded feelings, insurmountable worries and sleepless nights” entitling him to an award of damages. In their answer, petitioner bank and Villadelgado maintained that the respondent’s current account was subject to petitioner bank’s Rules and Regulations Governing the Establishment and Operation of Regular Demand Deposits which provide that “the Bank reserves the right to close an account if the depositor frequently draws checks against insufficient funds and/or uncollected deposits” and that “the Bank reserves the right at any time to return checks of the depositor which are drawn against insufficient funds or for any reason.”[3]

They showed that the respondent had improperly and irregularly handled his current account. For example, in 1986, the respondent’s account was overdrawn 156 times, in 1987, 117 times and in 1988, 26 times. In all these instances, the account was overdrawn due to the issuance of checks against insufficient funds. The respondent had also signed several checks with a different signature from the specimen on file for dubious reasons.When the respondent made the deposit on April 5, 1988, it was obviously to cover for issuances made the previous day against an insufficiently funded account. When his Check No. 2434886 was presented for payment on April 4, 1988, he had already incurred an overdraft; hence, petitioner bank rightfully dishonored the same for insufficiency of funds.After due proceedings, the court a quo rendered judgment in favor of the respondent as it ordered the petitioner bank and Villadelgado, jointly and severally, to pay the respondent the amounts of P100,000.00 as moral damages and P50,000.00 as exemplary damages and costs of suit. In so ruling, the court a quo also cited petitioner bank’s rules and regulations which state that “a charge of P10.00 shall be levied against the depositor for any check that is taken up as a returned item due to ‘insufficiency of funds’ on the date of receipt from the clearing office even if said check is honored and/or covered by sufficient deposit the following banking day.” The same rules and regulations also provide that “a check returned for insufficiency of funds for any reason of similar import may be subsequently recleared for one more time only, subject to the same charges.” According to the court a quo, following these rules and regulations, the respondent, as depositor, had the right to put up sufficient funds for a check that was taken as a returned item for insufficient funds the day following the receipt of said check from the clearing office. In fact, the said check

could still be recleared for one more time. In previous instances, petitioner bank notified the respondent when he incurred an overdraft and he would then deposit sufficient funds the following day to cover the overdraft. Petitioner bank thus acted unjustifiably when it immediately closed the respondent’s account on April 4, 1988 and deprived him of the opportunity to reclear his check or deposit sufficient funds therefor the following day.As a result of the closure of his current account, several of the respondent’s checks were subsequently dishonored and because of this, the respondent was humiliated, embarrassed and lost his credit standing in the business community. The court a quo further ratiocinated that even granting arguendo that petitioner bank had the right to close the respondent’s account, the manner which attended the closure constituted an abuse of the said right. Citing Article 19 of the Civil Code of the Philippines which states that “[e]very 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” and Article 20 thereof which states that “[e]very person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same,” the court a quo adjudged petitioner bank of acting in bad faith. It held that, under the foregoing circumstances, the respondent is entitled to an award of moral and exemplary damages.The decretal portion of the court a quo’s decision reads:WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:1. Ordering the defendants [petitioner bank and Villadelgado], jointly and severally, to pay plaintiff [the respondent] the sum of P100,000.00 as moral damages;2. Ordering the defendants, jointly and severally, to pay plaintiff the sum of P50,000.00 as exemplary damages plus costs and expenses of the suit; and3. Dismissing [the] defendants’ counterclaim for lack of merit.SO ORDERED.[4]

On appeal, the CA rendered the Decision dated August 30, 2002, affirming with modification the decision of the court a quo.The appellate court substantially affirmed the factual findings of the court a quo as it held that petitioner bank unjustifiably closed the respondent’s account notwithstanding that its own rules and regulations allow that a check returned for insufficiency of funds or any reason of similar import, may be subsequently recleared for one more time, subject to standard charges. Like the court a quo, the appellate court observed that in several instances in previous years, petitioner bank would inform the respondent when he incurred an overdraft and allowed him to make a

timely deposit to fund the checks that were initially dishonored for insufficiency of funds. However, on April 4, 1988, petitioner bank immediately closed the respondent’s account without even notifying him that he had incurred an overdraft. Even when they had already closed his account on April 4, 1988, petitioner bank still accepted the deposit that the respondent made on April 5, 1988, supposedly to cover his checks.Echoing the reasoning of the court a quo, the CA declared that even as it may be conceded that petitioner bank had reserved the right to close an account for repeated overdrafts by the respondent, the exercise of that right must never be despotic or arbitrary. That petitioner bank chose to close the account outright and return the check, even after accepting a deposit sufficient to cover the said check, is contrary to its duty to handle the respondent’s account with utmost fidelity. The exercise of the right is not absolute and good faith, at least, is required. The manner by which petitioner bank closed the account of the respondent runs afoul of Article 19 of the Civil Code which enjoins every person, in the exercise of his rights, “to give every one his due, and observe honesty and good faith.”The CA concluded that petitioner bank’s precipitate and imprudent closure of the respondent’s account had caused him, a respected officer of several civic and banking associations, serious anxiety and humiliation. It had, likewise, tainted his credit standing. Consequently, the award of damages is warranted. The CA, however, reduced the amount of damages awarded by the court a quo as it found the same to be excessive:We, however, find excessive the amount of damages awarded by the RTC. In our view the reduced amount of P75,000.00 as moral damages and P25,000.00 as exemplary damages are in order. Awards for damages are not meant to enrich the plaintiff-appellee [the respondent] at the expense of defendants-appellants [the petitioners], but to obviate the moral suffering he has undergone. The award is aimed at the restoration, within limits possible, of the status quo ante, and should be proportionate to the suffering inflicted.[5]

The dispositive portion of the assailed CA decision reads:WHEREFORE, the decision appealed from is hereby AFFIRMED, subject to the MODIFICATION that the award of moral damages is reduced to P75,000.00 and the award of exemplary damages reduced to P25,000.00.SO ORDERED.[6]

Petitioner bank sought the reconsideration of the said decision but in the assailed Resolution dated January 17, 2003, the appellate court denied its motion. Hence, the recourse to this Court.

Petitioner bank maintains that, in closing the account of the respondent in the evening of April 4, 1988, it acted in good faith and in accordance with the rules and regulations governing the operation of a regular demand deposit which reserves to the bank “the right to close an account if the depositor frequently draws checks against insufficient funds and/or uncollected deposits.” The same rules and regulations also provide that “the depositor is not entitled, as a matter of right, to overdraw on this deposit and the bank reserves the right at any time to return checks of the depositor which are drawn against insufficient funds or for any reason.”It cites the numerous instances that the respondent had overdrawn his account and those instances where he deliberately signed checks using a signature different from the specimen on file. Based on these facts, petitioner bank was constrained to close the respondent’s account for improper and irregular handling and returned his Check No. 2434886 which was presented to the bank for payment on April 4, 1988.Petitioner bank further posits that there is no law or rule which gives the respondent a legal right to make good his check or to deposit the corresponding amount to cover said check within 24 hours after the same is dishonored or returned by the bank for having been drawn against insufficient funds. It vigorously denies having violated Article 19 of the Civil Code as it insists that it acted in good faith and in accordance with the pertinent banking rules and regulations.The petition is impressed with merit.A perusal of the respective decisions of the court a quo and the appellate court show that the award of damages in the respondent’s favor was anchored mainly on Article 19 of the Civil Code which, quoted anew below, reads: Art. 19. 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.The elements of abuse of rights are the following: (a) the existence of a legal right or duty; (b) which is exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.[7] Malice or bad faith is at the core of the said provision.[8] The law always presumes good faith and any person who seeks to be awarded damages due to acts of another has the burden of proving that the latter acted in bad faith or with ill-motive. [9] Good faith refers to the state of the mind which is manifested by the acts of the individual concerned. It consists of the intention to abstain from taking an unconscionable and unscrupulous advantage of another.[10] Bad faith does not simply connote bad judgment or simple negligence, dishonest purpose

or some moral obliquity and conscious doing of a wrong, a breach of known duty due to some motives or interest or ill-will that partakes of the nature of fraud.[11] Malice connotes ill-will or spite and speaks not in response to duty. It implies an intention to do ulterior and unjustifiable harm. Malice is bad faith or bad motive.[12]

Undoubtedly, petitioner bank has the right to close the account of the respondent based on the following provisions of its Rules and Regulations Governing the Establishment and Operation of Regular Demand Deposits:10) The Bank reserves the right to close an account if the depositor frequently draws checks against insufficient funds and/or uncollected deposits.…12) …However, it is clearly understood that the depositor is not entitled, as a matter of right, to overdraw on this deposit and the bank reserves the right at any time to return checks of the depositor which are drawn against insufficient funds or for any other reason.The facts, as found by the court a quo and the appellate court, do not establish that, in the exercise of this right, petitioner bank committed an abuse thereof. Specifically, the second and third elements for abuse of rights are not attendant in the present case. The evidence presented by petitioner bank negates the existence of bad faith or malice on its part in closing the respondent’s account on April 4, 1988 because on the said date the same was already overdrawn. The respondent issued four checks, all due on April 4, 1988, amounting to P7,410.00 when the balance of his current account deposit was only P6,981.43. Thus, he incurred an overdraft of P428.57 which resulted in the dishonor of his Check No. 2434886. Further, petitioner bank showed that in 1986, the current account of the respondent was overdrawn 156 times due to his issuance of checks against insufficient funds.[13] In 1987, the said account was overdrawn 117 times for the same reason.[14] Again, in 1988, 26 times.[15] There were also several instances when the respondent issued checks deliberately using a signature different from his specimen signature on file with petitioner bank. [16] All these circumstances taken together justified the petitioner bank’s closure of the respondent’s account on April 4, 1988 for “improper handling.”It is observed that nowhere under its rules and regulations is petitioner bank required to notify the respondent, or any depositor for that matter, of the closure of the account for frequently drawing checks against insufficient funds. No malice or bad faith could be imputed on petitioner bank for so acting since the records bear out that the respondent had indeed been

improperly and irregularly handling his account not just a few times but hundreds of times. Under the circumstances, petitioner bank could not be faulted for exercising its right in accordance with the express rules and regulations governing the current accounts of its depositors. Upon the opening of his account, the respondent had agreed to be bound by these terms and conditions.Neither the fact that petitioner bank accepted the deposit made by the respondent the day following the closure of his account constitutes bad faith or malice on the part of petitioner bank. The same could be characterized as simple negligence by its personnel. Said act, by itself, is not constitutive of bad faith.The respondent had thus failed to discharge his burden of proving bad faith on the part of petitioner bank or that it was motivated by ill-will or spite in closing his account on April 4, 1988 and in inadvertently accepting his deposit on April 5, 1988.Further, it has not been shown that these acts were done by petitioner bank with the sole intention of prejudicing and injuring the respondent. It is conceded that the respondent may have suffered damages as a result of the closure of his current account. However, there is a material distinction between damages and injury. The Court had the occasion to explain the distinction between damages and injury in this wise:… Injury is the illegal invasion of a legal right; damage is the loss, hurt or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone, the law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often called damnum absque injuria.In other words, in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff – a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that the individual was injured in contemplation of law. Thus, there must first be a breach of some duty and the imposition of liability for that breach before damages may be awarded; and the breach of such duty should be the proximate cause of the injury.[17]

Whatever damages the respondent may have suffered as a consequence, e.g., dishonor of his other insufficiently funded checks, would have to be borne by him alone. It was the respondent’s repeated improper and irregular handling of his account which constrained petitioner bank to close the same in accordance with the rules and regulations governing its depositors’ current accounts. The respondent’s case is clearly one of damnum absque injuria.WHEREFORE, the petition is GRANTED. The Decision dated August 30, 2002 and Resolution dated January 17, 2003 of the Court of Appeals in CA-G.R. CV No. 36627 are REVERSED AND SET ASIDE.SO ORDERED.

FIRST DIVISIONG.R. No. 160273 January 18, 2008CEBU COUNTRY CLUB, INC., SABINO R. DAPAT, RUBEN D. ALMENDRAS, JULIUS Z. NERI, DOUGLAS L. LUYM, CESAR T. LIBI, RAMONTITO* E. GARCIA and JOSE B. SALA, petitioners, vs.RICARDO F. ELIZAGAQUE, respondent.D E C I S I O NSANDOVAL-GUTIERREZ, J.:For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision 1

dated January 31, 2003 and Resolution dated October 2, 2003 of the Court of Appeals in CA-G.R. CV No. 71506.The facts are:Cebu Country Club, Inc. (CCCI), petitioner, is a domestic corporation operating as a non-profit and non-stock private membership club, having its principal place of business in Banilad, Cebu City. Petitioners herein are members of its Board of Directors. Sometime in 1987, San Miguel Corporation, a special company proprietary member of CCCI, designated respondent Ricardo F. Elizagaque, its Senior Vice President and Operations Manager for the Visayas and Mindanao, as a special non-proprietary member. The designation was thereafter approved by the CCCI’s Board of Directors.In 1996, respondent filed with CCCI an application for proprietary membership. The application was indorsed by CCCI’s two (2) proprietary members, namely: Edmundo T. Misa and Silvano Ludo.

As the price of a proprietary share was around the P5 million range, Benito Unchuan, then president of CCCI, offered to sell respondent a share for only P3.5 million. Respondent, however, purchased the share of a certain Dr. Butalid for only P3 million. Consequently, on September 6, 1996, CCCI issued Proprietary Ownership Certificate No. 1446 to respondent.During the meetings dated April 4, 1997 and May 30, 1997 of the CCCI Board of Directors, action on respondent’s application for proprietary membership was deferred. In another Board meeting held on July 30, 1997, respondent’s application was voted upon. Subsequently, or on August 1, 1997, respondent received a letter from Julius Z. Neri, CCCI’s corporate secretary, informing him that the Board disapproved his application for proprietary membership.On August 6, 1997, Edmundo T. Misa, on behalf of respondent, wrote CCCI a letter of reconsideration. As CCCI did not answer, respondent, on October 7, 1997, wrote another letter of reconsideration. Still, CCCI kept silent. On November 5, 1997, respondent again sent CCCI a letter inquiring whether any member of the Board objected to his application. Again, CCCI did not reply.Consequently, on December 23, 1998, respondent filed with the Regional Trial Court (RTC), Branch 71, Pasig City a complaint for damages against petitioners, docketed as Civil Case No. 67190.After trial, the RTC rendered its Decision dated February 14, 2001 in favor of respondent, thus:WHEREFORE, judgment is hereby rendered in favor of plaintiff:1. Ordering defendants to pay, jointly and severally, plaintiff the amount of P2,340,000.00 as actual or compensatory damages.2. Ordering defendants to pay, jointly and severally, plaintiff the amount of P5,000,000.00 as moral damages.3. Ordering defendants to pay, jointly and severally, plaintiff the amount of P1,000,000.00 as exemplary damages.4. Ordering defendants to pay, jointly and severally, plaintiff the amount of P1,000,000.00 as and by way of attorney’s fees and P80,000.00 as litigation expenses.5. Costs of suit.Counterclaims are hereby DISMISSED for lack of merit.SO ORDERED.2

On appeal by petitioners, the Court of Appeals, in its Decision dated January 31, 2003, affirmed the trial court’s Decision with modification, thus:

WHEREFORE, premises considered, the assailed Decision dated February 14, 2001 of the Regional Trial Court, Branch 71, Pasig City in Civil Case No. 67190 is hereby AFFIRMED with MODIFICATION as follows:1. Ordering defendants-appellants to pay, jointly and severally, plaintiff-appellee the amount of P2,000,000.00 as moral damages;2. Ordering defendants-appellants to pay, jointly and severally, plaintiff-appellee the amount of P1,000,000.00 as exemplary damages;3. Ordering defendants-appellants to pay, jointly and severally, plaintiff-appellee the mount of P500,000.00 as attorney’s fees and P50,000.00 as litigation expenses; and4. Costs of the suit.The counterclaims are DISMISSED for lack of merit.SO ORDERED.3

On March 3, 2003, petitioners filed a motion for reconsideration and motion for leave to set the motion for oral arguments. In its Resolution4 dated October 2, 2003, the appellate court denied the motions for lack of merit.Hence, the present petition. The issue for our resolution is whether in disapproving respondent’s application for proprietary membership with CCCI, petitioners are liable to respondent for damages, and if so, whether their liability is joint and several.Petitioners contend, inter alia, that the Court of Appeals erred in awarding exorbitant damages to respondent despite the lack of evidence that they acted in bad faith in disapproving the latter’s application; and in disregarding their defense of damnum absque injuria.For his part, respondent maintains that the petition lacks merit, hence, should be denied.CCCI’s Articles of Incorporation provide in part:SEVENTH: That this is a non-stock corporation and membership therein as well as the right of participation in its assets shall be limited to qualified persons who are duly accredited owners of Proprietary Ownership Certificates issued by the corporation in accordance with its By-Laws.Corollary, Section 3, Article 1 of CCCI’s Amended By-Laws provides:SECTION 3. HOW MEMBERS ARE ELECTED – The procedure for the admission of new members of the Club shall be as follows:(a) Any proprietary member, seconded by another voting proprietary member, shall submit to the Secretary a written proposal for the admission of a candidate to the "Eligible-for-Membership List";(b) Such proposal shall be posted by the Secretary for a period of thirty (30) days on the Club bulletin board during which time any member may

interpose objections to the admission of the applicant by communicating the same to the Board of Directors;(c) After the expiration of the aforesaid thirty (30) days, if no objections have been filed or if there are, the Board considers the objections unmeritorious, the candidate shall be qualified for inclusion in the "Eligible-for-Membership List";(d) Once included in the "Eligible-for-Membership List" and after the candidate shall have acquired in his name a valid POC duly recorded in the books of the corporation as his own, he shall become a Proprietary Member, upon a non-refundable admission fee of P1,000.00, provided that admission fees will only be collected once from any person.On March 1, 1978, Section 3(c) was amended to read as follows:(c) After the expiration of the aforesaid thirty (30) days, the Board may, by unanimous vote of all directors present at a regular or special meeting , approve the inclusion of the candidate in the "Eligible-for-Membership List".As shown by the records, the Board adopted a secret balloting known as the "black ball system" of voting wherein each member will drop a ball in the ballot box. A white ball represents conformity to the admission of an applicant, while a black ball means disapproval. Pursuant to Section 3(c), as amended, cited above, a unanimous vote of the directors is required. When respondent’s application for proprietary membership was voted upon during the Board meeting on July 30, 1997, the ballot box contained one (1) black ball. Thus, for lack of unanimity, his application was disapproved.Obviously, the CCCI Board of Directors, under its Articles of Incorporation, has the right to approve or disapprove an application for proprietary membership. But such right should not be exercised arbitrarily. Articles 19 and 21 of the Civil Code on the Chapter on Human Relations provide restrictions, thus:Article 19. 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.Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.In GF Equity, Inc. v. Valenzona,5 we expounded Article 19 and correlated it with Article 21, thus:This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of one's rights but also in the performance of one's duties. These standards are the following: to act with justice; to give everyone his

due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper. (Emphasis in the original)In rejecting respondent’s application for proprietary membership, we find that petitioners violated the rules governing human relations, the basic principles to be observed for the rightful relationship between human beings and for the stability of social order. The trial court and the Court of Appeals aptly held that petitioners committed fraud and evident bad faith in disapproving respondent’s applications. This is contrary to morals, good custom or public policy. Hence, petitioners are liable for damages pursuant to Article 19 in relation to Article 21 of the same Code.It bears stressing that the amendment to Section 3(c) of CCCI’s Amended By-Laws requiring the unanimous vote of the directors present at a special or regular meeting was not printed on the application form respondent filled and submitted to CCCI. What was printed thereon was the original provision of Section 3(c) which was silent on the required number of votes needed for admission of an applicant as a proprietary member. Petitioners explained that the amendment was not printed on the application form due to economic reasons. We find this excuse flimsy and unconvincing. Such amendment, aside from being extremely significant, was introduced way back in 1978 or almost twenty (20) years before respondent filed his application. We cannot fathom why such a prestigious and exclusive golf country club, like the CCCI, whose members are all affluent, did not have enough money to cause the printing of an updated application form.It is thus clear that respondent was left groping in the dark wondering why his application was disapproved. He was not even informed that a unanimous vote of the Board members was required. When he sent a letter for reconsideration and an inquiry whether there was an objection to his application, petitioners apparently ignored him. Certainly, respondent did not deserve this kind of treatment. Having been designated by San Miguel Corporation as a special non-proprietary member of CCCI, he should have

been treated by petitioners with courtesy and civility. At the very least, they should have informed him why his application was disapproved.The exercise of a right, though legal by itself, must nonetheless be in accordance with the proper norm. When the right is exercised arbitrarily, unjustly or excessively and results in damage to another, a legal wrong is committed for which the wrongdoer must be held responsible.6 It bears reiterating that the trial court and the Court of Appeals held that petitioners’ disapproval of respondent’s application is characterized by bad faith. As to petitioners’ reliance on the principle of damnum absque injuria or damage without injury, suffice it to state that the same is misplaced. In Amonoy v. Gutierrez,7 we held that this principle does not apply when there is an abuse of a person’s right, as in this case.As to the appellate court’s award to respondent of moral damages, we find the same in order. Under Article 2219 of the New Civil Code, moral damages may be recovered, among others, in acts and actions referred to in Article 21. We believe respondent’s testimony that he suffered mental anguish, social humiliation and wounded feelings as a result of the arbitrary denial of his application. However, the amount of P2,000,000.00 is excessive. While there is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral damages, the same should not be palpably and scandalously excessive. Moral damages are not intended to impose a penalty to the wrongdoer, neither to enrich the claimant at the expense of the defendant.8 Taking into consideration the attending circumstances here, we hold that an award to respondent of P50,000.00, instead of P2,000,000.00, as moral damages is reasonable.Anent the award of exemplary damages, Article 2229 allows it by way of example or correction for the public good. Nonetheless, since exemplary damages are imposed not to enrich one party or impoverish another but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions,9 we reduce the amount from P1,000,000.00 to P25,000.00 only.On the matter of attorney’s fees and litigation expenses, Article 2208 of the same Code provides, among others, that attorney’s fees and expenses of litigation may be recovered in cases when exemplary damages are awarded and where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered, as in this case. In any event, however, such award must be reasonable, just and equitable. Thus, we reduce the amount of attorney’s fees (P500,000.00) and litigation expenses (P50,000.00) to P50,000.00 and P25,000.00, respectively.

Lastly, petitioners’ argument that they could not be held jointly and severally liable for damages because only one (1) voted for the disapproval of respondent’s application lacks merit.Section 31 of the Corporation Code provides:SEC. 31. Liability of directors, trustees or officers. — Directors or trustees who willfully and knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of gross negligence or bad faith in directing the affairs of the corporation or acquire any personal or pecuniary interest in conflict with their duty as such directors, or trustees shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons. (Emphasis ours)WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 71506 are AFFIRMED with modification in the sense that (a) the award of moral damages is reduced from P2,000,000.00 to P50,000.00; (b) the award of exemplary damages is reduced from P1,000,000.00 to P25,000.00; and (c) the award of attorney’s fees and litigation expenses is reduced from P500,000.00 and P50,000.00 to P50,000.00 and P25,000.00, respectively.Costs against petitioners.SO ORDERED.FIRST DIVISION[G.R. No. 127358. March 31, 2005]NOEL BUENAVENTURA, petitioner, vs. COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, respondents.[G.R. No. 127449. March 31, 2005]NOEL BUENAVENTURA, petitioner, vs. COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, respondents.D E C I S I O NAZCUNA, J.:These cases involve a petition for the declaration of nullity of marriage, which was filed by petitioner Noel Buenaventura on July 12, 1992, on the ground of the alleged psychological incapacity of his wife, Isabel Singh Buenaventura, herein respondent. After respondent filed her answer, petitioner, with leave of court, amended his petition by stating that both he and his wife were psychologically incapacitated to comply with the essential obligations of marriage. In response, respondent filed an amended answer denying the allegation that she was psychologically incapacitated.[1]

On July 31, 1995, the Regional Trial Court promulgated a Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered as follows:1) Declaring and decreeing the marriage entered into between plaintiff Noel A. Buenaventura and defendant Isabel Lucia Singh Buenaventura on July 4, 1979, null and void ab initio;2) Ordering the plaintiff to pay defendant moral damages in the amount of 2.5 million pesos and exemplary damages of 1 million pesos with 6% interest from the date of this decision plus attorney’s fees of P100,000.00;3) Ordering the plaintiff to pay the defendant expenses of litigation of P50,000.00, plus costs;4) Ordering the liquidation of the assets of the conjugal partnership property[,] particularly the plaintiff’s separation/retirement benefits received from the Far East Bank [and] Trust Company[,] by ceding, giving and paying to her fifty percent (50%) of the net amount of P3,675,335.79 or P1,837,667.89 together with 12% interest per annum from the date of this decision and one-half (1/2) of his outstanding shares of stock with Manila Memorial Park and Provident Group of Companies;5) Ordering him to give a regular support in favor of his son Javy Singh Buenaventura in the amount of P15,000.00 monthly, subject to modification as the necessity arises;6) Awarding the care and custody of the minor Javy Singh Buenaventura to his mother, the herein defendant; and7) Hereby authorizing the defendant to revert back to the use of her maiden family name Singh.Let copies of this decision be furnished the appropriate civil registry and registries of properties.SO ORDERED.[2]

Petitioner appealed the above decision to the Court of Appeals. While the case was pending in the appellate court, respondent filed a motion to increase the P15,000 monthly support pendente lite of their son Javy Singh Buenaventura. Petitioner filed an opposition thereto, praying that it be denied or that such incident be set for oral argument.[3]

On September 2, 1996, the Court of Appeals issued a Resolution increasing the support pendente lite to P20,000.[4] Petitioner filed a motion for reconsideration questioning the said Resolution.[5]

On October 8, 1996, the appellate court promulgated a Decision dismissing petitioner’s appeal for lack of merit and affirming in toto the trial court’s decision.[6] Petitioner filed a motion for reconsideration which was denied. From the abovementioned Decision, petitioner filed the instant Petition for Review on Certiorari.

On November 13, 1996, through another Resolution, the Court of Appeals denied petitioner’s motion for reconsideration of the September 2, 1996 Resolution, which increased the monthly support for the son.[7] Petitioner filed a Petition for Certiorari to question these two Resolutions.On July 9, 1997, the Petition for Review on Certiorari[8] and the Petition for Certiorari[9] were ordered consolidated by this Court.[10]

In the Petition for Review on Certiorari petitioner claims that the Court of Appeals decided the case not in accord with law and jurisprudence, thus:1. WHEN IT AWARDED DEFENDANT-APPELLEE MORAL DAMAGES IN THE AMOUNT OF P2.5 MILLION AND EXEMPLARY DAMAGES OF P1 MILLION, WITH 6% INTEREST FROM THE DATE OF ITS DECISION, WITHOUT ANY LEGAL AND MORAL BASIS;2. WHEN IT AWARDED P100,000.00 ATTORNEY’S FEES AND P50,000.00 EXPENSES OF LITIGATION, PLUS COSTS, TO DEFENDANT-APPELLEE, WITHOUT FACTUAL AND LEGAL BASIS;3. WHEN IT ORDERED PLAINTIFF-APPELLANT NOEL TO PAY DEFENDANT-APPELLEE ONE-HALF OR P1,837,667.89 OUT OF HIS RETIREMENT BENEFITS RECEIVED FROM THE FAR EAST BANK AND TRUST CO., WITH 12% INTEREST THEREON FROM THE DATE OF ITS DECISION, NOTWITHSTANDING THAT SAID RETIREMENT BENEFITS ARE GRATUITOUS AND EXCLUSIVE PROPERTY OF NOEL, AND ALSO TO DELIVER TO DEFENDANT-APPELLEE ONE-HALF OF HIS SHARES OF STOCK WITH THE MANILA MEMORIAL PARK AND THE PROVIDENT GROUP OF COMPANIES, ALTHOUGH SAID SHARES OF STOCK WERE ACQUIRED BY NOEL BEFORE HIS MARRIAGE TO RESPONDENT ISABEL AND ARE, THEREFORE, AGAIN HIS EXCLUSIVE PROPERTIES; AND4. WHEN IT AWARDED EXCLUSIVE CARE AND CUSTODY OVER THE PARTIES’ MINOR CHILD TO DEFENDANT-APPELLEE WITHOUT ASKING THE CHILD (WHO WAS ALREADY 13 YEARS OLD AT THAT TIME) HIS CHOICE AS TO WHOM, BETWEEN HIS TWO PARENTS, HE WOULD LIKE TO HAVE CUSTODY OVER HIS PERSON.[11]

In the Petition for Certiorari, petitioner advances the following contentions:THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION WHEN IT REFUSED TO SET RESPONDENT’S MOTION FOR INCREASED SUPPORT FOR THE PARTIES’ SON FOR HEARING.[12]

THERE WAS NO NEED FOR THE COURT OF APPEALS TO INCREASE JAVY’S MONTHLY SUPPORT OF P15,000.00 BEING GIVEN BY PETITIONER EVEN AT PRESENT PRICES.[13]

IN RESOLVING RESPONDENT’S MOTION FOR THE INCREASE OF JAVY’S SUPPORT, THE COURT OF APPEALS SHOULD HAVE EXAMINED THE LIST OF EXPENSES SUBMITTED BY RESPONDENT IN THE LIGHT OF PETITIONER’S

OBJECTIONS THERETO, INSTEAD OF MERELY ASSUMING THAT JAVY IS ENTITLED TO A P5,000 INCREASE IN SUPPORT AS SAID AMOUNT IS “TOO MINIMAL.”[14]

LIKEWISE, THE COURT OF APPEALS SHOULD HAVE GIVEN PETITIONER AN OPPORTUNITY TO PROVE HIS PRESENT INCOME TO SHOW THAT HE CANNOT AFFORD TO INCREASE JAVY’S SUPPORT.[15]

With regard to the first issue in the main case, the Court of Appeals articulated:On Assignment of Error C, the trial court, after findings of fact ascertained from the testimonies not only of the parties particularly the defendant-appellee but likewise, those of the two psychologists, awarded damages on the basis of Articles 21, 2217 and 2229 of the Civil Code of the Philippines.Thus, the lower court found that plaintiff-appellant deceived the defendant-appellee into marrying him by professing true love instead of revealing to her that he was under heavy parental pressure to marry and that because of pride he married defendant-appellee; that he was not ready to enter into marriage as in fact his career was and always would be his first priority; that he was unable to relate not only to defendant-appellee as a husband but also to his son, Javy, as a father; that he had no inclination to make the marriage work such that in times of trouble, he chose the easiest way out, that of leaving defendant–appellee and their son; that he had no desire to keep defendant-appellee and their son as proved by his reluctance and later, refusal to reconcile after their separation; that the aforementioned caused defendant-appellee to suffer mental anguish, anxiety, besmirched reputation, sleepless nights not only in those years the parties were together but also after and throughout their separation.Plaintiff-appellant assails the trial court’s decision on the ground that unlike those arising from a breach in ordinary contracts, damages arising as a consequence of marriage may not be awarded. While it is correct that there is, as yet, no decided case by the Supreme Court where damages by reason of the performance or non-performance of marital obligations were awarded, it does not follow that no such award for damages may be made.Defendant-appellee, in her amended answer, specifically prayed for moral and exemplary damages in the total amount of 7 million pesos. The lower court, in the exercise of its discretion, found full justification of awarding at least half of what was originally prayed for. We find no reason to disturb the ruling of the trial court.[16]

The award by the trial court of moral damages is based on Articles 2217 and 21 of the Civil Code, which read as follows:

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission.ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.The trial court referred to Article 21 because Article 2219 [17] of the Civil Code enumerates the cases in which moral damages may be recovered and it mentions Article 21 as one of the instances. It must be noted that Article 21 states that the individual must willfully cause loss or injury to another. There is a need that the act is willful and hence done in complete freedom. In granting moral damages, therefore, the trial court and the Court of Appeals could not but have assumed that the acts on which the moral damages were based were done willfully and freely, otherwise the grant of moral damages would have no leg to stand on.On the other hand, the trial court declared the marriage of the parties null and void based on Article 36 of the Family Code, due to psychological incapacity of the petitioner, Noel Buenaventura. Article 36 of the Family Code states:A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.Psychological incapacity has been defined, thus:. . . no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. . . .[18]

The Court of Appeals and the trial court considered the acts of the petitioner after the marriage as proof of his psychological incapacity, and therefore a product of his incapacity or inability to comply with the essential obligations of marriage. Nevertheless, said courts considered these acts as willful and hence as grounds for granting moral damages. It is contradictory

to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. By declaring the petitioner as psychologically incapacitated, the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his or her disability and yet willfully concealed the same. No such evidence appears to have been adduced in this case.For the same reason, since psychological incapacity means that one is truly incognitive of the basic marital covenants that one must assume and discharge as a consequence of marriage, it removes the basis for the contention that the petitioner purposely deceived the private respondent. If the private respondent was deceived, it was not due to a willful act on the part of the petitioner. Therefore, the award of moral damages was without basis in law and in fact.Since the grant of moral damages was not proper, it follows that the grant of exemplary damages cannot stand since the Civil Code provides that exemplary damages are imposed in addition to moral, temperate, liquidated or compensatory damages.[19]

With respect to the grant of attorney’s fees and expenses of litigation the trial court explained, thus:Regarding Attorney’s fees, Art. 2208 of the Civil Code authorizes an award of attorney’s fees and expenses of litigation, other than judicial costs, when as in this case the plaintiff’s act or omission has compelled the defendant to litigate and to incur expenses of litigation to protect her interest (par. 2), and where the Court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered. (par. 11)[20]

The Court of Appeals reasoned as follows:On Assignment of Error D, as the award of moral and exemplary damages is fully justified, the award of attorney’s fees and costs of litigation by the trial court is likewise fully justified.[21]

The acts or omissions of petitioner which led the lower court to deduce his psychological incapacity, and his act in filing the complaint for the annulment of his marriage cannot be considered as unduly compelling the private respondent to litigate, since both are grounded on petitioner’s psychological incapacity, which as explained above is a mental incapacity causing an utter inability to comply with the obligations of marriage. Hence, neither can be a ground for attorney’s fees and litigation expenses.

Furthermore, since the award of moral and exemplary damages is no longer justified, the award of attorney’s fees and expenses of litigation is left without basis.Anent the retirement benefits received from the Far East Bank and Trust Co. and the shares of stock in the Manila Memorial Park and the Provident Group of Companies, the trial court said:The third issue that must be resolved by the Court is what to do with the assets of the conjugal partnership in the event of declaration of annulment of the marriage. The Honorable Supreme Court has held that the declaration of nullity of marriage carries ipso facto a judgment for the liquidation of property (Domingo v. Court of Appeals, et al., G.R. No. 104818, Sept. 17, 1993, 226 SCRA, pp. 572 – 573, 586). Thus, speaking through Justice Flerida Ruth P. Romero, it was ruled in this case:When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of their presumptive legitimes, unless such matters had been adjudicated in the previous proceedings.The parties here were legally married on July 4, 1979, and therefore, all property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved (Art. 116, New Family Code; Art. 160, Civil Code). Art. 117 of the Family Code enumerates what are conjugal partnership properties. Among others they are the following:1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;2) Those obtained from the labor, industry, work or profession of either or both of the spouses;3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse. . . .Applying the foregoing legal provisions, and without prejudice to requiring an inventory of what are the parties’ conjugal properties and what are the exclusive properties of each spouse, it was disclosed during the proceedings in this case that the plaintiff who worked first as Branch Manager and later as Vice-President of Far East Bank & Trust Co. received separation/retirement package from the said bank in the amount of P3,701,500.00 which after certain deductions amounting to P26,164.21 gave

him a net amount of P3,675,335.79 and actually paid to him on January 9, 1995 (Exhs. 6, 7, 8, 9, 10, 11). Not having shown debts or obligations other than those deducted from the said retirement/separation pay, under Art. 129 of the Family Code “The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlement or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code.” In this particular case, however, there had been no marriage settlement between the parties, nor had there been any voluntary waiver or valid forfeiture of the defendant wife’s share in the conjugal partnership properties. The previous cession and transfer by the plaintiff of his one-half (1/2) share in their residential house and lot covered by T.C.T. No. S-35680 of the Registry of Deeds of Parañaque, Metro Manila, in favor of the defendant as stipulated in their Compromise Agreement dated July 12, 1993, and approved by the Court in its Partial Decision dated August 6, 1993, was actually intended to be in full settlement of any and all demands for past support. In reality, the defendant wife had allowed some concession in favor of the plaintiff husband, for were the law strictly to be followed, in the process of liquidation of the conjugal assets, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom their only child has chosen to remain (Art. 129, par. 9). Here, what was done was one-half (1/2) portion of the house was ceded to defendant so that she will not claim anymore for past unpaid support, while the other half was transferred to their only child as his presumptive legitime.Consequently, nothing yet has been given to the defendant wife by way of her share in the conjugal properties, and it is but just, lawful and fair, that she be given one-half (1/2) share of the separation/retirement benefits received by the plaintiff the same being part of their conjugal partnership properties having been obtained or derived from the labor, industry, work or profession of said defendant husband in accordance with Art. 117, par. 2 of the Family Code. For the same reason, she is entitled to one-half (1/2) of the outstanding shares of stock of the plaintiff husband with the Manila Memorial Park and the Provident Group of Companies.[22]

The Court of Appeals articulated on this matter as follows:On Assignment of Error E, plaintiff-appellant assails the order of the trial court for him to give one-half of his separation/retirement benefits from Far East Bank & Trust Company and half of his outstanding shares in Manila

Memorial Park and Provident Group of Companies to the defendant-appellee as the latter’s share in the conjugal partnership.On August 6, 1993, the trial court rendered a Partial Decision approving the Compromise Agreement entered into by the parties. In the same Compromise Agreement, the parties had agreed that henceforth, their conjugal partnership is dissolved. Thereafter, no steps were taken for the liquidation of the conjugal partnership.Finding that defendant-appellee is entitled to at least half of the separation/retirement benefits which plaintiff-appellant received from Far East Bank & Trust Company upon his retirement as Vice-President of said company for the reason that the benefits accrued from plaintiff–appellant’s service for the bank for a number of years, most of which while he was married to defendant-appellee, the trial court adjudicated the same. The same is true with the outstanding shares of plaintiff-appellant in Manila Memorial Park and Provident Group of Companies. As these were acquired by the plaintiff-appellant at the time he was married to defendant-appellee, the latter is entitled to one-half thereof as her share in the conjugal partnership. We find no reason to disturb the ruling of the trial court.[23]

Since the present case does not involve the annulment of a bigamous marriage, the provisions of Article 50 in relation to Articles 41, 42 and 43 of the Family Code, providing for the dissolution of the absolute community or conjugal partnership of gains, as the case may be, do not apply. Rather, the general rule applies, which is that in case a marriage is declared void ab initio, the property regime applicable and to be liquidated, partitioned and distributed is that of equal co-ownership.In Valdes v. Regional Trial Court, Branch 102, Quezon City,[24] this Court expounded on the consequences of a void marriage on the property relations of the spouses and specified the applicable provisions of law:The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; it provides:ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" of the Code.Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership.Article 147 of the Family Code, in substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now expressly provides that —(a) Neither party can dispose or encumber by act[s] inter vivos [of] his or her share in co-ownership property, without the consent of the other, during the period of cohabitation; and

(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation or declaration of nullity of the marriage.…In deciding to take further cognizance of the issue on the settlement of the parties' common property, the trial court acted neither imprudently nor precipitately; a court which had jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner and private respondent own the "family home" and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled), are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 and 42, of the Family Code, on the effects of the termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to

ordain, in the latter case, the ordinary rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses.[25]

Since the properties ordered to be distributed by the court a quo were found, both by the trial court and the Court of Appeals, to have been acquired during the union of the parties, the same would be covered by the co-ownership. No fruits of a separate property of one of the parties appear to have been included or involved in said distribution. The liquidation, partition and distribution of the properties owned in common by the parties herein as ordered by the court a quo should, therefore, be sustained, but on the basis of co-ownership and not of the regime of conjugal partnership of gains.As to the issue on custody of the parties over their only child, Javy Singh Buenaventura, it is now moot since he is about to turn twenty-five years of age on May 27, 2005[26] and has, therefore, attained the age of majority.With regard to the issues on support raised in the Petition for Certiorari, these would also now be moot, owing to the fact that the son, Javy Singh Buenaventura, as previously stated, has attained the age of majority.WHEREFORE, the Decision of the Court of Appeals dated October 8, 1996 and its Resolution dated December 10, 1996 which are contested in the Petition for Review (G.R. No. 127449), are hereby MODIFIED, in that the award of moral and exemplary damages, attorney’s fees, expenses of litigation and costs are deleted. The order giving respondent one-half of the retirement benefits of petitioner from Far East Bank and Trust Co. and one-half of petitioner’s shares of stock in Manila Memorial Park and in the Provident Group of Companies is sustained but on the basis of the liquidation, partition and distribution of the co-ownership and not of the regime of conjugal partnership of gains. The rest of said Decision and Resolution are AFFIRMED.The Petition for Review on Certiorari (G.R. No. 127358) contesting the Court of Appeals’ Resolutions of September 2, 1996 and November 13, 1996 which increased the support pendente lite in favor of the parties’ son, Javy Singh Buenaventura, is now MOOT and ACADEMIC and is, accordingly, DISMISSED.No costs.SO ORDERED.

Republic of the PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 86720 September 2, 1994MHP GARMENTS, INC., and LARRY C. DE GUZMAN, petitioners, vs.THE HONORABLE COURT OF APPEALS, AGNES VILLA CRUZ, MIRASOL LUGATIMAN, and GERTRUDES GONZALES, respondents.Benjamin M. Dacanay for petitioners.Emmanuel O. Tansingco for private respondents.PUNO, J.:The constitutional protection of our people against unreasonable search and seizure is not merely a pleasing platitude. It vouchsafes our right to privacy and dignity against undesirable intrusions committed by any public officer or private individual. An infringement of this right justifies an award for damages.On February 22, 1983, petitioner MHP Garments, Inc., was awarded by the Boy Scouts of the Philippines, the exclusive franchise to sell and distribute official Boy Scouts uniforms, supplies, badges, and insignias. In their Memorandum Agreement, petitioner corporation was given the authority to "undertake or cause to be undertaken the prosecution in court of all illegal sources of scout uniforms and other scouting supplies." 1

Sometime in October 1983, petitioner corporation received information that private respondents Agnes Villa Cruz, Mirasol Lugatiman, and Gertrudes Gonzales were selling Boy Scouts items and paraphernalia without any authority. Petitioner de Guzman, an employee of petitioner corporation, was tasked to undertake the necessary surveillance and to make a report to the Philippine Constabulary (PC).On October 25, 1983, at about 10:30 A.M., petitioner de Guzman, Captain Renato M. Peñafiel, and two (2) other constabulary men of the Reaction Force Battalion, Sikatuna Village, Diliman, Quezon City went to the stores of respondents at the Marikina Public Market. Without any warrant, they seized the boy and girl scouts pants, dresses, and suits on display at respondents' stalls. The seizure caused a commotion and embarrassed private respondents. Receipts were issued for the seized items. The items were then turned over by Captain Peñafiel to petitioner corporation for safekeeping.A criminal complaint for unfair competition was then filed against private respondents. 2 During its pendency, petitioner de Guzman exacted from

private respondent Lugatiman the sum of THREE THOUSAND ONE HUNDRED PESOS (P3,100.00) in order to be dropped from the complaint. On December 6, 1983, after a preliminary investigation, the Provincial Fiscal of Rizal dismissed the complaint against all the private respondents. On February 6, 1984, he also ordered the return of the seized items. The seized items were not immediately returned despite demands. 3 Private respondents had to go personally to petitioners' place of business to recover their goods. Even then, not all the seized items were returned. The other items returned were of inferior quality.Private respondents then filed Civil Case No. 51144 against the petitioners for sums of money and damages. 4 In its Decision dated January 9, 1987, the trial court ruled for the private respondents, thus:WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendants, ordering the latter jointly and severally:1. To return the amount of P3,100.00 to plaintiff Mirasol Lugatiman with interest at 12% per annum from January 12, 1984, the date of the last receipt issued, until fully paid;2. To pay plaintiff Agnes Villa Cruz the sum of P2,000.00 for the 26 pieces of girl scout items not returned;3. To pay plaintiffs the amount of P50,000.00 for and as moral damages and P15,000.00 for and as exemplary damages; and4. P5,000.00 for and as attorney's fees and litigation expenses.Costs against the defendants.SO ORDERED.The decision was appealed to the respondent court. On January 18, 1989, its Fifth Division, 5 affirmed the Decision with modification, thus:WHEREFORE, the decision appealed from is AFFIRMED with MODIFICATION; and, as modified, the dispositive portion thereof now reads as follows:Judgment is hereby rendered in favor of plaintiffs (private respondents) and against defendants (petitioners), ordering the latter jointly and severally;1. To return the amount of P3,100.00 to plaintiff (respondent) Mirasol Lugatiman and cancel her application for distributor's license;2. To pay plaintiff (respondent) Agnes Villa Cruz the sum of P2,000.00 for the unreturned 26 pieces of girl scouts items with interest at 12% per annum from June 4, 1984 (date the complaint was filed) until it is fully paid;3. To pay plaintiffs (respondents) the amount of P10,000.00 each, or a total of P30,000.00, for and as moral damages; and P5,000.00 each, or a total of P15,000.00, for and as exemplary damages; and4. To pay plaintiffs (respondents) P5,000.00 for and as attorney's fees and litigation expenses.

Costs of the case a quo and the instant appeal are assessed jointly and severally against defendants-appellants (petitioners) MHP Garments, Inc. and Larry de Guzman.SO ORDERED.In this petition for certiorari, petitioners contend:FIRST ASSIGNMENT OF ERRORTHE COURT OF APPEALS ERRED IN IMPUTING LIABILITY FOR DAMAGES TO THE PETITIONERS WHO DID NOT EFFECT THE SEIZURE OF THE SUBJECT MERCHANDISE.SECOND ASSIGNMENT OF ERRORTHE COURT OF APPEALS ERRED WHEN IT MADE A FINDING THAT THE MANNER WITH WHICH THE CONFISCATION OF PRIVATE RESPONDENTS WAS TORTIOUS BUT PENALIZED INSTEAD THE PETITIONERS WHO DID NOT COMMIT THE ACT OF CONFISCATION.THIRD ASSIGNMENT OF ERRORTHE COURT OF APPEALS ERRED WHEN IT FOUND FOR THE PRIVATE RESPONDENTS AND AGAINST THE PETITIONERS.We affirm.Article III, section 2, of the Constitution protects our people from unreasonable search and seizure. It provides:The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.This provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. 6 In the case at bench, the seizure was made without any warrant. Under the Rules of Court, 7 a warrantless search can only be undertaken under the following circumstance:Sec. 12. Search incident to a lawful arrest. - A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.We hold that the evidence did not justify the warrantless search and seizure of private respondents' goods. Petitioner corporation received information that private respondents were illegally selling Boy Scouts items and paraphernalia in October 1983. The specific date and time are not established in the evidence adduced by the parties. Petitioner de Guzman

then made a surveillance of the stores of private respondents. They reported to the Philippine Constabulary and on October 25, 1983, the raid was made on the stores of private respondents and the supposed illicit goods were seized. The progression of time between the receipt of the information and the raid of the stores of private respondents shows there was sufficient time for petitioners and the PC raiding party to apply for a judicial warrant. Despite the sufficiency of time, they did not apply for a warrant and seized the goods of private respondents. In doing so, they took the risk of a suit for damages in case the seizure would be proved to violate the right of private respondents against unreasonable search and seizure. In the case at bench, the search and seizure were clearly illegal. There was no probable cause for the seizure. Probable cause for a search has been defined as "such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched." 8 These facts and circumstances were not in any way shown by the petitioners to justify their warrantless search and seizure. Indeed, after a preliminary investigation, the Provincial Fiscal of Rizal dismissed their complaint for unfair competition and later ordered the return of the seized goods.Petitioners would deflect their liability with the argument that it was the Philippine Constabulary that conducted the raid and their participation was only to report the alleged illegal activity of private respondents.While undoubtedly, the members of the PC raiding team should have been included in the complaint for violation of the private respondents' constitutional rights, still, the omission will not exculpate petitioners.In the case of Lim vs. Ponce de Leon, 9 we ruled for the recovery of damages for violation of constitutional rights and liberties from public officer or private individual, thus:Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages.xxx xxx xxx(9) The rights to be secure in one's person, house, papers, and effects against unreasonable searches and seizures.xxx xxx xxxThe indemnity shall include moral damages. Exemplary damages may also be adjudged.

Art. 2219. Moral damages may be recovered in the following and analogous cases:xxx xxx xxx(6) Illegal search;(1) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.Pursuant to the foregoing provisions, a person whose constitutional rights have been violated or impaired is entitled to actual and moral damages from the public officer or employee responsible therefor. In addition, exemplary damages may also be awarded.xxx xxx xxxThe very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by plea of the good faith. In the United States this remedy is in the nature of a tort. (emphasis supplied)In the subsequent case of Aberca vs. Ver, 10 the Court En Banc explained the liability of persons indirectly responsible, viz:[T]he decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person "directly or indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e., the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.xxx xxx xxxWhile it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damages suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors.xxx xxx xxx[N]either can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly, responsible for its violations. (emphasis supplied)

Applying the aforecited provisions and leading cases, the respondent court correctly granted damages to private respondents. Petitioners were indirectly involved in transgressing the right of private respondents against unreasonable search and seizure. Firstly, they instigated the raid pursuant to their covenant in the Memorandum Agreement to undertake the prosecution in court of all illegal sources of scouting supplies. 11 As correctly observed by respondent court:Indeed, the acts committed by the PC soldiers of unlawfully seizing appellees' (respondents') merchandise and of filing the criminal complaint for unfair competition against appellees (respondents) were for the protection and benefit of appellant (petitioner) corporation. Such being the case, it is, thus, reasonably fair to infer from those acts that it was upon appellant (petitioner) corporation's instance that the PC soldiers conducted the raid and effected the illegal seizure. These circumstances should answer the trial court's query — posed in its decision now under consideration — as to why the PC soldiers immediately turned over the seized merchandise to appellant (petitioner) corporation. 12

The raid was conducted with the active participation of their employee. Larry de Guzman did not lift a finger to stop the seizure of the boy and girl scouts items. By standing by and apparently assenting thereto, he was liable to the same extent as the officers themselves. 13 So with the petitioner corporation which even received for safekeeping the goods unreasonably seized by the PC raiding team and de Guzman, and refused to surrender them for quite a time despite the dismissal of its complaint for unfair competition.Secondly, Letter of Instruction No. 1299 was precisely crafted on March 9, 1983 to safeguard not only the privilege of franchise holder of scouting items but also the citizen's constitutional rights, to wit:TITLE: APPREHENSION OF UNAUTHORIZED MANUFACTURERS AND DISTRIBUTORS OF SCOUT PARAPHERNALIA AND IMPOUNDING OF SAID PARAPHERNALIA.ABSTRACT:Directs all law enforcement agencies of the Republic of the Philippines, to apprehend immediately unauthorized manufacturers and distributors of Scout paraphernalia, upon proper application by the Boy Scouts of the Philippines and/or Girl Scouts of the Philippines for warrant of arrest and/or search warrant with a judge, or such other responsible officer as may be authorized by law; and to impound the said paraphernalia to be used as evidence in court or other appropriate administrative body. Orders the immediate and strict compliance with the Instructions. 14

Under the above provision and as aforediscussed, petitioners miserably failed to report the unlawful peddling of scouting goods to the Boy Scouts of the Philippines for the proper application of a warrant. Private respondents' rights are immutable and cannot be sacrificed to transient needs. 15

Petitioners did not have the unbridled license to cause the seizure of respondents' goods without any warrant.And thirdly, if petitioners did not have a hand in the raid, they should have filed a third-party complaint against the raiding team for contribution or any other relief, 16 in respect of respondents' claim for Recovery of Sum of Money with Damages. Again, they did not.We have consistently ruled that moral damages are not awarded to penalize the defendant but to compensate the plaintiff for the injuries he may have suffered. 17 Conformably with our ruling in Lim vs. Ponce de Leon, op. cit., moral damages can be awarded in the case at bench. There can be no doubt that petitioners must have suffered sleepless nights, serious anxiety, and wounded feelings due the tortious raid caused by petitioners. Private respondents' avowals of embarrassment and humiliation during the seizure of their merchandise were supported by their testimonies. Respondent Cruz declared:I felt very nervous. I was crying to loss (sic) my goods and capital because I am doing business with borrowed money only, there was commotion created by the raiding team and they even stepped on some of the pants and dresses on display for sale. All passersby stopped to watch and stared at me with accusing expressions. I was trembling and terribly ashamed, sir. 18

Respondent Lugatiman testified:I felt very nervous. I was crying and I was very much ashamed because many people have been watching the PC soldiers hauling my items, and many/I (sic) heard say "nakaw pala ang mga iyan" for which I am claiming P25,000.00 for damages. 19

While respondent Gonzalez stated thus:I do not like the way the raid was conducted by the team sir because it looked like that what I have been selling were stolen items that they should be confiscated by uniformed soldiers. Many people were around and the more the confiscation was made in a scandalous manner; every clothes, T-shirts, pants and dresses even those not wrapped dropped to the ground. I was terribly shamed in the presence of market goers that morning. 20

Needles to state, the wantonness of the wrongful seizure justifies the award of exemplary damages. 21 It will also serve as a stern reminder to all and sundry that the constitutional protection against unreasonable search and seizure is a virile reality and not a mere burst of rhetoric. The all

encompassing protection extends against intrusions directly done both by government and indirectly by private entities.IN VIEW WHEREOF, the appealed decision is AFFIRMED WITH MODIFICATION. We impose a SIX PERCENT (6%) interest from January 9, 1987 on the TWO THOUSAND PESOS (P2,000.00) for the unreturned twenty-six (26) pieces of girl scouts items and a TWELVE PERCENT (12%) interest, in lieu of SIX PERCENT (6%), on the said amount upon finality of this Decision until the payment thereof. 22 Costs against petitioners.SO ORDERED.FIRST DIVISIONG.R. No.148004 January 22, 2007VINCENT E. OMICTIN, Petitioner, vs.HON. COURT OF APPEALS (Special Twelfth Division) and GEORGE I. LAGOS, Respondents.D E C I S I O NAZCUNA, J.:This is a petition for certiorari1 with prayer for a writ of preliminary injunction seeking the nullification of the decision rendered by the Court of Appeals (CA) on June 30, 2000, and its resolution, dated March 5, 2001 in CA-G.R. SP No. 55834 entitled "George I. Lagos v. Hon. Reinato G. Quilala, Presiding Judge of RTC, Br. 57, Makati, Hon. Elizabeth Tayo Chua, Asst. City Prosecutor, Makati City, and Vincent E. Omictin."In its assailed decision, the CA declared the existence of a prejudicial question and ordered the suspension of the criminal proceedings initiated by petitioner Vincent E. Omictin on behalf of Saag Phils., Inc. against private respondent George I. Lagos, in view of a pending case before the Securities and Exchange Commission (SEC) filed by the latter against the former, Saag Pte. (S) Ltd., Nicholas Ng, Janifer Yeo and Alex Y. Tan.The facts are as follows:Petitioner Vincent E. Omictin, Operations Manager Ad Interim of Saag Phils., Inc., filed a complaint for two counts of estafa with the Office of the City Prosecutor of Makati against private respondent George I. Lagos. He alleged that private respondent, despite repeated demands, refused to return the two company vehicles entrusted to him when he was still the president of Saag Phils., Inc..On February 26, 1999, public prosecutor Alex G. Bagaoisan recommended the indictment of private respondent, and on the same day, respondent was charged with the crime of estafa under Article 315, par. 1(b) of the Revised Penal Code before the Regional Trial Court (RTC), Branch 57 of Makati City.

The case was docketed as Criminal Case No. 99-633, entitled "People of the Philippines v. George I. Lagos."On June 4, 1999, private respondent filed a motion to recuse praying that Presiding Judge Reinato G. Quilala inhibit himself from hearing the case based on the following grounds:a) In an order, dated May 28, 1999, the presiding judge summarily denied respondent’s motion: 1) to defer issuance of the warrant of arrest; and 2) to order reinvestigation. b) Immediately before the issuance of the above-mentioned order, the presiding judge and Atty. Alex Y. Tan, SAAG Philippines, Inc.’s Ad Interim President, were seen together.2

On June 24, 1999, private respondent filed a motion to suspend proceedings on the basis of a prejudicial question because of a pending petition with the Securities and Exchange Commission (SEC) involving the same parties. It appears that on January 7, 1999, private respondent filed SEC Case No. 01-99-6185 for the declaration of nullity of the respective appointments of Alex Y. Tan and petitioner as President Ad Interim and Operations Manager Ad Interim of Saag Phils., Inc., declaration of dividends, recovery of share in the profits, involuntary dissolution and the appointment of a receiver, recovery of damages and an application for a temporary restraining order (TRO) and injunction against Saag (S) Pte. Ltd., Nicholas Ng, Janifer Yeo, Tan and petitioner. 3

In the action before the SEC, private respondent averred that Saag (S) Pte. Ltd. is a foreign corporation organized and existing under the laws of Singapore, and is fully owned by Saag Corporation (Bhd). On July 1, 1994, he was appointed as Area Sales Manager in the Philippines by Thiang Shiang Hiang, Manager of Saag (S) Pte. Ltd. Pursuant to his appointment, respondent was authorized to organize a local joint venture corporation to be known as Saag Philippines, Inc. for the wholesale trade and service of industrial products for oil, gas and power industries in the Philippines. On September 9, 1994, Saag Philippines, Inc. was incorporated with Saag (S) Pte. Ltd. as the majority stockholder. Private respondent was appointed to the board of directors, along with Rommel I. Lagos, Jose E. Geronimo, Gan Ching Lai and Thiang Shiang Hiang, and was elected president of the domestic corporation. Later, due to intra-corporate disputes, Gan and Thiang resigned and divested their shares in Saag Corporation (Bhd), thereby resulting in a change in the controlling interest in Saag (S) Pte. Ltd. Barely three months after, or on June 23, 1998, private respondent resigned his post as president of Saag Phils., Inc. while still retaining his position as a

director of the company.4 According to private respondent, the joint venture agreement (JVA) between him or Saag Phils., Inc. and Saag (S) Pte. Ltd. provided that should the controlling interest in the latter company, or its parent company Saag Corp. (Bhd), be acquired by any other person or entity without his prior consent, he has the option either to require the other stockholders to purchase his shares or to terminate the JVA and dissolve Saag Phils., Inc. altogether. Thus, pursuant to this provision, since private respondent did not give his consent as regards the transfer of shares made by Gan and Thiang, he made several requests to Nicholas Ng, who replaced Gan as director, and Janifer Yeo, Executive Director of Saag (S) Pte. Ltd., to call for a board meeting in order to discuss the following: a) implementation of the board resolution declaring dividends; b) acquisition of private respondent’s shares by Saag (S) Pte. Ltd.; c) dissolution of Saag Phils., Inc.; and d) the termination of the JVA.Ng and Yeo failed to appear, however, in the scheduled board meetings. Instead, on September 30, 1998 they issued a letter appointing Alex Y. Tan as President Ad Interim of Saag Phils., Inc. Tan, in turn, appointed petitioner Omictin as the company’s Operations Manager Ad Interim. Citing as a reason the absence of a board resolution authorizing the continued operations of Saag Phils., Inc., private respondent retained his possession of the office equipment of the company in a fiduciary capacity as director of the corporation pending its dissolution and/or the resolution of the intra-corporate dispute. He likewise changed the locks of the offices of the company allegedly to prevent Tan and petitioner from seizing company property. Private respondent stressed that Tan’s appointment was invalid because it was in derogation of the company by-laws requiring that the president must be chosen from among the directors, and elected by the affirmative vote of a majority of all the members of the board of directors.5 As Tan’s appointment did not have the acquiescence of the board of directors, petitioner’s appointment by the former is likewise allegedly invalid. Thus, neither has the power or the authority to represent or act for Saag Phils., Inc. in any transaction or action before the SEC or any court of justice.The trial court, in an order dated September 8, 1999, denied respondent’s motion to suspend proceedings and motion to recuse.His motion for reconsideration having been denied by the trial court in its order issued on October 29, 1999, respondent filed with the CA the petition for certiorari[6] assailing the aforesaid orders. On June 30, 2000, the CA rendered its challenged decision. The pertinent portion reads:

In a case for estafa, a valid demand made by an offended party is one of the essential elements. It appears from the records that the delay of delivery of the motor vehicles by petitioner to Saag Corporation is by reason of petitioner’s contention that the demand made by Omictin and Atty. Tan to him to return the subject vehicles is not a valid demand. As earlier mentioned, petitioner filed a case with the SEC questioning therein private respondents’ appointment.If the SEC should rule that the dissolution of Saag Phils. is proper, or that the appointments of private respondents are invalid, the criminal case will eventually be dismissed due to the absence of one of the essential elements of the crime of estafa. Based on the foregoing, it is clear that a prejudicial question exists which calls for the suspension of the criminal proceedings before the lower court.WHEREFORE, in view of the foregoing, the assailed Order of September 8, 1999 and October 29, 1999, are hereby MODIFIED. The motion to suspend proceedings is hereby GRANTED and respondent court is hereby enjoined from hearing Criminal Case No. 99-633, entitled "People of the Philippines v. George I. Lagos," until the termination of the case with the Securities and Exchange Commission. The denial of the motion to recuse is hereby AFFIRMED.SO ORDERED.7

Incidentally, on January 18, 2001, the SEC case8 was transferred to the Regional Trial Court (RTC) of Mandaluyong City, Branch 214, pursuant to A.M. No. 00-11-03-SC9 implementing the Securities and Regulation Code (Republic Act No. 8799)10 enacted on July 19, 2000, vesting in the RTCs jurisdiction over intra-corporate disputes.11

Meanwhile, on March 5, 2001, the CA, addressing petitioner’s motion for reconsideration of the aforementioned decision, issued its assailed resolution:Considering that the petition for review on certiorari of the 30 June 2000 decision of this Court, filed by the Office of the Solicitor General before the Supreme Court has already TERMINATED on November 20, 2000 and a corresponding entry of judgment has already been issued by the High Court, that the same is final and executory, the private respondent’s motion for reconsideration of the decision 30 June 2000 before this Court is NOTED for being moot and academic.SO ORDERED.12

Hence, this petition raises the following issues:I

RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION -A) WHEN IT DECREED THAT A PREJUDICIAL QUESTION EXISTS IN THE SEC CASE FILED BY PRIVATE RESPONDENT AGAINST SAAG (S) PTE. LTD., A FOREIGN CORPORATION, ALTHOUGH THE PRIVATE COMPLAINANT IN THE CRIMINAL CASE FOR ESTAFA (WHERE PRIVATE RESPONDENT IS THE ACCUSED THEREIN) IS ACTUALLY SAAG PHILIPPINES, INC. A DOMESTIC CORPORATION WITH A SEPARATE JURIDICAL PERSONALITY OF ITS OWN AND WHICH IS NOT EVEN A PARTY IN THE SEC CASE; AND,B) WHEN IT ORDERED THE SUSPENSION OF THE PROCEEDINGS IN CRIMINAL CASE NO. 99-633 AGAINST PRIVATE RESPONDENT.IITHIS PETITION FOR CERTIORARI IS THE ONLY PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE PREMISES.In support of the above, petitioner argues, as follows:1. The action before the SEC and the criminal case before the trial court do not involve any prejudicial question.13 SEC Case No. 01-99-6185 mainly involves the dissolution of Saag (S) Pte. Ltd., the appointment of a receiver, the distribution of profits, and the authority of petitioner and Tan to represent Saag Phils., Inc. The entity which is being sued is Saag (S) Pte. Ltd., a foreign corporation over which the SEC has yet to acquire jurisdiction. Hence, any decision that may be rendered in the SEC case will neither be determinative of the innocence or guilt of the accused nor bind Saag Phils., Inc. because the same was not made a party to the action even if the former is its holding corporation;2. Saag Phils., Inc. has a separate corporate existence and is to be treated as a separate entity from its holding or parent company, Saag (S) Pte. Ltd. The mere fact that one or more corporations are owned or controlled by the same or single stockholder is not a sufficient ground for disregarding separate corporate personalities;3. Private respondent’s petition with the SEC seeks affirmative relief against Saag (S) Pte. Ltd. for the enforcement or application of the alleged terms of the joint venture agreement (JVA) that he purportedly entered into with the foreign corporation while he was still its Area Sales Manager in the Philippines. The foreign corporation is not licensed to do business in the Philippines, thus, a party to a contract with a foreign corporation doing business in the Philippines without a license is not entitled to relief from the latter; and4. There is no pending civil or administrative case in SEC against Saag Phils., Inc. that warrants the application of a prejudicial question and the

consequent suspension of the criminal action it has instituted against private respondent. If any, the action before the SEC was merely a ploy to delay the resolution of the criminal case and eventually frustrate the outcome of the estafa case.In sum, the main issue is whether or not a prejudicial question exists to warrant the suspension of the criminal proceedings pending the resolution of the intra-corporate controversy that was originally filed with the SEC.A prejudicial question is defined as that which 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.14 Here, the case which was lodged originally before the SEC and which is now pending before the RTC of Mandaluyong City by virtue of Republic Act No. 8799 involves facts that are intimately related to those upon which the criminal prosecution is based. Ultimately, the resolution of the issues raised in the intra-corporate dispute will determine the guilt or innocence of private respondent in the crime of estafa filed against him by petitioner before the RTC of Makati. As correctly stated by the CA, one of the elements of the crime of estafa with abuse of confidence under Article 315, par. 1(b) of the Revised Penal Code is a demand made by the offended party to the offender:The elements of estafa with abuse of confidence under subdivision No. 1, par. (b) of Art. 315 are as follows:1. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same;2. That there be misrepresentation or conversion of such money or property by the offender, or denial on his part of such receipt;3. That such misappropriation or conversion or denial is to the prejudice of another; and4. That there is a demand made by the offended party to the offender.15

Logically, under the circumstances, since the alleged offended party is Saag Phils., Inc., the validity of the demand for the delivery of the subject vehicles rests upon the authority of the person making such a demand on the company’s behalf. Private respondent is challenging petitioner’s authority to act for Saag Phils., Inc. in the corporate case pending before the RTC of Mandaluyong, Branch 214. Taken in this light, if the supposed authority of petitioner is found to be defective, it is as if no demand was ever made, hence, the prosecution for estafa cannot prosper. Moreover, the mere failure to return the thing received for safekeeping or on commission, or for

administration, or under any other obligation involving the duty to deliver or to return the same or deliver the value thereof to the owner could only give rise to a civil action and does not constitute the crime of estafa. This is because the crime is committed by misappropriating or converting money or goods received by the offender under a lawful transaction. As stated in the case of United States v. Bleibel:16

The crime of estafa is not committed by the failure to return the things received for sale on commission, or to deliver their value, but, as this class of crime is defined by law, by misappropriating or converting the money or goods received on commission. Delay in the fulfillment of a commission or in the delivery of the sum on such account received only involves civil liability. So long as the money that a person is under obligation to deliver is not demanded of him, and he fails to deliver it for having wrongfully disposed of it, there is no estafa, whatever be the cause of the debt.Likewise, by analogy, the doctrine of primary jurisdiction may be applied in this case. The issues raised by petitioner particularly the status of Saag Phils., Inc. vis-à-vis Saag (S) Pte. Ltd., as well as the question regarding the supposed authority of the latter to make a demand on behalf of the company, are proper subjects for the determination of the tribunal hearing the intra-corporate case which in this case is the RTC of Mandaluyong, Branch 214. These issues would have been referred to the expertise of the SEC in accordance with the doctrine of primary jurisdiction had the case not been transferred to the RTC of Mandaluyong.Strictly speaking, the objective of the doctrine of primary jurisdiction is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court.17 The court cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal prior to resolving the same, where the question demands the exercise of sound administrative discretion requiring special knowledge, experience and services in determining technical and intricate matters of fact.18

While the above doctrine refers specifically to an administrative tribunal, the Court believes that the circumstances in the instant case do not proscribe the application of the doctrine, as the role of an administrative tribunal such as the SEC in determining technical and intricate matters of special competence has been taken on by specially designated RTCs by virtue of Republic Act No. 8799.19 Hence, the RTC of Mandaluyong where the intra-corporate case is pending has the primary jurisdiction to determine the issues under contention relating to the status of the domestic

corporation, Saag Phils., Inc., vis-à-vis Saag Pte. Ltd.; and the authority of petitioner to act on behalf of the domestic corporation, the determination of which will have a direct bearing on the criminal case. The law recognizes that, in place of the SEC, the regular courts now have the legal competence to decide intra-corporate disputes.20 In view of the foregoing, the Court finds no substantial basis in petitioner’s contention that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction. Absent a showing of a despotic, whimsical and arbitrary exercise of power by the CA, the petition must fail.WHEREFORE, the petition is DISMISSED. The decision and resolution of the Court of Appeals in CA-G.R. SP No. 55834, dated June 30, 2000 and March 5, 2001, respectively, are AFFIRMED.No costs.SO ORDERED.THIRD DIVISIONG.R. No. 142362 May 3, 2006PHILIPPINE AGILA SATELLITE INC. and MICHAELC. U. DE GUZMAN, Complainants, vs.JOSEFINA TRINIDAD-LICHAUCO Undersecretary for Communications, Department of Transportation and Communication (DOTC), Respondents.D E C I S I O N TINGA, J.:This Petition for Review on Certiorari seeks the reversal of the Decision1

dated 21 February 2000 of the Court of Appeals in C.A. G.R. No. SP 49422. The assailed Decision authorized the dismissal of a civil complaint against respondent Josefina Trinidad-Lichauco (Lichauco), former Undersecretary for Communications of the Department of Transportation and Communication (DOTC), on the premise that the complaint constituted a suit against the State. A brief rundown of the relevant facts is in order. Petitioner Philippine Agila Satellite Inc. (PASI) is a duly organized corporation, whose President and Chief Executive Officer is co-petitioner Michael C.U. De Guzman. PASI was established by a consortium of private telecommunications carriers2 which in 1994 had entered into a Memorandum of Understanding (MOU) with the DOTC, through its then Secretary Jesus Garcia, concerning the planned launch of a Philippine-owned satellite into outer space. Under the MOU, the launch of the satellite was to be an endeavor of the private sector, and the satellite itself to be owned by the Filipino-owned consortium (subsequently organized as PASI). 3

The consortium was to grant the Philippine government one (1) transponder free of charge for the government's exclusive use for non-commercial purpose, as well as the right of first refusal to another one (1) transponder in the Philippine satellite, if available.4 The Philippine government, through the DOTC, was tasked under the MOU to secure from the International Telecommunication Union the required orbital slot(s) and frequency assignment(s) for the Philippine satellite. PASI itself was organized by the consortium in 1996. The government, together with PASI, coordinated through the International Telecommunication Union two (2) orbital slots, designated as 161º East Longitude and 153º East Longitude, for Philippine satellites. On 28 June 1996, PASI wrote then DOTC Secretary Amado S. Lagdameo, Jr., seeking for official Philippine government confirmation on the assignment of the two aforementioned Philippine orbital slots to PASI for its satellites, which PASI had designated as the Agila satellites.5 Secretary Lagdameo, Jr. replied in a letter dated 3 July 1996, confirming "the Philippine Government's assignment of Philippine orbital slots 161E and 153E to [PASI] for its [Agila] satellites."6

PASI avers that after having secured the confirmation from the Philippine government, it proceeded with preparations for the launching, operation and management of its satellites, including the availment of loans, the increase in its capital, negotiation with business partners, and an initial payment of US$3.5 Million to the French satellite manufacturer. However, respondent Lichauco, then DOTC Undersecretary for Communications, allegedly "embarked on a crusade to malign the name of [Michael de Guzman] and sabotage the business of PASI." Lichauco's purported efforts against PASI culminated allegedly in her offering orbital slot 153º East Longitude for bidding to other parties sometime in December 1997, despite the prior assignment to PASI of the said slot.7 It was later claimed by PASI that Lichauco subsequently awarded the orbital slot to an entity whose indentity was unknown to PASI.8 Aggrieved by Lichauco's actions, PASI and De Guzman instituted on 23 January 1998 a civil complaint against Lichauco, by then the Acting Secretary of the DOTC, and the "Unknown Awardee" who was to be the recipient of orbital slot 153º East Longitude. The complaint, alleging three (3) causes of action, was for injunction, declaration of nullity of award, and damages. The first cause of action, for injunction, sought to establish that the award of orbital slot 153º East Longitude should be enjoined since the DOTC had previously assigned the same orbital slot to PASI. The second cause of

action, for declaration of nullity of award, averred that the award to the unknown bidder is null and void, as it was rendered by Lichauco beyond her authority.9 The third cause of action, for damages, imputed several acts to Lichauco as part of her alleged "crusade" to malign the name of plaintiff [D]e Guzman and sabotage the business of [PASI]:12. xxx(a) On 4 December 1996, in a meeting with the members of the Board of Directors of plaintiff corporation, defendant Lichauco then uttered disparaging and defamatory comments against plaintiff de Guzman. These defamatory remarks triggered efforts from within the plaintiff corporation aimed at ousting plaintiff de Guzman from his position.(b) Defendant Lichauco, then an undersecretary of DOTC, wrote Mr. Jesli Lapuz on 5 December 1996 (barely two days after plaintiff de Guzman wrote him) to deny that the DOTC has assigned the two (2) Philippine orbital slots to plaintiff corporation. Defendant Lichauco falsely asserted that only orbital slot 161 E was assigned to plaintiff, orbital slot 153 E was not.In the same letter, defendant Lichauco branded as FALSE plaintiff de Guzman's claim that "Agila" is a registered corporate name of plaintiff corporation.A copy of the letter is attached as Annex E.(c) Not contented, defendant Lichauco, again for reasons known only to her, and with malice aforethought, made defamatory remarks against plaintiffs during a telecommunications forum held in Makati City sometime in October 1997 in the presence of public officials and business executives.(d) Defendant Lichauco did not spare plaintiff corporation from her unprovoked defamation. Defendant Lichauco arrogantly said that she had asked President Fidel V. Ramos to sue plaintiff Michael de Guzman. With the same degree of arrogance she threatened plaintiff corporation not to use the name "Agila", otherwise she would fight plaintiff corporation and would make sure that the name of Agila would never be given back to plaintiff corporation.(e) To top it all, defendant Lichauco without basis and with evident bad faith, said that plaintiff corporation will never pay its contractors.(f) In December 1997, defendant Lichauco delivered the coup de' grace. Again, acting unilaterally, without prior notice to plaintiff corporation and in gross violation of DOTC's earlier assignment to plaintiff corporation of orbital slot 153 E, defendant Lichauco offered said slot to interested applicants. A copy of the notice of offer is attached as Annex F.

13. Plaintiffs learned of defendant Lichauco's acts after orbital slot 153 E was offered for bidding. To plaintiff coproration's knowledge, the orbital slot was eventually awarded to defendant Unknown Awardee.x x x x10

The complaint alleged that since Lichauco's act of offering and awarding orbital slot 153º East Longitude was patently illegal and violative of DOTC's prior commitment to PASI, Lichauco should be enjoined from performing any acts and entering into or executing any agreement or arrangement of whatever nature in connection with the said orbital slot. The complaint also averred that the purported award of the orbital slot to the "Unknown Awardee was illegal, and thus should be declared null and void. Finally, the complaint alleged a cause of action for damages against Lichauco, cast in the following manner: x x x x 21. Defendant Lichauco attacked the good name and reputation of plaintiffs.22. She willfully caused damage to plaintiffs by orchestrating the above-described acts which are contrary to law; morals and basic norms of good faith.23. She interefered with and violated plaintiff corporation's contract with DOTC by offering and awarding orbital slot 153 E to defendant Unknown Awardee.24. Because of defendant Lichauco's reprehensible acts, plaintiffs suffered actual damages of at least P10 million each, for all of which defendant Lichauco should be held liable to pay.25. By reason of defendant Lichauco's illegal and malicious acts, plaintiff corporation's business name and goodwill was tarnished, for which plaintiff corporation should be indemnified by way of moral damages in the amount of at least P10 million.26. For the same reasons, plaintiff de Guzman suffered and continue to suffer extreme mental anguish, serious anxiety, wounded feelings, moral shock and besmirched reputation, for all of which plaintiff de Guzman should be indemnified in the amount of at least P10 million.27. Defendant Lichauco should also be sanctioned, as a deterrent for public good, to pay each plaintiff exemplary damages in the amount of at least P5 million.28. In order to protect and enforce their rights, plaintiffs were compelled to institute this suit, engage the services of counsel and incur litigation expenses, for all of which plaintiffs should be indemnified in the amount of at least P500 Thousand each.11

x x x x

In sum, petitioners sought the following reliefs for the three (3) causes of action:x x x x3. After trial of the issues, render judgment as follows:[a] On the first cause of action, making permanent the writ of preliminary injunction;[b] On the second cause of action, declaring the offer and award of orbital slot 153 E to defendant Unknown Awardee null and void.[c] On the third cause of action, directing defendant Lichauco to pay the following sums:i. P10 million each to plaintiffs as actual damages;ii. P10 million to plaintiff corporation as moral damages;iii. P10 million to plaintiff de Guzman as moral damages;iv. P5 million each to plaintiffs as exemplary damages;v. P500 Thousand each to plaintiffs as attorney's fees and litigation expenses.x x x x12 The complaint was filed before the Regional Trial Court (RTC) of Mandaluyong City, and subsequently raffled to Branch 214. On 2 February 1998, the RTC issued a temporary restraining order against Lichauco, who received the summons together with the complaint on 28 January 1998. Lichauco failed to file an answer within the reglementary period, but eight (8) days after the lapse thereof, she filed a Manifestation and Motion asking for a new five (5)-day period, or until 25 February 1998, to file a responsive pleading to the complaint. However, she filed instead a Motion to Admit with attached Motion to Dismiss on 27 February 1998. She rooted her prayer for the dismissal of the complaint primarily on the grounds that the suit is a suit against the State which may not be sued without its consent; that the complaint stated no cause of action; and that the petitioners had failed to exhaust administrative remedies by failing to seek recourse with the Office of the President. In an order13 dated 14 August 1998, the RTC denied the motion to dismiss. It characterized the defense of state immunity as "at very least a contentious issue which can not be resolved by mere allegations in the pleadings but which can be best threshed out in a litig[i]ous forum where parties are accorded enormous (sic) opportunity to argue for the ascertainment of whether the act complained of are indeed within the parameters and prerogatives of the authority exercising the same."14 The RTC also noted that the allegations in the complaint regarding the ultimate facts sufficiently presented an ultra vires act of Lichauco, and that she was being sued in her

personal capacity. As to the argument pertaining to the non-exhaustion of administrative remedies, the RTC noted that the principle is not an inflexible rule, and may be dispensed with when its application would cause great and irreparable damage or when it would not constitute a plain, speedy and adequate remedy.15 Lichauco assailed the RTC order through a Petition for Certiorari under Rule 65 before the Court of Appeals, which subsequently nullified the RTC order in the Decision now assailed before us. The Court of Appeals sustained the contention that the complaint is a suit against the State with the following ratiocination:The suit is to the mind of this court a suit against the state.1avvphil.netThe notice of offer signed by herein petitioner allegedly tainted with bad faith was done in the exercise of and in pursuance of an official duty. Her duties are as follows:SEC. 10. Powers and Duties of the Undersecretary. The Undersecretary shall:(1) Advise and assist the Secretary in the formulation and implementation of department objectives and policies;(2) Oversee all the operational activities of the department for which he shall be responsible to the Secretary;(3) Coordinate the programs and projects of the department and be responsible for its economical, efficient and effective administration:x x x x x x x x xIt is apparent from the above enumeration that the petitioner is directly under and answerable to the DOTC Secretary. We can therefore conclude that her official acts such as the said "notice of offer" was with the blessing and prior approval of the DOTC Secretary himself.Being an official act, it is also protected by the presumption that the same was performed in good faith and in the regular performance of official duty."Acts in Line of Duty or under Color of Authority. - As a rule, a public officer, whether judicial, quasi-judicial, or executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority, and in the line of his official duty. In order that acts may be done within the scope of official authority, it is not necessary that they be prescribed by statute, or even that they be specifically directed or requested by a superior officer, but it is sufficient if they are done by an officer in relation to matters committed by law to his control or supervision, or that they have more or less connection with such matters, or that they are governed by a lawful requirement of the department under whose authority the officer is acting. Under this principle, state building commissioners who, in obedience to a stature, discharge one who has been employed to

construct a state building, take possession of the work, and place it in the hands of another contractor, are not liable to the former contractor in damages, since in so doing they are merely acting in the line of their duty. An officer is not personally responsible for the necessary and unavoidable destruction of goods stored in buildings, when such buildings were destroyed by him in the lawful performance of a public duty imposed on him by a valid and constitutional statute."x x x x x x x x xError or Mistake in Exercise of Authority. - Where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous or mistaken decision, however, erroneous judgment may be, provided the acts complained of are done within the scope of the officer's authority, and without willfulness, malice, or corruption." (43 Am. Jur., pp. 85-86).In Sanders vs. Veridiano[16], the Supreme Court held:"Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States government. As they have acted on behalf of that government, and within the scope of their authority, it is that government and not the petitioners personally, that is responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have a right to the payment of damages, such award will have to be satisfied not by the petitioners in their personal capacities but by the United States government as their principal. This will require that government, viz.: the appropriation of the necessary amount to cover the damages awarded, thus making the action a suit against that government without its consent.There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to be sued. So we have ruled not only in Baer but in many other decisions where we upheld the doctrine of state immunity as applicable not only to our own government but also to foreign States sought to be subjected to the jurisdiction of our courts.x x x x x x x x xThe Court finds that, even under the law of public officers, the acts of the petitioners are protected by the presumption of good faith, which has not been overturned by the private respondents. Even mistakes concededly committed by such public officers are not actionable as long as it is not

shown that they were motivated by malice or gross negligence amounting to bad faith. This too is well-settled."17

Preliminarily, we discuss the procedural grounds cited by petitioners which they assert are sufficient to have caused the dismissal of Lichauco's petition before the Court of Appeals. Petitioners claim that contrary to Section 1, Rule 65 of the 1997 Rules of Civil Procedure, Lichauco failed to attach all pleadings and documents relevant to her petition, and that those that were attached were merely "duplicate original copies." Lichauco counters that for the viability of her petition for certiorari, all that she needed to attach were her motion to dismiss, the RTC orders acting on such motion, her motion for reconsideration of the denial of her motion to dismiss, and petitioners' opposition to said motion for reconsideration. She claims that only these motions and submission were relevant to the resolution of her petition.18 In her comment, Lichaucho claims that she did not have to attach the complaint to the copy of the petition she sent to the petitioners herein, since the latter obviously retained the original copy of the complaint they filed.19 However, her petition before the appellate court does not indicate that the same complaint was included as an attachment, and indeed, there is a curious absence of any averment on Lichuaco's part that she indeed attached the said complaint to her petition.20 Certainly, in a petition for certiorari assailing the denial of a motion to dismiss a complaint, the very complaint itself is a document relevant and pertinent to the special civil action. It should be remembered that unlike in an ordinary appeal that is given due course,21 the case record is not automatically elevated to the court exercising jurisdiction over a special civil action for certiorari; hence there is an even more impelling need to attach all pleadings and documents to the special civil action, as mandated under Section 1, Rule 65 of the 1997 Rules of Civil Procedure. After all, how could the court a quo properly ascertain whether or not the motion to dismiss itself should have been granted if it did not have a copy of the complaint sought to be dismissed itself. Nonetheless, the requirement to attach such relevant pleadings under Section 1, Rule 65 is read in relation to Section 3, Rule 46, which states that the failure of the petitioner to comply with any of the documentary requirements, such as the attachment of such relevant pleadings, "shall be sufficient ground for the dismissal of the petition." The procedural rule accords sufficient discretion to the court hearing the special civil action whether or not to dismiss the petition outright for failure to comply with said requirement. If the court does dismiss the petition on that ground, the dismissal would be justifiable under Section 3, Rule 46, and generally such

action of the court cannot be assailed as constituting either grave abuse of discretion or reversible error of law. If the court, on the other hand, takes cognizance of the petition despite such lapses, the phrasing of Section 3, Rule 46 sufficiently justifies such adjudicative recourse. Indeed, the ultimate logic behind rules of procedure being the promotion of the objective of securing a just, speedy and inexpensive disposition of every action and proceeding,22 the higher interests of justice may at times sufficiently warrant the allowance of the petition for certiorari despite such lapses, especially if they are nonetheless correctible through subsequent submissions. In any event, the Court is willing to overlook Lichauco's failure to attach the complaint in her petition for certiorari before the Court of Appeals, an oversight sadly ignored by the appellate court. There are weighty issues at hand relating to the doctrine of state immunity from suit and the requisites of a motion to dismiss. There is a connective issue between these two aspects in that if the State is sued without its consent, the corresponding suit must be dismissed. At times, it would be teasingly obvious, even from the moment of the filing of the complaint, that the suit is one against the State. A cursory examination of the caption of the complaint can sometimes betray such proscribed intent, as when the suit is directly initiated against the Republic of the Philippines, any foreign government, or an unincorporated government agency as the named respondents. In such cases, obviously there is need for immediate caution, although if it is somehow established that those respondents had given their consent to be sued, the suit may nonetheless prosper. The present action was denominated against Lichauco and the unknown awardee, Lichauco was identified in the complaint as "acting Secretary of the [DOTC]."23 The hornbook rule is that a suit for acts done in the performance of official functions against an officer of the government by a private citizen which would result in a charge against or financial liability to the government must be regarded as a suit against the State itself, although it has not been formally impleaded.24 However, government immunity from suit will not shield the public official being sued if the government no longer has an interest to protect in the outcome of a suit; or if the liability of the officer is personal because it arises from a tortious act in the performance of his/her duties. Petitioner insists that Lichauco is being sued for her acts committed in excess of her authority, ultra vires in nature, and tortious in character. The Court of Appeals responded that such acts fell within Lichauco's official duties as DOTC Undersecretary, thus enjoying the presumption that they

were performed in good faith and in the regular performance of official duty. This rationale is pure sophistry and must be rejected outright.We do not doubt the existence of the presumptions of "good faith" or "regular performance of official duty", yet these presumptions are disputable25 and may be contradicted and overcome by other evidence.26

Many civil actions are oriented towards overcoming any number of these presumptions, and a cause of action can certainly be geared towards such effect. The very purpose of trial is to allow a party to present evidence overcome the disputable presumptions involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived indisputability of the presumptions, the judicial exercise would be relegated to a mere ascertainment of what presumptions apply in a given case, nothing more. Consequently, the entire Rules of Court is rendered as excess verbiage, save perhaps for the provisions laying down the legal presumptions. If this reasoning of the Court of Appeals were ever adopted as a jurisprudential rule, no public officer could ever be sued for acts executed beyond their official functions or authority, or for tortious conduct or behavior, since such acts would "enjoy the presumption of good faith and in the regular performance of official duty". Indeed, few civil actions of any nature would ever reach the trial stage, if a case can be adjudicated by a mere determination from the complaint or answer as to which legal presumptions are applicable. For example, the presumption that a person is innocent of a wrong is a disputable presumption on the same level as that of the regular performance of official duty.27 A civil complaint for damages necessarily alleges that the defendant committed a wrongful act or omission that would serve as basis for the award of damages. With the rationale of the Court of Appeals, such complaint can be dismissed upon a motion to dismiss solely on the ground that the presumption is that a person is innocent of a wrong. So obviously, the Decision of the Court of Appeals cannot receive the imprimatur of this Court. Still, the question of whether Lichauco may validly invoke state immunity from suit to secure the outright dismissal of petitioners' complaint warrants closer examination. As earlier noted, the complaint alleges three (3) causes of action against Lichauco: one for injunction against her performing any act in relation to orbital slot 153º East Longitude; one for declaration of nullity of award, seeking to nullify the alleged award of orbital slot 153º East Longitude; and one for damages against Lichauco herself. Evidently, the first two causes of action stem from Lichauco's act of offering orbital slot 153º East Longitude

for bidding, through the Notice of Offer which was attached to the complaint. In her Motion to Dismiss, Lichauco asserts that she is being sued for issuing the aforementioned Notice of Offer, which fell within her official functions as DOTC Undersecretary for Communications. She claims that it was Secretary Lagdameo who authorized her to offer orbital slot 153º East Longitude for bidding, and she thus acted well within the scope of her authority to advise and assist the DOTC Secretary in the formulation and implementation of department objectives and policies.The Notice of Offer cites Department Circular 97-01, signed by then DOTC Secretary Arturo Enrile, as authority for it. The Court has examined the aforementioned Department Circular, issued on 17 October 1997, which establishes the "Guidelines on the Procurement of Orbital Slots and Frequency Registration of Philippine Satellites". Therein, the DOTC is mandated "to conduct a bidding process in case there are competing applications for any one of the assigned or applied-for-orbital slots"28. Further, the Department Circular states that "the DOTC shall publish in three newspapers of general circulation a notice of offer for the government assigned, initiated and applied for orbital slots."29 Thus, insofar as the first two causes of action are concerned, Lichauco may have a point when she asserts that they were based on acts which she performed in her capacity as DOTC Undersecretary. But does this necessarily mean that these two causes of action may thus be dismissed on the basis of state immunity of suit?As stated earlier, it is when the acts done in the performance of official functions by an officer of the government will result in a charge against or financial liability to the government that the complaint must be regarded as a suit against the State itself. However, the distinction must also be raised between where the government official concerned performs an act in his/her official and jurisdictional capacity and where he performs an act that constitutes grave abuse of discretion tantamount to lack of jurisdiction. In the latter case, the Constitution itself assures the availability of judicial review, and it is the official concerned who should be impleaded as the proper party- defendant or respondent.On this point, our ruling in J.M. Tuazon & Co. v. Land Tenure Administration30 is material. Petitioners therein had filed a special civil action for prohibition to nullify Republic Act No. 2616, or law that directed the expropriation of the Tatalon Estate in Quezon City. Impleaded as respondents were the officials and government agency tasked to undertake such expropriation. The respondents alleged that the petition for

prohibition was actually a suit against the State without its consent. The Court, through then Associate Justice (later Chief Justice) Enrique Fernando, debunked the argument, ruling instead that the petition was within the ambit of judicial review:[T]he power of judicial review is granted, if not expressly, at least by clear implication from the relevant provisions of the Constitution. This power may be exercised when the party adversely affected by either a legislative or executive act, or a municipal ordinance for that matter, files the appropriate suit to test its validity. The special civil action of prohibition has been relied upon precisely to restrain the enforcement of what is alleged to be an unconstitutional statute. As it is a fundamental postulate that the Constitution as the supreme law is binding on all governmental agencies, failure to observe the limitations found therein furnishes a sufficient ground for a declaration of nullity of the government measure challenged. The argument then that the government is the adverse party and that, therefore, must consent to its being sued certainly is far from persuasive. x x x x31

The Court further noted that it was well-settled for the purpose of obtaining a judicial declaration of nullity, "it is enough if the respondents or defendants named be the government officials who would give operation and effect to official action allegedly tainted with unconstitutionality."32

Unlike in J.M. Tuason, the case at bar does not seek to nullify an unconstitutional law or measure. However, the first two causes of action do sufficiently impute grave abuse of discretion against Lichauco in her official capacity. Since judicial review of acts alleged to have been tainted with grave abuse of discretion is guaranteed by the Constitution, it necessarily follows in such instances that it is the official concerned who should be impleaded as defendant or respondent in the appropriate suit.Moreover, if the suit had been directed against Lichauco alone, and in her personal capacity, yet it sought, as it now does, the nullification of the Notice of Offer or the awards thereon, such remedy could not avail even if granted. Lichauco, in her personal capacity, cannot be directed to set aside the Notice of Offer, the award of the bid, or to issue a new award herself. It is only because Lichauco was sued in her official capacity as the DOTC Undersecretary that she, or her successors in office, could be judicially compelled to act in such fashion.As to the first two (2) causes of action, the Court rules that the defense of state immunity from suit do not apply since said causes of action cannot be properly considered as suits against the State in constitutional contemplation. These causes of action do not seek to impose a charge or

financial liability against the State, but merely the nullification of state action. The prayers attached to these two causes of action are for the revocation of the Notice of Bid and the nullification of the purported award, nothing more. Had it been so that petitioner additionally sought damages in relation to said causes of action, the suit would have been considered as one against the State. Had the petitioner impleaded the DOTC itself, an unincorporated government agency, and not Lichauco herself, the suit would have been considered as one against the State. But neither circumstance obtains in this case.Parenthetically, it may be noted that at the time of the filing of the complaint, Lichauco herself was already the acting head of the DOTC, owing to the sudden death of then Secretary Enrile a few days before. At that stage, any suit seeking to nullify the Notice of Bid and the alleged award to the "Unknown Bidder" should have properly denominated Lichauco as the respondent, and not the DOTC. Nonetheless, as to the first two causes of action, there was a viable ground to dismiss the complaint: the non-exhaustion of administrative remedies. Indeed, such ground was alleged by Lichauco in her Motion to Dismiss. Yet the principle of non-exhaustion of administrative remedies admits to several exceptions. In its Order denying the motion to dismiss the complaint, the RTC adequately dispensed with the objection, applying the established exceptions to the rule of non-exhaustion of administrative remedies. To wit:Turning to the matter pertaining to non-exhaustion of administrative remedies, it is fundamental that this principle is not an inflexible rule. It yields to many accepted exceptions. (Rocamora vs. RTC - Cebu, G.R. No. 65307). As in this case, this principle can be dispensed with when its application would cause great and irreparable damage and when it does not provide a plain, speedy and adequate remedy.When the subject orbital slot 153 E was bidded out to other applicants, the damage and injury plaintiffs stand to suffer was clear, present, and substantiated that this Court was impelled to provide urgent needed measure such as the issuance of writ of injunction against the public defendant. Indeed, under the circumstances then obtaining it was impractical for the plaintiffs to first proceed to the administrative official concerned before taking court action.33 A different set of principles applies to the third cause of action, anchored as it is on alleged acts that are tortious in character or otherwise beyond the scope of Lichauco's official duties. The complaint alleges that Lichauco uttered several disparaging and defamatory remarks against petitioners and made false assertions against them in her letter to the Land Bank President.

The veracity of those allegations is of course presented at the trial to be determined on the basis of the evidence. However, if proven, they would establish liability on the part of Lichauco that is not shielded by the doctrine of state immunity from suit. The doctrine, as summarized in Shauf v. Court of Appeals :34

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. It must be noted, however, that the rule is not so all-encompassing as to be applicable under all circumstances.It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. 'Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights or the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent.' The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.35 The doctrine poses no controversy if after trial on the merits, it is established that the public official concerned had committed illegal or tortious acts against the plaintiff. How does it apply in relation to a motion to dismiss on the ground of state immunity from suit, necessarily lodged before trial on the merits? Our ruling in United States of America v. Reyes36 warrants due consideration. The Court therein, through then Associate Justice (later Chief Justice) Hilario G. Davide, Jr., ruled that a motion to dismiss averring immunity from suit of a State and its functionaries was actually grounded on the specific ground

for dismissal of the lack of cause of action, for even assuming that the defendants had committed the injurious acts complained of, "no action may be maintained thereon, because of the principle of state immunity."37

Pertinently, the Court noted that "a motion to dismiss on the ground of failure to state a cause of action hypothetically admits the truth of the allegations in the complaint."Thus, Lichauco, in alleging in her Motion to Dismiss that she is shielded by the State's immunity from suit, to hypothetically admitted the truth of the allegations in the complaint. Such hypothetical admission has to be deemed a concession on her part that she had performed the tortious or damaging acts against the petitioners, which if true, would hold her liable for damages. Of course, Lichauco could very well raise the defense of state immunity from suit in regard to the third cause of action with the assertion that the acts complained of constituting said cause of action fell within her official functions and were not tortuous in character. Still, to establish such assertions of fact, a full-blown trial on the merits would be necessary, as would the case be if Lichauco raised the defense that she did not commit these acts complained of. Certainly, these defenses cannot be accorded merit before trial, factual as they are in character. All told, contrary to the ruling of the Court of Appeals, we find no grave abuse of discretion on the part of the RTC in denying Lichauco's Motion to Dismiss. WHEREFORE, the PETITION is GRANTED. The Decision of the Court of Appeals dated 21 February 2000 is SET ASIDE and the Order dated 14 August 1998 of the Regional Trial Court of Mandaluyong City is REINSTATED. The Regional Trial Court is ordered to try and decide the case on the merits with deliberate dispatch. No costs. SO ORDERED.THIRD DIVISIONG.R. No. 184861 June 30, 2009DREAMWORK CONSTRUCTION, INC., Petitioner, vs.CLEOFE S. JANIOLA and HON. ARTHUR A. FAMINI, Respondents.D E C I S I O NVELASCO, JR., J.:The CasePetitioner Dreamwork Construction, Inc. seeks the reversal of the August 26, 2008 Decision1 in SCA No. 08-0005 of the Regional Trial Court (RTC), Branch 253 in Las Piñas City. The Decision affirmed the Orders dated

October 16, 20072 and March 12, 20083 in Criminal Case Nos. 55554-61 issued by the Metropolitan Trial Court (MTC), Branch 79 in Las Piñas City. The FactsOn October 18, 2004, petitioner, through its President, Roberto S. Concepcion, and Vice-President for Finance and Marketing, Normandy P. Amora, filed a Complaint Affidavit dated October 5, 20044 for violation of Batas Pambansa Bilang 22 (BP 22) against private respondent Cleofe S. Janiola with the Office of the City Prosecutor of Las Piñas City. The case was docketed as I.S. No. 04-2526-33. Correspondingly, petitioner filed a criminal information for violation of BP 22 against private respondent with the MTC on February 2, 2005 docketed as Criminal Case Nos. 55554-61, entitled People of the Philippines v. Cleofe S. Janiola.On September 20, 2006, private respondent, joined by her husband, instituted a civil complaint against petitioner by filing a Complaint dated August 20065 for the rescission of an alleged construction agreement between the parties, as well as for damages. The case was filed with the RTC, Branch 197 in Las Piñas City and docketed as Civil Case No. LP-06-0197. Notably, the checks, subject of the criminal cases before the MTC, were issued in consideration of the construction agreement.Thereafter, on July 25, 2007, private respondent filed a Motion to Suspend Proceedings dated July 24, 20076 in Criminal Case Nos. 55554-61, alleging that the civil and criminal cases involved facts and issues similar or intimately related such that in the resolution of the issues in the civil case, the guilt or innocence of the accused would necessarily be determined. In other words, private respondent claimed that the civil case posed a prejudicial question as against the criminal cases. Petitioner opposed the suspension of the proceedings in the criminal cases in an undated Comment/Opposition to Accused’s Motion to Suspend Proceedings based on Prejudicial Question7 on the grounds that: (1) there is no prejudicial question in this case as the rescission of the contract upon which the bouncing checks were issued is a separate and distinct issue from the issue of whether private respondent violated BP 22; and (2) Section 7, Rule 111 of the Rules of Court states that one of the elements of a prejudicial question is that "the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action"; thus, this element is missing in this case, the criminal case having preceded the civil case. Later, the MTC issued its Order dated October 16, 2007, granting the Motion to Suspend Proceedings, and reasoned that:

Should the trial court declare the rescission of contract and the nullification of the checks issued as the same are without consideration, then the instant criminal cases for alleged violation of BP 22 must be dismissed. The belated filing of the civil case by the herein accused did not detract from the correctness of her cause, since a motion for suspension of a criminal action may be filed at any time before the prosecution rests (Section 6, Rule 111, Revised Rules of Court).8

In an Order dated March 12, 2008,9 the MTC denied petitioner’s Motion for Reconsideration dated November 29, 2007.Petitioner appealed the Orders to the RTC with a Petition dated May 13, 2008. Thereafter, the RTC issued the assailed decision dated August 26, 2008, denying the petition. On the issue of the existence of a prejudicial question, the RTC ruled:Additionally, it must be stressed that the requirement of a "previously" filed civil case is intended merely to obviate delays in the conduct of the criminal proceedings. Incidentally, no clear evidence of any intent to delay by private respondent was shown. The criminal proceedings are still in their initial stages when the civil action was instituted. And, the fact that the civil action was filed after the criminal action was instituted does not render the issues in the civil action any less prejudicial in character.10

Hence, we have this petition under Rule 45. The IssueWHETHER OR NOT THE COURT A QUO SERIOUSLY ERRED IN NOT PERCEIVING GRAVE ABUSE OF DISCRETION ON THE PART OF THE INFERIOR COURT, WHEN THE LATTER RULED TO SUSPEND PROCEEDINGS IN CRIM. CASE NOS. 55554-61 ON THE BASIS OF "PREJUDICIAL QUESTION" IN CIVIL CASE NO. LP-06-0197.11

The Court’s RulingThis petition must be granted.The Civil Action Must Precede the Filing of the Criminal Action for a Prejudicial Question to ExistUnder the 1985 Rules on Criminal Procedure, as amended by Supreme Court Resolutions dated June 17, 1988 and July 7, 1988, the elements of a prejudicial question are contained in Rule 111, Sec. 5, which states:SEC. 5. Elements of prejudicial question. — The two (2) essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.

Thus, the Court has held in numerous cases12 that the elements of a prejudicial question, as stated in the above-quoted provision and in Beltran v. People,13 are:The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. On December 1, 2000, the 2000 Rules on Criminal Procedure, however, became effective and the above provision was amended by Sec. 7 of Rule 111, which applies here and now provides: SEC. 7. Elements of prejudicial question.—The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (Emphasis supplied.)Petitioner interprets Sec. 7(a) to mean that in order for a civil case to create a prejudicial question and, thus, suspend a criminal case, it must first be established that the civil case was filed previous to the filing of the criminal case. This, petitioner argues, is specifically to guard against the situation wherein a party would belatedly file a civil action that is related to a pending criminal action in order to delay the proceedings in the latter.On the other hand, private respondent cites Article 36 of the Civil Code which provides:Art. 36. Pre-judicial questions which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. (Emphasis supplied.)Private respondent argues that the phrase "before any criminal prosecution may be instituted or may proceed" must be interpreted to mean that a prejudicial question exists when the civil action is filed either before the institution of the criminal action or during the pendency of the criminal action. Private respondent concludes that there is an apparent conflict in the provisions of the Rules of Court and the Civil Code in that the latter considers a civil case to have presented a prejudicial question even if the criminal case preceded the filing of the civil case.We cannot agree with private respondent.First off, it is a basic precept in statutory construction that a "change in phraseology by amendment of a provision of law indicates a legislative intent to change the meaning of the provision from that it originally had."14

In the instant case, the phrase, "previously instituted," was inserted to qualify the nature of the civil action involved in a prejudicial question in relation to the criminal action. This interpretation is further buttressed by the insertion of "subsequent" directly before the term criminal action. There is no other logical explanation for the amendments except to qualify the relationship of the civil and criminal actions, that the civil action must precede the criminal action.Thus, this Court ruled in Torres v. Garchitorena15 that:Even if we ignored petitioners’ procedural lapse and resolved their petition on the merits, we hold that Sandiganbayan did not abuse its discretion amounting to excess or lack of jurisdiction in denying their omnibus motion for the suspension of the proceedings pending final judgment in Civil Case No. 7160. Section 6, Rule lll of the Rules of Criminal Procedure, as amended, reads:Sec. 6. Suspension by reason of prejudicial question. - A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.Sec. 7. Elements of prejudicial question. - The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed.Under the amendment, a prejudicial question is understood in law as that which must precede the criminal action and which requires a decision before a final judgment can be rendered in the criminal action with which said question is closely connected. The civil action must be instituted prior to the institution of the criminal action. In this case, the Information was filed with the Sandiganbayan ahead of the complaint in Civil Case No. 7160 filed by the State with the RTC in Civil Case No. 7160. Thus, no prejudicial question exists. (Emphasis supplied.)Additionally, it is a principle in statutory construction that "a statute should be construed not only to be consistent with itself but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system."16 This principle is consistent with the maxim, interpretare et concordare leges legibus est optimus interpretandi modus or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence.171 a vv p h i l

In other words, every effort must be made to harmonize seemingly conflicting laws. It is only when harmonization is impossible that resort must be made to choosing which law to apply.In the instant case, Art. 36 of the Civil Code and Sec. 7 of Rule 111 of the Rules of Court are susceptible of an interpretation that would harmonize both provisions of law. The phrase "previously instituted civil action" in Sec. 7 of Rule 111 is plainly worded and is not susceptible of alternative interpretations. The clause "before any criminal prosecution may be instituted or may proceed" in Art. 36 of the Civil Code may, however, be interpreted to mean that the motion to suspend the criminal action may be filed during the preliminary investigation with the public prosecutor or court conducting the investigation, or during the trial with the court hearing the case. This interpretation would harmonize Art. 36 of the Civil Code with Sec. 7 of Rule 111 of the Rules of Court but also with Sec. 6 of Rule 111 of the Civil Code, which provides for the situations when the motion to suspend the criminal action during the preliminary investigation or during the trial may be filed. Sec. 6 provides:SEC. 6. Suspension by reason of prejudicial question.—A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. Thus, under the principles of statutory construction, it is this interpretation of Art. 36 of the Civil Code that should govern in order to give effect to all the relevant provisions of law. It bears pointing out that the circumstances present in the instant case indicate that the filing of the civil action and the subsequent move to suspend the criminal proceedings by reason of the presence of a prejudicial question were a mere afterthought and instituted to delay the criminal proceedings.In Sabandal v. Tongco,18 we found no prejudicial question existed involving a civil action for specific performance, overpayment, and damages, and a criminal complaint for BP 22, as the resolution of the civil action would not determine the guilt or innocence of the accused in the criminal case. In resolving the case, we said:Furthermore, the peculiar circumstances of the case clearly indicate that the filing of the civil case was a ploy to delay the resolution of the criminal cases. Petitioner filed the civil case three years after the institution of the

criminal charges against him. Apparently, the civil action was instituted as an afterthought to delay the proceedings in the criminal cases.19

Here, the civil case was filed two (2) years after the institution of the criminal complaint and from the time that private respondent allegedly withdrew its equipment from the job site. Also, it is worth noting that the civil case was instituted more than two and a half (2 ½) years from the time that private respondent allegedly stopped construction of the proposed building for no valid reason. More importantly, the civil case praying for the rescission of the construction agreement for lack of consideration was filed more than three (3) years from the execution of the construction agreement. Evidently, as in Sabandal, the circumstances surrounding the filing of the cases involved here show that the filing of the civil action was a mere afterthought on the part of private respondent and interposed for delay. And as correctly argued by petitioner, it is this scenario that Sec. 7 of Rule 111 of the Rules of Court seeks to prevent. Thus, private respondent’s positions cannot be left to stand.The Resolution of the Civil Case Is Not Determinative of the Prosecution of the Criminal ActionIn any event, even if the civil case here was instituted prior to the criminal action, there is, still, no prejudicial question to speak of that would justify the suspension of the proceedings in the criminal case. To reiterate, the elements of a prejudicial question under Sec. 7 of Rule 111 of the Rules of Court are: (1) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (2) the resolution of such issue determines whether or not the criminal action may proceed.Petitioner argues that the second element of a prejudicial question, as provided in Sec. 7 of Rule 111 of the Rules, is absent in this case. Thus, such rule cannot apply to the present controversy.Private respondent, on the other hand, claims that if the construction agreement between the parties is declared null and void for want of consideration, the checks issued in consideration of such contract would become mere scraps of paper and cannot be the basis of a criminal prosecution.We find for petitioner.It must be remembered that the elements of the crime punishable under BP 22 are as follows:(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.20

Undeniably, the fact that there exists a valid contract or agreement to support the issuance of the check/s or that the checks were issued for valuable consideration does not make up the elements of the crime. Thus, this Court has held in a long line of cases21 that the agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of BP 22. In Mejia v. People,22 we ruled:It must be emphasized that the gravamen of the offense charge is the issuance of a bad check. The purpose for which the check was issued, the terms and conditions relating to its issuance, or any agreement surrounding such issuance are irrelevant to the prosecution and conviction of petitioner. To determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring havoc in trade and in banking communities. The clear intention of the framers of B.P. 22 is to make the mere act of issuing a worthless check malum prohibitum.Lee v. Court of Appeals23 is even more poignant. In that case, we ruled that the issue of lack of valuable consideration for the issuance of checks which were later on dishonored for insufficient funds is immaterial to the success of a prosecution for violation of BP 22, to wit:Third issue. Whether or not the check was issued on account or for value.Petitioner’s claim is not feasible. We have held that upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for valuable consideration. Valuable consideration, in turn, may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. It is an obligation to do, or not to do in favor of the party who makes the contract, such as the maker or indorser.In this case, petitioner himself testified that he signed several checks in blank, the subject check included, in exchange for 2.5% interest from the proceeds of loans that will be made from said account. This is a valuable consideration for which the check was issued. That there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when

the subject check was given by Bautista to private complainant on July 24, 1993 because petitioner was no longer connected with Unlad or Bautista starting July 1989, cannot be given merit since, as earlier discussed, petitioner failed to adequately prove that he has severed his relationship with Bautista or Unlad.At any rate, we have held that what the law punishes is the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. This is because the thrust of the law is to prohibit the making of worthless checks and putting them into circulation.24 (Emphasis supplied.)Verily, even if the trial court in the civil case declares that the construction agreement between the parties is void for lack of consideration, this would not affect the prosecution of private respondent in the criminal case. The fact of the matter is that private respondent indeed issued checks which were subsequently dishonored for insufficient funds. It is this fact that is subject of prosecution under BP 22.lawphil.netTherefore, it is clear that the second element required for the existence of a prejudicial question, that the resolution of the issue in the civil action would determine whether the criminal action may proceed, is absent in the instant case. Thus, no prejudicial question exists and the rules on it are inapplicable to the case before us.WHEREFORE, we GRANT this petition. We hereby REVERSE and SET ASIDE the August 26, 2008 Decision in SCA No. 08-0005 of the RTC, Branch 253 in Las Piñas City and the Orders dated October 16, 2007 and March 12, 2008 in Criminal Case Nos. 55554-61 of the MTC, Branch 79 in Las Piñas City. We order the MTC to continue with the proceedings in Criminal Case Nos. 55554-61 with dispatch.No costs.SO ORDEREDEN BANC G.R. No. L-20089 December 26, 1964BEATRIZ P. WASSMER, plaintiff-appellee, vs.FRANCISCO X. VELEZ, defendant-appellant. Jalandoni & Jamir for defendant-appellant.Samson S. Alcantara for plaintiff-appellee. BENGZON, J.P., J.:The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be:Dear Bet —Will have to postpone wedding — My mother opposes it. Am leaving on the Convair today. Please do not ask too many people about the reason why — That would only create a scandal. PaquingBut the next day, September 3, he sent her the following telegram:NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE .PAKINGThereafter Velez did not appear nor was he heard from again. Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs. On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the opposition thereto will be deemed submitted for resolution."On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City — the latter's residence — on the possibility of an amicable element. The court granted two weeks counted from August 25, 1955. Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his counsel had failed to appear. Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable settlement was being negotiated. A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.)Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought to be set aside was null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959). In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so. It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone wedding — My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from again. Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid. Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the award of actual damages. What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00, should be totally eliminated. Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable award. PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with costs.

Republic of the PhilippinesSUPREME COURTManilaTHIRD dIVISION G.R. No. L-54598 April 15, 1988JOSE B. LEDESMA, petitioner, vs.HON. COURT OF APPEALS, Spouses PACIFICO DELMO and SANCHA DELMO (as private respondents), respondents. The Solicitor General for petitioner. Luzel D. Demasu-ay for respondent.GUTIERREZ, JR., J.:This petition seeks to reverse the decision of the respondent Court of Appeals which afirmed the decision of the Court of First Instance of Iloilo, adjudging the petitioner, who was then the President of the West Visayas College liable for damages under Article 27 of the Civil Code of the Philippines for failure to graduate a student with honors. The facts are not disputed. An organization named Student Leadership Club was formed by some students of the West Visayas College. They elected the late Violets Delmo as the treasurer. In that capacity, Delmo extended loans from the funds of the club to some of the students of the school. "the petitioner claims that the said act of extending loans was against school rules and regulations. Thus, the petitioner, as President of the School, sent a letter to Delmo informing her that she was being dropped from the membership of the club and that she would not be a candidate for any award or citation from the school. Delmo asked for a reconsideration of the decision but the petitioner denied it. Delmo, thus, appealed to the Office of the Director of the Bureau of Public Schools. The Director after due investigation, rendered a decison on April 13, 1966 which provided:Records of the preliminary investigation conducted by one of the legal officers of this Office disclosed the following: That Violeta Delmo was the treasurer of the Student Leadership Club, an exclusive student organization; that pursuant to Article IX of the of the Constitution and By-Laws of the club, it passed Resolution No. 2, authorizing the treasurer to disburse funds of the Club to student for financial aid and other humanitarian purposes; that in compliance with said resolution and as treasurer of the Club, Violeta Delmo extended loans to some officers and members of the Club upon proper application duly approved by the majority of the members of the

Executive Board; and that upon receiving the report from Mr. Jesse Dagoon, adviser of the funds of the Club, that Office conducted an investigation on the matter and having been convinced of the guilt of Violets Delmo and the other officers and members of the Club, that Office rendered the order or decision in question. In justifying that Office's order or decision, it is contended that approval by that Office of the Constitution and By-Laws of the Club is necessary for its effectivity and validity and since it was never submitted to that Office, the Club had no valid constitution and By-Laws and that as a consequence, Resolution No. 2 which was passed based on the Constitution and By-Laws- is without any force and effect and the treasurer, Violeta Delmo, who extended loans to some officers and members of the Club pursuant thereto are illegal (sic), hence, she and the other students involved are deemed guilty of misappropriating the funds of the Club. On the other hand, Raclito Castaneda, Nestor Golez and Violeta Delmo, President, Secretary and Treasurer of the Club, respectively, testified that the Club had adopted its Constitution and By-Laws in a meeting held last October 3, 1965, and that pursuant to Article I of said Constitution and By-Laws, the majority of the members of the Executive Board passed Resolution No. 2, which resolution became the basis for the extension on of loans to some officers and members of the Club, that the Club honestly believed that its Constitution and By-Laws has been approved by the superintendent because the adviser of the Club, Mr. Jesse Dagoon, assured the President of the Club that he will cause the approval of the Constitution and By-Laws by the Superintendent; the officers of the Club have been inducted to office on October 9,1965 by the Superintendent and that the Club had been likewise allowed to cosponsor the Education Week Celebration. After a careful study of the records, this Office sustains the action taken by the Superintendent in penalizing the adviser of the Club as well as the officers and members thereof by dropping them from membership therein. However, this Office is convinced that Violets M. Delmo had acted in good faith, in her capacity as Club Treasurer, in extending loans to the officers and members of the Student partnership Club. Resolution No. 2 authorizing the Club treasurer to discharge finds to students in need of financial assistance and other humanitarian purposes had been approved by the Club adviser, Mr. Jesse Dagoon, with the notation that approval was given in his capacity as adviser of the Club and extension of the Superintendent's personality. Aside from misleading the officers and members of the Club, Mr. Dagoon, had unsatisfactorily explained why he failed to give the Constitution and By-Laws of the Club to the Superintendent for approval despite his assurance

to the Club president that he would do so. With this finding of negligence on the part of the Club adviser, not to mention laxity in the performance of his duties as such, this Office considers as too severe and unwarranted that portion of the questioned order stating that Violeta Delmo "shall not be a candidate for any award or citation from this school or any organization in this school." Violeta Delmo, it is noted, has been a consistent full scholar of the school and she alone has maintained her scholarship. The decision in question would, therefore, set at naught all her sacrifice and frustrate her dreams of graduating with honors in this year's commencement exercises. In view of all the foregoing, this Office believes and so holds and hereby directs that appellant Violeta. M. Delmo, and for that matter all other Club members or officers involved in this case, be not deprived of any award, citation or honor from the school, if they are otherwise entitled thereto. (Rollo, pp. 28-30) On April 27, 1966, the petitioner received by mail the decision of the Director and all the records of the case. On the same day, petitioner received a telegram stating the following: "AIRMAIL RECORDS DELMO CASE MISSENT THAT OFFICE" The Director asked for the return only of the records but the petitioner allegedly mistook the telegram as ordering him to also send the decision back. On the same day, he returned by mail all the records plus the decision of the Director to the Bureau of Public Schools. The next day, the petitioner received another telegram from the Director order him to furnish Delmo with a copy of the decision. The petitioner, in turn, sent a night letter to the Director informing the latter that he had sent the decision back and that he had not retained a copy thereof.. On May 3, 1966, the day of the graduation, the petitioner received another telegram from the Director ordering him not to deprive Delmo of any honors due her. As it was impossible by this time to include Delmo's name in the program as one of the honor students, the petitioner let her graduate as a plain student instead of being awarded the Latin honor of Magna Cum Laude.To delay the matter further, the petitioner on May 5, 1966, wrote the Director for a reconsideration of the latters" decision because he believed that Delmo should not be allowed to graduate with honors. The Director denied the petitioner's request. On July 12, 1966, the petitioner finally instructed the Registrar of the school to enter into the scholastic records of Delmo the honor, "Magna Cum Laude."

On July 30, 1966, Delmo, then a minor, was joined by her parents in flag action for damages against the petitioner. During the pendency of the action, however, Delmo passed away, and thus, an Amended and Supplemental Complaint was filed by her parents as her sole and only heirs. The trial court after hearing rendered judgment against the petitioner and in favor of the spouses Delmo. The court said: Let us go to specific badges of the defendants (now petitioners) bad faith. Per investigation of Violeta Delmo's appeal to Director Vitaliano Bernardino of the Bureau of Public Schools (Exhibit L it was the defendant who inducted the officers of the Student Leadership Club on October 9, 1965. In fact the Club was allowed to cosponsor the Education Week Celebration. (Exh. "L"). If the defendant he not approve of the constitution and by-laws of the Club, why did he induct the officers into office and allow the Club to sponsor the Education Week Celebration"? It was through his own act that the students were misled to do as they did. Coupled with the defendants tacit recognition of the Club was the assurance of Mr. Jemm Dagoon, Club Adviser, who made the students believe that he was acting as an extension of Mr. Ledesma's personality. (Exhibit "L").Another badge of the defendan'ts want of good faith is the fact that, although, he kaew as early as April 27,1966 that per on of r Bernardino, Exhibit "L," he was directed to give honors to Miss Delmo, he kept Id information to . He told the Court that he knew that the letter of Director Bernardino directed him not to deprive Miss Delmo the honors due her, but she (sic) says that he has not finished reading the letter-decision, Exhibit "L," of Director Bernardino 0, him to give honors to Miss Delmo. (Tsn, Feb. 5, 1974, testimony of Mr. Ledesma, pp. .33-35). It could not be true that he has not finished reading the letter-decision, Exh. "L," because said letter consisted of only three pages, and the portion which directed that Miss Delmo "be not deprived of any award, citation or honor from the school, if otherwise entitled thereto is found at the last paragraph of the same. How did he know the last paragraph if he did not read the letter. Defendants actuations regarding Miss Delmo's cam had been one of bias and prejudice. When his action would favor him, he was deliberate and aspect to the utter prejudice and detriment of Miss Delmo. Thus, although, as early as April 27, 1966, he knew of the exoneration of Miss Delino by Director Bernardino, he withheld the information from Miss Delmo. This is eloquently dramatized by Exh. "11" and Exh. "13" On April 29,1966, Director Bernardino cabled him to furnish Violeta Delmo copy of the Decision, Exh. "L," but instead of informing Miss Delmo about the decision, since he said he mailed back the decision on April 28,1966, he sent a night letter on April

29,1966, to Director Bernardino, informing the latter that he had returned the decision (Exh. "l3"), together with the record. Why a night letter when the matter was of utmost urgency to the parties in the case, because graduation day was only four days ahead? An examination of the telegrams sent by the defendant shows that he had been sending ordinary telegram and not night letters. (Exh. "5", Exhibit "7"). At least, if the defendant could not furnish a copy of the decision, (Exh. "L"), to Miss Delmo, he should have told her about it or that Miss Delmo's honors and citation in the commencement be announced or indicated. But Mr. Ledesma is one who cannot admit a mistake. Very ungentlemanly this is home out by his own testimony despite his knowledge that his decision to deprive Miss Delmo of honors due to her was overturned by Director Bernardino, he on his wrong belief. To quote the defendant,1 believed that she did not deserve those honors(Tsn Feb. 5, 1974, p. 43,Empasized supplied). Despite the telegram of Director Bernardino which the defendant received hours before the commencement executory on May 3-4,1966, he did not obey Director Bernardino because he said in his testimony that he would be embarrassment . Tan Feb 5,1974, P. 46). Evidently, he knew only his embarrassment and not that of r Bernardino whose order was being flagrantly and wantonly disregarded by bim And certainly, not the least of Miss Delmo's embarrassment. His acts speak eloquently of ho bad faith and unjust of mindwarped by his delicate sensitivity for having been challenged by Miss Delmo, a mere student.xxx xxx xxxFinally the defendant's behaviour relative to Miss s case smacks of contemptuous arrogance, oppression and abuse of power. Come to think of it. He refused to obey the directive of Be o and instead, chose to feign ignorance of it." (Reward on Appeal, p. 72-76). The trial court awarded P20,000.00 to the estate of Violeta Delmo and P10,000.00 to her parents for moral damages; P5,000.00 for nominal damages to Violeta's estate; exemplary damages of P10,000.00 and P2,000.00 attorney's fees.On appeal, the Court of Appeals affirmed the decision. Hence, this petition. The issues raised in this petition can be reduced to the sole question of whether or not the respondent Court of Appeals erred in affirming the trial court's finding that petitioner is liable for damages under Article 27 of the New Civil Code. We find no reason why the findings of the trial and appellate courts should be reversed. It cannot be disputed that Violeta Delmo went through a painful ordeal which was brought about by the petitioner's neglect of duty

and callousness. Thus, moral damages are but proper. As we have affirmed in the case of (Prudenciado v. Alliance Transport System, Inc., 148 SCRA 440, 448): There is no argument that moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of defendant's wrongly act or omission." (People v. Baylon, 129 SCRA 62 (1984). The Solicitor-General tries to cover-up the petitioner's deliberate omission to inform Miss Delmo by stating that it was not the duty of the petitioner to furnish her a copy of the Director's decision. Granting this to be true, it was nevertheless the petitioner's duty to enforce the said decision. He could have done so considering that he received the decision on April 27, 1966 and even though he sent it back with the records of the case, he undoubtedly read the whole of it which consisted of only three pages. Moreover, the petitioner should have had the decency to meet with Mr. Delmo, the girl's father, and inform the latter, at the very least of the decision. This, the petitioner likewise failed to do, and not without the attendant bad faith which the appellate court correctly pointed out in its decision, to wit: Third, assuming that defendant could not furnish Miss Delmo of a copy of the decision, he could have used his discretion and plain common sense by informing her about it or he could have directed the inclusion of Miss Delmo's honor in the printed commencement program or announced it during the commencement exercises. Fourth, defendant despite receipt of the telegram of Director Benardino hours before the commencement exercises on May 3-4, 1966, disobeyed his superior by refusing to give the honors due Miss Delmo with a lame excuse that he would be embarrassed if he did so, to the prejudice of and in complete disregard of Miss Delmo's rights. Fifth, defendant did not even extend the courtesy of meeting Mr. Pacifico Delmo, father of Miss Delmo, who tried several times to see defendant in his office thus Mr. Delmo suffered extreme disappointment and humiliation.xxx xxx xxxDefendant, being a public officer should have acted with circumspection and due regard to the rights of Miss Delmo. Inasmuch as he exceeded the scope of his authority by defiantly disobeying the lawful directive of his superior, Director Bernardino, defendant is liable for damages in his personal capacity. . . . (Rollo, pp- 57-58)

Based on the undisputed facts, exemplary damages are also in order. In the same case of Prudenciado v. Alliance Transport System, Inc., supra., at p. 450, we ruled: The rationale behind exemplary or corrective damages is, as the name implies, to provide an example or correction for the public good (Lopez, et al. v. Pan American World Airways, 16 SCRA 431).However, we do not deem it appropriate to award the spouses Delmo damages in the amount of P10,000.00 in their individual capacity, separately from and in addition to what they are already entitled to as sole heirs of the deceased Violeta Delmo. Thus, the decision is modified insofar as moral damages are awarded to the spouses in their own behalf. WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals is AFFIRMED with the slight modification as stated in the preceding paragraph. This decision is immediately executory.SO ORDEREDTHIRD DIVISIONG.R. No. 159323 July 31, 2008COCA-COLA BOTTLERS (PHILS.), INC. and ERIC MONTINOLA, Petitioners, vs.SOCIAL SECURITY COMMISSION and DR. DEAN CLIMACO, Respondents.D E C I S I O NREYES, R.T., J.:WE are confronted with triple remedial issues on prejudicial question, forum shopping, and litis pendentia.We review on certiorari the Decision1 of the Court of Appeals (CA) upholding the order of the Social Security Commission (SSC),2 denying petitioners’ motion to dismiss respondent Climaco’s petition for compulsory coverage with the Social Security System (SSS).The FactsPetitioner Coca-Cola Bottlers (Phils.), Inc. is a corporation engaged in the manufacture and sale of softdrink beverages.3 Co-petitioner Eric Montinola was the general manager of its plant in Bacolod City.4 Respondent Dr. Dean Climaco was a former retainer physician at the company’s plant in Bacolod City.5

In 1988, petitioner company and Dr. Climaco entered into a Retainer Agreement6 for one year, with a monthly compensation of P3,800.00,7

where he "may charge professional fees for hospital services rendered in line with his specialization."8 The agreement further provided that "either party may terminate the contract upon giving thirty (30)-day written notice to the other."9 In consideration of the retainer’s fee, Dr. Climaco "agrees to

perform the duties and obligations"10 enumerated in the Comprehensive Medical Plan,11 which was attached and made an integral part of the agreement.Explicit in the contract, however, is the provision that no employee-employer relationship shall exist between the company and Dr. Climaco while the contract is in effect.12 In case of its termination, Dr. Climaco "shall be entitled only to such retainer fee as may be due him at the time of termination."13

Dr. Climaco continuously served as the company physician, performing all the duties stipulated in the Retainer Agreement and the Comprehensive Medical Plan. By 1992, his salary was increased to P7,500.00 per month.14

Meantime, Dr. Climaco inquired with the Department of Labor and Employment and the SSS whether he was an employee of the company. Both agencies replied in the affirmative.15 As a result, Dr. Climaco filed a complaint16 before the National Labor Relations Commission (NLRC), Bacolod City. In his complaint, he sought recognition as a regular employee of the company and demanded payment of his 13th month pay, cost of living allowance, holiday pay, service incentive leave pay, Christmas bonus and all other benefits.17

During the pendency of the complaint, the company terminated its Retainer Agreement with Dr. Climaco. Thus, Dr. Climaco filed another complaint18 for illegal dismissal against the company before the NLRC Bacolod City. He asked that he be reinstated to his former position as company physician of its Bacolod Plant, without loss of seniority rights, with full payment of backwages, other unpaid benefits, and for payment of damages.19

The Labor Arbiter, in each of the complaints, ruled in favor of petitioner company.20 The first complaint was dismissed after Labor Arbiter Jesus N. Rodriguez, Jr. found that the company did not have the power of control over Dr. Climaco’s performance of his duties and responsibilities. The validity of the Retainer Agreement was also recognized. Labor Arbiter Benjamin Pelaez likewise dismissed the second complaint in view of the dismissal of the first complaint.1avvphi1On appeal, the NLRC, Fourth Division, Cebu City, affirmed the Arbiter disposition.21 On petition for review before the CA, the NLRC ruling was reversed.22 The appellate court ruled that using the four-fold test, an employer-employee relationship existed between the company and Dr. Climaco. Petitioners elevated the case through a petition for review on certiorari23 before this Court.Meantime, on November 9, 1994, while the NLRC cases were pending, Dr. Climaco filed with the SSC in Bacolod City, a petition24 praying, among

others, that petitioner Coca-Cola Bottlers (Phils.), Inc. be ordered to report him for compulsory social security coverage.On April 12, 1995, petitioners moved for the dismissal of the petition on the ground of lack of jurisdiction. They argued that there is no employer-employee relationship between the company and Dr. Climaco; and that his services were engaged by virtue of a Retainer Agreement.25

Dr. Climaco opposed the motion.26 According to Dr. Climaco, "[t]he fact that the petitioner [i.e., respondent Dr. Climaco] does not enjoy the other benefits of the company is a question that is being raised by the petitioner in his cases filed with the National Labor Relations Commission (NLRC), Bacolod City, against the respondent [i.e., petitioner company]."27

On July 24, 1995, the SSC issued an order stating among others, that the resolution of petitioner company’s motion to dismiss is held in abeyance "pending reception of evidence of the parties."28

In view of the statements of Dr. Climaco in his opposition to the company’s motion to dismiss, petitioners again, on March 1, 1996, moved for the dismissal of Dr. Climaco’s complaint, this time on the grounds of forum shopping and litis pendentia.29

SSC and CA DispositionsOn January 17, 1997, the SSC denied petitioners’ motion to dismiss, disposing as follows:WHEREFORE, PREMISES CONSIDERED, the respondents’ Motion to Dismiss is hereby denied for lack of merit.Accordingly, let this case be remanded to SSS Bacolod Branch Office for reception of evidence of the parties pursuant to the Order dated July 24, 1995.SO ORDERED.30

Petitioners’ motion for reconsideration31 received the same fate.32

On April 29, 1997, the company filed a petition for certiorari before the CA. On March 15, 2002, the CA dismissed the petition, with a fallo reading:WHEREFORE, under the premises, the Court holds that public respondent Social Security Commission did not act with grave abuse of discretion in issuing the disputed orders, and the herein petition is therefore DISMISSED for want of merit.SO ORDERED.33

Hence, the present recourse.IssuesPetitioners raise the following issues for Our consideration:WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN RENDERING THE ASSAILED RESOLUTIONS, HAVING DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE COURT, CONSIDERING THAT:I.THE PREVIOUS COMPLAINT FOR REGULARIZATION AND/OR ILLEGAL DISMISSAL, WHICH IS NOW PENDING RESOLUTION BEFORE THE SUPREME COURT, POSES A PREJUDICIAL QUESTION TO THE SUBJECT OF THE PRESENT CASE.II.GIVEN THE ATTENDANT CIRCUMSTANCES, RESPONDENT CLIMACO IS GUILTY OF FORUM SHOPPING, WHICH THEREBY CALLED FOR THE OUTRIGHT DISMISSAL OF HIS PETITION BEFORE THE SOCIAL SECURITY COMMISSION.III.THE PETITION SHOULD HAVE ALSO BEEN DISMISSED OUTRIGHT ON THE GROUND OF LITIS PENDENTIA, AS THERE ARE OTHER ACTIONS PENDING BETWEEN THE SAME PARTIES FOR THE SAME CAUSE OF ACTION.34

(Underscoring supplied)Our RulingThe petition fails.The Court notes that petitioners, in their petition, averred that the appeal from the NLRC and CA dispositions on the illegal dismissal of respondent Climaco is still pending with this Court. Upon verification, however, it was unveiled that the said case had already been decided by this Court’s First Division on February 5, 2007.While we deplore the failure of petitioners and counsel in updating the Court on the resolution of the said related case, We hasten to state that it did not operate to moot the issues pending before Us. We take this opportunity to address the questions on prejudicial question, forum shopping, and litis pendentia.No prejudicial question exists.Petitioners allege that Dr. Climaco previously filed separate complaints before the NLRC seeking recognition as a regular employee. Necessarily then, a just resolution of these cases hinge on a determination of whether or not Dr. Climaco is an employee of the company.35 The issue of whether Dr. Climaco is entitled to employee benefits, as prayed for in the NLRC cases, is closely intertwined with the issue of whether Dr. Climaco is an employee of the company who is subject to compulsory coverage under the SSS Law. Hence, they argue, said regularization/illegal dismissal case is a prejudicial question.The argument is untenable.

Our concept of prejudicial question was lifted from Spain, where civil cases are tried exclusively by civil courts, while criminal cases are tried exclusively in criminal courts. Each kind of court is jurisdictionally distinct from and independent of the other. In the Philippines, however, courts are invariably tribunals of general jurisdiction. This means that courts here exercise jurisdiction over both civil and criminal cases. Thus, it is not impossible that the criminal case, as well as the civil case in which a prejudicial question may rise, may be both pending in the same court. For this reason, the elements of prejudicial question have been modified in such a way that the phrase "pendency of the civil case in a different tribunal" has been eliminated.36

The rule is that there is prejudicial question when (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed.37 It comes into play generally in a situation where a civil action and a criminal action both pend and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed. This is so 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.38

Here, no prejudicial question exists because there is no pending criminal case.39 The consolidated NLRC cases cannot be considered as "previously instituted civil action." In Berbari v. Concepcion,40 it was held that a prejudicial question is understood in law to be that which must precede the criminal action, that which requires a decision with which said question is closely related.Neither can the doctrine of prejudicial question be applied by analogy. The issue in the case filed by Dr. Climaco with the SSC involves the question of whether or not he is an employee of Coca-Cola Bottlers (Phils.), Inc. and subject to the compulsory coverage of the Social Security System. On the contrary, the cases filed by Dr. Climaco before the NLRC involved different issues. In his first complaint,41 Dr. Climaco sought recognition as a regular employee of the company and demanded payment of his 13th month pay, cost of living allowance, holiday pay, service incentive leave pay, Christmas bonus and all other benefits.42 The second complaint43 was for illegal dismissal, with prayer for reinstatement to his former position as company physician of the company’s Bacolod Plant, without loss of seniority rights, with full payment of backwages, other unpaid benefits, and for payment of damages.44 Thus, the issues in the NLRC cases are not determinative of

whether or not the SSC should proceed. It is settled that the question claimed to be prejudicial in nature must be determinative of the case before the court.45

There is no forum shopping.Anent the second issue, petitioners posit that since the issues before the NLRC and the SSC are the same, the SSC cannot make a ruling on the issue presented before it without necessarily having a direct effect on the issue before the NLRC. It was patently erroneous, if not malicious, for Dr. Climaco to invoke the jurisdiction of the SSC through a separate petition.46 Thus, petitioners contend, Dr. Climaco was guilty of forum shopping.Again, We turn down the contention.Forum shopping is a prohibited malpractice and condemned as trifling with the courts and their processes.47 It is proscribed because it unnecessarily burdens the courts with heavy caseloads. It also unduly taxes the manpower and financial resources of the judiciary. It mocks the judicial processes, thus, affecting the efficient administration of justice.48

The grave evil sought to be avoided by the rule against forum shopping is the rendition by two (2) competent tribunals of two (2) separate and contradictory decisions. Unscrupulous litigants, taking advantage of a variety of competent tribunals, may repeatedly try their luck in several different fora until a favorable result is reached.49

It is well to note that forum shopping traces its origin in private international law on choice of venues, which later developed to a choice of remedies. In First Philippine International Bank v. Court of Appeals,50 the Court had occasion to outline the origin of the rule on forum shopping. Said the Court:x x x forum shopping originated as a concept in private international law, where non-resident litigants are given the option to choose the forum or place wherein to bring their suit for various reasons or excuses, including to secure procedural advantages, to annoy and harass the defendant, to avoid overcrowded dockets, or to select a more friendly venue. To combat these less than honorable excuses, the principle of forum non conveniens was developed whereby a court, in conflicts of law cases, may refuse impositions on its jurisdiction where it is not the most "convenient" or available forum and the parties are not precluded from seeking remedies elsewhere.x x x xIn the Philippines, forum shopping has acquired a connotation encompassing not only a choice of venues, as it was originally understood in conflicts of laws, but also to a choice of remedies. As to the first (choice of venues), the Rules of Court, for example, allow a plaintiff to commence

personal actions "where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff" (Rule 4, Sec. 2[b]). As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities independently of the criminal, arising from the same set of facts. A passenger of a public utility vehicle involved in a vehicular accident may sue on culpa contractual, culpa aquiliana or culpa criminal – each remedy being available independently of the others – although he cannot recover more than once."In either of these situations (choice of venue or choice of remedy), the litigant actually shops for a forum of his action. This was the original concept of the term forum shopping."Eventually, however, instead of actually making a choice of the forum of their actions, litigants, through the encouragement of their lawyers, file their actions in all available courts, or invoke all relevant remedies simultaneously. This practice had not only resulted to (sic) conflicting adjudications among different courts and consequent confusion enimical (sic) to an orderly administration of justice. It had created extreme inconvenience to some of the parties to the action."Thus, ‘forum-shopping’ had acquired a different concept – which is unethical professional legal practice. And this necessitated or had given rise to the formulation of rules and canons discouraging or altogether prohibiting the practice."What therefore started both in conflicts of laws and in our domestic law as a legitimate device for solving problems has been abused and misused to assure scheming litigants of dubious reliefs.51

Thus, in order to prevent forum shopping, the 1997 Rules of Civil Procedure now provide:SEC. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.52

Forum shopping is not only strictly prohibited but also condemned. So much so that "[f]ailure to comply with the foregoing requirements shall not be curable by mere amendment of the initiatory pleading but shall be cause for the dismissal of the case without prejudice. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause for administrative sanctions."53

There is forum shopping when one party repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely, by some other court.54 In short, forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other.55

There is res judicata when (1) there is a final judgment or order; (2) the court rendering it has jurisdiction over the subject matter and the parties; (3) the judgment or order is on the merits; and (4) there is between the two cases identity of parties, subject matter and causes of action.56

Measured by the foregoing yardstick, Dr. Climaco is not guilty of forum shopping. While it is true that the parties are identical in the NLRC and in the SSC, the reliefs sought and the causes of action are different.Admittedly, Dr. Climaco’s basis in filing the cases before the NLRC and the SSC is his Retainer Agreement with the company. This does not mean, however, that his causes of action are the same:x x x Some authorities declare the distinction between demands or rights of action which are single and entire and those which are several and distinct to be that the former arise out of one and the same act or contract and the latter out of different acts or contracts. This rule has been declared to be unsound, however, and as evidence of its unsoundness, reference has been made to the fact that several promissory notes may, and often do, grow out of one and the same transaction, and yet they do not constitute an entire demand. The better rule is that the bare fact that different demands spring out of the same or contract does not ipso facto render a judgment on one a bar to a suit on another, however distinct. It is clear that the right of a plaintiff to maintain separate actions cannot be determined by the fact that the claims might have been prosecuted in a single action. A plaintiff having separate demands against a defendant may, at his election, join them in the

same action, or he may prosecute them separately, subject of the power of the court to order their consolidation. There may be only one cause of action although the plaintiff is entitled to several forms and kinds of relief, provided there is not more than one primary right sought to be enforced or one subject of controversy presented for adjudication.57 (Underscoring supplied)As the SSC and the CA correctly observed, different laws are applicable to the cases before the two tribunals. The Labor Code and pertinent social legislations would govern the cases before the NLRC, while the Social Security Law would govern the case before the SSC. Clearly, as the issues pending before the NLRC and the SSC are diverse, a ruling on the NLRC cases would not amount to res judicata in the case before the SSC.The elements of litis pendentia are absent.Lastly, petitioners contend that the petition of Dr. Climaco before the SSC is defective because there were pending actions between the same parties and involving the same issues in different fora.58

For litis pendentia to exist, there must be (1) identity of the parties or at least such as representing the same interests in both actions; (2) identity of the rights asserted and relief prayed for, the relief founded on the same facts; and (3) identity of the two cases such that judgment in one, regardless of which party is successful, would amount to res judicata in the other.59

In the case under review, there is no litis pendentia to speak of. As previously explained, although the parties in the cases before the NLRC and the SSC are similar, the nature of the cases filed, the rights asserted, and reliefs prayed for in each tribunal, are different.lawp++ilAs a last attempt, however, petitioners invoke Rule 16, Section 1(e) of the 1997 Rules of Civil Procedure. Petitioners contend that the petition Dr. Climaco lodged with the SSC is "another action" prohibited by the Rule.60

In Solancio v. Ramos,61 the issue centered on whether the pending administrative case before the Bureau of Lands is "another action," which would justify the dismissal of the complaint of plaintiff against defendants before the then Court of First Instance (now RTC) of Cagayan. Ruling in the negative, the Court noted that "both parties as well as the trial court have missed the extent or meaning of the ground of the motion to dismiss as contemplated under the Rules of Court."62 Mr. Justice Regala, who wrote the opinion of the Court, explained the phrase "another action" in this wise:This is not what is contemplated under the law because under Section 1(d), Rule 16 (formerly Rule 8) of the Rules of Court, [now Rule 1, Section 16(e) of the Rules of Court, supra] one of the grounds for the dismissal of an action is that "there is another action pending between the same parties for the

same cause." Note that the Rule uses the phrase "another action." This phrase should be construed in line with Section 1 of Rule 2, which defines the word action, thus –"Action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prevention or redress of a wrong. Every other remedy is a special proceeding."63

Evidently, there is no "another action" pending between petitioners and Dr. Climaco at the time when the latter filed a petition before the SSC.WHEREFORE, the petition is DENIED and the appealed decision AFFIRMED.Costs against petitioners.SO ORDERED.THIRD DIVISIONG.R. No. 159186 June 5, 2009JESSE Y. YAP, Petitioner, vs.HON. MONICO G. CABALES, Presiding Judge, Regional Trial Court, Branch 35, General Santos City; MUNICIPAL TRIAL COURT, Branch 1, General Santos City; COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, JOVITA DIMALANTA and MERGYL MIRABUENO, Respondents.D E C I S I O NPERALTA, J.:This is a petition for review on certiorari under Rule 45 of the Rules of Court with prayer for the issuance of a writ of preliminary injunction and/or issuance of status quo order seeking to annul and set aside the Resolution1

of the Court of Appeals (CA) dated July 17, 2003 denying petitioner's motion for reconsideration of the Decision2 dated April 30, 2003 in CA-G.R. SP No. 68250.The facts of the case are as follows:Petitioner Jesse Y. Yap and his spouse Bessie Yap are engaged in the real estate business through their company Primetown Property Group.Sometime in 1996, petitioner purchased several real properties from a certain Evelyn Te (Evelyn). In consideration of said purchases, petitioner issued several Bank of the Philippine Islands (BPI) postdated checks to Evelyn. Thereafter, spouses Orlando and Mergyl Mirabueno and spouses Charlie and Jovita Dimalanta, rediscounted the checks from Evelyn.In the beginning, the first few checks were honored by the bank, but in the early part of 1997, when the remaining checks were deposited with the drawee bank, they were dishonored for the reason that the "Account is Closed." Demands were made by Spouses Mirabueno and Spouses

Dimalanta to the petitioner to make good the checks. Despite this, however, the latter failed to pay the amounts represented by the said checks. On December 8, 1997, Spouses Mirabueno filed a civil action for collection of sum of money, damages and attorney's fee with prayer for the issuance of a writ of preliminary attachment against petitioner before the Regional Trial Court (RTC) of General Santos City, docketed as Civil Case No. 6231.3 On December 15, 1997, Spouses Dimalanta followed suit and instituted a similar action, which was docketed as Civil Case No. 6238.4

Subsequently, on various dates, the Office of the City Prosecutor of General Santos City filed several informations for violation of Batas Pambansa Bilang (B.P. Blg.) 22 against the petitioner with the Municipal Trial Court in Cities (MTCC), General Santos City. The criminal complaints were docketed as Criminal Case Nos. 34873, 34874, 34862 to 34869, and Criminal Case No. 35522-I.5

In the criminal cases, petitioner filed separate motions to suspend proceedings on account of the existence of a prejudicial question and motion to exclude the private prosecutor from participating in the proceedings.6 Petitioner prayed that the proceedings in the criminal cases be suspended until the civil cases pending before the RTC were finally resolved.The MTCC, in its Orders7 dated June 21, 2000 and July 4, 2000, denied the motions for lack of merit. Petitioner filed a Partial Motion for Reconsideration8 relative to Criminal Case Nos. 34873, 34874, 34862 to 34869 and a Motion for Reconsideration of the Part of the Order Denying the Motion to Suspend Proceedings on Account of the Existence of a Prejudicial Question relative to Criminal Case No. 35522-I.9 The subsequent motions were denied in the Order10 dated October 18, 2000.Aggrieved, petitioner filed a Petition for Certiorari with a Prayer for the Issuance of a Writ of Preliminary Injunction11 before the RTC, docketed as SPL. Civil Case No. 539, imputing grave abuse of discretion on the part of the MTCC Judge. On July 2, 2001, the RTC issued an Order12 denying the petition.Petitioner then filed a Motion for Reconsideration,13 which was denied in an Order dated October 18, 2001.14

Thereafter, petitioner filed with the CA a Petition for Certiorari Prohibition and Mandamus with Urgent Prayer for the Issuance of Status Quo Order and Writ of Preliminary Injunction,15 docketed as CA-G.R. SP No. 68250.On April 30, 2003, the CA rendered a Decision16 dismissing the petition for lack of merit. The CA opined that Civil Case Nos. 6231 and 6238 did not pose a prejudicial question to the prosecution of the petitioner for violation of B.P. Blg. 22.

The CA ruled:In the instant case, a careful perusal of Civil Cases Nos. 6231 and 6238 reveals that the issue involved therein is not the validity of the sale as incorrectly pointed out by the petitioner, but it is, whether or not the complainants therein are entitled to collect from the petitioner the sum or the value of the checks which they have rediscounted from Evelyn Te. It behooves this Court to state that the sale and the rediscounting of the checks are two transactions, separate and distinct from each other. It so happened that in the subject civil cases it is not the sale that is in question, but rather the rediscounting of the checks. Therefore, petitioner's contention that the main issue involved in said civil cases is the validity of the sale stands on hollow ground. Furthermore, if it is indeed the validity of the sale that is contested in the subject civil cases, then, We cannot fathom why the petitioner never contested such sale by filing an action for the annulment thereof or at least invoked or prayed in his answer that the sale be declared null and void. Accordingly, even if Civil Cases Nos. 6231 and 6238 are tried and the resolution of the issues therein is had, it cannot be deduced therefrom that the petitioner cannot be held liable anymore for violation of B.P. Blg. 22.17

Petitioner filed a Motion for Reconsideration,18 which was denied in the Order19 dated July 17, 2003. Hence, the petition assigning the following errors:1. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THERE IS NO PREJUDICIAL QUESTION IN THE CIVIL CASES (FOR COLLECTION OF SUMS OF MONEY INSTITUTED BY PRIVATE RESPONDENTS OVER CHECKS ISSUED BY THE PETITIONER, CIVIL CASE NOS. 6238 AND 6231) THAT WOULD WARRANT SUSPENSION OF THE CRIMINAL CASES (CASE NO. 35522-1, FOR VIOLATION OF B.P. 22, SUBJECT OF WHICH ARE THE VERY SAME CHECKS).2. THE HONORABLE COURT OF APPEALS ERRED IN NOT GRANTING THE PRAYER FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND/OR STATUS QUO ORDER.20

The main contention of the petitioner is that a prejudicial question, as defined by law and jurisprudence, exists in the present case. It is the petitioner's assertion that Civil Case Nos. 6231 and 6238 for collection of sum of money and damages were filed ahead of the criminal cases for violation of B.P. Blg. 22. He further alleged that, in the pending civil cases, the issue as to whether private respondents are entitled to collect from the petitioner despite the lack of consideration, is an issue that is a logical antecedent to the criminal cases for violation of B.P. Blg. 22. For if the court rules that there is no valid consideration for the check's issuance, as

petitioner contends, then it necessarily follows that he could not also be held liable for violation of B.P. Blg. 22. Petitioner further avers that B.P. Blg. 22 specifically requires, among other elements, that the check should have been issued for account or for value. There must be a valid consideration; otherwise, no violation of the said law could be rightfully pursued. Petitioner said that the reason for the dishonor of the checks was his order to the drawee bank to stop payment and to close his account in order to avoid necessary penalty from the bank. He made this order due to the failure of Evelyn to deliver to him the titles to the purchased properties to him.On the other hand, the Office of the Solicitor General (OSG) contends that there is no prejudicial question in Civil Case Nos. 6231 and 6238 which would warrant the suspension of the proceedings in the criminal cases for violation of B.P. Blg. 22 against the petitioner. The issue in the civil cases is not the validity of the sale between the petitioner and Evelyn, but whether the complainants therein are entitled to damages arising from the checks. These checks were issued by the petitioner in favor of Evelyn, who, thereafter, negotiated the same checks to private complainants. The checks were subsequently dishonored due to insufficiency of funds. The OSG maintains that the resolution of such issue has absolutely no bearing on the issue of whether petitioner may be held liable for violation of B.P. Blg. 22.21

The present case hinges on the determination of whether there exists a prejudicial question that necessitates the suspension of the proceedings in the MTCC.We find that there is none and, thus, we resolve to deny the petition.A prejudicial question generally exists 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 latter 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 rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.22

If both civil and criminal cases have similar issues, or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the

resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or if there is no necessity that the civil case be determined first before taking up the criminal case, the civil case does not involve a prejudicial question.23 Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other.24

The issue in the criminal cases is whether the petitioner is guilty of violating B.P. Blg. 22, while in the civil case, it is whether the private respondents are entitled to collect from the petitioner the sum or the value of the checks that they have rediscounted from Evelyn.lavvphilThe resolution of the issue raised in the civil action is not determinative of the guilt or innocence of the accused in the criminal cases against him, and there is no necessity that the civil case be determined first before taking up the criminal cases.In the aforementioned civil actions, even if petitioner is declared not liable for the payment of the value of the checks and damages, he cannot be adjudged free from criminal liability for violation of B.P. Blg. 22. The mere issuance of worthless checks with knowledge of the insufficiency of funds to support the checks is in itself an offense.25

In Jose v. Suarez,26 the prejudicial question under determination was whether the daily interest rate of 5% was void, such that the checks issued by respondents to cover said interest were likewise void for being contra bonos mores, and thus the cases for B.P. Blg. 22 will no longer prosper. In resolving the issue, We ruled that "whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the BP Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached; that is, if a bouncing check has been issued."Further, We held in Ricaforte v. Jurado,27 that: The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check; that is, a check that is dishonored upon its presentation for payment. In Lozano v. Martinez, we have declared that it is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making and circulation of worthless checks. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the

act not as an offense against property, but an offense against public order. In People v. Nitafan, we said that a check issued as an evidence of debt - though not intended to be presented for payment - has the same effect as an ordinary check and would fall within the ambit of B.P. Blg. 22. x x x xx x x The mere act of issuing a worthless check - whether as a deposit, as a guarantee or even as evidence of pre-existing debt - is malum prohibitum. To determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. So what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued or the terms and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum.28

Moreover, petitioner's reliance on Ras v. Rasul29 is misplaced. The case of Ras involves a complaint for nullification of a deed of sale on the ground of an alleged double sale. While the civil case was pending, an information for estafa was filed against Ras (the defendant in the civil case) arising from the same alleged double sale, subject matter of the civil complaint. The Court ruled that there was a prejudicial question considering that the defense in the civil case was based on the very same facts that would be determinative of the guilt or innocence of the accused in the estafa case. The instant case is different from Ras, inasmuch as the determination of whether the petitioner is liable to pay the private respondents the value of the checks and damages, will not affect the guilt or innocence of the petitioner because the material question in the criminal cases is whether petitioner had issued bad checks, regardless of the purpose or condition of its issuance. Guided by the following legal precepts, it is clear that the determination of the issues involved in Civil Case Nos. 6231 and 6238 for collection of sum of money and damages is irrelevant to the guilt or innocence of the petitioner in the criminal cases for violation of B.P. Blg. 22.In addition, petitioner's claim of lack of consideration may be raised as a defense during the trial of the criminal cases against him. The validity and merits of a party’s defense and accusation, as well as the admissibility and weight of testimonies and evidence brought before the court, are better ventilated during trial proper.Precisely, the reason why a state has courts of law is to ascertain the respective rights of the parties, to examine and to put to test all their respective allegations and evidence through a well designed machinery

termed "trial." Thus, all the defenses available to the accused should be invoked in the trial of the criminal cases. This court is not the proper forum that should ascertain the facts and decide the case for violation of B.P. Blg. 22 filed against the petitioner. In fine, the CA committed no reversible error in affirming the decision of the RTC.WHEREFORE, the petition is DENIED and the Decision dated April 30, 2003 and the Resolution dated July 17, 2003 of the Court of Appeals in CA-G.R. SP No. 68250 are AFFIRMED.SO ORDERED.