Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-63915 April 24, 1985 LORENZO M.

TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents. ESCOLIN, J.: Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1 1973 Philippine Constitution, as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders. Specifically, the publication of the following presidential issuances is sought: a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847. b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278. c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 16941695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 18351836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 21472161, 2163-2244. e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857. f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123. g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439. The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the 2 presidential issuances in question said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote: SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course. 3 The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases

where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431]. Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said: We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character. The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case. Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code: Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ... The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of 4 decisions, this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect. Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows: Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ... The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative records no such publicity accompanies the lawmaking process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las 5 mismas por el Gobierno en uso de su potestad.

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on 6 the assumption that they have been circularized to all concerned. It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and 7 specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC : In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this 8 Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank to wit: The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. 9 Consistently with the above principle, this Court in Rutter vs. Esteban sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court. Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified." From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 10 to 1939, inclusive, have not been so published. Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of 11 these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 108461 October 21, 1996

PHILIPPINE INTERNATIONAL TRADING CORPORATION, petitioner, vs. HON. PRESIDING JUDGE ZOSIMO Z. ANGELES, BRANCH 58, RTC, MAKATI; REMINGTON INDUSTRIAL SALES CORPORATION; AND FIRESTONE CERAMIC, INC., respondents. TORRES, JR., J.:p The PHILIPPINE INTERNATIONAL TRADING CORPORATION (PITC, for brevity) filed this Petition for Review on Certiorari, seeking the reversal of the Decision dated January 4, 1993 of public respondent Hon. Zosimo Z. Angeles, Presiding Judge of the Regional Trial Court of Makati, Branch 58, in Civil Case No. 92-158 entitled Remington Industrial Sales Corporation, et. al. vs. Philippine Industrial Trading Corporation. The said decision upheld the Petition for Prohibition and Mandamus of REMINGTON INDUSTRIAL SALES CORPORATION (Remington, for brevity) and FIRESTONE CERAMICS, INC. (Firestone, for brevity), and, in the process, declared as null and void and unconstitutional, PITC's Administrative Order No. SOCPEC 89-08-01 and its appurtenant regulations. The dispositive portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of Petitioner and Intervenor and against the Respondent, as follows: 1) Enjoining the further implementation by the respondent of the following issuances relative to the applications for importation of products from the People's Republic of China, to wit: a) Administrative Order No. SOCPEC 89-08-01 dated August 30, 1989 (Annex A, Amended Petition); b) Prescribed Export Undertaking Form (Annex B, Id.); c) Prescribed Importer-Exporter Agreement Form for non-exporter-importer (Annex C, Id.); d) Memorandum dated April 16, 1990 relative to amendments of Administrative Order No. SOCPEC 8908-01 (Annex D, Id.); e) Memorandum dated May 6, 1991 relative to Revised Schedule of Fees for the processing of import applications (Annexes E, E-1., Ind.); f) Rules and Regulations relative to liquidation of unfulfilled Undertakings and expired export credits (Annex Z, Supplemental Petition), the foregoing being all null and void and unconstitutional; and, 2) Commanding respondent to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without the requirements prescribed in the above-mentioned issuances. IT IS SO ORDERED. 1 The controversy springs from the issuance by the PITC of Administrative Order No. SOCPEC 89-08-01, under which, applications to the PITC for importation from the People's Republic of China (PROC, for brevity) must be accompanied by a viable and confirmed Export Program of Philippine Products to PROC carried out by the improper himself or through a tie-up with a legitimate importer in an amount equivalent to the value of the importation from PROC being applied for, or, simply, at one is to one ratio. Pertinent provisions of the questioned administrative order read: 3. COUNTERPART EXPORTS TO PROC In addition to existing requirements for the processing of import application for goods and commodities originating from PROC, it is declared that: 3.1 All applications covered by these rules must be accompanied by a viable and confirmed EXPORT PROGRAM of Philippine products to PROC in an amount equivalent to the value of the importation from PROC being applied for. Such export program must be carried out and completed within six (6) months from date of approval of the Import Application by PITC. PITC shall reject/deny any application for importation from PROC without the accompanying export program mentioned above. 3.2 The EXPORT PROGRAM may be carried out by any of the following: a. By the IMPORTER himself if he has the capabilities and facilities to carry out the export of Philippine products to PROC in his own name; or b. Through a tie-up between the IMPORTER and a legitimate exporter (of Philippine products) who is willing to carry out the export commitments of the IMPORTER under these rules. The tie-up shall not make the IMPORTER the exporter of the goods but shall merely ensure that the importation sought to be approved is matched one-to-one (1:1) 2 in value with a corresponding export of Philippine products to PROC. 3.3 EXPORT PROGRAM DOCUMENTS which are to be submitted by the improper together with his Import Application are as follows: a) Firm Contract, Sales Invoice or Letter of Credit. b) Export Performance Guarantee (See Article 4 hereof).

c) IMPORTER-EXPORTER AGREEMENT for non-exporter IMPORTER (PITC Form No. M-1006). This form should be used if IMPORTER has tie-up with an exporter for the export of Philippine Products to PROC. 4. EXPORT GUARANTEE To ensure that the export commitments of the IMPORTER are carried out in accordance with these rules, all IMPORTERS concerned are required to submit an EXPORT PERFORMANCE GUARANTEE (the "Guarantee") at the time of filing of the Import Application. The amount of the guarantee shall be as follows: For essential commodities: 15% of the value of the imports applied for. For other commodities: 50% of the value of the imports applied for. 4.1 The guarantee may be in the form of (i) a non-interest bearing cash deposit; (ii) Bank hold-out in favor of PITC (PITC Form No. M-1007) or (iii) a Domestic Letter of Credit (with all bank opening charges for account of Importer) opened in favor of PITC as beneficiary. 4.2 The guarantee shall be made in favor of PITC and will be automatically forfeited in favor of PITC, fully or partially, if the required export program is not completed by the importer within six (6) months from date of approval of the Import Application. 4.3 Within the six (6) months period above stated, the IMPORTER is entitled to a (i) refund of the cash deposited without interest; (ii) cancellation of the Bank holdout or (iii) Cancellation of the Domestic Letter of Credit upon showing that he has completed the export commitment pertaining to his importation and provided further that the following documents are submitted to PITC: a) Final Sales Invoice b) Bill of lading or Airway bill c) Bank Certificate of Inward Remittance d) PITC EXPORT APPLICATION FOR NO. M-1005 5. MISCELLANEOUS 5.1 All other requirements for importations of goods and commodities from PROC must be complied with in addition to the above. 5.2 PITC shall have the right to disapprove any and all import applications not in accordance with the rules and regulations herein prescribed. 5.3 Should the IMPORTER or any of his duly authorized representatives make any false statements or fraudulent misrepresentations in the Import/Export Application, or falsify, forge or simulate any document required under these rules and regulations, PITC is authorized to reject all pending and future import/export applications of said IMPORTER and/or disqualify said IMPORTER from doing any business with SOCPEC through PITC. Desiring to make importations from PROC, private respondents Remington and Firestone, both domestic corporations, organized and existing under Philippine laws, individually applied for authority to import from PROC with the petitioner. They were granted such authority after satisfying the requirements for importers, and after they executed respective undertakings to balance their importations from PROC with corresponding export of Philippine products to PROC. Private respondent Remington was allowed to import tools, machineries and other similar goods. Firestone, on the other hand, imported Calcine Vauxite, which it used for the manufacture of fire bricks, one of its products. Subsequently, for failing to comply with their undertakings to submit export credits equivalent to the value of their importations, further import applications were withheld by petitioner PITC from private respondents, such that the 3 latter were both barred from importing goods from PROC. Consequently, Remington filed a Petition for Prohibition and Mandamus, with prayer for issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction on January 20, 1992, against PITC in the RTC Makati 4 Branch 58. The court issued a Temporary Restraining Order on January 21, 1992, ordering PITC to cease from 5 exercising any power to process applications of goods from PROC. Hearing on the application for writ of preliminary injunction ensued. 6 Private respondent Firstone was allowed to intervene in the petition on July 2, 1992, thus joining Remington in the latter's charges against PITC. It specifically asserts that the questioned Administrative Order is an undue restriction of trade, and hence, unconstitutional. Upon trial, it was agreed that the evidence adduced upon the hearing on the Preliminary Injunction was sufficient to completely adjudicate the case, thus, the parties deemed it proper that the entire case be submitted for decision upon the evidence so far presented. 7 The court rendered its Decision on January 4, 1992. The court ruled that PITC's authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. No. 1071, has already been repealed by EO No. 133, issued on February 27, 1987 by President Aquino. The court observed: Given such obliteration and/or withdrawal of what used to be PITC's regulatory authority under the Special provisions embodied in LOI 444 from the enumeration of power that it could exercise effective

February 27, 1987 in virtue of Section 16 (d), EO No. 133, it may now be successfully argued that the PITC can no longer exercise such specific regulatory power in question conformably with the legal precept "expresio unius est exclusio alterius." Moreover, the court continued, none of the Trade protocols of 1989, 1990 or 1991, has empowered the PITC, expressly or impliedly to formulate or promulgate the assailed Administrative Order. This fact, makes the continued exercise by PITC of the regulatory powers in question unworthy of judicial approval. Otherwise, it would be sanctioning an undue exercise of legislative power vested solely in the Congress of the Philippines by Section, 1, Article VII of the 1987 Philippine Constitution. The lower court stated that the subject Administrative Order and other similar issuances by PITC suffer from serious constitutional infirmity, having been promulgated in pursuance of an international agreement (the Memorandum of Agreement between the Philippines and PROC), which has not been concurred in by at least 2/3 of all the members of the Philippine Senate as required by Article VII, Section 21, of the 1987 Constitution, and therefore, null and void. Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Furthermore, the subject Administrative Order was issued in restraint of trade, in violation of Sections 1 and 19, Article XII of the 1987 Constitution, which reads: Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and, an expanding productivity as the key to raising the equality of life for all, especially the underprivileged. Sec. 19. The State shall regulate or prohibit monopolies when the public interest so requires. No combination in restraint of trade or unfair competition shall be allowed. Lastly, the court declared the Administrative Order to be null and void, since the same was not published, contrary to Article 2 of the New Civil Code which provides, that: Art. 2. Laws shall take effect fifteen (15) days following the completion of their publication in the Official Gazette, unless the law otherwise provides. . . . 8 Petitioner now comes to use on a Petition for Review on Certiorari, questioning the court's decision particularly on the propriety of the lower court's declarations on the validity of Administrative Order No. 89-08-01. The Court directed the respondents to file their respective Comments. Subsequent events transpired, however, which affect to some extent, the submissions of the parties to the present petition. Following President Fidel V. Ramos' trip to Beijing, People's Republic of China (PROC), from April 25 to 30, 1993, a new trade agreement was entered into between the Philippines and PROC, encouraging liberalization of trade between the two countries. In line therewith, on April 20, 1993, the President, through Chief Presidential Legal Counsel Antonio T. Carpio, directed the Department of Trade and Industry and the PITC to cease implementing Administrative Order No. SOCPEC 89-08-01, as amended by PITC Board Resolution Nos. 92-01-05 and 92-039 08. In the implementation of such order, PITC President Jose Luis U. Yulo, Jr. issued a corporate 10 Memorandum instructing that all import applications for the PROC filed with the PITC as of April 20, 1993 shall no longer be covered by the trade balancing program outlined in the Administrative Order. Forthwith, the PITC allowed the private respondents to import anew from the PROC, without being required to comply anymore with the lifted requirement of balancing its imports with exports of Philippine products to 11 12 PROC. In its Constancia filed with the Court on November 22, 1993, Remington expressed its desire to have the present action declared moot and academic considering the new supervening developments. For its part, 13 respondent Firestone made a Manifestation in lieu of its Memorandum, informing the court of the aforesaid developments of the new trade program of the Philippines with China, and prayed for the court's early resolution of the action. To support its submission that the present action is now moot and academic, respondent Remington cites 14 Executive Order No. 244, issued by President Ramos on May 12, 1995. The Executive Order states: WHEREAS, continued coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with the country's national interest, as coursing Republic of the Philippines-People's Republic China Trade through the Philippine International Trading Corporations as provided for under Letter of Instructions No. 444 is becoming an unnecessary barrier to trade; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order; The Committee on Scientific and Technical Cooperation with Socialist Countries to delete the People's Republic of China from the list of countries covered by Letter of Instructions No. 444. Done in the City of Manila, this 12th day of May in the year of Our Lord, Nineteen Hundred and NinetyFive. 15 PITC filed its own Manifestation on December 15, 1993, wherein it adopted the arguments raised in its Petition as its Memorandum. PITC disagrees with Remington on the latter's submission that the case has become moot

and academic as a result of the abrogation of Administrative Order SOCPEC No. 89-08-01, since respondent Remington had incurred obligations to the petitioner consisting of charges for the 0.5% Counter Export 16 Development Service provided by PITC to Remington, which obligations remain outstanding. The propriety of such charges must still be resolved, petitioner argues, thereby maintaining the issue of the validity of SOCPEC Order No. 89-08-01, before it was abrogated by Executive fiat. There is no question that from April 20, 1993, when trading balancing measures with PROC were lifted by the President, Administrative Order SOCPEC No. 89-08-01 no longer has force and effect, and respondents are thus entitled anew to apply for authority to import from the PROC, without the trade balancing requirements previously imposed on proposed importers. Indeed, it appears that since the lifting of the trade balancing measures, Remington had been allowed to import anew from PROC. There remains, however, the matter of the outstanding obligations of the respondent for the charges relating to the 0.5% Counter Export Development Service in favor of PITC, for the period when the questioned Administrative Order remained in effect. Is the obligation still subsisting, or are the respondents freed from it? To resolve this issue, we are tasked to consider the constitutionality of Administrative Order No. SOCPEC 89-0801, based on the arguments set up by the parties in their Petition and Comment. In so doing, we must inquire into the nature of the functions of the PITC, in the light of present realities. 1 The PITC is a government owned or controlled corporation created under P.D. No. 252 7 dated August 6, 1973. 18 P.D. No. 1071, issued on May 9, 1977 which revised the provisions of P.D. 252. The purposes and powers of 19 the said governmental entity were enumerated under Section 5 and 6 thereof. On August 9, 1976, the late President Ferdinand Marcos issued Letter of Instruction (LOI) No. 20 444, directing, inter alia, that trade (export or import of all commodities), whether direct or indirect, between the Philippines and any of the Socialist and other Centrally Planned Economy Countries (SOCPEC), including the People's Republic of China (PROC) shall be undertaken or coursed through the PITC. Under the LOI, PITC was mandated to: 1) participate in all official trade and economic discussions between the Philippines and SOCPEC; 2) adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under its instructions; and, 3) undertake the processing and approval of all applications for export to or import from the SOCPEC. Pertinent provisions of the Letter of Instruction are herein reproduced: LETTER OF INSTRUCTION 444 xxx xxx xxx II. CHANNELS OF TRADE 1. The trade, direct or indirect, between the Philippines and any of the Socialist and other centrallyplanned economy countries shall upon issuance hereof, be undertaken by or coursed through the Philippine International Trading Corporation. This shall apply to the export and import of all commodities of products including those specified for export or import by expressly authorized government agencies. xxx xxx xxx 4. The Philippine International Trading Corporation shall participate in all official trade and economic discussions between the Philippines and other centrally-planned economy countries. xxx xxx xxx V. SPECIAL PROVISIONS The Philippine International Trading Corporation shall adopt such measures and issue such rules and regulations as may be necessary for the effective discharge of its functions under these instructions .In this connection, the processing and approval of applications for export to or import from the Socialist and other centrally-planned economy countries shall, henceforth, be performed by the said Corporation. (Emphasis ours) After the EDSA Revolution, or more specifically on February 27, 1987, then President Corazon C. Aquino promulgated Executive Order (EO) No. 21 133 reorganizing the Department of Trade and Industry (DTI) empowering the said department to be the "primary coordinative, promotive, facilitative and regulatory arm of the government for the country's trade, industry 22 and investment activities" (Sec. 2, EO 133). The PITC was made one of DTI's line agencies. The Executive Order reads in part: EXECUTIVE ORDER NO. 133 xxx xxx xxx Sec. 16. Line Corporate Agencies and Government Entities. The following line corporate agencies and government entities defined in Section 9 (c) of this Executive Order that will perform their specific regulatory functions, particularly developmental responsibilities and specialized business activities in a manner consonant with the Department mandate, objectives, policies, plans and programs: xxx xxx xxx d) Philippine International Trading Corporation. This corporation, which shall be supervised by the Undersecretary for International Trade, shall only engage in both export and trading on new or nontraditional products and markets not normally pursued by the private business sector; provide a wide

range of export oriented auxiliary services to the private sector; arrange for or establish comprehensive system and physical facilities for handling the collection, processing, and distribution of cargoes and other commodities; monitor or coordinate risk insurance services for existing institutions; promote and organize, whenever warranted, production enterprises and industrial establishments and collaborate or associate in joint venture with any person, association, company or entity, whether domestic or foreign, in the fields of production, marketing, procurement, and other relate businesses; and provide technical advisory, investigatory, consultancy and management services with respect to any and all of the functions, activities, and operations of the corporation. Sometime in April, 1988, following the State visit of President Aquino to the PROC, the Philippines and PROC 23 entered into a Memorandum of Understanding (MOU) wherein the two countries agreed to make joint efforts within the next five years to expand bilateral trade to US $600 US $800 Million by 1992, and to strive for a steady progress towards achieving a balance between the value of their imports and exports during the period, agreeing for the purpose that upon the signing of the Memorandum, both sides shall undertake to establish the necessary steps and procedures to be adopted within the framework of the annual midyear review meeting under the Trade Protocol, in order to monitor and ensure the implementation of the MOU. Conformably with the MOU, the Philippines and PROC entered into a Trade Protocol for the years 1989, 1990 24 and 1991, under which was specified the commodities to be traded between them. The protocols affirmed their agreement to jointly endeavor between them. The protocols affirmed their agreement to jointly endeavor to achieve more or less a balance between the values of their imports and exports in their bilateral trade. It is allegedly in line with its powers under LOI 444 and in keeping with the MOU and Trade Protocols with PROC 25 that PITC issued its now assailed Administrative Order No. SOCPEC 89-08-01 on August 30, 1989 (amended in March, 1992). Undoubtedly, President Aquino, in issuing EO 133, is empowered to modify and amend the provisions of LOI 444, which was issued by then President Marcos, both issuances being executive directives. As observed by us in 26 Philippine Association of Services Exporters, Inc. vs. Torres, there is no need for legislative delegation of power to the President to revoke the Letter of Instruction by way of an Executive Order. This is notwithstanding the fact that the subject LOI 1190 was issued by President Marcos, when he was extraordinarily empowered to exercise legislative powers, whereas EO 450 was issued by Pres. Aquino when her transitional legislative powers have already ceased, since it was found that LOI 1190 was a mere administrative directive, hence, may be repealed, altered, or modified by EO 450. We do not agree, however, with the trial court's ruling PITC's authority to issue rules and regulations pursuant to the Special Provision of LOI 444 and P.D. No. 1071, have already been repealed by EO 133. While PITC's power to engage in commercial import and export activities is expressly recognized and allowed under Section 16 (d) of EO 133, the same is not limited only to new or non-traditional products and markets not normally pursued by the private business sector. There is not indication in the law of the removal of the powers of the PITC to exercise its regulatory functions in the area of importations from SOCPEC countries. Though it does not mention the grant of regulatory power, EO 133, as worded, is silent as to the abolition or limitation of such powers, previously granted under P.D. 1071, from the PITC. Likewise, the general repealing clause in EO 133 stating that "all laws, ordinances, rules, and regulations, or other parts thereof, which are inconsistent with the Executive Order are hereby repealed or modified accordingly, cannot operate to abolish the grant of regulatory powers to the PITC. There can be no repeal of the said powers, absent any cogency of irreconcilable inconsistency or repugnancy between the issuances, relating to the regulatory power of the PITC. The President, in promulgating EO 133, had not intended to overhaul the functions of the PITC. The DTI was established, and was given powers and duties including those previously held by the PITC as an independent government entity, under P.D. 1071 and LOI 444. The PITC was thereby attached to the DTI as an implementing arm of the said department. EO 133 established the DTI as the primary coordinative, promotive, facilitative and regulatory arm of government for the country's trade, industry and investment activities, which shall act as a catalyst for intensified private sector 2 activity in order to accelerate and sustain economic growth. 7 In furtherance of this mandate, the DTI was empowered, among others, to plan, implement, and coordinate activities of the government related to trade industry and investments; to formulate and administer policies and guidelines for the investment priorities plan and the delivery of investment incentives; to formulate country and product export strategies which will guide the 28 export promotion and development thrusts of the government. Corollarily, the Secretary of Trade and Industry is given the power to promulgate rules and regulations necessary to carry out the department's objectives, policies, plans, programs and projects. The PITC, on the other hand, was attached as an integral part to the said department as one of its line 29 30 agencies, and given the focal task of implementing the department's programs. The absence of the regulatory power formerly enshrined in the Special Provision of LOI 444, from Section 16 of EO 133, and the limitation of its previously wide range of functions, is noted. This does not mean, however, that PITC has lost the authority to

issue the questioned Administrative Order. It is our view that PITC still holds such authority, and may legally exercise it, as an implementing arm, and under the supervision of, the Department of Trade and Industry. Furthermore, the lower court's ruling to the effect that the PITC's authority to process and approve applications for imports from SOCPEC and to issue rules and regulations pursuant to LOI 444 and P.D. 1071 has been repealed by EO 133, is misplaced, and did not consider the import behind the issuance of the later presidential edict. The President could not have intended to deprive herself of the power to regulate the flow of trade between the Philippines and PROC under the two countries' Memorandum of Understanding, a power which necessarily flows from her office as Chief Executive. In issuing Executive Order 133, the President intended merely to reorganize 31 the Department of Trade and Industry to cope with the need of a streamlined bureaucracy. Thus, there is not real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging of the administrative functions among the administrative bodies affective by the edict, but not an abolition of executive power. Consistency in statutes as in executive issuances, is of prime importance, and, in the absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize and reconcile them, and to adopt a construction of 32 a statutory provision which harmonizes and reconciles it with other statutory provisions. The fact that a later enactment may relate to the same subject matter as that of an earlier statute is not of itself sufficient to cause an 33 implied repeal of the latter, since the law may be cumulative or a continuation of the old one. Similarly, the grant of quasi-legislative powers in administrative bodies is not unconstitutional. Thus, as a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular field assigned to them, they can deal within the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial powers 34 in what is now not unreasonably called the fourth department of the government. Evidently, in the exercise of such powers, the agency concerned must commonly interpret and apply contracts and determine the rights of private parties under such contracts. One thrust of the multiplication of administrative agencies is that the interpretation of contracts and the determination of private rights thereunder is no longer uniquely judicial function, exercisable only by our regular courts. (Antipolo Realty Corporation vs. National Housing Authority, G.R. No. L-50444, August 31, 1987, 153 SCRA 399). With global trade and business becoming more intricate may even with new discoveries in technology and electronics notwithstanding, the time has come to grapple with legislations and even judicial decisions aimed at resolving issues affecting not only individual rights but also activities of which foreign governments or entities may have interests. Thus, administrative policies and regulations must be devised to suit these changing business needs in a faster rate than to resort to traditional acts of the legislature. This tendency finds support in a well-stated work on the subject, viz.: Since legislatures had neither the time nor the knowledge to create detailed rules, however, it was soon clear that new governmental arrangements would be needed to handle the job of rule-making. The courts, moreover, many of them already congested, would have been swamped if they had to adjudicate all the controversies that the new legislation was bound to create; and the judges, already obliged to handle a great diversity of cases, would have been hard pressed to acquire the knowledge they needed to deal intelligently with all the new types of controversy. So the need to "create a large number of specialized administrative agencies and to give them broader powers than administrators had traditionally exercised. These included the power to issue regulations having the force of law, and the power to hear and decide cases powers that had previously been reserved to the legislatures and the courts. (Houghteling/Pierce, Lawmaking by Administrative Agencies, p. 166) The respondents likewise argue that PITC is not empowered to issue the Administrative Order because no grant of such power was made under the Trade Protocols of 1989, 1990 or 1991. We do not agree. The Trade Protocols aforesaid, are only the enumeration of the products and goods which signatory countries have agreed to trade. They do not bestow any regulatory power, for executive power is vested in the Executive 35 Department, and it is for the latter to delegate the exercise of such power among its designated agencies. In sum, the PITC was legally empowered to issue Administrative Orders, as a valid exercise of a power ancillary to legislation. This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importation, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads: Art. 2. Laws shall take effect fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. . . . The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order.

This court, in Tanada vs. Tuvera 36 stated, thus: We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the socalled letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties xxx xxx xxx We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133. Thus, even before the trade balancing measures issued by the petitioner were lifted by President Fidel V. Ramos, the same were never legally effective, and private respondents, therefore, cannot be made subject to them, because Administrative Order 89-08-01 embodying the same was never published, as mandated by law, for its effectivity. It was only on March 30, 1992 when the amendments to the said Administrative Order were filed in the UP Law Center, and published in the National Administrative Register as required by the Administrative Code of 1987. Finally, it is the declared Policy of the Government to develop and strengthen trade relations with the People's Republic of China. As declared by the President in EO 244 issued on May 12, 1995, continued coverage of the People's Republic of China by Letter of Instructions No. 444 is no longer consistent with the country's national interest, as coursing RP-PROC trade through the PITC as provided for under Letter of Instructions No. 444 is 3 becoming an unnecessary barrier to trade. 7 Conformably with such avowed policy, any remnant of the restrained atmosphere of trading between the Philippines and PROC should be done away with, so as to allow economic growth and renewed trade relations with our neighbors to flourish and may be encouraged. ACCORDINGLY, the assailed decision of the lower court is hereby AFFIRMED, to the effect that judgment is hereby rendered in favor of the private respondents, subject to the following MODIFICATIONS: 1) Enjoining the petitioner: a) From further charging the petitioners the Counter Export Development Service fee of 0.5% of the total value of the unliquidated or unfulfilled Undertakings of the private respondents; b) From further implementing the provisions of Administrative Order No. SOCPEC 89-08-01 and its appurtenant rules; and, 2) Requiring petitioner to approve forthwith all the pending applications of, and all those that may hereafter be filed by, the petitioner and the Intervenor, free from and without complying with the requirements prescribed in the above-stated issuances. SO ORDERED. Republic of the Philippines SUPREME COURT Baguio City FIRST DIVISION G.R. No. 137873 April 20, 2001 D. M. CONSUNJI, INC., petitioner, vs. COURT OF APPEALS and MARIA J. JUEGO, respondents. KAPUNAN, J.: At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death. PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated November 25, 1990, stating that: x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same date. Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with Jessie th Jaluag and Delso Destajo [were] performing their work as carpenter[s] at the elevator core of the 14 floor of the Tower D, Renaissance Tower Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable wires attached to its four corners and hooked at the 5

ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the chain block with the [p]latform, got loose xxx causing the whole [p]latform assembly and the victim to fall down to the basement of the elevator core, Tower D of the building under construction thereby crushing the victim of death, save his two (2) companions who luckily jumped out for safety. It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on board and performing work, fell. And the falling of the [p]latform was due to the removal or getting loose of the pin which was 1 merely inserted to the connecting points of the chain block and [p]latform but without a safety lock. On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other defenses, the widows prior availment of the benefits from the State Insurance Fund. After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the RTC decision reads: WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows: 1. P50,000.00 for the death of Jose A. Juego. 2. P10,000.00 as actual and compensatory damages. 3. P464,000.00 for the loss of Jose A. Juegos earning capacity. 4. P100,000.00 as moral damages. 5. P20,000.00 as attorneys fees, plus the costs of suit. 2 SO ORDERED. On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto. D. M. Consunji now seeks the reversal of the CA decision on the following grounds: THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER. THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER. THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM 3 RECOVERING DAMAGES UNDER THE CIVIL CODE. Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to the hearsay rule. The Rules of Court provide that a witness can testify only to those facts which he knows of his personal knowledge, that 4 is, which are derived from his perception. A witness, therefore, may not testify as what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as 5 proof of the truth of what he has learned. This is known as the hearsay rule. Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies to 6 written, as well as oral statements. The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and 7 exposed by the test of cross-examiantion. The hearsay rule, therefore, excludes evidence that cannot be tested by cross8 examination. 9 The Rules of Court allow several exceptions to the rule, among which are entries in official records. Section 44, Rule 130 provides: Entries in official records made in the performance of his duty made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. 10 In Africa, et al. vs. Caltex (Phil.), Inc., et al. , this Court, citing the work of Chief Justice Moran, enumerated the requisites for admissibility under the above rule: (a) that the entry was made by a public officer or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is not present. The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial court. In Rodriguez 11 vs. Court of Appeals, which involved a Fire Investigation Report, the officer who signed the fire report also testified before the trial court. This Court held that the report was inadmissible for the purpose of proving the truth of the statements contained in the report but admissible insofar as it constitutes part of the testimony of the officer who executed the report. x x x. Since Major Enriquez himself took the witness stand and was available for cross-examination, the portions of the report which were of his personal knowledge or which consisted of his perceptions and conclusions were not hearsay. The rest of the report, such as the summary of the statements of the parties based on their sworn

statements (which were annexed to the Report) as well as the latter, having been included in the first purpose of the offer [as part of the testimony of Major Enriquez], may then be considered as independently relevant statements which were gathered in the course of the investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been said that: "Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a fact." When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available for cross-examination by the adverse party, the Report, insofar as it proved that certain utterances were made (but not their truth), was effectively removed from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does away with the testimony in open court of the officer who made the official record, considers the matter as an exception to the hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence of the facts therein stated. The underlying reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon. The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work something is not done in which testimony is not needed from official sources. Were there no exception for official statements, hosts of officials would be found devoting the greater part of their time to attending as witnesses in court or delivering deposition before an officer. The work of administration of government and the interest of the public having business with officials would alike suffer in consequence. For these reasons, and for many others, a certain verity is accorded such documents, which is not extended to private documents. (3 Wigmore on Evidence, Sec. 1631). The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their duty may be given in evidence and shall be taken to be true under such a degree of caution as to the nature and circumstances of each case may appear to require. It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In that case the applicability of Section 44 of Rule 143 would have been ripe for determination, and this Court would have agreed with the Court of Appeals that said report was inadmissible since the aforementioned third requisite was not satisfied. The statements given by the sources of information of Major Enriquez failed to qualify as "official information," there being no showing that, at the very least, they were under a duty to give the statements for record. Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3 Villanueva. In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen Juegos remains at the 12 morgue, making the latters death beyond dispute. PO3 Villanueva also conducted an ocular inspection of the premises 13 14 of the building the day after the incident and saw the platform for himself. He observed that the platform was 15 16 crushed and that it was totally damaged. PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine, without any pin or 17 bolt. What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony is mere opinion. Subject to 18 19 certain exceptions, the opinion of a witness is generally not admissible. Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator was a result of the person having charge of the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa loquituris peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a 20 substitute for specific proof of negligence. The concept of res ipsa loquitur has been explained in this wise: While negligence is not ordinarily inferred or presumed, and while the mere happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the facts or circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other person who is charged with negligence. x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the control or management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation by the 21 defendant, that the injury arose from or was caused by the defendants want of care.

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory that under the peculiar circumstances in which the doctrine is applicable, it is within the power of the defendant to show that there was no negligence on his part, and direct proof of defendants negligence is beyond plaintiffs power. Accordingly, some court add to the three prerequisites for the application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for 23 explanation of the accident. The CA held that all the requisites of res ipsa loquitur are present in the case at bar: th There is no dispute that appellees husband fell down from the 14 floor of a building to the basement while he was working with appellants construction project, resulting to his death. The construction site is within the exclusive control and management of appellant. It has a safety engineer, a project superintendent, a carpenter leadman and others who are in complete control of the situation therein. The circumstances of any accident that would occur therein are peculiarly within the knowledge of the appellant or its employees. On the other hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily available, provided the following requisites are present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence; and (3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. x x x. th No worker is going to fall from the 14 floor of a building to the basement while performing work in a construction site unless someone is negligent[;] thus, the first requisite for the application of the rule of res ipsa loquitur is present. As explained earlier, the construction site with all its paraphernalia and human resources that likely caused the injury is under the exclusive control and management of appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed to the appellees deceased husband[;] thus[,] the last requisite is also present. All the requisites for the application of the rule of res ipsa loquitur are present, thus a 24 reasonable presumption or inference of appellants negligence arises. x x x. Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the presumption or inference that it was negligent did not arise since it "proved that it exercised due care to avoid the accident which befell respondents husband." Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendants negligence is 25 presumed or inferred when the plaintiff establishes the requisites for the application of res ipsa loquitur. Once the plaintiff 26 makes out a prima facie case of all the elements, the burden then shifts to defendant to explain. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances disputable presumption, 27 such as that of due care or innocence, may outweigh the inference. It is not for the defendant to explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes into play only after the circumstances for the application of the doctrine has been established. 1wphi1.nt In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police investigator as evidence of its due care. According to Fabros sworn statement, the company enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and the bodegero inspect the chain block before allowing its use. It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing that private responde nt failed to prove negligence on the part of petitioners employees, also assails the same statement for being hearsay. Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible as evidence under 28 the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. The inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the affiants statements which may either be omitted or misunderstood by the one writing 29 them. Petitioner, therefore, cannot use said statement as proof of its due care any more than private respondent can use it to prove the cause of her husbands death. Regrettably, petitioner does not cite any o ther evidence to rebut the inference or presumption of negligence arising from the application of res ipsa loquitur, or to establish any defense relating to the incident.

22

Next, petitioner argues that private respondent had previously availed of the death benefits provided under the Labor Code and is, therefore, precluded from claiming from the deceaseds employer damages under the Civil Code. Article 173 of the Labor Code states: Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered by the System or by other agencies of the government. The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act, provi ded that: Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to an employee by reason of a personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws because of said injury x x x. Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the matter in Floresca vs.Philex Mining 30 Corporation, which involved a cave-in resulting in the death of the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of government rules and regulations, failed to take the required precautions for the protection of the employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court. 31 Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc, following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative. WE now come to the query as to whether or not the injured employee or his heirs in case of death have a right of selection or choice of action between availing themselves of the workers right under the Workmens Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual, moral and exemplary) from the employers by virtue of the negligence or fault of the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the limited compensation under the Workmens Compensation Act and sue in addition for damages in the regular courts. In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442, ruled thatan injured worker has a choice of either to recover from the employer the fixed amounts set by the Workmens Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher damages but he cannot pursue both courses of action simultaneously. [Underscoring supplied.] Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the Civil Code despite having availed of the benefits provided under the Workmens Compensation Act. The Court reasoned: With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the Regional Office No. 1 of the then Department of Labor and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be paid in installments x x x. Such allegation was admitted by herein petitioners in their opposition to the motion to dismiss dated may 27, 1968 x x x in the lower court, but they set up the defense that the claims were filed under the Workmens Compensation Act before they learned of the official report of the committee created to investigate the accident which established the criminal negligence and violation of law by Philex, and which report was forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x. WE hold that although the other petitioners had received the benefits under the Workmens Compensation Act, such my not preclude them from bringing an action before the regular court because they became cognizant of the fact that Philex has been remiss in its contractual obligations with the deceased miners only after receiving compensation under the Act. Had petitioners been aware of said violation of government rules and regulations by Philex, and of its negligence, they would not have sought redress under the Workmens Compensation Commission which awarded a lesser amount for compensation. The choice of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should therefore be remanded to the lower court for further proceedings. However, should the petitioners be successful in their bid before the lower court, the payments made under the Workmens Compensation Act should be deducted from the damages that may be decreed in their favor. [Underscoring supplied.] The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime Corporation vs. 32 33 34 Avelino, Vda. De Severo vs. Feliciano-Go, and Marcopper Mining Corp. vs. Abeleda. In the last case, the Court again recognized that a claimant who had been paid under the Act could still sue under the Civil Code. The Court said: In the Robles case, it was held that claims for damages sustained by workers in the course of their employment could be filed only under the Workmens Compensation Law, to the exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in favor of the new rule that the claimants may invoke either the

Workmens Compensation Act or the provisions of the Civil Code, subject to the consequence that the choice of one remedy will exclude the other and that the acceptance of compensation under the remedy chosen will preclude a claim for additional benefits under the other remedy. The exception is where a claimant who has already been paid under the Workmens Compensation Act may still sue for damages under the Civil Code on the basis of supervening facts or developments occurring after he opted for the first remedy. (Underscoring supplied.) Here, the CA held that private respondents case came under the exception because private respondent was unaware of petitioners negligence when she filed her claim for death benefits from the State Insurance Fund. Private respondent filed the civil complaint for damages after she received a copy of the police investigation report and the Prosecutors Memorandum dismissing the criminal complaint against petitioners personnel. While stating that there was no negligence attributable to the respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the exception in Floresca: x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as early as November 25, 1990, the date of the police investigators report. The appellee merely executed her sworn statement before the police investigator concerning her personal circumstances, her relation to the victim, and her knowledge of the accident. She did not file the complaint for "Simple Negligence Resulting to Homicide" against appellants employees. It was the investigator who recommended the filing of said case and his supervisor referred the same to the prosecutors office. This is a standard operating procedure for polic e investigators which appellee may not have even known. This may explain why no complainant is mentioned in the preliminary statement of the public prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence Resulting to Homicide." It is also possible that the appellee did not have a chance to appear before the public prosecutor as can be inferred from the following statement in said memorandum: "Respondents who were notified pursuant to Law waived their rights to present controverting evidence," thus there was no reason for the public prosecutor to summon the appellee. Hence, notice of appellants negligence cannot be imputed on appellee before she applied for death be nefits under ECC or before she received the first payment therefrom. Her using the police investigation report to support her complaint filed on May 9, 1991 may just be an afterthought after receiving a copy of the February 6, 1991 Memorandum of the Prosecutors Office dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The death of the victim is not attributable to any negligence on the part of the respondents. If at all and as shown by the records this case is civil in nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to believe appellees allegation that she learned about appellants negligence only after she applied for and received the benefits under ECC. This is a mistake of fact that will make this case fall under the exception held in 35 the Floresca ruling. The CA further held that not only was private respondent ignorant of the facts, but of her rights as well: x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational attainment; that she did not know what damages could be recovered from the death of her husband; and that she 36 did not know that she may also recover more from the Civil Code than from the ECC. x x x. Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her complaint that her application and receipt of benefits from the ECC were attended by ignorance or mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or adjudicate that issue." Petitioner also claims that private respondent could not have been ignorant of the facts because as early as November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991, two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a resolution finding that, although there was insufficient evidence against petitioners employees, the case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the ECC on January 2, 1991 and every month thereafter, private respondent also knew of the two choices of remedies available to her and yet she chose to claim and receive the benefits from the ECC. When a party having knowledge of the facts makes an election between inconsistent remedies, the election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the other party. The 37 first act of election acts as a bar. Equitable in nature, the doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on the moral premise that it is fair to hold people responsible for their choices. The 38 purpose of the doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single wrong. The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed to have waived the other. 39 Waiver is the intentional relinquishment of a known right. [It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not to assert them. It must be generally shown by the party claiming a waiver that the person against whom the waiver is asserted had at the time knowledge, actual or constructive, of the existence of the partys rights or of all material facts upon which they depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right exists and has adequate knowledge upon which to make an intelligent decision. Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an awareness of its consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or by the 40 evidence. That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in Floresca. It is in light of the foregoing principles that we address petitioners contentions. Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who ought to plead waiver, as petitioner did in pages 2-3 of its 41 Answer; otherwise, the defense is waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings before the trial court. Does the evidence show that private respondent knew of the facts that led to her husbands death and the rights pertaining to a choice of remedies? It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the "fact" that served as a basis for nullifying the waiver is the negligence of petitioners employees, of which private respondent purportedly learned only after the prosecutor issued a resolution stating that there may be civil liability. In Floresca, it was the negligence of the mining corporation and its violation of government rules and regulations. Negligence, or violation of government rules and regulations, for that matter, however, is not a fact, but aconclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the case at bar. In any event, there is no proof that private respondent knew that her husband died in the elevator crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation report is dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the application in her behalf on November 27, 1990. There is also no showing that private respondent knew of the remedies available to her when the claim before the ECC was filed. On the contrary, private respondent testified that she was not aware of her rights. Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim ignorance of this Courts ruling in Floresca allowing a choice of remedies. 42 The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory laws. This may be deduced from the language of the provision, which, notwithstanding a persons ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against her. Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total amount private 43 respondent ought to receive from the ECC, although it appears from Exhibit "K" that she received P3,581.85 as initial payment representing the accrued pension from November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was P596.97 and present total monthly pension was P716.40. Whether the total amount she will eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by the trial court is subject to speculation, and the case is remanded to the trial court for such determination. Should the trial court find that its award is greater than that of the ECC, payments already received by private respondent under the Labor Code shall be deducted from the trial court' award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double compensation. WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be greater than that awarded by the ECC, payments already made to private respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals is AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 18081 March 3, 1922 IN THE MATTER OF THE ESTATE OF CHEONG BOO, deceased. MORA ADONG, petitioner-appellant, vs. CHEONG SENG GEE, opponent-appellant. Kincaid, Perkins & Kincaid and P. J. Moore for petitioner-appellant. Carlos A. Sobral for opponent-appellant. MALCOLM, J.:

The two question presented for determination by these appeals may be framed as follows: Is a marriage contracted in China and proven mainly by an alleged matrimonial letter, valid in the Philippines? Are the marriage performed in the Philippines according to the rites of the Mohammedan religion valid? As the decision of the Supreme Court on the last point will affect marriages consummated by not less than one hundred and fifty thousand Moros who profess the Mohammedan faith, the transcendental importance of the cause can be realized. We proposed to give to the subject the serious consideration which it deserves. Cheong Boo, a native of China, died intestate in Zamboanga, Philippine Islands, on August 5, 1919. He left property worth nearly P100,000. The estate of the deceased was claimed, on the one hand, by Cheong Seng Gee, who alleged that he was a legitimate child by a marriage contracted by Cheong Boo with Tan Dit in China in 1895. The estate was claimed, on the other hand, by the Mora Adong who alleged that she had been lawfully married to Cheong Boo in 1896 in Basilan, Philippine Islands, and her daughters, Payang, married to Cheng Bian Chay, and Rosalia Cheong Boo, unmarried. The conflicting claims to the estate of Cheong Boo were ventilated in the Court of First Instance of Zamboanga. The trial judge, the Honorable Quirico Abeto, after hearing the evidence presented by both sides, reached the conclusion, with reference to the allegations of Cheong Seng Gee, that the proof did not sufficiently establish the Chinese marriage, but that because Cheong Seng Gee had been admitted to the Philippine Islands as the son of the deceased, he should share in the estate as a natural child. With reference to the allegations of the Mora Adong and her daughters Payang and Rosalia, the trial judge reached the conclusion that the marriage between the Mora Adong and the deceased had been adequately proved but that under the laws of the Philippine Islands it could not be held to be a lawful marriage; accordingly, the daughters Payang and Rosalia would inherit as natural children. The order of the trial judge, following these conclusions, was that there should be a partition of the property of the deceased Cheong Boo between the natural children, Cheong Seng Gee, Payang, and Rosalia. From the judgment of the Judge of First Instance both parties perfected appeals. As to the facts, we can say that we agree in substance with the findings of the trial court. As to the legal issues submitted for decision by the numerous assignments of error, these can best be resolved under two heads, namely: (1) The validity of the Chinese marriage; and (2) the validity of the Mohammedan marriage. 1. Validity of the Chinese Marriage The theory advanced on behalf of the claimant Cheong Seng Gee was that Cheong Boo was married in the city of Amoy, China, during the second moon of the twenty-first year of the Emperor Quang Su, or, according to the modern count, on February 16, 1985, to a young lady named Tan Dit. Witnesses were presented who testified to having been present at the marriage ceremony. There was also introduced in evidence a document in Chinese which in translation reads as follows: One hundred years of life and health for both. Your nephew, Tan Chao, respecfully answers the venerable Chiong Ing, father of the bridegroom, accepting his offer of marriage, and let this document serve as proof of the acceptance of said marriage which is to be celebrated during the merry season of the flowers. I take advantage of this occasion to wish for your and the spouses much happiness, a long life, and prolific issue, as noble and great as that which you brought forth. I consider the marriage of your son Boo with my sister Lit Chia as a mandate of God and I hope that they treat each other with great love and mutual courtesy and that both they and their parents be very happy. Given during the second moon of the twenty-first year of the reign of the Emperor Quang Su.

Cheong Boo is said to have remained in China for one year and four months after his marriage during which time there was born to him and his wife a child named Cheong Seng Gee. Cheong Boo then left China for the Philippine Islands and sometime thereafter took to himself a concubine Mora by whom he had two children. In 1910, Cheong Boo was followed to the Philippines by Cheong Seng Gee who, as appears from documents presented in evidence, was permitted to land in the Philippine Islands as the son of Cheong Boo. The deceased, however, never returned to his native hearth and seems never to have corresponded with his Chinese wife or to have had any further relations with her except once when he sent her P10. The trial judge found, as we have said, that the proof did not sustain the allegation of the claimant Cheong Seng Gee, that Cheong Boo had married in China. His Honor noted a strong inclination on the part of the Chinese witnesses, especially the brother of Cheong Boo, to protect the interests of the alleged son, Cheong Seng Gee, by overstepping the limits of truthfulness. His Honor also noted that reliable witnesses stated that in the year 1895, when Cheong Boo was supposed to have been in China, he was in reality in Jolo, in the Philippine Islands. We are not disposed to disturb this appreciation

of fact by the trial court. The immigration documents only go to show the relation of parent and child existing between the deceased Cheong Boo and his son Cheong Seng Gee and do not establish the marriage between the deceased and the mother of Cheong Seng Gee. Section IV of the Marriage Law (General Order No. 68) provides that "All marriages contracted without these Islands, which would be valid by the laws of the country in which the same were contracted, are valid in these Islands." To establish a valid foreign marriage pursuant to this comity provision, it is first necessary to prove before the courts of the Islands the existence of the foreign law as a question of fact, and it is then necessary to prove the alleged foreign marriage by convincing evidence. As a case directly in point is the leading one of Sy Joc Lieng vs. Encarnacion ([1910]), 16 Phil., 137; [1913], 228 U.S., 335). Here, the courts of the Philippines and the Supreme Court of the United States were called upon to decide, as to the conflicting claims to the estate of a Chinese merchant, between the descendants of an alleged Chinese marriage and the descendants of an alleged Philippine marriage. The Supreme Courts of the Philippine Islands and the United States united in holding that the Chinese marriage was not adequately proved. The legal rule was stated by the United States Supreme Court to be this: A Philippine marriage, followed by forty years of uninterrupted marital life, should not be impugned and discredited, after the death of the husband and administration of his estate, though an alleged prior Chinese marriage, "save upon proof so clear, strong, and unequivocal as to produce a moral conviction of the existence of such impediment." Another case in the same category is that of Son Cui vs. Guepangco ([1912], 22 Phil., 216). In the case at bar there is no competent testimony as to what the laws of China in the Province of Amoy concerning marriage were in 1895. As in the Encarnacion case, there is lacking proof so clear, strong, and unequivocal as to produce a moral conviction of the existence of the alleged prior Chinese marriage. Substitute twenty-three years for forty years and the two cases are the same. The lower court allowed the claimant, Cheong Seng Gee, the testamentary rights of an acknowledged natural child. This finding finds some support in Exhibit 3, the affidavit of Cheong Boo before the American Vice-Consul at Sandakan, British North Borneo. But we are not called upon to make a pronouncement on the question, because the oppositor-appellant indicates silent acquiescence by assigning no error. 2. Validity of the Mohammedan Marriage The biographical data relating to the Philippine odyssey of the Chinaman Cheong Boo is fairly complete. He appears to have first landed on Philippine soil sometime prior to the year 1896. At least, in the year las mentioned, we find him in Basilan, Philippine Islands. There he was married to the Mora Adong according to the ceremonies prescribed by the book on marriage of the Koran, by the Mohammedan Iman (priest) Habubakar. That a marriage ceremony took place is established by one of the parties to the marriage, the Mora Adong, by the Iman who solemnized the marriage, and by other eyewitnesses, one of whom was the father of the bride, and another, the chief of the rancheria, now a municipal councilor. The groom complied with Quranic law by giving to the bride a dowry of P250 in money and P250 in goods. The religious rites began with the bride and groom seating themselves in the house of the father of the bride, Marahadja Sahibil. The Iman read from the Koran. Then the Iman asked the parents if they had any objection to the marriage. The marital act was consummated by the groom entering the woman's mosquito net. From the marriage day until the death of Cheong Boo, twenty-three years later, the Chinaman and the Mora Adong cohabited as husband and wife. To them were born five children, two of whom, Payang and Rosalia, are living. Both in his relations with Mora Adong and with third persons during his lifetime, Cheong Boo treated Adong as his lawful wife. He admitted this relationship in several private and public documents. Thus, when different legal documents were executed, including decrees of registration, Cheong Boo stated that he was married to the Mora Adong while as late as 1918, he gave written consent to the marriage of his minor daughter, Payang. Notwithstanding the insinuation of counsel for the Chinese appellant that the custom is prevalent among the Moros to favor in their testimony, a relative or friend, especially when they do not swear on the Koran to tell the truth, it seems to us that proof could not be more convincing of the fact that a marriage was contracted by the Chinaman Cheong Boo and the Mora Adong, according to the ceremonies of the Mohammedan religion. It is next incumbent upon us to approach the principal question which we announced in the very beginning of this decision, namely, Are the marriages performed in the Philippines according to the rites of the Mohammedan religion valid? Three sections of the Marriage Law (General Order No. 68) must be taken into consideration. Section V of the Marriage Law provides that "Marriage may be solemnized by either a judge of any court inferior to the Supreme Court, justice of the peace, or priest or minister of the Gospel of any denomination . . ." Counsel, failing to take account of the word "priest," and only considering the phrase "minister of the Gospel of any denomination" would limit the meaning of this clause to ministers of the Christian religion. We believe this is a strained interpretation. "Priest," according to the lexicographers, means one especially consecrated to the service of a divinity and considered as the medium through whom worship, prayer, sacrifice, or other service is to be offered to the being worshipped, and pardon, blessing, deliverance, etc., obtained by the worshipper, as a priest of Baal or of Jehovah; a Buddhist priest. "Minister of the Gospel" means all clergymen of every denomination and faith. A "denomination" is a religious sect having a particular name. (Haggin vs. Haggin [1892], 35 Neb., 375; In reReinhart, 9 O. Dec., 441; Hale vs. Everett [1868], 53 N. H. 9.) A Mohammedan Iman is a "priest or minister of the Gospel," and Mohammedanism is a "denomination," within the meaning of the Marriage Law. The following section of the Marriage Law, No. VI, provides that "No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage, that they take each other

as husband and wife." The law is quite correct in affirming that no precise ceremonial is indispensable requisite for the creation of the marriage contract. The two essentials of a valid marriage are capacity and consent. The latter element may be inferred from the ceremony performed, the acts of the parties, and habit or repute. In this instance, there is no question of capacity. Nor do we think there can exist any doubt as to consent. While it is true that during the Mohammedan ceremony, the remarks of the priest were addressed more to the elders than to the participants, it is likewise true that the Chinaman and the Mora woman did in fact take each other to be husband and wife and did thereafter live together as husband and wife. (Travers vs. Reinhardt [1907], 205 U.S., 423. It would be possible to leave out of view altogether the two sections of the Marriage Law which have just been quoted and discussed. The particular portion of the law which, in our opinion, is controlling, is section IX, reading as follows: "No marriage heretofore solemnized before any person professing to have authority therefor shall be invalid for want of such authority or on account of any informality, irregularity, or omission, if it was celebrated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married ." The trial judge in construing this provision of law said that he did not believe that the legislative intention in promulgating it was to validate marriages celebrated between Mohammedans. To quote the judge: This provisions relates to marriages contracted by virtue of the provisions of the Spanish law before revolutionary authorized to solemnized marriages, and it is not to be presumed that the legislator intended by this law to validate void marriages celebrated during the Spanish sovereignty contrary to the laws which then governed. What authority there is for this statement, we cannot conceive. To our mind, nothing could be clearer than the language used in section IX. Note for a moment the all embracing words found in this section: "No marriage" Could more inclusive words be found? "Heretofore solemnized" Could any other construction than that of retrospective force be given to this phrase? "Before any person professing to have authority therefor shall be invalid for want of such authority" Could stronger language than this be invoked to announce legislative intention? "Or on account of any informality, irregularity, or omission" Could the legislative mind frame an idea which would more effectively guard the marriage relation against technicality? "If it was celebrated with the belief of the parties, or either of them, that he had authority and that they have been lawfully married" What was the purpose of the legislator here, if it was not to legalize the marriage, if it was celebrated by any person who thought that he had authority to perform the same, and if either of the parties thought that they had been married? Is there any word or hint of any word which would restrict the curative provisions of section IX of the Marriage Law to Christian marriages? By what system of mental gymnastics would it be possible to evolve from such precise language the curious idea that it was restricted to marriages performed under the Spanish law before the revolutionary authorities? In view of the importance of the question, we do not desire to stop here but would ascertain from other sources the meaning and scope of Section IX of General Order No. 68. The purpose of the government toward the Mohammedan population of the Philippines has, time and again, been announced by treaty, organic law, statutory law, and executive proclamation. The Treaty of Paris in its article X, provided that "The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured Instructions to the Philippine Commission imposed on every branch of the Government of the Philippine Islands the inviolable rule "that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed ... That no form of religion and no minister of religion shall be forced upon any community or upon any citizen of the Islands; that, upon the other hand, no minister of religion shall be interfered with or molested in following his calling, and that the separation between state and church shall be real, entire, and absolute." The notable state paper of President McKinley also enjoined the Commission, "to bear in mind that the Government which they are establishing is designed . . . for the happiness, peace, and prosperity of the people of the Philippine Islands" and that, therefore, "the measures adopted should be made to conform to their customs, their habits, and even their prejudices. . . . The Philippine Bill and the Jones Law reproduced the main constitutional provisions establishing religious toleration and equality. Executive and legislative policy both under Spain and the United States followed in the same path. For instance, in the Treaty of April 30, 1851, entered into by the Captain General of the Philippines and the Sultan of Sulu, the Spanish Government guaranteed "with all solemnity to the Sultan and other inhabitants of Sulu the free exercise of their religion, with which it will not interfere in the slightest way, and it will also respect their customs." (See furtherDecree of the Governor-General of January 14, 1881.) For instance, Act No. 2520 of the Philippine Commission, section 3, provided that "Judges of the Court of First Instance and justices of the peace deciding civil cases in which the parties are Mohammedans or pagans, when such action is deemed wise, may modify the application of the law of the Philippine Islands, except laws of the United States applicable to the Philippine Islands, taking into account local laws and customs. . . ." (See further Act No. 787, sec. 13 [ j]; Act No. 1283, sec. 6 [b]; Act No. 114 of the Legislative Council amended and approved by the Philippine Commission; Cacho vs. Government of the United States [1914], 28 Phil., 616.) Various responsible officials have so oft announced the purpose of the Government not to interfere with the customs of the Moros, especially their religious customs, as to make quotation of the same superfluous. The retrospective provisions of the Philippine Marriage Law undoubtedly were inspired by the governmental policy in the United States, with regard to the marriages of the Indians, the Quakers, and the Mormons. The rule as to Indians marriages is, that a marriage between two Indians entered into according to the customs and laws of the people at a place where such customs and laws are in force, must be recognized as a valid marriage. The rule as to the Society of Quakers is, that they will be left to their own customs and that their marriages will be recognized although they use no

solemnization. The rule as to Mormon marriages is that the sealing ceremony entered into before a proper official by members of that Church competent to contract marriage constitutes a valid marriage. The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but, it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.:" (Sec. 334, No. 28.) Semper praesumitur pro matrimonio Always presume marriage. (U. S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui vs.Guepangco, supra; U.S. vs. Memoracion and Uri [1916], 34 Phil., 633; Teter vs. Teter [1884], 101 Ind., 129.) Section IX of the Marriage Law is in the nature of a curative provision intended to safeguard society by legalizing prior marriages. We can see no substantial reason for denying to the legislative power the right to remove impediments to an effectual marriage. If the legislative power can declare what shall be valid marriages, it can render valid, marriages which, when they took place, were against the law. Public policy should aid acts intended to validate marriages and should retard acts intended to invalidate marriages. (Coghsen vs. Stonington [1822], 4 Conn, 209; Baity vs. Cranfill [1884], 91 N. C., 273.) The courts can properly incline the scales of their decisions in favors of that solution which will mot effectively promote the public policy. That is the true construction which will best carry legislative intention into effect. And here the consequences, entailed in holding that the marriage of the Mora Adong and the deceased Cheong Boo, in conformity with the Mohammedan religion and Moro customs, was void, would be far reaching in disastrous result. The last census shows that there are at least one hundred fifty thousand Moros who have been married according to local custom. We then have it within our power either to nullify or to validate all of these marriages; either to make all of the children born of these unions bastards or to make them legitimate; either to proclaim immorality or to sanction morality; either to block or to advance settled governmental policy. Our duty is a obvious as the law is plain. In moving toward our conclusion, we have not lost sight of the decisions of this court in the cases of United Statesvs. Tubban ([1915]), 29 Phil., 434) and United States vs. Verzola ([1916, 33 Phil., 285). We do not, however, believe these decisions to be controlling. In the first place, these were criminal actions and two Justice dissented.. In the second place, in the Tubban case, the marriage in question was a tribal marriage of the Kalingas, while in the Verzola case, the marriage had been performed during the Spanish regime by a lieutenant of the Guardia Civil. In neither case, in deciding as to whether or not the accused should be given the benefit of the so-called unwritten law, was any consideration given to the provisions of section IX of General Order No. 68. We are free to admit that, if necessary, we would unhesitatingly revoke the doctrine announced in the two cases above mentioned. We regard the evidence as producing a moral conviction of the existence of the Mohammedan marriage. We regard the provisions of section IX of the Marriage law as validating marriages performed according to the rites of the Mohammedan religion. There are other questions presented in the various assignments of error which it is unnecessary to decide. Inresume, we find the Chinese marriage not to be proved and that the Chinaman Cheong Seng Gee has only the rights of a natural child, and we find the Mohammedan marriage to be proved and to be valid, thus giving to the widow and the legitimate children of this union the rights accruing to them under the law. Judgment is reversed in part, and the case shall be returned to the lower court for a partition of the property in accordance with this decision, and for further proceedings in accordance with law. Without special findings as to costs in this instance, it is so ordered. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-16749 January 31, 1963 IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees, vs. HELEN CHRISTENSEN GARCIA, oppositor-appellant. M. R. Sotelo for executor and heir-appellees. Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant. LABRADOR, J.: This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton,

etc., in accordance with the provisions of the will of the testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains the following provisions: 3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A. 4. I further declare that I now have no living ascendants, and no descendants except my above named daughter, MARIA LUCY CHRISTENSEN DANEY. xxx xxx xxx 7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is exhausted.. xxx xxx xxx 12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime: .... It is in accordance with the above-quoted provisions that the executor in his final account and project of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be transferred to his daughter, Maria Lucy Christensen. Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged that the law that should govern the estate of the deceased Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria Helen Christensen having been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth. The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California, in accordance with which a testator has the right to dispose of his property in the way he desires, because the right of absolute dominion over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were denied. Hence, this appeal. The most important assignments of error are as follows: I THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE. II THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL LAW. III THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES. IV THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS. V THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.

There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death. But there is also no question that at the time of his death he was domiciled in the Philippines, as witness the following facts admitted by the executor himself in appellee's brief: In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y., U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904. In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913, during which time he resided in, and was teaching school in Sacramento, California. Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed the Philippines for the United States and came back here the following year, 1929. Some nine years later, in 1938, he again returned to his own country, and came back to the Philippines the following year, 1939. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1wph1.t Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during World War II. Upon liberation, in April 1945, he left for the United States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CCDaney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p. 473, t.s.n., July 21, 1953.) In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and testament (now in question herein) which he executed at his lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953. (pp. 2-3) In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was born in New York, migrated to California and resided there for nine years, and since he came to the Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to have owned or acquired a home or properties in that state, which would indicate that he would ultimately abandon the Philippines and make home in the State of California. Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more than mere physical presence. (Goodrich on Conflict of Laws, p. 29) As to his citizenship, however, We find that the citizenship that he acquired in California when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of that State; so that he appears never to have intended to abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of Laws. The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may be domiciled in a place where he has never been. And he may reside in a place where he has no domicile. The man with two homes, between which he divides his time, certainly resides in each one, while living in it. But if he went on business which would require his presence for several weeks or months, he might properly be said to have sufficient connection with the place to be called a resident. It is clear, however, that, if he treated his settlement as continuing only for the particular business in hand, not giving up his former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice requires the exercise of intention as well as physical presence. "Residence simply requires bodily presence of an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile." Residence, however, is a term used with many shades of meaning, from the merest temporary presence to the most permanent abode, and it is not safe to insist that any one use et the only proper one. (Goodrich, p. 29) The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines, which is as follows: ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country where said property may be found. The application of this article in the case at bar requires the determination of the meaning of the term "national law" is used therein. There is no single American law governing the validity of testamentary provisions in the United States, each state of the Union having its own private law applicable to its citizens only and in force only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can refer to no other than the private law of the State of California.

The next question is: What is the law in California governing the disposition of personal property? The decision of the court below, sustains the contention of the executor-appellee that under the California Probate Code, a testator may dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil Code of California, which is as follows: If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile. The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the State of California, the internal law thereof, which is that given in the abovecited case, should govern the determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of California of which Christensen was a citizen. Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance therewith and following the doctrine of the renvoi, the question of the validity of the testamentary provision in question should be referred back to the law of the decedent's domicile, which is the Philippines. The theory of doctrine of renvoi has been defined by various authors, thus: The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?" On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once having determined the the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of Laws. This would have resulted in the "endless chain of references" which has so often been criticized be legal writers. The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no compelling logical reason why the original reference should be the internal law rather than to the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at that point applying internal law. Perhaps the opponents of the renvoi are a bit more consistent for they look always to internal law as the rule of reference. Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from adoption of their respective views. And still more strange is the fact that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the litigation will vary with the choice of the forum. In the case stated above, had the Michigan court rejected the renvoi, judgment would have been against the woman; if the suit had been brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the woman. The same result would happen, though the courts would switch with respect to which would hold liability, if both courts accepted the renvoi. The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the validity of a decree of divorce is challenged. In these cases the Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a person's title to land, recognized by the situs, will be recognized by every court; and every divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 1314.) X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England, and France. The question arises as to how this property is to be distributed among X's next of kin. Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate succession to movables calls for an application of the law of the deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of distributions, or whatever corresponds thereto in French law, and decree a distribution accordingly. An examination of French law, however, would show that if a French court were called upon to determine how this property should be distributed, it would refer the distribution to the national law of the deceased, thus applying the Massachusetts statute of distributions. So on the surface of things the Massachusetts court has open to it alternative course of action: (a) either to apply the French law is to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts statute of distributions, on the assumption that this is what a French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter course, thus applying its own law. This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back again to the law of the forum. This is renvoi in the narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.) After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further question may arise: Are the rules as to the conflict of laws contained in such foreign law also to be resorted to? This is a question which, while it has been considered by the courts in but a few instances, has been the subject of frequent discussion by textwriters and essayists; and the doctrine involved has been descriptively

designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the "Weiterverweisung", since an affirmative answer to the question postulated and the operation of the adoption of the foreign law in toto would in many cases result in returning the main controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.) Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the doctrine of renvoiis that the court of the forum, in determining the question before it, must take into account the whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other jurisdiction prescribe. This may be the law of the forum. The doctrine of the renvoi has generally been repudiated by the American authorities. (2 Am. Jur. 296) The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent parts of the article are quoted herein below: The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country, but its rules of the conflict of laws as well. According to this theory 'the law of a country' means the whole of its law. xxx xxx xxx Von Bar presented his views at the meeting of the Institute of International Law, at Neuchatel, in 1900, in the form of the following theses: (1) Every court shall observe the law of its country as regards the application of foreign laws. (2) Provided that no express provision to the contrary exists, the court shall respect: (a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute, and desires that said personal statute shall be determined by the law of the domicile, or even by the law of the place where the act in question occurred. (b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily competent, which agree in attributing the determination of a question to the same system of law. xxx xxx xxx If, for example, the English law directs its judge to distribute the personal estate of an Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he must first inquire whether the law of Belgium would distribute personal property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the distribution in accordance with the law of nationality that is the English law he must accept this reference back to his own law. We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of California are to be enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of American law that the domiciliary law should govern in most matters or rights which follow the person of the owner. When a man dies leaving personal property in one or more states, and leaves a will directing the manner of distribution of the property, the law of the state where he was domiciled at the time of his death will be looked to in deciding legal questions about the will, almost as completely as the law of situs is consulted in questions about the devise of land. It is logical that, since the domiciliary rules control devolution of the personal estate in case of intestate succession, the same rules should determine the validity of an attempted testamentary dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws rules at the situs property, and the reason for the recognition as in the case of intestate succession, is the general convenience of the doctrine. The New York court has said on the point: 'The general principle that a dispostiton of a personal property, valid at the domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in that international comity which was one of the first fruits of civilization, and it this age, when business intercourse and the process of accumulating property take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.) Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the internal law of California. But as above explained the laws of California have prescribed two sets of laws for its citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that We should enforce the California internal law prescribed for its citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in accordance with the express mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-of-laws rule for those domiciled abroad. It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16 that the national law of the deceased should govern. This

contention can not be sustained. As explained in the various authorities cited above the national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to the law of the testator's domicile. The conflict of laws rule in California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states, between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the decedent, if the question has to be decided, especially as the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code of the Philippines, makes natural children legally acknowledged forced heirs of the parent recognizing them. The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States but with domicile in the Philippines, and it does not appear in each case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code. We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California.. WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with costs against appellees. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-22595 November 1, 1927 Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant. Ross, Lawrence and Selph for appellant. Camus and Delgado for appellee. ROMUALDEZ, J.: The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.) It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore,

no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and executed. lawphil.net Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request. The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the Philippines. If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his legacy. The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the following: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide. And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions. Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor. It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law. All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national law. Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-23678 June 6, 1967 TESTATE ESTATE OF AMOS G. BELLIS, deceased. PEOPLE'S BANK and TRUST COMPANY, executor. MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A. BELLIS, ET AL., heirs-appellees. Vicente R. Macasaet and Jose D. Villena for oppositors appellants. Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al. Quijano and Arroyo for heirs-appellees W. S. Bellis, et al. J. R. Balonkita for appellee People's Bank & Trust Company. Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman. BENGZON, J.P., J.: This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.1wph1.t The facts of the case are as follows: Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis. On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the following order and

manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.1wph1.t Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958. The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies. On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the testator's seven legitimate children by his first and second marriages. On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore, compulsory heirs of the deceased. Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry 1 receipt submitted on April 27, 1964 by the executor. After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes. Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositorsappellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law. In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a 2 national of Texas and a domicile thereof at the time of his death. So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however, of proof as to the conflict of law 3 rule of Texas, it should not be presumed different from ours. Appellants' position is therefore not rested on the doctrine of renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that ART. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found. ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct. Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate succession. As further indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.

It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones. Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis. Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So ordered. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 88694 January 11, 1993 ALBENSON ENTERPRISES CORP., JESSE YAP, AND BENJAMIN MENDIONA, petitioners, vs. THE COURT OF APPEALS AND EUGENIO S. BALTAO, respondents. Puruganan, Chato, Chato & Tan for petitioners. Lino M. Patajo, Francisco Ma. Chanco, Ananiano Desierto and Segundo Mangohig for private respondent. BIDIN, J.: This petition assails the decision of respondent Court of Appeals in CA-GR CV No. 14948 entitled "Eugenio S. Baltao, plaintiff-appellee vs. Albenson Enterprises Corporation, et al, defendants-appellants", which modified the judgment of the Regional Trial Court of Quezon City, Branch XCVIII in Civil Case No. Q-40920 and ordered petitioner to pay private respondent, among others, the sum of P500,000.00 as moral damages and attorney's fees in the amount of P50,000.00. The facts are not disputed. In September, October, and November 1980, petitioner Albenson Enterprises Corporation (Albenson for short) delivered to Guaranteed Industries, Inc. (Guaranteed for short) located at 3267 V. Mapa Street, Sta. Mesa, Manila, the mild steel plates which the latter ordered. As part payment thereof, Albenson was given Pacific Banking Corporation Check No. 136361 in the amount of P2,575.00 and drawn against the account of E.L. Woodworks ( Rollo, p. 148). When presented for payment, the check was dishonored for the reason "Account Closed." Thereafter, petitioner Albenson, through counsel, traced the origin of the dishonored check. From the records of the Securities and Exchange Commission (SEC), Albenson discovered that the president of Guaranteed, the recipient of the unpaid mild steel plates, was one "Eugenio S. Baltao." Upon further inquiry, Albenson was informed by the Ministry of Trade and Industry that E.L. Woodworks, a single proprietorship business, was registered in the name of one "Eugenio Baltao". In addition, upon verification with the drawee bank, Pacific Banking Corporation, Albenson was advised that the signature appearing on the subject check belonged to one "Eugenio Baltao." After obtaining the foregoing information, Albenson, through counsel, made an extrajudicial demand upon private respondent Eugenio S. Baltao, president of Guaranteed, to replace and/or make good the dishonored check. Respondent Baltao, through counsel, denied that he issued the check, or that the signature appearing thereon is his. He further alleged that Guaranteed was a defunct entity and hence, could not have transacted business with Albenson. On February 14, 1983, Albenson filed with the Office of the Provincial Fiscal of Rizal a complaint against Eugenio S. Baltao for violation of Batas Pambansa Bilang 22. Submitted to support said charges was an affidavit of petitioner Benjamin Mendiona, an employee of Albenson. In said affidavit, the above-mentioned circumstances were stated. It appears, however, that private respondent has a namesake, his son Eugenio Baltao III, who manages a business establishment, E.L. Woodworks, on the ground floor of the Baltao Building, 3267 V. Mapa Street, Sta. Mesa, Manila, the very same business address of Guaranteed. On September 5, 1983, Assistant Fiscal Ricardo Sumaway filed an information against Eugenio S. Baltao for Violation of Batas Pambansa Bilang 22. In filing said information, Fiscal Sumaway claimed that he had given Eugenio S. Baltao opportunity to submit controverting evidence, but the latter failed to do so and therefore, was deemed to have waived his right. Respondent Baltao, claiming ignorance of the complaint against him, immediately filed with the Provincial Fiscal of Rizal a motion for reinvestigation, alleging that it was not true that he had been given an opportunity to be heard in the preliminary investigation conducted by Fiscal Sumaway, and that he never had any dealings with Albenson or Benjamin Mendiona,

consequently, the check for which he has been accused of having issued without funds was not issued by him and the signature in said check was not his. On January 30, 1984, Provincial Fiscal Mauro M. Castro of Rizal reversed the finding of Fiscal Sumaway and exonerated respondent Baltao. He also instructed the Trial Fiscal to move for dismissal of the information filed against Eugenio S. Baltao. Fiscal Castro found that the signature in PBC Check No. 136361 is not the signature of Eugenio S. Baltao. He also found that there is no showing in the records of the preliminary investigation that Eugenio S. Baltao actually received notice of the said investigation. Fiscal Castro then castigated Fiscal Sumaway for failing to exercise care and prudence in the performance of his duties, thereby causing injustice to respondent who was not properly notified of the complaint against him and of the requirement to submit his counter evidence. Because of the alleged unjust filing of a criminal case against him for allegedly issuing a check which bounced in violation of Batas Pambansa Bilang 22 for a measly amount of P2,575.00, respondent Baltao filed before the Regional Trial Court of Quezon City a complaint for damages against herein petitioners Albenson Enterprises, Jesse Yap, its owner, and Benjamin Mendiona, its employee. In its decision, the lower court observed that "the check is drawn against the account of "E.L. Woodworks," not of Guaranteed Industries of which plaintiff used to be President. Guaranteed Industries had been inactive and had ceased to exist as a corporation since 1975. . . . . The possibility is that it was with Gene Baltao or Eugenio Baltao III, a son of plaintiff who had a business on the ground floor of Baltao Building located on V. Mapa Street, that the defendants may have been dealing with . . . ." (Rollo, pp. 41-42). The dispositive portion of the trial court 's decision reads: WHEREFORE, judgment is hereby rendered in favor of plaintiff and against defendants ordering the latter to pay plaintiff jointly and severally: 1. actual or compensatory damages of P133,350.00; 2. moral damages of P1,000,000.00 (1 million pesos); 3. exemplary damages of P200,000.00; 4. attorney's fees of P100,000.00; 5 costs. Defendants' counterclaim against plaintiff and claim for damages against Mercantile Insurance Co. on the bond for the issuance of the writ of attachment at the instance of plaintiff are hereby dismissed for lack of merit. (Rollo, pp. 38-39). On appeal, respondent court modified the trial court's decision as follows: WHEREFORE, the decision appealed from is MODIFIED by reducing the moral damages awarded therein from P1,000,000.00 to P500,000.00 and the attorney's fees from P100,000.00 to P50,000.00, said decision being hereby affirmed in all its other aspects. With costs against appellants. ( Rollo, pp. 50-51) Dissatisfied with the above ruling, petitioners Albenson Enterprises Corp., Jesse Yap, and Benjamin Mendiona filed the instant Petition, alleging that the appellate court erred in: 1. Concluding that private respondent's cause of action is not one based on malicious prosecution but one for abuse of rights under Article 21 of the Civil Code notwithstanding the fact that the basis of a civil action for malicious prosecution is Article 2219 in relation to Article 21 or Article 2176 of the Civil Code . . . . 2. Concluding that "hitting at and in effect maligning (private respondent) with an unjust criminal case was, without more, a plain case of abuse of rights by misdirection" and "was therefore, actionable by itself," and which "became inordinately blatant and grossly aggravated when . . . (private respondent) was deprived of his basic right to notice and a fair hearing in the so-called preliminary investigation . . . . " 3. Concluding that petitioner's "actuations in this case were coldly deliberate and calculated", no evidence having been adduced to support such a sweeping statement. 4. Holding the petitioner corporation, petitioner Yap and petitioner Mendiona jointly and severally liable without sufficient basis in law and in fact. 5. Awarding respondents 5.1. P133,350.00 as actual or compensatory damages, even in the absence of sufficient evidence to show that such was actually suffered. 5.2. P500,000.00 as moral damages considering that the evidence in this connection merely involved private respondent's alleged celebrated status as a businessman, there being no showing that the act complained of adversely affected private respondent's reputation or that it resulted to material loss. 5.3. P200,000.00 as exemplary damages despite the fact that petitioners were duly advised by counsel of their legal recourse. 5.4. P50,000.00 as attorney's fees, no evidence having been adduced to justify such an award (Rollo, pp. 4-6). Petitioners contend that the civil case filed in the lower court was one for malicious prosecution. Citing the case of Madera vs. Lopez (102 SCRA 700 [1981]), they assert that the absence of malice on their part absolves them from any liability for malicious prosecution. Private respondent, on the other hand, anchored his complaint for Damages on Articles 19, 20, and 21 ** of the Civil Code.

Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which may be observed not only in the exercise of one's rights but also in the performance of one's duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Although the requirements of each provision is different, these three (3) articles are all related to each other. As the eminent Civilist Senator Arturo Tolentino puts it: "With this article (Article 21), combined with articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to conceive of any malevolent exercise of a right which could not be checked by the application of these articles" (Tolentino, 1 Civil Code of the Philippines 72). There is however, no hard and fast rule which can be applied to determine whether or not the principle of abuse of rights may be invoked. The question of whether or not the principle of abuse of rights has been violated, resulting in damages under Articles 20 and 21 or other applicable provision of law, depends on the circumstances of each case. (Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]). The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure. Thus, under any of these three (3) provisions of law, an act which causes injury to another may be made the basis for an award of damages. There is a common element under Articles 19 and 21, and that is, the act must be intentional. However, Article 20 does not distinguish: the act may be done either "willfully", or "negligently". The trial court as well as the respondent appellate court mistakenly lumped these three (3) articles together, and cited the same as the bases for the award of damages in the civil complaint filed against petitioners, thus: With the foregoing legal provisions (Articles 19, 20, and 21) in focus, there is not much difficulty in ascertaining the means by which appellants' first assigned error should be resolved, given the admitted fact that when there was an attempt to collect the amount of P2,575.00, the defendants were explicitly warned that plaintiff Eugenio S. Baltao is not the Eugenio Baltao defendants had been dealing with (supra, p. 5). When the defendants nevertheless insisted and persisted in filing a case a criminal case no less against plaintiff, said defendants ran afoul of the legal provisions (Articles 19, 20, and 21 of the Civil Code) cited by the lower court and heretofore quoted (supra). Defendants, not having been paid the amount of P2,575.00, certainly had the right to complain. But that right is limited by certain constraints. Beyond that limit is the area of excess, of abuse of rights. (Rollo, pp. 44-45). Assuming, arguendo, that all the three (3) articles, together and not independently of each one, could be validly made the bases for an award of damages based on the principle of "abuse of right", under the circumstances, We see no cogent reason for such an award of damages to be made in favor of private respondent. Certainly, petitioners could not be said to have violated the aforestated principle of abuse of right. What prompted petitioners to file the case for violation of Batas Pambansa Bilang 22 against private respondent was their failure to collect the amount of P2,575.00 due on a bounced check which they honestly believed was issued to them by private respondent. Petitioners had conducted inquiries regarding the origin of the check, and yielded the following results: from the records of the Securities and Exchange Commission, it was discovered that the President of Guaranteed (the recipient of the unpaid mild steel plates), was one "Eugenio S. Baltao"; an inquiry with the Ministry of Trade and Industry revealed that E.L. Woodworks, against whose account the check was drawn, was registered in the name of one "Eugenio Baltao"; verification with the drawee bank, the Pacific Banking Corporation, revealed that the signature appearing on the check belonged to one "Eugenio Baltao". In a letter dated December 16, 1983, counsel for petitioners wrote private respondent demanding that he make good the amount of the check. Counsel for private respondent wrote back and denied, among others, that private respondent ever transacted business with Albenson Enterprises Corporation; that he ever issued the check in question. Private respondent's counsel even went further: he made a warning to defendants to check the veracity of their claim. It is pivotal to note at this juncture that in this same letter, if indeed private respondent wanted to clear himself from the baseless accusation made against his person, he should have made mention of the fact that there are three (3) persons with the same name, i.e.: Eugenio Baltao, Sr., Eugenio S. Baltao, Jr. (private respondent), and Eugenio Baltao III (private respondent's son, who as it turned out later, was the issuer of the check). He, however, failed to do this. The last two Baltaos were doing business in the same building Baltao Building located at 3267 V. Mapa Street, Sta. Mesa, Manila. The mild steel plates were ordered in the name of Guaranteed of which respondent Eugenio S. Baltao is the president and delivered to Guaranteed at Baltao building. Thus, petitioners had every reason to believe that the Eugenio

Baltao who issued the bouncing check is respondent Eugenio S. Baltao when their counsel wrote respondent to make good the amount of the check and upon refusal, filed the complaint for violation of BP Blg. 22. Private respondent, however, did nothing to clarify the case of mistaken identity at first hand. Instead, private respondent waited in ambush and thereafter pounced on the hapless petitioners at a time he thought was propitious by filing an action for damages. The Court will not countenance this devious scheme. The criminal complaint filed against private respondent after the latter refused to make good the amount of the bouncing check despite demand was a sincere attempt on the part of petitioners to find the best possible means by which they could collect the sum of money due them. A person who has not been paid an obligation owed to him will naturally seek ways to compel the debtor to pay him. It was normal for petitioners to find means to make the issuer of the check pay the amount thereof. In the absence of a wrongful act or omission or of fraud or bad faith, moral damages cannot be awarded and that the adverse result of an action does not per se make the action wrongful and subject the actor to the payment of damages, for the law could not have meant to impose a penalty on the right to litigate (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]). In the case at bar, private respondent does not deny that the mild steel plates were ordered by and delivered to Guaranteed at Baltao building and as part payment thereof, the bouncing check was issued by one Eugenio Baltao. Neither had private respondent conveyed to petitioner that there are two Eugenio Baltaos conducting business in the same building he and his son Eugenio Baltao III. Considering that Guaranteed, which received the goods in payment of which the bouncing check was issued is owned by respondent, petitioner acted in good faith and probable cause in filing the complaint before the provincial fiscal. To constitute malicious prosecution, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, and that it was initiated deliberately by the defendant knowing that his charges were false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not make one liable for malicious prosecution. (Manila Gas Corporation vs. Court of Appeals, 100 SCRA 602 [1980]). Still, private respondent argues that liability under Articles 19, 20, and 21 of the Civil Code is so encompassing that it likewise includes liability for damages for malicious prosecution under Article 2219 (8). True, a civil action for damages for malicious prosecution is allowed under the New Civil Code, more specifically Articles 19, 20, 26, 29, 32, 33, 35, and 2219 (8) thereof. In order that such a case can prosper, however, the following three (3) elements must be present, to wit: (1) The fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was finally terminated with an acquittal; (2) That in bringing the action, the prosecutor acted without probable cause; (3) The prosecutor was actuated or impelled by legal malice (Lao vs. Court of Appeals, 199 SCRA 58, [1991]). Thus, a party injured by the filing of a court case against him, even if he is later on absolved, may file a case for damages grounded either on the principle of abuse of rights, or on malicious prosecution. As earlier stated, a complaint for damages based on malicious prosecution will prosper only if the three (3) elements aforecited are shown to exist. In the case at bar, the second and third elements were not shown to exist. It is well-settled that one cannot be held liable for maliciously instituting a prosecution where one has acted with probable cause. "Probable cause is the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. In other words, a suit will lie only in cases where a legal prosecution has been carried on without probable cause. The reason for this rule is that it would be a very great discouragement to public justice, if prosecutors, who had tolerable ground of suspicion, were liable to be sued at law when their indictment miscarried" (Que vs. Intermediate Appellate Court, 169 SCRA 137 [1989]). The presence of probable cause signifies, as a legal consequence, the absence of malice. In the instant case, it is evident that petitioners were not motivated by malicious intent or by sinister design to unduly harass private respondent, but only by a well-founded anxiety to protect their rights when they filed the criminal complaint against private respondent. To constitute malicious prosecution, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, that it was initiated deliberately by the defendant knowing that his charges were false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not make one liable for malicious prosecution. Proof and motive that the institution of the action was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly established to entitle the victims to damages ( Ibid.). In the case at bar, there is no proof of a sinister design on the part of petitioners to vex or humiliate private respondent by instituting the criminal case against him. While petitioners may have been negligent to some extent in determining the liability of private respondent for the dishonored check, the same is not so gross or reckless as to amount to bad faith warranting an award of damages. The root of the controversy in this case is founded on a case of mistaken identity. It is possible that with a more assiduous investigation, petitioners would have eventually discovered that private respondent Eugenio S. Baltao is not the "Eugenio Baltao" responsible for the dishonored check. However, the record shows that petitioners did exert considerable effort in order to determine the liability of private respondent. Their investigation pointed to private respondent as the "Eugenio Baltao" who issued and signed the dishonored check as the president of the debtor-corporation Guaranteed Enterprises. Their error in proceeding against the wrong individual was obviously in the nature of an innocent mistake, and cannot be characterized as having been committed in bad faith. This error could have been discovered if respondent had submitted his counter-affidavit before investigating fiscal Sumaway and was immediately rectified by Provincial Fiscal Mauro Castro upon discovery thereof, i.e., during the reinvestigation resulting in the dismissal of the complaint.

Furthermore, the adverse result of an action does not per se make the act wrongful and subject the actor to the payment of moral damages. The law could not have meant to impose a penalty on the right to litigate, such right is so precious that moral damages may not be charged on those who may even exercise it erroneously. And an adverse decision does not ipso facto justify the award of attorney's fees to the winning party (Garcia vs. Gonzales, 183 SCRA 72 [1990]). Thus, an award of damages and attorney's fees is unwarranted where the action was filed in good faith. If damage results from a person's exercising his legal rights, it is damnum absque injuria (Ilocos Norte Electric Company vs. Court of Appeals, 179 SCRA 5 [1989]). Coming now to the claim of private respondent for actual or compensatory damages, the records show that the same was based solely on his allegations without proof to substantiate the same. He did not present proof of the cost of the medical treatment which he claimed to have undergone as a result of the nervous breakdown he suffered, nor did he present proof of the actual loss to his business caused by the unjust litigation against him. In determining actual damages, the court cannot rely on speculation, conjectures or guesswork as to the amount. Without the actual proof of loss, the award of actual damages becomes erroneous (Guilatco vs. City of Dagupan, 171 SCRA 382 [1989]). Actual and compensatory damages are those recoverable because of pecuniary loss in business, trade, property, profession, job or occupation and the same must be proved, otherwise, if the proof is flimsy and unsubstantiated, no damages will be given (Rubio vs. Court of Appeals, 141 SCRA 488 [1986]). For these reasons, it was gravely erroneous for respondent court to have affirmed the award of actual damages in favor of private respondent in the absence of proof thereof. Where there is no evidence of the other party having acted in wanton, fraudulent or reckless, or oppressive manner, neither may exemplary damages be awarded (Dee Hua Liong Electrical Equipment Corporation vs. Reyes, 145 SCRA 488 [1986]). As to the award of attorney's fees, it is well-settled that the same is the exception rather than the general rule. Needless to say, the award of attorney's fees must be disallowed where the award of exemplary damages is eliminated (Article 2208, Civil Code; Agustin vs. Court of Appeals, 186 SCRA 375 [1990]). Moreover, in view of the fact that there was no malicious prosecution against private respondent, attorney's fees cannot be awarded him on that ground. In the final analysis, there is no proof or showing that petitioners acted maliciously or in bad faith in the filing of the case against private respondent. Consequently, in the absence of proof of fraud and bad faith committed by petitioners, they cannot be held liable for damages (Escritor, Jr. vs. Intermediate Appellate Court, 155 SCRA 577 [1987]). No damages can be awarded in the instant case, whether based on the principle of abuse of rights, or for malicious prosecution. The questioned judgment in the instant case attests to the propensity of trial judges to award damages without basis. Lower courts are hereby cautioned anew against awarding unconscionable sums as damages without bases therefor. WHEREFORE, the petition is GRANTED and the decision of the Court of Appeals in C.A. G.R. C.V. No. 14948 dated May 13, 1989, is hereby REVERSED and SET ASIDE. Costs against respondent Baltao. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 154259 February 28, 2005 NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners, vs. ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent. DECISION CHICO-NAZARIO, J.: 1 In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko) and Ruby Lim assail the 2 3 Decision of the Court of Appeals dated 26 November 2001 reversing the Decision of the Regional Trial Court (RTC) of 4 Quezon City, Branch 104, as well as the Resolution of the Court of Appeals dated 09 July 2002 which denied petitioners motion for reconsideration. The cause of action before the trial court was one for damages brought under the human relations provisions of the New Civil Code. Plaintiff thereat (respondent herein) Roberto Reyes, more popularly known by the screen name "Amay Bisaya," alleged that at around 6:00 oclock in the evening of 13 October 1994, while he was having coffee at the lobby of 5 6 Hotel Nikko, he was spotted by his friend of several years, Dr. Violeta Filart, who then approached him. Mrs. Filart invited him to join her in a party at the hotels penthouse in celebration of the natal day of the hotels manager, Mr. 7 8 Masakazu Tsuruoka. Mr. Reyes asked if she could vouch for him for which she replied: "of course." Mr. Reyes then went 9 up with the party of Dr. Filart carrying the basket of fruits which was the latters present for the celebrant. At the 10 penthouse, they first had their picture taken with the celebrant after which Mr. Reyes sat with the party of Dr. Filart. After a couple of hours, when the buffet dinner was ready, Mr. Reyes lined-up at the buffet table but, to his great shock, shame and embarrassment, he was stopped by petitioner herein, Ruby Lim, who claimed to speak for Hotel Nikko as Executive 11 Secretary thereof. In a loud voice and within the presence and hearing of the other guests who were making a queue at the buffet table, Ruby Lim told him to leave the party (" huwag ka nang kumain, hindi ka imbitado, bumaba ka na 12 13 lang"). Mr. Reyes tried to explain that he was invited by Dr. Filart. Dr. Filart, who was within hearing distance, however, 14 completely ignored him thus adding to his shame and humiliation. Not long after, while he was still recovering from the

traumatic experience, a Makati policeman approached and asked him to step out of the hotel. Like a common criminal, 16 he was escorted out of the party by the policeman. Claiming damages, Mr. Reyes asked for One Million Pesos actual 17 damages, One Million Pesos moral and/or exemplary damages and Two Hundred Thousand Pesos attorneys fees. Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the ignominious circumstance 18 painted by the latter. Ms. Lim narrated that she was the Hotels Executive Secre tary for the past twenty (20) years. One 19 of her functions included organizing the birthday party of the hotels former General Manager, Mr. Tsuruoka. The year 1994 was no different. For Mr. Tsuruokas party, Ms. Lim generated an exclusive guest list and extended invitations 20 accordingly. The guest list was limited to approximately sixty (60) of Mr. Tsuruokas closest friends and some hotel 21 employees and that Mr. Reyes was not one of those invited. At the party, Ms. Lim first noticed Mr. Reyes at the bar 22 counter ordering a drink. Mindful of Mr. Tsuruokas wishes to keep the party intimate, Ms. Lim approached Mr. Boy 23 Miller, the "captain waiter," to inquire as to the presence of Mr. Reyes who was not invited. Mr. Miller replied that he saw 24 Mr. Reyes with the group of Dr. Filart. As Dr. Filart was engaged in conversation with another guest and as Ms. Lim did not want to interrupt, she inquired instead from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did 25 26 not invite Mr. Reyes. Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party as he was not invited. Mr. Reyes, however, lingered prompting Ms. Lim to inquire from Ms. Fruto who said that Mr. Reyes did not want to 27 leave. When Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung whom she later 28 approached. Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim requested from him the same favor 29 from Ms. Fruto,i.e., for Captain Batung to tell Mr. Reyes to leave the party as he was not invited. Still, Mr. Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she decided to speak to him herself as there were no other 30 guests in the immediate vicinity. However, as Mr. Reyes was already helping himself to the food, she decided to 31 wait. When Mr. Reyes went to a corner and started to eat, Ms. Lim approached him and said: "alam ninyo, hindo ho kayo dapat nandito. Pero total nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po 32 umalis na kayo." She then turned around trusting that Mr. Reyes would show enough decency to leave, but to her 33 surprise, he began screaming and making a big scene, and even threatened to dump food on her. 1awphi1.nt Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version of the story to the 34 effect that she never invited Mr. Reyes to the party. According to her, it was Mr. Reyes who volunteered to carry the basket of fruits intended for the celebrant as he was likewise going to take the elevator, not to the penthouse but to 35 Altitude 49. When they reached the penthouse, she reminded Mr. Reyes to go down as he was not properly dressed 36 and was not invited. All the while, she thought that Mr. Reyes already left the place, but she later saw him at the bar 37 38 39 talking to Col. Batung. Then there was a commotion and she saw Mr. Reyes shouting. She ignored Mr. Reyes. She 40 was embarrassed and did not want the celebrant to think that she invited him. 41 After trial on the merits, the court a quo dismissed the complaint, giving more credence to the testimony of Ms. Lim that she was discreet in asking Mr. Reyes to leave the party. The trial court likewise ratiocinated that Mr. Reyes assumed the risk of being thrown out of the party as he was uninvited: Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the birthday celebrant. He assumed the risk of being asked to leave for attending a party to which he was not invited by the host. Damages are pecuniary consequences which the law imposes for the breach of some duty or the violation of some right. Thus, no recovery can be had against defendants Nikko Hotel and Ruby Lim because he himself was at fault (Garciano v. Court of Appeals, 212 SCRA 436). He knew that it was not the party of defendant Violeta Filart even if she allowed him to join her and took responsibility for his attendance at the party. His action against defendants Nikko Hotel and Ruby Lim must 42 therefore fail. On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding of belief the testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud voice within hearing distance of several guests: In putting appellant in a very embarrassing situation, telling him that he should not finish his food and to leave the place within the hearing distance of other guests is an act which is contrary to morals, good customs . . ., for which appellees should compensate the appellant for the damage suffered by the latter as a consequence therefore (Art. 21, New Civil Code). The liability arises from the acts which are in themselves legal or not prohibited, but contrary to morals or good customs. Conversely, even in the exercise of a formal right, [one] cannot with impunity intentionally cause damage to 43 another in a manner contrary to morals or good customs. The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to inquire into the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as she should have approached Dr. Filart first and both of them should have talked to Mr. Reyes in private: Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to approach appellee Mrs. Filart and together they should have told appellant Reyes in private that the latter should leave the party as the celebrant only wanted close friends around. It is necessary that Mrs. Filart be the one to approach appellant because it was she who invited appellant in that occasion. Were it not for Mrs. Filarts invitation, appellant could not have suffered such humiliation. For that, appellee Filart is equally liable. ... The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of consideration of one person, which calls not only protection of human dignity but respect of such dignity. Under Article 20 of the Civil Code, every person who violates this duty becomes liable for damages, especially if said acts were attended by malice or bad faith. Bad faith does not simply connote bad judgment or simple negligence. It imports a dishonest purpose or some moral

15

obliquity and conscious doing of a wrong, a breach of a known duty to some motive or interest or ill-will that partakes of 44 the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603). Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the solidary obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred Thousand Pesos (P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos (P200,000); and (3) attorneys fees in the amount of Ten Thousand Pesos 45 (P10,000). On motion for reconsideration, the Court of Appeals affirmed its earlier decision as the argument raised in the 46 motion had "been amply discussed and passed upon in the decision sought to be reconsidered." Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals seriously erred in I. NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER II. HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR. FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE SUFFERED SUCH HUMILIATION," "WERE IT NOT FOR DR. FILARTS INVITATION" III. DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA IV. IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS REGARD V. IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANTS BRIEF, THEREBY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they cannot be made liable for damages as respondent Reyes assumed the risk of being asked to leave (and being embarrassed and humiliated in the process) as he was a "gate-crasher." 47 The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as injury" ) refers to self-inflicted 48 49 injury or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily 50 exposed himself to danger, even if he is not negligent in doing so. As formulated by petitioners, however, this doctrine does not find application to the case at bar because even if respondent Reyes assumed the risk of being asked to leave the party, petitioners, under Articles 19 and 21 of the New Civil Code, were still under obligation to treat him fairly in order not to expose him to unnecessary ridicule and shame. Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes, a.k.a. "Amay Bisaya," to leave the party where he was not invited by the celebrant thereof thereby becoming liable under Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim were so liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her. As the trial court and the appellate court reached divergent and irreconcilable conclusions concerning the same facts and evidence of the case, this Court is left without choice but to use its latent power to review such findings of facts. Indeed, 51 the general rule is that we are not a trier of facts as our jurisdiction is limited to reviewing and revising errors of law. One of the exceptions to this general rule, however, obtains herein as the findings of the Court of Appeals are contrary to those 52 of the trial court. The lower court ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to leave the party as she talked to him politely and discreetly. The appellate court, on the other hand, held that Ms. Lim is liable for damages as she needlessly embarrassed Mr. Reyes by telling him not to finish his food and to leave the place within hearing distance of the other guests. Both courts, however, were in agreement that it was Dr. Filarts invitation that brought Mr. Reyes to the party. The consequential question then is: Which version is credible? From an in depth review of the evidence, we find more credible the lower courts findings of fact. First, let us put things in the proper perspective. 53 We are dealing with a formal party in a posh, five-star hotel, for-invitation-only, thrown for the hotels former Manager, a 54 Japanese national. Then came a person who was clearly uninvited (by the celebrant) and who could not just disappear into the crowd as his face is known by many, being an actor. While he was already spotted by the organizer of the party, Ms. Lim, the very person who generated the guest list, it did not yet appear that the celebrant was aware of his presence. Ms. Lim, mindful of the celebrants instruction to keep the party intimate, would naturally want to get rid of the "gatecrasher" in the most hush-hush manner in order not to call attention to a glitch in an otherwise seamless affair and, in the process, risk the displeasure of the celebrant, her former boss. To unnecessarily call attention to the presence of Mr. Reyes would certainly reflect badly on Ms. Lims ability to follow the instructions of the celebrant to invite only his close friends and some of the hotels personnel. Mr. Reyes, upon whom the burden rests t o prove that indeed Ms. Lim loudly and rudely ordered him to leave, could not offer any satisfactory explanation why Ms. Lim would do that and risk ruining a formal and intimate affair. On the contrary, Mr. Reyes, on cross-examination, had unwittingly sealed his fate by admitting that when Ms. Lim talked to him, she was very close. Close enough for him to kiss:

Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet table? How close was she when she approached you? A: Very close because we nearly kissed each other. Q: And yet, she shouted for you to go down? She was that close and she shouted? A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang." Q: So, you are testifying that she did this in a loud voice? ... 55 A: Yes. If it is not loud, it will not be heard by many. In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him to ridicule and shame, it is highly unlikely that she would shout at him from a very close distance. Ms. Lim having been in the hotel business for twenty years wherein being polite and discreet are virtues to be emulated, the testimony of Mr. Reyes that she acted to the contrary does not inspire belief and is indeed incredible. Thus, the lower court was correct in observing that Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the party was made such that they nearly kissed each other, the request was meant to be heard by him only and there could have been no intention on her part to cause embarrassment to him. It was plaintiffs reaction to the request that must have made the other guests aware of what transpired between them. . . 56 Had plaintiff simply left the party as requested, there was no need for the police to take him out. Moreover, another problem with Mr. Reyess version of the story is that it is unsupported. It is a basic rule in civil cases that he who alleges proves. Mr. Reyes, however, had not presented any witness to back his story up. All his witnesses 57 Danny Rodinas, Pepito Guerrero and Alexander Silva - proved only that it was Dr. Filart who invited him to the party. Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not invited, cannot be made liable to pay for damages under Articles 19 and 21 of the Civil Code. Necessarily, neither can her employer, Hotel Nikko, 58 be held liable as its liability springs from that of its employee. 59 Article 19, known to contain what is commonly referred to as the principle of abuse of rights, is not a panacea for all human hurts and social grievances. Article 19 states: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.1awphi1.nt Elsewhere, we explained that when "a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be 60 responsible." The object of this article, therefore, is to set certain standards which must be observed not only in the 61 exercise of ones rights but also in the performance of ones duties. These standards are the following: act with justice, 62 give everyone his due and observe honesty and good faith. Its antithesis, necessarily, is any act evincing bad faith or intent to injure. Its elements are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for 63 the sole intent of prejudicing or injuring another. When Article 19 is violated, an action for damages is proper under 64 Articles 20 or 21 of the Civil Code. Article 20 pertains to damages arising from a violation of law which does not obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states: Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. 65 Article 21 refers to acts contra bonus mores and has the following elements: (1) There is an act which is legal; (2) but 66 which is contrary to morals, good custom, public order, or public policy; and (3) it is done with intent to injure. 67 68 A common theme runs through Articles 19 and 21, and that is, the act complained of must be intentional. As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was driven by animosity against him. These two people did not know each other personally before the evening of 13 October 1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms. Lims alleged abusive cond uct except the statement that Ms. Lim, being "single at 44 years old," had a "very strong bias and prejudice against (Mr. Reyes) possibly influenced by her 69 associates in her work at the hotel with foreign businessmen." The lameness of this argument need not be belabored. Suffice it to say that a complaint based on Articles 19 and 21 of the Civil Code must necessarily fail if it has nothing to recommend it but innuendos and conjectures. Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable and humane under the circumstances. In this regard, we cannot put our imprimatur on the appellate courts declaration that Ms. Lims act of personally approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed she invited Mr. Reyes) gave rise to a cause of action "predicated upon mere rudeness or lack of consideration of one person, which calls not only protection of 70 human dignity but respect of such dignity." Without proof of any ill-motive on her part, Ms. Lims act of by-passing Mrs. Filart cannot amount to abusive conduct especially because she did inquire from Mrs. Filarts companion who told her that 71 Mrs. Filart did not invite Mr. Reyes. If at all, Ms. Lim is guilty only of bad judgment which, if done with good intentions, cannot amount to bad faith. Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be made answerable for 72 exemplary damages especially for the reason stated by the Court of Appeals. The Court of Appeals held Not a few of the rich people treat the poor with contempt because of the latters lowly station in life. l^vvphi1.net This has to be limited somewhere. In a democracy, such a limit must be established. Social equality is not sought by the legal provisions under consideration, but due regard for decency and propriety (Code Commission, pp. 33-34). And by way of

example or correction for public good and to avert further commission of such acts, exemplary damages should be 73 imposed upon appellees. The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of the case and the evidence on hand.l^vvphi1.net It is not disputed that at the time of the incident in question, Mr. Reyes was "an actor of long standing; a co-host of a radio program over DZRH; a Board Member of the Music Singer Composer (MUSICO) chaired by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime Watch; and 1992 official candidate of the 74 KBL Party for Governor of Bohol; and an awardee of a number of humanitarian organizations of the Philippines." During 75 his direct examination on rebuttal, Mr. Reyes stressed that he had income and nowhere did he say otherwise. On the other hand, the records are bereft of any information as to the social and economic standing of petitioner Ruby Lim. Consequently, the conclusion reached by the appellate court cannot withstand scrutiny as it is without basis. All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might have suffered through Ms. Lims exercise of a legitimate right done within the bounds of propr iety and good faith, must be his to bear alone. WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden is GRANTED. The Decision of the Court of Appeals dated 26 November 2001 and its Resolution dated 09 July 2002 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 104, dated 26 April 1999 is hereby AFFIRMED. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-20089 December 26, 1964 BEATRIZ P. WASSMER, plaintiff-appellee, vs. FRANCISCO X. VELEZ, defendant-appellant. Jalandoni & Jamir for defendant-appellant. Samson S. Alcantara for plaintiff-appellee. BENGZON, J.P., J.: The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in frustration and, what is worse, complete public humiliation. Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 2, 1954 Velez left this note for his bride-to-be: Dear Bet Will have to postpone wedding My mother opposes it. Am leaving on the Convair today. Please do not ask too many people about the reason why That would only create a scandal. Paquing But the next day, September 3, he sent her the following telegram: NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE . PAKING Thereafter Velez did not appear nor was he heard from again. Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees; and the costs. On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration." Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the petition for relief and the opposition thereto will be deemed submitted for resolution." On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to defer for two weeks the resolution on defendants petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City the latter's residence on the possibility of an amicable element. The court granted two weeks counted from August 25, 1955. Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his counsel had failed to appear. Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling the case amicably were nil. On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default. Specifically, it was stated that defendant filed no answer in the belief that an amicable settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29, 1960.) Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought to be set aside was null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L-14557, October 30, 1959). In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that "there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so. It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article 21 of said Code provides that "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage." The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for plaintiff stating: "Will have to postpone wedding My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from again. Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21 aforesaid. Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the award of actual damages. What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00, should be totally eliminated. Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code. As to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the New Civil Code the condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be a reasonable award. PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with costs. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION GR. No. 101236 January 30, 1992 JULIANA P. YAP, petitioner, vs. MARTIN PARAS and ALFREDO D. BARCELONA, SR., Judge of the 3rd MTC of Glan Malapatan, South Cotabato, respondents. Mariano C. Alegarbes for petitioner. Public Attorney's Office for private respondent. CRUZ, J.:

This is still another dispute between brother and sister over a piece of property they inherited from their parents. The case is complicated by the circumstance that the private respondent's counsel in this petition is the son of the judge, the other respondent, whose action is being questioned. Petitioner Juliana P. Yap was the sister of private respondent Martin Paras.* On October 31, 1971, according to Yap, Paras sold to her his share in the intestate estate for P300.00. The sale was evidenced by a private document. Nineteen years later, on May 2, 1990, Paras sold the same property to Santiago Sayaang for P5,000.00. This was evidenced by a notarized Deed of Absolute Sale. When Yap learned of the second sale, she filed a complaint for estafa against Paras and Saya-ang with the Office of the 1 Provincial Prosecutor of General Santos City. On the same date, she filed a complaint for the nullification of the said sale 2 with the Regional Trial Court of General Santos City. After investigation, the Provincial Prosecutor instituted a criminal complaint for estafa against Paras with the Municipal Circuit Trial Court of Glan-Malapatan, South Cotabato, presided by Judge Alfredo D. Barcelona, Sr. On April 17, 1991, before arraignment of the accused, the trial judge motu proprio issued an order dismissing the criminal case on the ground that: . . . after a careful scrutiny of the statements of complainant, Juliana P. Yap and of the respondent Martin Paras and his witnesses, the Court holds and maintained (sic) that there is a prejudicial question to a civil action, which must be ventilated in the proper civil court. In the case of Ras vs. Rasul, 100 SCRA 125, the Supreme Court had already made a pronouncement that "a criminal action for Estafa for alleged double sale of property is a prejudicial question to a civil action for nullity of the alleged Deed of Sale and 3 defense of the alleged vendors of forgeries of their signatures to the Deed." The Petitioner moved for reconsideration, which was denied on April 30, 1990. She then came to this Court for relief in this special civil action for certiorari. The Court could have referred this petition to the Court of Appeals, which has concurrent jurisdiction under BP 129, but decided to resolve the case directly in view of the peculiar circumstances involved. The petitioner's contention is that where there is a prejudicial question in a civil case, the criminal action may not be dismissed but only suspended. Moreover, this suspension may not be done motu proprio by the judge trying the criminal case but only upon petition of the defendant in accordance with the Rules of Court. It is also stressed that a reversal of the order of dismissal would not bar the prosecution of the accused under the double jeopardy rule because he has not yet been arraigned. The Court notes that the counsel for private respondent Paras who filed the comment in his behalf is the son and namesake of Judge Barcelona. Atty. Alfredo L. Barcelona, Jr. is employed in the Public Attorney's Office. He has made it of record that he was not the counsel of Paras at the time the questioned order of dismissal was issued by his father. He thus impliedly rejects the charge of bias against his father. Perhaps out of filial loyalty, Atty. Barcelona suggests there may have been a basis for the order in view of the alleged double sale of the property which was being litigated in the regional trial court. He concedes, however, that the order may have been premature and that it could not have been issued motu proprio. Agreeing that double jeopardy would not attach because of the lack of arraignment, he asks that his Comment be considered a motion for the suspension of the criminal action on the ground of prejudicial question. The Court has deliberated on the issues and finds that the respondent judge did indeed commit grave abuse of discretion in motu proprio issuing the order of dismissal. Section 6, Rule 111 of the 1985 Rules on Criminal Procedure as amended by this Court on July 7, 1988, provides as follows: Sec. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the fiscal or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. Judge Barcelona's precipitate action is intriguing, to say the least, in light of the clear provision of the above-quoted rule. The rule is not even new, being only a rewording of the original provision in the Rules of Court before they were amended. It plainly says that the suspension may be made only upon petition and not at the instance of the judge alone, and it also says suspension, and not dismissal. One also wonders if the person who notarized the disputed second sale, Notary Public Alexander C. Barcelona, might be related to the respondent judge. But more important than the preceding considerations is the trial judge's misapprehension of the concept of a prejudicial question. Section 5, Rule 111 of the 1985 Rules on Criminal Procedure as amended provides: Sec. 5. Elements of prejudicial question. The two (2) essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the congnizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another

court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it 5 that it determines the guilt or innocence of the accused. We have held that "for a civil case to be considered prejudicial to a criminal action as to cause the suspension of the criminal action pending the determination of the civil action, it must appear not only that the civil case involves the same facts upon which the criminal prosecution is based, but also that the resolution of the issues raised in said civil action 6 would be necessarily determinative of the guilt or innocence of the accused". It is the issue in the civil action that is prejudicial to the continuation of the criminal action, not the criminal action that is prejudicial to the civil action. The excerpt quoted by the respondent judge in his Order does not appear anywhere in the decision of Ras 7 v.Rasul. Worse, he has not only misquoted the decision but also wrongly applied it. The facts of that case are not analogous to those in the case at bar. In that case, Ras allegedly sold to Pichel a parcel of land which he later also sold to Martin. Pichel brought a civil action for nullification of the second sale and asked that the sale made by Ras in his favor be declared valid. Ras's defense was that he never sold the property to Pichel and his purported signatures appearing in the first deed of sale were forgeries. Later, an information for estafa was filed against Ras based on the same double sale that was the subject of the civil action. Ras filed a "Motion for Suspension of Action" (that is, the criminal case), claiming that the resolution of the issues in the civil case would necessarily be determinative of his guilt or innocence. Through then Associate Justice Claudio Teehankee, this Court ruled that a suspension of the criminal action was in order because: On the basis of the issues raised in both the criminal and civil cases against petitioner and in the light of the foregoing concepts of a prejudicial question, there indeed appears to be a prejudicial question in the case at bar, considering that petitioner Alejandro Ras' defense (as defendant) in Civil Case No. 73 of the nullity and forgery of the alleged prior deed of sale in favor of Luis Pichel (plaintiff in the civil case and complaining witnesses in the criminal case) is based on the very same facts which would be necessarily determinative of petitioner Ras' guilt or innocence as accused in the criminal case. If the first alleged sale in favor of Pichel is void or fictitious, then there would be no double sale and petitioner would be innocent of the offense charged. A conviction in the criminal case (if it were allowed to proceed ahead) would be a gross injustice and would have to be set aside if it were finally decided in the civil action that indeed the alleged prior deed of sale was a forgery and spurious. xxx xxx xxx The petitioner Alejandro Ras claims in his answer to the complaint in Civil Case No. 73 that he had never sold the property in litigation to the plaintiff (Luis Pichel) and that his signatures in the alleged deed of sale and that of his wife were forged by the plaintiff. It is, therefore, necessary that the truth or falsity of such claim be first determined because if his claim is true, then he did not sell his property twice and no estafa was committed. The question of nullity of the sale is distinct and separate from the crime of estafa (alleged double sale) but so intimately connected with it that it determines the guilt or innocence of herein petitioner in the criminal action. In the Ras case, there was a motion to suspend the criminal action on the ground that the defense in the civil case forgery of his signature in the first deed of sale had to be threshed out first. Resolution of that question would necessarily resolve the guilt or innocence of the accused in the criminal case. By contrast, there was no motion for suspension in the case at bar; and no less importantly, the respondent judge had not been informed of the defense Paras was raising in the civil action. Judge Barcelona could not have ascertained then if the issue raised in the civil action would determine the guilt or innocence of the accused in the criminal case. It is worth remarking that not every defense raised in the civil action will raise a prejudicial question to justify suspension of the criminal action. The defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution should determine whether or not the latter action may proceed. The order dismissing the criminal action without a motion for suspension in accordance with Rule 111, Section 6, of the 1985 Rules on Criminal Procedure as amended, and even without the accused indicating his defense in the civil case for the annulment of the second sale, suggests not only ignorance of the law but also bias on the part of the respondent judge. Judge Alfredo D. Barcelona, Sr. is sternly reminded that under the Code of Judicial Conduct, "a judge shall be faithful to the law and maintain professional competence" and "should administer justice impartially." He is hereby reprimanded for his questionable conduct in the case at bar, with the warning that commission of similar acts in the future will be dealt with more severely. WHEREFORE, the petition is GRANTED. The Order issued by Judge Alfredo D. Barcelona, Sr. dated April 17, 1991, dismissing Criminal Case No. 1902-G, and the Order dated April 30, 1991, denying the motion for reconsideration, are REVERSED and SET ASIDE. Criminal Case No. 1902-G is ordered REINSTATED for further proceedings, but to be assigned to a different judge. SO ORDERED. Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. L-22579 February 23, 1968 ROLANDO LANDICHO, petitioner, vs. HON. LORENZO RELOVA, in his capacity as Judge of the Court of First Instance of Batangas, Branch I, and PEOPLE OF THE PHILIPPINES, respondents. Jose W. Diokno for petitioner. Office of the Solicitor General for respondents. FERNANDO, J.: In this petition for certiorari and prohibition with preliminary injunction, the question before the Court is whether or not the existence of a civil suit for the annulment of marriage at the instance of the second wife against petitioner, with the latter in turn filing a third party complaint against the first spouse for the annulment of the first marriage, constitutes a prejudicial question in a pending suit for bigamy against him. Respondent, Judge Relova answered in the negative. We sustain him. The pertinent facts as set forth in the petition follow. On February 27, 1963, petitioner was charged before the Court of First Instance of Batangas, Branch I, presided over by respondent Judge, with the offense, of bigamy. It was alleged in the information that petitioner "being then lawfully married to Elvira Makatangay, which marriage has not been legally dissolved, did then and there wilfully, unlawfully and feloniously contract a second marriage with Fe Lourdes Pasia." On March 15, 1963, an action was filed before the Court of First Instance ofBatangas, likewise presided plaintiff respondent Judge Fe Lourdes Pasia, seeking to declare her marriage to petitioner as null and void ab initio because of the alleged use of force, threats and intimidation allegedly employed by petitioner and because of its allegedly bigamous character. On June 15, 1963, petitioner as defendant in said case, filed a third-party complaint, against the third-party defendant Elvira Makatangay, the first spouse, praying that his marriage with the said third-party defendant be declared null and void, on the ground that by means of threats, force and intimidation, she compelled him to appear and contract marriage with her before the Justice of the Peace of Makati, Rizal. Thereafter, on October 7, 1963, petitioner moved to suspend the hearing of the criminal case pending the decision on the question of the validity of the two marriages involved in the pending civil suit. Respondent Judge on November 19, 1963 denied the motion for lack of merit. Then came a motion for reconsideration to set aside the above order, which was likewise denied on March 2, 1964. Hence this petition, filed on March 13, 1964. In a resolution of this Court of March 17, 1964, respondent Judge was required to answer within ten (10) days, with a preliminary injunction being issued to restrain him from further proceeding with the prosecution of the bigamy case. In the meanwhile, before the answer was filed there was an amended petition for certiorari, the amendment consisting solely in the inclusion of the People of the Philippines as another respondent. This Court admitted such amended petition in a resolution of April 3, 1964. Then came the answer to the amended petition on May 14 of that year where the statement of facts as above detailed was admitted, with the qualifications that the bigamy charge was filed upon the complaint of the first spouse Elvira Makatangay. It alleged as one of its special and affirmative defenses that the mere fact that "there are actions to annul the marriages entered into by the accused in a bigamy case does not mean that 'prejudicial questions are 1 automatically raised in said civil actions as to warrant the suspension of the criminal case for bigamy." The answer stressed that even on the assumption that the first marriage was null and void on the ground alleged by petitioner, the fact would not be material to the outcome of the criminal case. It continued, referring to Viada, that "parties to the marriage should not be permitted to judge for themselves its nullity, for this must be submitted to the judgment of competent courts and only when the nullity of a marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists. Therefore, according to Viada, he who contracts a second marriage before 2 the judicial declaration of nullity of the first marriage incurs the penalty provided for in this Article. . . ." This defense is in accordance with the principle implicit in authoritative decisions of this Court. In Merced v. 3 Diez, what was in issue was the validity of the second marriage, "which must be determined before hand in the civil action before the criminal action can proceed." According to the opinion of Justice Labrador: "We have a situation where the issue of the validity of the second marriage can be determined or must first be determined in the civil action before the criminal action for bigamy can be prosecuted. The question of the validity of the second marriage is, therefore, a prejudicial question because determination of the validity of the second marriage is determinable in the civil action and must precede the criminal action for bigamy." It was the conclusion of this Court then that for petitioner Merced to be found guilty of bigamy, the second marriage which he contracted "must first be declared valid." Its validity having been questioned in the civil action, there must be a decision in such a case "before the prosecution for bigamy can proceed." 4 To the same effect is the doctrine announced in Zapanta v. Mendoza. As explained in the opinion of Justice Dizon: "We have heretofore defined a prejudicial question as that which arises in a case, the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. . . . The prejudicial question we further said must be determinative of the case before the court, and jurisdiction to try the same must be lodged in another court. . . . These requisites are present in the case at bar. Should the question for annulment of the second marriage pending in the Court of First Instance of Pampanga prosper on the ground that, according to the evidence, petitioner's consent thereto was obtained by means of duress, force and intimidation, it is obvious that his act was involuntary and can not be the basis of his conviction for the crime of bigamy with which he was charged in the Court

of First Instance of Bulacan. Thus the issue involved in the action for the annulment of the second marriage is determinative of petitioner's guilt or innocence of the crime of bigamy. . . ." The situation in this case is markedly different. At the time the petitioner was indicted for bigamy on February 27, 1963, the fact that two marriage ceremonies had been contracted appeared to be indisputable. Then on March 15, 1963, it was the second spouse, not petitioner who filed an action for nullity on the ground of force, threats and intimidation. It was sometime later, on June 15, 1963, to be precise, when petitioner, as defendant in the civil action, filed a third-party complaint against the first spouse alleging that his marriage with her should be declared null and void on the ground of force, threats and intimidation. As was correctly stressed in the answer of respondent Judge relying on Viada, parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy. Such was the situation of petitioner. There is no occasion to indulge in the probability that the third-party complaint against the first wife brought almost five months after the prosecution for bigamy was started could have been inspired by the thought that he could thus give color to a defense based on an alleged prejudicial question. The above judicial decisions as well as the opinion of Viada preclude a finding that respondent Judge abused, much less gravely abused, his discretion in failing to suspend the hearing as sought by petitioner. WHEREFORE, the petition for certiorari is denied and the writ of preliminary injunction issued dissolved. With costs.1wph1.t Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-16439 July 20, 1961 ANTONIO GELUZ, petitioner, vs. THE HON. COURT OF APPEALS and OSCAR LAZO, respondents. Mariano H. de Joya for petitioner. A.P. Salvador for respondents. REYES, J.B.L., J.: This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from physician who caused the same. The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion. The facts are set forth in the majority opinion as follows: Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion. It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon application of the defendant Geluz we granted certiorari. The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations. Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child ( conceptus pro nato habetur) under Article 40 of the Civil

Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb. The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639). This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated. The dissenting Justices of the Court of Appeals have aptly remarked that: It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries. It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis. The decision appealed from is reversed, and the complaint ordered dismissed. Without costs. Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant. Republic of the Philippines SUPREME COURT FIRST DIVISION G.R. No. 154380 October 5, 2005 REPUBLIC OF THE PHILIPPINES, Petitioner, vs. CIPRIANO ORBECIDO III, Respondent. DECISION QUISUMBING, J.: Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. 1 In this petition for review, the Solicitor General assails the Decision dated May 15, 2002, of the Regional Trial Court of 2 Molave, Zamboanga del Sur, Branch 23 and its Resolution dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. 3 IT IS SO ORDERED. The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discover ed that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: 4 WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper 5 remedy, according to the OSG, is to file a petition for annulment or for legal separation. Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial 6 determination. For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law 7 pursuant to Section 12, Article II of the Constitution. At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. ... The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the 8 controversy; and (4) that the issue is ripe for judicial determination. This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment? Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied) On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. 9 Noteworthy, in the Report of the Public Hearings on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:

1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can. 2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.) Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. 10 Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? 11 The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may 12 therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent. If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it 13 and mere allegation is not evidence. Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it 14 must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and 15 proved. Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, base d on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that

respondent is now capacitated to remarry. Such declaration could only be made properly upon resp ondents submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 160172 February 13, 2008 REINEL ANTHONY B. DE CASTRO, petitioner, vs. ANNABELLE ASSIDAO-DE CASTRO, respondent. DECISION TINGA, J.: 1 2 This is a petition for review of the Decision of the Court of Appeals in CA-GR CV. No. 69166, declaring that (1) Reianna Tricia A. De Castro is the legitimate child of the petitioner; and (2) that the marriage between petitioner and respondent is valid until properly nullified by a competent court in a proceeding instituted for that purpose. The facts of the case, as culled from the records, follow. Petitioner and respondent met and became sweethearts in 1991. They planned to get married, thus they applied for a marriage license with the Office of the Civil Registrar of Pasig City in September 1994. They had their first sexual relation sometime in October 1994, and had regularly engaged in sex thereafter. When the couple went back to the Office of the Civil Registrar, the marriage license had already expired. Thus, in order to push through with the plan, in lieu of a marriage license, they executed an affidavit dated 13 March 1995 stating that they had been living together as husband and wife for at least five years. The couple got married on the same date, with Judge Jose C. Bernabe, presiding judge of the Metropolitan Trial Court of Pasig City, administering the civil rites. Nevertheless, after the ceremony, petitioner and respondent went back to their respective homes and did not live together as husband and wife. On 13 November 1995, respondent gave birth to a child named Reinna Tricia A. De Castro. Since the childs birth, respondent has been the one supporting her out of her income as a government dentist and from her private practice. On 4 June 1998, respondent filed a complaint for support against petitioner before the Regional Trial Court of Pasig City 3 (trial court. In her complaint, respondent alleged that she is married to petitioner and that the latter has "reneged on his 4 responsibility/obligation to financially support her "as his wife and Reinna Tricia as his child." Petitioner denied that he is married to respondent, claiming that their marriage is void ab initio since the marriage was facilitated by a fake affidavit; and that he was merely prevailed upon by respondent to sign the marriage contract to save her from embarrassment and possible administrative prosecution due to her pregnant state; and that he was not able to get parental advice from his parents before he got married. He also averred that they never lived together as husband and wife and that he has never seen nor acknowledged the child. 5 In its Decision dated 16 October 2000, the trial court ruled that the marriage between petitioner and respondent is not valid because it was solemnized without a marriage license. However, it declared petitioner as the natural father of the child, and thus obliged to give her support. Petitioner elevated the case to the Court of Appeals, arguing that the lower court committed grave abuse of discretion when, on the basis of mere belief and conjecture, it ordered him to provide support to the child when the latter is not, and could not have been, his own child. The Court of Appeals denied the appeal. Prompted by the rule that a marriage is presumed to be subsisting until a judicial declaration of nullity has been made, the appellate court declared that the child was born during the subsistence and validity of the parties marriage. In addition, the Court of Appeals frowned upon petitioners refusal to undergo DNA testing to prove the paternity and filiation, as well as his refusal to state with certainty the last time he had carnal knowledge with respondent, saying that petitioners "forgetfulness should not be used as a vehicle to relieve him of his obligation and 6 reward him of his being irresponsible." Moreover, the Court of Appeals noted the affidavit dated 7 April 1998 executed by petitioner, wherein he voluntarily admitted that he is the legitimate father of the child. The appellate court also ruled that since this case is an action for support, it was improper for the trial court to declare the marriage of petitioner and respondent as null and void in the very same case. There was no participation of the State, through the prosecuting attorney or fiscal, to see to it that there is no collusion between the parties, as required by the Family Code in actions for declaration of nullity of a marriage. The burden of proof to show that the marriage is void rests upon petitioner, but it is a matter that can be raised in an action for declaration of nullity, and not in the instant proceedings. The proceedings before the trial court should have been limited to the obligation of petitioner to support the 7 child and his wife on the basis of the marriage apparently and voluntarily entered into by petitioner and respondent. The dispositive portion of the decision reads: WHEREFORE, premises considered, the Decision dated 16 October 2000, of the Regional Trial Court of Pasig City, National Capital Judicial Region, Brach 70, in JDRC No. 4626, is AFFIRMED with theMODIFICATIONS (1) declaring Reianna Tricia A. De Castro, as the legitimate child of the appellant and the appellee and (2) declaring

the marriage on 13 March 1995 between the appellant and the appellee valid until properly annulled by a 8 competent court in a proceeding instituted for that purpose. Costs against the appellant. 9 Petitioner filed a motion for reconsideration, but the motion was denied by the Court of Appeals. Hence this petition. Before us, petitioner contends that the trial court properly annulled his marriage with respondent because as shown by the evidence and admissions of the parties, the marriage was celebrated without a marriage license. He stresses that the affidavit they executed, in lieu of a marriage license, contained a false narration of facts, the truth being that he and respondent never lived together as husband and wife. The false affidavit should never be allowed or admitted as a 10 substitute to fill the absence of a marriage license. Petitioner additionally argues that there was no need for the appearance of a prosecuting attorney in this case because it is only an ordinary action for support and not an action for annulment or declaration of absolute nullity of marriage. In any case, petitioner argues that the trial court had jurisdiction to determine the invalidity of their marriage since it was validly invoked as an affirmative defense in the instant action for 11 support. Citing several authorities, petitioner claims that a void marriage can be the subject of a collateral attack. Thus, there is no necessity to institute another independent proceeding for the declaration of nullity of the marriage between the parties. The refiling of another case for declaration of nullity where the same evidence and parties would be presented would entail enormous expenses and anxieties, would be time-consuming for the parties, and would increase the burden 12 of the courts. Finally, petitioner claims that in view of the nullity of his marriage with respondent and his vigorous denial of the childs paternity and filiation, the Court of Appeals gravely erred in declaring the child as his legitimate child. In a resolution dated 16 February 2004, the Court required respondent and the Office of the Solicitor General (OSG) to file 13 their respective comments on the petition. 14 In her Comment, respondent claims that the instant petition is a mere dilatory tactic to thwart the finality of the decision of the Court of Appeals. Echoing the findings and rulings of the appellate court, she argues that the legitimacy of their marriage cannot be attacked collaterally, but can only be repudiated or contested in a direct suit specifically brought for that purpose. With regard to the filiation of her child, she pointed out that compared to her candid and straightforward testimony, petitioner was uncertain, if not evasive in answering questions about their sexual encounters. Moreover, she adds that despite the challenge from her and from the trial court, petitioner strongly objected to being subjected to DNA 15 testing to prove paternity and filiation. For its part, the OSG avers that the Court of Appeals erred in holding that it was improper for the trial court to declare null 16 and void the marriage of petitioner and respondent in the action for support. Citing the case of Nial v. Bayadog, it states that courts may pass upon the validity of a marriage in an action for support, since the right to support from petitioner hinges on the existence of a valid marriage. Moreover, the evidence presented during the proceedings in the trial court showed that the marriage between petitioner and respondent was solemnized without a marriage license, and that their affidavit (of a man and woman who have lived together and exclusively with each other as husband and wife for at least five years) was false. Thus, it concludes the trial court correctly held that the marriage between petitioner and respondent 17 is not valid. In addition, the OSG agrees with the findings of the trial court that the child is an illegitimate child of 18 petitioner and thus entitled to support. Two key issues are presented before us. First, whether the trial court had the jurisdiction to determine the validity of the marriage between petitioner and respondent in an action for support and second, whether the child is the daughter of petitioner. Anent the first issue, the Court holds that the trial court had jurisdiction to determine the validity of the marriage between 19 petitioner and respondent. The validity of a void marriage may be collaterally attacked. Thus, in Nial v. Bayadog, we held: However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code 20 connotes that such final judgment need not be obtained only for purpose of remarriage. 21 Likewise, in Nicdao Cario v. Yee Cario, the Court ruled that it is clothed with sufficient authority to pass upon the validity of two marriages despite the main case being a claim for death benefits. Reiterating Nial, we held that the Court may pass upon the validity of a marriage even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. However, evidence must be adduced, testimonial or documentary, 22 to prove the existence of grounds rendering such a marriage an absolute nullity. Under the Family Code, the absence of any of the essential or formal requisites shall render the marriage void ab initio, 23 whereas a defect in any of the essential requisites shall render the marriage voidable. In the instant case, it is clear from the evidence presented that petitioner and respondent did not have a marriage license when they contracted their marriage. Instead, they presented an affidavit stating that they had been living together for more than five 24 years. However, respondent herself in effect admitted the falsity of the affidavit when she was asked during crossexamination, thus ATTY. CARPIO:

Q But despite of (sic) the fact that you have not been living together as husband and wife for the last five years on or before March 13, 1995, you signed the Affidavit, is that correct? 25 A Yes, sir. The falsity of the affidavit cannot be considered as a mere irregularity in the formal requisites of marriage. The law dispenses with the marriage license requirement for a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The aim of this provision is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicants name for a 26 marriage license. In the instant case, there was no "scandalous cohabitation" to protect; in fact, there was no cohabitation at all. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value whatsoever; it is a mere scrap of paper. They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio. Anent the second issue, we find that the child is petitio ners illegitimate daughter, and therefore entitled to support. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate 27 children. Thus, one can prove illegitimate filiation through the record of birth appearing in the civil register or a final judgment, an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned, or the open and continuous possession of the status of a legitimate child, or any other means allowed 28 by the Rules of Court and special laws. 29 The Certificate of Live Birth of the child lists petitioner as the father. In addition, petitioner, in an affidavit waiving additional tax exemption in favor of respondent, admitted that he is the father of the child, thus stating: 1. I am the legitimate father of REIANNA TRICIA A. DE CASTRO who was born on November 3, 1995 at Better 30 Living, Paraaque, Metro Manila; We are likewise inclined to agree with the following findings of the trial court: That Reinna Tricia is the child of the respondent with the petitioner is supported not only by the testimony of the latter, but also by respondents own admission in the course of his testimony wherein he conceded that petitioner was his former girlfriend. While they were sweethearts, he used to visit petitioner at the latters house or clinic. At times, they would go to a motel to have sex. As a result of their sexual dalliances, petitioner became pregnant which ultimately led to their marriage, though invalid, as earlier ruled. While respondent claims that he was merely forced to undergo the marriage ceremony, the pictures taken of the occasion reveal otherwise (Exhs. "B," "B-1," to "B-3," "C," "C-1" and "C-2," "D," "D-1" and "D-2," "E," "E-1" and "E-2," "F," "F-1" and "F-2," "G," "G-1" and "G-2" and "H," "H-1" to "H-3"). In one of the pictures (Exhs. "D," "D-1" and "D-2"), defendant is seen putting the wedding ring on petitioners finger and in another picture (Exhs. "E," "E-1" and "E-2") respondent is seen in the act of 31 kissing the petitioner. WHEREFORE, the petition is granted in part. The assailed Decision and Resolution of the Court of Appeals in CA-GR CV No. 69166 are SET ASIDE and the decision of the Regional Trial Court Branch 70 of Pasig City in JDRC No. 4626 dated 16 October 2000 is hereby REINSTATED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 127263 April 12, 2000 FILIPINA Y. SY, petitioner, vs. THE HONORABLE COURT OF APPEALS, THE HONORABLE REGIONAL TRIAL COURT, SAN FERNANDO, PAMPANGA, BRANCH XLI, and FERNANDO SY, respondents. QUISUMBING, J.: 1 For review is the decision dated May 21, 1996 of the Court of Appeals in CA-G.R. CV No. 44144, which affirmedthe 2 3 decision of the Regional Trial Court of San Fernando, Pampanga, denying the petition for declaration of absolute nullity of marriage of the spouses Filipina Sy and Fernando Sy. Petitioner Filipina Y. Sy and private respondent Fernando Sy contracted marriage on November 15, 1973 at the Church of 4 Our Lady of Lourdes in Quezon City. Both were then 22 years old. Their union was blessed with two children, Frederick 5 and Farrah Sheryll who were born on July 8, 1975 and February 14, 1978, respectively. The spouses first established their residence in Singalong, Manila, then in Apalit, Pampanga, and later at San Matias, Sto. 6 Tomas, Pampanga. They operated a lumber and hardware business in Sto. Tomas, Pampanga. On September 15, 1983, Fernando left their conjugal dwelling. Since then, the spouses lived separately, and their two children were in the custody of their mother. However, their son Frederick transferred to his father's residence at 7 Masangkay, Tondo, Manila on May 15, 1988, and from then on, lived with his father. On February 11, 1987, Filipina filed a petition for legal separation, docketed as Civil Case No. 7900 before the Regional Trial Court of San Fernando, Pampanga. Later, upon motion of petitioner, the action was later amended to a petition for separation of property on the grounds that her husband abandoned her without just cause; that they have been living

separately for more than one year; and that they voluntarily entered into a Memorandum of Agreement dated September 8 29, 1983, containing the rules that would govern the dissolution of their conjugal partnership. Judgment was rendered dissolving their conjugal partnership of gains and approving a regime of separation of properties based on the 9 10 Memorandum of Agreement executed by the spouses. The trial court also granted custody of the children to Filipina. In May 1988, Filipina filed a criminal action for attempted parricide against her husband, docketed as Criminal Case No. 88-68006, before the Regional Trial Court of Manila. Filipina testified that in the afternoon of May 15, 1988, she went to the dental clinic at Masangkay, Tondo, Manila, owned by her husband but operated by his mistress, to fetch her son and bring him to San Fernando, Pampanga. While she was talking to her son, the boy ignored her and continued playing with the family computer. Filipina got mad, took the computer away from her son, and started spanking him. At that instance, Fernando pulled Filipina away from their son, and punched her in the different parts of her body. Filipina also claimed that her husband started choking her when she fell on the floor, and released her only when he thought she was dead. Filipina suffered from hematoma and contusions on different parts of her body as a result of the blows inflicted by her husband, evidenced by a Medical Certificate issued by a certain Dr. James Ferraren. She said it was not the first time Fernando 11 maltreated her. 12 The Regional Trial Court of Manila, however, in its decision dated April 26, 1990, convicted Fernando only of the lesser crime of slight physical injuries, and sentenced him to 20 days imprisonment. Petitioner later filed a new action for legal separation against private respondent, docketed as Civil Case No. 8273, on the following grounds: (1) repeated physical violence; (2) sexual infidelity; (3) attempt by respondent against her life; and (4) abandonment of her by her husband without justifiable cause for more than one year. The Regional Trial Court of San 13 Fernando, Pampanga, in its decision dated December 4, 1991, granted the petition on the grounds of repeated physical violence and sexual infidelity, and issued a decree of legal separation. It awarded custody of their daughter Farrah Sheryll to petitioner, and their son Frederick to respondent. 14 On August 4, 1992, Filipina filed a petition for the declaration of absolute nullity of her marriage to Fernando on the ground of psychological incapacity. She points out that the final judgment rendered by the Regional Trial Court in her favor, in her petitions for separation of property and legal separation, and Fernando's infliction of physical violence on her which led to the conviction of her husband for slight physical injuries are symptoms of psychological incapacity. She also cites as manifestations of her husband's psychological incapacity the following: (1) habitual alcoholism; (2) refusal to live with her without fault on her part, choosing to live with his mistress instead; and (3) refusal to have sex with her, performing the marital act only to satisfy himself. Moreover, Filipina alleges that such psychological incapacity of her 15 husband existed from the time of the celebration of their marriage and became manifest thereafter. 16 The Regional Trial Court of San Fernando, Pampanga, in its decision dated December 9, 1993, denied the petition of Filipina Sy for the declaration of absolute nullity of her marriage to Fernando. It stated that the alleged acts of the respondent, as cited by petitioner, do not constitute psychological incapacity which may warrant the declaration of absolute nullity of their marriage. 17 Petitioner appealed to the Court of Appeals which affirmed the decision of the trial court. In the decision of the Court of Appeals dated May 21, 1996, it ruled that the testimony of petitioner concerning respondent's purported psychological incapacity falls short of the quantum of evidence required to nullify a marriage celebrated with all the formal and essential requisites of law. Moreover, the Court of Appeals held that petitioner failed to show that the alleged psychological incapacity of respondent had existed at the time of the celebration of their marriage in 1973. It reiterated the finding of the trial court that the couple's marital problems surfaced only in 1983, or almost ten years from the date of the celebration of their marriage. And prior to their separation in 1983, they were living together harmoniously. Thus, the Court of Appeals 18 affirmed the judgment of the lower court which it found to be in accordance with law and the evidence on record. 19 Petitioner filed a motion for reconsideration, which the Court of Appeals denied in its resolution dated November 21, 20 1996. 21 Hence, this appeal by certiorari wherein petitioner now raises the following issues: 1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS MANIFESTLY OVERLOOKED THE FACT THAT ON THE DATE OF THE CELEBRATION OF THE PARTIES' MARRIAGE ON NOVEMBER 15, 1973, NOT DISPUTED BY RESPONDENT FERNANDO, THERE WAS NO MARRIAGE LICENSE THERETO; 2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED MISAPPREHENSION OF FACTS BY STATING THAT THE GROUNDS RELIED UPON BY APPELLANT [herein petitioner] DO NOT CONSTITUTE PSYCHOLOGICAL INCAPACITY AS WOULD JUSTIFY NULLIFICATION OF HER MARRIAGE TO APPELLEE [herein respondent]; 3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED MISAPPREHENSION OF FACTS BY STATING THAT APPELLANT FAILED TO SHOW THAT THE ALLEGED UNDESIRABLE ACTUATIONS OF APPELLEE HAD EXISTED OR WERE PRESENT AT THE TIME THEIR MARRIAGE WAS CELEBRATED IN 1973; 4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN AFFIRMING THE ERRONEOUS RULING OF THE LOWER COURT THAT THERE IS A REDEEMING ATTITUDE SHOWN TO THE COURT BY RESPONDENT FERNANDO WITH RESPECT TO HIS CHILDREN AND ALSO BELIEVES THAT RECONCILIATION BETWEEN THE PARTIES IS NOT A REMOTE POSSIBILITY WHICH IS ERRONEOUS; AND

5. WHETHER OR NOT THE CASE OF SANTOS V. COURT OF APPEALS (240 SCRA 20) IS APPLICABLE 22 HERETO. In sum, two issues are to be resolved: 1. Whether or not the marriage between petitioner and private respondent is void from the beginning for lack of a marriage license at the time of the ceremony; and 2. Whether or not private respondent is psychologically incapacitated at the time of said marriage celebration to warrant a declaration of its absolute nullity. Petitioner, for the first time, raises the issue of the marriage being void for lack of a valid marriage license at the time of its celebration. It appears that, according to her, the date of the actual celebration of their marriage and the date of issuance of their marriage certificate and marriage license are different and incongruous. Although we have repeatedly ruled that litigants cannot raise an issue for the first time on appeal, as this would 23 contravene the basic rules of fair play and justice, in a number of instances, we have relaxed observance of procedural rules, noting that technicalities are not ends in themselves but exist to protect and promote substantive rights of litigants. We said that certain rules ought not to be applied with severity and rigidity if by so doing, the very reason for their 24 existence would be defeated. Hence, when substantial justice plainly requires, exempting a particular case from the 25 operation of technicalities should not be subject to cavil. In our view, the case at bar requires that we address the issue of the validity of the marriage between Filipina and Fernando which petitioner claims is void from the beginning for lack of a marriage license, in order to arrive at a just resolution of a deeply seated and violent conflict between the parties. Note, however, that here the pertinent facts are not disputed; and what is required now is a declaration of their effects according to existing law. Petitioner states that though she did not categorically state in her petition for annulment of marriage before the trial court that the incongruity in the dates of the marriage license and the celebration of the marriage itself would lead to the conclusion that her marriage to Fernando was void from the beginning, she points out that these critical dates were contained in the documents she submitted before the court. The date of issue of the marriage license and marriage certificate, September 17, 1974, is contained in their marriage contract which was attached as Annex "A" in her petition for declaration of absolute nullity of marriage before the trial court, and thereafter marked as Exhibit "A" in the course of the 26 trial. The date of celebration of their marriage at Our Lady of Lourdes, Sta. Teresita Parish, on November 15, 1973, is admitted both by petitioner and private respondent, as stated in paragraph three of petitioner's petition for the declaration 27 of absolute nullity of marriage before the trial court, and private respondent's answer admitting it. This fact was also 28 affirmed by petitioner, in open court, on January 22, 1993, during her direct examination, as follows: ATTY. RAZON: In the last hearing, you said that you were married on November 15, 1973? FILIPINA SY: Yes, Sir. November 15, 1973, also appears as the date of marriage of the parents in both their son's and daughter's birth certificates, which are also attached as Annexes "B" and "C" in the petition for declaration of absolute nullity of marriage 29 before the trial court, and thereafter marked as Exhibits "B" and "C" in the course of the trial. These pieces of evidence on record plainly and indubitably show that on the day of the marriage ceremony, there was no marriage license. A marriage license is a formal requirement; its absence renders the marriage void ab initio. In addition, the marriage contract shows that the marriage license, numbered 6237519, was issued in Carmona, Cavite, yet, neither petitioner nor 30 private respondent ever resided in Carmona. Carefully reviewing the documents and the pleadings on record, we find that indeed petitioner did not expressly state in her petition before the trial court that there was incongruity between the date of the actual celebration of their marriage and the date of the issuance of their marriage license. From the documents she presented, the marriage license was issued on September 17, 1974, almost one year after the ceremony took place on November 15, 1973. The ineluctable conclusion is that the marriage was indeed contracted without a marriage license. Nowhere do we find private respondent 31 denying these dates on record. Article 80 of the Civil Code is clearly applicable in this case. There being no claim of an exceptional character, the purported marriage between petitioner and private respondent could not be classified among 32 those enumerated in Articles 72-79 of the Civil Code. We thus conclude that under Article 80 of the Civil Code, the marriage between petitioner and private respondent is void from the beginning. We note that their marriage certificate and marriage license are only photocopies. So are the birth certificates of their son Frederick and daughter Farrah Sheryll. Nevertheless, these documents were marked as Exhibits during the course of the trial below, which shows that these have been examined and admitted by the trial court, with no objections having been made as to their authenticity and due execution. Likewise, no objection was interposed to petitioner's testimony in open court when she affirmed that the date of the actual celebration of their marriage was on November 15, 1973. We are of the view, therefore, that having been admitted in evidence, with the adverse party failing to timely object thereto, these 33 documents are deemed sufficient proof of the facts contained therein. The remaining issue on the psychological incapacity of private respondent need no longer detain us. It is mooted by our conclusion that the marriage of petitioner to respondent is void ab initio for lack of a marriage license at the time their marriage was solemnized. WHEREFORE, the petition is GRANTED. The Decision of the Regional Trial Court of San Fernando, Pampanga, dated December 9, 1993 as well as the Decision promulgated on May 21, 1996 by the Court of Appeals and its Resolution dated November 21, 1996 in CA-G.R. No. 44144 are set aside. The marriage celebrated on November 15, 1973 between

petitioner Filipina Yap and private respondent Fernando Sy is hereby declared void ab initio for lack of a marriage license at the time of celebration. No pronouncement as to costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 141528 October 31, 2006 OSCAR P. MALLION, petitioner, vs. EDITHA ALCANTARA, respondent.

DECISION

AZCUNA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court raising a question of law: Does a previous final judgment denying a petition for declaration of nullity on the ground of psychological incapacity bar a subsequent petition for declaration of nullity on the ground of lack of marriage license? The facts are not disputed: 1 On October 24, 1995, petitioner Oscar P. Mallion filed a petition with the Regional Trial Court (RTC), Branch 29, of San Pablo City seeking a declaration of nullity of his marriage to respondent Editha Alcantara under Article 36 of Executive Order No. 209, as amended, otherwise known as the Family Code, citing respondents alleged psychological incapacity. The case was docketed as Civil Case No. SP 4341-95. After trial on the merits, the RTC denied the petition in a 2 decision dated November 11, 1997 upon the finding that petitioner "failed to adduce preponderant evidence to warrant 3 the grant of the relief he is seeking." The appeal filed with the Court of Appeals was likewise dismissed in a 4 resolution dated June 11, 1998 for failure of petitioner to pay the docket and other lawful fees within the reglementary period. 5 After the decision in Civil Case No. SP 4341-95 attained finality, petitioner filed on July 12, 1999 another petition for declaration of nullity of marriage with the RTC of San Pablo City, this time alleging that his marriage with respondent was null and void due to the fact that it was celebrated without a valid marriage license. For her part, respondent filed an 6 answer with a motion to dismiss dated August 13, 1999, praying for the dismissal of the petition on the ground of res judicata and forum shopping. 7 In an order dated October 8, 1999, the RTC granted respondents motion to dismiss, the dispositive portion of which reads: WHEREFORE, for Forum Shopping and Multiplicity of Suits, the Motion to Dismiss is GRANTED. This case is DISMISSED. 8 SO ORDERED. 9 Petitioners motion for reconsideration was also denied in an order dated January 21, 2000. Hence, this petition which alleges, as follows: A. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF HIS MARRIAGE AS NULL AND VOID AB INITIO FOR LACK OF THE REQUISITE MARRIAGE LICENSE BECAUSE OF (THE) DISMISSAL OF AN EARLIER PETITION FOR DECLARATION OF NULLITY OF THE SAME MARRIAGE ON THE GROUND OF HIS WIFES PSYCHOLOGICAL INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE, THE TRIAL COURT HAD DECIDED A QUESTION OF SUBSTANCE WHICH HAS PROBABLY NOT HERETOFORE BEEN DETERMINED SQUARELY AND DEFINITIVELY BY THIS COURT, OR HAD DECIDED IT IN A WAY NOT IN ACCORD WITH LAW. B. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF NULLITY OF HIS MARRIAGE FOR LACK OF THE REQUISITE MARRIAGE LICENSE, THE TRIAL COURT HAD CONFUSED, DISTORTED AND MISAPPLIED THE FUNDAMENTAL RULES AND CONCEPTS ON RES JUDICATA, SPLITTING OF A CAUSE 10 OF ACTION AND FORUM SHOPPING. Petitioner argues that while the relief prayed for in the two cases was the same, that is, the declaration of nullity of his marriage to respondent, the cause of action in the earlier case was distinct and separate from the cause of action in the present case because the operative facts upon which they were based as well as the evidence required to sustain either were different. Because there is no identity as to the cause of action, petitioner claims that res judicata does not lie to bar the second petition. In this connection, petitioner maintains that there was no violation of the rule on forum shopping or of the rule which proscribes the splitting of a cause of action. On the other hand, respondent, in her comment dated May 26, 2000, counters that while the present suit is anchored on a different ground, it still involves the same issue raised in Civil Case No. SP 4341-95, that is, the validity of petitioner and respondents marriage, and prays for the same remedy, that is, the declaration of nullity of their marriage. Respondent thus contends that petitioner violated the rule on forum shopping. Moreover, respondent asserts that petitioner violated

the rule on multiplicity of suits as the ground he cites in this petition could have been raised during the trial in Civil Case No. SP 4341-95. The petition lacks merit. The issue before this Court is one of first impression. Should the matter of the invalidity of a marriage due to the absence of an essential requisite prescribed by Article 4 of the Family Code be raised in the same proceeding where the marriage is being impugned on the ground of a partys psychological incapacity under Article 36 of the Family Code? Petitioner insists that because the action for declaration of nullity of marriage on the ground of psychological incapacity and the action for declaration of nullity of marriage on the ground of absence of marriage license constitute separate causes of action, the present case would not fall under the prohibition against splitting a single cause of action nor would it be barred by the principle of res judicata. The contention is untenable. Res judicata is defined as "a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. It also refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is 11 conclusive of the rights of the parties or their privies in all later suits on points and matters determined in the former suit." This doctrine is a rule which pervades every well-regulated system of jurisprudence and is founded upon the following precepts of common law, namely: (1) public policy and necessity, which makes it to the interest of the State that there should be an end to litigation, and (2) the hardship on the individual that he should be vexed twice for the same cause. A contrary doctrine would subject the public peace and quiet to the will and neglect of individuals and prefer the gratification 12 of the litigious disposition on the part of suitors to the preservation of the public tranquility and happiness. In this jurisdiction, the concept of res judicata is embodied in Section 47 (b) and (c) of Rule 39 of the Rules of Court, thus: SEC. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and, (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. 13 The above provision outlines the dual aspect of res judicata. Section 47 (b) pertains to it in its concept as "bar by prior judgment" or "estoppel by verdict," which is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. On the other hand, Section 47 (c) pertains tores judicata in its concept as "conclusiveness of judgment" or otherwise known as the rule of auter action pendantwhich ordains that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving 14 a different cause of action. Res judicata in its concept as a bar by prior judgment obtains in the present case. Res judicata in this sense requires the concurrence of the following requisites: (1) the former judgment is final; (2) it is rendered by a court having jurisdiction over the subject matter and the parties; (3) it is a judgment or an orderon the merits; and (4) there is -- between the first and the second actions -- identity of parties, of subject matter, and 15 of causes of action. Petitioner does not dispute the existence of the first three requisites. What is in issue is the presence of the fourth requisite. In this regard, the test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain both actions, or whether there is an identity in the facts essential to the maintenance of the two actions. If the same facts or evidence would sustain both, the two actions are considered the same, and a judgment in the 16 first case is a bar to the subsequent action. Based on this test, petitioner would contend that the two petitions brought by him seeking the declaration of nullity of his marriage are anchored on separate causes of action for the evidence necessary to sustain the first petition which was anchored on the alleged psychological incapacity of respondent is different from the evidence necessary to sustain the present petition which is anchored on the purported absence of a marriage license. Petitioner, however, forgets that he is simply invoking different grounds for the same cause of action. By definition, a 17 cause of action is the act or omission by which a party violates the right of another. In both petitions, petitioner has the same cause - the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of action is predicated. These grounds cited by petitioner essentially split the various aspects of the pivotal issue that holds the key to the resolution of this controversy, that is, the actual status of petitioner and respondents marriage. Furthermore, the instant case is premised on the claim that the marriage is null and void because no valid celebration of the same took place due to the alleged lack of a marriage license. In Civil Case No. SP 4341-95, however, petitioner impliedly conceded that the marriage had been solemnized and celebrated in accordance with law. Petitioner is now

bound by this admission. The alleged absence of a marriage license which petitioner raises now could have been presented and heard in the earlier case. Suffice it to state that parties are bound not only as regards every matter offered and received to sustain or defeat their claims or demand but as to any other admissible matter which might have been 18 offered for that purpose and of all other matters that could have been adjudged in that case. It must be emphasized that a party cannot evade or avoid the application of res judicata by simply varying the form of his 19 20 action or adopting a different method of presenting his case. As this Court stated in Perez v. Court of Appeals: x x x the statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction or act and seeks redress for the wrong. Two actions are not necessarily for different causes of action simply because the theory of the second would not have been open under the pleadings in the first. A party cannot preserve the right to bring a second action after the loss of the first merely by having circumscribed and limited theories of recovery opened by the pleadings in the first. It bears stressing that a party cannot divide the grounds for recovery. A plaintiff is mandated to place in issue in his pleading, all the issues existing when the suit began. A lawsuit cannot be tried piecemeal. The plaintiff is bound to set forth in his first action every ground for relief which he claims to exist and upon which he relied, and cannot be permitted to rely upon them by piecemeal in successive action to recover for the same wrong or injury. A party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs, or both, on the grounds upon which to expect a judgment in his favor. He is not at liberty to split up his demands, and prosecute it by piecemeal or present only a portion of the grounds upon which a special relief is sought and leave the rest to the presentment in a second suit if the first fails. There would be no end to litigation if such piecemeal presentation is allowed. (Citations omitted.) In sum, litigants are provided with the options on the course of action to take in order to obtain judicial relief. Once an option has been taken and a case is filed in court, the parties must ventilate all matters and relevant issues therein. The losing party who files another action regarding the same controversy will be needlessly squandering time, effort and 21 financial resources because he is barred by law from litigating the same controversy all over again. Therefore, having expressly and impliedly conceded the validity of their marriage celebration, petitioner is now deemed to have waived any defects therein. For this reason, the Court finds that the present action for declaration of nullity of marriage on the ground of lack of marriage license is barred by the decision dated November 11, 1997 of the RTC, Branch 29, of San Pablo City, in Civil Case No. SP 4341-95. WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 119190 January 16, 1997 CHI MING TSOI, petitioner, vs. COURT OF APPEALS and GINA LAO-TSOI, respondents. TORRES, JR., J.: Man has not invented a reliable compass by which to steer a marriage in its journey over troubled waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of the unseen hand of Him who created all things. Who is to blame when a marriage fails? This case was originally commenced by a distraught wife against her uncaring husband in the Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on the ground of psychological incapacity. Petitioner appealed the decision of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated February 14, 1995. 1 The statement of the case and of the facts made by the trial court and reproduced by the Court of Appeals its decision are as follows: From the evidence adduced, the following acts were preponderantly established: Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A") After the celebration of their marriage and wedding reception at the South Villa, Makati, they went and proceeded to the house of defendant's mother. There, they slept together on the same bed in the same room for the first night of their married life. It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were supposed to enjoy making love, or having sexual intercourse, with each other, the defendant just went to bed, slept on one side thereof, then turned his back and went to sleep . There was no sexual intercourse between them during the first night. The same thing happened on the second, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together during their first week as husband and wife, they went to Baguio City. But, they did so together with her mother, an uncle, his mother and his nephew. They were all invited by the defendant to join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no sexual intercourse between them, since the defendant avoided her by taking a long walk during siesta time or by just sleeping on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. [S]he claims, that she did not: even see her husband's private parts nor did he see hers. Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989. The results of their physical examinations were that she is healthy, normal and still a virgin, while that of her husband's examination was kept confidential up to this time. While no medicine was prescribed for her, the doctor prescribed medications for her husband which was also kept confidential. No treatment was given to her. For her husband, he was asked by the doctor to return but he never did. The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show his penis. She said, that she had observed the defendant using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to her, the defendant married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man. The plaintiff is not willing to reconcile with her husband. On the other hand, it is the claim of the defendant that if their marriage shall be annulled by reason of psychological incapacity, the fault lies with his wife. But, he said that he does not want his marriage with his wife annulled for several reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is physically and psychologically capable; and, (3) since the relationship is still very young and if there is any differences between the two of them, it can still be reconciled and that, according to him, if either one of them has some incapabilities, there is no certainty that this will not be cured. He further claims, that if there is any defect, it can be cured by the intervention of medical technology or science. The defendant admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual contact between them. But, the reason for this, according to the defendant, was that everytime he wants to have sexual intercourse with his wife, she always avoided him and whenever he caresses her private parts, she always removed his hands. The defendant claims, that he forced his wife to have sex with him only once but he did not continue because she was shaking and she did not like it. So he stopped. There are two (2) reasons, according to the defendant , why the plaintiff filed this case against him, and these are: (1) that she is afraid that she will be forced to return the pieces of jewelry of his mother, and, (2) that her husband, the defendant, will consummate their marriage. The defendant insisted that their marriage will remain valid because they are still very young and there is still a chance to overcome their differences. The defendant submitted himself to a physical examination. His penis was examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C") The doctor said, that he asked the defendant to masturbate to find out whether or not he has an erection and he found out that from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr. Alteza said, that the defendant had only a soft erection which is why his penis is not in its full length. But, still is capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman. In open Court, the Trial Prosecutor manifested that there is no collusion between the parties and that the 2 evidence is not fabricated." After trial, the court rendered judgment, the dispositive portion of which reads: ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon City. Let another copy be furnished the Local Civil Registrar of Manila. SO ORDERED. On appeal, the Court of Appeals affirmed the trial court's decision. Hence, the instant petition. Petitioner alleges that the respondent Court of Appeals erred: I in affirming the conclusions of the lower court that there was no sexual intercourse between the parties without making any findings of fact. II

in holding that the refusal of private respondent to have sexual communion with petitioner is a psychological incapacity inasmuch as proof thereof is totally absent. III in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. IV in affirming the annulment of the marriage between the parties decreed by the lower court without fully satisfying itself that there was no collusion between them. We find the petition to be bereft of merit. Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the burden of proving the allegations in her complaint; that since there was no independent evidence to prove the alleged non-coitus between the parties, there remains no other basis for the court's conclusion except the admission of petitioner; that public policy should aid acts intended to validate marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial court on the admissions and confessions of the parties in their pleadings and in the course of the trial is misplaced since it could have been a product of collusion; and that in actions for annulment of marriage, the material facts alleged in 3 the complaint shall always be proved. Section 1, Rule 19 of the Rules of Court reads: Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved. The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to prevent is annulment of marriage without trial. The assailed decision was not based on such a judgment on the pleadings. When private respondent testified under oath before the trial court and was cross-examined by oath before the trial court and was cross-examined by the adverse party, she thereby presented evidence in form of a testimony. After such evidence was presented, it be came incumbent upon petitioner to present his side. He admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual intercourse between them. To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19). The case has reached this Court because petitioner does not want their marriage to be annulled. This only shows that there is no collusion between the parties. When petitioner admitted that he and his wife (private respondent) have never had sexual contact with each other, he must have been only telling the truth. We are reproducing the relevant portion of the challenged resolution denying petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz: The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. The issue of whether or not the appellant is psychologically incapacitated to discharge a basic marital obligation was resolved upon a review of both the documentary and testimonial evidence on record. Appellant admitted that he did not have sexual relations with his wife after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage' within the meaning of Article 36 of the 4 Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995). Petitioner further contends that respondent court erred in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. He points out as error the failure of the trial court to make "a categorical finding about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal which may not be necessarily due to physchological disorders" because there might have been other reasons, i.e., physical disorders, such as aches, pains or other discomforts, why private respondent would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a short span of 10 months. First, it must be stated that neither the trial court nor the respondent court made a finding on who between petitioner and private respondent refuses to have sexual contact with the other. The fact remains, however, that there has never been coitus between them. At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial. Petitioner claims that there is no independent evidence on record to show that any of the parties is suffering from phychological incapacity. Petitioner also claims that he wanted to have sex with private respondent; that the reason for private respondent's refusal may not be psychological but physical disorder as stated above. We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to find out or discover what the problem with his wife could be. What he presented in evidence is his doctor's Medical Report that there is no evidence of his impotency and he is capable 5 of erection. Since it is petitioner's claim that the reason is not psychological but perhaps physical disorder on the part of private respondent, it became incumbent upon him to prove such a claim.

If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of 6 psychological incapacity. Evidently, one of the essential marital obligations under the Family Code is "To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity. As aptly stated by the respondent court, An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him does not inspire belief. Since he was not physically impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of symphaty for her feelings, he deserves to be doubted for not having asserted his right seven though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife was suffering from incapacity, the fact that defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status. We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act, which is not phychological incapacity, and which can be achieved "through proper motivation." After almost ten months of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom he professes to love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the 7 contemplation of the Family Code. While the law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It appears that there is absence of empathy between petitioner and private respondent. That is a shared feeling which between husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. An expressive interest in each other's feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution. This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court. IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack of merit. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 108763 February 13, 1997 REPUBLIC OF THE PHILIPPINES, vs. COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents. PANGANIBAN, J.: The Family Code of the Philippines provides an entirely new ground (in addition to those enumerated in the Civil Code) to assail the validity of a marriage, namely, "psychological incapacity." Since the Code's effectivity, our courts have been swamped with various petitions to declare marriages void based on this ground. Although this Court had interpreted the meaning of psychological incapacity in the recent case of Santos vs. Court of Appeals, still many judges and lawyers find difficulty in applying said novel provision in specific cases. In the present case and in the context of the herein assailed

Decision of the Court of Appeals, the Solicitor General has labelled exaggerated to be sure but nonetheless expressive of his frustration Article 36 as the "most liberal divorce procedure in the world." Hence, this Court in addition to resolving the present case, finds the need to lay down specific guidelines in the interpretation and application of Article 36 of the Family Code. 1 Before us is a petition for review on certiorari under Rule 45 challenging the January 25, 1993 Decision of the Court of 2 Appeals in CA-G.R. CV No. 34858 affirming in toto the May 14, 1991 decision of the Regional Trial Court of La 3 Trinidad, Benguet, which declared the marriage of respondent Roridel Olaviano Molina to Reynaldo Molina void ab initio, on the ground of "psychological incapacity" under Article 36 of the Family Code. The Facts This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of a verified petition for declaration of nullity of her marriage to Reynaldo Molina. Essentially, the petition alleged that Roridel and Reynaldo were 4 married on April 14, 1985 at the San Agustin Church in Manila; that a son, Andre O. Molina was born; that after a year of marriage, Reynaldo showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to spend more time with his peers and friends on whom he squandered his money; that he depended on his parents for aid and assistance, and was never honest with his wife in regard to their finances, resulting in frequent quarrels between them; that sometime in February 1986, Reynaldo was relieved of his job in Manila, and since then Roridel had been the sole breadwinner of the family; that in October 1986 the couple had a very intense quarrel, as a result of which their relationship was estranged; that in March 1987, Roridel resigned from her job in Manila and went to live with her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child, and had since then abandoned them; that Reynaldo had thus shown that he was psychologically incapable of complying with essential marital obligations and was a highly immature and habitually quarrel some individual who thought of himself as a king to be served; and that it would be to the couple's best interest to have their marriage declared null and void in order to free them from what appeared to be an incompatible marriage from the start. In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no longer live together as husband and wife, but contended that their misunderstandings and frequent quarrels were due to (1) Roridel's strange behavior of insisting on maintaining her group of friends even after their marriage; (2) Roridel's refusal to perform some of her marital duties such as cooking meals; and (3) Roridel's failure to run the household and handle their finances. During the pre-trial on October 17, 1990, the following were stipulated: 1. That the parties herein were legally married on April 14, 1985 at the Church of St. Augustine, Manila; 2. That out of their marriage, a child named Albert Andre Olaviano Molina was born on July 29, 1986; 3. That the parties are separated-in-fact for more than three years; 4. That petitioner is not asking support for her and her child; 5. That the respondent is not asking for damages; 6. That the common child of the parties is in the custody of the petitioner wife. Evidence for herein respondent wife consisted of her own testimony and that of her friends Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and Medical Center. She also submitted documents marked as Exhibits "A" to "E-1." Reynaldo did not present any evidence as he appeared only during the pre-trial conference. On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision. Hence, the present recourse. The Issue In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous and incorrect interpretation of the phrase 'psychological incapacity' (as provided under Art. 36 of the Family Code) and made an incorrect application thereof to the facts of the case," adding that the appealed Decision tended "to establish in effect the most liberal divorce procedure in the world which is anathema to our culture." 5 In denying the Solicitor General's appeal, the respondent Court relied heavily on the trial court's findings "that the marriage between the parties broke up because of their opposing and conflicting personalities." Then, it added it sown opinion that "the Civil Code Revision Committee (hereinafter referred to as Committee) intended to liberalize the application of our civil laws on personal and family rights. . . ." It concluded that: As ground for annulment of marriage, We view psychologically incapacity as a broad range of mental and behavioral conduct on the part of one spouse indicative of how he or she regards the marital union, his or her personal relationship with the other spouse, as well as his or her conduct in the long haul for the attainment of the principal objectives of marriage. If said conduct, observed and considered as a whole, tends to cause the union to self-destruct because it defeats the very objectives of marriage, then there is enough reason to leave the spouses to their individual fates. In the case at bar, We find that the trial judge committed no indiscretion in analyzing and deciding the instant case, as it did, hence, We find no cogent reason to disturb the findings and conclusions thus made. Respondent, in her Memorandum, adopts these discussions of the Court of Appeals. The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not equivalent to psychological incapacity, explaining that such ground "is not simply the neglect by the parties to the marriage of their responsibilities and

duties, but a defect in their psychological nature which renders them incapable of performing such marital responsibilities and duties." The Court's Ruling The petition is meritorious. 6 In Leouel Santos vs. Court of Appeals this Court, speaking thru Mr. Justice Jose C. Vitug, ruled that "psychological incapacity should refer to no less than a mental (nor physical) incapacity . . . and that (t)here is hardly any doubt that the intendment of the law has been to confine the meaning of 'psychological incapacity' to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated." Citing Dr. Gerardo Veloso, a 7 former presiding judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila, Justice Vitug wrote that "the psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability." On the other hand, in the present case, there is no clear showing to us that the psychological defect spoken of is an incapacity. It appears to us to be more of a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. Mere showing of "irreconciliable differences" and "conflicting personalities" in no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (nor physical) illness. The evidence adduced by respondent merely showed that she and her husband could nor get along with each other. There had been no showing of the gravity of the problem; neither its juridical antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric disorder but only incompatibility, not psychological incapacity. Dr. 8 Sison testified: COURT Q It is therefore the recommendation of the psychiatrist based on your findings that it is better for the Court to annul (sic) the marriage? A Yes, Your Honor. Q There is no hope for the marriage? A There is no hope, the man is also living with another woman. Q Is it also the stand of the psychiatrist that the parties are psychologically unfit for each other but they are psychologically fit with other parties? A Yes, Your Honor. Q Neither are they psychologically unfit for their professions? A Yes, Your Honor. The Court has no more questions. In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of psychological incapacity existing at the time of marriage celebration. While some effort was made to prove that there was a failure to fulfill pre-nuptial impressions of "thoughtfulness and gentleness" on Reynaldo's part of being "conservative, homely and intelligent" on the part of Roridel, such failure of expectation is nor indicative of antecedent psychological incapacity. If at all, it merely shows love's temporary blindness to the faults and blemishes of the beloved. During its deliberations, the Court decided to go beyond merely ruling on the facts of this case vis-a-vis existing law and jurisprudence. In view of the novelty of Art. 36 of the Family Code and the difficulty experienced by many trial courts interpreting and applying it, the Court decided to invite two amici curiae, namely, the Most Reverend Oscar V. 9 Cruz, Vicar Judicial (Presiding Judge) of the National Appellate Matrimonial Tribunal of the Catholic Church in the 10 Philippines, and Justice Ricardo C. Puno, a member of the Family Code Revision Committee. The Court takes this occasion to thank these friends of the Court for their informative and interesting discussions during the oral argument on December 3, 1996, which they followed up with written memoranda. From their submissions and the Court's own deliberations, the following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an 11 entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. 12 The Family Code echoes this constitutional edict on marriage and the family and emphasizes thepermanence, inviolability and solidarity (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical. although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of 13 the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a

psychological illness and its incapacitating nature explained. Expert evidence may be given qualified psychiatrist and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, nor a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides: The following are incapable of contracting marriage: Those who are unable to assume the essential 14 obligations of marriage due to causes of psychological nature. Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decision of such appellate tribunal. Ideally subject to our law on evidence what is decreed as canonically invalid should also be decreed civilly void. This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church while remaining independent, separate and apart from each other shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation. (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall he handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly staring therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. In the instant case and applying Leouel Santos, we have already ruled to grant the petition. Such ruling becomes even more cogent with the use of the foregoing guidelines. WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET ASIDE. The marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 136490 October 19, 2000 BRENDA B. MARCOS, petitioner, vs. WILSON G. MARCOS, respondent. DECISION PANGANIBAN, J.: Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by the totality of evidence presented. There is no requirement, however, that the respondent should be examined by a physician or a psychologist as a conditio sine qua non for such declaration. The Case Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the July 24, 1998 1 Decision of the Court of Appeals (CA) in CA-GR CV No. 55588, which disposed as follows:

"WHEREFORE, the contested decision is set aside and the marriage between the parties is hereby declared valid." Also challenged by petitioner is the December 3, 1998 CA Resolution denying her Motion for Reconsideration. Earlier, the Regional Trial Court (RTC) had ruled thus: "WHEREFORE, the marriage between petitioner Brenda B. Marcos and respondent Wilson G. Marcos, solemnized on September 6, 1982 in Pasig City is declared null and void ab initio pursuant to Art. 36 of the Family Code. The conjugal properties, if any, is dissolved [sic] in accordance with Articles 126 and 129 of the same Code in relation to Articles 50, 51 and 52 relative to the delivery of the legitime of [the] parties' children. In the best interest and welfare of the minor children, their custody is granted to petitioner subject to the visitation rights of respondent. "Upon finality of this Decision, furnish copy each to the Office of the Civil Registrar of Pasig City where the marriage was solemnized, the National Census and Statistics Office, Manila and the Register of Deeds of Mandaluyong City for their appropriate action consistent with this Decision. "SO ORDERED." The Facts The facts as found by the Court of Appeals are as follows: "It was established during the trial that the parties were married twice: (1) on September 6, 1982 which was solemnized by Judge Eriberto H. Espiritu at the Municipal Court of Pasig (Exh. A); and (2) on May 8, 1983 which was solemnized by Rev. Eduardo L. Eleazar, Command Chaplain, at the Presidential Security Command Chapel in Malacaang Park, Manila (Exh. A-1). Out of their marriage, five (5) children were born (Exhs. B, C, D, E and F). "Appellant Wilson G. Marcos joined the Armed Forces of the Philippines in 1973. Later on, he was transferred to the Presidential Security Command in Malacaang during the Marcos Regime. Appellee Brenda B. Marcos, on the other hand, joined the Women's Auxilliary Corps under the Philippine Air Force in 1978. After the Edsa Revolution, both of them sought a discharge from the military service. "They first met sometime in 1980 when both of them were assigned at the Malacaang Palace, she as an escort of Imee Marcos and he as a Presidential Guard of President Ferdinand Marcos. Through telephone conversations, they became acquainted and eventually became sweethearts. "After their marriage on September 6, 1982, they resided at No. 1702 Daisy Street, Hulo Bliss, Mandaluyong, a housing unit which she acquired from the Bliss Development Corporation when she was still single. "After the downfall of President Marcos, he left the military service in 1987 and then engaged in different business ventures that did not however prosper. As a wife, she always urged him to look for work so that their children would see him, instead of her, as the head of the family and a good provider. Due to his failure to engage in any gainful employment, they would often quarrel and as a consequence, he would hit and beat her. He would even force her to have sex with him despite her weariness. He would also inflict physical harm on their children for a slight mistake and was so severe in the way he chastised them. Thus, for several times during their cohabitation, he would leave their house. In 1992, they were already living separately. "All the while, she was engrossed in the business of selling "magic uling" and chickens. While she was still in the military, she would first make deliveries early in the morning before going to Malacaang. When she was discharged from the military service, she concentrated on her business. Then, she became a supplier in the Armed Forces of the Philippines until she was able to put up a trading and construction company, NS Ness Trading and Construction Development Corporation. "The 'straw that broke the camel's back' took place on October 16, 1994, when they had a bitter quarrel. As they were already living separately, she did not want him to stay in their house anymore. On that day, when she saw him in their house, she was so angry that she lambasted him. He then turned violent, inflicting physical harm on her and even on her mother who came to her aid. The following day, October 17, 1994, she and their children left the house and sought refuge in her sister's house. "On October 19, 1994, she submitted herself [to] medical examination at the Mandaluyong Medical Center where her injuries were diagnosed as contusions (Exh. G, Records, 153). "Sometime in August 1995, she together with her two sisters and driver, went to him at the Bliss unit in Mandaluyong to look for their missing child, Niko. Upon seeing them, he got mad. After knowing the reason for their unexpected presence, he ran after them with a samurai and even [beat] her driver. "At the time of the filing of this case, she and their children were renting a house in Camella, Paraaque, while the appellant was residing at the Bliss unit in Mandaluyong. "In the case study conducted by Social Worker Sonia C. Millan, the children described their father as cruel and physically abusive to them (Exh. UU, Records, pp. 85-100). "The appellee submitted herself to psychologist Natividad A. Dayan, Ph.D., for psychological evaluation (Exh. YY, Records, pp. 207-216), while the appellant on the other hand, did not. "The court a quo found the appellant to be psychologically incapacitated to perform his marital obligations mainly because 3 of his failure to find work to support his family and his violent attitude towards appellee and their children, x x x." Ruling of the Court of Appeals Reversing the RTC, the CA held that psychological incapacity had not been established by the totality of the evidence presented. It ratiocinated in this wise: "Essential in a petition for annulment is the allegation of the root cause of the spouse's psychological incapacity which should also be medically or clinically identified, sufficiently proven by experts and clearly explained in the decision. The

incapacity must be proven to be existing at the time of the celebration of the marriage and shown to be medically or clinically permanent or incurable. It must also be grave enough to bring about the disability of the parties to assume the essential obligations of marriage as set forth in Articles 68 to 71 and Articles 220 to 225 of the Family Code and such noncomplied marital obligations must similarly be alleged in the petition, established by evidence and explained in the decision. "In the case before us, the appellant was not subjected to any psychological or psychiatric evaluation. The psychological findings about the appellant by psychiatrist Natividad Dayan were based only on the interviews conducted with the appellee. Expert evidence by qualified psychiatrists and clinical psychologists is essential if only to prove that the parties were or any one of them was mentally or psychically ill to be truly incognitive of the marital obligations he or she was assuming, or as would make him or her x x x unable to assume them. In fact, he offered testimonial evidence to show that he [was] not psychologically incapacitated. The root cause of his supposed incapacity was not alleged in the petition, nor medically or clinically identified as a psychological illness or sufficiently proven by an expert. Similarly, there is no evidence at all that would show that the appellant was suffering from an incapacity which [was] psychological or mental not physical to the extent that he could not have known the obligations he was assuming: that the incapacity [was] grave, 4 ha[d] preceded the marriage and [was] incurable." 5 Hence, this Petition. Issues 6 In her Memorandum, petitioner presents for this Court's consideration the following issues: "I. Whether or not the Honorable Court of Appeals could set aside the findings by the Regional Trial Court of psychological incapacity of a respondent in a Petition for declaration of nullity of marriage simply because the respondent did not subject himself to psychological evaluation. II. Whether or not the totality of evidence presented and the demeanor of all the witnesses should be the basis of 7 the determination of the merits of the Petition." The Court's Ruling We agree with petitioner that the personal medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity. Nevertheless, the totality of the evidence she presented does not show such incapacity. Preliminary Issue: Need for Personal Medical Examination Petitioner contends that the testimonies and the results of various tests that were submitted to determine respondent's psychological incapacity to perform the obligations of marriage should not have been brushed aside by the Court of Appeals, simply because respondent had not taken those tests himself. Petitioner adds that the CA should have realized that under the circumstances, she had no choice but to rely on other sources of information in order to determine the psychological capacity of respondent, who had refused to submit himself to such tests. 8 In Republic v. CA and Molina, the guidelines governing the application and the interpretation of psychological 9 incapacity referred to in Article 36 of the Family Code were laid down by this Court as follows: "1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it 'as the foundation of the nation.' It decrees marriage as legally 'inviolable,' thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be 'protected' by the state. xxx xxx xxx 2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. 3) The incapacity must be proven to be existing at 'the time of the celebration' of the marriage. The evidence must show that the illness was existing when the parties exchanged their 'I do's.' The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. 4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage.

5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, 'mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. 6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. 7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. xxx xxx xxx (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor 10 General shall discharge the equivalent function of the defensor vinculicontemplated under Canon 1095." The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos v. Court of 11 Appeals: "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence, and (c) incurability." The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. Main Issue: Totality of Evidence Presented The main question, then, is whether the totality of the evidence presented in the present case -- including the testimonies of petitioner, the common children, petitioner's sister and the social worker -- was enough to sustain a finding that respondent was psychologically incapacitated. We rule in the negative. Although this Court is sufficiently convinced that respondent failed to provide material support to the family and may have resorted to physical abuse and abandonment, the totality of his acts does not lead to a conclusion of psychological incapacity on his part. There is absolutely no showing that his "defects" were already present at the inception of the marriage or that they are incurable. Verily, the behavior of respondent can be attributed to the fact that he had lost his job and was not gainfully employed for a period of more than six years. It was during this period that he became intermittently drunk, failed to give material and moral support, and even left the family home. Thus, his alleged psychological illness was traced only to said period and not to the inception of the marriage. Equally important, there is no evidence showing that his condition is incurable, especially now that he is gainfully employed as a taxi driver.1wphi1 Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefor manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. These marital obligations are those provided under Articles 68 to 71, 220, 221 and 225 of the Family Code. Neither is Article 36 to be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, 12 sexual infidelity, abandonment and the like. At best, the evidence presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void. Because Article 36 has been abused as a convenient divorce law, this Court laid down the procedural requirements for its invocation in Molina. Petitioner, however, has not faithfully observed them. In sum, this Court cannot declare the dissolution of the marriage for failure of petitioner to show that the alleged psychological incapacity is characterized by gravity, juridical antecedence and incurability; and for her failure to observe the guidelines outlined in Molina. WHEREFORE, the Petition is DENIED and assailed Decision AFFIRMED, except that portion requiring personal medical examination as a conditio sine qua non to a finding of psychological incapacity. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC

A.M. No. 2349 July 3, 1992 DOROTHY B. TERRE, complainant, vs. ATTY. JORDAN TERRE, respondent. PER CURIAM: In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B. Terre charged respondent Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting of contracting a second marriage and living with another woman other than complainant, while his prior marriage with complainant remained subsisting. 1 The Court resolved to require respondent to answer the complaint. Respondent successfully evaded five (5) attempts to serve a copy of the Court's Resolution and of the complaint by moving from one place to another, such that he could not 2 be found nor reached in his alleged place of employment or residence. On 24 April 1985, that is after three (3) years and a half, with still no answer from the respondent, the Court noted respondent's success in evading service of the complaint and the Court's Resolution and thereupon resolved to "suspend respondent Atty. Jordan Terre from the practice of law until after he appears and/or files his answer to the complaint against him" in the instant 3 case. On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside and/or Lift Suspension Order. In his Answer, Atty. Terre averred that he had contracted marriage with complainant Dorothy Terre on 14 June 1977 upon her representation that she was single; that he subsequently learned that Dorothy was married to a certain Merlito A. Bercenilla sometime in 1968; that when he confronted Dorothy about her prior marriage, Dorothy drove him out of their conjugal residence; that Dorothy had mockingly told him of her private meetings with Merlito A. Bercenilla and that the child she was then carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith that his marriage to 4 complainant was null and void ab initio, he contracted marriage with Helina Malicdem at Dasol, Pangasinan. In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A. Bercenilla and insisted that Jason was the child of respondent Jordan Terre, as evidenced by Jason's Birth Certificate and physical resemblance to respondent. Dorothy further explained that while she had given birth to Jason Terre at the PAFGH registered as a dependent of Merlito Bercenilla, she had done so out of extreme necessity and to avoid risk of death or injury to the fetus which happened to be in a difficult breech position. According to Dorothy, she had then already been abandoned by respondent Jordan Terre, leaving her penniless and without means to pay for the medical and hospital bills arising by reason of her pregnancy. The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and instead referred; by a Resolution 5 dated 6 January 1986, the complaint to the Office of the Solicitor General for investigation, report and recommendation. Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor General. He set the case for hearing on 7 July 1986 with notice to both parties. On 7 July 1986, complainant Dorothy appeared and presented her 6 evidence ex parte, since respondent did not so appear. The Investigating Solicitor scheduled and held another hearing on 19 August 1986, where he put clarificatory questions to the complainant; respondent once again did not appear despite notice to do so. Complainant finally offered her evidence and rested her case. The Solicitor set still another hearing for 2 October 1986, notifying respondent to present his evidence with a warning that should he fail once more to appear, the case would be deemed submitted for resolution. Respondent did not appear on 2 October 1986. The Investigating Solicitor accordingly considered respondent to have waived his right to present evidence and declared the case submitted for resolution. The parties were given time to submit their respective memoranda. Complainant Dorothy did so on 8 December 1986. Respondent Terre did not file his memorandum. On 26 February 1990, the Office of the Solicitor General submitted its "Report and Recommendation" to this Court. The Report summarized the testimony of the complainant in the following manner: Complainant Dorothy Terre took the witness stand and testified substantially as follows: she and respondent met for the first time in 1979 as fourth year high school classmates in Cadiz City High School (tsn, July 7, 1986, p. 9); she was then married to Merlito Bercenilla, while respondent was single ( id.); respondent was aware of her marital status (ibid, p. 14); it was then that respondent started courting her but nothing happened of the courtship (ibid, p. 10); they [complainant and respondent] moved to Manila were they respectively pursued their education, respondent as a law student at the Lyceum University (tsn, July 7, 1986, p. 12, 15-16); respondent continued courting her, this time with more persistence ( ibid, p. 11); she decided nothing would come of it since she was married but he [respondent] explained to her that their marriage was void ab initio since she and her first husband were first cousins ( ibid, p. 12); convinced by his explanation and having secured favorable advice from her mother and ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their marriage license, despite her [complainant's] objection, he [respondent] wrote "single" as her status explaining that since her marriage was void ab initio, there was no need to go to court to declare it as such (ibid, 14-15); they were married before Judge Priscilla Mijares of the City Court of Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986, pp. 16-17); Jason Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July 7, 1986, p. 18); all through their married state up to the time he [respondent] disappeared in 1981, complainant supported respondent, in addition to the allowance the latter was getting from his parents ( ibid, pp. 19-20); she was unaware of the reason for his disappearance until she found out later that respondent married a certain

Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp. 21-22); she then filed a case for abandonment of minor with the City Fiscal of Pasay City ( ibid, p. 23) which was subsequently filed before Branch II of the City Court of Pasay City as Criminal Case No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a case for bigamy against respondent and Helina Malicdem with the office of the Provincial Fiscal of Pangasinan, where a prima facie case was found to exist (Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative case against respondent with the Commission on Audit where he was employed, which case however was considered closed for being moot and academic when respondent was considered automatically separated from the service for having gone on absence without official 7 leave (Exhibit F; tsn, July 7, 1986, pp. 28-29). There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terre contracted marriage on 14 July 1977 before Judge Priscilla Mijares. There is further no dispute over the fact that on 3 May 1981, respondent Jordan Terre married Helina Malicdem in Dasol, Pangasinan. When the second marriage was entered into, respondent's prior marriage with complainant was subsisting, no judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior marriage of respondent with complainant. Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith that his prior marriage with complainant Dorothy Terre was null and void ab initioand that no action for a judicial declaration of nullity was necessary. The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place, respondent has not rebutted complainant's evidence as to the basic facts which underscores the bad faith of respondent Terre. In the second place, that pretended defense is the same argument by which he had inveigled complainant into believing that her prior marriage to Merlito A. Bercenilla being incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was free to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this Court which holds that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. 8 Even if we were to assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to his own argument, his first marriage to complainant Dorothy Terre must be deemed valid, with the result that his second marriage to Helina Malicdem must be regarded as bigamous and criminal in character. That the moral character of respondent Jordan Terre was deeply flawed is shown by other circumstances. As noted, he convinced the complainant that her prior marriage to Bercenilla was null and void ab initio, that she was still legally single and free to marry him. When complainant and respondent had contracted their marriage, respondent went through law school while being supported by complainant, with some assistance from respondent's parents. After respondent had finished his law course and gotten complainant pregnant, respondent abandoned the complainant without support and without the wherewithal for delivering his own child safely in a hospital. Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions, "eloquently displayed, not only his unfitness to remain as a member of the Bar, but likewise his inadequacy to uphold the purpose and responsibility of his 9 gender" because marriage is a basic social institution. 10 In Pomperada v. Jochico, the Court, in rejecting a petition to be allowed to take the oath as a member of the Bar and to sign the Roll of Attorneys, said through Mme. Justice Melencio-Herrera: It is evident that respondent fails to meet the standard of moral fitness for membership in the legal profession. Whether the marriage was a joke as respondent claims, or a trick played on her as claimed by complainant, it does not speak well of respondent's moral values. Respondent had made a mockery of 11 marriage, a basic social institution which public policy cherishes and protects (Article 216, Civil Code). 12 In Bolivar v. Simbol, the Court found the respondent there guilty of "grossly immoral conduct" because he made a dupe of complainant, living on her bounty and allowing her to spend for his schooling and other personal necessities while dangling before her the mirage of a marriage, marrying another girl as soon as he had finished his studies, keeping his marriage a secret while continuing to demand money from complainant. . . . ." The Court held such acts "indicative of a 13 character not worthy of a member of the Bar." We believe and so hold that the conduct of respondent Jordan Terre in inveigling complainant Dorothy Terre to contract a second marriage with him; in abandoning complainant Dorothy Terre after she had cared for him and supported him through law school, leaving her without means for the safe delivery of his own child; in contracting a second marriage with Helina Malicdem while his first marriage with complainant Dorothy Terre was subsisting, constituted "grossly immoral conduct" under Section 27 of Rule 138 of the Rules of Court, affording more than sufficient basis for disbarment of respondent Jordan Terre. He was unworthy of admission to the Bar in the first place. The Court will correct this error forthwith. WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE OUT his name from the Roll of Attorneys. A copy of this decision shall be spread on the personal record of respondent Jordan Terre in the Bar Confidant's Office. A copy of this resolution shall also be furnished to the Integrated Bar of the Philippines and shall be circularized to all the courts of the land. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 104818 September 17, 1993 ROBERTO DOMINGO, petitioner, vs. COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. AVERA,respondents. Jose P.O. Aliling IV for petitioner. De Guzman, Meneses & Associates for private respondent. ROMERO, J.: The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of discretion in the lower court's order denying petitioner's motion to dismiss the petition for declaration of nullity of marriage and separation of property. On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial Court of Pasig entitled "Declaration of Nullity of Marriage and Separation of Property" against petitioner Roberto Domingo. The petition which was docketed as Special Proceedings No. 1989-J alleged among others that: they were married on November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76 with Marriage License No. 4999036 issued at Carmona, Cavite; unknown to her, he had a previous marriage with one Emerlina dela Paz on April 25, 1969 which marriage is valid and still existing; she came to know of the prior marriage only sometime in 1983 when Emerlina dela Paz sued them for bigamy; from January 23 1979 up to the present, she has been working in Saudi Arabia and she used to come to the Philippines only when she would avail of the one-month annual vacation leave granted by her foreign employer since 1983 up to the present, he has been unemployed and completely dependent upon her for support and subsistence; out of her personal earnings, she purchased real and personal properties with a total amount of approximately P350,000.00, which are under the possession and administration of Roberto; sometime in June 1989, while on her one-month vacation, she discovered that he was cohabiting with another woman; she further discovered that he had been disposing of some of her properties without her knowledge or consent; she confronted him about this and thereafter appointed her brother Moises R. Avera as her attorney-in-fact to take care of her properties; he failed and refused to turn over the possession and administration of said properties to her brother/attorney-in-fact; and he is not authorized to administer and possess the same on account of the nullity of their marriage. The petition prayed that a temporary restraining order or a writ of preliminary injunction be issued enjoining Roberto from exercising any act of administration and ownership over said properties; their marriage be declared null and void and of no force and effect; and Delia Soledad be declared the sole and exclusive owner of all properties acquired at the time of their void marriage and such properties be placed under the proper management and administration of the attorney-in-fact. Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The marriage being void ab initio, the petition for the declaration of its nullity is, therefore, superfluous and unnecessary. It added that private respondent has no property which is in his possession. On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to dismiss for lack of merit. She explained: Movant argues that a second marriage contracted after a first marriage by a man with another woman is illegal and void (citing the case of Yap v. Court of Appeals, 145 SCRA 229) and no judicial decree is necessary to establish the invalidity of a void marriage (citing the cases of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845). Indeed, under the Yap case there is no dispute that the second marriage contracted by respondent with herein petitioner after a first marriage with another woman is illegal and void. However, as to whether or not the second marriage should first be judicially declared a nullity is not an issue in said case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in explicit terms, thus: And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of its nullity. (37 SCRA 316, 326) The above ruling which is of later vintage deviated from the previous rulings of the Supreme Court in the aforecited cases of Aragon and Mendoza. Finally, the contention of respondent movant that petitioner has no property in his 1 possession is an issue that may be determined only after trial on the merits. 2 A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra v. GSIS and the absence of justiciable controversy as to the nullity of the marriage. On September 11, 1991, Judge Austria denied the motion for reconsideration and gave petitioner fifteen (15) days from receipt within which to file his answer. Instead of filing the required answer, petitioner filed a special civil action of certiorari and mandamus on the ground that the lower court acted with grave abuse of discretion amounting to lack of jurisdiction in denying the motion to dismiss.

On February 7, 1992, the Court of Appeals dismissed the petition. It explained that the case of Yap v. CA cited by petitioner and that of Consuegra v. GSIS relied upon by the lower court do not have relevance in the case at bar, there being no identity of facts because these cases dealt with the successional rights of the second wife while the instant case prays for separation of property corollary with the declaration of nullity of marriage. It observed that the separation and subsequent distribution of the properties acquired during the union can be had only upon proper determination of the status of the marital relationship between said parties, whether or not the validity of the first marriage is denied by petitioner. Furthermore, in order to avoid duplication and multiplicity of suits, the declaration of nullity of marriage may be invoked in this proceeding together with the partition and distribution of the properties involved. Citing Articles 48, 50 and 52 of the Family Code, it held that private respondent's prayer for declaration of absolute nullity of their marriage may be raised together with other incidents of their marriage such as the separation of their properties. Lastly, it noted that since the Court has jurisdiction, the alleged error in refusing to grant the motion to dismiss is merely one of law for which the remedy ordinarily would have been to file an answer, proceed with the trial and in case of an adverse decision, reiterate 5 the issue on appeal. The motion for reconsideration was subsequently denied for lack of merit. Hence, this petition. The two basic issues confronting the Court in the instant case are the following. First, whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the same should be filed only for purposes of remarriage. Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain real and personal properties allegedly belonging to her exclusively. 6 7 Petitioner, invoking the ruling in People v. Aragon and People v. Mendoza, contends that SP. No. 1989-J for Declaration of Nullity of Marriage and Separation of Property filed by private respondent must be dismissed for being unnecessary and superfluous. Furthermore, under his own interpretation of Article 40 of the Family Code, he submits that a petition for declaration of absolute nullity of marriage is required only for purposes of remarriage. Since the petition in SP No. 1989-J contains no allegation of private respondent's intention to remarry, said petition should therefore, be dismissed. On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity of their marriage, not for purposes of remarriage, but in order to provide a basis for the separation and distribution of the properties acquired during coverture. There is no question that the marriage of petitioner and private respondent celebrated while the former's previous 8 marriage with one Emerlina de la Paz was still subsisting, is bigamous. As such, it is from the beginning. Petitioner 9 himself does not dispute the absolute nullity of their marriage. The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases where the Court had earlier ruled that no judicial decree is necessary to establish the invalidity of a void, bigamous marriage. It is noteworthy to observe that Justice Alex Reyes, however, dissented on these occasions stating that: Though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to 10 the courts. . . . This dissenting opinion was adopted as the majority position in subsequent cases involving the same issue. Thus, 11 in Gomez v. Lipana, the Court abandoned its earlier ruling in the Aragon and Mendoza cases. In reversing the lower court's order forfeiting the husband's share of the disputed property acquired during the second marriage, the Court stated that "if the nullity, or annulment of the marriage is the basis for the application of Article 1417, there is need for a judicial declaration thereof, which of course contemplates an action for that purpose." Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service Insurance System, that "although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity." 12 In Tolentino v. Paras, however, the Court turned around and applied the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking for a declaration as the lawful surviving spouse and the correction of the death certificate of her deceased husband, it explained that "(t)he second marriage that he contracted with private respondent during the lifetime of his first spouse is null and void from the beginning and of no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage." 13 However, in the more recent case of Wiegel v. Sempio-Diy the Court reverted to the Consuegra case and held that there was "no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel." Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of the 14 absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage be free from legal infirmity is a final judgment declaring the previous 15 marriage void. 16 The Family Law Revision Committee and the Civil Code Revision Committee which drafted what is now the Family Code of the Philippines took the position that parties to a marriage should not be allowed to assume that their marriage is

void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again. This is borne out by the following minutes of the 152nd Joint Meeting of the Civil Code and Family Law Committees where the present Article 40, then Art. 39, was discussed. B. Article 39. The absolute nullity of a marriage may be invoked only on the basis of a final judgment declaring the marriage void, except as provided in Article 41. Justice Caguioa remarked that the above provision should include not only void but also voidable marriages. He then suggested that the above provision be modified as follows: The validity of a marriage may be invoked only . . . Justice Reyes (J.B.L. Reyes), however, proposed that they say: The validity or invalidity of a marriage may be invoked only . . . On the other hand, Justice Puno suggested that they say: The invalidity of a marriage may be invoked only . . . Justice Caguioa explained that his idea is that one cannot determine for himself whether or not his marriage is valid and that a court action is needed. Justice Puno accordingly proposed that the provision be modified to read: The invalidity of a marriage may be invoked only on the basis of a final judgment annulling the marriage or declaring the marriage void, except as provided in Article 41. Justice Caguioa remarked that in annulment, there is no question. Justice Puno, however, pointed out that, even if it is a judgment of annulment, they still have to produce the judgment. Justice Caguioa suggested that they say: The invalidity of a marriage may be invoked only on the basis of a final judgment declaring the marriage invalid, except as provided in Article 41. Justice Puno raised the question: When a marriage is declared invalid, does it include the annulment of a marriage and the declaration that the marriage is void? Justice Caguioa replied in the affirmative. Dean Gupit added that in some judgments, even if the marriage is annulled, it is declared void. Justice Puno suggested that this matter be made clear in the provision. Prof. Baviera remarked that the original idea in the provision is to require first a judicial declaration of a void marriage and not annullable marriages, with which the other members concurred. Judge Diy added that annullable marriages are presumed valid until a direct action is filed to annul it, which the other members affirmed. Justice Puno remarked that if this is so, then the phrase "absolute nullity" can stand since it might result in confusion if they change the phrase to "invalidity" if what they are referring to in the provision is the declaration that the marriage is void. Prof. Bautista commented that they will be doing away with collateral defense as well as collateral attack. Justice Caguioa explained that the idea in the provision is that there should be a final judgment declaring the marriage void and a party should not declare for himself whether or not the marriage is void, while the other members affirmed. Justice Caguioa added that they are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated that there are actions which are brought on the assumption that the marriage is valid. He then asked: Are they depriving one of the right to raise the defense that he has no liability because the basis of the liability is void? Prof. Bautista added that they cannot say that there will be no judgment on the validity or invalidity of the marriage because it will be taken up in the same proceeding. It will not be a unilateral declaration that, it is a void marriage. Justice Caguioa saw the point of Prof. Bautista and suggested that they limit the provision to remarriage. He then proposed that Article 39 be reworded as follows: The absolute nullity of a marriage for purposes of remarriage may be invoked only on the basis of final judgment . . . Justice Puno suggested that the above be modified as follows: The absolute nullity of a previous marriage may be invoked for purposes of establishing the validity of a subsequent marriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41. Justice Puno later modified the above as follows: For the purpose of establishing the validity of a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41. Justice Caguioa commented that the above provision is too broad and will not solve the objection of Prof. Bautista. He proposed that they say: For the purpose of entering into a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41.

Justice Caguioa explained that the idea in the above provision is that if one enters into a subsequent marriage without obtaining a final judgment declaring the nullity of a previous marriage, said subsequent marriage is void ab initio. After further deliberation, Justice Puno suggested that they go back to the original wording of the provision as follows: The absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring such previous marriage void, except as 17 provided in Article 41. In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her 18 first marriage, the person who marries again cannot be charged with bigamy. Just over a year ago, the Court made the pronouncement that there is a necessity for a declaration of absolute nullity of a 19 prior subsisting marriage before contracting another in the recent case of Terre v. Terre. The Court, in turning down the defense of respondent Terre who was charged with grossly immoral conduct consisting of contracting a second marriage and living with another woman other than complainant while his prior marriage with the latter remained subsisting, said that "for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential." As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits that the same can be maintained only if it is for the purpose of remarriage. Failure to allege this purpose, according to petitioner's theory, will warrant dismissal of the same. Article 40 of the Family Code provides: Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely." As it is placed, the same shows that it is meant to qualify "final judgment declaring such previous marriage void." Realizing the need for careful craftsmanship in conveying the precise intent of the Committee members, the provision in question, as it finally emerged, did not state "The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . . .," in which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the phraseology been such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause "on the basis solely of a final judgment declaring such previous marriage void." That Article 40 as finally formulated included the significant clause denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the latters' presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a party who has previously contracted a marriage which remains subsisting desires to enter into another marriage which is legally unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void. This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why should the only legally acceptable basis for declaring a previous marriage an absolute nullity be a final judgment declaring such previous marriage void? Whereas, for purposes other than remarriage, other evidence is acceptable? Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the foundation of the 20 family;" as such, it "shall be protected by the State." In more explicit terms, the Family Code characterizes it as "a special contract of permanent union between a man and a woman entered into in accordance with law for the 21 establishment of conjugal, and family life." So crucial are marriage and the family to the stability and peace of the nation 22 that their "nature, consequences, and incidents are governed by law and not subject to stipulation . . ." As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with respect to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect and nothing more. Were this so, this inviolable social institution would be reduced to a mockery and would rest on very shaky foundations indeed. And the grounds for nullifying marriage would be as diverse and far-ranging as human ingenuity and fancy could conceive. For such a social significant institution, an official state pronouncement through the courts, and nothing less, will satisfy the exacting norms of society. Not only would such an open and public declaration by the courts definitively confirm the nullity of the contract of marriage, but the same would be easily verifiable through records accessible to everyone. That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted by one of the parties may be gleaned from new information required in the Family Code to be included in the application for a marriage 23 license, viz, "If previously married, how, when and where the previous marriage was dissolved and annulled."

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is, undoubtedly, quite restrictive. Thus, his position that private respondent's failure to state in the petition that the same is filed to enable her to remarry will result in the dismissal of SP No. 1989-J is untenable. His misconstruction of Art. 40 resulting from the misplaced emphasis on the term "solely" was in fact anticipated by the members of the Committee. Dean Gupit commented the word "only" may be misconstrued to refer to "for purposes of remarriage ." Judge Diy stated that "only" refers to "final judgment ." Justice Puno suggested that they say "on the basis only of a final judgment." Prof. Baviera suggested that they use the legal term "solely" instead of "only," 24 which the Committee approved. (Emphasis supplied) Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary, petitioner suggests that private respondent should have filed an ordinary civil action for the recovery of the properties alleged to have been acquired during their union. In such an eventuality, the lower court would not be acting as a mere special court but would be clothed with jurisdiction to rule on the issues of possession and ownership. In addition, he pointed out that there is actually nothing to separate or partition as the petition admits that all the properties were acquired with private respondent's money. The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of absolute nullity of marriage may be raised together with the other incident of their marriage such as the separation of their properties." When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for "the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial 25 proceedings." Other specific effects flowing therefrom, in proper cases, are the following: Art. 43. xxx xxx xxx (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary disposition made by one in favor of the 26 other are revoked by operation of law. (n) Based on the foregoing provisions, private respondent's ultimate prayer for separation of property will simply be one of the necessary consequences of the judicial declaration of absolute nullity of their marriage. Thus, petitioner's suggestion that in order for their properties to be separated, an ordinary civil action has to be instituted for that purpose is baseless. The Family Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the separation of property according to the regime of property relations governing them. It stands to reason that the lower court before whom the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the incidental questions regarding the couple's properties. Accordingly, the respondent court committed no reversible error in finding that the lower court committed no grave abuse of discretion in denying petitioner's motion to dismiss SP No. 1989-J. WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated February 7, 1992 and the Resolution dated March 20, 1992 are AFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 145226 February 06, 2004 LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

QUISUMBING, J.: 1 This petition for review on certiorari seeks to reverse the decision dated October 21, 1999 of the Court of Appeals in CA2 G.R. CR No. 20700, which affirmed the judgment dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol,

Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum 3 to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution of the appellate court, dated September 25, 2000, denying Morigos motion for reconsideration. The facts of this case, as found by the court a quo, are as follows: Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 1974-1978). After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other. In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts. In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication. In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol. On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind. On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. 4 On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago at the Virgen sa Barangay Parish, Tagbilaran City, Bohol. On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek ( sic) among others, the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place. 5 On October 19, 1993, appellant was charged with Bigamy in an Information filed by the City Prosecutor of 6 Tagbilaran [City], with the Regional Trial Court of Bohol. The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued. On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows: WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum. 7 SO ORDERED. In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was null and 8 void ab initio. Following Domingo v. Court of Appeals, the trial court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again. 9 Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur, which held that the court of a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition anywhere. Debunking Lucios defense of good faith in contracting the second 10 marriage, the trial court stressed that following People v. Bitdu, everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof. Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700. Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initiosince no marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory. On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows: WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto. 11 SO ORDERED. In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought to be punished 12 by Article 349 of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case. The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not be 13 accorded validity in the Philippines, pursuant to Article 15 of the Civil Code and given the fact that it is contrary to public 14 policy in this jurisdiction. Under Article 17 of the Civil Code, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction.

Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine in Mendiola v. 15 People, allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for good faith. 16 On September 25, 2000, the appellate court denied the motion for lack of merit. However, the denial was by a split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be convicted beyond reasonable doubt of bigamy. The present petition raises the following issues for our resolution: A. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE. B. WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR. C. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO 17 ACCOUNT. To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid. The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy. For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient 18 but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis, which held that bigamy can be 19 successfully prosecuted provided all the elements concur, stressing that under Article 40 of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG counters that petitioners contention that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia. Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determine whether all the 20 elements of bigamy are present in this case. In Marbella-Bobis v. Bobis, we laid down the elements of bigamy thus: (1) the offender has been legally married; (2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) he contracts a subsequent marriage; and (4) the subsequent marriage would have been valid had it not been for the existence of the first. Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit: WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract. 21 SO ORDERED. The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a 22 23 solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance with Articles 3 and 4 of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, "This simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the 24 celebration of the first marriage, the accused was, under the eyes of the law, never married." The records show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long become final and executory. The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the

principle of retroactivity of a marriage being declared void ab initio, the two were never married "from the beginning." The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge. 25 The present case is analogous to, but must be distinguished from Mercado v. Tan. In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We held therein that: A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of 26 bigamy. This principle applies even if the earlier union is characterized by statutes as "void." It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio. In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage. The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under the circumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find that we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now moot and academic. WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-23214 June 30, 1970 OFELIA GOMEZ, as Administratrix of the Estate of the late ISIDRA GOMEZ Y AQUINO, plaintiff-appellee, vs. JOAQUIN P. LIPANA, defendant-appellant. Marcelo Y. Hernandez for plaintiff-appellee. Presentacion G. Santos for defendant-appellant. MAKALINTAL, J.: The defendant-appellant, Joaquin P. Lipana, contracted two marriages: the first with Maria Loreto Ancino in 1930 and the second with Isidra Gomez y Aquino in 1935. At the time of the second marriage the first was still subsisting, which fact, however, Lipana concealed from the second wife. On December 17, 1943 the spouses of the second marriage acquired by purchase a piece of land in Cubao, Quezon City, for the price of P3,000.00. The Torrens title for the property (Transfer Certificate No. 25289 of the Register of Deeds for Quezon City) was issued on February 1, 1944, in the name of "Joaquin Lipana married to Isidra Gomez." On July 20, 1958 Isidra Gomez died intestate and childless, and survived only by her sisters as the nearest relatives. On August 7, 1961 Ofelia Gomez, judicial administratrix of her estate, commenced the present suit, praying for the forfeiture of the husband's share in the Cubao property in favor of the said estate. Reliance is placed on Article 1417 of the old Civil Code, the Spanish text of which provides: La sociedad de gananciales concluye al disolverse el matrimonio o al ser declarado nulo. El conjuge que por su mala fe hubiere sido causa de la nulidad, no tendra parte en los bienes gananciales. The trial court, ruling that the second marriage was void ab initio and that the husband was the one who gave cause for its nullity, applied the aforequoted provision and declared his interest in the disputed property forfeited in favor of the estate of the deceased second wife. In the present appeal by the defendant he attributes two errors to the trial court: (1) in allowing a collateral attack on the validity of the second marriage and in holding it to be bigamous and void ab initio; and (2) in holding that Article 1417 of the Spanish Civil Code is applicable in this case.

The first error has not been committed. The controlling statute is Act 3613 of the Philippine Legislature, the Marriage Law which became effective on December 4, 1929 and was in force when the two marriages were celebrated. The pertinent provisions are as follows: SEC. 29. Illegal Marriages. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless; (a) The first marriage was annulled or dissolved; (b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage so contracted being valid in either case until declared null and void by a competent court. SEC. 30. Annullable marriages. A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (b) That the former husband or wife of either was living and the marriage with such former husband or wife was then in force; xxx xxx xxx SEC. 31. Time for filing action for decree of nullity. The action to obtain a decree of nullity of marriage, for causes mentioned in the preceding section, must be commenced within the periods and by the parties as follows: xxx xxx xxx (b) For causes mentioned in subdivision (b); by either party during the life of the other, or by the former husband or wife. xxx xxx xxx The appellant, relying on Section 30(b) quoted above, maintains that his marriage to Isidra Gomez was valid and could be annulled only in an action for that purpose, which in the light of Section 31 could be filed only by either party thereto, during the lifetime of the other, or by the former spouse. However, it is not Section 30 but Section 29 which governs in this case, particularly the first paragraph thereof, which says that "any marriage contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance." This is the general rule, to which the only exceptions are those mentioned in subsections (a) and (b) of the same provision. <re||an1w> There is no suggestion here that the defendant's 1930 marriage to Maria Loreto Ancino had been annulled or dissolved when he married Isidra Gomez in 1935, and there is no proof that he did so under the conditions envisioned in subsection (b). The burden is on the party invoking the exception to prove that he comes under it; and the defendant has not discharged that burden at all, no evidence whatsoever having been adduced by him at the trial. Indeed, he contracted the second marriage less than seven years after the first, and he has not shown that his first wife was then generally considered dead or was believed by him to be so. The second error bears closer analysis. Is Article 1417 of the Spanish Civil Code applicable under the facts of this case? There is one primordial fact which must be considered, namely, that since the defendant's first marriage has not been dissolved or declared void the conjugal partnership established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interest in the husband's share in the property here in dispute, even if it was acquired during the second marriage, of which interest she would be deprived if his share should be declared forfeited in favor of the second wife. There is a difference of opinion among the members of this Court as to whether such resulting prejudice to the first wife is within the contemplation of the Spanish Civil Code when it decrees in general terms in Article 1417 that the spouse who in bad faith has given cause for nullity (of the marriage) shall have no share in the conjugal properties, considering that in the present case the first marriage has not been terminated and therefore likewise impresses the conjugal stamp of that marriage upon whatever properties are acquired during its existence. We believe, however, that it is not necessary to resolve that question here inasmuch as the facts do not call for the application of Article 1417. The first paragraph of this Article states two causes for the termination of the conjugal partnership: (1) dissolution of the marriage and (2) declaration of nullity. Under the second paragraph of the same Article it is upon the termination of the partnership by either of said causes that the forfeiture of the guilty spouse takes place. Now then, when did the conjugal partnership formed by virtue of the marriage of the defendant to the deceased Isidra Gomez terminate? Obviously when the marriage was dissolved by the latter's death in 1958. By that time Article 1417 was no longer in force, having been eliminated in the new Civil Code, which took effect in 1950. The legal situation arising from these facts is that while insofar as the second wife was concerned, she having acted in good faith, her marriage produced civil effects and gave rise, just the same, to the 1 formation of a conjugal partnership wherein she was entitled to an equal share upon dissolution, no action lies under Article 1417 for the forfeiture of the husband's share in her favor, much less in favor of her estate, with respect to which there are after all no children, but only collateral relatives, who are entitled to succeed.

It would not do to say that since the second marriage, in this case was void ab initio the application of Article 1417 should be reckoned as of the date it was celebrated in 1935. This article speaks from the moment of the termination of the conjugal partnership (either by the dissolution of the marriage or by the declaration of its nullity); and it would be selfcontradictory to consider that the conjugal partnership was formed and terminated at the same time and by the same act, 2 that is, by the celebration itself of the marriage. Colin y Capitant comments on this provision as follows: Disuelven matrimonio y, por tanto la sociedad de gananciales, la muerte de uno de los conjuges y la declaracion de nulidad.<re||an1w> En caso de declaracion de nulidad, la sociedad de gananciales se extingue al ser declarado nulo el matrimonio, es decir, en el momento en que sea firme la sentencia declarativa de la nulidad. xxx xxx xxx It may thus be seen that if the nullity, or annulment, of the marriage is the basis for the application of Article 1417, there is need for a judicial declaration thereof, which of course contemplates an action for that purpose. In the instant case, however, the conjugal partnership formed by the second marriage was dissolved by the death of the second wife; and there has been no judicial declaration of nullity except possibly in this very action, filed after dissolution by death had taken place and when Article 1417 of the Spanish Civil Code was no longer in force. 3 There is, to be sure, a statement of Manresa that in case of nullity it is presumed, with respect to the spouse who acted in bad faith, that neither the marriage nor the conjugal partnership ever existed, and hence such spouse has no right to a share in the conjugal properties; but this legal effect of such presumption derives from the premise that Article 1417 is still in force, and in any event is of doubtful application if it would be in derogation of and to the prejudice of the right of the other spouse of the first marriage in the conjugal partnership formed thereby, which includes properties acquired by the husband during its existence. The only just and equitable solution in this case would be to recognize the right of the second wife to her husband, and consider the other half as pertaining to the conjugal partnership of the first marriage. WHEREFORE, the decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-27930 November 26, 1970 AURORA A. ANAYA, plaintiff-appellant, vs. FERNANDO O. PALAROAN, defendant-appellee. Isabelo V. Castro for plaintiff-appellant. Arturo A. Romero for defendant-appellee. REYES, J.B.L., J.: Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan, defendant." The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant Fernando were married on 4 December 1953; that defendant Fernando filed an action for annulment of the marriage on 7 January 1954 on the ground that his consent was obtained through force and intimidation, which action was docketed in the Court of First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on 23 September 1959 dismissing the complaint of Fernando, upholding the validity of the marriage and granting Aurora's counterclaim; that (per paragraph IV) while the amount of the counterclaim was being negotiated "to settle the judgment," Fernando had divulged to Aurora that several months prior to their marriage he had pre-marital relationship with a close relative of his; and that "the nondivulgement to her of the aforementioned pre-marital secret on the part of defendant that definitely wrecked their marriage, which apparently doomed to fail even before it had hardly commenced ... frank disclosure of which, certitude precisely precluded her, the Plaintiff herein from going thru the marriage that was solemnized between them constituted 'FRAUD', in obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on Appeal, page 3). She prayed for the annulment of the marriage and for moral damages. Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and denied having had premarital relationship with a close relative; he averred that under no circumstance would he live with Aurora, as he had escaped from her and from her relatives the day following their marriage on 4 December 1953; that he denied having committed any fraud against her. He set up the defenses of lack of cause of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of the marriage and her having enjoyed the support that had been granted her. He counterclaimed for damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of the complaint but for its dismissal "with respect to the alleged moral damages." Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:

(1) that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower her with love and affection not because he really felt so but because she merely happened to be the first girl available to marry so he could evade marrying the close relative of his whose immediate members of her family were threatening him to force him to marry her (the close relative); (2) that since he contracted the marriage for the reason intimated by him, and not because he loved her, he secretly intended from the very beginning not to perform the marital duties and obligations appurtenant thereto, and furthermore, he covertly made up his mind not to live with her; (3) that the foregoing clandestine intentions intimated by him were prematurely concretized for him, when in order to placate and appease the immediate members of the family of the first girl (referent being the close relative) and to convince them of his intention not to live with plaintiff, carried on a courtship with a third girl with whom, after gaining the latter's love cohabited and had several children during the whole range of nine years that Civil Case No. 21589, had been litigated between them (parties); (Record on Appeal, pages 10-11) Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the court realized that Aurora's allegation of the fraud was legally insufficient to invalidate her marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding: It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest, and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied reconsideration. The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital relationship with another woman is a ground for annulment of marriage. We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides: ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be; This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Article 86, as follows: ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article: (1) Misrepresentation as to the identity of one of the contracting parties; (2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; (3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband. No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. The intention of Congress to confine the circumstances that can constitute fraud as ground for annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a subsequent article within the chapter on void and voidable marriages. If its intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation as to identity, non-disclosure of a previous conviction, and concealment of pregnancy), making it clear that Congress intended to exclude all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage." Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that "no other misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested. The lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not. But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word chosen by her) of the pre-marital relationship of her husband with another woman as her cause of action, but that she has, likewise, alleged in

her reply that defendant Fernando paid court to her without any intention of complying with his marital duties and obligations and covertly made up his mind not to live with her. Plaintiff-appellant contends that the lower court erred in ignoring these allegations in her reply. This second set of averments which were made in the reply (pretended love and absence of intention to perform duties of consortium) is an entirely new and additional "cause of action." According to the plaintiff herself, the second set of allegations is "apart, distinct and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76). Said allegations were, therefore, improperly alleged in the reply, because if in a reply a party-plaintiff is not permitted to amend or change the cause of action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to allege a new and additional cause of action in the reply. Otherwise, the series of pleadings of the parties could become interminable. On the merits of this second fraud charge, it is enough to point out that any secret intention on the husband's part not to perform his marital duties must have been discovered by the wife soon after the marriage: hence her action for annulment based on that fraud should have been brought within four years after the marriage. Since appellant's wedding was celebrated in December of 1953, and this ground was only pleaded in 1966, it must be declared already barred. FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13553 February 23, 1960 JOSE DE OCAMPO, petitioner, vs. SERAFINA FLORENCIANO, respondent. Joselito J. Coloma for petitioner. BENGZON, J.: Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus condonation or consent to the adultery and prescription. We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience are quoted herewith: ART. 100.The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame. Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat. According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and since then they had lived separately. "On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation." The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her 1 infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be decreed. As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading 2 expressly agreeing to the plaintiff's demand. This is not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement. Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.) Collusion in divorce or legal separation means the agreement. . . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.). In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Here, the offense of adultery had really taking place, according to the evidence. The defendant could not have falsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk. In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.). And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.). We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return. 3 Two decisions are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her husband. Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina Florenciano. So ordered. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 116607 April 10, 1996 EMILIO R. TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents. PUNO, J.:p This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioner's appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769. This case arose from the following facts:

In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and petitioner were married on June 3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was already psychologically incapacitated to comply with his essential marital obligations which became manifest afterward and resulted in violent fights between husband and wife; that in one of their fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the authorities and sentenced to a one-year suspended penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three women in succession, one of whom he presented to the public as his wife; that after he left the conjugal dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of their children compelling private respondent to accept donations and dole-outs from her family and friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal partnership by alienating some of their assets and incurring large obligations with banks, credit card companies and other financial institutions, without private respondent's consent; that attempts at reconciliation were made but they all failed because of petitioner's refusal to reform. In addition to her prayer for annulment of marriage, private respondent prayed for powers of administration to save 1 the conjugal properties from further dissipation. Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he and private respondent were a normal married couple during the first ten years of their marriage and actually begot two children during this period; that it was only in 1982 that they began to have serious personal differences when his wife did not accord the respect and dignity due him as a husband but treated him like a persona non grata; that due to the "extreme animosities " between them, he temporarily left the conjugal home for a "cooling-off period" in 1984; that it is private respondent who had been taking prohibited drugs and had a serious affair with another man; that petitioner's work as owner and operator of a radio and television station exposed him to malicious gossip linking him to various women in media and the entertainment world; and that since 1984, he experienced financial reverses in his business and was compelled, with the knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner petitioned the court to allow him to return to the conjugal home and continue his administration of the conjugal partnership. After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Atty. Jose F. Racela IV, private respondent's counsel. Private respondent likewise submitted documentary evidence consisting of newspaper articles of her husband's relationship with other women, his apprehension by the authorities for illegal possession of drugs; and copies of a prior a church annulment 2 decree. The parties' marriage was clerically annulled by the Tribunal Metropolitanum Matrimonial which was affirmed by 3 the National Appellate Matrimonial Tribunal in 1986. During presentation of private respondent's evidence, petitioner, on April 18, 1990, filed his Opposition to private respondent's petition for appointment as administratrix of the conjugal partnership of gains. After private respondent rested her case, the trial court scheduled the reception of petitioner's evidence on May 11, 1990. On May 8, 1990, two days before the scheduled hearing , a counsel for petitioner moved for a postponement on the 4 ground that the principal counsel was out of the country and due to return on the first week of June. The court granted 5 the motion and reset the hearing to June 8, 1990. On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court declared petitioner to have waived his right to present evidence and deemed the case submitted for decision on the basis of the evidence presented. On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondent's marriage to petitioner and awarding custody of the children to private respondent. The court ruled: WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void ab initio on the ground of psychological incapacity on the part of the defendant under Sec. 36 of the Family Code. Let herein judgment of annulment be recorded in the registry of Mandaluyong, Metro Manila where the marriage was contracted and in the registry of Makati, Metro Manila where the marriage is annulled. The custody of the two (2) legitimate children of the plaintiff and the defendant is hereby awarded to the plaintiff. The foregoing judgment is without prejudice to the application of the other effects of annulment as 6 provided for under Arts . 50 and 51 of the Family Code of the Philippines. Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from the decision. On September 24, 1990, private respondent filed a "Motion for Dissolution of Conjugal Partnership of Gains and 7 8 Adjudication to Plaintiff of the Conjugal Properties." Petitioner opposed the motion on October 17, 1990. Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a petition for relief from judgment of the June 29, 1990 decision. 9 The trial court denied the petition on August 8, 1991. Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for relief from judgment. On 10 July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the order of the trial court. Hence this petition.

The threshold issue is whether a petition for relief from judgment is warranted under the circumstances of the case. We rule in the negative. A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court which provides: Sec. 2. Petition to Court of First Instance for relief from judgment or other proceeding thereof. When a judgment or order is entered, or any other proceeding is taken, against a party in a Court of First Instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside. Under the rules, a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good, 11 substantial and meritorious defense or cause of action. If the petition is granted, the court shall proceed to hear and 12 determine the case as if a timely motion for new trial had been granted therein. In the case at bar, the decision annulling petitioner's marriage to private respondent had already become final and executory when petitioner failed to appeal during the reglementary period. Petitioner however claims that the decision of the trial court was null and void for violation of his right to due process. He contends he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment on the basis of the evidence for private respondent. Petitioner justifies his absence at the hearings 13 on the ground that he was then "confined for medical and/or rehabilitation reason." In his affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated 14 National Police. The records, however, show that the former counsel of petitioner did not inform the trial court of this confinement. And when the court rendered its decision, the same counsel was out of the country for which reason the 15 decision became final and executory as no appeal was taken therefrom. The failure of petitioner's counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a 16 judgment valid and regular on its face. Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioner's confinement and medical treatment as the reason for his non-appearance at the scheduled hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone. To compound the negligence of petitioner's counsel, the order of the trial court was never assailed via a motion for reconsideration. Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right to present evidence but he was not denied his day in court. As the record show, petitioner, through counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-examined private respondent's witnesses and even 1 submitted his opposition to private respondent's motion for dissolution of the conjugal partnership of gains. 7 A petition for relief from judgment is an equitable remedy; it is allowed only in exception cases where there is no other available or adequate remedy. When a party has another remedy available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable 18 negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru 19 inexcusable negligence. Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which provides that in actions for annulment of marriage or legal separation, the prosecuting officer should intervene for the state because the law "looks with disfavor upon the haphazard declaration of annulment of marriages by default." He contends that when he failed to appear at the scheduled hearings, the trial court should have ordered the prosecuting officer to intervene for the state and 20 inquire as to the reason for his non-appearance. Articles 48 and 60 of the Family Code read as follows: Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecution attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. xxx xxx xxx Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent 21 collusion between the parties and to take care that the evidence is not fabricated or suppressed. 22 A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to

appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the 23 parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the 24 presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. Our Constitution is 25 committed to the policy of strengthening the family as a basic social institution. Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the state is vitally interested. The state can find no stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members. The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family Code. For one, petitioner was not declared in default by the trial court for failure to answer. Petitioner filed his answer to the complaint and contested the cause of action alleged by private respondent. He actively participated in the proceedings below by filing several pleadings and cross-examining the witnesses of private respondent. It is crystal clear that every stage of the litigation was characterized by a no-holds barred contest and not by collusion. The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioner's vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties. There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court. Petitioner also refutes the testimonies of private respondent's witnesses, particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner alleges that if he were able to present his evidence, he could have testified that he was not psychologically incapacitated at the time of the marriage as indicated by the fact that during their first ten years, he and private respondent lived together with their children as one normal and happy family, that he continued supporting his family even after he left the conjugal dwelling and that his work as owner and operator of a radio and television corporation places him in the public eye and makes him a good subject for malicious gossip linking him with various women. These facts, according to petitioner, should disprove the ground for annulment of his marriage to petitioner. Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioner's psychological 26 incapacity at the time of the marriage is final and binding on us. Petitioner has not sufficiently shown that the trial court's factual findings and evaluation of the testimonies of private respondent's witnesses vis-a-vispetitioner's defenses are 2 clearly and manifestly erroneous. 7 IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-10033 December 28, 1956 BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA GINEZ, defendant-appellee. Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for appellee. FELIX, J.: This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no question of fact involved, the motion being predicated on the assumption as true of the very facts testified to by plaintiff-husband. The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college there. As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings". On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same. The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment. The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court erred: (a) In so prematurely dismissing the case; (b) In finding that there were condonation on the part of plaintiff-appellant; and (c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss. As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority. The Civil Code provides: ART. 97. A petition for legal separation may be filed: (1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal Code; or (2) An attempt by one spouse against the life of the other. ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 102. An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors. Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon. But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery . What did he do in such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of sleeping

with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on this point: In the hearing of the case, the plaintiff further testified as follows: Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court why you want to separate from your wife? A. I came to know that my wife is committing adultery, I consulted the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.) Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of our god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12, t.s.n.)lawphil.net Q. What happened next? A. I persuaded her to come along with me. She consented but I did not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.) Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and one night. (p. 12. t.s.n.) Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.) Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife? A. Yes, sir. (p. 19. t.s.n.) Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.) Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19, t.s.n.) The New Civil Code of the Philippines, in its Art. 97, says: A petition for legal separation may be filed: (1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal Code. and in its Art. 100 it says:lawphil.net The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above, clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night, and the further fact that in the second night they again slept together in their house likewise as husband and wife all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery. In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong." In Tiffany's Domestic and Family Relations, section 107 says: Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce. Condonation may be express or implied. It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein). In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the various decisions above-cited, the inevitable conclusion is that the present action is untenable. Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code. The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73). If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation, and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d). A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315). There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted. There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court). Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against appellant. It is so ordered.