G.R. No. 105308 September 25, 1998HERBERT CANG

vs.CA and Spouses RONALD V. CLAVANO and MARIA CLARA

CLAVANO

Nature: Petition for review on certiorari of the Decision of the CA affirming the decree of adoption issued by the RTC-Cebu City - "In the Matter of the Petition for Adoption of the minors Keith, Charmaine and Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners."

Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot 3 children:

Keith - July 3, 1973; Charmaine - January 23, 1977Joseph Anthony - January 3, 1981.

Anna Marie learned of her husband's alleged extramarital affair (Wilma Soco)

petition for legal separation with alimony pendente lite approved the joint manifestation of the Cang spouses

providing that they agreed to "live separately and apart or from bed and board."

Agreement: Entitlement of the children to monthly support

(P1K) effective from the date of the filing of the complaint

Plaintiff shall be entitled to enter into any contract or agreement with any person or persons, natural or juridical without the written consent of the husband; or any undertaking or acts that ordinarily requires husband's consent as the parties are by this agreement legally separated

Petitioner then left for the US where he sought a divorce from Anna Marie before the

2nd Judicial District Court of the State of Nevada. also granted sole custody of the 3 minor children to Anna

Marie, reserving "rights of visitation at all reasonable times and places" to petitioner

took an American wife and thus became a naturalized American citizen. In 1986, he divorced his American wife and never remarried

worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a month a portion of which was remitted to the Phils for his children's expenses and another, deposited in the bank in the name of his children

PRs Ronald and Maria Clara (bro and sis-in-law of Anna Marie) filed a special proc for the adoption of the 3 minor children before the RTC-Cebu

bears the signature of then 14-year-old Keith signifying consent to his adoption.

Anna Marie likewise filed an affidavit of consent alleging that her husband had "evaded his legal obligation to

support" his children; that her brothers and sisters including Ronald V. Clavano,

had been helping her in taking care of the children; that because she would be going to the US to attend to a

family business, "leaving the children would be a problem and would naturally hamper (her) job-seeking venture abroad;" and

that her husband had "long forfeited his parental rights" over the children for the following reasons:

1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her husband;

2. Her husband had left the Philippines to be an illegal alien in the US and had been transferring from one place to another to avoid detection by Immigration authorities, and

3. Her husband had divorced her.

Upon learning of the petitioner for adoption, petitioner immediately returned to the Philippines filed an opposition thereto, alleging that,

although PRs Ronald and Maria Clara were financially capable of supporting the children while his finances were "too meager" compared to theirs, he could not "in conscience, allow anybody to strip him of his parental authority over his beloved children."

Pending resolution of the petition for adoption – petitioner moved to reacquire custody over his children

alleging that Anna Marie had transferred to the US thereby leaving custody of their children to PRs.

RTC issued an order finding that Anna Marie had, in effect, relinquished custody over the children

therefore, such custody should be transferred to the father

directed the Clavanos to deliver custody over the minors to petitioner.

RULING OF RTC – granted and approved the petition for adoption and issued a decree of adoption in favor of PRs since Herbert Cang has abandoned his children which is a ground for dispensing with his consent to its (sic) adoption. ]). Indeed, in such case, adoption will be allowed not only without the consent of the parent, but even against his opposition.

(1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate children of the petitioners;

(2) Dissolve the authority vested in the parents by nature, of the children; and,

(3) Vest the same authority in the petitioners.

Reasons for granting of RTC -

(1) The Cang children had, since birth, developed "close filial ties with the Clavano family, especially their maternal uncle," Ronald

(2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export business and gasoline station and mini-mart in Rosemead, California, U.S.A., had substantial assets and income.

(3) The natural mother of the children, Anna Marie, nicknamed "Menchu," approved of the adoption because of her heart ailment, near-fatal accident in 1981, and the fact that she could not provide them a secure and happy future as she "travels a lot."

(4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and had sent the children to Catholic schools.

(5) The children themselves manifested their desire to be adopted by the Clavanos — Keith had testified and expressed the wish to be adopted by the Clavanos while the two younger ones were observed by the court to have "snuggled" close to Ronald even though their natural mother was around.

Reasons for disallowing the opposition of petitioner –

(1) Petitioner was "morally unfit to be the father of his children" on account of his being "an improvident father of his family" and an "undisguised Lothario." This conclusion is based on the testimony of his alleged paramour, mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and petitioner lived as husband

ADOPTION

and wife in the very house of the Cangs in Opao, Mandaue City.

(2) The alleged deposits of around $10,000 that were of "comparatively recent dates" were "attempts at verisimilitude" as these were joint deposits the authenticity of which could not be verified.

(3) Contrary to petitioner's claim, the possibility of his reconciliation with Anna Marie was "dim if not nil" because it was petitioner who "devised, engineered and executed the divorce proceedings at the Nevada Washoe County court."

(4) By his naturalization as a U.S. citizen, petitioner "is now an alien from the standpoint of Philippine laws" and therefore, how his "new attachments and loyalties would sit with his (Filipino) children is an open question."

Petitioner’s appeal to the CA -

the lower court erred in holding that it would be in the best interest of the three children if they were adopted by PRs

petition for adoption was fatally defective and tailored to divest him of parental authority because:

(a) he did not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine did not properly give their written consent; and (d) the petitioners for adoption did not present as witness the representative of the DSWD who made the case study report required by law

CA AFFIRMED THE RULING OF LOWER COURT -

Art. 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been held however that the consent of the parent who has abandoned the child is not necessary.

In adoption cases, abandonment connotes any conduct on the part of the parent to forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural and legal obligations which parents owe their children, or the withholding of the parent's presence, his care and the opportunity to display voluntary affection. The issue of abandonment is amply covered by the discussion of the first error.

Petitioner’s argument – he has been sending dollar remittances to the children and has in fact even maintained bank accounts in their names. His duty to provide support comes from two judicial pronouncements.

HOWEVER, The bank accounts do not really serve what oppositor claimed in his offer of evidence "the aim and purpose of providing for a better future and security of his family."

MR Denied.

ISSUE Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them?

Liberal treatment to the procedural aspect of adoption

The written consent of the natural parent is indispensable for the validity of the decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child or that such parent is "insane or hopelessly intemperate." The court may acquire jurisdiction over the case even, without the written consent of the parents or one of the parents provided that the petition for adoption alleges facts sufficient to warrant exemption from compliance therewith.

In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption. Petitioner's consent, as the

natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors for adoption by the natural father:

i. children's mother has given her express consent to this adoption, as shown by Affidavit of Consent

ii. written consent of Keith Cang, now 14 years of age appears on page 2 of this petition;

iii. However, the father of the children, Herbert Cang, had already left his wife and children and had already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County of Washoe, State of Nevada, U.S.A.which was filed at the instance of Mr. Cang, not long after he abandoned his family to live in the United States as an illegal immigrant.

Opposition to adoption primarily because consent of the parent was not sought, the matter of whether the parent had abandoned his child becomes a proper issue for determination

The issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon, failure of the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be considered on its merits.

HELD Both the lower court and the CA failed to appreciate facts and circumstances that should have elicited a different conclusion on the issue of whether petitioner has so abandoned his children, thereby making his consent to the adoption unnecessary. The courts below attached a high premium to the prospective adopters' financial status but totally brushed aside the possible repercussion of the adoption on the emotional and psychological well-being of the children.

In its ordinary sense, the word "abandon'' means to forsake entirely, to forsake or renounce utterly. In reference to abandonment of a child by his parent, the act of abandonment imports "any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." It means "neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children."

In the instant case, records disclose that petitioner's conduct did not manifest a settled purpose to forego all parental duties and relinquish all parental claims over his children as to, constitute abandonment. Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment.

i. While admittedly, petitioner was physically absent as he was then in the UnUS, he was not remiss in his natural and legal obligations of love, care and support for his children.

ii. He maintained regular communication with his wife and children through letters and telephone.

iii. He used to send packages by mail and catered to their whims.

iv. Petitioner's testimony on the matter is supported by documentary evidence consisting of the handwritten letters to him of both his wife and children

v. petitioner also presented certifications of banks in the U.S.A. showing that even prior to the filing of the petition for adoption, he had deposited amounts for the benefit of his children - copies of checks sent by petitioner to the children from 1985 to 1989.

Indeed, it would be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his children. There should be a holistic approach to the matter, taking into account the physical, emotional, psychological, mental, social and spiritual needs of the child. The conclusion of the courts below that petitioner abandoned his family needs more evidentiary support other than his inability to provide them the material comfort that his admittedly affluent in-laws could provide. There should be proof that he had so emotionally abandoned them that his children

would not miss his guidance and counsel if they were given to adopting parents. The letters he received from his children prove that petitioner maintained the more important emotional tie between him and his children. The children needed him not only because he could cater to their whims but also because he was a person they could share with their daily activities, problems and triumphs.Parental authority cannot be entrusted to a person simply because he could give the child a larger measure of material comfort than his natural parent. s

It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means.

We should not take away from a mother the opportunity of bringing up her own child even at the cost of extreme sacrifice due to poverty and lack of means; so that afterwards, she may be able to look back with pride and a sense of satisfaction at her sacrifices and her efforts, however humble, to make her dreams of her little boy come true.

We should not forget that the relationship between a foster mother and a child is not natural but artificial. If the child turns out to be a failure or forgetful of what its foster parents had done for him, said parents might yet count and appraise (sic) all that they have done and spent for him and with regret consider all of it as a dead loss, and even rue the day they committed the blunder of taking the child into their hearts and their home. Not so with a real natural mother who never counts the cost and her sacrifices, ever treasuring memories of her associations with her child, however unpleasant and disappointing. Flesh and blood count. . . . . Celis v. Cafuir

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority, notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award was arrived at by the lower court on the basis of the agreement of the spouses.

Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead lives independent of their parents. This is not to state that this case has been rendered moot and academic, for their welfare and best interests regarding their adoption, must be determined as of the time that the petition for adoption was filed. Said petition must be denied as it was filed without the required consent of their father who, by law and under the facts of the case at bar, has not abandoned them.

G.R. No. 135216 August 19, 1999TOMASA VDA. DE JACOB,

as Special Administratrix of the Intestate Estate of Deceased Alfredo E. Jacob

vs.CA, PEDRO PILAPIL, RD-Province of Camarines Sur,

and JUAN F. TRIVINO as publisher of "Balalong,"

Nature: Petition for Review under Rule 45 ROC assailing the Decision of the CA (January 15, 1998) declaring the "reconstructed marriage contract" spurious and non-existent, and its Resolution dated August 24, 1998, denying petitioner’s Motion for Reconsideration

Petitioner Tomasa claimed to be the surviving spouse of deceased Dr.

Alfredo E. Jacob appointed Special Administratix for the various estates of

the deceased by virtue of a reconstructed Marriage Contract between herself and the deceased.

Respondent Pedro claimed to be the legally-adopted son of Alfredo presented an Order issued by then Presiding Judge Jose

L. Moya, CFI, Camarines Sur, granting the petition for adoption filed by deceased Alfredo in favor of Pedro Pilapil

During the proceeding for the settlement of the estate of the deceased Alfredo

Pedro filed claiming his share of the deceased’s estate as Alfredo's adopted son and as his sole surviving heir.

Pedro questioned the validity of the marriage between appellant Tomasa and his adoptive father Alfredo.

Appellant Tomasa opposed the Motion for Intervention and filed a complaint for injunction with damages questioning appellee's claim as the legal heir of Alfredo.

questioned the authenticity of the signature of Judge Moya

In his deposition, Judge Moya attested that he could no longer remember the facts in judicial proceedings taken about (29) years ago when he was then presiding judge since he was already 79 years old and was suffering from "glaucoma".

The trial court then consulted (2) handwriting experts to test the authenticity and genuineness of Judge Moya's signature.

NBI Document Examiner irregularities and "significant fundamental

differences in handwriting characteristics/habits existing between the questioned and the "standard" signature"

"JOSE L. MOYA" were NOT written by one and the same person

NBI Chief Document Examiner significant similarities of unconscious habitual

pattern within allowable variation of writing characteristics between the standard and the questioned signatures

RULING OF RTC - sustained the findings of Atty. Pagui declaring the signature of Judge Moya in the challenged Order as genuine and authentic

RULING OF THE CA – affirmed in the absence of clear and convincing proof to the

contrary, the presumption applies that Judge Moya in issuing the order acted in the performance of his regular duties

since the signature appearing in the challenged Order was subjected to a rigid examination of two (2) handwriting experts, this negates the possibility of forgery of Judge Moya's signature

Petitioner Petition for Review

ISSUE WON Respondent Pedro is the legally adopted son of deceased Jacob

HELD Respondent’s adoption has not been sufficiently established.

i. Pilapil’s conduct gave no indication that he recognized his own alleged adoption, as shown by the documents that he signed and other acts that he performed thereafter

ii. no proof was presented that Dr. Jacob had treated him as an adopted child

iii. both the Bureau of Records Management47 in Manila and the Office of the Local Civil Registrar of Tigaon, Camarines Sur,48 issued Certifications that there was no record that Pedro Pilapil had been adopted by Dr. Jacob

The burden of proof in establishing adoption is upon the person claiming such relationship. This Respondent Pilapil failed to do.

Moreover, the evidence presented by petitioner shows that the alleged adoption is a sham.

THAT the CA relied on the presumption that the judge had acted in the

regular performance of his duties gave credence to the testimony of respondent’s

handwriting expert, for "the assessment of the credibility of such expert witness rests largely on the discretion of the trial court . . . "

General Rule: factual findings of the trial court are accorded great weight and respect by appellate courts, because it had the opportunity to observe the demeanor of witnesses and to note telltale signs indicating the truth or the falsity of a testimony.

EXCEPTION to the general rule that only questions of law may be reviewed in petitions under Rule 45

different judge heard the testimonies of the two expert witnesses

Authenticity of Judge Moya's signature on the Order of Adoption

trial court relied mainly on respondent’s expert and brushed aside the Deposition of Judge Moya himself

Judge Moya could not recall having ever issued the Order when shown the signature over his name, he positively

declared that it was not his.

The fact that he had glaucoma when his Deposition was taken does not discredit his statements. At the time, he could with medication still read the newspapers; upon the request of the defense counsel, he even read a document shown to him.

There is no reason – and the respondent has not presented any – to disregard the Deposition of Judge Moya.

G.R. No. 117209 February 9, 1996REPUBLIC vs.

HON. JOSE R. HERNANDEZ, in his capacity as Presiding Judge, RTC, Branch 158, Pasig City and SPOUSES VAN MUNSON y

NAVARRO and REGINA MUNSON y ANDRADE

Nature: Appeal by certiorari which challenges the order of RTC-Pasig approving 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

PR Spouses Munson filed a petition to adopt the minor Kevin Earl Bartolome Moran, duly alleging therein

1. jurisdictional facts required by the rules for adoption2. their qualifications as and fitness to be adoptive parents, 3. circumstances under and by reason of which the adoption

of the aforenamed minor was sought.

prayed for the change of the first name of said minor adoptee to Aaron Joseph, the same being the name with which he was baptized in keeping with religious tradition and by which he has been called by his adoptive family, relatives and friends since May 6, 1993 when he arrived at PRs’ residence.

Petitioner opposed the inclusion of the relief for change of name in the same petition for adoption.

arguing that the petitions should be conducted and pursued as two separate proceedings.

RULING OF RTC – in favor of PRs

[At this juncture, it should be noted that no challenge has been raised by petitioner regarding the fitness of herein private respondents to be adopting parents nor the validity of the decree of adoption rendered in their favor.]

1. Order for hearing was published in the Manila Chronicle a newspaper of general circulation

2. Petitioners are financially able3. no criminal nor derogatory record 4. physically fit to be the adoptive parents of the minor child

Kevin 5. Qualified accdg to the Social Case Study Report prepared

by the DSWD through Social Worker

Legal Issues

ISSUE1 WON the lower court erred in granting the prayer for the change of the registered proper or given name of the minor adoptee embodied in the petition for adoption

ISSUE2 WON there was lawful ground for the change of name

Petitioner’s Contention:

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.

b. In order to be entitled to both reliefs, namely, a decree of adoption and an authority to change the giver or proper name of the adoptee, the respective proceedings for each must be instituted separately and the substantive and procedural requirements

Articles 183 to FC in relation to Rule 99 of the ROC for adoption

Articles 364 to 380 of the Civil Code in relation to Rule 103 ROC for change of name

must correspondingly be complied with.

c. Records show that only the laws and rules on adoption have been observed, but not those for a petition for change of name

d. 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

e. insists on strict adherence to the rule regarding change of name in view of the natural interest of the State in maintaining a system of identification of its citizens and in the orderly administration of justice

PRs’ Contention:

a. The filing of the petition for adoption with prayer for change of name was 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

b. 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.

c. conditions for permissive joinder of causes of action, i.e., jurisdiction of the court, proper venue and joinder of parties, have been met.

d. invoke a liberal construction and application of the Rules, the welfare and interest of the adoptee being the primordial concern that should be addressed in the instant proceeding

Rationale of the RTC

i. change of name of the child from Kevin Earl Bartolome to Aaron Joseph should not be treated strictly, it appearing

that no rights have been prejudiced by said change of name.

ii. strict and meticulous observation of the requisites set forth by Rule 103 ROC is indubitably for the purpose of preventing fraud, ensuring that neither State nor any third person should be prejudiced by the grant of the petition for change of name under said rule, to a petitioner of discernment.

iii. In fact, to obviate any possible doubts on the intent of petitioners, the prayer for change of name was caused to be published together with the petition for adoption.

ISSUE1 WON the lower court erred in granting the prayer for the change of the registered proper or given name of the minor adoptee embodied in the petition for adoption

HELD1 Lower court erred - no petition sufficient in form and substance for change of name as would rightfully deserve an order therefor. It would be procedurally erroneous to employ a petition for adoption to effect a change of name in the absence of the corresponding petition for the latter relief at law.

Art. 189 FC 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, given/proper/first 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 an automatic or incidental license to change the adoptee's registered Christian or first name.

The name of the adoptee as recorded in the civil register should be used in the adoption proceedings in order to vest the court with jurisdiction to hear and determine the same, and shall continue to be so used until the court orders otherwise.

Changing the given or proper name of a person as recorded in the civil register is a substantial change in one's official or legal name and cannot be authorized without a judicial order.

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 ROC

wherein the sufficiency of the reasons or grounds therefor can be threshed out and accordingly determined.

Procedure under Rule 103

1. petition for change of name shall be filed in the RTC of the province where the person desiring to change his name resides.

signed and verified by the person desiring his name to be changed or by some other person in his behalf

state that the petitioner has been a bona fide resident of the province where the petition is filed for at least 3 years prior to such filing

cause for which the change of name is sought name asked for.

2. An order for the date and place of hearing shall be made and published, with the Solicitor General or the proper provincial or city prosecutor appearing for the Government at such hearing.

3. It is only upon satisfactory proof of the veracity of the allegations in the petition and the reasonableness of the causes for the change of name that the court may adjudge that the name be changed as prayed for in the petition

4. furnish a copy of said judgment to the civil registrar of the municipality concerned who shall forthwith enter the same in the civil register.

A petition for change of name being a proceeding in rem, strict compliance with all the requirements therefor is indispensable in order to vest the court with jurisdiction for its adjudication.

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.

Allowance of the petition for change of name cannot be justified under the rule allowing permissive joinder of COA

JOINDER OF CAUSES OF ACTION - uniting of two or more demands or rights of action in one action;

union of two or more civil causes of action, each of which could be made the basis of a separate suit, in the same complaint, declaration or petition.

A plaintiff may under certain circumstances join several distinct demands, controversies or rights of action in one declaration, complaint or petition.

The joinder of separate causes of action, where allowable, is PERMISSIVE and not mandatory in the absence of a contrary statutory provision, even though the causes of action arose from the same factual setting and might under applicable joinder rules be joined.

Requisites (Sec. 5, Rule 2):

(a) it will not violate the rules on jurisdiction, venue and joinder of parties; and (b) the causes of action arise out of the same contract, transaction or relation between the parties, or are for demands for money or are of the same nature and character.

Joinder may be allowed only if the actions show a commonality of relationship and conform to the rules on jurisdiction, venue and joinder of parties

WHILE it is true that there is no express prohibition against the joinder of a petition for adoption and for change of name

there is no relation between these two petitions, nor are they of the same nature or character, much less do they present any common question of

fact or law,

which conjointly would warrant their joinder.

these petitions do not rightly meet the underlying test of conceptual unity demanded to sanction their joinder under our Rules.

A petition for adoption and a petition for change of name are two special proceedings which, in substance and purpose, are different from each other.

Each action is individually governed by particular sets of laws and rules.

involve disparate issues. petition for adoption petition for change of name

court is called upon to evaluate the proposed adopter's fitness and qualifications to bring up and educate the adoptee properly

no family relations are created or affected for what is looked into is the propriety and reasonableness of the grounds supporting the proposed change of name

Joinder may be allowed only if the actions show a commonality of relationship and conform to the rules on jurisdiction, venue and joinder of parties (Section 5, Rule 2, Rules of Court).

While what is cogent in an adoption proceeding is the proposed adopter's fitness and qualifications to adopt, a petition for change of first name may only prosper upon proof of reasonable and compelling grounds supporting the change requested.

Fitness to adopt is not determinative of the sufficiency of reasons justifying a change of name.

change of first name cannot be justified in view of a finding that the proposed adopter was found fit to adopt.

ISSUE2 WON there was lawful ground for the change of name

HELD2 None - the only justification advanced for the change of name was the fact of the adoptee's baptism under the name Aaron Joseph and by which he has been known since he came to live with PRs

The given name of the minor was Kevin Earl, a name given for no other purpose than for identification purposes in a birth certificate by a woman who had all intentions of giving him away. The naming of the minor as Aaron Joseph by petitioners upon the grant of their petition for adoption is symbolic of naming the minor at birth.

NAME - a word or combination of words by which he is known and identified, and distinguished from others, for the convenience of the world at large in addressing him, or in speaking of or dealing with him.

It is both of personal as well as public interest that every person must have a name.

GIVEN OR PROPER NAME - given to the individual at birth or at baptism, to distinguish him from other individuals.

may be freely selected by the parents for the child

SURNAME OR FAMILY NAME - identifies the family to which he belongs and is continued from parent to child.

fixed by law

The only grounds offered to justify the change of name prayed for was that the adopted child had been baptized as Aaron Joseph in keeping with the religious faith of private respondents and that it was the name by which he had been called and known by his family, relatives and friends from, the time he came to live with private respondents

The official name of a person is that given him in the civil register

once the name of a person is officially entered in the civil register, Article 376 of the same Code seals that identity with its precise mandate: no person can change his name or surname without judicial authority.

premised on the interest of the State in names borne by individuals and entities for purposes of identification.

Change of name is a privilege, not a matter of right, addressed to the sound discretion of the court which has the duty to consider carefully the consequences of a change of name and to deny the same unless weighty reasons are shown.

Grounds sufficient to warrant a change of name:

(a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence of legitimation or adoption; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage; (e) when the change is based on a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.

Baptism is not a condition sine qua non to a change of name.

A name given to a person in the church records or elsewhere or by which be 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.

Accdg to SolGen:

Respondent Judge failed to distinguish between a situation wherein a child is being named for the first time by his natural parent, as against one wherein, a child is previously conferred a first name by his natural parent, and such name is subsequently sought to be disregarded and changed by the adoptive parents

PRs, in their capacities as adopters, cannot claim a right to name the minor adoptee after such right to name the child had already been exercised by the natural parent.

Renaming the adoptee cannot be claimed as a right. It is merely a privilege necessitating judicial consent upon compelling grounds.

the change of the surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name.

Decision does not entirely foreclose and is without prejudice to, private respondents' privilege to legally change the proper or given name of their adopted child, provided that the same is exercised, this time, via a proper petition for change of name.

grant thereof is conditioned on strict compliance with all jurisdictional requirements and satisfactory proof of the compelling reasons advanced therefor.

G.R. No. 103695 March 15, 1996REPUBLIC vs. CA, JAIME B. CARANTO,

and ZENAIDA P. CARANTO

Nature: Petition for review on certiorari of the decision of the CA affirming the RTC ruling granting private respondents' petition for the adoption of Midael C. Mazon with prayer for the correction of the minor's first name "Midael" to "Michael."

PR Spouses Caranto filed for the adoption (September 21 1988) of Midael C. Mazon (then 15), who had been living with PR Jaime since he was 7 years old.

When PRs got married minor Midael stayed with them under their care and custody.

PRAYER:

a) Declaring the child Michael C. Mazon the child of petitioners for all intents and purposes;

b.) Dissolving the authority vested in the natural parents of the child; and

c) That the surname of the child be legally changed to that of the petitioners and that the first name which was mistakenly registered as "MIDAEL" be corrected to "MICHAEL."

RTC set hearing, giving notice by publication in a newspaper of general circulation in the Province of Cavite and by service of the order upon the DSWD and the Office of the Sol Gen.

SolGen opposed insofar as it sought the correction of the name of the child from "Midael" to "Michael."

that although the correction sought concerned only a clerical and innocuous error, it could not be granted because the petition was basically for adoption, not the correction of an entry in the civil registry under Rule 108 ROC

RTC RULING – granted the petition for adoption and dismissed the opposition of SolGen on the ground that Rule 108 ROC (Cancellation or Correction of Entries in the Civil Registry) applies only to the correction of entries concerning the civil status of persons.

Sec. 1 - any person interested in an act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto."

that the correction of names in the civil registry is not one of the matters enumerated in Sec. 2 as "entries subject to cancellation or correction."

error could be corrected in the same proceeding for adoption to prevent multiplicity of actions and inconvenience to the petitioners.

SolGen appealed to CA :

i. correction of names cannot be effected in the same proceeding for adoption.

ii. RTC did not acquire jurisdiction over the case for adoption because the notice by publication did not state the true name of the minor child, the name given was "Michael," instead of "Midael," which is the name of the minor given in his Certificate of Live Birth.

"substantial defect in the petition and the published order of hearing."

RULING OF THE CA – Affirmed RTC - to require the petitioners to file a separate petition for correction of name would entail "additional time and expenses for them as well as for the Government and the Courts."

ISSUE WON the RTC acquired jurisdiction over the PR’s petition for adoption

HELD NO. While there was notice given by publication in this case, it was notice of the petition for adoption made in compliance with Rule 99, §4. In that notice only the prayer for adoption of the minor was stated. Nothing was mentioned that in addition the correction of his name in the civil registry was also being sought. The local civil registrar was thus deprived of notice and, consequently, of the opportunity to be heard.

The necessary consequence of the failure to implead the civil registrar as an indispensable party and to give notice by publication of the petition for correction of entry was to render the proceeding of the trial court, so far as the correction of entry was concerned, null and void for lack of jurisdiction both as to party and as to the subject matter.

Present case involves an obvious clerical error in the name of the child sought to be adopted.

i. correction involves merely the substitution of the letters "ch" for the letter "d," so that what appears as "Midael" as given name would read "Michael."

ii. 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)."

iii. The purpose of the publication requirement is to give notice so that those who have any objection to the adoption can make their objection known. That purpose has been served by publication of notice in this case.

Lower court erred in granting PR’s prayer for the correction of the name of the child in the civil registry.

Contrary to what the trial court thought, Rule 108 of the Rules of Court applies to this case and because its provision was not complied with, the decision of the trial court, insofar as it ordered the correction of the name of the minor, is void and without force or effect.

i. The trial court was clearly in error in holding Rule 108 to be applicable only to the correction of errors concerning the civil status of persons.

ii. Sec. 2 Rule 108. Entries subject to cancellation or correction. — Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separation; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation (n) voluntary emancipation of a minor; and (o) changes of name.

iii. This case falls under letter "(o)," referring to "changes of name."

Art. 412 of the Civil Code — to implement which Rule 108 was inserted in the ROC in 1964 covers "those harmless and innocuous changes, such as correction of a name that is clearly misspelled."

iv. Sec. 3 Rule 108 Parties. — When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

The local civil registrar is thus required to be made a party to the proceeding. He is an indispensable party, without whom no final determination of the case can be had.

The absence of an indispensable party in a case renders ineffectual all the proceedings subsequent to the filing of the complaint including the judgment.

G.R. No. 148311. March 31, 2005IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY

ASTORGA GARCIA: HONORATO B. CATINDIG

May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case.

The facts are undisputed.

Petitioner Honorato filed a petition (August 31, 2000) to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia.

1. that Stephanie was born on June 26, 1994; 2. that her mother is Gemma Astorga Garcia; 3. that Stephanie has been using her mother’s middle name

and surname; 4. that he is now a widower and qualified to be her adopting

parent.

PRAYER: that Stephanie’s middle name Astorga be changed to "Garcia," her mother’s surname, and that her surname "Garcia" be changed to "Catindig," his surname.

RTC RULING – Granted the petition - STEPHANIE NATHY CATINDIG

Petitioner filed a motion for clarification and/or reconsideration praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name.

CA RULING – Denied motion holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name.

ISSUE May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name?

Petitioner’s contention:

trial court erred in depriving Stephanie of a middle name as a consequence of adoption because:

(1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name "Garcia" (her mother’s surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by either the Catindig or Garcia families.

SolGen agreed with petitioner :

First, it is necessary to preserve and maintain Stephanie’s filiation with her natural mother because under Article 189 FC, she remains to be an intestate heir of the latter.

Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows.

Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother.

the Family Law Committees agreed that "the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother."

HELD Affirmative. Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mother’s surname, we find no reason why she should not be allowed to do so.

Use Of Surname Is Fixed By Law –

For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. .The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name.

GIVEN OR PROPER NAME - given to the individual at birth or at baptism, to distinguish him from other individuals.

may be freely selected by the parents for the child

SURNAME OR FAMILY NAME - identifies the family to which he belongs and is continued from parent to child.

fixed by law.

Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow

Law Is Silent As To The Use Of Middle Name –

The middle name or the mother’s surname is only considered in Article 375(1), in case there is identity of names and surnames

between ascendants and descendants, in which case, the middle name or the mother’s surname shall be added.

Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189 FC, enumerating the legal effects of adoption, is likewise silent on the matter, thus:

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

x x x"

However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the child’s mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus

In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters." Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption.

The Underlying Intent of Adoption Is In Favor of the Adopted Child –

Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.

It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.

The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.

principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child. RA No. 8552, "Domestic Adoption Act of 1998," secures these rights and privileges for the adopted.

One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.

Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above.

In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father.

Stephanie’s continued use of her mother’s surname (Garcia) as her middle name will maintain her maternal lineage.

It is to be noted that Article 189(3) FC and Section 1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.

Stephanie is closely attached to both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy

family. Hence, to allow Stephanie to use her mother’s surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy.

Liberal Construction of Adoption Statutes In Favor Of Adoption –

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.

Art. 10 of the New Civil Code provides that:

"In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail."

G.R. No. 139789. May 12, 2000ERLINDA K. ILUSORIO vs. ERLINDA I. BILDNER and SYLVIA K.

ILUSORIO, JOHN DOE and JANE DOE

G.R. No. 139808. May 12, 2000POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and

SYLVIA ILUSORIO vs. CA and ERLINDA K. ILUSORIO

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

Potenciano Ilusorio 86 years of age possessed of extensive property valued at millions of

pesos. For many years, was Chairman of the Board and

President of Baguio Country Club.

July 11, 1942 – contracted marriage lived together for 30 years

1972 - separated from bed and board for undisclosed reasons

Potenciano lived Urdaneta Condominium, Ayala Ave., Makati City when he

was in Manila and Ilusorio Penthouse, Baguio Country Club when he was in

Baguio City.

Erlinda lived in Antipolo City.

Out of their marriage, the spouses had (6) children: 1. Ramon Ilusorio (age 55); 2. Erlinda Ilusorio Bildner (age 52); 3. Maximo (age 50); 4. Sylvia (age 49); 5. Marietta (age 48); and 6. Shereen (age 39).

December 30, 1997, upon Potenciano’s arrival from the US he stayed with Erlinda for about (5) months in Antipolo

City. The children alleged that during this time, their mother

gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor in New York, U.S.A.

As a consequence, Potenciano’s health deteriorated.

Erlinda filed with the RTC-Antipolo City a petition for guardianship over the person and property of Potenciano due to the latter’s advanced age, frail health, poor eyesight and impaired judgment.

After attending a corporate meeting in Baguio City, Potenciano Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium, Makati.

Erlinda filed with CA a petition for habeas corpus to have the custody of lawyer Potenciano alleged that respondents refused petitioner’s demands to

see and visit her husband and prohibited Potenciano from returning to Antipolo City.

Ruling of the CA –

i. ALLOWED visitation rights to Erlindaii. DENIED the petition for habeas corpus - for lack of

unlawful restraint or detention of the subject of the petition

Thus, Erlinda filed a petition to reverse the CA ruling and its resolution dismissing the

application for habeas corpus to have the custody of her husband, lawyer Potenciano Ilusorio and

enforce consortium as the wife.

ISSUE May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss?

HELD NO. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.

No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.

The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano Ilusorio’s liberty that would justify the issuance of the writ.

he was not prevented from leaving his house or seeing people.

The fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but on the capacity of the individual to discern his actions.

Scope of a Writ of Habeas CorpusA writ of habeas corpus extends to

i. all cases of illegal confinement or detention, or ii. by which the rightful custody of a person is withheld from

the one entitled thereto.

Nature of the writ"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."

When Availablei. where a person continues to be unlawfully denied of one or

more of his constitutional freedoms, ii. where there is denial of due process, iii. where the restraints are not merely involuntary but are

unnecessary, and iv. where a deprivation of freedom originally valid has later

become arbitrary.

It is devised as a speedy and effectual remedy to relieve persons from unlawful restraint, as the best and only sufficient defense of personal freedom.

Essential Object And Purpose to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.

HABEAS CORPUS & AMPARO

When To Grant the Petition restraint of liberty must be an illegal and involuntary

deprivation of freedom of action. The illegal restraint of liberty must be actual and effective,

not merely nominal or moral.

What is a Sound Mind possessed with the capacity to make choices.

Re: Visitation Rights.

With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of visitation rights against his free choice.

Otherwise, we will deprive him of his right to privacy.

CA exceeded its authority when it awarded visitation rights in a petition for habeas corpus

where Erlinda never even prayed for such right. When the court ordered the grant of visitation rights, it also

emphasized that the same shall be enforced under penalty of contempt in case of violation or refusal to comply.

G.R. No. 148468. January 28, 2003ATTY. EDWARD SERAPIO vs. SANDIGANBAYAN (THIRD

DIVISION), PEOPLE, and PNP DIRECTOR-GENERAL LEANDRO MENDOZA

[G.R. No. 148769. January 28, 2003]EDWARD S. SERAPIO vs. SANDIGANBAYAN and PEOPLE

[G.R. No. 149116. January 28, 2003]EDWARD S. SERAPIO vs. SANDIGANBAYAN (THIRD DIVISION)

and PEOPLE

Nature: 2 Petitions for Certiorari filed by Petitioner Serapio assailing the resolutions of Sandiganbayan denying his petition for bail, Motion for reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Estrada, J “Jinggoy” and several others.

Petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation,

a non-stock, non-profit foundation established in February 2000

for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and

support to research and advance studies of young Muslim educators and scientists.

Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a P200M donation from Ilocos Sur Governor Luis “Chavit” Singson through the latter’s assistant Mrs. Yolanda Ricaforte.

turned over the said amount to the Foundation’s treasurer who later deposited it in the Foundation’s account with the Equitable PCI Bank.

Public accusation of Singson against Pres. Estrada and others for engaging in several illegal activities (including jueteng)

triggered the filing with the Office of the Ombudsman of several criminal complaints against Pres. Estrada, Jinggoy and petitioner, together with other persons.

Ombudsman conducted a preliminary investigation of the complaints

issued a joint resolution recommending that they be charged with the criminal offense of plunder.

Ombudsman filed with the Sandiganbayan several Informations against former President Estrada and petitioner with plunder

No bail was recommended for the provisional release of all the accused, including petitioner.

Before the Ombudsman – filed Urgent Omnibus Motion to To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings – DENIED

Before the Sandiganbayan - issued a Resolution finding probable cause to justify the issuance of warrants of arrest for the accused - VOLUNTARILY SURRENDERED

been detained at Camp Crame

SB set arraignment – petitioner filed Urget Petition for Bail – due to pending incidents yet to be resolved, said petition was reset

However, even before the SB could resolve the pending motions of petitioner and the prosecution,

petitioner filed with SC - Petition for Habeas Corpus and Certiorari praying that the Court declare void the questioned orders,

resolutions and actions of the SB on his claim that he was thereby effectively denied of his right to due

process prayed for the issuance of a writ of habeas corpus that he be granted provisional liberty on bail after due

proceedings

ISSUE Propriety of the issuance of a writ of habeas corpus in favor of petitioner

Petitioner’s contention:i. State, through the prosecution’s refusal to present evidence

and by the Sandiganbayan’s refusal to grant a bail hearing has failed to discharge its burden of proving that as

against him, evidence of guilt for the capital offense of plunder is strong

ii. prosecution launched “a seemingly endless barrage of obstructive and dilatory moves” to prevent the conduct of bail hearings

iii. prosecution moved for petitioner’s arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a

bail hearing; manifested that it would present its evidence as if it is the

presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused

iv. petitioner’s motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies

v. Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law

vi. issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation

of petitioner’s right to bailvii. the fact that he was arrested and is detained pursuant to valid

process does not by itself negate the efficacy of the remedy of habeas corpus citing Moncupa vs. Enrile - where the Court held that

habeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary

Prosecution’s contention:

i. habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court, the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities

General Rule: writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so.

Exception: habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender,

for this writ of liberty is recognized as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” due to “its ability to cut through barriers of form and procedural mazes.

1. issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid and

2. even though the persons praying for its issuance were not completely deprived of their liberty.

HELD Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner.

General Rule on Habeas Corpus AppliesThe general rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused.

Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued.

Ruling in Moncupa vs. Enrile Does Not Apply because the hearing on petitioner’s application for bail has

yet to commence. the delay in the hearing of petitioner’s petition for bail

cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed.

A Petition For Habeas Corpus Is Not The Appropriate Remedy For Asserting One’s Right To Bail It cannot be availed of where accused is entitled to

bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail, or has not even exercised said discretion.

Proper Recourse - file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed.

The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan’s resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail.

Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail.

G.R. No. 147780 May 10, 2001PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR

LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA----------------------------------------G.R. No. 147781 May 10, 2001MIRIAM DEFENSOR-SANTIAGO vs. ANGELO REYES, Secretary of National Defense, ET AL----------------------------------------G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA----------------------------------------G.R. No. 147810 May 10, 2001THE LABAN NG DEMOKRATIKONG PILIPINO vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA

May 1, 2001 – In view of the attempt to break into Malacañang, PGMA issued Proclamation No. 38 declaring a state of rebellion in the NCR and likewise issued General Order No. 1 directing the AFP and the PNP to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected.

Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, 4 related petitions were filed before the SC –

(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of TRO and/or writ of PI) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao;

(2) G. R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a TRO filed by Miriam Defensor-Santiago;

(3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of PI and/or restraining order filed by Ronaldo A. Lumbao; and

(4) G. R. No. 147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino.

ASSAILING the declaration of a state of rebellion by PGMA and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law.

May 6, 2001 – PGMA ordered the lifting of the declaration of a "state of rebellion" in Metro Manila.

Accordingly, the instant petitions have been rendered moot and academic.

PETITIONS WERE DISMISSED - However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of Malacañang.

Petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant

do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law.

Such an individual may ask for a preliminary investigation under Rule 112 ROC where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to

determine WON he should remain under custody and correspondingly be charged in court.

Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 RPC, otherwise the

arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the

person arrested can charge the arresting officer with arbitrary detention.

All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 NCC.

Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, ROC).

G.R. No. 147781 – Petition for Mandamus by Defensor-Santiago

i. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete.

ii. Mandamus will not issue unless the right to relief is clear at the time of the award

Up to the present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant.

In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant.

A. SEPARATE OPINION - VITUG, J.:

CONCURRED insofar as the resolution enjoins any continued warrantless arrests for acts related to, or connected with, the May 1st incident but respectfully DISSENT from the order of dismissal of the petitions for being said to be moot and academic. The petitions have raised important constitutional issues that, in my view, must likewise be fully addressed.

B. DISSENTING OPINION - KAPUNAN, J.:

The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the Constitution which reads:

xxxx

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 or the extension thereof, and

must promulgate its decision thereon within 30 days from its filing.

State Of Martial Law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative

assemblies, nor authorize the conferment of jurisdiction on military courts

and agencies over civilians where civil courts are able to function,

nor automatically suspend the privilege of the writ.

Application of the Suspension of the Privilege of the WritThe suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, otherwise he shall be released.

Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion.

In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also

(a) suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under martial law.

However, in the exercise of this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the President to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or invasion).

The term "state of rebellion" has no legal significance.

It is vague and amorphous and does not give the President more power than what the Constitution says, i. e, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.

As Justice Mendoza observed during the hearing of this case, such a declaration is "legal surplusage."

But whatever the term means, it cannot diminish or violate constitutionally-protected rights, such as the right to due process, the rights to free speech and peaceful assembly to petition the government for redress of grievances, and the right against unreasonable searches and seizures, among others.

In Integrated Bar of the Philippines vs. Zamora, et al., the Court held that:

Distinction between the calling out power and the power to suspend the privilege of the writ of habeas corpus and to declare martial law

places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus,

otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius.

x x x

Reason for the difference in the treatment of the powers

highlights the intent to grant the President the widest leeway and broadest discretion in using the "calling out" power because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and

suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation by Congress and, in appropriate cases, review by this Court.

Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her direction to make unwarranted arrests. The existence of "lawless violence, invasion or rebellion" only authorizes the President to call out the "armed forces to prevent or suppress lawless violence, invasion or rebellion."

Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the President to order the arrest of any person.

ONLY significant consequence of the suspension of the writ of habeas corpus

to divest the courts of the power to issue the writ whereby the detention of the person is put in issue.

It does not by itself authorize the President to order the arrest of a person.

Qualifications for the Application of the Suspension of the Privilege of the Writ – Sec. 18, Art. VII Consti:

i. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

ii. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

In the instant case, the President did not suspend the writ of habeas corpus. Nor did she declare martial law.

A declaration of a "state of rebellion," at most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did.

Such declaration does not justify any deviation from the Constitutional proscription against unreasonable searches and seizures.

As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides:

SEC. 5. Arrest without warrant; when lawful. – A police officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

xxx

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

G.R. No. 170924 July 4, 2007In the matter of the Petition for Habeas Corpus of CEZARI

GONZALES and JULIUS MESA ROBERTO RAFAEL PULIDO vs. Gen. EFREN ABU, as Chief of Staff of the AFP and all persons

acting in his stead and under his authority, and GEN. ERNESTO DE LEON, in his capacity as the Flag Officer in Command of the Philippine Navy, and all persons acting in his stead and under

his authority

Nature: Petition for Review under Rule 45 assailing the Decision of the CA dismissing the Petition for Habeas Corpus filed by petitioner Pulido in behalf of Cezari Gonzales and Julius Mesa, and imposing on petitioner the penalty of censure, and its Resolution dated 6 January 2006 denying his MR

1AM 27 July 2003 – 321 junior officers and enlisted personnel of AFP entered and took over the premises of the Oakwood Premiere Luxury Apartments

disarmed the security guards of said establishment and planted explosives in its immediate surroundings

Purpose: to air their grievances against the administration of PGMA

declared their withdrawal of support from the Commander-in-Chief of the AFP – President Arroyo – and demanded her resignation and that of the members of her cabinet and top officers of both the AFP and PNP

1PM SAME DAY – PGMA issued Proclamation No. 427 declaring the country to be under a "state of rebellion."

Consequently, she issued General Order No. 4 directing the AFP and the PNP to carry out all reasonable

measures, giving due regard to constitutional rights, to suppress and quell the "rebellion."

Negotiations - agreed to return to barracks, thus ending the occupation of Oakwood.

Among those involved in the occupation of Oakwood were Cezari Gonzales and Julius Mesa, both enlisted personnel of the Philippine Navy. It is in their behalf that the Petition for Habeas Corpus was filed before the CA.

On the strength of an order issued by AFP Chief of Staff Abaya to all Major Service Commanders and to the Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP)

Gonzales and Mesa were taken into custody by their Service Commander.

Gonzales and Mesa were not charged before a court martial with violation of the Articles of War.

They were, however, among the soldiers charged before RTC Makati City, with the crime of Coup D’etat

Commitment Order was issued by the RTC committing custody of the persons of Gonzales and Mesa to the Commanding Officer of Fort San Felipe Naval Base, Cavite City.

discharged from military service.

Thereafter, ordered the transfer of Gonzales and Mesa from the Naval Base Cavite to the Philippine Marine Brigade Headquarters, Philippine Marine, Fort Bonifacio under the custody of the Commander of the Marine Brigade

After posting bail by virtue of an RTC resolution admitting petitions for bail - RTC issued Order directing the Commanding Officer of Philippine Marine Corps, Fort Bonifacio to release Gonzales and Mesa from his custody

Despite said orders and their service to the marines, Gonzales and Mesa were not released.

With the denial of the Motion for Partial Reconsideration of the order granting bail, the People filed with the CA a special civil action for certiorari under Rule 65 with urgent prayer for TRO and/or Writ of Preliminary Injunction,

asking for the nullification and setting aside of the orders Judge Oscar B. Pimentel for having been issued without jurisdiction and/or grave abuse of discretion amounting to lack or excess of jurisdiction.

The CA (Seventh Division) did not issue a TRO and/or preliminary injunction.

Since Gonzales and Mesa continued to be in detention, a Petition for Habeas Corpus was filed by petitioner Pulido on their behalf on 22 July 2005.

that since Gonzales and Mesa are no longer subject to Military Law as they had been discharged from the service on 8 December 2003, and

since they are not charged before a court martial,

the military authorities have no jurisdiction to detain them, and

there is no legal ground to detain them further because a court order for their release had already been issued.

"The continued detention of the enlisted personnel constitutes violation of the lawful orders of the civilian court."

Ruling of the CA - issued a Writ of Habeas Corpus directing respondents

i. Gen. Efren Abu, Chief of Staff AFP, and all persons acting in his stead and under his authority, and

ii. Gen. Ernesto de Leon, Flag Officer in Command of the Philippine Navy, and all persons acting in his stead and under his authority,

to produce the bodies of Gonzales and Mesa before the Court and

to appear and show the cause and validity of their detention.

Return of the Writ of Habeas Corpus - Respondents prayed that the Petition for Habeas Corpus be dismissed primarily on two grounds:

(1) the continued detention of Gonzales and Mesa is justified because of the pendency of the Petition for Certiorari questioning the order

(2) petitioner is guilty of forum shopping because of his failure to state in the petition that the order granting bail has been elevated to the CA and pending before its 7th Division.

CA Dismissed the Petition that questioned the propriety of the granting of bail to Gonzales, Mesa, and 25 of their co-accused.

CA Dismissed the Petition for HC for violation of Section 5, Rule 7 ROC

The present petition and its accompanying certification likewise show that the petitioner never mentioned the pendency before the 7th of the CA of the certiorari case, SP 88440, for the annulment of the lower court’s order granting the soldiers-accused’s petition for bail, when this same lower court order is cited as basis for the immediate release of Gonzales and Mesa in the present petition.

Neither did the petitioner comply with his undertaking under his certification to inform the CA within (5) days of the pendency of any similar action or proceeding filed or is pending in the SC, the CA, or any other tribunal or agency, as in fact the certiorari case was already pending with this Court when the present petition was filed.

The certiorari case was only brought to CA’s attention after the respondents filed their Return of the Writ.

He deliberately omitted in his narration the fact that the People moved to reconsider this order (grant and posting of bail; release orders).

Thus, he gave the impression that the order granting bail immediately became enforceable and that Gonzales’ and Mesa’s continued detention is illegal because their constitutional rights to bail, which have received judicial imprimatur, were continuously being violated by the respondents.

The petitioner next omitted the fact that after the denial of its motion for reconsideration of the order granting bail, the People filed the certiorari case before this Court, seeking to annul the lower court’s order.

Filing of a petition for HC while the order granting bail is being questioned on a petition for certiorari raises issues beyond the immediate execution of the lower court’s bail and release orders.

i. They raise questions on the propriety of filing the HC petition to seek the release of persons under detention, at the same time that a petition regarding their continued detention and release are pending.

In short, the petitioner conveniently omitted in his narration of facts the material factual antecedents detrimental to his cause; he chose to narrate only the factual antecedents favorable to his cause.

That the present petition has direct and intimate links with the certiorari case is beyond doubt as they involve two sides of the same coin. The certiorari case filed by the People seeks to prevent the release of Gonzales and Mesa by annulling the lower court’s grant of bail. The present petition, on the other hand, was filed in behalf of Gonzales and Mesa to secure their immediate release because the order granting bail is already executory. In effect, the

Can the petitioner seek to implement through a petition for HC the provisional release from detention that the lower court has ordered when the validity of the grant of bail and the release under bail are live questions before another Division of this Court?

Court of Appeals – NEGATIVE

the reason why the rule against forum shopping has been put in place.

The remedies sought being two sides of the same coin (i.e., the release of Gonzales and Mesa), they cannot be secured through separately-filed cases where issues of jurisdiction may arise and whose rulings may conflict with one another.

there is no basis for a release on habeas corpus if this same Court will rule in the certiorari case that the grant of bail is improper

the matter before the CA is already before another co-equal body whose ruling will be finally determinative of the issue of Gonzales’ and Mesa’s release.

issues of detention and immediate release that are now before the two Divisions of CA are likewise properly within the jurisdiction of the lower court who has original jurisdiction over the criminal case and who has issued the order granting bail in the exercise of this jurisdiction.

Thus, question relating to the immediate release of Gonzales and Mesa pursuant to the lower court’s order pending the determination of the certiorari issues should be brought before the lower court as the tribunal that has ordered the release, or before the 7th Division of this Court in the exercise of its supervisory powers over the lower court.

With forum-shoppingThe inter-relationships among the criminal case below, the certiorari case and the present petition, as well as among the courts where these cases are pending, show beyond doubt that the petitioner committed forum shopping in the strict sense of that term i.e., the attempt by a party, after an adverse opinion in one forum, to seek a favorable opinion in another forum other that through an appeal or certiorari.

ISSUE WON The CA Erred In Dismissing The Petition For Habeas Corpus On The Ground Of Forum Shopping

SolGen - that the habeas corpus petition has been rendered moot and academic by reason of the release of Mesa and Gonzales from detention and, in the absence of an actual case or controversy, it is impractical to consider and resolve issues involving the validity or legality of their detention, including the alleged refusal of the CA to resolve said issues.

HELD DID NOT ERR. 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.

With the release of both Mesa and Gonzales, the Petition for Habeas Corpus has, indeed, been rendered moot. Courts of justice constituted to pass upon substantial rights will

not consider questions where no actual interests are involved. Thus, the well-settled rule that courts will not determine a moot

question. Where the issues have become moot and academic, there

ceases to be any justiciable controversy, thus rendering the resolution of the same of no practical value.

This Court will therefore abstain from expressing its opinion in a case where no legal relief is needed or called for.

Petitioner’s Contention:i. no forum shopping - issues in the petitions for certiorari

and habeas corpus are not similar/identical. ii. As to his non-disclosure of respondents’ filing of the MR

and the Petition for Certiorari, petitioner claims that the

same has no legal relevance to the Petition for Habeas Corpus because at the time he filed said petition, the order granting bail subsisted and has not been reversed or modified; and no TRO or injunction has been issued that would affect the efficacy or validity of the order granting the bail and the order directing the release of Mesa and Gonzales.

Guilty of Forum ShoppingFor filing a Petition for Habeas Corpus despite the pendency of the Petition for Certiorari that questioned the validity of the order granting bail, which order is precisely the very basis of the Petition for Habeas Corpus, petitioner is guilty of forum shopping.

Thus, it has been held that there is forum shopping — (1) when, as a result of an adverse decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in another; OR (2) if, after he has filed a petition before the SC, a party files a motion before the CA, since in such a case, he deliberately splits appeals in the hope that even in one case in which a particular allowable remedy sought for is dismissed, another case (offering a similar remedy) would still be open; OR (3) where a party attempts to obtain a preliminary injunction in another court after failing to obtain the same from the original court.

Stated differently, there must be between the two cases: (a) identity of parties; (b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.

Petitioner should not have filed the Petition for Habeas Corpus because the relief he is seeking therein is the same relief he is asking for in the certiorari case.

Moreover, the main issue in both cases boils down to whether Gonzales and Mesa should be released on bail.

Because of the presence of the elements of litis pendentia -- parties, reliefs and issue are substantially the same/similar in the two cases; and

any decision in the certiorari case will be binding on the habeas corpus case – petitioner is thus guilty of forum shopping.

For his failure to inform the CA of the pendency of the certiorari case, petitioner clearly violated his obligation to disclose within 5 days the pendency of the same or a similar action or claim as mandated in Section 5(c), Rule 728 ROC.

G.R. No. 175864 June 8, 2007ANISAH IMPAL SANGCA vs. THE CITY PROSECUTOR OF CEBU

CITY and THE PRESIDING JUDGE RTC-Cebu

Nature: Petitioner Sangca filed petition praying for the issuance of a writ of habeas corpus and the release of Lovely Impal Adam who was detained in the Cebu City Jail for alleged violation of Section 5, Article 2 of Republic Act (R.A.) No. 9165 - Dangerous Drugs Act of 2002.

PDEA received information that Adam was engaged in illegal drug trafficking activities in Cebu City and neighboring cities and municipalities.

planned an entrapment operation leading to her arrest

The team, including Yap (to receive the shabu), Tuliao (back up) and the informant, proceeded to Fuente Osmeña, Cebu City for the said purpose.

Upon arrival thereat, Yap and the informant proceeded to Pizza Hut while Tuliao stayed behind near the parking area and so with the members of the team closely watching them.

When Yap and the informant entered Pizza Hut, respondent was already there waiting for them.

They immediately approached her and the informant introduced Yap to respondent as his former customer.

Went to the parking area; handed to him (1) packed medium size of heat sealed transparent plastic sachet filled with white crystalline substance believed to be shabu.

Inspected the item, once confirmed, immediately miscalled the members of the team informing them that the transaction was consummated and subsequently held respondent. He then introduced himself as PDEA operative.

Tuliao, who was just at the side of the car, assisted Yap in apprehending the suspect. seized her cellular phone and the Toyota Fortuner which

she used in delivering and transporting illegal drugs. informed her that she is under arrest for violation of

Section 5, Article II, RA 9165 and likewise apprised her of the Miranda Doctrine in the language she knew and understood but she opted to remain silent.

brought her along with the confiscated items to their office for proper disposition.

chemical analysis, yielded positive results for the presence of Methamphetamine Hydrochloride or Shabu, a dangerous drug.

Respondent denies the charge against her. She claims that she is a trader of ready to wear clothing.

Information charging Adam with violation of DDA was filed before RTC Cebu Br. 58.

DOJ Ruling –

On petition for review before the DOJ, Secretary Raul M. Gonzalez found no probable cause to hold Adam liable for the offense charged

i. affidavit of arrest reveals that no payment was ever made by the police officers for the supposed object of the buy-bust operations.

ii. No buy-bust money was ever presented. iii. The certificate of inventory does not show any buy-bust

money.

Suffice it to say that one of the essential elements to be established in the prosecution of the drug "buy-bust" cases, that is, "the delivery of the thing sold and the payment therefore" is wanting

"To sustain a conviction for selling prohibited drugs, the same must be clearly and unmistakably established."

The Justice Secretary directed the City Prosecutor of Cebu City to withdraw the information. PDEA filed MR – Denied

Judge Ingles (Presiding Judge RTC Cebu Br. 58), stated that at the hearing of the motion to withdraw information, it was found that:

NO BUY BUST MONEY - In the affidavit of FO1 Rayford A. Yap and PO2 Dindo M. Tuliao, there is indeed no mention of their preparation of a buy bust money before, during or after their briefing prior to the alleged buy bust operation, nor is there any mention of the price or consideration of the sale. What is merely stated is that they had enough money.

Granted Motion to Withdraw Information and ordered the release of the accused, unless otherwise held for another valid ground.

ISSUE Propriety of the petition for writ of habeas corpus

HELD records show that Adam has been released upon order of the trial judge on January 26, 2007. Therefore, the petition has become moot.