Literal Interpretation DURA LEX SED LEX 1.

Pascual vs Pascual-Bautista FACTS: Don Andres Pascual died intestate (on October 12, 1973) without any issue, legitimate, acknowledged natural, adopted or spurious children. Petitioners Olivia and Hermes both surnamed Pascual are the acknowledged natural children of the late Eligio Pascual, the latter being the full blood brother of the decedent Don Andres Pascual. Petitioners filed their Motion to Reiterate Hereditary Rights and the Memorandum in Support of Motion to reiterate Hereditary Rights. the Regional Trial Court, presided over by Judge Manuel S. Padolina issued an order, the dispositive portion of which resolved to deny this motion reiterating their hereditary rights. Their motion for reconsideration was also denied. Petitioners appealed their case to the Court of Appeals, but like the ruling of CA, their motion for reconsideration was also dismissed. In this petition for review on certiorari, petitioners contend that they do not fall squarely within the purview of Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized (and acknowledged) natural children as their illegitimacy is not due to the subsistence of a prior marriage when such children were under conception. ISSUE: Whether or not Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized natural children from the inheritance of the deceased. HELD: NO. Petition is devoid of merit. RATIO: The issue in the case at bar, had already been laid to rest in Diaz v. IAC, where this Court ruled that under Art.992 of the Civil Code, there exists a barrier or iron curtain in that it prohibits absolutely a succession ab intestado between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. [T]he interpretation of the law desired by the petitioner may be more humane but it is also an elementary rule in statutory construction that when

the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what is says. Eligio Pascual is a legitimate child but petitioners are his illegitimate children and the term illegitimate refers to both natural and spurious. It may be said that the law may be harsh but that is the law (DURA LEX SED LEX).

Departure from Literal Interpretation

1. KING vs HERNAEZ

FACTS

Macario King, a naturalized Filipino citizen Import Meat and Produce" Philippine Cold Stores, Inc

permission from the President of the Philippines(Secretary of Commerce and Industry) DENIED petition for declaratory relief, injunction and mandamus(Court of First Instance of Manila) writ of preliminary

appeal __

(RETAIL TRADE LAW)Section 1, Republic Act No. 1180 No person who is not a citizen of the Philippines, and no association, partnership, or corporation the capital of which is not wholly owned by citizens of the Philippines, shall engage directly or indirectly in the retail business: . ." mphasis supplied) (x) merely to ban them from its ownership and not from its management control or operation.

The nationalization of an economic measure when founded on grounds of public policy cannot be branded as unjust, arbitrary or oppressive or contrary to the Constitution because its aim is merely to further the material progress and welfare of the citizens of a country.

Indeed, in nationalizing employment in retail trade the right of choice of an employer is not impaired but its sphere is merely limited to the citizens to the exclusion of those of other nationalities.

(Anti-Dummy Law )Commonwealth Act No. 108, as amended by Republic Act No. 134) which seeks "to punish acts of evasion of the laws of nationalization of certain rights, franchises or privileges." Read in connection with the Retail Trade Law, the Anti-Dummy Law would punish acts intended to circumvent the provisions of the former law which nationalize the retail business.

falls within the scope of police power, thru which and by which the State insures its existence and security and the supreme welfare of its citizens

WHEREFORE, the decision appealed from is reversed. This preliminary injunction issued by the trial court on December 6, 1958 is hereby lifted. The petition for mandamus is dismissed, with costs against appellees. Statutory Construction

Itchong Case

ISSUE Is the employment of aliens in non-control position in a retail establishment or trade prohibited by the Anti-Dummy Law?

- Headnotes and Epigraphs - Construction to avoid Absurdity

RULING Yes, it is prohibited. Against retail trade law and Anti-dummy law (X)unconsti-right of employer to choose

2. Case of People of the Philippines vs. Yu Hai alias HAYA FACTS: On October 22, 1954, the accused was charged in the Justice of the Peace Court of Caloocan of a violation of Article 195, sub-paragraph 2 of the Revised Penal Code, for having allegedly permitted the game of panchong or paikiu, a game of hazard, and having acted as maintainer thereof. The accused moved to quash the information on the ground that it charged more than one offense and that the criminal action or liability therefore had

already been extinguished; and the Justice of the Peace of Court, in its order of December 24, 1954, sustained the motion to quash on the theory that the offense charged was a light offense which, under Article 90 of the Revised Penal Code, prescribed in two months.

STATUTORY CONSTRUCTION LESSON:

ISSUES OF THE CASE:

Headnotes or epigraphs- When a statute is divided into several subjects or articles, having respective appropriate headings, it must be presumed that the provisions of each article are controlling upon the subject thereof and operate as a general rule for settling such questions therein.

Did the court err in considering the offense committed as a light felony? Construction to avoid absurdity- If the words of the statute are susceptible of more than one meaning, the absurdity of the result of one construction is a strong argument against its adoption, and in favor of such sensible interpretation as will avoid such result.

No, since the light offenses as defined in art 9 of the R.P.C states that an offense which penalty arresto menor or a fine not exceeding 200 pesos." The argument of the SolGen on the matter is erroneous since the basis for his argument of classifying the offense committed as a correctional penalty, is Art 26 of the RPC which classifies fines not offenses.

3. People of the Philippines v. Purisima

Also, if the SolGens interpretation of the law is accepted then it will lead to and absurd situation wherein a light felony as defined by Art 9 will have 2 prescriptive periods, and 1 peso will mean the difference of 9 years and 10 months, and there is no reason for a law-maker to raise the prescriptive period for certain light offenses over other light offenses

FACTS: Twenty-six petitions for review were filed charging the respective Defendant with illegal possession of deadly weapon in violation of Presidential Decree No. 9. An order quashed the information because it did not allege facts which constitute the offense penalized by P.D. No. 9. It failed to state one essential element of the crime, viz.: that the carrying outside of the residence of the accused of a bladed, pointed, or blunt weapon is in furtherance or on the occasion of, connected with or related to subversion, insurrection, or rebellion, organized lawlessness or public disorder. Petitioners argued that a perusal of P.D. No. 9 shows that the prohibited acts need not be related to subversive activities and that they are essentially malum prohibitum penalized for reasons of public policy.

Therefore it is more sensible and to apply Art 9 over Art 26 since we are discussing the prescription of a crime not the penalty. An as this construction is more favorable to the accused, it should be the one to be adopted.

HELD:

THE DECISION IS AFFIRMED WITH COSTS DE OFICIO.

ISSUE:

W/N P.D. No. 9 shows that the prohibited acts need not be related to subversive activities.

HELD: The primary rule in the construction and interpretation of a legislative measure is to search for and determine the intent and spirit of the law. Legislative intent is the controlling factor. Because of the problem of determining what acts fall under P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this can be found among others in the preamble or whereas clauses which enumerate the facts or events which justify the promulgation of the decree and the stiff sanctions stated therein.

2. WON the application of the time-bar under Section 8 Rule 117 be given a retroactive application without reservations, only and solely on the basis of its being favorable to the accused.

The Court is not mandated to apply rules retroactively simply because it is favorable to the accused. The time-bar under the new rule is intended to benefit both the State and the accused. When the rule was approved by the court, it intended that the rule be applied prospectively and not retroactively, for to do so would be tantamount to the denial of the States right to due process. A retroactive application would result in absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs.

PEOPLE vs. Lacson, October 7, 2003 FACTS: Petitioner asserts that retroactive application of penal laws should also cover procedures, and that these should be applied only to the sole benefit of the accused. Petitioner asserts that Sec 8 was meant to reach back in time to provide relief to the accused in line with the constitutional guarantee to the right to speedy trial. PASCUAL GODINES, petitioner, vs. THE HONORABLE COURT OF APPEALS, SPECIAL FOURTH DIVISION and SVAGRO ENTERPRISES, INC.,respondents. Jesus S. Anonat for petitioner. ISSUES: 1. Whether or not the 5 Associate Justices inhibit themselves from deciding in the Motion for Reconsideration given they were only appointed in the SC after his Feb. 19, 2002 oral arguments. Arturo M. Alinio for private respondent. ROMERO, J.: Through this petition for review in certiorari of a decision of the Court of Appeals affirming the decision of the trial court, petitioner Pascual Godines seeks to reverse the adverse decision of the Court a quo that he was liable for infringement of patent and unfair competition. The dispositive portion of the assailed decision is hereby quoted to wit:

The rule should be applied prospectively. The court upheld the petitioners contention that while Sec.8 secures the rights of the accused, it does not and should not preclude the equally important right of the State to public justice. If a procedural rule impairs a vested right, or would work injustice, the said rule may not be given a retroactive application.

WHEREFORE, with the elimination of the award for attorney's fees, the judgment appealed from is hereby AFFIRMED, with costs against appellant. 1 The patent involved in this case is Letters Patent No. UM-2236 issued by the Philippine Patent Office to one Magdalena S. Villaruz on July 15, 1976. It covers a utility model for a hand tractor or power tiller, the main components of which are the following: "(1) a vacuumatic house float; (2) a harrow with adjustable operating handle; (3) a pair of paddy wheels; (4) a protective water covering for the engine main drive; (5) a transmission case; (6) an operating handle; (7) an engine foundation on the top midportion of the vacuumatic housing float to which the main engine drive is detachedly installed; (8) a frontal frame extension above the quarter circularly shaped water covering hold (sic) in place the transmission case; (9) a V-belt connection to the engine main drive with transmission gear through the pulley, and (10) an idler pulley installed on the engine foundation." 2 The patented hand tractor works in the following manner: "the engine drives the transmission gear thru the V-belt, a driven pulley and a transmission shaft. The engine drives the transmission gear by tensioning of the V-belt which is controlled by the idler pulley. The V-belt drives the pulley attached to the transmission gear which in turn drives the shaft where the paddy wheels are attached. The operator handles the hand tractor through a handle which is inclined upwardly and supported by a pair of substanding pipes and reinforced by a U-shaped G.I. pipe at the V-shaped end." 3 The above mentioned patent was acquired by SV-Agro Industries Enterprises, Inc., herein private respondent, from Magdalena Villaruz, its chairman and president, by virtue of a Deed of Assignment executed by the latter in its favor. On October 31, 1979, SV-Agro Industries caused the publication of the patent in Bulletin Today, a newspaper of general circulation. In accordance with the patent, private respondent manufactured and sold the patented power tillers with the patent imprinted on them. In 1979, SVAgro Industries suffered a decline of more than 50% in sales in its Molave, Zamboanga del Sur branch. Upon investigation, it discovered that power tillers similar to those patented by private respondent were being manufactured and sold by petitioner herein. Consequently, private respondent notified Pascual Godines about the existing patent and demanded that the latter stop selling and manufacturing similar power

tillers. Upon petitioner's failure to comply with the demand, SV-Agro Industries filed before the Regional Trial Court a complaint for infringement of patent and unfair competition. After trial, the court held Pascual Godines liable for infringement of patent and unfair competition. The dispositive portion of the decision reads as follows: WHEREFORE, premises considered, JUDGMENT is hereby rendered in favor of the plaintiff SV-Agro Industries Enterprises, Inc., and against defendant Pascual Godines: 1. Declaring the writ of preliminary injunction issued by this Court against defendant as permanent; 2. Ordering defendant Pascual Godines to pay plaintiff the sum of Fifty Thousand Pesos (P50,000.00) as damages to its business reputation and goodwill, plus the further sum of Eighty Thousand Pesos (P80,000.00) for unrealized profits during the period defendant was manufacturing and selling copied or imitation floating power tiller; 3. Ordering the defendant to pay the plaintiff, the further sum of Eight Thousand Pesos (P8,000.00) as reimbursement of attorney's fees and other expenses of litigation; and to pay the costs of the suit. SO ORDERED. 4 The decision was affirmed by the appellate court. Thereafter, this petition was filed. Petitioner maintains the defenses which he raised before the trial and appellate courts, to wit: that he was not engaged in the manufacture and sale of the power tillers as he made them only upon the special order of his customers who gave their own specifications; hence, he could not be liable for infringement of patent and unfair competition; and that those made by him were different from those being manufactured and sold by private respondent.

We find no merit in his arguments. The question of whether petitioner was manufacturing and selling power tillers is a question of fact better addressed to the lower courts. In dismissing the first argument of petitioner herein, the Court of Appeals quoted the findings of the court, to wit: It is the contention of defendant that he did not manufacture or make imitations or copies of plaintiff's turtle power tiller as what he merely did was to fabricate his floating power tiller upon specifications and designs of those who ordered them. However, this contention appears untenable in the light of the following circumstances: 1) he admits in his Answer that he has been manufacturing power tillers or hand tractors, selling and distributing them long before plaintiff started selling its turtle power tiller in Zamboanga del Sur and Misamis Occidental, meaning that defendant is principally a manufacturer of power tillers, not upon specification and design of buyers, but upon his own specification and design; 2) it would be unbelievable that defendant would fabricate power tillers similar to the turtle power tillers of plaintiff upon specifications of buyers without requiring a job order where the specification and designs of those ordered are specified. No document was (sic) ever been presented showing such job orders, and it is rather unusual for defendant to manufacture something without the specification and designs, considering that he is an engineer by profession and proprietor of the Ozamis Engineering shop. On the other hand, it is also highly unusual for buyers to order the fabrication of a power tiller or hand tractor and allow defendant to manufacture them merely based on their verbal instructions. This is contrary to the usual business and manufacturing practice. This is not only time consuming, but costly because it involves a trial and error method, repeat jobs and material wastage. Defendant judicially admitted two (2) units of the turtle power tiller sold by him to Policarpio Berondo. 5 Of general acceptance is the rule imbedded in our jurisprudence that ". . . the jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals in a petition for certiorari under Rule 45 of the Rules of Court is

limited to the review of errors of law, and that said appellate court's findings of fact are conclusive upon this Court." 6 The fact that petitioner herein manufactured and sold power tillers without patentee's authority has been established by the courts despite petitioner's claims to the contrary. The question now arises: Did petitioner's product infringe upon the patent of private respondent? Tests have been established to determine infringement. These are (a) literal infringement; and (b) the doctrine of equivalents. 7 In using literal infringement as a test, ". . . resort must be had, in the first instance, to the words of the claim. If accused matter clearly falls within the claim, infringement is made out and that is the end of it." 8 To determine whether the particular item falls within the literal meaning of the patent claims, the court must juxtapose the claims of the patent and the accused product within the overall context of the claims and specifications, to determine whether there is exact identity of all material elements. 9 The trial court made the following observation: Samples of the defendant's floating power tiller have been produced and inspected by the court and compared with that of the turtle power tiller of the plaintiff (see Exhibits H to H-28). In appearance and form, both the floating power tillers of the defendant and the turtle power tiller of the plaintiff are virtually the same. Defendant admitted to the Court that two (2) of the power inspected on March 12, 1984, were manufactured and sold by him (see TSN, March 12, 1984, p. 7). The three power tillers were placed alongside with each other. At the center was the turtle power tiller of plaintiff, and on both sides thereof were the floating power tillers of defendant (Exhibits H to H-2). Witness Rodrigo took photographs of the same power tillers (front, side, top and back views for purposes of comparison (see Exhibits H-4 to H-28). Viewed from any perspective or angle, the power tiller of the defendant is identical and similar to that of the turtle power tiller of plaintiff in form, configuration, design and appearance. The parts or

components thereof are virtually the same. Both have the circularly-shaped vacuumatic housing float, a paddy in front, a protective water covering, a transmission box housing the transmission gears, a handle which is V-shaped and inclined upwardly, attached to the side of the vacuumatic housing float and supported by the upstanding G.I. pipes and an engine base at the top midportion of the vacuumatic housing float to which the engine drive may be attached. In operation, the floating power tiller of the defendant operates also in similar manner as the turtle power tiller of plaintiff. This was admitted by the defendant himself in court that they are operating on the same principles. (TSN, August 19, 1987, p. 13) 10 Moreover, it is also observed that petitioner also called his power tiller as a floating power tiller. The patent issued by the Patent Office referred to a "farm implement but more particularly to a turtle hand tractor having a vacuumatic housing float on which the engine drive is held in place, the operating handle, the harrow housing with its operating handle and the paddy wheel protective covering." 11 It appears from the foregoing observation of the trial court that these claims of the patent and the features of the patented utility model were copied by petitioner. We are compelled to arrive at no other conclusion but that there was infringement. Petitioner's argument that his power tillers were different from private respondent's is that of a drowning man clutching at straws. Recognizing that the logical fallback position of one in the place of defendant is to aver that his product is different from the patented one, courts have adopted the doctrine of equivalents which recognizes that minor modifications in a patented invention are sufficient to put the item beyond the scope of literal infringement. 12 Thus, according to this doctrine, "(a)n infringement also occurs when a device appropriates a prior invention by incorporating its innovative concept and, albeit with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result." 13 The reason for the doctrine of equivalents is that to permit the imitation of a patented invention which does not copy any literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such imitation would leave room for indeed encourage the unscrupulous

copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of the law. 14 In this case, the trial court observed: Defendant's witness Eduardo Caete, employed for 11 years as welder of the Ozamis Engineering, and therefore actually involved in the making of the floating power tillers of defendant tried to explain the difference between the floating power tillers made by the defendant. But a careful examination between the two power tillers will show that they will operate on the same fundamental principles. And, according to establish jurisprudence, in infringement of patent, similarities or differences are to be determined, not by the names of things, but in the light of what elements do, and substantial, rather than technical, identity in the test. More specifically, it is necessary and sufficient to constitute equivalency that the same function can be performed in substantially the same way or manner, or by the same or substantially the same, principle or mode of operation; but where these tests are satisfied, mere differences of form or name are immaterial. . . . 15 It also stated: To establish an infringement, it is not essential to show that the defendant adopted the device or process in every particular; Proof of an adoption of the substance of the thing will be sufficient. "In one sense," said Justice Brown, "it may be said that no device can be adjudged an infringement that does not substantially correspond with the patent. But another construction, which would limit these words to exact mechanism described in the patent, would be so obviously unjust that no court could be expected to adopt it. . . . The law will protect a patentee against imitation of his patent by other forms and proportions. If two devices do the same work in substantially the same way, and

accomplish substantially the same result, they are the same, even though they differ in name, form, or shape. 16 We pronounce petitioner liable for infringement in accordance with Section 37 of Republic Act No. 165, as amended, providing, inter alia: Sec. 37. Right of Patentees. A patentee shall have the exclusive right to make, use and sell the patented machine, article or product, and to use the patented process for the purpose of industry or commerce, throughout the territory of the Philippines for the terms of the patent; and such making, using, or selling by any person without the authorization of the Patentee constitutes infringement of the patent. (Emphasis ours) As far as the issue regarding unfair competition is concerned, suffice it to say that Republic Act No. 166, as amended, provides, inter alia: Sec. 29. Unfair competition, rights and remedies. . . . xxx xxx xxx In particular, and without in any way limiting the scope of unfair competition, the following shall be deemed guilty of unfair competition: (a) Any person, who in selling his goods shall give them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves or in the wrapping of the packages in which they are contained, or the devices or words thereon, or in any other feature of their appearance, which would be likely to influence purchasers that the goods offered are those of a manufacturer or dealer other than the actual manufacturer or dealer, or who otherwise clothes the goods with such appearance as shall deceive the public and defraud another of his legitimate trade. . . . xxx xxx xxx

Considering the foregoing, we find no reversible error in the decision of the Court of Appeals affirming with modification the decision of the trial court. WHEREFORE, premises considered, the decision of the Court of Appeals is hereby AFFIRMED and this petition DENIED for lack of merit.

PANFILO S. AMATAN, complainant, vs. JUDGE VICENTE AUJERIO, respondent. A criminal complaint accusing Rodrigo Umpad, alias "Meon" of the crime of murder under Article 248 of the Revised Penal Code was filed by the Philippine National Police Station Commander in Bato, Leyte for the fatal shooting of Genaro Tagsip in the afternoon of September 14, 1987. 1 After preliminary investigation by the office of the provincial fiscal, an information charged Umpad with the crime of Homicide as follows: The undersigned Assistant Provincial Fiscal of Leyte accused Rodrigo Umpad alias "Meon" of the crime of Homicide committed as follows: That on or about the 14th day of September 1987, in the Island of Dawahon, Municipality of Bato, Province of Leyte, Philippines and within the preliminary jurisdiction of this Honorable Court, the above-named accused, with deliberate intent, with intent to kill did then and there willfully, unlawfully and feloniously shot one GENARO TAGSIP, with a revolver .38 Cal. Snub Nose Smith and Wesson (Paltik) which the accused had provided himself for the purpose, thereby causing and inflicting upon the victim fatal gunshot wound on his head which was the direct and immediate cause of the death of Genaro Tagsip.

CONTRARY TO LAW. Hilongos, Leyte, October 20, 1987. Upon arraignment, however, the parties, with the acquiescence of the Public Prosecutor and the consent of the offended party, entered into plea bargaining where it was agreed that the accused would plead guilty to the lesser offense of Attempted Homicide instead of homicide as originally charged in the information, and would incur the penalty of "four (4) years, two (2) months and one (1) day of prision correccional as minimum to six (6) year ofprision correccional maximum as maximum." 2 Consequently, in his decision promulgated on the 27th of June 1990, respondent judge found the accused, Rodrigo Umpad, guilty beyond reasonable doubt of the lesser crime of Attempted Homicide and sentenced him to suffer imprisonment of four years, two months and one day of prision correccional maximum, as minimum to six years of prision correccional maximum, as the maximum period, exactly in accordance with the plea bargaining agreement. 3 On October 16, 1992, a letter-complaint addressed to the Chief Justice and signed by Pedro S. Amatan, a brother-in-law of the deceased, accused Judge Vicente Aujero of gross incompetence, gross ignorance of the law and gross misconduct, relative to his disposition of Crim. Case No. H-223 entitled People v. Rodrigo Umpad alias "Meon." In said letter-complaint, complainant contends that the sentence of respondent judge finding the accused guilty beyond reasonable doubt of the lesser offense of Attempted Homicide and not Homicide as charged is proof indicative, "on its face, of gross incompetence, gross ignorance of the law or gross misconduct. Responding to the complaint, respondent Judge asserts that he relied on Sec. 2, Rule 116 of the 1985 Revised Rules of Criminal Procedure, as amended, which allows an accused individual with the consent of the offended party to plead guilty to a lesser offense, regardless of whether or not such offense is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction. He explains that during the May 3, 1990 hearing, accused and his counsel, with the acquiescence and in the presence of the prosecutor, informed the Court of the defendant's desire to plea bargain pursuant to the aforestated rule. Moreover, he avers that in a conference on June 27, 1990, the wife of the victim herself agreed to the accused's plea of guilty to attempted homicide, instead of homicide as she needed the monetary indemnity to raise her two orphaned children. In a

Memorandum dated February 5, 1993, the Deputy Court Administrator recommended that the complaint be dismissed, explaining that: Section 2 116 is more liberalized as it allows the accused to plead guilty to a lesser offense whether or not it is included in the offense charged in the complaint or information, with the consent of the offended party and the fiscal. In this regard, it is inferred that the fiscal consented to abbreviate the proceedings and in order not to run the risk of the accused being acquitted, because there was no conclusive evidence to obtain the conviction of the accused to the offense charged in the complaint of information. It may be stated in this connection that unlike in the crime of murder where the accused may plead to the lesser offense of homicide, in homicide a misinterpretation may arise, as in this case, when the accused pleads guilty to attempted homicide, because here the fact of the death of the victim, which is the principal element of the crime is obliterated. This is specially so because the decision/sentence does not contain findings of fact and conclusions of law but merely an account that the accused pleaded guilty to a lesser offense and the penalty imposed. 4 Section 2, Rule, 116 of the 1985 Revised Rules of Criminal Procedure, as amended, allows the accused in criminal case to plead guilty "to lesser offense regardless of whether or not it is necessarily included in the crime charged." The fact of death of the victim for which the accused Rodrigo Umpad was criminally liable, cannot by simple logic and plain common sense be reconciled with the plea of guilty to the lower offense of attempted homicide. The crime of homicide as defined in Article 249 of the Revised Penal Code necessarily produces death; attempted homicide does not. Concededly, hiatus in the law exists in the case before us, which could either lead to a misapprehension of Section 2 of Rule 116 or to outright confusion. Such a result was itself recognized by the Deputy Court Administrator when he recommended an amendment to the provision in his Memorandum. However, the law is not entirely bereft of solutions in such cases. In instances where a literal application of a provision of law would lead to

injustice or to a result so directly in opposition with the dictates of logic and everyday common sense as to be unconscionable, the Civil Code 5 admonishes judges to take principles of right and justice at heart. In case of doubt the intent is to promote right and justice. Fiat justice ruat coelum. Stated differently, when a provision of law is silent or ambiguous, judges ought to invoke a solution responsive to the vehement urge of conscience. These are fundamental tenets of law. In the case at bench, the fact of the victim's death, a clear negation of frustrated or attempted homicide, ought to have alerted the judge not only to a possibly inconsistent result but to an injustice. The failure to recognize such principles so cardinal to our body of laws amounts to ignorance of the law and reflects respondent judge's lack of prudence, if not competence, in the performance of his duties. While it is true, as respondent judge contends, that he merely applied the rule to the letter, the palpably incongruous result ought to have been a "red flag" alerting him of the possibility of injustice. The death of an identified individual, the gravamen of the charge against the defendant in the criminal case, cannot and should not be ignored in favor of a more expedient plea of either attempted or frustrated homicide. We have held before that if the law is so elementary, not to know it or to act as if one does not know it, constitutes gross ignorance of the law.6 Finally, every judge must be the embodiment of competence, integrity and independence. 7 A judge should not only be aware of the bare outlines of the law but also its nuances and ramifications, otherwise, he would not be able to come up with decisions which are intrinsically fair. In failing to exercise even ordinary common sense, a judge could be held administratively liable for a verdict that could in no way be legally or factually sustained or justified. We note, however, that under the circumstances of the case, respondent judge's erroneous exercise of his judicial prerogative was neither tainted with malice nor bad faith. The phraseology of Sec. 2, Rule 116 is not crafted with such precision as to entirely eliminate possible misinterpretation. This observation is bolstered by the fact that the same provision prompted the Department of Justice, on July 31, 1990, or three months after respondent judge took cognizance of the case on April 17, 1990, to issue Circular No. 35, 8 later amended by Circular No. 55 dated December 11, 1990, clarifying and setting limitations on the application of Sec. 2, Rule 116. The fact also

that respondent reached compulsory retirement age on April 5, 1995 after a long period of service in the judiciary entitles him to a certain measure of leniency. Nonetheless, the case at bench stands unique because of the potently absurd result of respondent's application of the law. ACCORDINGLY, we are constrained to find the respondent judge GUILTY of gross ignorance of the law for which he is hereby REPRIMANDED na FINED ONE THOUSAND (P1,000.00) PESOS. Let this decision appear in respondent's record of service. SO ORDERED. Salvacion v. Central Bank of the Philippines 278 SCRA 27 FACTS: Greg Bartelli, an American tourist, was arrested for committing four counts of rape and serious illegal detention against Karen Salvacion. Police recovered from him several dollar checks and a dollar account in the China Banking Corp. He was, however, able to escape from prison. In a civil case filed against him, the trial court awarded Salvacion moral, exemplary and attorneys fees amounting to almost P1,000,000.00. Salvacion tried to execute the judgment on the dollar deposit of Bartelli with the China Banking Corp. but the latter refused arguing that Section 11 of Central Bank Circular No. 960 exempts foreign currency deposits from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever. Salvacion therefore filed this action for declaratory relief in the Supreme Court. ISSUE: Should Section 113 of Central Bank Circular No. 960 and Section 8 of Republic Act No. 6426, as amended by PD 1246, otherwise known as the Foreign Currency Deposit Act be made applicable to a foreign transient? HELD: The provisions of Section 113 of Central Bank Circular No. 960 and PD No. 1246, insofar as it amends Section 8 of Republic Act No. 6426, are hereby held to be INAPPLICABLE to this case because of its peculiar circumstances. Respondents are hereby required to comply with the writ of

execution issued in the civil case and to release to petitioners the dollar deposit of Bartelli in such amount as would satisfy the judgment. RATIO: Supreme Court ruled that the questioned law makes futile the favorable judgment and award of damages that Salvacion and her parents fully deserve. It then proceeded to show that the economic basis for the enactment of RA No. 6426 is not anymore present; and even if it still exists, the questioned law still denies those entitled to due process of law for being unreasonable and oppressive. The intention of the law may be good when enacted. The law failed to anticipate the iniquitous effects producing outright injustice and inequality such as the case before us. The SC adopted the comment of the Solicitor General who argued that the Offshore Banking System and the Foreign Currency Deposit System were designed to draw deposits from foreign lenders and investors and, subsequently, to give the latter protection. However, the foreign currency deposit made by a transient or a tourist is not the kind of deposit encouraged by PD Nos. 1034 and 1035 and given incentives and protection by said laws because such depositor stays only for a few days in the country and, therefore, will maintain his deposit in the bank only for a short time. Considering that Bartelli is just a tourist or a transient, he is not entitled to the protection of Section 113 of Central Bank Circular No. 960 and PD No. 1246 against attachment, garnishment or other court processes. Further, the SC said: In fine, the application of the law depends on the extent of its justice. Eventually, if we rule that the questioned Section 113 of Central Bank Circular No. 960 which exempts from attachment, garnishment, or any other order or process of any court, legislative body, government agency or any administrative body whatsoever, is applicable to a foreign transient, injustice would result especially to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This would negate Article 10 of the New Civil Code which 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. DANILO GATCHALIAN vs. COURT OF APPEALS 245 SCRA 208 Facts: Gatchalian and Aruelo were rivals for the office of the Vice-Mayor of Balagtas, Bulacan in the May 11, 1992 Elections. Gatchalian was proclaimed Vice-Mayor by a margin of four votes on May 13, 1992.

On May 22, 1992, Aruelo filed with the COMELEC a petition seeking to annul the proclamation of Gatchalian. He also filed on June 2, 1992 with the RTC of Malolos, Bulacan an election protest. When Gatchalian received the summons, instead of filing an answer, he filed a motion to dismissw on the following grounds: (a) the petition was filed out of time; (b) there was a pending pre-proclamation case before the COMELEC, hence the protest was premature; and (c) Aruelo failed to pay the prescribed fees. The pre-proclamation case was denied by COMELEC, but the Motion to Dismiss was denied by the trial court, hence this petition. Issue: Should the proclamation contest be denied? Also, should the election contest be dismissed for failure to pay the filing fees? Held: On the first issue, the Court held that Aruelo filed with the COMELEC pre-proclamation case against Gatchalian nine days after May 13, 1992, the latters proclamation date. The filinf of the pre-proclamation case suspended the running of the period within which to file the election protest which was one day after June 22, 1992. He filed the election protest on June 2, 1992 with the trial court ex abudante cautela. On second the issue, the Court held that, indeed, respondent failed to pay the required filing fee of P300,00 for the election protest prescribed by the COMELEC Rules of Procedure. Hence, the petition should be dismissed for it is the payment of the filing fee that vests jurisdiction of the court over the election protest.

IMPLICATIONS THE COMMISSION ON AUDIT OF THE PROVINCE OF CEBU, Represented by Provincial Auditor ROY L. URSAL, petitioner, vs. PROVINCE OF CEBU, Represented by Governor PABLO P. GARCIA, respondent. DECISION YNARES-SANTIAGO, J.:

May the salaries and personnel-related benefits of public school teachers appointed by local chief executives in connection with the establishment and maintenance of extension classes; as well as the expenses for college scholarship grants, be charged to the Special Education Fund (SEF) of the local government unit concerned? The instant petition for review, which raises a pure question of law, seeks to annul and set aside the decision[1] of the Regional Trial Court of Cebu, Branch 20, in a petition for declaratory relief, docketed as Civil Case No. CEB-24422. The provincial governor of the province of Cebu, as chairman of the local school board, under Section 98 of the Local Government Code, appointed classroom teachers who have no items in the DECS plantilla to handle extension classes that would accommodate students in the public schools. In the audit of accounts conducted by the Commission on Audit (COA) of the Province of Cebu, for the period January to June 1998, it appeared that the salaries and personnel-related benefits of the teachers appointed by the province for the extension classes were charged against the provincial SEF. Likewise charged to the SEF were the college scholarship grants of the province. Consequently, the COA issued Notices of Suspension to the province of Cebu,[2] saying that disbursements for the salaries of teachers and scholarship grants are not chargeable to the provincial SEF. Faced with the Notices of Suspension issued by the COA, the province of Cebu, represented by its governor, filed a petition for declaratory relief with the trial court. On December 13, 1999, the court a quo rendered a decision declaring the questioned expenses as authorized expenditures of the SEF. The dispositive portion thereof reads: WHEREFORE, in view of all the foregoing premises considered, judgment is hereby rendered giving due course to this instant petition for declaratory relief declaring and confirming that petitioner is vested with the authority to disburse the proceeds from the Special Educational Fund [SEF] for the payment of salaries, allowances or honoraria for teachers and non-teaching personnel in the public schools in the Province of Cebu and its component cities, and, municipalities, as well as the expenses for scholarship grants of petitioners specially to poor but deserving students therein.

Declaring, further, respondent's audit findings on pages 36 and 37 in the Annual Audit Report on the Province of Cebu for the year ending December 31, 1999 as null and void.[3] Hence, the instant petition by the Commission on Audit. The Special Education Fund was created by virtue of R. A. No. 5447, which is An act creating a special education fund to be constituted from the proceeds of an additional real property tax and a certain portion of the taxes on Virginia-type cigarettes and duties on imported leaf tobacco, defining the activities to be financed, creating school boards for the purpose, and appropriating funds therefrom, which took effect on January 1, 1969. Pursuant thereto, P.D. No. 464, also known as the Real Property Tax Code of the Philippines, imposed an annual tax of 1% on real property which shall accrue to the SEF.[4] Under R. A. No. 5447, the SEF may be expended exclusively for the following activities of the DECS (a) the organization and operation of such number of extension classes as may be needed to accommodate all children of school age desiring to enter Grade I, including the creation of positions of classroom teachers, head teachers and principals for such extension classes x x x; (b) the programming of the construction and repair of elementary school buildings, acquisition of sites, and the construction and repair of workshops and similar buildings and accessories thereof to house laboratory, technical and similar equipment and apparatus needed by public schools offering practical arts, home economics and vocational courses, giving priority to elementary schools on the basis of the actual needs and total requirements of the country x x x; (c) the payment and adjustment of salaries of public school teachers under and by virtue of Republic Act Numbered Five Thousand One Hundred Sixty-Eight and all the benefits in favor of public school teachers provided under Republic Act Numbered Four Thousand Six Hundred Seventy; (d) preparation, printing and/or purchase of textbooks, teacher's guides, forms and pamphlets x x x;

(e) the purchase and/or improvement, repair and refurbishing of machinery, laboratory, technical and similar equipment and apparatus, including spare parts needed by the Bureau of Vocational Education and secondary schools offering vocational courses; (f) the establishment of printing plant to be used exclusively for the printing needs of the Department of Education and the improvement of regional printing plants in the vocational schools; (g) the purchase of teaching materials such as work books, atlases, flip charts, science and mathematics teaching aids, and simple laboratory devices for elementary and secondary classes; (h) the implementation of the existing program for citizenship development in barrio high schools, folk schools and adult education classes; (i) the undertaking of education research, including that of the Board of National Education; (j) the granting of government scholarships to poor but deserving students under Republic Act Numbered Four Thousand Ninety; and (k) the promotion of physical education, such as athletic meets. (Emphasis supplied) With the effectivity of the Local Government Code of 1991, petitioner contends that R.A. No. 5447 was repealed, leaving Sections 235, 272 and 100 (c) of the Code to govern the disposition of the SEF, to wit: SEC. 235. Additional Levy on Real Property for the Special Education Fund (SEF). A province or city or a municipality within the Metropolitan Manila Area, may levy and collect an annual tax of one percent (1%) on the assessed value of real property which shall be in addition to the basic real property tax. The proceeds thereof shall exclusively accrue to the Special Education Fund (SEF). SEC. 272. Application of Proceeds of the Additional One Percent SEF Tax. The proceeds from the additional one percent (1%) tax on real property accruing to the SEF shall be automatically released to the local school

boards: Provided, That, in case of provinces, the proceeds shall be divided equally between the provincial and municipal school boards: Provided, however, That the proceeds shall be allocated for the operation and maintenance of public schools, construction and repair of school buildings, facilities and equipment, educational research, purchase of books and periodicals, and sports development as determined and approved by the local school board. (Emphasis supplied) SEC. 100. Meeting and Quorum; Budget xxx xxx xxx

(c) The annual school board budget shall give priority to the following: (1) Construction, repair, and maintenance of school buildings and other facilities of public elementary and secondary schools; (2) Establishment and maintenance of extension classes where necessary; and (3) Sports activities at the division, district, municipal, and barangay levels. (Emphasis supplied) Invoking the legal maxim expressio unius es exclusio alterius, petitioner alleges that since salaries, personnel-related benefits and scholarship grants are not among those authorized as lawful expenditures of the SEF under the Local Government Code, they should be deemed excluded therefrom. Moreover, petitioner claims that since what is allowed for local school boards to determine under Section 99[5] of the Local Government Code is only the annual supplementary budgetary needs for the operation and maintenance of public schools, as well as the supplementary local cost to meet such needs, the budget of the local school boards for the establishment and maintenance of extension classes should be construed to refer only to the upkeep and maintenance of public school buildings, facilities and similar expenses other than personnel-related benefits. This is because, petitioner argued, the maintenance and operation of public schools pertain principally to the DECS.

The contentions are without merit. It is a basic precept in statutory construction that the intent of the legislature is the controlling factor in the interpretation of a statute.[6] In this connection, the following portions of the deliberations of the Senate on the second reading of the Local Government Code on July 30, 1990 are significant: Senator Guingona. Mr. President. The President. Senator Guingona is recognized. Senator Guingona. Just for clarification, Mr. President. In this transfer, will it include everything eventually -- lock, stock and barrel, including curriculum? Senator Pimentel. Mr. President, our stand in the Committee is to respect the decision of the National Government in terms of curriculum. Senator Guingona. But, supposing the Local Education Board wishes to adopt a certain curriculum for that particular region? Senator Pimentel. Mr. President, pursuant to the wording of the proposed transfer of this elementary school system to local government units, what are specifically covered here are merely the construction, repair, and maintenance of elementary school buildings and other structures connected with public elementary school education, payment of salaries, emoluments, allowances et cetera, procurement of books, other teaching materials and equipment needed for the proper implementation of the program. There is nothing here that will indicate that the local government will have any right to alter the curriculum. (Emphasis supplied) Senator Guingona. Thank you, Mr. President. Similarly instructive are the foregoing deliberations in the House of Representatives on August 16, 1990: INTERPELLATION OF MS. RAYMUNDO (Continuation)

Continuing her interpellation, Ms. Raymundo then adverted to subsection 4 of Section 101 [now Section 100, paragraph (c)] and asked if the budget is limited only to the three priority areas mentioned. She also asked what is meant by the phrase maintenance of extension classes. In response, Mr. De Pedro clarified that the provision is not limited to the three activities, to which may be added other sets of priorities at the proper time. As to extension classes, he pointed out that the school boards may provide out of its own funds, for additional teachers or other requirements if the national government cannot provide funding therefor. Upon Ms. Raymundos query, Mr. de Pedro further explained that support for teacher tools could fall under the priorities cited and is covered by certain circulars. Undoubtedly, the aforecited exchange of views clearly demonstrates that the legislature intended the SEF to answer for the compensation of teachers handling extension classes. Furthermore, the pertinent portion of the repealing clause of the Local Government Code, provides: SEC. 534. Repealing Clause. - x x x (c) The provisions of . . . Sections 3, a (3) and b (2) of Republic Act No. 5447, regarding the Special Education Fund are hereby repealed and rendered of no force and effect. Evidently, what was expressly repealed by the Local Government Code was only Section 3, of R.A. No. 5447, which deals with the Allocation of taxes on Virginia type cigarettes and duties on imported leaf tobacco. The legislature is presumed to know the existing laws, such that whenever it intends to repeal a particular or specific provision of law, it does so expressly. The failure to add a specific repealing clause particularly mentioning the statute to be repealed indicates that the intent was not to repeal any existing law on the matter, unless an irreconcilable inconsistency and repugnancy exists in the terms of the new and the old laws.[7] Hence, the provisions allocating funds for the salaries of teachers under Section 1, of R.A. No. 5447, which are not inconsistent with Sections 272 and 100 (c) of the Local Government Code, remain in force and effect.

Even under the doctrine of necessary implication, the allocation of the SEF for the establishment and maintenance of extension classes logically implies the hiring of teachers who should, as a matter of course be compensated for their services. Every statute is understood, by implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis.[8] Verily, the services and the corresponding compensation of these teachers are necessary and indispensable to the establishment and maintenance of extension classes. Indeed, the operation and maintenance of public schools is lodged principally with the DECS. This is the reason why only salaries of public school teachers appointed in connection with the establishment and maintenance of extension classes, inter alia, pertain to the supplementary budget of the local school boards. Thus, it should be made clear that not every kind of personnel-related benefits of public school teachers may be charged to the SEF. The SEF may be expended only for the salaries and personnel-related benefits of teachers appointed by the local school boards in connection with the establishment and maintenance of extension classes. Extension classes as referred to mean additional classes needed to accommodate all children of school age desiring to enter in public schools to acquire basic education.[9] With respect, however, to college scholarship grants, a reading of the pertinent laws of the Local Government Code reveals that said grants are not among the projects for which the proceeds of the SEF may be appropriated. It should be noted that Sections 100 (c) and 272 of the Local Government Code substantially reproduced Section 1, of R.A. No. 5447. But, unlike payment of salaries of teachers which falls within the ambit of establishment and maintenance of extension classes and operation and maintenance of public schools, the granting of government scholarship to poor but deserving students was omitted in Sections 100 (c) and 272 of the Local Government Code. Casus omissus pro omisso habendus est. A person, object, or thing omitted from an enumeration in a statute must be held to have been omitted intentionally. It is not for this Court to supply such grant of scholarship where the legislature has omitted it.[10]

In the same vein, however noble the intention of the province in extending said scholarship to deserving students, we cannot apply the doctrine of necessary implication inasmuch as the grant of scholarship is neither necessary nor indispensable to the operation and maintenance of public schools. Instead, such scholarship grants may be charged to the General Funds of the province. Pursuant to Section 1, Rule 63[11] of the 1997 Rules of Civil Procedure, a petition for declaratory relief may be filed before there is a breach or violation. The Solicitor General claims that the Notices of Suspension issued by the COA to the respondent province amounted to a breach or violation, and therefore, the petition for declaratory relief should have been denied by the trial court. We are not convinced. As held in Shell Company of the Philippines, Ltd. v. Municipality of Sipocot,[12] any breach of the statute subject of the controversy will not affect the case; the action for declaratory relief will prosper because the applicability of the statute in question to future transactions still remains to be resolved. Absent a definite ruling in the instant case for declaratory relief, doubts as to the disposition of the SEF will persist. Hence, the trial court did not err in giving due course to the petition for declaratory relief filed by the province of Cebu. WHEREFORE, in view of all the foregoing, the Decision of the Regional Trial Court of Cebu City, Branch 20, in Civil Case No. CEB-24422, is AFFIRMED with MODIFICATION. The salaries and personnel-related benefits of the teachers appointed by the provincial school board of Cebu in connection with the establishment and maintenance of extension classes, are declared chargeable against the Special Education Fund of the province. However, the expenses incurred by the provincial government for the college scholarship grants should not be charged against the Special Education Fund, but against the General Funds of the province of Cebu. SO ORDERED.

INTERPRETATION OF WORDS and PHRASES

Malanyaon vs Lising 106 Scra 237

Rura vs Lopena 137 SCRA 121

CONTRARY TO LAW.[3] In Criminal Case No. Q-93-41750, the information averred:

ANGELINA ZABALA ALONTO, petitioner, PHILIPPINES, respondent. DECISION AZCUNA, J.:

vs.

PEOPLE

OF

THE

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated March 11, 1999, which affirmed in toto the consolidated decision[2] of the Regional Trial Court of Quezon City, Branch 85, dated October 2, 1994, finding petitioner Angelina Zabala Alonto guilty of three (3) counts of violation of Batas Pambansa Bilang 22 (B.P. 22) or the Bouncing Checks Law, and its resolution, dated September 9, 1999, denying petitioners motion for reconsideration. The trial court sentenced petitioner to suffer the penalty of imprisonment of one (1) year for each of the three (3) counts, or the equivalent of three (3) years imprisonment, to indemnify the private complainant, Violeta E. Tizon, in the total amount of P75,000, and to pay the fine of P25,000. Petitioner was charged with three (3) counts of violation of B.P. 22 in three (3) separate informations, all dated February 22, 1993, to wit: In Criminal Case No. Q-93-41749, the information alleged: That on or about the 5th day of January, 1992, in Quezon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to VIOLETA E. TIZON to apply on account or for value a Bank of Philippine Islands Check No. 831256 dated February 5, 1992, payable to CASH in the amount of P25,000.00, Philippine Currency, said accused well knowing that at the time of issue she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Violeta E. Tizon the amount of the said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice.

That on or about the 5th day of January, 1992, in Quezon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to VIOLETA E. TIZON to apply on account or for value a Bank of Philippine Islands Check No. 831257 dated March 5, 1992, payable to CASH in the amount of P25,000.00, Philippine Currency, said accused well knowing that at the time of issue she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment, was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Violeta E. Tizon the amount of the said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.[4] In Criminal Case No. Q-93-41751, the information stated: That on or about the 5th day of January, 1992, in Quezon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to VIOLETA E. TIZON to apply on account or for value a Bank of Philippine Islands Check No. 831258 dated May 14, 1992, payable to CASH in the amount of P25,000.00, Philippine Currency, said accused well knowing that at the time of issue she/he they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Violeta E. Tizon the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW.[5]

Petitioner pleaded not guilty to the charges,[6] whereupon trial on the merits ensued. The prosecution presented two witnesses: private complainant Violeta E. Tizon and Fernando Sardes, an employee of the Bank of the Philippine Islands (BPI), Araneta Avenue Branch, Quezon City who handled the collection, accounting, and bookkeeping of the bank. Private complainant Violeta E. Tizon testified that she was engaged in the business of buying and selling jewelry. Sometime in September 1990, private complainants aunt, Flordeliz Bernardo, introduced petitioner to her. From December 5-15, 1990, petitioner purchased several pieces of Singaporean jewelry worth P100,000, to wit: (a) On December 5, 1990:[7] 1 pc. bracelet = 1 pc. chain #18 1 pc. chain #20 = 5,250.00 3,580.00 3,500.00

chain w/ balls 4,000 ________ P 47,250 Received (Signed: Angelina Alonto) As partial payment for the jewelry purchased in the first two transactions (December 5 and 11, 1990), petitioner issued Bank of the Philippines Islands (BPI) Check No. 874716,[9](Timog Circle Branch, Timog Avenue, Quezon City) dated December 13, 1990, in the amount of P12,980, under Account No. 0271-0244-44 which, when presented for payment on December 14, 1990 at The International Corporate Bank (Interbank), Caloocan Branch, was dishonored by reason of account closed. Thereafter, on December 15, 1990, petitioner again took assorted pieces of jewelry, thus: (c) On December 15, 1990:[10] Tita Vangie 12/15/90 = = = = = P 3,450 4,950 3,500 7,000 7,700 10,800 4,500 ________ [P41,900]

(Signed: Angelina Alonto) Dec. 5, 1990 1 ring = 1 ring 1 bangle chain = 950 = = 800 7,000 13,000 earring chain chain chain bracelet

[P34,080.00] (b) On December 11, 1990:[8] Dec. 11 1 pc. 1 pc. Tita Vangie earring P 5,800 round earring 3,600 bangle 10,500 bracelet 3,950 mens chain 8,300 beads chain 7,500 chain w/ heart 3,600 (Signed: Angelina Alonto) (d) Undated:[11] 1 pc. pendant & chain 1 set panda 1 set pearl 1 set diamond (Signed: Angelina Alonto)

P 2,800 29,500 9,000 22,000 _______ [P63,300]

When BPI Check No. 874716 was dishonored, private respondent, through her counsel, sent a demand letter to petitioner to make good the amount of the check and to pay the outstanding amount of P120,000. Petitioner merely returned a chain and a pair of earrings for a total amount of about P25,000, leaving an outstanding amount of P75,000. Private respondent then filed a criminal complaint against petitioner in the Caloocan City Prosecutors Office. Thereafter, petitioner was charged with estafa under paragraph 2(d), Article 315 of the Revised Penal Code, as amended by R.A. No. 4885 and later by P.D. No. 818, and violation of B.P. 22 in the Regional Trial Court of Caloocan City, Branch 126 (Criminal Cases Nos. 38680-81), entitled People of the Philippines v. Angelina Alonto. [12] Relying on petitioners promise that she would settle her obligations, private respondent executed an Affidavit of Desistance,[13] dated January 8, 1992, for the dismissal of Criminal Cases Nos. 38680-81 pending in the Regional Trial Court of Caloocan City, Branch 126. Thus, Republic of the Philippines Kalookan City, MM ) ) S.s.

Affiant SUBSCRIBED AND SWORN to before me this 8th day of January, 1992, at Kalookan City, Metro Manila, Philippines. (Sgd.)_______________ _____ Asst. Prosecutor I, HEREBY CERTIFY that I have personally examined the affiant and I am satisfied that she voluntarily executed and understood her statements. (Sgd.)_______________ _____ Asst. Prosecutor Thereafter, in the presence of their respective lawyers, petitioner issued three BPI checks (Araneta Avenue Branch, G. Araneta Avenue, Quezon City), under Account No. 3275-0292-02, to wit: Check No. 831256 dated February 5, 1992,[14] Check No. 831257 dated March 5, 1992,[15] and Check No. 831258 dated April 5, 1992,[16] each in the amount ofP25,000, corresponding to the balance of P75,000. When the BPI checks were presented for payment at Interbank (Caloocan Branch) on their respective due dates, all checks were dishonored by reason of account closed.[17] Since petitioner failed to pay the outstanding amount despite the demand letters,[18] three informations were filed with the Regional Trial Court of Quezon City, Branch 85, charging petitioner with three counts of violation of B.P. 22. Fernando Sardes testified that on December 27, 1991, petitioner opened an account (Account No. 3275-0292-02) with the BPI having an initial deposit of P2,000. Thereafter, petitioner did not make any other deposit nor did she open any other account with the said bank. He confirmed that petitioner issued three BPI checks (Check Nos. 831256, 831257, and 831258), worth P25,000 each, on February 5, 1992, March 5, 1992, and May 14, 1992[19] which were the subject of Criminal Cases Nos. Q-

AFFIDAVIT OF DESISTANCE I, VIOLETA E. TIZON, of legal age, and residing at 26 B. Asistio St., Biglang Awa, Kalookan City, under oath, solemnly depose and say: 1. That I am the private complainant in Criminal Case Nos. 38680-81, entitled: People of the Philippines versus Angelina Alonto now pending before the Regional Trial Court, National Capital Judicial Region, Branch 126, Kalookan City, which case has been set for hearing on January 8, 1992, at 8:30 oclock in the morning, for the arraignment of the aforenamed accused; 2. That I am no longer interested in the prosecution of said case, and 3. Further sayeth none. IN WITNESS WHEREOF, I have hereunto signed my name this 8th day of January, 1992, in Kalookan City. (Sgd.) VIOLETA E. TIZON

93-41749 to 51, respectively. He disclosed that as early as February 1992, petitioner had closed her account with the BPI and by reason thereof, when the three checks were presented for payment, the same were dishonored by reason of account closed.[20] On the other hand, petitioner Angelina Zabala Alonto testified that she was engaged in the real estate business, not in buying and selling jewelry. She said she met private complainant Violeta Tizon through the latters aunt, Flordeliz Bernardo, and that it was private complainant and her aunt who entered into a transaction involving the sale of jewelry. She also declared that one piece of jewelry worth P23,000 was handed to her by Bernardo, for which reason she signed an acknowledgment receipt, and that Bernardo got the other jewelry items. The following day, petitioner returned to private complainant a piece of jewelry. She insisted that she had issued the three (3) checks upon the advise of her lawyer and after being assured by Flordeliz Bernardo that she (Bernardo) would fund them as these fall due. She claimed that she issued the checks to guarantee the obligation of Bernardo. On October 2, 1994, the Regional Trial Court of Quezon City, Branch 85, rendered a decision finding petitioner guilty of three (3) counts of violation of B.P. 22. The dispositive portion of the decision reads: WHEREFORE, foregoing considered, the court finds accused GUILTY beyond reasonable doubt and hereby sentences the accused to suffer in each case imprisonment of one (1) year and to pay a fine ofP25,000.00 and to indemnify the complainant in the total amount of P75,000.00 and to pay the costs. SO ORDERED. On appeal, the Court of Appeals rendered a decision on March 11, 1999 affirming the decision of the trial court. As aforestated, petitioners motion for reconsideration thereof was deemed by resolution dated September 9, 1999. Hence, this petition raising the following assignment of errors: I

THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS MOTION FOR RECONSIDERATION (ANNEX C) IS DENIED FOR WANT OF MERIT WHICH INCLUDED THE CONCOMMITANT ISSUES THEREOF. II THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING, OR DECLARING THAT PETITIONER MUST BE ACQUITTED OR THE CASE AGAINST HER MUST BE DISMISSED ON THE GROUND OF DOUBLE JEOPARDY. III THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING, OR DECLARING THAT THE REGIONAL TRIAL COURT, BRANCH 85 OF QUEZON CITY HAS LOST ITS JURISDICTION, OR HAS NO JURISDICTION OVER THE CASES (CRIM. CASES Nos. 41748-51) BY OPERATION OF REPUBLIC ACT No. 7691, AND ON THE [PRINCIPLE] OF DOUBLE JEOPARDY. IV THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING, OR DECLARING THAT [THE] PROSECUTION EXHIBITS ARE EXCLUDED BY LAW AND THE RULES ON EVIDENCE. V THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING, OR DECLARING THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE OR FELONY. VI THE RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING, OR DECLARING, THAT ERRORS OF LAW OR IRREGULARITIES HAVE BEEN COMMITTED DURING THE TRIAL OF THE CASE IN THE LOWER COURT, PREJUDICIAL TO THE SUBSTANTIAL RIGHTS OF THE PETITIONER TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW. The petition has no merit.

First. As set forth in the first and fifth assignment of errors, petitioner challenges the affirmance by the Court of Appeals of the trial courts finding of her guilt and its denial of her motion for reconsideration. The Court sees no reason to reverse the ruling of the appellate court. The facts alleged in the three separate informations charge the petitioner with three counts of violation of B.P. 22. In each of the three informations, petitioner was charged with violation of Section 1 thereof, which states: Section 1. Checks without sufficient funds. Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court . . . " Under this provision, there are two ways of violating B.P. 22: 1) by making or drawing and issuing a check to apply "on account or for value," knowing at the time of issue that the check was not sufficiently funded; and 2) by having sufficient funds in or credit with the drawee bank at the time of issue, but failing to keep sufficient funds or credit with the said bank to cover the full amount of the check when presented to the drawee bank within a period of ninety (90) days.[21] The elements of the offense under the first situation are the following: (1) the making, drawing and issuance of any check to apply on account or for value; (2) the maker, drawer or issuer knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (3) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or that the check would have been dishonored for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.[22] The prosecution has established the aforementioned elements of violation of B.P. 22. Between December 515, 1990, petitioner purchased several pieces of Singaporean jewelry worth more than P100,000 and as

evidence of having obtained the same, petitioner signed four acknowledgment receipts.[23] As partial payment for the jewelry purchased, petitioner issued BPI Check No. 874716 (dated December 13, 1990 in the amount of P12,980) which was dishonored by Interbank and later, two criminal cases (for estafa under Article 315, par. 2(d) of the Revised Penal Code and violation of B.P. 22) were filed against her in the Regional Trial Court of Caloocan City, Branch 126, but were eventually dismissed because of an Affidavit of Desistance by the private complainant. Thereafter, on January 5, 1992, petitioner issued the three subject postdated BPI checks (Araneta Avenue Branch, i.e., Check Nos. 831256, 831257, and 831258 worth P25,000 each, dated February 5, 1992, March 5, 1992, and April 5, 1992, respectively), under Account No. 3275-0292-02, as payment for the balance of P75,000. When private complainant deposited the checks with Interbank (Caloocan Branch) on the due dates, the same were dishonored by reason of account closed. Petitioner knew at the time she issued the three postdated checks on January 5, 1992 that she had no sufficient funds or credit with the BPI (drawee bank). This fact was corroborated by the testimony of Fernando Sardes that after an initial deposit of P2,000 on December 27, 1991, under Account No. 3275-0292-02, petitioner did not make any subsequent deposit, but instead, in February 1992, she closed her BPI account. Succinctly put, when petitioner issued the three postdated checks worthP25,000 each, she was fully aware that her account with the BPI was not sufficiently funded to cover the full amount of the checks. Consequently, for failure of petitioner to pay the amount of the checks despite written demands from the private complainant, three criminal cases for violation of B.P. 22 were filed against her in the Regional Trial Court of Quezon City, Branch 85. Second. Petitioner claims that she came to know the private complainant only on December 11, 1990. This statement is belied by the fact that on December 5, 1990, petitioner received several pieces of jewelry from private complainant as shown by an acknowledgment receipt (Exhibit A). Moreover, petitioners theory that the three checks she issued were without consideration, but merely guarantee the obligation of Bernardo (private complainants aunt) who promised to fund them on their respective due dates, does not constitute a valid defense. It does not matter if petitioner only received a piece of jewelry while the rest of the jewelry items were taken by Bernardo. Jurisprudence abounds with regard to the rule that B.P. 22 applies even in cases where dishonored checks are issued merely in the form of a deposit

or a guarantee. The law does not make any distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation. In accordance with the pertinent rule of statutory construction, inasmuch as the law has not made any distinction in this regard, no such distinction can be made by means of interpretation or application. Further, it is the legislative intent to make the prohibition all-embracing, without making any exception from the operation thereof in favor of a guarantee. Consequently, what are important are the facts that the accused had deliberately issued the checks in question to cover accounts and that the checks were dishonored upon presentment regardless of whether or not the accused merely issued the checks as a guarantee.[24] Third. Petitioner contends in the fourth issue that the Court of Appeals erred in considering the list of jewelry items (Exhibits A, B, C, and D) which petitioner received from the private complainant and the three (3) BPI checks (Exhibits G, H, and I) issued by the petitioner, without the requisite evidence of their authenticity and genuineness pursuant to Section 20, Rule 132 of the Rules of Court. Under Section 20, Rule 132 of the Rules of Court, the authenticity and due execution of a private document may be proved by anyone who saw the document executed or written. In her testimony, private complainant identified the acknowledgment receipts (four different lists of jewelry items), duly marked as Exhibits A, B, C, and D, which petitioner had signed in her presence as evidence that she (petitioner) obtained several pieces of jewelry from private complainant on December 5, 11, and 15, 1990.[25] Moreover, petitioner never denied the fact that she made four separate lists of the jewelry items she had taken from the private complainant and that, thereafter, she issued the checks in favor of the private respondent.[26] This Court notes, however, that under the third count, the information alleged that petitioner issued a check dated May 14, 1992 whereas the documentary evidence presented and duly marked as Exhibit I was BPI Check No. 831258 in the amount of P25,000 dated April 5, 1992. Prosecution witness Fernando Sardes confirmed petitioners issuance of the three BPI checks (Exhibits G, H, and I), but categorically stated that the third check (BPI Check No. 831258) was dated May 14, 1992[27], which was contrary to that testified to by private complainant Violeta Tizon, i.e., BPI check No. 831258 dated April 5, 1992.[28] In view of this variance, the

conviction of petitioner on the third count (Criminal Case No. Q-93-41751) cannot be sustained. It is on this ground that petitioners fourth assignment of error is tenable, in that the prosecutions exhibit, i.e., Exhibit I (BPI Check No. 831258 dated April 5, 1992 in the amount of P25,000) is excluded by the law and the rules on evidence. Since the identity of the check enters into the first essential element of the offense under Section 1 of B.P. 22, that is, that a person makes, draws or issues a check on account or for value, and the date thereof involves its second element, namely, that at the time of issuethe maker, drawer or issuer knew that he or she did not have sufficient funds to cover the same, there is a violation of petitioners constitutional right to be informed of the nature of the offense charged in view of the aforesaid variance, thereby rendering the conviction for the third count fatally defective. Fourth. Contrary to the second and sixth grounds advanced by petitioner, there is no violation of her right against double jeopardy. For the defense of double jeopardy to be available, the following requisites must be present: (1) there must be a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the complaint or information must be filed before a court of competent jurisdiction; (3) the accused has been arraigned and has pleaded to the charges; (4) the accused must have been convicted or acquitted or the case against him was dismissed or otherwise terminated without his express consent. When all the above elements concur, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, is barred.[29] Criminal Cases Nos. 38680-81 earlier filed against the petitioner in the Regional Trial Court of Caloocan City, Branch 126 (for estafa and violation of B.P. 22) are different from the present Criminal Cases Nos. Q-93-41749-51 (for three counts of violation of B.P. 22) filed in the Regional Trial Court of Quezon City, Branch 85. In the former, petitioner issued BPI Check No. 874716 (Exhibit E), dated December 13, 1990, in the amount of P12,980.00 which, when presented for payment on December 14, 1990 at Interbank (Caloocan Branch), was dishonored due to the reason account closed. On the other hand, the checks involved in the present case are BPI Checks Nos. 831256, 831257, and 831258, dated February 5, 1992, March 5, 1992, and April 5, 1992, respectively, each in the amount of P25,000. It must be emphasized that petitioner issued the three checks after her cases in the

Regional Trial Court of Caloocan City, Branch 126, were dismissed. Petitioner admitted that she issued the three checks upon the advise of her lawyer in consideration for the dismissal of the cases in the Regional Trial Court of Caloocan City. [30] Perforce, the three counts of violation of B.P. 22 in the Regional Trial Court of Quezon City, are not included, nor do said counts necessarily include, the offenses for estafa and violation of B.P. 22 earlier charged against the accused in the Regional Trial Court of Caloocan City. Fifth. Petitioner challenges the jurisdiction of the Regional Trial Court of Quezon City, Branch 85, on the ground that pursuant to Section 32 (2) of Batas Pambansa Blg. 129,[31]as amended by Republic Act No. 7691,[32] the criminal jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts has been increased to cover offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of the fine. This supposition is erroneous. In this Courts Administrative Circular No. 09-94, dated June 14, 1994, the guidelines state that as a consequence of the amendment, the Regional Trial Courts no longer have original jurisdiction over offenses where the offense is punishable by imprisonment not exceeding six (6) years irrespective of the amount of the fine. When the Regional Trial Court of Quezon City, Branch 85, acquired jurisdiction over the case, hearings were conducted on May 4, 1993, June 9, 1993, August 4, 1993, and August 24, 1993. The effectivity of R.A. No. 7691 on April 15, 1994 did not divest the Regional Trial Court of Quezon City, Branch 85, of its jurisdiction over Criminal Cases Nos. Q-93-41749-51. It has been ruled that where a court or tribunal has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to hear the case until its final determination is not affected by new legislation vesting such jurisdiction in another tribunal, the exception being where the statute expressly so provides or is clearly intended to apply to actions pending before its enactment,[33] a situation that does not obtain in this case. WHEREFORE, the Decision and Resolution of the Court of Appeals are AFFIRMED with MODIFICATION, in that the conviction of petitioner Angelina Zabala Alonto under the third count of violation of Batas Pambansa Bilang 22, in Criminal Case No. Q-93-41751 in the Regional Trial Court of Quezon City, Branch 85, is REVERSED and SET ASIDE and she is ACQUITTED of the offense charged thereunder. No costs. SO ORDERED.

RAMIREZ V CA 7NOV G.R. No. 93833 | September 28, 1995 | J. Katipunan Facts: A civil case damages was filed by petitioner Socorro Ramirez in the Quezon City RTC alleging that the private respondent, Ester Garcia, in a confrontation in the latters office, allegedly vexed, insulted and humiliated her in a hostile and furious mood and in a manner offensive to petitioners dignity and personality, contrary to morals, good customs and public policy. In support of her claim, petitioner produced a verbatim transcript of the event and sought damages. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. As a result of petitioners recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Pasay RTC for violation of Republic Act 4200, entitled An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes. Petitioner filed a Motion to Quash the Information, which the RTC later on granted, on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. The CA declared the RTCs decision null and void and denied the petitioners MR, hence the instant petition.

Issue: W/N the Anti-Wiretapping Act applies in recordings by one of the parties in the conversation

Held:

Yes. Section 1 of R.A. 4200 entitled, An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes, provides: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkietalkie or tape recorder, or however otherwise described. The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statutes intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier any. Consequently, as respondent Court of Appeals correctly concluded, even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator under this provision of R.A. 4200. A perusal of the Senate Congressional Records, moreover, supports the respondent courts conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. The nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed.

Petitioners contention that the phrase private communication in Section 1 of R.A. 4200 does not include private conversations narrows the ordinary meaning of the word communication to a point of absurdity. The word communicate comes from the latin word communicare, meaning to share or to impart. In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, or signifies the process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures) These definitions are broad enough to include verbal or non-verbal, written or expressive communications of meanings or thoughts which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latters office. Any doubts about the legislative bodys meaning of the phrase private communication are, furthermore, put to rest by the fact that the terms conversation and communication were interchangeably used by Senator Taada in his Explanatory Note to the Bill.

AND Rumarate vs Hernandez

GMCR vs. Bell Telecommunication Philippines (BellTel) GR 126496, 30 April 1997; First Division, Hermosisima Jr. (J) Facts: On 19 October 1993, BellTel filed with the NTC an application for a certificate of public conveniencewith a further request for the issuance of a provisional authority (NTC Case 93-481). On 25 March 1994, RA7692 was enacted granting BellTel a legislative franchise to operate business of providing telecommunicationservices. In 12 July 1994, BellTel a legislative franchise to operate business of providing telecommunications e r v i c e s . O n 1 2 J u l y 1 9 9 4 , B e l l T e l f i l e d a s econd application for a certificate of public convenience,

proposing to install 2.6 million telephone lines in 10 years and to provide a 100% digital local exchangenetwork (NTC Case 94 -229). It also moved for the withdrawal of the first application, without prejudice,which was granted by the NTC. BellTels application (2nd) was opposed by various telecommunication companies. BellTels application was referred to the Common Carriers Authorization Department (CCAD),which found BellTels proposal technically feasible and BellTel to be financially capable. The two deputycommissioners of the NTC signified their approval of the CCAD recommendation. The working draft wasprepared by the legal department, was initialed by the two deputy commissioners, but was not signed by NTCCommissioner Simeon Kintanar. BellTel filed a motion to promulgate, after previously filing two urgent exparte motion to resolve application which were not acted upon by the NTC. On 4 July 1995, the NTC deniedthe motion in an order signed solely by Commissioner Kintanar. On 17 July 1995, BellTel filed a petition forcertiorari, mandamus and prohibition against NTC before the Supreme Court. The Court referred the case tothe Court of Appeals pursuant to Paragraph 1, Section 9 of BP 129. The Court of Appeals granted BellTelsposition. Hence, the petitions for review by the opposing telecommunication companies and CommissionerKintanar. Issue: Whether the vote of the Chairman of the Commission is sufficient to legally render an NTC order, resolution or decision. Held: Having been organized under Executive Order 146 as a three-man commission, the NTC is a collegialbody and was a collegial body even during the time it was acting as a one-man regime. NTC is a collegialbody requiring a majority vote out of three members of the commission in order to validly decide a case orany incident therein. The vote alone of the chairman of the Commission, absent the required concurring votecoming from the rest of the membership of the commission to at least arrive at a majority decision, is notsufficient to legally render an NTC order, resolution or decision. NTC Circulars 1-1-93, 3-1-93 and the Orderof Kintanar, declaring the NTC as a single entity or non-collegial entity, are contrary to law and thus are nulland void. CSC v. Dela Cruz Case Digest

CSC v. Dela Cruz G.R. No. 158737 August 31, 2004

Facts: Saturnino de la Cruz is an employee of the Air Transportation Office, DOTC, presently holding the position of Chief Aviation Safety Regulation Officer of the Aviation Safety Division. He was promotionally appointed to the said position on November 28, 1994, duly attested by the Civil Service Commission. But prior thereto, he was a Check Pilot II in the Air Transportation Office (ATO). In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security Division of the ATO formally filed with the DOTC her protest against the promotional appointment of respondent as Chief Aviation Safety Regulation Officer, claiming among others that respondent did not meet the four-year supervisory requirement for said position. On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a decision finding the protest without merit. Calamba appealed the decision of the DOTC Secretary to the CSC-NCR. On November 18, 1997, the CSC-NCR rendered its decision upholding the protest of Calamba and recalling the approval of respondents appointment as Chief Aviation Safety Regulation Officer. On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason to disturb earlier rulings on the matter. He also denied ATO Director Gilos request, for lack of merit. Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted Director Gilos request and affirmed the approval of respondents appointment as Chief Aviation Safety Regulation Officer. In a letter dated January 26, 1998, Calamba requested the CSC to implement the January 5, 1998 ruling of the CSC-NCR.When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo explained that the January 5, 1998 ruling is unofficial and inexistent.The CSC treated Calambas request as an appeal. On November 13, 1998, the CSC rendered its Resolution granting Calambas appeal recalling Dela Cruzs appointment. Acting on the request for reconsideration filed by Dela Cruz, the CSC denied it. Dela Cruz filed a petition for review with the Court of Appeals assailing the CSC Resolution. CA granted the petition by setting aside CSC Resolution Nos. 98-2970 and 99-1451 and approving respondents appointment as Chief of the Aviation Safety Regulation Office. CSC MR was denied.

Issue: Whether the CA erred in approving respondents appointment as Chief Aviation Safety Regulation Officer despite his failure to meet the minimum four-year managerial and supervisory qualification for the position

Held: No. Dela Cruz has sufficiently complied with the required experience standards. Respondent would indeed lack the required years of work experience to qualify for the contested position if the managerial standards in the first clause above were to be strictly followed. At the time of his permanent appointment on November 28, 1994 as Chief Aviation Safety Regulation Officer, respondent had a little over one year of managerial experience from his designation as Acting Chief of the Aviation Safety Division during the latter part of 1993. However, the work already rendered by respondent in the ATO at the time of his appointment was well within the supervisory standard in the second clause. Planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools were part of the work performed by respondent for more than 13 years prior to his ap It is elementary in the law of public officers that the power to appoint is in essence discretionary on the part of the proper authority. In Salles vs. Francisco, et al., we had occasion to rule that, in the appointment or promotion of employees, the appointing authority considers not only their civil service eligibilities but also their performance, education, work experience, trainings and seminars attended, agency examinations and seniority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority.

appointing authority the office primarily responsible for the administration of the office, he is also in the best position to determine who among the prospective appointees can efficiently discharge the functions of the position. Dela Cruz, was the uncontested choice of the appointing authority. Then DOTC Secretary Jesus B. Garcia dismissed the protest against respondents appointment. ATO Executive Director Gilo also noted respondents full compliance with the qualifications for the position. CSCNCR Director Acebedo, who previously recalled respondents appointment, later affirmed it after a re-evaluation of the case and declared his previous ruling unofficial and inexistent. There is no reason to disapprove the appointment of respondent as Chief of the Aviation Safety Regulation Office considering that he is fully qualified and evidently the choice of the appointing authority. Between the Commission and the appointing authority, we sustain the latter. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future and best interest of the service. Given the demands of a certain job, who can do it best should be left to the head of the office concerned provided the legal requirements for the office are satisfied.

The reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it. We need not rule on petitioners assertion that respondents subsequent compliance with the experience standards during the pendency of the case should not be counted in his favor since respondent was anyway qualified for the position at the time of his appointment.

In the appointment of division chiefs, as in this case, the power to appoint rests on the head of the department. Sufficient if not plenary discretion should be granted to those entrusted with the responsibility of administering the offices concerned. They are in a position to determine who can best fulfill the functions of the office vacated. Not only is the

VIRGILIO CAPATI, plaintiff-appellant, vs. DR. JESUS P. OCAMPO, defendant-appellee.

ESCOLIN, J.: We set aside the order of the Court of First Instance of Pampanga in Civil Case No. 3188 which dismissed the plaintiff's complaint on ground of improper venue. Plaintiff Virgilio Capati a resident of Bacolor, Pampanga, was the contractor of the Feati Bank for the construction of its building in Iriga, Camarines Sur. On May 23, 1967, plaintiff entered into a sub-contract with the defendant Dr. Jesus Ocampo, a resident of Naga City, whereby the latter, in consideration of the amount of P2,200.00, undertook to construct the vault walls, exterior walls and columns of the said Feati building in accordance with the specifications indicated therein. Defendant further bound himself to complete said construction on or before June 5, 1967 and, to emphasize this time frame for the completion of the construction job, defendant affixed his signature below the following stipulation written in bold letters in the sub-contract: "TIME IS ESSENTIAL, TO BE FINISHED 5 JUNE' 67." Claiming that defendant finished the construction in question only on June 20, 1967, plaintiff filed in the Court of First Instance of Pampanga an action for recovery of consequential damages in the sum of P85,000.00 with interest, plus attorney's fees and costs. The complaint alleged inter alia that "due to the long unjustified delay committed by defendant, in open violation of his express written agreement with plaintiff, the latter has suffered great irreparable loss and damage ... " Defendant filed a motion to dismiss the complaint on the ground that venue of action was improperly laid. The motion was premised on the stipulation printed at the back of the contract which reads: 14. That all actions arising out, or relating to this contract may be instituted in the Court of First Instance of the City of Naga. Plaintiff filed an opposition to the motion, claiming that their agreement to hold the venue in the Court of First Instance of Naga City was merely optional to both contracting parties. In support thereof, plaintiff cited the use of the word "may " in relation with the institution of any action arising out of the contract.

The lower court, in resolving the motion to dismiss, ruled that "there was no sense in providing the aforequoted stipulation, pursuant to Sec. 3 of Rule 4 of the Revised Rules of Court, if after all, the parties are given the discretion or option of filing the action in their respective residences," and thereby ordered the dismissal of the complaint. Hence, this appeal. The rule on venue of personal actions cognizable by the courts of first instance is found in Section 2 (b), Rule 4 of the Rules of Court, which provides that such "actions may be commenced and tried where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff." The said section is qualified by the following provisions of Section 3 of the same rule: By written agreement of the parties the venue of an action may be changed or transferred from one province to another. Defendant stands firm on his contention that because of the aforequoted covenant contained in par. 14 of the contract, he cannot be sued in any court except the Court of First Instance of Naga City. We are thus called upon to rule on the issue as to whether the stipulation of the parties on venue is restrictive in the sense that any litigation arising from the contract can be filed only in the court of Naga City, or merely permissive in that the parties may submit their disputes not only in Naga City but also in the court where the defendant or the plaintiff resides, at the election of the plaintiff, as provided for by Section 2 (b) Rule 4 of the Rules of Court. It is well settled that the word "may" is merely permissive and operates to confer discretion upon a party. Under ordinary circumstances, the term "may be" connotes possibility; it does not connote certainty. "May" is an auxillary verb indicating liberty, opportunity, permission or possibility. 1

In Nicolas vs. Reparations Commission 2, a case involving the interpretation of a stipulation as to venue along lines similar to the present one, it was held that the agreement of the parties which provided that "all legal actions arising out of this contract ... may be brought in and submitted to the jurisdiction of the proper courts in the City of Manila," is not mandatory. We hold that the stipulation as to venue in the contract in question is simply permissive. By the said stipulation, the parties did not agree to file their suits solely and exclusively with the Court of First Instance of Naga. They merely agreed to submit their disputes to the said court, without waiving their right to seek recourse in the court specifically indicated in Section 2 (b), Rule 4 of the Rules of Court. Since the complaint has been filed in the Court of First Instance of Pampanga, where the plaintiff resides, the venue of action is properly laid in accordance with Section 2 (b), Rule 4 of the Rules of Court. WHEREFORE, the order appealed from is hereby set aside. Let the records be returned to the court of origin for further proceedings. Costs against defendant-appellee. SO ORDERED.

petition was furnished the Office of the Solicitor General (Exhibits C, C1, C-2 and C-3). At the hearing of the petition on December 14, 1978, Atty. Rosauro Alvarez appeared for the petitioner and Fiscal Donato Sor. Suyat, Jr. represented the office of the Solicitor General, Upon motion of counsel for the petitioner, without objection on the part of Fiscal Suyat, the Deputy Clerk of Court was appointed commissioner to receive the evidence and to submit the same for resolution of the Court. From the testimonial and document evidence presented, it appears that petitioner Maria Estrella Veronica Primitiva Duterte was born on May 15, 1952 at the U.S.T. Hospital (Exhibit A). She was registered at the local Civil Registrar's Office as Maria Estrella Veronica Primitiva Duterte On June 15, 1952, she was baptized as Maria Estrella Veronica Primitiva Duterte at the St. Anthony de Padua Church Singalong, Manila (Exhibit B). Her parents are Filomeno Duterte and Estrella Veronica Primitiva Duterte has been taken cared of by Mr. and Mrs. Hector Alfon. Petitioner and her uncle, Hector Alfon, have been residing at 728 J.R. Yulo Street corner Ideal Street, Mandaluyong, Metro Manila for twenty-three (23) years. When petitioner started schooling, she used the name Estrella S. Alfon. She attended her first grade up to fourth year high school at Stella Maris College using the name Estrella S. Alfon (Exhibits E, E-1, E-2 and E-3). After graduating from high school she enrolled at the Arellano University and finished Bachelor of Science in Nursing (Exhibit E-4). Her scholastic records from elementary to college show that she was registered by the name of Estrella S. Alfon. Petitioner has exercised her right of suffrage under the same name (Exhibit D). She has not committed any felony or misdemeanor (Exhibits G, G-1, G2, G-3 and G-4). Petitioner has advanced the following reasons for filing the petition: 1. She has been using the name Estrella Alfon since her childhood; 2. She has been enrolled in the grade school and in college using the same name; 3. She has continuously used the name Estrella S. Alfon since her infancy and all her friends and acquaintances know her by this name; 4. She has exercised her right of suffrage under the same name. Section 5, Rule 103 of the Rules of Court provides: Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the

ESTRELLA S. ALFON,vs.REPUBLIC OF THE PHILIPPINES This is a petition filed pursuant to Republic Act No. 5440 to review an Order of the Court of First Instance of Rizal, Branch XXIII, dated December 29, 1978, which partially denied petitioner's prayer for a change of name. Only a question of law is involved and there is no controversy over the facts which are well-stated in the questioned Order as follows: t.hqw This is verified petition filed on April 28, 1978 by petitioner Maria Estrella Veronica Primitiva Duterte through her counsel, Atty. Rosauro Alvarez, praying that her name be changed from Maria Estrella Veronica Primitiva Duterte to Estrella S. Alfon. The notice setting the petition for hearing on December 14, 1978 at 8:30 o'clock in the morning was published in the Times Journal in its issues of July 28, August 5 and 11, 1978 and a copy thereof together with a copy of the

petition are true, the court shall if proper and reasonable cause appears for changing the name of the petitioner adjudge that such name be changed in accordance with the prayer of the petition. The evidence submitted shows that the change of name from Maria Estrella Veronica Primitiva Duterte to Estrella Alfon is not proper and reasonable with respect to the surname. The fact that petitioner has been using a different surname and has become known with such surname does not constitute proper and reasonable cause to legally authorize and change her surname to Alfon. The birth certificate clearly shows that the father of petitioner is Filomeno Duterte. Petitioner likewise admitted this fact in her testimony. To allow petitioner to change her surname from Duterte to Alfon is equivalent to allowing her to use her mother's surname. Article 364 of the Civil Code provides: Legitimate and legitimated children shall principally use the surname of the father. If another purpose of the petitioner is to carry the surname of Alfon because her uncle who reared her since childhood has the surname "Alfon" then the remedy is not a petition for change of name. WHEREFORE, the petition insofar as the first name is granted but denied with respect to the surname. Petitioner is authorized to change her name from Maria Estrella Veronica Primitiva Duterte to Estrella Alfon Duterte. Let copy of this order be furnished the Local Civil Registrar of Pasig, Metro Manila pursuant to Section 3, Rule 103 of the Rules of Court. The lower court should have fully granted the petition. The only reason why the lower court denied the petitioner's prayer to change her surname is that as legitimate child of Filomeno Duterte and Estrella Alfon she should principally use the surname of her father invoking Art. 364 of the Civil Code. But the word "principally" as used in the codal provision is not equivalent to "exclusively" so that there is no legal obstacle if a legitimate or legitimated child should choose to use the surname of its mother to which it is equally entitled. Moreover, this Court in Haw Liong vs. Republic, G.R. No. L-21194. April 29, 1966, 16 SCRA 677, 679, said: t.hqw The following may be considered, among others, as proper or reasonable causes that may warrant the grant of a petitioner for change of name; (1) when the name is ridiculous, tainted with dishonor, or is extremely difficult to write or pronounce; (2) when the request for change is a consequence of a change of' status, such as when a natural child is acknowledged or

legitimated; and (3) when the change is necessary to avoid confusion Tolentino, Civil Code of the Philippines, 1953 ed., Vol. 1, p. 660). In the case at bar, it has been shown that petitioner has, since childhood, borne the name Estrella S. Alfon although her birth records and baptismal certificate show otherwise; she was enrolled in the schools from the grades up to college under the name Estrella S. Alfon; all her friends call her by this name; she finished her course in Nursing in college and was graduated and given a diploma under this name; and she exercised the right of suffrage likewise under this name. There is therefore ample justification to grant fully her petition which is not whimsical but on the contrary is based on a solid and reasonable ground, i.e. to avoid confusion. WHEREFORE, the Order appealed from is hereby modified in that, the petitioner is allowed to change not only her first name but also her surname so as to be known as ESTRELLA S. ALFON. No costs. SO ORDERED.

National Housing Corp. v. Juco, 134 SCRA 172 (1985) F: Juco was an employee of the NHA. He filed a complaint for illegal dismissal w/ MOLE but his case was dismissed by the labor arbiter on the ground that the NHA is a govt-owned corp. and jurisdiction over its employees is vested in the CSC. On appeal, the NLRC reversed the decision and remanded the case to the labor arbiter for further proceedings. NHA in turn appealed to the SC ISSUE: Are employees of the National Housing Corporation, a GOCC without original charter, covered by the Labor Code or by laws and regulations governing the civil service? HELD: Sec. 11, Art XII-B of the Constitution specifically provides: "The Civil Service embraces every branch, agency, subdivision and instrumentality of the Government, including every government owned and controlled corporation. The inclusion of GOCC within the embrace of the civil service shows a deliberate effort at the framers to plug an earlier loophole which allowed GOCC to avoid the full consequences of the civil service system. All offices and firms of the government are covered.

This consti provision has been implemented by statute PD 807 is unequivocal that personnel of GOCC belong to the civil service and subject to civil service requirements. "Every" means each one of a group, without exception. This case refers to a GOCC. It does not cover cases involving private firms taken over by the government in foreclosure or similar proceedings. xxx For purposes of coverage in the Civil Service, employees of govt- owned or controlled corps. whether created by special law or formed as subsidiaries are covered by the Civil Service Law, not the Labor Code, and the fact that pvt. corps. owned or controlled by the govt may be created by special charter does not mean that such corps. not created by special law are not covered by the Civil Service. xxx The infirmity of the resp's position lies in its permitting the circumvention or emasculation of Sec. 1, Art. XII-B [now Art IX, B, Sec. 2 (1)] of the Consti. It would be possible for a regular ministry of govt to create a host of subsidiary corps. under the Corp. Code funded by a willing legislature. A govt-owned corp. could create several subsidiary corps. These subsidiary corps. would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Dec. and the regulations of the COA. Their incomes would not be subject to the competitive restraint in the open market nor to the terms and conditions of civil service employment. Conceivably, all govtowned or controlled corps. could be created, no longer by special charters, but through incorp. under the general law. The Constitutional amendment including such corps. in the embrace of the civil service would cease to have application. Certainly, such a situation cannot be allowed

The issue posed for resolution in this petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order is whether or not a charge of illegal possession of "lumber" is excluded from the crime of illegal possession of "timber" as defined in Sec. 68 of Presidential Decree No. 705 (The Forestry Reform Code of the Philippines), as amended, to warrant the quashal of an information charging the former offense or a "nonexistent crime." On July 23, 1991, an information for violation of Section 68 of P.D. No. 705, as amended by Executive Order No. 277, was filed by the City Prosecutor of Puerto Princesa City against petitioner Epifanio Lalican,[1] Ruben Benitez, Allan Pulgar and Jose Roblo before the Regional Trial Court of that city. Docketed as Criminal Case No. 9543, the information reads: "That on or about the 9th day of February, 1991, at Sitio Cadiz, Barangay Bacungan, City of Puerto Princesa, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without lawful authority or permit, conspiring and confederating together and mutually helping one another, did then and there willfully, unlawfully and feloniously have in their possession, custody and control 1,800 board feet of assorted species and dimensions of lumber on board two (2) passenger jeeps, with a value of Fourteen Thousand Pesos (14,000.00), Philippine Currency, to the damage and prejudice of the Government in the amount aforestated. CONTRARY TO LAW." At their arraignment on August 9, 1991, all the accused pleaded not guilty to the crime charged. On August 23, 1991, petitioner Lalican filed a motion to quash the information on the ground that the facts charged did not constitute an offense. Contending that Sec. 68 of P.D. No. 705 refers to "timber and other forest products" and not to "lumber," and asserting that "timber" becomes "lumber" only after it is sawed into beams, planks or boards, petitioner alleged that said decree "does not apply to 'lumber.'" He added that the law is "vague and standardless" as it does not specify the authority or the legal documents required by existing forest laws and regulations. Hence, petitioner asserted that the information should be quashed as it violated his constitutional rights to due process and equal protection of the law.[2]

EPIFANIO LALICAN, petitioner, vs. HON. FILOMENO A. VERGARA, Presiding Judge, RTC Branch 52, Puerto Princesa City and PEOPLE OF THE PHILIPPINES, respondents. DECISION ROMERO, J.:

The prosecution opposed the motion to quash on the ground that it is not for the courts to determine the wisdom of the law nor to set out the policy of the legislature which deemed it proper that the word "timber" should include "lumber" which is a "product or derivative after the timber is cut." The position of the prosecution was that to hold otherwise would result in the easy circumvention of the law, for one could stealthily cut timber from any forest, have it sawn into lumber and escape criminal prosecution. The prosecution asserted that the issue raised by petitioner was more semantical than a question of law.[3] On September 24, 1991, the lower court,[4] guided by the principles that penal laws should be construed strictly against the state and that all doubts should be resolved in favor of the accused, issued an Order quashing the information. It held that the distinction between "timber" and "lumber" is not artificial nor a matter of semantics as the law itself distinguishes the two terms. Sec. 3(q) of P.D. No. 705 classifies "timber" as a forest product while Sec. 3(aa) thereof considers "lumber" as a finished wood product. Adding that unlicensed cutting, gathering and/or collecting of "timber" is penalized under Sec. 68 while sale of "lumber" without compliance with grading rules established by the government is prohibited by Sec. 79, the lower court categorically stated that: "Logically, lumber, being a manufactured wood product, poses no more danger to forest lands by being cut, gathered, collected or removed. It is in fact, only bought and sold. Thus, Sec. 68 cannot be made to apply to lumber." The court, however, refrained from exploring the constitutional issues raised by petitioner upon a holding that the case could be resolved on some other grounds or issues.[5] The prosecution filed a motion for the reconsideration of this Order, pointing out that under the Primer on Illegal Logging of the Department of Energy and Natural Resources (DENR), timber is not just any piece of wood for it may consist of squared and manufactured timber or one which has been sawn to pieces to facilitate transportation or hauling. It stressed that to consider a person who had made lumber out of timber as not criminally liable is an absurd interpretation of the law. Moreover, the prosecution underscored the facts that when apprehended, the accused presented Private Land Timber Permit No.

030140 dated February 10, 1991 which had expired; that while the certificate of origin indicated Brgy. Sta. Cruz, the product actually came from Sitio Cadiz, and that the two jeeps bearing the product were not equipped with certificates of transport agreement. Added to this was the fact that, if the product were indeed lumber, then the accused could have presented a certificate of lumber origin, lumber sale invoices in case of sale, tally sheets and delivery receipts for transportation from one point to another.[6] Petitioner opposed the motion for reconsideration contending that the DENR primer's definition of "timber" is erroneous because the law itself distinguishes "timber" from "sawn lumber." The non-inclusion of "lumber" in Sec. 68 could only mean a clear legislative intent to exclude possession of "lumber" from the acts penalized under that section.[7] Pending resolution of the motion for reconsideration, the Presiding Judge of Branch 49 inhibited himself from taking cognizance of Criminal Case No. 9543. The case was subsequently assigned to Branch 52. On June 10, 1992, the lower court[8] issued the herein questioned Order setting aside the quashal Order of the previous judge. It declared that from the law itself, it is evident that what is sought to be penalized is not the possession, without the required legal documents, of timber only but also of "other forest products." It stated that even if lumber is not timber, still, lumber is a forest product and possession thereof without legal documents is equally prohibited by the law which includes "wood" in the definition of forest products. Petitioner sought the reconsideration of this Order but the lower court denied it. Hence, the instant petition arguing that the lower court gravely abused its discretion amounting to lack of jurisdiction in setting aside the quashal order and in denying his motion for reconsideration on the ground that Sec. 68 of P.D. No. 705 neither specifies nor includes "lumber" in the phrase "timber or other forest products." The petition is devoid of merit. Sec. 68 of P.D. No. 705, as amended by Executive Order No. 277 which was issued on July 25, 1987 by then President Corazon C. Aquino, provides: "SEC. 68. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License.- Any person who shall cut, gather, collect, remove timber or other forest products from any forest land, or timber

from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. The Court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed, as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found." (Underscoring supplied.) Punished then in this section are: (a) the cutting, gathering, collection, or removal of timber or other forest products from the places therein mentioned without any authority; or (b) possession of timber or other forest products without the legal documents as required under existing forest laws and regulations. In the recent case of Mustang Lumber, Inc. v. Court of Appeals,[9] this Court, thru Justice Hilario Davide, held: "The Revised Forestry Code contains no definition of either timber or lumber. While the former is included in forest products as defined in paragraph (q) of Section 3, the latter is found in paragraph (aa) of the same section in the definition of 'Processing plant,' which reads: (aa) Processing plant is any mechanical set-up, machine or combination of machine used for the processing of logs and other forest raw materials into lumber, veneer, plywood, wallboard, blockboard, paper board, pulp, paper or other finished wood product. This simply means that lumber is a processed log or processed forest raw material. Clearly, the Code uses the term lumber in its ordinary or common usage. In the 1993 copyright edition of Webster's Third New International Dictionary, lumber is defined, inter alia, as 'timber or logs after being prepared for the market.' Simply put, lumber is a processed log or timber.

It is settled that in the absence of legislative intent to the contrary, words and phrases used in a statute should be given their plain, ordinary, and common usage meaning. And insofar as possession of timberwithout the required legal documents is concerned, Section 68 of P.D. No. 705, as amended, makes no distinction between raw or processed timber. Neither should we. Ubi lex non distinguit nec nos distinguere debemus." Be that as it may, the legislative intent to include possession of lumber in Sec. 68 is clearly gleaned from the expressed reasons for enacting the law which, under Executive Order No. 277, are the following: "WHEREAS, there is an urgency to conserve the remaining forest resources of the country for the benefit and welfare of the present and future generations of Filipinos; WHEREAS, our forest resources may be effectively conserved and protected through the vigilant enforcement and implementation of our forestry laws, rules and regulations; WHEREAS, the implementation of our forestry laws suffers from technical difficulties, due to certain inadequacies in the penal provisions of the Revised Forestry Code of the Philippines; and WHEREAS, to overcome these difficulties, there is a need to penalize certain acts to make our forestry laws more responsive to present situations and realities; x x x" To exclude possession of "lumber" from the acts penalized in Sec. 68 would certainly emasculate the law itself. A law should not be so construed as to allow the doing of an act which is prohibited by law, nor so interpreted as to afford an opportunity to defeat compliance with its terms, create an inconsistency, or contravene the plain words of the law.[10] After all, the phrase "forest products" is broad enough to encompass lumber which, to reiterate, is manufactured timber. Hence, to mention lumber in Sec. 68 would merely result in tautology. As the lower court said: "Even should it be conceded that lumber is not timber and is thus not covered by the prohibition, still it cannot be denied that lumber is a forest product and possession thereof without legal documents is equally and, to

the same extent, prohibited. Sec. 3 (q) of PD 705 as amended or otherwise known as the Revised Forestry Code defines forest products, viz., x x x Stress must be given to the term WOOD embodied in the definition of forest product (supra). If we are to follow the rather tangential argument by the accused that lumber is not timber, then, it will be very easy for a person to circumvent the law. He could stealthily cut timber from any forest, have it sawn into lumber and escape criminal prosecution. It is rather too narrow an interpretation. But the law also provided a plug for the loophole. If lumber is not timber, then surely, lumber is wood. x x x. If in seeking to abate the proceedings the accused also seek to imply that lumber seized in their possession were procured from lawful source, all they have to do is produce the legal documents contemplated by the law. It is not the mere cutting or possession of timber, forest products or whatever that is prohibited and penalized by the law. What is prohibited and penalized is the act of cutting or possessing of timber, wood, or other forest products without lawful authority." The Court, therefore, finds that the lower court did not gravely abuse its discretion in denying the quashal of the information. The petition simply has no legal basis. Certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.[11] Grave abuse of discretion implies a capricious and whimsical exercise of power.[12] On the other hand, certiorari may not be availed of where it is not shown that the respondent court lacked or exceeded its jurisdiction or committed grave abuse of discretion.[13]Where the court has jurisdiction over the case, even if its findings are not correct, its questioned acts would at most constitute errors of law and not abuse of discretion correctible by certiorari.[14] As this Court said: "x x x. When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void

judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correctible through the original civil action of certiorari."[15] In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of procedure or mistakes in the judge's findings and conclusions.[16] The unavailability of the writ of certiorari, and even that of prohibition, in this case is borne out of the fact that what petitioner considers as grave abuse of discretion in this case is the denial of his motion to quash the information filed against him and three others. This Court has consistently defined the proper procedure in case of denial of a motion to quash. The accused has to enter a plea, go to trial without prejudice on his part to present the special defenses he had invoked in his motion and, if after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law.[17] Certiorari is not the proper remedy where a motion to quash an information is denied. That the appropriate recourse is to proceed to trial and in case of conviction, to appeal such conviction, as well as the denial of the motion to quash, is impelled by the fact that a denial of a motion to quash is an interlocutory procedural aspect which cannot be appealed nor can it be the subject of a petition for certiorari.[18] The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.[19] An interlocutory order may be assailed by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction or with grave abuse of discretion.[20] However, this Court generally frowns upon this remedial measure as regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject of review by certiorari would not only delay the administration of justice but also would unduly burden the courts.[21] Petitioner may not seek refuge under Flordelis v. Himalaloan[22] for his contention that a denial of a motion to quash may be the subject of a petition for certiorari. That case has an entirely different factual milieu from the one at bar. The information herein not being "patently defective" nor that the offense charged has prescribed,[23] this case may not be considered an exception to the rule on the proper remedy for the denial of a motion to quash.

With respect to the constitutionality of Sec. 68 of P.D. No. 705 which petitioner would have this Court consider,[24] this Court has always desisted from delving on constitutional issues. Thus, even if all the requisites for judicial review of a constitutional matter are present in a case,[25] this Court will not pass upon a constitutional question unless it is the lis mota of the case or if the case can be disposed of on some other grounds, such as the application of the statute or general law.[26] The Court can well take judicial notice of the deplorable problem of deforestation in this country, considering that the deleterious effects of this problem are now imperiling our lives and properties, more specifically, by causing rampaging floods in the lowlands. While it is true that the rights of an accused must be favored in the interpretation of penal provisions of law, it is equally true that when the general welfare and interest of the people are interwoven in the prosecution of a crime, the Court must arrive at a solution only after a fair and just balancing of interests. This the Court did in arriving at the foregoing interpretation of Sec. 68 of the Revised Forestry Reform Code. This task, however, has not at all been a difficult one considering that, contrary to petitioner's assertion, his rights to due process and equal protection of the law have not been clearly shown to have been jeopardized. WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED. The lower court is enjoined to proceed with dispatch in the prosecution of Criminal Case No. 9543. This Decision is immediately executory. Costs against petitioner. SO ORDERED.

institution. He finished this course in July 1951; but did not return to the Philippines until October 13, 1951. Petitioner contends, and the lower court held, that the word residence, as used in the aforesaid provision of the Naturalization Law, is synonymous with domicile, which, once acquired, is not lost by physical absence, until another domicile is obtained, and that, from 1946 to 1951, he continued to be domiciled in, and hence a resident of the Philippines, his purpose in staying in the United States, at that time, being, merely to study therein. Issue: Whether or not the application for naturalization may be granted, notwithstanding the fact that petitioner left the Philippines immediately after the filing of his petition and did not return until several months after the first date set for the hearing thereof. Held: While, generally speaking, domicile and residence mean one and the same thing, residence combined with intention to remain, constitutes domicile while an established abode, fixed permanently for a time for business or other purposes, constitutes a residence, though there may be an intent, existing all the while, to return to the true domicile. Where the petitioner left the Philippines immediately after the filing of his petition for naturalization and did not return until several months after the first date set for the hearing thereof, notwithstanding his explicit promise, under oath, that he would reside continuously in the Philippines from the date of the filing of his petition up to the time of his admission to Philippine citizenship, he has not complied with the requirements of section 7 of Commonwealth Act No. 473, and, consequently, not entitled to a judgment in his favor. MANILA LODGE 176 vs CA

UYTENGSU vs. REPUBLIC 95 P.R. 890 Facts: Petitioner-appellee was born, of Chinese parents, in Dumaguete, Negros Oriental on October 6, 1927, where he also finished his primary and ACTS: secondary education. He went to the United States, where, from 1947 to The Philippine Commission enacted Act No. 1306 which authorized the City of Manila to reclaim a portion of Manila Bay. The reclaimed area was to form 1950, he was enrolled in the Leland Stanford Junior University, in California. part of theLuneta extension. The act provided that the reclaimed area shall In April of the same year he returned to the Philippines for four (4) months be the property of the City of Manila, and the city is authorized to set aside vacation. Then, to be exact, on July 15, 1950, his present application for a tract of the reclaimed land for a hotel site and to lease or to sell the same. naturalization was filed. Forthwith, he returned to the United States and Later, the City of Manila conveyed a portion of the reclaimed area to took a postgraduate course, in chemical engineering, in another educational

Petitioner. Then Petitioner sold the land, together with all the improvements, to the Tarlac Development Corporation (TDC). W/N the subject property was patrimonial property of the City of Manila. HELD: The petitions were denied for lack of merit. The court found it necessary to analyze all the provisions of Act No. 1360, as amended, in order to unravel the legislative intent. The grant made by Act No. 1360 of the reclaimed land to the City of Manila is a grant of a public nature. Such grants have always been strictly construed against the grantee because it is a gratuitous donation of public money or resources, which resulted in an unfair advantage to the grantee. In the case at bar, the area reclaimed would be filled at the expense of the Insular Government and without cost to the City of Manila. Hence, the letter of the statute should be narrowed to exclude matters which, if included, would defeat the policy of legislation.

This is a petition for review of the order dated September 24, 1986 and the resolution dated October 9, 1986 of the Regional Trial Court of Lucena City, Branch LVI. The petitioner is the accused in Crim. Case No. 86-126, filed before the respondent trial court. The information filed by the Provincial Fiscal reads as follows: The undersigned accuses Juanita Amandy alias Dianak (on bail) of the violation of Section 8 of Republic Act No. 6425, otherwise known as 'The Dangerous Drugs Act of 1972, "committed as follows: That on or about the 3rd day of April 1983, at Barangay Burgos, Municipality of Padre Burgos, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there willfully, unlawfully and feloniously have in his possession one point six grams (1.6) dried leaves of Indian Hemp or marijuana, a prohibited drug, and sixty (60) pieces of cigarette wrappers. CONTRARY TO LAW. (p. 17, Rollo) Petitioner Amandy initially entered a plea of not guilty but subsequently withdrew his former plea and substituted it with a plea of guilty, subject, however, to the reservation of proving the mitigating circumstance of drunkenness which was not habitual, in addition to the attenuating circumstance of his voluntary plea of guilty. Respondent lower court found him guilty of the crime charged and issued a decision on June 17,1986 with the following dispositive portion: WHEREFORE, on his voluntary plea of guilty, the Court finds accused Juanito Amandy alias "Dianak" guilty of the crime of Violation of Section 8 of Republic Act No. 6425 otherwise known as 'The Dangerous Drug Act of 1972' and, appreciating in his favor the mitigating circumstances of his voluntary plea of guilty, too (sic), drunkenness which was

DALDAL vs PERDICE 101 phil 756

JUANITO S. AMANDY, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, AND THE HONORABLE REGIONAL TRIAL COURT, FOURTH JUDICIAL REGION, BRANCH LVI, LUCENA CITY, respondents. Emmanuel V Hilario for petitioner. The Solicitor General for respondents.

GUTIERREZ, JR., J.:

not habitual, hereby sentences him to a penal servitude of SIX (6) YEARS and ONE (1) DAY and to pay a fine of SIX THOUSAND PESOS (P6,000.00), with the accessories of the law and to pay the costs. With credit on his preventive imprisonment, if and when proper under the provisions of Republic Act No. 6127. SO ORDERED. (pp. 19-20, Rollo) The petitioner filed an application for probation with a petition for release on recognizance, alleging that he is entitled to the suspended sentence under P.D. 968. The petition, was however, denied by the respondent lower court for the reason that P.D. 1990 removed from the purview of the exceptions to the probation law those 'sentenced to serve a maximum of imprisonment of more than 6 years.' On October 8,1986, the petitioner filed a motion for reconsideration but the lower court denied the motion in a resolution dated October 9, 1986 on the ground that it is the intention of the law to extend the beneficial effects of the Probation Law only to correctional penalties which have six (6) years as their ceiling and that penalties afflictive in scope and nature have to be excluded. Hence, this petition for review. The petitioner, through his counsel, now assigns the following errors: RESPONDENT LOWER COURT ERRED IN DENYING THE APPLICATION FOR PROBATION DATED 26 JUNE 1986 AND THE MOTION FOR RECONSIDERATION DATED 8 OCTOBER 1986 FILED BY THE PETITIONER, BY RELYING SOLELY ON THE PROVISION OF SECTION 2, PARAGRAPH (a) OF PRESIDENTLAL DECREE NO. 1990; RESPONDENT LOWER COURT ERRED IN NOT EXTENDING THE BENEFITS OF THE PROBATION LAW TO HEREIN PETITIONER, WHO ADMITTEDLY, IS A GOOD SUBJECT FOR PROBATION AND CAN STILL BE REFORMED AND REHABILITATED, BY TOTALLY DISREGARDING THE FACT THAT BATAS PAMBANSA BLG. 76 IS NOT EXPRESSLY

REPEALED BY PRESIDENTIAL DECREE NO. 1990; (pp. 6-7, Rollo) The only issue to be determined in this case is whether or not the respondent lower court committed reversible error in disallowing the petitioner's application for probation notwithstanding the favorable recommendation of the Probation Officer. The petitioner's counsel claims that his client is a good subject for probation and can still be reformed and rehabilitated as shown by the recommendation of the Probation Officer. Despite this, however, petitioner was denied the benefits of the Probation Law. To base the grant of probation on this contention alone would be erroneous because the law clearly declares who are entitled to probation and who are not. Moreover, the grant or denial of the application for probation does not rest solely on the offender's potentiality to reform but also on the observance of demands of justice and public interest (Tolentino v. Alconcel, 121 SCRA 92). These are expressed in statutes enacted by the lawmaker. The arguments of the petitioner are more properly directed to a trial court's exercise of discretion in granting or denying probation to applicants who fall within the coverage of the law, and not to a court which refuses to apply the benefits of a law to persons excluded by that same law. The trial court has merely complied with the express provision of an amendatory law. The original Probation Law of 1976, Presidential Decree No. 968 provided in its Section 9 that "(t)he benefits of this Decree shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six years. ..." In 1980, Batas Pambansa Blg. 76 amended Section 9 of P.D. 968 by stating that the benefits of the Decreee shall not be extended to those "sentenced to serve a maximum term of imprisonment of more than six years and one day." Subsequently, in 1985 then President Marcos promulgated Presidential Decree No. 1990 which amended BP 76 and returned to the earlier

formulation in P.D. No. 968. The latest decree on the matter excludes from the benefits of the Probation Law any applicant who has been "sentenced to serve a maximum term of imprisonment of more than six years." It is apparent from the history of the provision in question that a disagreement on policy matters existed between the then President and the then legislature. In the two Presidential Decrees, the President was for denying probation to any one sentenced to imprisonment of more than six years. The Batasan, on the other hand, was for amending the applicable term of imprisonment to more than six years and one day. Since under the unusual situation then existing, both the Batasang Pambansa and the President could legislate on the same subject at the same time, the later issuance has to prevail. This is P.D. 1990. The petitioner does not attack the validity of P.D. 1990. He limits himself to stating that P.D. 1990 did not intend to nillify B.P. 76. He states that the intent and purpose of P.D. 1990 is to deny applications for probation filed by those who still appeal the judgment of conviction, only to pursue the same when their appeal is eventually dismissed. It is, according to him, not intended to deny probation benefits to those sentenced to 6 years and 1 day by a trial court. To sustain the petitioner's construction of P.D. 1990, Sec. 2 is to deny the very purpose of the amendatory decree. The removal of one day from the original six years and one day, is to benefit only those offenders convicted of less grave felonies as defined in Art. 9 of the Revised Penal Code. The questioned section on P.D. 1990 would not have struck out one day in unequivocal terms if the intention was not to exclude those convicted of the next higher felonies from its coverage. The contention, therefore, of the petitioner that B.P. 76 and P.D. 1990 operate on different subjects, the latter allegedly referring to persons who appeal the judgment of conviction being disqualified from availing of the benefits of probation while B.P. 76 specifically dealing with the extension of benefits of probation to those sentenced to a maximum penalty of 6 years and 1 day, is devoid of merit. According to the petitioner, B.P. 76 and P.D. 1990 must be harmonized to ascertain the legislative intent. There can be no harmonization where one law specifically amends another. Where the provision of law is clear and unambiguous, so that there is no occasion for the court's seeking legislative intent, the law must be taken as it is, devoid of judicial addition or

subtraction (Insular Lumber Co. v. Court of Tax Appeals, et al., 192 Phil. 223). As stated by the Solicitor General, P.D. 1990 realizes the need to correct B.P. 76 which extended to offenders penalized to suffer the penalty of 6 years and 1 day, the benefits of the Probation Law. Thus, it amended B.P. 76 by reverting to P.D. 968 such that only those sentenced to suffer correctional penalties shall be entitled to suspended sentences through probation. To sustain the petitioner's construction of Sec. 2, P.D. 1990 would defeat the very purpose of the amendment. The policy consideration in disqualifying offenders penalized with more than 6 years imprisonment is the seriousness of the crime committed as would bring it outside the beneficent objective of the law. Denial of the probation application in this particular case is further justified by the gravity of the drug menace and by the increase of the penalty for violation of the Dangerous Drugs Act which bring it outside the range of probationable offenses. Again, the punishment of drug pushers and drug users is a matter of legislative policy. Judicial deference to this legislative policy is expressed in Tolentino v. Alconcel (121 SCRA 92)where we stated: Proliferation of prohibited drugs in the country has remained a serious threat to the well-being of the people. It has necessitated an all-out intensified campaign on the part of the law-enforcers against users as well as pushers thereof. If only to emphasize the gravity of the drug menace, the Batasan Pambansa has seen fit to increase the penalty for violation of Section 8, Article II of Rep. Act 6425. Thus, while under pp. Act 6425, as amended by P.D. 44, possession or use of marijuana was punishable by imprisonment of 6 months and 1 day to 2 years and 4 months and a fine ranging from P600.00 to P6,000.00 the penalty imposed upon petitioner herein-possession and use thereof is now punishable by imprisonment ranging from 6 years and 1 day to 12 years and fine ranging from P6,000.00 to P12,000.00 under B.P. Blg. 179. The other argument of thet the omission "one day" from P.D. 1990 is the result of a misprint or inadvertence in the careless preparation of

Presidential Decrees cannot be given serious consideration. P.D. 1990 merely went back to the P.D. 968 wording. The supposed misprint is at the exact dividing line between correctional penalties and afflictive penalties. It cannot be anything but deliberate. It may also be stated that even if a convicted person falls within the classes of those qualified for probation, the grant of probation is not automatic of ministerial. Probation is a privilege and its grant rests upon the discretion of the court (Baclayon v. Mutia, 129 SCRA 149). The discretion is exercised primarily for the benefit of society as a whole and only secondarily for the personal advantage of the accused. The Probation Law has been with us for more than a decade now and, perhaps, it is time for Congress to evaluate the advantages and disadvantages of this innovative and far-reaching program. Until Congress changes the law, however, we can only apply it as enacted. WHEREFORE, the petition is hereby DISMISSED for lack of merit. The questioned orders of the respondent court are AFFIRMED.