Consolidated Spec. Pro. Cases

C A S E D I G E S T S S P E C . P R O - 3 r d Y e a r 2 0 1 4 - 2 0 1 5

1. FELIPE MADRINAN v. FRANCISCA MADRINANGR NO. 159374

FACTS

Felipe and Francisca were married on July 7, 1993 and their union was blessed with three sons and a daughter namely Ronnick, born on Jan. 30, 1994; Phillip, born on Nov. 19, 1996; Francis Angelo, born on May 12, 1998 and Krizia Ann, born on Dec.12, 2000.

After a bitter quarrel on May 18, 2002, Felipe, the petitioner, allegedly left their home and took their three sons with him to Ligao City, Albay and subsequently to Sta. Rosa, Laguna.

With that, Francisca, the respondent, sought the help of her parents and parents-in-law to patch things up between her and petitioner but to no avail. So, she then brought the matter to the Lupong Tagapamayapa in their barangay but this too proved futile.

Thus, she filed a petition for habeas corpus of her three sons in the Court of Appeals alleging that the petitioner’s act of leaving disrupted the education of their children and deprived them of their mother’s care and prayed that petitioner be ordered to appear and produce their sons before the court and to explain why they should not be returned to her custody.

On Oct. 21, 2002, the CA rendered a decision asserting its authority to take cognizance of the petition, and ruled that, under Art.213 of the FC, respondent was entitled to the custody of Phillip and Francis Angelo who were at that time aged six and four, respectively, subject to the visitation rights of the petitioner.

Now, the Petitioner challenges the jurisdiction of the CA over the petition of habeas corpus and insists that jurisdiction over the case is lodged in the family courts under section 5 (b) RA 8369:

Section 5. Jurisdiction of the Family Courts.- The Family Courts shall have exclusive original jurisdiction to hear and decide the following cases:

Xxx xxx xxx

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

xxx xxx xxx

ISSUE

WHETHER OR NOT THE COURT OF APPEALS HAS JURISDICTION OVER PETITIONS FOR HABEAS CORPUS?

RULING:

Yes, the CA has jurisdiction over petitions for habeas corpus, and the contention of the petitioner is misplaced.

This case cited the case of Thornton v. Thornton which resolved the CA’s jurisdiction to issue writs of habeas corpus in cases involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive original jurisdiction over such petitions:

The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of minors.

SPECIAL PROCEEDINGS 3rd Year 2014-2015


The Court in this case ruled that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors.

The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092 (An Act Expanding the Jurisdiction of the Court of Appeals) and BP 129 ( The Judiciary Reorganization Act of 1980) are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029 and BP 129- the family courts have concurrent jurisdiction with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue.

In addition, the jurisdiction of the Court of Appeals over petitions for habeas corpus was further affirmed by A.M. No. 03-03-04-SC (April 22, 2004) in Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors:

In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that:

Section 20. Petition for writ of habeas corpus. – A verified

petition for a writ of habeas corpus involving custody of minors shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.x x x x x x x x x

The petition may likewise be filed with the Supreme

Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the merits. From the foregoing, there is no doubt that the Court of Appeals and

Supreme Court have concurrent jurisdiction with family courts in habeas corpus cases where the custody of minors is involved.

We note that after petitioner moved out of their Parañaque residence on May 18, 2002, he twice transferred his sons to provinces covered by different judicial regions. This situation is what the Thornton interpretation of RA 8369’s provision on jurisdiction precisely addressed:

[The reasoning that by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended them to be the sole courts which can issue writs ofhabeas corpus] will result in an iniquitous situation, leaving individuals like [respondent] without legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the case here, the petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of the lawmakers when they passed [RA 8369]

Harvey Marie I. Diapana



2. IN THE MATTER OF THE PETITION FOR THE HABEAS CORPUS OF ATTY. FERNANDO ARGUELLES, JR., ATTY. REYNALDO GERONIMO, ET.AL., Petitioners, vs.MAJ. GEN. JOSE BALAJADIA, JR., In his capacity as Sergeant-at-Arms of the Senate, Respondent.G.R. No. 167211 March 14, 2006

AZCUNA, J.:

FACTS: On March 15, 2005, petitioners filed a petition for habeas corpus because they were detained in a room at the Senate pursuant to an Order dated March 15, 2005 issued to respondent by the Senate Committee on Banks, Financial Institutions and Currencies (Senate Committee).

The Senate Committee scheduled a hearing on March 15, 2005 at 10:30 a.m. to conduct an investigation, in aid of legislation, regarding the alleged illegal sale of unregistered and high risk securities by the Standard Chartered Bank. At the hearing, Atty. Fernando Arguelles, Jr. and Atty. Reynaldo Geronimo were present as their counsel of the Standard Chartered Bank.

The minutes of the hearing show that Standard Chartered Bank’s counsel provided the Senate Committee with a copy of the petition for prohibition. The bank’s counsel also filed an urgent motion to suspend or defer the proceedings of the Senate Committee apparently to await the action of the Court on the petition for prohibition.

During the hearing, Senator Juan Ponce Enrile declared that "there is one portion of the petition for prohibition that casts a slur on this Committee and the proceedings of the Committee." Senator Juan Ponce Enrile moved to cite the officers of Standard Chartered Bank and their counsel, Atty. Fernando Arguelles, Jr. and Atty. Reynaldo Geronimo, for contempt for making the allegation.

Senator Edgardo Angara, chairperson of the Senate Committee, issued an Order directing respondent Major General Jose Balajadia, Jr., sergeant-at-arms of the Senate, to detain for direct contempt of the Committee the officers of Standard Chartered Bank and their counsel, Atty. Fernando Arguelles, Jr. and Atty. Reynaldo Geronimo, for a period of not more than six hours.

The persons who were detained in a room at the Senate then filed this petition for habeas corpus, alleging that the Committee acted in violation of the Constitution and without jurisdiction, for the following reason: that petitioners are being illegally deprived of their liberty at the Senate building.

Petitioners prayed that respondent be directed to appear before this Court to produce their bodies and to explain why they should not be set at liberty without delay.

On March 18, 2005, petitioners filed a Manifestation and Motion stating that they were released from the custody of the Senate by the Office of the Sergeant-at-Arms on March 15, 2005 at 5:56 p.m. Notwithstanding their release, petitioners submitted that it is imperative that the issues involved in this case be resolved, because they are of unprecedented and transcendental importance and they involve the impact of the exercise of the powers of Congress upon human rights.

ISSUE: Whether or not the petition for habeas corpus has become moot.HELD: YES

The petition has become moot.

A writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled to it. Its essential object and purpose is to inquire into all manner of involuntary restraint and to relieve a person from it if such restraint is illegal.

The singular function of a petition for habeas corpus is to protect and secure the basic freedom of physical liberty. Petitioners have been released. While the issues raised by petitioners are important, it is not appropriate to resolve them now in these proceedings. This is all the more so considering that



the only respondent here is Maj. Gen. Jose Balajadia, Jr., the Senate sergeant-at-arms, impleaded in that capacity for holding petitioners in custody. The Senate Committee itself has not been made a respondent and, therefore, has not been given the opportunity to be heard on the issues sought to be resolved.

Alexis Enriquez

3. Camara vs Pagayatan, GR No. 176563, April 2, 2007; 520 SCRA 182

(Special Proceedings –Habeas Corpus, contempt)

Facts: Petitioner Assistant Vice-President and Head of the Land Compensation Division of the Land Bank of the Philippines (LBP) was detained under a warrant of arrest respondent judge issued from a contempt citation against the former for LBP’s failure to deposit the preliminary compensation in Civil Case No. R-1390 as provided under the trial courts order. LBP was directed to deposit the preliminary compensation, in cash and bonds, in the total amount of P71,634,027.30 with the LBP, Manila, within 7 days from receipt of this order, and to notify the Court of compliance within such period.LBP then complied with this order by depositing the said amount in its head office in cash under its account in trust for, and in bond payable to, the trial court’s clerk of court. However the respondent judge found LBP’s compliance insufficient and ordered LBP to place the deposit in the name of Josefina Lubrica as payee, in the form that is readily withdrawable.

Respondent judge ordered Camara to remain in detention until LBP complies with such order. Hence, petitioner filed this petition for a writ of habeas corpus.

Issue: WON a respondent judge committed grave abuse of discretion amounting to lack or in excess of his jurisdiction when he refused to release Camara from detention despite LBP’s compliance.

Held: Yes. Under section 4, Rule 102 of the Rules of Court, a writ of habeas corpus does not lie if it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process. Petitioner does not question the trial court’s jurisdiction to issue the Order citing petitioner in contempt. What petitioner assails is respondent judge’s refusal to release Camara from detention despite LBP’s compliance of the full amount of the preliminary compensation.This is grave abuse of respondent judge’s contempt powers, amounting to lack or excess of his jurisdiction.

Ramon A. Taghoy II

4. IN RE: PETITION FOR HABEAS CORPUS OF DAVID CRUZ y GONZAGA

MARIA CRUZ y GONZAGA and DAVID CRUZ y GONZAGA, petitioners, vs. COURT OF APPEALS, SUPERINTENDENT OF THE NATIONAL PENITENTIARY, DIRECTOR OF THE BUREAU OF CORRECTIONS, respondents.

FACTS:

Maria Cruz’s filed a petition for habeas corpus. Her son, David, was tried and convicted by the trial court for violation of the Dangerous Drugs Act of 1972 (RA 6425). He was convicted on September 27, 1993 and sentenced to life imprisonment. He was committed to the National Penitentiary on October 13, 1993. On December 31, 1993, R.A. No. 769 took effect. This law amended provisions of several penal laws, including the Dangerous Drugs Act of 1972.

The penalty for the illegal sale of marijuana under the old law was “life imprisonment to death.” Under R.A. 7659, the penalty depended on the quantity of the drug. The sale of “750 grams or more of Indian hemp or marijuana” became punishable by reclusion perpetua, to death. The penalty for the sale of less than 750 grams of marijuana was reduced to a range “from prision correccional to reclusion perpetua, depending upon the quantity” of the drug.



The amount of marijuana for which David Cruz was convicted is 2.70 grams. The imposable penalty for this amount under the Simon ruling is prision correctional which has a duration of six (6) months and one (1) day to six (6) years. Presently, David Cruz has already served six (6) years and three (3) months of his sentence which is way beyond the last day of prision correccional. The continued detention of Cruz at, the National Penitentiary has been admitted by the Solicitor General as already illegal.

ISSUE:

WON a petition for a writ of habeas corpus be granted. YES

HELD:

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty. An application for the writ of habeas corpus is made upon verified petition setting forth: (1) that the person in whose behalf the application is made is imprisoned or restrained of his liberty; (2) the officer or name of the person by whom he is imprisoned or restrained; (3) the place where he is imprisoned or restrained of his liberty; and (4) a copy of the commitment or cause of detention of such person.

DON NICO G. SANCHEZ

5. NORBERTO FERIA Y PACQUING, petitioner, vs.THE COURT OF APPEALS, DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA, and THE CITY PROSECUTOR, CITY OF MANILA, respondents.

The mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of a writ of habeas corpus

FACTS:• Petitioner Feria has been under detention since May 21, 1981 up to the present by reason of his conviction of the crime of Robbery with Homicide for the jeepney hold-up and killing of US Peace Corps Volunteer Carmona• June 9, 1993 – Petitioner sought to be transferred from the Manila City Jail to the Bureau of Corrections in Muntinlupa City but the jail warden of Manila informed the Judge that the transfer cannot be effected without the submission of the following requirements:

1. Commitment order or mittimus2. Decision, and3. Information

• It was then discovered that the entire records of the case, including the copy of the judgment were missing• The entire records appear to have been lost or destroyed in the fire which occurred on November 3, 1986• October 3, 1994 – Petitioner filed a Petition for the issuance of a Writ of Habeas Corpus against the:

1. jail warden2. city prosecutor

…praying for his discharge from confinement on the ground that this continued detention without any valid judgment is illegal and violative of his constitutional right to due process

ISSUE: W/N THE WRIT OF HABEAS CORPUS IS THE PROPER REMEDY – NO

RULING:• Writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom.



• It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to have the issue ascertained as to whether he is held under lawful authority.• The writ may also be availed of where, as a consequence of a judicial proceeding,

(a) there has been a deprivation of a constitutional right resulting in the restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such excess

• Petitioner's claim is anchored on the first ground considering, as he claims, that his continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is violative of his constitutional right to due process.• There is sufficient evidence on record to establish the fact of conviction of petitioner which serves as the legal basis for his detention. Petitioner made judicial admissions, both verbal and written, that he was charged with and convicted of the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang buhay".• As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. In other words, where the return is not subject to exception, that is, where it sets forth process which on its face shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.• If the detention of the prisoner is by reason of lawful public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal based on Section 13 of Rule 102 of the Rules of Court • Public respondents having sufficiently shown good ground for the detention, petitioner's release from confinement is not warranted under Section 4 of Rule 102 of the Rules of Court • In the present case, there is also no showing that petitioner duly appealed his conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment has already become final and executory. • When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order, or decree is not subject to collateral attack by habeas corpus. Put another way, in order that a judgment may be subject to collateral attack by habeas corpus, it must be void for lack of jurisdiction.• Petitioner's invocation of Ordoñez v. Director of Prisons, 235 SCRA 152 (1994), is misplaced since the grant of the petition for habeas corpus therein was premised on the loss of records prior to the filing of Informations against the prisoners, and therefore "[t]he government has failed to show that their continued detention is supported by a valid conviction or by the pendency of charges against them or by any legitimate cause whatsoever." • In this case, the records were lost after petitioner, by his own admission, was already convicted by the trial court of the offense charged. • Further, the same incident which gave rise to the filing of the Information for Robbery with Homicide also gave rise to another case for Illegal Possession of Firearm, the records of which could be of assistance in the reconstitution of the present case.

Kaye Stephanie M. Sorrosa

6. MONCUPA vs. ENRILEG.R. No. L-63345 January 30, 1986

FACTS:

Petitioners were arrested and detained on the allegation that they were members of a subversive organization. They filed a petition for a writ of habeas corpus.

Two separate information were filed against the petitioner, one, for illegal possession of firearms before the Court of First Instance of Rizal and the other for violation of P.D. 33 before the City Court of Quezon City.

The respondents, in their return of the writ justified the validity of petitioner's detention on the ground that the privilege of the writ had been suspended as to the petitioner. However, on August 30,



1983, the respondents filed a motion to dismiss stating that on May 11, 1983, the petitioner was temporarily released from detention on orders of the Minister temporary of National Defense with the approval of the President. The respondents stated that since the petitioner is free and no longer under the custody of the respondents, the present petition for habeas corpus may be deemed moot and academic as in similar cases.

ISSUE:

Whether or not a petition for a writ of habeas corpus becomes moot and academic in view of the detained person’s release with restrictions.

RULING:

NO.

Restraints attached to temporary release of a detained person warrant the Supreme Court’s inquiry into the nature of the involuntary restraint and relieving him of such restraints may be illegal. Temporary release of detainee from detention with involuntary restraints does not render the petition for writ of habeas corpus moot and academic. It is available where a person continue to be unlawfully denied of one or more of his constitutional freedom, where there is denial of due process, where the restraints are not merely involuntary but are necessary, and where a deprivation of freedom originally valid has later become arbitrary.

EDRIANNE BETH M. JASO

7. FRED M. HARDEN vs. THE DIRECTOR OF PRISONSG.R. No. L-2349 October 22, 1948

Facts: Fred Harden was imprisoned for contempt of court for failing to comply with the October 7, 1947, and March 27, 1948 Orders of the trial court, containing among others, an order for Harden to return 368,553 shares of the Balatoc Mining Co., and the amount of P1,000,608.66 to the Philippines and to redeposit the same with the accounts of the Plaza Lunch at the Manila Branch of the Chartered Bank of India, Australia and China. These Orders originated from a civil case instituted by Mrs. Harden against Fred Harden involving the administration of a conjugal partnership, payment of alimony, and accounting. Said orders were issued with the understanding that upon failure to comply with this order he will be declared in contempt of court.

On July 28, 1947, Mrs. Harden complained that her husband failed to comply with the above orders and prayed that he be ordered to show cause why he should not be declared in contempt. On January 7, 1948, the receiver informed the court that, notwithstanding the expiration of Harden's extended time to comply with the Orders, the records of the Balatoc Mining Co. showed that the certificate had not been registered (nor the money deposited in the Philippines). At this stage of the case, Fred Harden was committed to jail.

Issue: Whether or not a writ of Habeas Corpus may lie against the court? NO.

Ruling: The imprisonment of Fred Harden was by virtue of a court’s lawful holding of petitioner in contempt for his non-compliance of its Orders.

The grounds for relief by habeas corpus are only (1) deprivation of any fundamental or constitutional rights, (2) lack of jurisdiction of the court to impose the sentence, or (3) excessive penalty.

(1) AS TO DEPRIVATION OF RIGHTS: The order of commitment expressly gives non-compliance with the lower court’s Orders of October 7, 1947, and March 27, 1948, as the grounds for the warrant of commitment, and thus by reference makes them part of it, in turn clearly specify the acts with the petitioner was commanded to fulfill. It is equally clear from these orders that in the opinion of the court that Harden is in a position to bring back to the Philippines from Hongkong part of the cash and the Balatoc shares he had remitted to that colony.



(2) AS TO LACK OF JURISDICTION: The failure of the order of commitment to state that the acts which the contemner (a person held in contempt by the court) fails to do are still in his power to perform, does not void the order of imprisonment. While a court cannot give its receiver authority to act in another state without the assistance of the courts thereof, yet it may act directly upon the parties before it with respect to property beyond the territorial limits of its jurisdiction, and hold them in contempt if they resist the court's orders with reference to its custody or disposition. SC did not agree with the fact that if the property is in a foreign country, it would deprive the court of jurisdiction, the remedy in such case being, as contended by petitioner, ancillary receivership. Whether the property was removed before or after the appointment of the receiver is likewise immaterial.

(3) AS TO EXCESSIVE PENALTY: The punishment meted out to HARDEN is not excessive. It is suitable and adapted to its objective; and it accords with section 7, Rule 64, of the Rules of Court which provides that "when the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned by order of a superior court until he performs it. Citing American jurisprudence, SC held that, “In a ‘civil contempt’ the proceeding is remedial, it is a step in the case the object of which is to coerce one party for the benefit of the other party to do or to refrain from doing some act specified in the order of the court. Hence, if imprisonment be ordered, it is remedial in purpose and coercive in character, and to that end must relate to something to be done by the defendant by the doing of which he many discharge himself. As quaintly expressed, the imprisoned man "carries the keys to his prison in his own pocket."

Whether or not in truth the court's findings are supported by sufficient evidence is a different matter; it is a matter of fact which cannot be reviewed by habeas corpus. In a long line of decisions, this Court has steadfastly held that habeas corpus does not lie to correct errors of fact or law. When a court has jurisdiction of the offense charged and of the party who is so charged, its judgment, order or decree is not subject to collateral attack by habeas corpus. The writ of habeas corpus cannot be made to perform the function of a writ of error; and this holds true even if the judgment, orders or decree was erroneous, provided it is within the jurisdiction of the court which rendered such judgment or issued such an order or decree. So whether the act charged has been committed or can still be performed is conclusively determined by the order or judgment of the trial court in the proceeding wherein the petitioner for habeas corpus is adjudged in contempt.

Lourdes Angelie Edig

8. Olaguer vs. Military Comm

G.R. No. L-54558, May 22, 1987

FACTS: In 1979, Olaguer and some others who were all civilians, were detained by military personnel at Camp Bagong Diwa. Petitioners were charged with

(1) unlawful possession of explosives and incendiary devices;

(2) conspiracy to assassinate President and Mrs. Marcos;

(3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno;

(4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roño and Onofre Corpus;

(5) arson of nine buildings;

(6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and

(7) conspiracy and proposal to commit rebellion, and inciting to rebellion.



The Chief-of- Staff of the AFP created a military tribunal, named Military Commission No. 34. Petitioners were then convicted and have been imposed a penalty of death.

On August 19, 1980, the petitioners went to the SC and filed the instant Petition for prohibition and habeas corpus.

ISSUE: Whether or not the petition for habeas corpus is proper.

HELD: The petition for habeas corpus is moot and academic by the time the case reached the SC. Peritioners have already been released from military confinement.

“When the release of the persons in whose behalf the application for a writ of habeas corpus was filed is effected, the Petition for the issuance of the writ becomes moot and academic. The instant Petitions for the issuance of a writ of habeas corpus should be dismissed for having become moot and academic.” But the military court created to try the case of Olaguer (and the decision it rendered) still continues to subsist.

ISSUE: Whether or not the military tribunal had jurisdiction to try civilians as opposed to the civil courts.

HELD: The SC ruled on the lack of jurisdiction of the military tribunals and all decisions rendered by it during the period of martial law in all cases involving civilian defendants. A military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning. Judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned.

Missy Ansaldo

9. PEOPLE OF THE PHILIPPINES vs. MARTIN SIMON y SUNGA, G.R. No. 93028

FACTS:

Martin Simon was convicted by the trial court for violation of Section 4, Article II of R.A. No. 6425 (Dangerous Drugs Act of 1972), as amended, in December 4, 1989. However, while this case was pending on appeal before the Supreme Court, R.A. No. 6425 was further amended by Republic Act No. 7659 effective December 31, 1993, which supervenience necessarily affects the original disposition of this case and entails additional questions of law.

HELD:

The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to this effect:

Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:

xxx xxx xxx

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or



transport any prohibited drug, or shall act as a broker in any of such transactions.

xxx xxx xxx

Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows:

Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instrument of the Crime. — The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities:

xxx xxx xxx

5. 750 grams or more of indian hemp or marijuana

xxx xxx xxx

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity.

Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea bags, the initial inquiry would be whether the patently favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal Code.

Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, it has long been settled that by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be given retrospective effect to crimes punished by special laws. The execution in said article would not apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification.

Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been involved nor invoked in the present case, a corollary question would be whether this court, at the present stage, can sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:

. . . . The plain precept contained in article 22 of the Penal Code, declaring the retroactivity of penal laws in so far as they are favorable to persons accused of a felony, would be useless and nugatory if the courts of justice were not under obligation to fulfill such duty, irrespective of whether or not the accused has applied for it, just as would also all provisions relating to the prescription of the crime and the penalty.

If the judgment which could be affected and modified by the reduced penalties provided in Republic Act No. 7659 has already become final and executory or the accused is serving sentence thereunder, then practice, procedure and pragmatic considerations would warrant and necessitate the matter being brought to the judicial authorities for relief under a writ of habeas corpus.

Anthony L. Yap



10. ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents.

GR No. 139808 May 12, 2000

POTENCIO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners,vs.HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents

FACTS:

Erlinda Kalaw Ilusorio (ERLINDA) is the wife of lawyaer Potenciano Ilusorio (POTENCIANO).

ERLINDA and POTENCIANO contracted matrimony and lived together for a period of 30 years. In 1972, they separated from bed and board for undisclosed reasons. POTENCIANO lived in Makati or in Baguio City, while ERLINDA lived in Antipolo City.

Out of their marriages, the spouses produced six children, to wit:

Ramon Ilusorio Erlinda Ilusorio Bildner Maximo Sylvia Marietta Shereen

On 12/30/1997, POTENCIANO stayed with ERLINDA for about 5 months in Antipolo City. The children, alleged that during this time, their mother gave POTENCIANO an overdose of Zoloft, an antidepressant which led to the deterioration of the latter’s health.

On 5/31/1998, POTENCIANO after attending a meeting, did not return to Antipolo City and instead lived in Makati City, which prompted ERLINDA to file for a petition for habeas corpus.

She alleged that respondents refused petitioner’s demands to see and visit her husband and prohibited POTENCIANO from returning to Antipolo City.

ISSUE:

Whether or not a wife may secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss?

RULING:

No, the wife cannot secure a writ of habeas corpus to compel her husband to live with her.

Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.

Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf.

A writ of habeas corpus extends to all cases of illegal confinement or detention, or by which the rightful custody of a person is withheld from the one entitled thereto.

The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.



To justify the grant of the petition, the following must be present:

The restraint of liberty must be illegal There is involuntary deprivation of freedom of action The illegal restraint of liberty must be actual and effective, not merely nominal or moral.

In the above case, evidence concludes that there was no actual and effective detention or deprivation of lawyer POTENCIANO ILUSORIO’s liberty that would justify the issuance of the writ. The fact that POTENCIANO is in his primary years and under medication does not necessarily render him mentally incapacitated.

Being of sound mind, he is thus possessed with the capacity to make choices. In the case at bar, the crucial choice revolve on his residence and the people he opts to see or live with. He made it clear before the Court of Appeals that he was not prevented from leaving his house or seeing people.

With that declaration, and absent any true restraint on his liberty, the petition for habeas corpus should be denied.

ARBIE MAE R. MAGALE11. ZACARIAS VILLAVICENCIO, ET AL. vs.JUSTO LUKBAN, ET AL

Facts: The Mayor of the city of Manila, Justo Lukban, to exterminate vice, ordered the segregated district for women(170) of ill repute/ prostitutes, which had been permitted for a number of years in the city of Manila, closed. The women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers.

The attorney for the relatives and friends of a considerable number of the deportees presented an application for habeas corpus to a member of the Supreme Court. The writ was granted.

Issue: WON HC is the proper remedy?

Held: NO

The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

The persons in question are not restrained of their liberty.

When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao. Others h

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned.



NOTE: The writ has already been granted, and since SC find a substantial compliance with it, nothing further in this connection remains to be done.

Alfie Luzana Omega

12. In Re: Azucena L. Garcia G.R. No. 141443, August 30, 2000

Facts: Garcia was charged with three counts of falsification of public documents in three separate criminal informations, the first being for falsification of technical description of land and other two being for falsification of Declarations of Real Property.

In its decision, the trial court found Garcia guilty. On appeal, CA and SC affirmed Garcia’s conviction and entry of judgment was made.

In the instant petition, Garcia questions the validity of the judgment rendered in the criminal case. She contends that where the proceedings were attended by violations of the constitutional rights of the accused, the judgment of conviction is void thereby warranting relief by the extraordinary legal remedy of habeas corpus.

Issue: WON the writ of habeas corpus can be availed of.

Held: No. The high prerogative writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint. Its object is to inquire into the legality of one’s detention, and if found illegal, to order the release of the detainee.

However, it is equally well-settled that the writ will not issue where the person in whose behalf the writ is sought is out on bail, or is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issued the process, render the judgment, or make the order.

In the case at bar, therefore, Garcia can no longer seek relief via a petition for habeas corpus having been convicted by final judgment of the crime of falsification of public document and use thereof. Said judgment is already final and executory.

Madel Malone-Cervantes

13. Tijing vs. CA

G.R. No. 125901 March 8, 2001

Facts:

Edgardo and Bienvenida Tijing filed a petition for habeas corpus in order to recover their youngest child, Edgardo Jr., from Angela Diamante. Diamante took the spouses' son four years earlier and raised him as her own son. The trial court granted the petition and ordered Angelita Diamante to immediately release the child, now named John Thomas D. Lopez, and turn him over to his parents. CA reversed and set aside the decision rendered by the lower court.

Issue: Whether or not habeas corpus is the proper remedy?

Ruling: Yes.

The Court that the writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It



may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child. It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person.

In the case at bar, the minor's identity is crucial in determining the propriety of the writ sought. Thus, the Court resolved first who between Bienvenida and Angelita is the minor's biological mother.

A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr. The court ruled that the trial court was correct in its judgment based on the evidence established by the parents and by the witness who is the brother of the late common-law husband of Angelita. Furthermore, there are no clinical records, log book or discharge from the clinic where John Thomas was allegedly born were presented. Strong evidence directly proves that Thomas Lopez, Angela's "husband", was not capable of siring a child.

Also, the birth certificate of John Thomas Lopez were attended by irregularities. It was filed by Thomas Lopez, the alleged father. Under Sec. 4, Act No. 3753 (Civil Register Law), the attending physician or midwife in attendance of the birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. Certificate must be filed with the LCR within 30 days after the birth.

Trial court also observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage. Lastly, the spouses presented clinical records and testimony of the midwife who attended Bienvenida's childbirth.

Thus, the writ of habeas corpus is proper to regain custody of said child.

Lizette Tuballa

14. Andal vs. People, GR No.138268-69, May 26, 1999

Facts: Petitioners convicted of rape with homicide seek a writ of habeas corpus on the basis of a claim of mistrial and/or that the decision if the RTC was void. The petitioners argue that the trial court was ousted of jurisdiction to try their case since the pre-trial identification of the accused was made without the assistance of counsel and without a valid waiver from the accused.

Issue: WON a writ of habeas corpus should be granted.

Held: No. The extraordinary writ of habeas corpus is the appropriate remedy to inquire into questions of violation of the petitioners’ constitutional rights and that this court has jurisdiction to entertain this review. The jurisdiction of this court has been expanded to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

In this case findings show that there was no violation of the constitutional rights of the accused and a resultant deprivation of liberty or due process of law. The accused were sentenced to the supreme penalty of death as a result of a valid jurisdiction, after a fair and equitable trial.

RA BANDALA



15. Roxas v. Macapagal-Arroyo

G.R. No. 18915507 September 2010

PONENTE: Perez, J.

PARTIES:

PETITIONER: MELISSA ROXAS

RESPONDENTS: PRESIDENT GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN BANGIT, PC/SIPT/ LEON NILO DELA CRUZ, MAJ.GEN. RALPH VILLANUEVA, PS/SUPT. RUDY GAMIDO LACADIN, DEX, RC, and ROSE

NATURE: Petition for Review on Certiorari

PROCEDURAL BACKGROUND:

Supreme Court: Petition for the issuance of Writs of Amparo and Habeas DataCourt of Appeals: Upon order of the Supreme Court, the Court of Appeals summarily heard the Original Action for Petition of Amparo. Thereafter, the Court of Appeals issued a judgment which is the subject of the present Petition for Review on Certiorari.

FACTS:

Melissa Roxas, an American citizen of Filipino descent, while in the United States, enrolled in an exposure program to the Philippines with the group Bagong Alyansang Makabayan-United States of America (BAYAN- USA) of which she is a member.

On 19 May 2009, after doing survey work in Tarlac, Roxas and her companions rested in the house of Mr. Jesus Paolo in Sitio Bagong Sikat. While Roxas and her companions were resting, 15 heavily armed men in civilian clothes forcibly entered the house and dragged them inside a van. When they alighted from the van, she was informed that she is being detained for being a member of Communist Party of the Philippines-New People’s Army (CPP-NPA). She was then separated from her companions and was brought to a room, from where she could hear sounds of gunfire, noise of planes taking off and landing, and some construction bustle.

She was interrogated and tortured for 5 straight days to convince her to abandon her communist beliefs. She was informed by a person named “RC” that those who tortured her came from the “Special Operations Group” and that she was abducted because her name is included in the “Order of Battle.”

On 25 May 2009, Roxas was finally released and was given a cellular phone with a sim card. She was sternly warned not to report the incident to the group Karapatan or something untoward will happen to her and her family. After her release, Roxas continued to receive calls from RC thru the cell phone given to her. Out of apprehension, she threw the phone and the sim card.

Hence, on 01 June 2009, Roxas filed a petition for the issuance of Writs of Amparo and Habeas Data before the Supreme Court, impleading the high-ranking officials of military and Philippine National Police (PNP), on the belief that it was the government agents who were behind her abduction and torture.

On 09 June 2009, the Supreme Court issued the writs and referred the case to the Court of Appeals for hearing, reception of evidence and appropriate action. The Court of Appeals granted the privilege of writs of amparo and habeas data. However, the court a quo absolved the respondents because it was not convinced that the respondents were responsible for the abduction and torture of Roxas.

Aggrieved, Roxas filed an appeal with the Supreme Court.



PERTINENT ISSUES:

Whether or not the doctrine of command responsibility is applicable in an amparo petition. Whether or not circumstantial evidence with regard to the identity and affiliation of the perpetrators is enough ground for the issuance of the privilege of the writ of amparo. Whether or not substantial evidence to prove actual or threatened violation of the right to privacy in life, liberty or security of the victim is necessary before the privilege of the writ may be extended.

ANSWERS:

No.

It depends. Direct evidence of identity, when obtainable must be preferred over mere circumstantial evidence.

Yes.

SUPREME COURT RULINGS:

1. DOCTRINE OF COMMAND RESPONSIBILITY AND THE WRIT OF AMPARO

Command responsibility as justification in impleading respondents is legally inaccurate – The use of the doctrine of command responsibility as justification in impleading the respondents in her amparo petition, is legally inaccurate, if not incorrect. Such doctrine is a rule of substantive law that establishes liability and, by this account, cannot be a proper legal basis to implead a party-respondent in an amparo petition.

The Writ of Amparo as a protective remedy – As held in the case of Rubrico v. Arroyo, the writ of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate remedial measures and directives that may be crafted by the court, in order to address specific violations or threats of violation of the constitutional rights to life, liberty or security. It does not fix liability for such disappearance, killing or threats, whether that may be criminal, civil or administrative under the applicable substantive law. Since the application of command responsibility presupposes an imputation of individual liability, it is more aptly invoked in a full-blown criminal or administrative case rather than in a summary amparo proceeding. However, the inapplicability of the doctrine of command responsibility does not preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. In which case, commanders may be impleaded — not actually on the basis of command responsibility—but rather on the ground of their responsibility, or at least accountability.

2. EVIDENCE REQUIRED IN AMPARO PROCEEDINGS

In amparo proceedings, direct evidence of identity must be preferred over mere circumstantial evidence – In amparo proceedings, the weight that may be accorded to parallel circumstances as evidence of military involvement depends largely on the availability or non-availability of other pieces of evidence that has the potential of directly proving the identity and affiliation of the perpetrators. Direct evidence of identity, when obtainable, must be preferred over mere circumstantial evidence based on patterns and similarity, because the former indubitably offers greater certainty as to the true identity and affiliation of the perpetrators.

3. EVIDENCE REQURED IN HABEAS DATA PROCEEDINGS

Substantial evidence of an actual or threatened violation of the right to privacy in life, liberty or security of the victim is an indispensable requirement before the privilege of the writ may be extended – An indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty



or security of the victim. In the case at bar, Roxas failed to show that there is an actual or threatened violation of such right. Hence, until such time that any of the respondents were found to be actually responsible for the abduction and torture of Roxas, any inference regarding the existence of reports being kept in violation of the petitioner’s right to privacy becomes farfetched, and premature. The Court must, at least in the meantime, strike down the grant of the privilege of the writ of habeas data.

DISPOSITIVE:

The Supreme Court affirmed the decision of the Court of Appeals. However, it modified the directive of the Court of the Appeals for further investigation, as follows:

Appointing the CHR as the lead agency tasked with conducting further investigation regarding the abduction and torture of the petitioner. Accordingly, the CHR shall, under the norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify the persons described in the cartographic sketches submitted by the petitioner, as well as their whereabouts; and (b) to pursue any other leads relevant to petitioner’s abduction and torture. Directing the incumbent Chief of the Philippine National Police (PNP), or his successor, and the incumbent Chief of Staff of the AFP, or his successor, to extend assistance to the ongoing investigation of the CHR, including but not limited to furnishing the latter a copy of its personnel records circa the time of the petitioner’s abduction and torture, subject to reasonable regulations consistent with the Constitution and existing laws.

Further directing the incumbent Chief of the PNP, or his successor, to furnish to this Court, the Court of Appeals, and the petitioner or her representative, a copy of the reports of its investigations and their recommendations, other than those that are already part of the records of this case, within ninety (90) days from receipt of this decision.

Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90) days from receipt of this decision, a copy of the reports on its investigation and its corresponding recommendations; and to (b) provide or continue to provide protection to the petitioner during her stay or visit to the Philippines, until such time as may hereinafter be determined by this Court.

The Supreme Court likewise referred the case back to the Court of Appeals, for the purposes of monitoring compliance with the above directives and determining whether, in light of any recent reports or recommendations, there would already be sufficient evidence to hold any of the public respondents responsible or, at least, accountable. After making such determination, the Court of Appeals shall submit its own report with recommendation to the Supreme Court for its consideration. It was declared that the Court of Appeals will continue to have jurisdiction over this case in order to accomplish its tasks under this decision.

Edwin Gutierez

16. PHILIP SIGFRID A. FORTUN and ALBERT LEE G. ANGELESvs.GLORIA MACAPAGAL-ARROYO

Facts:

Heavily armed men, believed led by the ruling Ampatuan family, gunned down and buried under shoveled dirt 57 innocent civilians. In response to this carnage, President Arroyo issued Presidential Proclamation 1946, declaring a state of emergency in Maguindanao, Sultan Kudarat, and Cotabato City to prevent and suppress similar lawless violence in Central Mindanao.

Believing that she needed greater authority to put order in Maguindanao and secure it from large groups of persons that have taken up arms against the constituted authorities in the province, President Arroyo issued Presidential Proclamation 1959 declaring martial law and suspending the



privilege of the writ of habeas corpus in that province except for identified areas of the Moro Islamic Liberation Front.

Two days later President Arroyo submitted her report to Congress in accordance with Section 18, Article VII of the 1987 Constitution which required her, within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, to submit to that body a report in person or in writing of her action.

Congress, in joint session, convened pursuant to Section 18, Article VII of the 1987 Constitution to review the validity of the President’s action. before Congress could act, the President issued Presidential Proclamation 1963, lifting martial law and restoring the privilege of the writ of habeas corpus .

Petitioners Philip Sigfrid A. Fortun and the other petitioners brought the present actions to challenge the constitutionality of President Arroyo’s Proclamation 1959.

Issue:

Whether or not the constitutionality of Proclamation 1959 unavoidable?

Ruling:

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty to review and validate or invalidate the same.

Section 18, Article VII of the 1987 Constitution state:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.

Although the above vests in the President the power to proclaim martial law or suspend the privilege of the writ of habeas corpus, he shares such power with the Congress. Thus:

1. The President’s proclamation or suspension is temporary, good for only 60 days;

2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to Congress;

3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of reviewing its validity; and



4. The Congress, voting jointly, may revoke or affirm the President’s proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted.

It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have.

Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.

President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in fact convened, could act on the same. Consequently, the petitions in these cases have become moot and the Court has nothing to review. The lifting of martial law and restoration of the privilege of the writ of habeas corpus in Maguindanao was a supervening event that obliterated any justiciable controversy.2

Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus in just eight days, they have not been meaningfully implemented. The military did not take over the operation and control of local government units in Maguindanao. The President did not issue any law or decree affecting Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass arrest had been reported. Those who were arrested during the period were either released or promptly charged in court. Indeed, no petition for habeas corpus had been filed with the Court respecting arrests made in those eight days.

In the present case, the Court has not bothered to examine the evidence upon which President Arroyo acted in issuing Proclamation 1959, precisely because it felt no need to, the proclamation having been withdrawn within a few days of its issuance.

Justice Antonio T. Carpio points out in his dissenting opinion the finding of the Regional Trial Court (RTC) of Quezon City that no probable cause exist that the accused before it committed rebellion in Maguindanao since the prosecution failed to establish the elements of the crime. But the Court cannot use such finding as basis for striking down the President’s proclamation and suspension. For, firstly, the Court did not delegate and could not delegate to the RTC of Quezon City its power to determine the factual basis for the presidential proclamation and suspension. Secondly, there is no showing that the RTC of Quezon City passed upon the same evidence that the President, as Commander-in-Chief of the Armed Forces, had in her possession when she issued the proclamation and suspension.

Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only 30 days from the filing of an appropriate proceeding to review the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. Thus –

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)

Justice Carpio of course points out that should the Court regard the powers of the President and Congress respecting the proclamation of martial law or the suspension of the privilege of the writ of



habeas corpus as sequential or joint, it would be impossible for the Court to exercise its power of review within the 30 days given it.

But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without pre-empting congressional action. Section 18, Article VII, requires the President to report his actions to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the President’s proclamation or suspension.

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President’s action, and ascertain if it has a factual basis. If the Court finds none, then it can annul the proclamation or the suspension. The 30-day period does not operate to divest this Court of its jurisdiction over the case.

The problem in this case is that the President aborted the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in Maguindanao in just eight days. The proclamation and the suspension never took off. The Congress itself adjourned without touching the matter, it having become moot and academic.

The present cases do not present sufficient basis for the exercise of the power of judicial review.

Olan Dave L. Lachica

17. DE LIMA v. GATDULA

FACTS

What happened in this case was that, on Feb 12, 2012, Magtanggol B. Gatdula, the respondent herein filed a Petition for the Issuance of a Writ of Amparo in the RTC of Manila. It was docketed as In the Matter of the Petition for Issuance of Writ of Amparo of Atty. Magtanggol B. Gatdula, SP no. 12-127405 and was raffled to the sala of Judge Silvino T. Pampilo.

The Amparo was directed against petitioners Justice Secretary Leila De Lima, Director Rojas and Deputy Director Esmeralda of the NBI. The respondent wanted De Lima, et. al. to cease and desist from framing up Gatdula for the fake ambush incident by filing bogus charges of Frustrated Murder against him in relation to the alleged ambush incident.

Now, instead of deciding on whether to issue a Writ of Amparo, the judge issued summons and ordered De Lima, et al. to file an Answer. During the hearing, counsel for De Lima, et al manifested that a Return, not an Answer, is appropriate for Amparo cases.

In an order dated March 2, 2012, Judge Pampilo insisted that since no writ has been issued, return is not the required pleading but answer. The judge also noted that the Rules of Court apply suppletorily in Amparo Cases. He opined that the Revised Rules on Summary Procedure applies and thus required an Answer.

Judge Pampilo proceeded to conduct a hearing on the main case. Even without a Return or an Answer, he ordered the parties to file their respective memoranda within five (5) working days after that hearing. Since the period to file an Answer had not yet lapsed by then, the judge also decided that the memorandum of De Lima, et al would be filed in lieu of their Answer.

On March 20, 2012, the RTC rendered a decision granting the issuance of the writ of Amparo. The RTC also granted the interim reliefs prayed for, namely: temporary protection, production and inspection orders.



On October 8, 2012, the RTC denied the Motion for Reconsideration filed by De Lima, et al

And so, De Lima, et al came to this Court assailing the RTC decision through a Petition for Review on Certiorari via Rule 45, as enunciated in Section 19 of the Rule on the Writ of Amparo:

Section 19 APPEAL- Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. x x x

ISSUE

WHETHER OR NOT PETITION FOR ON CERTIORARI under RULE 45 IS THE PROPER REMEDY TO ASSAIL THE “DECISION” DATED MARCH 20, 2012

RULING

The Court ruled that a Petition for Review under Rule 45 may not yet be the proper remedy at this time for the reason that the “decision” dated March 20, 2012 granting the writ of Amparo is not the judgment or final order contemplated under this rule.

Reason:

The "Decision" dated 20 March 2012 assailed by the petitioners could not be the judgment or final order that is appealable under Section 19 of the Rule on the Writ of Amparo. This is clear from the tenor of the dispositive portion of the "Decision", to wit:

The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the Writ of Amparo.

Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the service of the Writ of Amparo in an expeditious manner upon all concerned, and for this purpose may call upon the assistance of any military or civilian agency of the government.

This "Decision" pertained to the issuance of the writ under Section 6 of the Rule on the Writ of Amparo, not thejudgment under Section 18. The "Decision" is thus an interlocutory order, as suggested by the fact that temporary protection, production and inspection orders were given together with the decision. The temporary protection, production and inspection orders are interim reliefs that may be granted by the court upon filing of the petition butbefore final judgment is rendered.

The confusion of the parties arose due to the procedural irregularities in the RTC.

First, the insistence on filing of an Answer was inappropriate. It is the Return that serves as the responsive pleading for petitions for the issuance of Writs of Amparo. The requirement to file an Answer is contrary to the intention of the Court to provide a speedy remedy to those whose right to life, liberty and security are violated or are threatened to be violated. In utter disregard of the Rule on the Writ of Amparo, Judge Pampilo insisted on issuing summons and requiring an Answer.

It is clear from this rule that this type of summary procedure only applies to MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply to proceedings in an RTC. Aside from that, this Court limited the application of summary procedure to certain civil and criminal cases. A writ of Amparo is a special proceeding. It is a remedy by which a party seeks to establish a status, a right or particular fact.34 It is not a civil nor a criminal action, hence, the application of the Revised Rule on Summary Procedure is seriously misplaced.

The second irregularity was the holding of a hearing on the main case prior to the issuance of the writ and the filing of a Return. Without a Return, the issues could not have been properly joined.


http://www.lawphil.net/judjuris/juri2013/feb2013/gr_204528_2013.html#fnt34


Worse, is the trial court’s third irregularity: it required a memorandum in lieu of a responsive pleading (Answer) of De Lima, et al.

The Return in Amparo cases allows the respondents to frame the issues subject to a hearing. Hence, it should be done prior to the hearing, not after. A memorandum, on the other hand, is a synthesis of the claims of the party litigants and is a final pleading usually required before the case is submitted for decision. One cannot substitute for the other since these submissions have different functions in facilitating the suit.

More importantly, a memorandum is a prohibited pleading under the Rule on the Writ of Amparo.35

The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In the body of its decision, the RTC stated:

"Accordingly this court GRANTS the privilege of the writ and the interim reliefs prayed for by the petitioner." (Emphasis supplied).

This gives the impression that the decision was the judgment since the phraseology is similar to Section 18 of the Rule on the Writ of Amparo:

"SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied." (Emphasis supplied).

The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ of Amparo. The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ ofAmparo. After examining the petition and its attached affidavits, the Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the petitioner's life, liberty or security.

A judgment which simply grants "the privilege of the writ" cannot be executed.1âwphi1 It is tantamount to a failure of the judge to intervene and grant judicial succor to the petitioner. Petitions filed to avail of the privilege of the Writ ofAmparo arise out of very real and concrete circumstances. Judicial responses cannot be as tragically symbolic or ritualistic as "granting the privilege of the Writ of Amparo."

The procedural irregularities in the RTC affected the mode of appeal that petitioners used in elevating the matter to this Court.

It is the responsibility of counsels for the parties to raise issues using the proper procedure at the right time. Procedural rules are meant to assist the parties and courts efficiently deal with the substantive issues pertaining to a case. When it is the judge himself who disregards the rules of procedure, delay and confusion result.

The Petition for Review is not the proper remedy to assail the interlocutory order denominated as "Decision" dated 20 March 2012. A Petition for Certiorari, on the other hand, is prohibited.36 Simply dismissing the present petition, however, will cause grave injustice to the parties involved. It undermines the salutary purposes for which the Rule on the Writ of Amparo were promulgated.

In many instances, the Court adopted a policy of liberally construing its rules in order to promote a just, speedy and inexpensive disposition of every action and proceeding.37 The rules can be suspended on the following grounds: (1) matters of life, liberty, honor or property, (2) the existence of special or compelling circumstances, (3) the merits of the case, (4) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules, (5) a lack of any showing that the






review sought is merely frivolous and dilatory, and (6) the other party will not be unjustly prejudiced thereby.38


18. REPUBLIC OF THE PHILIPPINES, Petitioner, vs.TRINIDAD R.A. CAPOTE, Respondent.G.R. No. 157043 February 2, 2007

CORONA, J.:

FACTS: Respondent Trinidad R. A. Capote, Giovanni’s guardian ad litem, filed a petition for change of name of her ward from Giovanni N. Gallamaso to Giovanni Nadores on September 9, 1998.

She averred in her petition that Giovanni N. Gallamaso is a Filipino Citizen, 16 years old, minor. As guardian ad litem, authorizing her to file in court a petition for change of name of said minor in accordance with the desire of his mother, who is residing and working abroad

Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of Corazon P. Nadores and Diosdado Gallamaso. He was born on July 9, 1982, prior to the effectivity of the New Family Code and as such, his mother used the surname of the natural father despite the absence of marriage between them; and Giovanni has been known by that name since birth as per his birth certificate registered at the Local Civil Register of San Juan, Southern Leyte.

The father, Diosdado Gallamaso, from the time Giovanni was born and up to the present, failed to take up his responsibilities [to him] on matters of financial, physical, emotional and spiritual concerns. That Giovanni’s mother might eventually petition him to join her in the United States and his continued use of the surname Gallamaso, the surname of his natural father, may complicate his status as natural child.

Publication of the petition in a newspaper of general circulation in the province of Southern Leyte once a week for three consecutive weeks was likewise ordered. The trial court also directed that the local civil registrar be notified and that the Office of the Solicitor General (OSG) be sent a copy of the petition and order.

Since there was no opposition to the petition, respondent moved for leave of court to present her evidence ex parte before a court-appointed commissioner. The OSG, acting through the Provincial Prosecutor, did not object; hence, the lower court granted the motion.

RTC: After the reception of evidence, the trial court rendered a decision ordering the change of name from Giovanni N. Gallamaso to Giovanni Nadores.

From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal with a lone assignment of error: the court a quo erred in granting the petition in a summary proceeding.

CA: the CA affirmed the RTC decision ordering the change of name.

ISSUE: Whether or not the apellee Capote guardian ad litem availed of the proper remedy on the change of name under Rule 103 of the Rules of Court.

HELD: YES

The law and facts obtaining here favor Giovanni’s petition. Giovanni availed of the proper remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied with all the procedural requirements. After hearing, the trial court found (and the appellate court affirmed) that the evidence presented during the hearing of Giovanni’s petition sufficiently established that, under Art. 176 of the Civil Code:




According to the Family Code which repealed, among others, Article 366 of the Civil Code:

Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. xxx xxx xxx (emphasis ours)

Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will facilitate his mother’s intended petition to have him join her in the United States. This Court will not stand in the way of the reunification of mother and son.

ISSUE: Whether or not a petition for change of name under Rule 103 of the Rules of Court must be heard in an adversarial proceeding.

HELD: YES

The issue of non-joinder of alleged indispensable parties in the action before the court a quo is intertwined with the nature of the proceedings there. The point is whether the proceedings were sufficiently adversarial.

While the OSG is correct in its stance that the proceedings for change of name should be adversarial, the OSG cannot void the proceedings in the trial court on account of its own failure to participate therein. As the CA correctly ruled:

The OSG is correct in stating that a petition for change of name must be heard in an adversarial proceeding. Unlike petitions for the cancellation or correction of clerical errors in entries in the civil registry under Rule 108 of the Rules of Court, a petition for change of name under Rule 103 cannot be decided through a summary proceeding. There is no doubt that this petition does not fall under Rule 108 for it is not alleged that the entry in the civil registry suffers from clerical or typographical errors. The relief sought clearly goes beyond correcting erroneous entries in the civil registry, although by granting the petition, the result is the same in that a corresponding change in the entry is also required to reflect the change in name.

In this regard, [appellee] Capote complied with the requirement for an adversarial proceeding by posting in a newspaper of general circulation notice of the filing of the petition. The lower court also furnished the OSG a copy thereof. Despite the notice, no one came forward to oppose the petition including the OSG. The fact that no one opposed the petition did not deprive the court of its jurisdiction to hear the same nor does it make the proceeding less adversarial in nature. The lower court is still expected to exercise its judgment to determine whether the petition is meritorious or not and not merely accept as true the arguments propounded. Considering that the OSG neither opposed the petition nor the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court were not adversarial enough. (emphasis supplied)

A proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it. Respondent gave notice of the petition through publication as required by the rules. With this, all interested parties were deemed notified and the whole world considered bound by the judgment therein. In addition, the trial court gave due notice to the OSG by serving a copy of the petition on it. Thus, all the requirements to make a proceeding adversarial were satisfied when all interested parties, including petitioner as represented by the OSG, were afforded the opportunity to contest the petition.

Alexis Enriquez

19. ROMMEL JACINTO DANTES SILVERIOvs.



REPUBLIC OF THE PHILIPPINESG.R. No. 174689, October 22, 2007 Facts:Rommel Jacinto Dantes Silverio, born and registered as a male, underwent sex reassignment in Bangkok, Thailand, the fact of which was certified here in the Philippines by virtue of a medical certificate issued by one Dr. Marcelino Reysio-Cruz. He then lived his life as a woman. On November 26, 2002, Rommel filed a petition for the change of his first name and sex before the RTC of Manila. The court having underwent the jurisdictional requirements, and there having no opposition, the court proceeded with the hearing where Rommel presented his American Fiance as witness. RTC gave due course to his petition, ruling based on equity, that “petitioner’s misfortune to be trapped in aman’s body is not his own doing and should not be taken against him” and that “no harm, injury or prejudice will be caused to anybody” if the petition were to be granted. His name was thus changed to Mely, and sex to “female.” Republic filed a petition for certiorari in the CA. The appellate court reversed the decision of the RTC.

Petitioner’s claim/ Issue:Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.

Held:Petitioner, your contention is not meritorious.

Ratio decidendi:

1.) Change of Name, primarily Administrative in nature:Section 1 of RA 9048 provides in essence that no entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors, which can be changed by concerned city or municipal civil registrar or consul general . The jurisdiction therefore is primarily lodged with these 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. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. Hence, the venue to which petitioner filed is improper.

2.) Grounds for change of name:RA 9048 provides the grounds for which change of first name may be allowed: 1) 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. From these grounds, it can be gleaned that RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s name for his declared purpose may only create grave complications. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. In addition, he must show that he will be prejudiced by the use of his true and official name. 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.3.) No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment: By virtue of RA 9048, Rule 108 now applies only to substantial changes and corrections in entries in the civil register , excluding the clerical or typographical error. Section 2 of RA9048 provides expressly that no correction must involve the change of nationality, age, status or sex of the petitioner.

Ramon A. Taghoy II

20. REPUBLIC OF THE PHILIPPINES, petitioner, vs.ROSELIE ELOISA BRINGAS BOLANTE a.k.a. MARIA ELOISA BRINGAS BOLANTE, respondent.



FACTS:

Respondent filed a petition for change of name before the RTC. She alleged that her registered name (birth certificate) is Roselie Eloisa Bringas Bolante which she did not use but instead the name Maria Eloisa Bringas Bolante appears in all her school as well as in her other public and private records.

The RTC upon finding that the petition is sufficient in form and substance ordered respondent to comply with the jurisdictional requirements of notice and publication, and set the hearing on Feb. 20, 2001. At the scheduled Feb. 20 initial hearing the RTC ordered the respondent to file a written formal offer of evidence.

The Clerk of Court acting on court’s express directive for a resetting issued another notice for a hearing and a second resetting was made after notice was given scheduled on September 25, 2001 and actually held.

On the Sept. 25 hearing, respondent presented several documents without any objection on the part of petitioner, represented by the OSG. She also took the witness to state the purpose of her petition which was to have her registered name changed to that which she had actually been using thru the years. She testified that she wanted to secure a passport issued with her correct name and to avoid any complication on her records upon her retirement.

The RTC granted the petition and the appellate court affirmed the same, hence; the current case. Petitioner argued that the jurisdictional facts were not complied with as prescribed by Rule 103 Section 3 in which “xxx the date set for hearing shall not be within 30 days prior to an election nor within 4 months after the last publication of the notice.” Petitioner argued that the notices were published on these dates: Nov. 23, 30 and December 7 and the hearing was set on Feb. 20 which is within the prohibited period of 4 months. Petitioner also argued that the reasons given by respondent is not sufficient to grant the request for change of name.

ISSUE:

WON the jurisdictional facts were not complied with (that the hearing was made within the 4 months prohibited period), thus; the petition should be dismissed. NO

HELD:

The Jurisdictional requirements were complied with. The notice of hearing was published in the Nov. 23, 30 and Dec. 7, counted from the last day of publication of the order, the initial hearing scheduled on Feb 20 is indeed within the 4-month prohibited period prescribed under the RoC. However, the RTC upon realizing the error, lost no time in rectifying its mistake by rescheduling, with due notice to all concerned, the initial hearing for several times, finally settling for Sept 25, 2001.

In a petition for change of name being a proceeding in rem, any person may appear at the hearing and oppose the petition. The OSG shall appear on behalf of the government. In the present case the republic was fully apprised of the new dates of the initial hearing therefore, there is no need for a republication of notice. The Sept. 25 hearing was already outside the 4-month prohibited period, thus the jurisdictional requirement of publication was complied with.

DON NICO G. SANCHEZ

21. REPUBLIC OF THE PHILIPPINES, petitionervs.HON. FELICIANO BELMONTE, Judge of the Court of First Instance of Baguio and BenguetANITA PO alias VERONICA PAO, assisted by her mof her HELEN POA, respondents.

FACTS:• Private respondent Anita Po filed a Petition for the change of her name from “Anita Po” to “Veronica Pao”• She also sought to have her birth records corrected in that:

1. her father’s name appearing as “Po Yu” be corrected to “Pao Yu” and2. her mof her’s name recorded as “Pakiat Chan” be changed to “Helen Chan”



• Petitioner was a 16-year old minor then; thus, she was assisted by her mof her in the case• Petitioner alleged that:

1. maiden name of her mof her is Helen Chan and that the given name Pakiat written on her birth certificate is actually the given name of her maternal grandmof her2. name of her father is Pao Yu and not Po Yu as erroneously written in her birth certificate and as such her real surname is Pao3. she had been baptized by a Catholic priest and that she was christened as Veronica Pao, the first being her Christian given name and the latter being the correct spelling of her surname4. since her childhood up to the present, she had always been known and referred to as Veronica Pao and not Anita Po

• OSG opposed and sought the dismissal of the same on the ground that the remedies prayed for by the petitioner cannot be allowed by the mere submission of the said petition

Among the written arguments in the opposition are as follows:Rule 103 and Rule 108 are distinct and separate from each of her and each provides for

different requirements that must be satisfied in order that a person may avail of any one of them

The present petition satisfies the requirements of Rule 103 on change of name but fails on the request for correction of certain entries because the civil registrar and the of her parties affected by the corrections have not been included in the petition as required by section 3 of Rule 108

ISSUE: W/N A PETITION FOR A CHANGE OF NAME & THE CORRECTION OF CERTAIN ENTRIES IN THE CIVIL REGISTRY BE JOINED IN THE SAME PROCEEDING – NO

RULING:• Private respondent’s claim to the supposed correct name of Veronica Pao is predicated on the assumption that the correct name of her father is Pao Yu and not Po Yu as recited in her own birth certificate• The assumption is baseless, absent any proof that the name of her father in her birth certificate was entered erroneously, as correctly observed by the Office of the Solicitor General - until the name of her father is shown to have been registered in her birth certificate erroneously, there is no justification for allowing the petitioner to use the surname Pao• The corrections sought by the petitioner involve the very Identity of her parents; thus, the propriety of such corrections should first be determined in a different proceeding more adversary in character than the summary case instituted by the petitioner with the trial court• Aside from the change of her name, the petitioner seeks a correction of entries in the civil registry for the benefit of her parents --- this she may not do through a summary proceeding• The summary procedure for correction of the civil register under Rule 108 is confined to innocuous or clerical errors and not to a material change in the spelling of a surname as prayed for by the petitioner• A clerical error must be apparent on the face of the record and should be capable of being corrected by reference to the record alone. Here, the petitioner seeks more than just the correction of a clerical error.• Under Section 3 of Rule 108, when cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or who claim any interest which would be affected thereby should be made parties to the proceeding.

- Here, the local civil registrar concerned was never made a party to the proceeding- Said civil registrar being an indispensable party, a final determination of the case cannot be made

• The procedure in Rule 103 regarding change of name and in Rule 108 concerning the cancellation or correction of entries in the civil registry are separate and distinct.

- They may not be substituted one for the other for the sole purpose of expediency - To hold of otherwise would render nugatory the provisions of the Rules of Court allowing the

change of one's name or the correction of entries in the civil registry only upon meritorious grounds. • If both reliefs are to be sought in the same proceedings, all the requirements of Rules 103 and 108 must be complied with.• Thus, the petition filed with the trial court is not sufficient in form and substance and should have been dismissed by the trial court for lack of merit.




22. HAW LIONG vs. REPUBLIC OF THE PHILIPPINESG.R. No. L-21194 April 29, 1966

FACTS:

Petitioner seeks to change his name from Haw Liong to Alfonso Lantin in a petition filed before the Court of First Instance of Leyte.

He testified that he wants to change his name to Alfonso Lantin because he is called by his Filipino friends as Alfonso and the name of his father is Placido Lantin; that he wants to have a Filipino name because he will soon be a Filipino citizen; that he came to the Philippines in 1925 and since then his Filipino friends have been calling him Alfonso. After hearing, the court a quo allowed petitioner to change his name from Haw Liong to Alfonso Lantin. The government has appealed.

ISSUE: Whether or not the petition for change of name may be granted.

RULING:

NO.

This Court has already had occasion to state the view that the State has an interest in the names borne by individuals for purposes of identification and that a change of name is a privilege and not a matter of right. So that before a person can be authorized to change the name given him either in his certificate of birth or civil registry he must show proper or reasonable cause or any compelling reason which may justify such change. Otherwise, the request should be denied. The following may be considered, among others, as proper or reasonable causes that may warrant the grant of a petitioner for change of name: (1) when the name is ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; (2) when the request for change is a consequence of a change of status, such as when a natural child is acknowledged or legitimated; and (3) when the change is necessary to avoid confusion.Petitioner has not shown any proper or compelling reason that may justify the request for a change of name other than his desire to adopt the name Alfonso for the reason that he has always been known by that name by his Filipino friends and associates and because that is the family name of his father which he desires to follow to conform with the customs and traditions in the Philippines. But this claim which is merely supported by his own testimony cannot overcome the fact that the name given him from the very beginning as Haw Liong as in fact this is the name that appears in his landing certificate. The fact that he claims to be the son of one Placido Lantin, a Filipino is of no moment because if the same were true it is strange that the name that was given him upon birth is Haw Liong and he had to file a petition for naturalization to become a Filipino citizen. This indirectly belies his claim that the name that should be given him is Alfonso Lantin because that is the family name of his father "to conform with the customs and traditions and also for sentimental reasons."The true situation however is, as was disclosed in his cross examination, that in his business dealings with other people he always signed as Haw Liong and never used the name Alfonso Lantin; that he came to be called Alfonso by his friends only when during the Japanese occupation his Filipino friends asked him how he was called and he told them that his name was Alfonso, and since then they started calling him by that name; and that he is known in Tacloban City as Haw Liong and has not contracted with any person under the name of Alfonso Lantin. We find, therefore, no proper or compelling reason that may justify the change of name desired by petitioner for his petition does not come under any of the cases above adverted to.


23. IN THE MATTER OF THE PETITION FOR CHANGE OF NAME OF MARIA ESTRELLA VERONICA PRIMITIVA DUTERTE, ESTRELLA S. ALFON vs. REPUBLIC OF THE PHILIPPINESG.R. No. L-51201 May 29, 1980



Facts: This is a verified petition filed by petitioner praying that her name be changed from Maria Estrella Veronica Primitiva Duterte to Estrella S. Alfon.

Petitioner was born on May 15, 1952 and was registered at the local Civil Registrar's Office as Maria Estrella Veronica Primitiva Duterte. She was baptized with the same name in church. Her parents Filomeno Duterte and Estrella Veronica Primitiva Duterte has been taken cared of by Mr. and Mrs. Hector Alfon. Petitioner and her uncle, Hector Alfon, has been residing at 728 J.R. Yulo Street corner Ideal Street, Mandaluyong, Metro Manila for twenty-three (23) years. She attended her first grade up to fourth year high school at Stella Maris College using the name Estrella S. Alfon. Her scholastic records from elementary to college show that she was registered by the name of Estrella S. Alfon.

Petitioner has advanced the following reasons for filing the petition:1. She has been using the name Estrella Alfon since her childhood;2. She has been enrolled in the grade school and in college using the same name;3. She has continuously used the name Estrella S. Alfon since her infancy and all her friends and acquaintances know her by this name;4. She has exercised her right of suffrage under the same name.

The trial court granted the petition insofar as the first name is granted but denied with respect to the surname. TC rationized that petitoner is authorized to change her name from Maria Estrella Veronica Primitiva Duterte to Estrella Alfon Duterte. Further, that her birth certificate clearly shows that the father of petitioner is Filomeno Duterte ad to allow petitioner to change her surname from Duterte to Alfon is equivalent to allowing her to use her mother's surname, and citing Article 364 of the Civil Code which provides that, “Legitimate and legitimated children shall principally use the surname of the father.” Lower court further discussed that, if another purpose of the petitioner is to carry the surname of Alfon because her uncle who reared her since childhood has the surname "Alfon" then the remedy is not a petition for change of name.

Issue: Whether or not the full change of name should be granted? YES.

Ruling: Petitioner is allowed to change not only her first name but also her surname so as to be known as ESTRELLA S. ALFON.

SC cited the case of Haw Liong vs. Republic, G.R. No. L-21194, which ruled that:“The following may be considered, among others, as proper or reasonable causes that may warrant the grant of a petitioner for change of name; (1) when the name is ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; (2) when the request for change is a consequence of a change of' status, such as when a natural child is acknowledged or legitimated; and (3) when the change is necessary to avoid confusion.”

The only reason why the lower court denied the petitioner's prayer to change her surname is that as the legitimate child of Filomeno Duterte and Estrella Alfon, she should principally use the surname of her father invoking Art. 364 of the Civil Code. But the word "principally" as used in the codal provision is not equivalent to "exclusively" so that there is no legal obstacle if a legitimate or legitimated child should choose to use the surname of its mother to which it is equally entitled.

In the case at bar, it has been shown that petitioner has, since childhood, borne the name Estrella S. Alfon, although her birth records and baptismal certificate show otherwise; she was enrolled in the schools from the grades up to college under the name Estrella S. Alfon; all her friends call her by this name; she finished her course in Nursing in college and was graduated and given a diploma under this name; and she exercised the right of suffrage likewise under this name. There is therefore ample justification to grant fully her petition which is not whimsical but on the contrary is based on a solid and reasonable ground, i.e. to avoid confusion.

Lourdes Angelie Edig24. Ang Chay vs. Republic

G.R. No. L-28507 July 31, 1970



FACTS: Josefina Ang Chay and Mercedita Ang Chay petitioned for the change of their names to Josefina Hernandez and Mercedita Hernandez, alledging they were of legal age, single and residents of San Francisco del Monte.

They elected Philippine citizenship on 7 February 1966, and would like to use their Filipino surnames "Ang Chay" changed to "Hernandez", the surname that they have been using from the time they started schooling until they finished their studies and used even in employment, resulting to them being known by everbody as such.

Hernandez was the surname of their mother’s first husband but the two petitioners were daughters of the former by her second marriage to a certain Alejandro Ang Chay.

ISSUE: WON petitioners be granted the use of the surname Hernandez.

HELD: There is valid reason to the continued use of the names by which they have been known, and have always conducted, in good faith, their various social and business activities. Petitioners had no knowledge that their father was Chinese and that their surnames should have been Ang Chay.

Petitioners have been using "Hernandez" and finished their schooling, got employments, voted in the local and national elections, and paid their income taxes, under that surname.

"Ang Chay at this time would cause no little amount of confusion and trouble in the lives of these girls, who do not appear to have any hand at all in creating the situation they now find themselves in. Besides there is nothing on the record to intimate that herein petitioners' use of the surname "Hernandez" would cause damage or prejudice, either to the government or to any other private party, including their mother's children by the first marriage. For, as this Court has succinctly declared, a mere change of name would not cause a change in one's existing family relations, nor create new family rights and duties where none exists before. Neither would it affect a person's legal capacity, civil status or citizenship. What would only be altered is the word or group of words by which he is identified and distinguished from the rest of his fellow men.

Missy Ansaldo

25. CANDIDO UY alias RICARDO UY vs. REPUBLIC OF THE PHILIPPINES, G.R. No. L-22712

FACTS:

Candido Uy wanted to change his family name from Uy to Baluyot because, according to him, he is frequently mistaken for and identified as a Chinese citizen to his chagrin, embarrassment and disappointment. He filed a petition for change of name. However, the Republic appeared to oppose the petition on the ground that there was no sufficient showing that petitioner will be prejudiced by the continued use of his present name.

ISSUE:

The only issue is whether petitioner has shown a "proper and reasonable cause" to warrant his change of name under Rule 103 of the Rules of Court.

HELD:

In granting or denying petition for change of name, the question of "proper and reasonable cause" is left to the sound discretion of the court. The evidence presented need only be satisfactory to the Court and not all best evidence available.



In the present case the trial court found to its satisfaction that petitioner was in earnest in his desire to do away with all traces of his former Chinese nationality and henceforth to be recognized as a Filipino. Such desire is in line with the policy of our naturalization laws that applicants for naturalization should fully embrace Filipino customs and traditions and socially mingle with Filipinos.

It is true, as appellant points out, that the surname Uy is used by native born Filipinos prominent in government and prosperous in business. The fact remains that it is basically Chinese. And in the community where petitioner resides said surname has been shown to be the source of his being taken for a Chinese in view of his ancestry. So much so that his business suffers from time lost in having to explain in his dealings, especially with government agencies, that he is naturalized Filipino. Similarly, it has proved a social liability, causing much difficulty for him in entering civil organizations, such as the Lions Club.

It has not been shown that petitioner has any fraudulent intent in seeking a change of name. No criminal, civil, tax or any other liability on his part, which he may avoid by the change of name, has been suggested. Nothing has been presented to show any prejudice to the Government or to any individual should the petition be granted. In the absence of prejudice to the State or any individual, a sincere desire to adopt a Filipino name to erase signs of a former alien nationality which unduly hamper social and business life, is a proper and reasonable cause for a change of name. It is not trivial, whimsical or capricious.

Anthony L. Yap

26. ELISA LAPERAL, petitionervs.REPUBLIC OF THE PHILIPPINES, oppositor

FACTS:

Elisea Laperal married Enrique R. Santamaria on March 4, 1939. On January 18, 1958 a final decree of legal separation was given by the Court to Enrique Santamaria and Elisea Laperal.

During the subsistence of their marriage, Elisea Laperal used the name “Elisea L. Santamaria”. Upon the grant of the legal separation, Elisea on May 10, 1960, filed in the Court of First Instance a petition to allow her to change her name and/or permit her to resume using her maiden name in accordance to Rule 103 of the Rules of Court..

The court, at first, denied that petition. However, after petitioner’s motion, the court treating the petition as one for change of name, reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a businesswoman decreed legally separated from her husband, to continue using her married named would give rise to confusion.

ISSUE:

1. Whether or not the wife, after the legal separation has been decreed, may petition to change her name and surname?

2. Whether or not Rule 103 of the Rules of Court prevails over the specific provisions of Art. 372 of the New Civil Code?

RULING:

ISSUE NO. 1

No. The wife cannot petition to change her name and surname on the ground of legal separation.

Under Article 372 of the New Civil Code which reads:



Art. 372. When legal separation has been granted, the wife shall continue using her name and surnames employed before the legal separation.

Note that the language of the statute is mandatory that the wife, even after the legal separation has been decreed, shall continue using her name and surname employed before the legal separation.

The marriage status is unaffected by the separation, there being no severance of the vinculum.

ISSUE NO. 2

Even applying Rule 103 to this case, the fact of legal separation alone, being the basis for the petition at bar, is not a sufficient ground to justify a change of name, for it would tantamount to provide for an easy circumvention of the mandatory provisions of Art. 372.

Arbie Mae R. Magale

27. REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and MAXIMO WONG

Facts: Respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When he was but two and a half years old and then known as Maximo Alcala, Jr., and his sister Margaret Alcala, was then nine years old, they were, with the consent of their natural parents and by order of the court adopted by spouses Hoong Wong and Concepcion Ty Wong, both naturalized Filipinos.

Hoong Wong, now deceased, was an insurance agent while Concepcion Ty Wong was a high school teacher. They decided to adopt the children as they remained childless after fifteen years of marriage. The couples showered their adopted children with parental love and reared them as their own children.

Upon reaching the age of twenty-two, herein private respondent, by then married and a junior Engineering student at Notre Dame University, Cotabato City, filed a petition to change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong embarrassed and isolated him from his relatives and friends, as the same suggests a Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim community, and he wants to erase any implication whatsoever of alien nationality; that he is being ridiculed for carrying a Chinese surname, thus hampering his business and social life; and that his adoptive mother does not oppose his desire to revert to his former surname.

Petitioner's prayer to change his name from Maximo Wong to Maximo Alcala, Jr. was granted. 5 On appeal to respondent court, and over the opposition of petitioner Republic through the Solicitor General, the decision of the court below was affirmed in full, hence, this petition for review on certiorari.

ISSUE: whether or not the reasons given by private respondent in his petition for change of name are valid, sufficient and proper to warrant the granting of said petition.

Held: YES.

Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the substantive rules which regulate the use of surnames. Considering the subject and personalities involved in this present review, particular attention must be called to Article 365 which mandates that "(a)n adopted child shall bear the surname of the adopter," in correlation with Article 341 on the effects of adoption,



among which is to"(e)ntitle the adopted person to use the adopter's surname." This same entitlement of an adopted child is maintained in Article 39(3), Title II of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code. More recently, Executive Order No. 209, as amended by Executive Order No. 227, or the Family Code, echoes the same statutory right of an adopted child to use the surname of the adopter.

A change of name is a special proceeding to establish the status of a person involving his relation with others, that is, his legal position in, or with regard to, the rest of the community. It is a proceeding in rem 14 and, as such, strict compliance with all jurisdictional requirements, particularly on publication, is essential in order to vest the court with jurisdiction thereover.

The purpose of the law an allowing of change of name as contemplated by the provisions of Rule 103 of the Rules of Court is to give a person an opportunity to improve his personality and to provide his best interest. (Calderon vs. Republic, 19 SCRA 721).

It bears stressing at this point that to justify a request for change of name, petitioner must show not only some proper or compelling reason therefor but also that he will be prejudiced by the use of his true and official name. 24 Among the grounds for change of name which have been held valid are: (a) When the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) When the change results as a legal consequence, as in legitimation; (c) When the change will avoid confusion; 25 (d) Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage; 26 (e) A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; 27 and (f) When the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.

While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that an adopted child shall bear the surname of the adopter, it must nevertheless be borne in mind that the change of the surname of the adopted child is more an incident rather than the object of adoption proceedings.

While we appreciate the Solicitor General's apprehensions and concern, we find the same to be unfounded. We do not believe that by reverting to his old name, private respondent would then be using a name which he is prohibited by law from using. True, the law prescribes the surname that a person may employ; but the law does not go so far as to unqualifiedly prohibit the use of any other surname, and only subjects such recourse to the abstention of the requisite judicial sanction. What the law does not prohibit, it permits.

A petition for change of name is a remedy allowed under our law only by way of exception to the mandatory provisions of the Civil Code on the use of surna

Alfie Omega

28. Ng Yao Siong vs. Republic G.R. No. L-20306 March 31, 1966

Facts: Petitioner, a Chinese resident of Dumaguete City, bears a number of names:

(1) Jesus Ng, in his birth certificate and certificate of residence, (2) Jesus Uy, Keng Lee, in his school records, (3) Uy Keng Lee Jesus, also in his school records, (4) Keng Lee Uy, to his friends and to the general public, (5) Uy Keng Lee, in his income tax returns, and



(6) Jesus Ng Yao Siong, in his alien certificate of registration. These diverse names, his petition avers, "had caused much confusion in his school records and unnecessary delay and embarrassment to him in his dealing with the public". To obviate all these, petitioner would want to be known only by one name — Keng Lee Uy — and accordingly petitioned that the court authorize the change of all the other names to Keng Lee Uy. The city attorney of Dumaguete opposed the petition, alleged that there is no necessity for the change of name and that petitioner is guilty of a violation of the laws regarding the use of names and surnames. The court ruled in favor of petitioner. The Republic filed an appeal.

Issue: WON the petition can be granted.

Held: No.

1. Change of name is a judicial proceeding in rem. Jurisdiction to hear and determine a petition, by law, is acquired after publication of the "order reciting the purpose of the petition" and the "date and place for the hearing thereof" — for three (3) successive weeks in a newspaper of general circulation. Publication is notice to the whole world that the proceeding has for its object "to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established".

But, for that publication to be effective, it must give a correct information. To inform, the publication should recite, amongst others, the following facts:

(1) the name or names of the applicant, (2) the cause for which the change of name is sought, and (3) the new name asked for.

Change of name is a matter of public interest. Petitioner might be in the gallery of wanted criminals; he could be in hiding to avoid service of sentence or compliance with a judgment in a criminal case; he could have escaped a penal institution into which he had been confined. If an alien, he might have given cause for deportation or might be one against whom an order of deportation had actually been issued. And again the new name petitioner desires to adopt may be similar to that of a respectable person. The latter may have evidence that petitioner is with unsavory reputation. Naturally, it is to the interest of the person actually enjoying the good name to protect it against possible mistaken reference to him as the petitioner.

Change of name is not a right. It is a privilege. The court may give or withhold its consent.

In a proceeding for a change of name, the name in the civil register, for legal purposes, is his real name because the civil register is an official record of the civil status of persons. A name given to a person in the church records or elsewhere or by which he is known in the community — when at variance with that entered in the civil register — is unofficial and cannot be recognized as his real name. The only name that may be changed is the true or official name recorded in the civil register.

With the foregoing guidelines, let us now examine petitioner's application, and the order of publication and the actual publication thereof. The order of publication herein — based on the petition — was published in "The Negros Time", a weekly newspaper in Dumaguete City. The title of this case was there printed as follows:

"In the matter of the change of name of Jesus Ng Yao Siong, Jesus Ng Yao Siong, petitioner."

But Jesus Ng Yao Siong the name appearing in the petition, the order of publication, and the publication itself, is not the true name of petitioner. As heretofore stated, his name appearing in the



civil register is merely "Jesus Ng" without the Yao Siong. The name is to be changed, if any, Jesus Ng — not Jesus Ng Yao Siong. It thus results that there is no name to be changed in the petition.

It is our view that this failure in the heading of the application to give the true name sought to be changed is fundamental; such failure is non-compliance with the strict requirements of publication; it is fatal; and the court did not acquire jurisdiction to hear the case.

2. Petitioner's other names are recited in the body of the order of publication. Petitioner himself admits that he is known by all these names. This gives rise to the necessity of including his aliases in the title of the petition — not only in the body thereof. So that, the title of this petition should read

"In the matter of the change of name of Jesus Ng, otherwise known as Jesus Ng Yao Siong, Jesus Uy Keng Lee, Uy Keng Lee Jesus, Keng Lee Uy and Uy Keng Lee" (this last being the name he uses in his income tax returns).

The reason for this is obvious. Notices in the newspapers, like the one under consideration, usually appear in the back pages. The reader, as is to be expected, merely glances at the title of the petition. It is only after he has satisfied himself that the title interests him, that he proceeds to read down further. The probability is that the portions in the publication heretofore quoted will escape the reader's notice. The purpose of which the publication is made, that is, to inform, may thus be unserved.

We accordingly hold that for a publication of a petition for a change of name to be valid, the title thereof should include, first, his real name, and second, his aliases, if any.

3. The admitted fact that petitioner had been using aliases ushers us to another problem: Can a court of justice lawfully grant an application for a change of name where he has violated a law regarding the use of aliases? This poser comes to the fore, because petitioner was never authorized to use an alias by a competent court pursuant to the provisions of Commonwealth Act 142, entitled "An act to regulate the use of aliases". With reference to the name Uy Keng Jesus or Jesus Uy Keng Lee which he has used in school, or Keng Lee Uy by which he is known to his friends and the general public, or Uy Keng Lee which he uses in his income tax returns, or Jesus Ng Yao Siong which appears in his alien certificate of registration, none of these names is a "pseudonym for literary purposes", or a name "by which he had been known since his childhood" or "authorized by a competent court". This use is prohibited by that law. Neither did he use these other names as "pen names" or "stage names"; and another statute prohibits him from using the same. To grant the petition here is to sanction an unlawful act which might reach the proportions of a crime.

4. The touchstone for the grant of a change of name is that there be "proper and reasonable cause" for which the change is sought.

The petition and petitioner's testimony are one in the claim that his various names caused much confusion in the school records and unnecessary delay and embarrassment to him in his dealings with the public. This does not constitute proper and reasonable justification to legally authorize a change of name for him. For indeed he had been using these names all along. And that use naturally facilitates his transactions with others who knew him by the one name or the other. Again we say that the petition not being supported by weighty reasons, the condition for the grant thereof is non-existent; and, nothing is left for the court but to dismiss the petition.


29. Secon Kok vs. Republic

G.R. No. L-27621 August 30, 1973



Facts:

Secon Kok used three names: Cua Kian Kok, his real name; Secan Kok, the name reflected in his ACR; and Antonio Cua, the name he was baptized with. He then filed a petition to change his name and that of his daughter Marilyn Se respectively to Antonio Cuakok and Gloria Cuakok. Finding the petition meritorious, the court granted the names as prayed for. Thereafter, he filed a motion for supplemental judgment, alleging that the Bureau of Immigration refused to change the surname of his wife Lucia O. Tee and their aforesaid six (6) minor children to Cuakok who were then registered in the Bureau of Immigration with the surname of Cua. The motion for supplemental judgment of was granted thereby authorizing appellee's legal wife Lucia O. Tee and their minor children namely, Perfecto, Romeo, Tomas, Daniel and Antonio, Jr., to bear his newly granted surname Cuakok.

Issue: Whether or not there is a need for the wife of Secon Kok to file a separate petition to change her name.

Ruling: Yes.

The Court ruled that the rules are very explicit. Section 2 of Rule 103 of the Revised Rules of Court provides that a petition for a change of name shall be signed and verified by the person desiring his name to be changed, or some other person in his behalf. There is need therefore for a separate petition to be filed by the wife Lucia O. Tee, who is already of age, in her own behalf and in behalf of her minor children.

To allow the change of name of the wife and other minor children of petitioner-appellee, upon a mere motion as an incident in the proceedings for the change of name of petitioner-appellee, will not only deprive the government of the required filing fees therefor but will also dispense with the essential requirements respecting the recitals in the title of the petition and the publication to apprise persons, who may be in possession of adverse information or evidence against the grant of the petition, so that they will come forward with such information or evidence in order to protect public interest as well as the interest of private individuals who may be prejudiced by the change of name of the petitioner.

The court held that to confer jurisdiction on the court, strict compliance with the requirements is essential, namely, that such verified petition should be published for three (3) successive weeks in some newspapers of general circulation in the province; and that both the title or caption of the petition and its body shall recite (1) the name or names or aliases of the applicant; (2) the cause for which the change of name is sought; and (3) the name or names or aliases of the applicant; (4) the cause for which the change of name is sought; and (5) the new name asked for. The reason for these requirements is that a change of name is a matter of public interest. Being a privilege and not a right, a change of name lies within the discretion of the court give or withhold. Failure to comply with these jurisdictional requirements, renders the proceedings a nullity.

The court also ruled that as far as the petitioner-appellee's own petition is concerned, the publication of the same did not include all his names and aliases, the new name he desires to bear as well as those of his minor daughter Marilyn Se, thus, the trial court did not acquire jurisdiction over his petition and the decision granting his petition is void ab initio and could be attacked collaterally, vitiated as it was by a fatal flaw — lack of jurisdiction.

Lizette Tuballa

30. G.R. No. L-27298 March 4, 1976

IN THE MATTER OF THE PETITION FOR CHANGE OF NAME MARIO PABELLAR, petitioner-appellee, vs.REPUBLIC OF THE PHILLIPPINES, oppositor-appellant.



FACTS:

MARIO PABELLAR was an illegitimate child of Teofila Pabellar and Esteban Carandang, who is married to Rufina Marasigan.

For more than three decades Mario Pabellar uses the surname “Carandang” as appeared in his school and official records records except in his Baptismal Certificate wherein the name Mario Pabellar was indicated with mother Teofila Pabellar and unknown father.

For this reason, a petition for the change of name was filed.

The City Fiscal opposed the petition on the grounds that the change of name was not justified and that since the petitioner is an illegitimate child he has no right to use his father's surname.

ISSUE: WHETHER OR NOT PETITION FOR CHANGE OF NAME IS PROPER IN ORDER TO CHANGE THE SURNAME APPEARING IN THE BAPTISMAL CERTIFICATE?

HELD: NO.

RATIONALE: It is true that as a supposed illegitimate child other than natural he should use his mother's surname, Pabellar (Art. 368, Civil Code). But the decisive fact is that since childhood he has been using his father's surname, Carandang, in school and official records.

Section 1 of Commonwealth Act No. 142, which regulates the use of aliases, allows a person to use a name "by which he has been known since childhood" Even legitimate children cannot enjoin the illegitimate children of their father from using his surname.

The fact that the petitioner was christened Mario Pabellar does not justify his petition for the change of his surname to Carandang. "The real name of a person is that given to him in the civil register, not the name by which he was baptized in his church”. The evidence herein does not reveal petitioner's real name in the civil register.

In a petition for change of name "the only name that may be changed is the true or official name recorded in the civil register”, a name which, as already noted, was not proven by the petitioner.

Judicial authority is required for a change of name or surname (Art. 376, Civil Code) but not for the use of a surname which the petitioner has already been using since childhood. Hence, the petition in this case was uncalled for. In colloquial parlance, it has no leg to stand on.

RA BANDALA

31. Republic vs. Hernandez, GR No. 117209, February 9, 1996

Facts: The RTC granted the petition for adoption of Kevin Earl Bartolome Moran and simultaneously granted the prayer therein for the change of the first name of said adoptee to Aaron Joseph, to complement the surname Munson y Andrade which he acquired consequent to his adoption.



Petitioner opposed the inclusion of the relief for change of name in the same petition for adoption objecting to the joinder of the petition for adoption and the petitions for the change of name in a single proceeding, arguing that these petition should be conducted and pursued as two separate proceedings.

Petitioner argues that a petition for adoption and a petition for change of name are two special proceedings which, in substance and purpose, are different from and are not related to each other, being respectively governed by distinct sets of law and rules. Petitioner further contends that what the law allows is the change of the surname of the adoptee, as a matter of right, to conform with that of the adopter and as a natural consequence of the adoption thus granted. If what is sought is the change of the registered given or proper name, and since this would involve a substantial change of one’s legal name, a petition for change of name under Rule 103 should accordingly be instituted, with the substantive and adjective requisites therefor being conformably satisfied.

Private respondents, on the contrary, admittedly filed the petition for adoption with a prayer for change of name predicated upon Section 5, Rule 2 which allows permissive joinder of causes of action in order to avoid multiplicity of suits and in line with the policy of discouraging protracted and vexatious litigations. It is argued that there is no prohibition in the Rules against the joinder of adoption and change of name being pleaded as two separate but related causes of action in a single petition.

Issue: WON respondent judge erred in granting prayer for the change of the given or proper name if the adoptee in a petition for adoption.

Held: No.

Par (1), Art. 189 of the Family Code provides one of the legal effect of adoption:

(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;

The law allows the adoptee, as a matter of right and obligation, to bear the surname of the adopter, upon issuance of the decree of adoption. It is the change of the adoptee’s surname to follow that of the adopter which is the natural and necessary consequence of a grant of adoption and must specifically be contained in the order of the court, in fact, even if not prayed for by petitioner.

However, the given or proper name, also known as the first or Christian name, of the adoptee must remain as it was originally registered in the civil register. The creation of an adoptive relationship does not confer upon the adopter a license to change the adoptee’s registered Christian or first name. The automatic change thereof, premised solely upon the adoption thus granted, is beyond the purview of a decree of adoption. Neither is it a mere incident in nor an adjunct of an adoption proceeding, such that a prayer therefor furtively inserted in a petition for adoption, as in this case, cannot properly be granted.

The official name of a person whose birth is registered in the civil register is the name appearing therein. If a change in one’s name is desired, this can only be done by filing and strictly complying with the substantive and procedural requirements for a special proceeding for change of name under Rule 103 of the Rules of Court, wherein the sufficiency of the reasons or grounds therefor can be threshed out and accordingly determined.

A petition for change of name being a proceeding in rem, strict compliance with all the requirements therefor is indispensable in order to vest the court with jurisdiction for its adjudication. It is an independent and discrete special proceeding, in and by itself, governed by its own set of rules. A



fortiori, it cannot be granted by means of any other proceeding. To consider it as a mere incident or an offshoot of another special proceeding would be to denigrate its role and significance as the appropriate remedy available under our remedial law system.

Edwin Gutierrez

32. MARIA VIRGINIA V. REMO vs.THE HONORABLE SECRETARY OF FOREIGN AFFAIRS

Facts:

Petitioner Maria Virginia V. Remo married Filipino citizen whose Philippine passport was expiring. Petitioner being married to Francisco R. Rallonza, the following entries appear in her passport: "Rallonza" as her surname, "Maria Virginia" as her given name, and "Remo" as her middle name. Prior to the expiry of the validity of her passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with DFA office in Chicago, with a request to revert to her maiden name and surname in the replacement passport.

Petitioner’s request having been denied, counsel representing petitioner, wrote then Secretary of Foreign Affairs expressing a similar request.

The DFA, through Assistant Secretary denied the request, stating thus:

It is not obligatory for a married woman to use her husband’s name. Use of maiden name is allowed in passport application only if the married name has not been used in previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce and death of the husband. Ms. Remo’s case does not meet any of these conditions.4

Issue:

Whether petitioner, who originally used her husband’s surname in her expired passport, can revert to the use of her maiden name in the replacement passport, despite the subsistence of her marriage.

Ruling:

The petition lacks merit.

Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil Code provides:

ART. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s surname, or

(2) Her maiden first name and her husband's surname, or

(3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as "Mrs."



We agree with petitioner that the use of the word "may" in the above provision indicates that the use of the husband’s surname by the wife is permissive rather than obligatory.

A married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code.13 She is therefore allowed to use not only any of the three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. 14

In the present case, petitioner, whose marriage is still subsisting and who opted to use her husband’s surname in her old passport, requested to resume her maiden name in the replacement passport arguing that no law prohibits her from using her maiden name.

The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d), which states:

No passport shall be issued to an applicant unless the Secretary or his duly authorized representative is satisfied that the applicant is a Filipino citizen who has complied with the following requirements:

(d) In case of a woman who is married, separated, divorced or widowed or whose marriage has been annulled or declared by court as void, a copy of the certificate of marriage, court decree of separation, divorce or annulment or certificate of death of the deceased spouse duly issued and authenticated by the Office of the Civil Registrar General: Provided, That in case of a divorce decree, annulment or declaration of marriage as void, the woman applicant may revert to the use of her maiden name: Provided, further, That such divorce is recognized under existing laws of the Philippines;

The Office of the Solicitor General, on behalf of the Secretary of Foreign Affairs, argues that the highlighted proviso in Section 5(d) of RA 8239 "limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport." These instances are death of husband, divorce decree, annulment or nullity of marriage. Significantly, Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239 provides:

The passport can be amended only in the following cases:

a) Amendment of woman’s name due to marriage;

b) Amendment of woman’s name due to death of spouse, annulment of marriage or divorce initiated by a foreign spouse; or

c) Change of surname of a child who is legitimated by virtue of a subsequent marriage of his parents.

Since petitioner’s marriage to her husband subsists, placing her case outside of the purview of Section 5(d) of RA 8239 , she may not resume her maiden name in the replacement passport.15

In the case of renewal of passport, a married woman may either adopt her husband’s surname or continuously use her maiden name. If she chooses to adopt her husband’s surname in her new passport, the DFA additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden name.17

However, once a married woman opted to adopt her husband’s surname in her passport, she may not revert to the use of her maiden name, except in the cases enumerated in Section 5(d) of RA 8239. These instances are: (1) death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage. Since petitioner’s marriage to her husband subsists, she may not resume her maiden name in the replacement passport. Thus, for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will.



Olan Dave L. Lachica

33. REPUBLIC v. MERCADERA

FACTS

What happened in this case was that Merlyn Mercadera, represented by her sister and duly constituted Atty-In-Fact, Evelyn M. Oga, sought the correction of her given name as it appeared in her Certificate of Live Birth - from Marilyn L. Mercadera to Merlyn L. Mercadera before the Office of the Local Civil Registrar of Dipolog City pursuant to Republic Act No. 9048.

Under R.A. No. 9048, the city or municipal civil registrar or consul general, as the case may be, is now authorized to effect the change of first name or nickname and the correction of clerical or typographical errors in civil registry entries. “Under said law, jurisdiction over applications for change of first name is now primarily lodged with administrative officers.

The Office of the Local Civil Registrar of Dipolog City, however, refused to effect the correction unless a court order was obtained “because the Civil Registrar therein is not yet equipped with a permanent appointment before he can validly act on petitions for corrections filed before their office as mandated by Republic Act 9048.

Mercadera was then constrained to file a Petition For Correction of Some Entries as Appearing in the Certificate of Live Birth under Section 2 of Rule 108.

Upon the date of hearing, the testimony of Mercadera’s sister established the fact that Merlyn was born on August 19, 1970 at Dipolog City. She is the daughter of spouses Tirso U. Mercadera and Norma C. Lacquiao. In the certification of birth dated May 9, 2005 issued by the civil registry, her given name appears as Marilyn and not Merlyn. she was baptized according to the rites of UCCP, and as reflected in her certificate of baptism issued, she was baptized by the name Merlyn L. Mercadera. In addition, in her elementary, highschool, and college diploma uniformly show her name as Merlyn L. Mercadera. Presently, she is working in UP Mindanao, and her certificate of membership issued by the GSIS also bears his complete name as Merlyn Lacquiao Mercadera. When she secured an authenticated copy of her certificate of live birth from the NSO, she discovered that her given name as registered is Marilyn and not Merlyn.

The RTC ruled that the documentary evidence presented by Mercadera sufficiently supported the circumstances alleged in her petition. Considering that she had used “Merlyn” as her given name since childhood until she discovered the discrepancy in her Certificate of Live Birth, the RTC was convinced that the correction was justified.

But the OSG timely interposed an appeal praying for the reversal and setting aside of the RTC decision for the reason that correction in the spelling of Mercadera’s given name might seem innocuous enough to grant but “it is in truth a material correction as it would modify or increase substantive rights.

ISSUE:

WHETHER OR NOT MERCADERA’S GIVEN NAME AS REGISTERED MARILYN BE CHANGED TO THAT OF MERLYN UNDER 108

RULING:

YES, the petition filed by Mercadera before the RTC correctly falls under Rule 108 as it simply sought a correction of a misspelled given name.

To correct simply means “to make or set aright; to remove the faults or error from.” To change means “to replace something with something else of the same kind or with something that serves as a substitute.”[36] From the allegations in her petition, Mercadera clearly prayed for the lower court “to remove the faults or error” from her registered given name “MARILYN,” and “to make or set aright”



the same to conform to the one she grew up to, “MERLYN.” It does not take a complex assessment of said petition to learn of its intention to simply correct the clerical error in spelling.

Indeed, there are decided cases involving mistakes similar to Mercadera’s case which recognize the same a harmless error. In Yu v. Republic[37] it was held that “to change ‘Sincio’ to ‘Sencio’ which merely involves the substitution of the first vowel ‘i’ in the first name into the vowel ‘e’ amounts merely to the righting of a clerical error.” InLabayo-Rowe v. Republic,[38] it was held that the change of petitioner’s name from “Beatriz Labayo/Beatriz Labayu” to “Emperatriz Labayo” was a mere innocuous alteration wherein a summary proceeding was appropriate. In Republic v. Court of Appeals, Jaime B. Caranto and Zenaida P. Caranto, the correction involved the substitution of the letters “ch” for the letter “d,” so that what appears as “Midael” as given name would read “Michael.” In the latter case, this Court, with the agreement of the Solicitor General, ruled that the error was plainly clerical, such that, “changing the name of the child from ‘Midael C. Mazon’ to ‘Michael C. Mazon’ cannot possibly cause any confusion, because both names can be read and pronounced with the same rhyme (tugma) and tone (tono, tunog, himig).”[39]

In this case, the use of the letter “a” for the letter “e,” and the deletion of the letter “i,” so that

what appears as “Marilyn” would read as “Merlyn” is patently a rectification of a name that is clearly misspelled. The similarity between “Marilyn” and “Merlyn” may well be the object of a mix- up that blemished Mercadera’s Certificate of Live Birth until her adulthood, thus, her interest to correct the same.


34. PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND, CILIA T. MORING and HUSBAND, petitioners, vs.COURT OF APPEALS and ABDON GILIG, respondents.G.R. No. 108532 March 9, 1999

KAPUNAN, J.:

FACTS: As a result of a judgment in a civil case (for recovery of property) in favor of private respondent, two (2) of petitioners' properties were levied to satisfy the judgment amount of about P5,000.00: one was a parcel of land and the other was the family home.

The subject properties were sold at public auction on February 12, 1966 to the private respondent as the highest bidder. Consequently, after petitioners' failure to redeem the same, a final deed of conveyance was executed on February 9, 1968, definitely selling, transferring, and conveying said properties to the private respondent.

To forestall such conveyance, petitioners filed an action on November 5, 1985 to declare the deed of conveyance void and to quiet title over the land with a prayer for a writ of preliminary injunction.Deputy Provincial Sheriff Jose V. Yasay issued a Sheriffs Deed of Conveyance in favor of the private respondent over the subject property including their family home which was extrajudicially constituted in accordance with law.

Petitioners aver that the house which their father constituted as family home is exempt from execution. In a last ditch effort to save their property, petitioners invoke the benefits accorded to the family home under the Family Code.

ISSUE: Whether or not the family home of the petitioners as constituted by their father is exempt from execution.

HELD: NO

A family home is the dwelling place of a person and his family. It is said, however, that the family home is a real right, which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to



enjoy such properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain specials cases.

Under the Civil Code (Articles 224 to 251), a family home may be constituted judicial and extrajudicially, the former by the filing of the petition and with the approval of the proper court, and the latter by the recording of a public instrument in the proper registry of property declaring the establishment of the family home. The operative act then which created the family home extrajudicially was the registration in the Registry of Property of the declaration prescribed by Articles 240 and 241 of the Civil Code.

Under the Family Code, however. registration was no longer necessary Article 153 of the Family Code provides that the family home is deemed constituted on a house and lot from the time it is occupied in the family. It reads:

The family home is deemed constituted on a house and lot from the time it is occupied as family residence. From the time of its constitution and so long as its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment, except as hereinafter provided and to the extent of the value allowed by law.

In the case of Manacop v. Court of Appeals 11 on the retroactive effect of the Family Code, particularly on the provisions on the family home, to wit:

While Article 153 of the Family Code provides that the family home is deemed constituted on a house and lot from the time it is occupied as a family residence, it does not mean that said article has a retroactive effect such that all existing family residences, petitioner's included, are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and henceforth, are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code on August 3, 1988. Neither does Article 162 of said Code state that the provisions of Chapter 2, Title V thereof have retroactive effect. It simply means that all existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code.

The applicable law, therefore in the case at bar is still the Civil Code where registration of the declaration of a family home is a prerequisite. Nonetheless, the law provides certain instances where the family home is not exempted from execution, forced sale or attachment.

Art. 243 of the Civil Code states that: The family home extrajudicially formed shall be exempt from execution, forced sale or attachment, except:

(2) For debts incurred before the declaration was recorded in the Registry of Property;

The trial court found that on March 7, 1964, Pablo Taneo constituted the house in question, erected on the land of Plutarco Vacalares, as the family home.

The instrument constituting the family home was registered only on January 24, 1966. The money judgment against Pablo Taneo was rendered on January 24, 1964. Thus, at that time when the "debt" was incurred, the family home was not yet constituted or even registered. Clearly, petitioners' alleged family home, as constituted by their father is not exempt as it falls under the exception of Article 243 (2).

Moreover, the constitution of the family home by Pablo Taneo is even doubtful considering that such constitution did not comply with the requirements of the law. The trial court found that the house was erected not on the land which the Taneos owned but on the land of one Plutarco Vacalares. By the very definition of the law that the "family home is the dwelling house where a person and his family resides and the land on which it is situated," 13 it is understood that the house should be constructed on a land not belonging to another.



Alexis Enriquez

35. Manacop vs. CAGR No. 104875, November 13, 1992

FACTS:

Florante Manacop and his wife Euaceli purchased on March 1972, a residential lot with a bungalow located in Quezon City. The petitioner failed to pay the sub-contract cost pursuant to a deed of assignment signed between petitioner’s corporation and private respondent herein (FF Cruz & Co). The latter filed a complaint for the recovery for the sum of money with a prayer for preliminary attachment against the former. Consequently, the corresponding writ for the provisional remedy was issued which triggered the attachment of a parcel of land in Quezon City owned by the Manacop Construction President, the petitioner. The latter insists that the attached property is a family home having been occupied by him and his family since 1972 and is therefore exempt from attachment.

ISSUE: WON the subject property is indeed exempted from attachment.

HELD:

The residential house and lot of petitioner became a family home by operation of law under Article 153 of the Family Code. Such provision does not mean that said article has a retroactive effect such that all existing family residences, petitioner’s included, are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and henceforth, are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code on August 3, 1988. Since petitioner incurred debt in 1987, it preceded the effectivity of the Code and his property is therefore not exempt form attachment.

The petition was dismissed by SC.Ramon Taghoy II

36. In re Instate of the deceased Marciana Escaño. ANGELITA JONES., petitioner-appellant-appellee, vs.FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee

FACTS:

Marciana Escano and Arthur Jones got married in December 1914. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever heard of him. Therefore, in October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the instance of Marciana Escaño, to have her husband judicially declared an absentee

On October 25, 1919, the court declared Arthur as an absentee with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers pursuant to Art. 186 of the Old Civil Code.

In 23 April 1921, the court issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in “El Ideal.”

On May 6, 1927, Marciana contracted a second marriage with Felix Hortiguela. When Marciana died intestate, Felix was appointed as judicial administrator of the estate. Angelita Jones, Marciana’s daughter from her first marriage, filed a case and alleged that she is the only heir of her mother and that her mother’s marriage to Felix was null and void on the ground that from April 23, 1921 (when the court issued an order for the taking effect of declaration of absence & publication thereof) to May 6, 1927 (her mother and Felix’s marriage) was below the 7-year prescriptive period or only 6 years and 14 days. With this, the marriage would be null and void and would render her as the sole heir.

ISSUE:



WON Arthur Jones is considered as an absentee? YES

Whether or not Felix Hortiguela’s alleged marriage to Marciana Escaño was celebrated? YES

HELD:

His absence should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful.

For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage.

DON NICO G. SANCHEZ

37. RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES. ERLINDA REYNOSO REYES, petitioner vs.HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First Instance of Cavite, Branch II, Cavite City, respondents.

FACTS:• October 25, 1969 – Erlinda Reynoso in a petition prayed for the declaration of the absence of her husband Roberto Reyes alleging that:

1. her husband had been absent from their conjugal dwelling since April 1962 and2. since then had not been heard from and his whereabouts unknown3. husband left no will nor any property in his name nor any debts

• The evidence established that:1. they were married on March 20, 19602. in April 1962 her husband left the conjugal home due to some misunderstanding over personal matters

- since then the petitioner has not received any news about the whereabouts of her husband3. they have not acquired any properties during their marriage & no outstanding obligation in favor of anyone4. her only purpose in filing the petition is to establish the absence of her husband, invoking the provisions of:

a. Rule 107, ROCb. Article 384, CC

Court a quo– dismissed the petition on the ground that since Roberto Reyes left no properties, there was no necessity to declare him judicially an absentee. It said:

• Rule 107, ROC on absentees reveals that it is based on the provisions of Title 14 New Civil Code (NCC) on absence

• The reason and purpose of the provisions are:(1) The interest of the person himself who has disappeared; (2) The rights of third parties against the absentee, especially those who have rights which would depend upon the death of the absentee; and (3) The general interest of society which may require that property does not remain abandoned without someone representing it and without an owner

• Provisions of the NCC are concerned with absence only with reference to its effects on the property• Article 384 NCC refers to the second period or stage of absence, and specifically indicates

the precise moment when the same may begin:



1. after the lapse of 2 years without any news about the absentee or since the receipt of the last news, and2. after 5 years in case the absentee has left a person in charge of the administration of his property of the absentee

• Article 381 NCC provides for provisional measures – the appointment by the Court of a person to represent the absentee “in all that may be necessary” – when a mere presumption of his absence arises

• Article 382 enjoins the judge to “take necessary measures to safeguard the rights and interests of the absentee” – appointment of a “representative” of the absentee is for the protection of the interest of the latter

• It is not enough that a person is declared an absentee. The law requires the judge to appoint a representative for the absentee precisely to safeguard the property or interest of the latter

• Declaration of absence is for a specific purpose and that is the protection of the interest or property of the absentee

• Rule 107 ROC, Sections 6 and 7 make it mandatory upon the court to appoint a representative, trustee or administrator who shall safeguard the rights and interest of the absentee

• Considering that neither the petition alleges, nor the evidence shows, that Roberto Reyes has any rights, interests or property in the Philippines, there is no point in judicially declaring him an absentee

• The need to have a person judicially declared an absentee is when:1. he has properties which have to be taken cared of or administered by a representative appointed by the court2. the spouse of the absentee is asking for separation of property, or3. his wife is asking the court that the administration of classes of property in the marriage be transferred to her

• The following petitions may be combined and adjudicated in the same proceeding:1. Petition to declare the husband an absentee2. Petition to place the management of the conjugal properties in the hands of the wife


38. ARMAS vs. CALISTERIOGR No. 136467April 6, 2000

FACTS:

Teodorico Calisterio, husband of Marietta Calisterio, the respondent, died intestate in April 1992 leaving several parcel of land estimated value of P604,750.00. He was the second husband of Marietta who was previously married with William Bounds in January 1946. The latter disappeared without a trace in February 1947. 11 years later from the disappearance of Bounds, Marietta and Teodorico were married in May 1958 without Marietta securing a court declaration of Bounds’ presumptive death.

Antonia Armas y Calisterio, surviving sister of Teodorico filed a petition claiming to be the sole surviving heir of the latter and that marriage between Marietta and his brother being allegedly bigamous is thereby null and void. She prayed that her son Sinfroniano be appointed as administrator, without bond, of the estate of the deceased and inheritance be adjudicated to her after all the obligations of the estate would have been settled.

ISSUE: Whether Marrieta and Teodorico’s marriage was void due to the absence of the declaration of presumptive death.

HELD:

NO.



The marriage between the respondent and the deceased was solemnized in May 1958 where the law in force at that time was the Civil Code and not the Family Code which only took effect in August 1988. Article 256 of the Family Code itself limit its retroactive governance only to cases where it thereby would not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. Since the Civil Code provides that declaration of presumptive death is not necessary before contracting marriage, where at least 7 consecutive years of absence of the spouse is enough to remarry then Marrieta’s marriage with Teodorico is valid and therefore she has a right to claim a portion of the estate.


39. REPUBLIC OF THE PHILIPPINES vs. GREGORIO NOLASCOG.R. No. 94053 March 17, 1993

Facts: Gregorio Nolasco, a seaman, met Janet Monica Parker in a bar in England while being in port, and lived with her on his ship for 6 months up to the expiry of his contract. They married in Nolasco’s hometown (San Jose, Antique) in 1982. Sometime in January 1983, while working overseas, Gregorio received a letter from his mother informing him that Janet Monica had given birth to his son. The same letter informed him that Janet Monica had left Antique. Gregorio further testified that his efforts to look for her himself whenever his ship docked in England proved fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica first met, were all returned to him. He also claimed that he inquired from among friends but they too had no news of Janet Monica.

On 5 August 1988, Gregorio filed before the RTC of Antique, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Art. 41 of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, in the alternative, that the marriage be declared null and void, which the trial court granted in his favor. The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet Monica Parker presumptively dead because respondent Nolasco had failed to show that there existed a well-founded belief for such declaration.

Issue: Whether or not Nolasco had complied with all the requirements for declaration of presumptive death of his missing wife? NO.

Ruling: Nolasco failed to discharge the third element of presumptive death in this case, “a well-founded belief that the absentee is dead.”

There are four (4) requisites for the declaration of presumptive death under Article 41 of the Family Code: 1.That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code; 2.That the present spouse wishes to remarry; 3.That the present spouse has a well-founded belief that the absentee is dead; and 4.That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such diligence as to give rise to a "well-founded belief" that she is dead. The investigation allegedly conducted by respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of Janet Monica's departure, instead of seeking the help of local authorities or of the British Embassy, he secured another seaman's contract and went to London, a vast city of many millions of inhabitants, to look for her there. He confused London for Liverpool and this casts doubt on his supposed efforts to locate his wife in England. SC did not consider walking into a major city like Liverpool or London with a simple hope of somehow bumping into one particular person can be regarded as a reasonably diligent search. The Court also views respondent's claim that Janet Monica declined to give any information as to her personal background even after she had married respondent, too convenient an excuse to justify his failure to locate her. Neither did the SC give much credence to respondent's bare assertion that he had inquired from their friends of her



whereabouts, considering that respondent did not identify those friends in his testimony. Respondent failed to explain why he did not even try to get the help of the police or other authorities in London and Liverpool in his effort to find his wife. The circumstances of Janet Monica's departure and respondent's subsequent behavior make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one.

The Court emphasized on this jurisdiction’s belief in preserving the sanctity of marriage. Spouses should not be allowed, by the simple expedient of agreeing that one of them leave the conjugal abode and never to return again, to circumvent the policy of the laws on marriage. The Court notes that respondent even tried to have his marriage annulled before the trial court in the same proceeding. While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, still the requirements of the law must prevail. Since respondent failed to satisfy the clear requirements of the law, his petition for a judicial declaration of presumptive death must be denied. The law does not view marriage like an ordinary contract.

In fine, respondent failed to establish that he had the well-founded belief required by law that his absent wife was already dead that would sustain the issuance of a court order declaring Janet Monica Parker presumptively dead.

Lourdes Angelie Edig40. Tol-Noquera vs. Villamor

211 SCRA 616

FACTS: Daya Maria-Tol alleged that she was the acknowledged natural child of Remigio

Tol, who had been missing since 1984. She claims that a certain Diosdado Tol had fraudulently secured a free patent over her father's property and successfully had it titled in his name. She prays to be appointed administrator of her father's estate and declare him an absentee so that she can process to recover the property.

The petition was opposed by Diosdado Tol saying that Daya Maria Tol is not an acknowledged natural child of the absentee and that the property sought to be administered was covered by an original certificate of title already issued in his name.

RTC: DISMISSED on the ground that a collateral attack on a Torrens title is not proper for such is deemed incontrovertible.

ISSUE: Whether or not petitioner should be appointed administratrix of Remigio’s estate

HELD: YES. Petitioner can be appointed administratrix of the estate of Remigio, provided that her personality be established. The Supreme Court held that the RTC ruled hastily in concluding the petition was a collateral attack on a Torrens title. The petitioner alleged there was a need to appoint an administrator to prevent the property from being usurped, but this did not amount to a collateral attack on the title. The alleged fraudulent issuance of title was mentioned as a justification for her appointment as administrator.

The purpose of the rules is to protect the property of the absentee, not of the administrator. Thus, questioning whether the administrator could inherit the property being administered is not material. What is material is whether she is one of those allowed by law to seek the declaration of absence of Remigio Tol and whether she is competent to be an administratrix of his estate.

Petition is GRANTED. Case is REMANDED to the court of origin for determination of the legal personality of Daya Maria Tol to petition the declaration of Remigio Tol's absence and of her competence to be appointed as administratrix of his estate.



Missy Ansaldo

41. RIVERO v. COURT OF APPEALS, G.R. No. 141273

FACTS:

In behalf of her minor child, Benedick Arevalo, her mother filed a complaint against defendants for compulsory recognition as the illegitimate child of their deceased father. During trial, Mary Jane Dy-Chiao De Guzman, one of the sisters entered a compromised agreement with plaintiff whereby she is acknowledging the petitioner as the illegitimate son of her father and pay petitioner P6M as a share in the estate of their deceased father. The RTC granted the compromise agreement.

Meanwhile, the Dy Chiao Brothers represented by their uncle filed for annulment of judgment and TRO for the writ of execution of judgment and motion to dismiss. CA directed Mary Jane on the other hand to file a comment on the opposition of her uncle. In her reply, she questions assailed decision of RTC since the illegitimate filiation of Benedick could not be the subject of a compromise agreement. She further alleged that the parties thereunder did not recognize the validity of the compromise agreement, as in fact she and the petitioners were exploring the possibility of modifying their extrajudicial settlement.

CA ruled in favor of the defendants, hence a petition.

ISSUE:

W/N the compromise regarding filiation is valid?

Held:

NO. The ruling of RTC based on the compromise agreement executed by Mary Jane is null and void.

Article 2035(1) of the New Civil Code provides that no compromise upon the civil status of persons shall be valid. As such, paternity and filiation, or the lack of the same, is a relationship that must be judicially established, and it is for the court to determine its existence or absence. It cannot be left to the will or agreement of the parties.

Such recognition by Mary Jane, however, is ineffectual, because under the law, the recognition must be made personally by the putative parent and not by any brother, sister or relative.

Anthony L. Yap

42. RITA DAIS, ET AL., petitionersvs.HONORABLE LEONARDO GARDUNO, Judge of the Seventeenth Judicial District, and JOSE ALTAVAS, respondents

FACTS:

This is a petition for a writ of mandamus to compel the respondent judge to admit an appeal interposed in a probate case by the petitioners.

On January 14, 1924, Respondent Altavas filed a motion in the intestate proceedings of SERAPION DAIS asking that the administrator of the estate be ordered to pay him the sum of P 5,000.00 in settlement of his fees for legal services rendered and to be rendered in the said intestate proceedings.



Judge Salas approved the said petition. The decision indicated that the fees of respondent Altavas were fixed at P 5,000.00 with the understanding that this amount would be considered full compensation for his services until the termination of the case.

However, on January 20, 1925, Judge Abeto issued another order stating that although as adjudged and fixed by the court, the amount prayed for must not be paid in its entirety as the case for intestacy is still pending final decision. The court granted a portion of the amount prayed amounting to P 1,500.00 be paid to Altavas.

On November 28, 1925, the same judge ordered that the administrator can sell at public auction the parcels of land involved in the intestate proceedings. The administrator is ordered to report to the court its negotiations and seek the approval of the same court before the sale of the said goods may be affected.

To this order the herein petitioners excepted, alleging that it was contrary to law and issued without jurisdiction, and asked for a reconsideration and new hearing. Upon denial of their motion on January 1926, the petitioners filed an appeal. The appeal was denied on the ground that the orders of November 1925 were merely interlocutory and not appealable.

On February 15, 1926, the parcels of land were sold by private sale and the proceeds were paid over to respondent Altavas who now moved for the dismissal of the present proceedings on the grount that the matters at issue had become moot and academic.

ISSUE:

Whether or not the appeal from the orders of November 28, 1925 and January 11, 1926 were premature?

Whether or not the word “Termination” as employed in the order meant the termination of the whole case?

RULING:

ISSUE No. 1

No, the orders were not premature or interlocutory in nature.

An interlocutory order is one which does not of itself definitely settle or conclude any of the rights of the parties to the action.

ISSUE No. 2

Yes, the word termination as employed in the order meant the final determination of the litigation.

No provision was made for prepayment of fees and it can therefore not be argued that they were due until after the services were rendered.

Notwithstanding the fact that so far there appears to have been no complete termination of the litigation in any of the cases referred to, the respondent has nevertheless been paid practically his entire fee, and in order to satisfy his claim the court has authorized the sale of real property pertaining to the estate.

Arbie Mae R. Magale

43. G.R. No. 138731 December 11, 2000TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs. ROSALINA C. BIASCAN



Facts: Respondent Rosalina J. Biascan filed a petition praying for her appointment as administratrix of the intestate estate of Florencio Biascan and Timotea Zulueta. Respondent was appointed as regular administratrix of the estates.

Maria Manuel Vda. De Biascan, the legal wife of Florencio Biascan entered her appearance as Oppositor. Simultaneous with her appearance, she filed a pleading containing several motions including a motion for intervention, a motion for the setting aside of private respondent’s appointment as special administratrix and administratrix, and a motion for her appointment as administratrix of the estate of Florencio Biascan.4

After an exchange of pleadings between the parties, CFI granted Maria’s intervention and set for trial the motion to set aside the Orders appointing respondent as administratrix.

Trial court issued an Order6 resolving that: (1) Maria is the lawful wife of Florencio; (2) respondent and her brother are the acknowledged natural children of Florencio; (3) all three are the legal heirs of Florencio who are entitled to participate in the settlement proceedings; (4) the motion to set aside the order appointing private respondent as administratrix is denied; and (5) the motion to approve inventory and appraisal of private respondent be deferred. Maria, through her counsel, received a copy of this April 2, 1981 Order on April 9, 1981.7

On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981 Order, Maria filed her motion for reconsideration8 which private respondent opposed.9

On November 15, 1981, the fourth floor of the City Hall of Manila was completely gutted by fire. The records of the settlement proceedings were among those lost in the fire. Thus, on January 2, 1985, private respondent filed a Petition for Reconstitution10 of the said records.

Due to the delay caused by the fire and the reconstitution of the records, it was only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4 issued an Order11 denying Maria’s June 6, 1981 Motion for Reconsideration.

Sometime thereafter, Maria died and her testate estate also became the subject of settlement proceedings.

The trial court issued an Order16 denying petitioner’s appeal on the ground that the appeal was filed out of time. The trial court ruled that the April 2, 1981 Order which was the subject of the appeal already became final as the Motion for Reconsideration thereof was filed sixty-five (65) days after petitioner received the same. In addition, the court ruled that the notice of appeal itself was filed manifestly late as the same was filed more than 11 years after the issuance of the June 11, 1985 Order denying petitioner’s Motion for Reconsideration. The Motion for Reconsideration dated November 13, 1996 of petitioner was likewise denied by the trial court in an Order17 dated February 12, 1997.

ISSUE: WON Appeal is still proper?

Held: NOThe ruling of the trial court that Maria, private respondent Rosalina Biascan and German Biascan were entitled to participate in the settlement proceedings falls squarely under paragraph (b), Section 1, Rule 109 of the Rules of Court as a proper subject of appeal. By so ruling, the trial court has effectively determined that the three persons are the lawful heirs of the deceased. As such, the same may be the proper subject of an appeal.

Similarly, the ruling of the trial court denying petitioner’s motion to set aside the order appointing private respondent as the regular administratrix of the estate of Florencio Bisacan is likewise a proper subject of an appeal.


http://www.lawphil.net/judjuris/juri2000/dec2000/gr_138731_2000.html#fnt17










In special proceedings, such as the instant proceeding for settlement of estate, the period of appeal from any decision or final order rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required.Petitioner admits that Maria Manuel Vda. De Biascan, its predecessor-in-interest, received a copy of the same of April 9, 1981. Applying these rules, Maria or her counsel had thirty (30) days or until May 9 within which to file a notice of appeal with record on appeal. She may also file a motion for reconsideration, in which case the appeal period is deemed interrupted.

Considering that it was only June 6, 1981, or a full fifty-eight (58) days after receipt of the order, that a motion for reconsideration was filed, it is clear that the same was filed out of time. As such, when the said motion for reconsideration was filed, there was no more appeal period to interrupt as the Order had already become final.

ALfie Luzana Omega44. Miranda vs. Court of Appeals G.R. No. L-33007 June 18, 1976

Facts: In a Special Proceedings for the settlement of the intestate estate of Hilarion Dydongco, a Philippine resident who died in China sometime in 1941, petitioner Vicente Miranda was appointed as administrator. Dydongco was a wealthy businessman and who owns parcels of lands and other properties in Butuan and Cebu City.

In 1962, Miranda as administrator filed Civil Case against the respondents (or their predecessors) for recovery of properties of the decedent alleged to have been fraudulently and in bad faith and in breach of their fiduciary trust, concealed, appropriated and converted as their own by respondents.

Petitioner-administrator prayed that "judgment be rendered declaring that said business, assets, income and other property, are in the possession and under the management and control of said defendants as mere trustees thereof, and sentencing them to turnover and deliver the same to him, as Administrator of the Intestate Estate of Hilarion Dydongco as well as to render accounts and to execute the corresponding deeds of conveyance, in addition to paying damages and the costs."

After a protracted trial, Hon. Jose M. Mendoza (as presiding judge in whose court the intestate proceedings for settlement of the decedent's estate were likewise pending) rendered a sixty-nine page decision on July 26, 1965 finding that most of petitioner- administrator's allegations had been duly proven and sentenced respondents (as defendants) to deliver to petitioner-administrator "all properties found by the court to belong to the estate," "to render full, accurate and correct accounting of all the fruits and proceeds of (such) properties" during their period of possession ("from 1935 until the present date") and to pay exemplary damages to the two heiresses found to have been defrauded and attorney's fees and costs.

The case was remanded to the court of origin — for the rendition of "a full, accurate and complete of all the fruits and proceeds" of the properties declared in Judge Mendoza's decision to belong to the decedent's estate, i.e. for "the adjudications necessary for the completion of said relief (as granted in the decision)".

This time, however, Judge Mendoza (had been promoted as associate justice of the CA and thereafter retired) no longer presided the lower court, having been succeeded by respondent Judge Francisco S. Tantuico, Jr. as presiding judge of the lower court.

Judge Tantuico thus altered and changed his predecessor Judge Mendoza's original decision of July 26, 1965 in his amended decision of October 4, 1969 by excluding certain valuable properties from the estate of the decedent and absolving certain respondents from the obligation of turning over the possession to petitioner, reversing Judge Mendoza's judgment.

Petitioner assailed in an action for certiorari, respondent judge's authority to issue such amended decision substantially changing his predecessor's original decision (which merely awaited the rendition of accounting for completion of the relief therein adjudicated of declaring the properties in possession of respondents to belong to the decedent's estate).

In its split resolution denying reconsideration, CA reiterated that as Judge Mendoza's original decision was "still interlocutory," respondent Judge Tantuico had authority to change, alter or amend the decision as he did over four year later per his amended decision of October 4, 1969, citing a court's "inherent power to amend and control its process and orders so as to make them conformable to law and justice."

Issue: WON Judge Mendoza's decision granting the recovery of the properties which were adjudged to rightfully belong to the decedent's estate and for accounting of the fruits and proceeds thereof was "interlocutory in character" on the doctrine of



Fuentebella vs. Carrascoso and was "not appealable, until after the adjudications necessary for the completion of said relief shall have been made".

Held: The Court holds that CA erred in holding that Judge Tantuico could change, alter and amend his predecessor's decision on the merits for recovery of properties with accounting as if it were a mere interlocutory order or process.

It seems evident that respondent judge's error lay in his misequating Judge Mendoza's 1965 judgment on the merits with "interlocutory orders (that) are subject to change in the discretion of the court" and that respondent appellate court fell into the same error that Judge Mendoza's 1965 judgment "does not dispose of the action in its entirety and leaves something to be done to complete the relief sought and that accordingly it is not appealable until after the adjudications necessary for the completion of said relief shall have been made" it leapt to the unwarranted conclusion that this Court thereby authorized respondent judge not merely to complete the relief granted by enforcing and resolving the accounting as an incident to the level of interlocutory "process and orders" subject to change, revision and reversal for as long as the accounting has not been rendered and completed.

The late Chief Justice Moran, who penned the decision in Fuentebella, stated that "(T)he test to ascertain whether or not an order or a judgment is interlocutory or final is: Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final.

The key test to what is "interlocutory" is when there is something more to be done on the merits of the case. It's more reliable test than that loosely applied in Fuentebella that the decision therein for recovery of properties with accounting is "interlocutory in character because it does not dispose of the action in its entirely and leaves something to be done to complete the relief sought." For strictly speaking, the only stage where nothing more can be done in the trial court to complete the relief sought is after the judgment has been executed, and certainly, no one would contend that all judgments are interlocutory before they are actually executed and satisfied.

The examples of interlocutory matters from our jurisprudence that Moran gives in his treatise deal therefore with interlocutory orders, not judgments, such as orders denying motions for dismissal, for annulment of preliminary attachment or injunction, for alimony pendente lite, for default, etc., since they deal with preliminary matters and trial has yet to be held judgment on the merits rendered.

In Halili vs. CIR, this Court in ruling that the lower court's judgment (ordering the payment of overtime pay although the total amount was yet undetermined and awaited the computation yet to be rendered by the Court Examiner) had already become final and executory for failure of the losing party to appeal therefrom within the reglementary period, dismissed the contention that the judgment was "interlocutory" and still appealable for as long as the accounting had not been completed by re-defining the terms in this wise: "(T)he word I interlocutory is defined as 'something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.' As stated by Bouvier, it is 'something which is done between the commencement and the end of a suit or action which decides some point or matter which, however, is not a final decision of the matter in issue."' and ruled that "(T)he decision, therefore, is a final adjudication on the main issue submitted to the court and cannot be considered as interlocutory". By the same token, the original 1965 decision was and is a final adjudication on the main issue of ownership and recovery of properties disputed between the parties.

The Court's reversal of the CAs decision which upheld respondent judge's amended decision changing and amending substantially his predecessor's judgment on the merits for recovery of properties with accounting on the main ground, inter alia, that this Court's 1968 judgment was misread and misapplied, since the only remaining or residual authority of respondent judge was to enforce, consider and act on the accounting ordered in the original decision for the completion of the relief therein granted before considering private respondents' proposed appeal, suffices to dispose of the case at bar itself.

The Court, however, deems it proper for the guidance of the bench and bar to now declare as is clearly indicated from the compelling reasons and considerations hereinabove stated:

— that the Court considers the better rule to be that stated in H.E. Heacock Co. vs. American Trading Co. , to wit, that where the primary purpose of a case is to ascertain and determine who between plaintiff and defendant is the true owner and entitled to the exclusive use of the disputed property, "the judgment ... rendered by the lower court [is] a judgment on the merits as to those questions, and (that) the order of the court for an accounting was based upon, and is incidental to the judgment on the merits. That is to say, that the judgment ... (is) a final judgment ...; that in this kind of a case an accounting is a mere incident to the judgment; that an appeal lies from the rendition of the judgment as rendered ..." (as is widely held by a great number of judges and members of the bar, as shown by the cases so decided and filed and still pending with the Court) for the fundamental reasons therein stated that "this is more in harmony with the administration of justice and the spirit and intent of the [Rules]. If on appeal the judgment of the lower court is affirmed, it would not in the least work an injustice to any of the legal rights of [appellee]. On the other hand, if for any reason this court should reverse the judgment of the lower court, the accounting would be a waste of time and money, and might work a material injury to the [appellant]; and



— that accordingly, the contrary ruling in Fuentebella vs. Carrascoso which expressly reversed the Heacock case and a line of similar decisions and ruled that such a decision for recovery of property with accounting "is not final but merely interlocutory and therefore not appealable" and subsequent cases adhering to the same must be now in turn abandoned and set aside.

Fuentebella adopted instead the opposite line of conflicting decisions mostly in partition proceedings and exemplified by Ron vs. Mojica, 8 Phil. 928 (under the old Code of Civil Procedure) that an order for partition of real property is not final and appealable until after the actual partition of the property as reported by the court-appointed commissioners and approved by the court in its judgment accepting the report. It must be especially noted that such rule governing partitions is now so expressly provided and spelled out in Rule 69 of the Rules of Court, with special reference to sections 1, 2, 3, 6, 7 and 11, to wit, that there must first be a preliminary order for partition of the real estate (section 2) and where the parties co-owners cannot agree, the court-appointed commissioners make a plan of actual partition which must first be passed upon and accepted by the trial court and embodied in a judgment to be rendered by it (sections 6 and 11). In partition cases, it must be further borne in mind that Rule 69, section 1 refers to "a person having the right to compel the partition of real estate", so that the general rule of partition that an appeal will not lie until the partition or distribution proceedings are terminated will not apply where appellant claims exclusive ownership of the whole property and denies the adverse party's right to any partition, as was the ruling in Villanueva vs. Capistrano and Africa vs. Africa, supra, 55 Fuentebella's express reversal of these cases must likewise be deemed now also abandoned in view of the Court's expressed preference for the rationale of the Heacock case.

The Court's considered opinion is that imperative considerations of public policy and of sound practice in the courts and adherence to the constitutional mandate of simplified, just, speedy and inexpensive determination of every action call for considering such judgments for recovery of property with accounting as final judgments which are duly appealable (and would therefore become final and executory if not appealed within the reglementary period) with the accounting as a mere incident of the judgment to be rendered during the course of the appeal as provided in Rule 39, section 4 or to be implemented at the execution stage upon final affirmance on appeal of the judgment (as in Court of Industrial Relations unfair labor practice cases ordering reinstatement of the worker with accounting, computation and payment of his backwages less earnings elsewhere during his lay-off) and that the only reason given in Fuentebella for the contrary ruling, viz, "the general harm that would follow from throwing the door open to multiplicity of appeals in a single case" is of lesser import and consequence.


45. Lopez vs. Teodoro

G.R. No. L-3071 May 29, 1950

Facts:

Eulalio Lopez, Sr., an incapacitated under the judicial guardianship of Eulalio Lopez, Jr., was the exclusive and absolute owner of an hacienda. On September 3, 1948, the Court of First Instance, acting upon a motion of Senen L. Gamboa and Adelaida Gamboa filed in the proceedings for guardianship, ordered the guardian to pay the movants P7,312 plus 12 per cent interest from August, 1944, amount which represented loans properly authorized by court. The order provided that if the guardian did not have funds to pay those debts, he should take the necessary steps for the sale of some of the property of the guardianship.

In pursuance of this authority, the guardian sold the above tract of land, the only property the incapacitated possessed.

In authorizing the sale of some of the property of the incapacitated, the court did not follow the requirement of section 2 of Rule 96 to the effect that the court shall direct the next of kin of the ward, and all persons interested in the estate, to appear at a reasonable time and place to be specified in the order, to show cause why the prayer for the sale should not be granted. Nor did the court specify, as provided by section 4 of the same Rule, whether the sale should be effected publicly or privately.

Believing that the sale was prejudicial to her brother's interest, Salvacion Lopez, the ward's sister, filed a motion for reconsideration of the court's order authorizing said sale, and upon the motion being denied, she brought a petition for certiorari and mandamus, contending that the sale was null



and void by reason of the court's failure to adhere to Rule 96, and praying that the orders of the respondent court be corrected and the said court directed to revoke the sale

Issue: Whether or not the orders of the respondent court must be corrected and the said court be directed to revoke the sale.

Ruling: No.

The court held that the petitioner has no legal interest in her complaint. The incapacitated has children, all of age, one of whom is the judicial guardian, while the petitioner is only the ward's sister. Neither is the petitioner the ward's next of kin. "Next of kin" within the meaning of Rule 96 are relatives whose relationship is such that they are entitled to share in the estate as distributees. "Next of kin" is also defined in Black's Law Dictionary, 3rd ed., as to mean not the next of kindred but those relatives who share in the estate according to the statute of distribution including those claiming per stripes or by representation.

Not being Eulalio Lopez's forced heir, she was not prejudiced by the sale she seeks to impugn. Although she was a creditor however, she does not claim any right to be notified of the sale as such creditor, and her credit was not impaired. On the contrary, she was benefited by the sale in that she was paid what was due her from its proceeds. As to the other creditors, they did not appear to have any objection to the action taken by the judicial guardian and authorized by the court. None of the children of the incapacitated is or was opposed to the sale sought to be set aside. Only these had an interest in the land of their father, besides the creditors, and only they or the creditors who may have been prejudiced by the sale have a right to object thereto.

Lizette Tuballa

[G.R. No. 138731. December 11, 2000]

46. TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs. ROSALINA C. BIASCAN, respondent.

FACTS:Respondent Rosalina J. Biascan filed a petition at the then Court of First Instance, Branch 4,

Manila praying for her appointment as administratrix of the intestate estate of Florencio Biascan and Timotea Zulueta which was granted by the said court. This was opposed by the legal wife of the decedent, Maria Manuel Vda. de Biascan. She questioned and move to set asided the appointment of Rosalina as administratrix and she prayed for her appointment as administratrix.

On April 2, 1981, the trial court issued an Order resolving that: (1) Maria is the lawful wife of Florencio; (2) respondent and her brother are the acknowledged natural children of Florencio; (3) all three are the legal heirs of Florencio who are entitled to participate in the settlement proceedings; (4) the motion to set aside the order appointing private respondent as administratrix is denied; and (5) the motion to approve inventory and appraisal of private respondent be deferred.

A copy of the order was received by Maria, through her counsel, on April 9, 1981 and filed a Motion for Reconsideration on June 6, 1981 or fifty-eight (58) days after the receipt of the said Order.

On November 15, 1981, the fourth floor of the City Hall of Manila was completely gutted by fire and destroyed the records of the court including that of the settlement proceedings. Due to the delay caused by the fire and the reconstitution of the records, it was only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4 issued an Order denying Maria’s June 6, 1981 Motion for Reconsideration.

Sometime thereafter, Maria died and her testate estate also became the subject of settlement



proceedings. Atty. Marcial F. Lopez was appointed as interim special administrator and engaged the services of the Siguion Reyna Montecillo and Ongsiako Law Offices on Behalf of the estate.

It was only on August 21, 1996, as alleged, that the law firm made aware of and given notice of the April 30, 1985 Order and was able to secure a certification from the Clerk of Court that there was no proof of service of the April 30, 1985 Order.

A Notice of Appeal was filed on August 22, 1996 was filed. While the said notice of appeal was dated April 22, 1996, the stamp of the trial court on the first page of the notice clearly indicated that the same was received by the trial court on September 20, 1996. A Record of Appeal dated September 20, 1996 was likewise filed by petitioner.

The trial court denied the petitioners appeal on the ground that it was filed out of time.

The CA affirmed the order of the trial court.

The petitioner appealed to the Supreme Court contending that the order dated April 2, 1981 of the trial court did not become final and executory as no opposition on its timeliness was filed and no ruling as regards its timeliness was made.

ISSUE: WHETHER OR NOT, IN SPECIAL PROCEEDINGS, EVEN THE LAPSE OF THE PRESCRIBE PERIOD BUT ABSENCE OF OPPOSITION TO AND JUDICIAL RULING ON THE TIMELINESS TO FILE AN APPEAL HAS NOT RENDER THE ORDER FINAL AND EXECUTORY, HENCE, APPEALABLE?

RULING: NO.

In special proceedings, such as the instant proceeding for settlement of estate, the period of appeal from any decision or final order rendered therein is thirty (30) days, a notice of appeal and a record on appeal being required. Once the appeal period expires without an appeal or a motion for reconsideration or new trial being perfected, the decision or order becomes final.

Maria or her counsel received the Order on April 9, therefore, they had only thirty (30) days or until May 9 within which to file a notice of appeal with record on appeal. She may also file a motion for reconsideration, in which case the appeal period is deemed interrupted. However, it is clear that the motion for reconsideration was filed out of time for it was filed only on June 6, 1981 or full fifty-eight (58) days after the receipt of the said order.

It is well-settled that judgment or orders become final and executory by operation of law and not by judicial declaration. Thus, finality of a judgment becomes a fact upon the lapse of the reglamentary period of appeal if no appeal is perfected or motion for reconsideration or new trial is filed. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law.

Assuming that the Motion for Reconsideration filed by petitioner had the effect of suspending the running of the appeal period for the April 2, 1981 Order, it is clear that petitioner’s notice of appeal of the orders of the trial court was still filed out of time.

Under Section 3, Rule 41 of the Rules of Court then applicable, the time during which a motion to set aside the judgment or order or for a new trial shall be deducted from the period from which to make an appeal. The rule further states that where the motion was filed during office hours of the last day of the appeal period, the appeal must be perfected within the day following that in which the



party appealing received notice of the denial of said motion.

Giving petitioner the benefit of the doubt that it had indeed received notice of the order denying its motion for reconsideration on August 21, 1996, it follows that petitioner only had until the following day or on August 22, 1996 within which to perfect the appeal.

While the Notice of Appeal was ostensibly dated August 22, 1996, it is clear from the stamp of the trial court that the same was received only on September 20, 1996.

Considering that it is clear from the records that petitioner’s notice of appeal was filed on September 20, 1996, the same was clearly filed out of time as it only had until August 22, 1996 within which to file the said pleading.

RA BANDALA

End


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