G.R. No.

168913

TING vs. HEIRS OF DIEGO LIR

March 14, 2007
CARPIO MORALES, J.:

In a Decision of December 10, 1976 in Land Registration Case (LRC) No.

N-983, then Judge Alfredo Marigomen of the then Court of First Instance of
Cebu, Branch 7, granted the application filed by the Spouses Diego Lirio
and Flora Atienza for registration of title to Lot No. 18281 (the lot) of the
Cebu Cadastral 12 Extension, Plan Rs-07-000787.
The decision in LRC No. N-983 became final and executory on January
29, 1977. Judge Marigomen thereafter issued an order of November 10,
1982 directing the Land Registration Commission to issue the
corresponding decree of registration and the certificate of title in favor of
the spouses Lirio.
On February 12, 1997, Rolando Ting (petitioner) filed with the Regional
Trial Court (RTC) of Cebu an application for registration of title to the same
lot. The application was docketed as LRC No. 1437-N.1
The herein respondents, heirs of Diego Lirio, namely: Flora A. Lirio, Amelia
L. Roska, Aurora L. Abejo, Alicia L. Dunque, Adelaida L. David, Efren A.
Lirio and Jocelyn Anabelle L. Alcover, who were afforded the opportunity to
file an opposition to petitioners application by Branch 21 of the Cebu RTC,
filed their Answer2 calling attention to the December 10, 1976 decision in
LRC No. N-983 which had become final and executory on January 29,
1977 and which, they argued, barred the filing of petitioners application on
the ground of res judicata.
After hearing the respective sides of the parties, Branch 21 of the Cebu
RTC, on motion of respondents, dismissed petitioners application on the
ground of res judicata. 31vvphi1.nt
Hence, the present petition for review on certiorari which raises the sole
issue of whether the decision in LRC No. N-983 constitutes res judicata in
LRC No. 1437-N.
Petitioner argues that although the decision in LRC No. N-983 had
become final and executory on January 29, 1977, no decree of registration
has been issued by the Land Registration Authority (LRA);4 it was only on
July 26, 2003 that the "extinct" decision belatedly surfaced as basis of
respondents motion to dismiss LRC No. 1437-N;5 and as no action for
revival of the said decision was filed by respondents after the lapse of the
ten-year prescriptive period, "the cause of action in the dormant judgment
pass[d] into extinction."6
Petitioner thus concludes that an "extinct" judgment cannot be the basis of
res judicata.7
The petition fails.
Section 30 of Presidential Decree No. 1529 or the Property Registration
Decree provides:
SEC. 30. When judgment becomes final; duty to cause issuance of
decree. The judgment rendered in a land registration proceeding
becomes final upon the expiration of thirty days8 to be counted from the
date of receipt of notice of the judgment. An appeal may be taken from the
judgment of the court as in ordinary civil cases.
After judgment has become final and executory, it shall devolve upon the
court to forthwith issue an order in accordance with Section 39 of this
Decree to the Commissioner for the issuance of the decree of registration
and the corresponding certificate of title in favor of the person adjudged
entitled to registration. (Emphasis supplied)
In a registration proceeding instituted for the registration of a private land,
with or without opposition, the judgment of the court confirming the title of
the applicant or oppositor, as the case may be, and ordering its registration
in his name constitutes, when final, res judicata against the whole world.9
It becomes final when no appeal within the reglementary period is taken
from a judgment of confirmation and registration.10
The land registration proceedings being in rem, the land registration
courts approval in LRC No. N-983 of spouses Diego Lirio and Flora
Atienzas application for registration of the lot settled its ownership, and is
binding on the whole world including petitioner.

the Survey Assistance Section, Land Management Services, Department

of Environment and Natural Resources (DENR), Region 7, Cebu City
having claimed that the survey of the Cebu Cadastral Extension is
erroneous and all resurvey within the Cebu Cadastral extension must first
be approved by the Land Management Services of
the DENR, Region 7, Cebu City before said resurvey may be used in
court; and that the spouses Lirio did not comply with the said requirement
for they instead submitted to the court a mere special work order.11
There is, however, no showing that the LRA credited the alleged claim of
Engineer Belleza and that it reported such claim to the land registration
court for appropriate action or reconsideration of the decision which was its
duty.
Petitioners insist that the duty of the respondent land registration officials
to issue the decree is purely ministerial. It is ministerial in the sense that
they act under the orders of the court and the decree must be in conformity
with the decision of the court and with the data found in the record, and
they have no discretion in the matter. However, if they are in doubt upon
any point in relation to the preparation and issuance of the decree, it is
their duty to refer the matter to the court. They act, in this respect, as
officials of the court and not as administrative officials, and their act is the
act of the court. They are specifically called upon to "extend assistance to
courts in ordinary and cadastral land registration proceedings."12
(Emphasis supplied)
As for petitioners claim that under Section 6, Rule 39 of the Rules of Court
reading:
SEC. 6. Execution by motion or by independent action. A final and
executory judgment or order may be executed on motion within five (5)
years from the date of its entry. After the lapse of such time, and before it
is barred by the statute of limitations, a judgment may be enforced by
action. The revived judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by action before it is
barred by the statute of limitations[,] the December 10, 1976 decision
became "extinct" in light of the failure of respondents and/or of their
predecessors-in-interest to execute the same within the prescriptive
period, the same does not lie.
Sta. Ana v. Menla, et al.13 enunciates the raison detre why Section 6,
Rule 39 does not apply in land registration proceedings, viz:
THAT THE LOWER COURT ERRED IN ORDERING THAT THE
DECISION RENDERED IN THIS LAND REGISTRATION CASE ON
NOVEMBER 28, 1931 OR TWENTY SIX YEARS AGO, HAS NOT YET
BECOME FINAL AND UNENFORCEABLE.
We fail to understand the arguments of the appellant in support of the
above assignment, except in so far as it supports his theory that after a
decision in a land registration case has become final, it may not be
enforced after the lapse of a period of 10 years, except by another
proceeding to enforce the judgment or decision. Authority for this theory is
the provision in the Rules of Court to the effect that judgment may be
enforced within 5 years by motion, and after five years but within 10 years,
by an action (Sec. 6, Rule 39.) This provision of the Rules refers to civil
actions and is not applicable to special proceedings, such as a land
registration case. This is so because a party in a civil action must
immediately enforce a judgment that is secured as against the adverse
party, and his failure to act to enforce the same within a reasonable time
as provided in the Rules makes the decision unenforceable against the
losing party. In special proceedings the purpose is to establish a status,
condition or fact; in land registration proceedings, the ownership by a
person of a parcel of land is sought to be established. After the ownership
has been proved and confirmed by judicial declaration, no further
proceeding to enforce said ownership is necessary, except when the
adverse or losing party had been in possession of the land and the winning
party desires to oust him therefrom.
Furthermore, there is no provision in the Land Registration Act similar to
Sec. 6, Rule 39, regarding the execution of a judgment in a civil action,
except the proceedings to place the winner in possession by virtue of a
writ of possession. The decision in a land registration case, unless the
adverse or losing party is in possession, becomes final without any further
action, upon the expiration of the period for perfecting an appeal.
x x x x (Emphasis and underscoring supplied)

Explaining his position that the December 10, 1976 Decision in LRC No.
N-983 had become "extinct," petitioner advances that the LRA has not
issued the decree of registration, a certain Engr. Rafaela Belleza, Chief of

WHEREFORE, the petition is, in light of the foregoing discussions,

DENIED.

FRIANELA vs. BANAYAD

G.R. No. 169700 July 30, 2009
NACHURA, J.:
Following the death of her uncle, the testator Moises F. Banayad,
petitioner, who was named as devisee in the will, filed before the Regional
Trial Court (RTC) of Pasay City, on June 3, 1991, Sp. Proc. No. 3664-P[3]
for the allowance of the November 18, 1985 holographic will of the
decedent. Petitioner alleged that Moises died without issue and left to her
the following properties, namely: (1) a parcel of land situated in Pasay City
and described in Transfer Certificate of Title No. 9741; (2) images of
Oracion del Huerto and Pieta including the crown; and (3) all personal
belongings.[4]
Respondent, a cousin of the petitioner, filed his opposition and counterpetitioned for the allowance of two other holographic wills of the decedent,
one dated September 27, 1989 and another dated September 28, 1989.[5]
After trial on the merits, the RTC, on September 29, 1995, rendered its
Decision[6] declaring the September 27, 1989 holographic will as having
revoked the November 18, 1985 will, allowing the former, and appointing
respondent as administrator of Moisess estate.[7]
On appeal, the CA, in the assailed June 17, 2005 Decision,[8] modified the
decision of the trial court and ruled that the September 27, 1989
holographic will had only revoked the November 18, 1985 will insofar as
the testamentary disposition of Moisess real property was concerned.[9]
With the denial of her motion for reconsideration in the further assailed
August 17, 2005 Resolution,[10] petitioner elevated the case before us via
the instant petition.[11]
The Court notes that the trial court focused all of its attention on the merits
of the case without first determining whether it could have validly exercised
jurisdiction to hear and decide Sp. Proc. No. 3664-P. On appeal, the
appellate court also overlooked the issue on the jurisdictional competence
of the trial court over the said case. This Court, after a meticulous review
of the records, finds that the RTC of Pasay City had no jurisdiction over the
subject matter in Sp. Proc. No. 3664-P.
The jurisdiction of the court to hear and decide a case is conferred by the
law in force at the time of the institution of the action unless such statute
provides for a retroactive application thereof.[12] Jurisdiction is moreover
determined by the allegations or averments in the complaint or petition.[13]
In this case, at the time the petition for the allowance of Moisess
holographic will was instituted, the then Sections 19 and 33[14] of Batas
Pambansa (B.P.) Blg. 129[15] were in force, thus
SECTION 19. Jurisdiction in civil cases. Regional Trial Courts shall
exercise exclusive original jurisdiction:
xxxx
(4) In all matters of probate, both testate and intestate, where the gross
value of the estate exceeds twenty thousand pesos (P20,000.00);
xxxx
SECTION 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts in civil cases. Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
(1) Exclusive original jurisdiction over civil actions and probate
proceedings, testate and intestate, including the grant of provisional
remedies in proper cases, where the demand does not exceed twenty
thousand pesos exclusive of interest and costs but inclusive of damages of
whatever kind, the amount of which must be specifically alleged: Provided,
That where there are several claims or causes of action between the same
or different parties, embodied in the same complaint, the amount of the
demand shall be the totality of the claims in all the causes of action
irrespective of whether the causes of action arose out of the same or
different transactions; and

xxxx

The applicable law, therefore, confers jurisdiction on the RTC or the MTCs
over probate proceedings depending on the gross value of the estate,[16]
which value must be alleged in the complaint or petition to be filed.
Significantly, in this case, the original petition docketed before the trial
court contains only the following averments:
xxxx
1. That Petitioner is of legal age, married, Filipino and residing at 2237 P.
Burgos St., Pasay City who is named devisee in the Last Will and
Testament of MOISES BANAYAD, deceased who died in Pasay City
General Hospital on March 27, 1991 xerox copy of his death certificate is
herewith attached as Annex A to form integral part hereof;
2. That the said Last Will and Testament is herewith (sic) attached as
Annex B and made an integral part of this Petition, the original thereof will
be presented to this Honorable Court at the time of probate;
3. That the decedent is an inhabitant of the Philippines and residing at
2237 P. Burgos St., Pasay City at the time of his death;
4. That the properties left by the decedent consist of real and personal
properties particularly described herein below, which decedent all
bequeathed to petitioner;
A. A parcel of land described under TCT No. 9741 xerox copy of which is
herewith (sic) attached as Annex C.
B. Imahen ng Oracion del Huerto at Pieta, kasama and korona.
C. All personal belongings.
5. That the testator at the time of the execution of the said Will was of
sound and disposing mind.
WHEREFORE, it is most respectfully prayed of the Honorable Court that:
a. Upon proper notice and hearing, the above mentioned Will be admitted
to probate;
b. That letters testamentary or administration be issued to herein petitioner
without bond;
Petitioner prays for such other reliefs just and equitable in (sic) the
premises.
x x x x[17]

Nowhere in the petition is there a statement of the gross value of Moisess

estate. Thus, from a reading of the original petition filed, it cannot be
determined which court has original and exclusive jurisdiction over the
proceedings.[18] The RTC therefore committed gross error when it had
perfunctorily assumed jurisdiction despite the fact that the initiatory
pleading filed before it did not call for the exercise of its jurisdiction. The
RTC should have, at the outset, dismissed the case for lack of jurisdiction.
Be it noted that the dismissal on the said ground may be ordered motu
proprio by the courts.[19] Further, the CA, on appeal, should have
dismissed the case on the same ground. Settled is the doctrine that the
issue of jurisdiction may be raised by any of the parties or may be
reckoned by the court, at any stage of the proceedings, even on appeal,
and is not lost by waiver or by estoppel.[20]
Despite the pendency of this case for around 18 years, the exception laid
down in Tijam v. Sibonghanoy[21] and clarified recently in Figueroa v.
People[22] cannot be applied. First, because, as a general rule, the
principle of estoppel by laches cannot lie against the government.[23] No
injustice to the parties or to any third person will be wrought by the ruling
that the trial court has no jurisdiction over the instituted probate
proceedings.
Second and most important, because in Tijam, the delayed invocation of
lack of jurisdiction has been made during the execution stage of a final and
executory ruling of a court. In Figueroa, the Court has emphasized that
estoppel by laches only supervenes in exceptional cases similar to the

factual milieu in Tijam. It is well to note the following factual setting of

Tijam:
On July 19, 1948 barely one month after the effectivity of Republic Act No.
296 known as the Judiciary Act of 1948 the spouses Serafin Tijam and
Felicitas Tagalog commenced Civil Case No. R-660 in the Court of First
Instance of Cebu against the spouses Magdaleno Sibonghanoy and Lucia
Baguio to recover from them the sum of P1,908.00, with legal interest
thereon from the date of the filing of the complaint until the whole
obligation is paid, plus costs. As prayed for in the complaint, a writ of
attachment was issued by the court against defendants' properties, but the
same was soon dissolved upon the filing of a counter-bond by defendants
and the Manila Surety and Fidelity Co., Inc. hereinafter referred to as the
Surety, on the 31st of the same month.
After being duly served with summons the defendants filed their answer in
which, after making some admissions and denials of the material
averments of the complaint, they interposed a counterclaim. This
counterclaim was answered by the plaintiffs.
After trial upon the issues thus joined, the Court rendered judgment in
favor of the plaintiffs and, after the same had become final and executory,
upon motion of the latter, the Court issued a writ of execution against the
defendants. The writ having been returned unsatisfied, the plaintiffs moved
for the issuance of a writ of execution against the Surety's bond (Rec. on
Appeal pp. 46-49), against which the Surety filed a written opposition (Id.
pp. 49) upon two grounds, namely, (1) Failure to prosecute and (2)
Absence of a demand upon the Surety for the payment of the amount due
under the judgment. Upon these grounds the Surety prayed the Court not
only to deny the motion for execution against its counter-bond but also the
following affirmative relief: "to relieve the herein bonding company of its
liability, if any, under the bond in question" (Id. p. 54) The Court denied this
motion on the ground solely that no previous demand had been made on
the Surety for the satisfaction of the judgment. Thereafter the necessary
demand was made, and upon failure of the Surety to satisfy the judgment,
the plaintiffs filed a second motion for execution against the counter-bond.
On the date set for the hearing thereon, the Court, upon motion of the
Surety's counsel, granted the latter a period of five days within which to
answer the motion. Upon its failure to file such answer, the Court granted
the motion for execution and the corresponding writ was issued.
Subsequently, the Surety moved to quash the writ on the ground that the
same was issued without the required summary hearing provided for in
Section 17 of Rule 59 of the Rules of Court. As the Court denied the
motion, the Surety appealed to the Court of Appeals from such order of
denial and from the one denying its motion for reconsideration (Id. p. 97).
Its record on appeal was then printed as required by the Rules, and in due
time it filed its brief raising therein no other question but the ones covered
by the following assignment of errors:
I. That the Honorable Court a quo erred in issuing its order dated
November 2, 1957, by holding the incident as submitted for resolution,
without a summary hearing and compliance with the other mandatory
requirements provided for in Section 17, Rule 59 of the Rules of Court.
II. That the Honorable Court a quo erred in ordering the issuance of
execution against the herein bonding company-appellant.
III. That the Honorable Court a quo erred in denying the motion to quash
the writ of execution filed by the herein bonding company- appellant as
well as its subsequent motion for reconsideration, and/or in not quashing
or setting aside the writ of execution.
Not one of the assignment of errors it is obvious raises the question of lack
of jurisdiction, neither directly nor indirectly.
Although the appellees failed to file their brief, the Court of Appeals, on
December 11, 1962, decided the case affirming the orders appealed from.
On January 8, 1963 five days after the Surety received notice of the
decision, it filed a motion asking for extension of time within which to file a
motion for reconsideration. The Court of Appeals granted the motion in its
resolution of January 10 of the same year. Two days later the Surety filed a
pleading entitled MOTION TO DISMISS, alleging substantially that
appellees' action was filed in the Court of First Instance of Cebu on July
19, 1948 for the recovery of the sum of P1,908.00 only; that a month
before that date Republic Act No. 296, otherwise known as the Judiciary
Act of 1948, had already become effective, Section 88 of which placed
within the original exclusive jurisdiction of inferior courts all civil actions
where the value of the subject-matter or the amount of the demand does

not exceed P2,000.00, exclusive of interest and costs; that the Court of
First Instance therefore had no jurisdiction to try and decide the case.
Upon these premises the Surety's motion prayed the Court of Appeals to
set aside its decision and to dismiss the case. By resolution of January 16,
1963 the Court of Appeals required the appellees to answer the motion to
dismiss, but they failed to do so. Whereupon, on May 20 of the same year,
the Court resolved to set aside its decision and to certify the case to Us.
x x x x[24]

Clearly, then, in Tijam, the issue of lack of jurisdiction has only been raised
during the execution stage, specifically when the matter of the trial courts
denial of the suretys motion to quash the writ of execution has been
brought to the appellate court for review. Here, the trial courts assumption
of unauthorized jurisdiction over the probate proceedings has been
discovered by the Court during the appeal stage of the main case, not
during the execution stage of a final and executory decision. Thus, the
exceptional rule laid down in Tijam cannot apply.
Since the RTC has no jurisdiction over the action, all the proceedings
therein, including the decision rendered, are null and void.[25] With the
above disquisition, the Court finds it unnecessary to discuss and resolve
the other issues raised in the petition.
IN THE LIGHT OF THE FOREGOING, Sp. Proc. No. 3664-P before the
Regional Trial Court of Pasay City is DISMISSED for lack of jurisdiction.

GABATAN vs. COURT OF APPEALS

G.R. No. 150206
March 13, 2009
LEONARDO-DE CASTRO,
J.:
Assailed and sought to be set aside in the instant petition for review on
certiorari are the Decision[1] dated April 28, 2000, and Resolution[2] dated
September 12, 2001 of the Court of Appeals (CA), in CA G.R. CV No.
52273. The challenged Decision affirmed the decision[3] of the Regional
Trial Court (RTC) of Cagayan de Oro City, Branch 19, dated October 20,
1995 in Civil Case No. 89-092, an action for Recovery of Property and
Ownership and Possession, thereat commenced by respondent Lourdes
Evero Pacana against petitioners, heirs of Teofilo Gabatan, Jesus Jabinis
and Catalino Acantilado.
Subject of the present controversy is a 1.1062 hectare parcel of land,
identified as Lot 3095 C-5 and situated at Calinugan, Balulang, Cagayan
de Oro City. This lot was declared for taxation in the name of Juan
Gabatan. In the complaint before the RTC, respondent alleged that she is
the sole owner of Lot 3095 C-5, having inherited the same from her
deceased mother, Hermogena Gabatan Evero (Hermogena). Respondent
further claimed that her mother, Hermogena, is the only child of Juan
Gabatan and his wife, Laureana Clarito. Respondent alleged that upon the
death of Juan Gabatan, Lot 3095 C-5 was entrusted to his brother, Teofilo
Gabatan (Teofilo), and Teofilos wife, Rita Gabatan, for administration. It
was also claimed that prior to her death Hermogena demanded for the
return of the land but to no avail. After Hermogenas death, respondent also
did the same but petitioners refused to heed the numerous demands to
surrender the subject property. According to respondent, when Teofilo and
his wife died, petitioners Jesus Jabinis and Catalino Acantilado took
possession of the disputed land despite respondents demands for them to
vacate the same.
In their answer, petitioners denied that respondents mother Hermogena
was the daughter of Juan Gabatan with Laureana Clarito and that
Hermogena or respondent is the rightful heir of Juan Gabatan. Petitioners
maintained that Juan Gabatan died single in 1934 and without any issue
and that Juan was survived by one brother and two sisters, namely: Teofilo
(petitioners predecessor-in-interest), Macaria and Justa. These siblings
and/or their heirs, inherited the subject land from Juan Gabatan and have
been in actual, physical, open, public, adverse, continuous and
uninterrupted possession thereof in the concept of owners for more than
fifty (50) years and enjoyed the fruits of the improvements thereon, to the
exclusion of the whole world including respondent. Petitioners clarified that
Jesus Jabinis and Catalino Acantilado have no interest in the subject land;
the former is merely the husband of Teofilos daughter while the latter is
just a caretaker. Petitioners added that a similar case was previously filed
by respondent against Teofilos wife, Rita Vda. de Gabatan, on February
21, 1978, docketed as Civil Case No. 5840 but the case was dismissed on
May 3, 1983 for lack of interest. Finally, petitioners contended that the
complaint lacks or states no cause of action or, if there was any, the same
has long prescribed and/or has been barred by laches.
On June 20, 1989, the complaint was amended wherein the heirs of Teofilo
were individually named, to wit: Lolita Gabatan, Pompeyo Gabatan,
Peregrino Gabatan, Reynaldo Gabatan, Nila Gabatan and Jesus Jabinis,
Riorita Gabatan Tumal and Freira Gabatan.
On July 30, 1990, petitioners filed an amended answer, additionally
alleging that the disputed land was already covered by OCT No. P-3316 in
the name of the heirs of Juan Gabatan represented by petitioner Riorita
Gabatan (Teofilos daughter).
On October 20, 1995, the RTC rendered a decision in favor of respondent,
the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants, declaring the plaintiff the owner of Lot No. 3095 C5 situated at Calinugan, Balulang, Cagayan de Oro City; and ordering the
defendants represented by Riorita Gabatan Tumala to RECONVEY
Original Certificate of Title No. P-3316 in favor of plaintiff Lourdes Evero
Pacana, free of any encumbrance; ordering the defendants to pay
P10,000.00 by way of moral damages; P10,000.00 as Attorneys fees; and
P2,000.00 for litigation expenses.

On April 28, 2000, the CA rendered the herein challenged Decision

affirming that of the RTC. Dispositively, the Decision reads:
WHEREFORE, premises considered, the questioned decision of the lower
court dated October 20, 1995 is hereby AFFIRMED. With costs against
appellants.
SO ORDERED.
Discounting petitioners argument that respondent is not related to Juan
Gabatan, the CA declared that respondents claim of filiation with Juan
Gabatan was sufficiently established during trial. Thus, the CA echoed a
long line of jurisprudence that findings of fact of the trial court are entitled
to great weight and are not disturbed except for cogent reasons, such as
when the findings of fact are not supported by evidence.
The CA likewise gave weight to the Deed of Absolute Sale[5] executed by
Macaria Gabatan de Abrogar, Teofilo, Hermogena and heirs of Justa
Gabatan, wherein Hermogena was identified as an heir of Juan Gabatan:
x x x HERMOGENA GABATAN, of legal age, married, Filipino citizen and
presently residing at Kolambugan, Lanao del Norte, Philippines, as Heir of
the deceased, JUAN GABATAN; x x x.
To the CA, the Deed of Absolute Sale on July 30, 1966 containing such
declaration which was signed by Teofilo and the latters nearest relatives by
consanguinity, is a tangible proof that they acknowledged Hermogenas
status as the daughter of Juan Gabatan. Applying Section 38, Rule 130[6]
of the Rules of Court on the declaration against interest, the CA ruled that
petitioners could not deny that even their very own father, Teofilo formally
recognized Hermogenas right to heirship from Juan Gabatan which
ultimately passed on to respondent.
As to the issue of prescription, the CA ruled that petitioners possession of
the disputed property could not ripen into acquisitive prescription because
their predecessor-in-interest, Teofilo, never held the property in the
concept of an owner.
Aggrieved, petitioners are now with this Court via the present recourse
principally contending that the CA committed the following reversible
errors:
FIRST ERROR: The lower court erred in not declaring that Juan Gabatan
died single and without issue;
SECOND ERROR: The lower court erred in declaring the plaintiff-appellee
(respondent) as the sole and surviving heir of Juan Gabatan, the only child
of a certain Hermogena Clareto GABATAN;
THIRD ERROR: The lower court erred in declaring that a certain
Hermogena Clareto GABATAN is the child and sole heir of Juan Gabatan;
FOURTH ERROR: The lower court erred in failing to appreciate by
preponderance of evidence in favor of the defendants-appellants
(petitioners) claim that they and the heirs of Justa and Macaria both
surnamed Gabatan are the sole and surviving heirs of Juan Gabatan and,
therefore, entitled to inherit the land subject matter hereof;
FIFTH ERROR: The lower court erred in not declaring that the cause of
action of plaintiff-appellee (respondent) if any, has been barred by laches
and/or prescription.[7]
Before proceeding to the merits of the case, we must pass upon certain
preliminary matters.
In general, only questions of law may be raised in a petition for review on
certiorari under Rule 45 of the Rules of Court. Questions of fact cannot be
the subject of this particular mode of appeal, for this Court is not a trier of
facts.[8] It is not our function to examine and evaluate the probative value
of the evidence presented before the concerned tribunal upon which its
impugned decision or resolution is based.[9]

SO ORDERED.[4]
Aggrieved, petitioners appealed to the CA whereat their recourse was
docketed as CA-G.R. CV No. 52273.

However, there are established exceptions to the rule on conclusiveness of

the findings of fact by the lower courts, such as (1) when the findings are
grounded entirely on speculation, surmises or conjectures; (2) when the

inference made is manifestly mistaken; (3) when there is grave abuse of

discretion; (4) when the judgment is based on a misapprehension of facts;
(5) when the findings of facts are conflicting; (6) when in making its
findings the Court of Appeals went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the
appellee; (7) when the findings are contrary to the trial court; (8) when the
findings are conclusions without citation of specific evidence on which they
are based; (9) when the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondent; (10)
when the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; and (11) when the
Court of Appeals manifestly overlooked certain relevant facts not disputed
by the parties, which, if properly considered, would justify a different
conclusion.[10]
Moreover, our rules recognize the broad discretionary power of an
appellate court to waive the lack of proper assignment of errors and to
consider errors not assigned. Thus, the Court is clothed with ample
authority to review rulings even if they are not assigned as errors in the
appeal in these instances: (a) grounds not assigned as errors but affecting
jurisdiction over the subject matter; (b) matters not assigned as errors on
appeal but are evidently plain or clerical errors within contemplation of law;
(c) matters not assigned as errors on appeal but consideration of which is
necessary in arriving at a just decision and complete resolution of the case
or to serve the interests of justice or to avoid dispensing piecemeal justice;
(d) matters not specifically assigned as errors on appeal but raised in the
trial court and are matters of record having some bearing on the issue
submitted which the parties failed to raise or which the lower court ignored;
(e) matters not assigned as errors on appeal but closely related to an error
assigned; and (f) matters not assigned as errors on appeal but upon which
the determination of a question properly assigned, is dependent. [11]
In the light of the foregoing established doctrines, we now proceed to
resolve the merits of the case.
The respondents main cause of action in the court a quo is the recovery of
ownership and possession of property. It is undisputed that the subject
property, Lot 3095 C-5, was owned by the deceased Juan Gabatan, during
his lifetime.[12] Before us are two contending parties, both insisting to be
the legal heir(s) of the decedent.
Jurisprudence dictates that the determination of who are the legal heirs of
the deceased must be made in the proper special proceedings in court,
and not in an ordinary suit for recovery of ownership and possession of
property. This must take precedence over the action for recovery of
possession and ownership. The Court has consistently ruled that the trial
court cannot make a declaration of heirship in the civil action for the
reason that such a declaration can only be made in a special proceeding.
Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action
is defined as one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong while a special
proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact. It is then decisively clear that the declaration of
heirship can be made only in a special proceeding inasmuch as the
petitioners here are seeking the establishment of a status or right.[13]
In the early case of Litam, et al. v. Rivera,[14] this Court ruled that the
declaration of heirship must be made in a special proceeding, and not in
an independent civil action. This doctrine was reiterated in Solivio v. Court
of Appeals[15] where the Court held:
xxx where despite the pendency of the special proceedings for the
settlement of the intestate estate of the deceased Rafael Litam, the
plaintiffs-appellants filed a civil action in which they claimed that they were
the children by a previous marriage of the deceased to a Chinese woman,
hence, entitled to inherit his one-half share of the conjugal properties
acquired during his marriage to Marcosa Rivera, the trial court in the civil
case declared that the plaintiffs-appellants were not children of the
deceased, that the properties in question were paraphernal properties of
his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to
this Court, we ruled that such declarations (that Marcosa Rivera was the
only heir of the decedent) is improper, in Civil Case No. 2071, it being
within the exclusive competence of the court in Special Proceedings No.
1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue
until the presentation of the project of partition.

In the more recent case of Milagros Joaquino v. Lourdes Reyes,[16] the

Court reiterated its ruling that matters relating to the rights of filiation and
heirship must be ventilated in the proper probate court in a special
proceeding instituted precisely for the purpose of determining such rights.
Citing the case of Agapay v. Palang,[17] this Court held that the status of
an illegitimate child who claimed to be an heir to a decedents estate could
not be adjudicated in an ordinary civil action which, as in this case, was for
the recovery of property.
However, we are not unmindful of our decision in Portugal v. PortugalBeltran,[18] where the Court relaxed its rule and allowed the trial court in a
proceeding for annulment of title to determine the status of the party
therein as heirs, to wit:
It appearing, however, that in the present case the only property of the
intestate estate of Portugal is the Caloocan parcel of land, to still subject it,
under the circumstances of the case, to a special proceeding which could
be long, hence, not expeditious, just to establish the status of petitioners
as heirs is not only impractical; it is burdensome to the estate with the
costs and expenses of an administration proceeding. And it is superfluous
in light of the fact that the parties to the civil case subject of the present
case, could and had already in fact presented evidence before the trial
court which assumed jurisdiction over the case upon the issues it defined
during pre-trial.
In fine, under the circumstances of the present case, there being no
compelling reason to still subject Portugals estate to administration
proceedings since a determination of petitioners status as heirs could be
achieved in the civil case filed by petitioners (Vide Pereira v. Court of
Appeals, 174 SCRA 154 [1989]; Intestate Estate of Mercado v. Magtibay,
96 Phil. 383 [1955]), the trial court should proceed to evaluate the
evidence presented by the parties during the trial and render a decision
thereon upon the issues it defined during pre-trial, x x x. (emphasis
supplied)
Similarly, in the present case, there appears to be only one parcel of land
being claimed by the contending parties as their inheritance from Juan
Gabatan. It would be more practical to dispense with a separate special
proceeding for the determination of the status of respondent as the sole
heir of Juan Gabatan, specially in light of the fact that the parties to Civil
Case No. 89-092, had voluntarily submitted the issue to the RTC and
already presented their evidence regarding the issue of heirship in these
proceeding. Also the RTC assumed jurisdiction over the same and
consequently rendered judgment thereon.
We GRANT the petition.
After a meticulous review of the records of this case, we find insufficient
and questionable the basis of the RTC in conferring upon respondent the
status of sole heir of Juan Gabatan.
Respondent, in asserting to be entitled to possession and ownership of the
property, pinned her claim entirely on her alleged status as sole heir of
Juan Gabatan. It was incumbent upon her to present preponderant
evidence in support of her complaint.
Under the Civil Code, the filiation of legitimate children is established by
any of the following:
ART. 265. The filiation of legitimate children is proved by the record of birth
appearing in the Civil Register, or by an authentic document or a final
judgment.
ART. 266. In the absence of the titles indicated in the preceding article, the
filiation shall be proved by the continuous possession of status of a
legitimate child.
ART. 267. In the absence of a record of birth, authentic document, final
judgment or possession of status, legitimate filiation may be proved by any
other means allowed by the Rules of Court and special laws.
Here, two conflicting birth certificates[19] of respondent were presented at
the RTC. Respondent, during her direct testimony, presented and identified
a purported certified true copy of her typewritten birth certificate which
indicated that her mothers maiden name was Hermogena Clarito Gabatan.
Petitioners, on the other hand, presented a certified true copy of
respondents handwritten birth certificate which differed from the copy

presented by respondent. Among the differences was respondents

mothers full maiden name which was indicated as Hermogena Calarito in
the handwritten birth certificate.
In resolving this particular issue, the trial court ruled in this wise:
The parties are trying to outdo with (sic) each other by presenting two
conflicting Certificate (sic) of Live Birth of plaintiff herein, Lourdes Evero
Pacana, which are Exhibit A for the plaintiff and Exhibit 1 for the
defendants. Which of this (sic) is genuine, and which is falsified. These
(sic) issue is crucial and requires serious scrutiny. The Court is of the
observation that Exhibit A for the plaintiff which is a certified true copy is in
due form and bears the as is and where is rule. It has the impression of the
original certificate. The forms (sic) is an old one used in the 1950s. Her
mothers maiden name appearing thereof is Hermogina (sic) Clarito
Gabatan. While Exhibit 1, the entries found thereof (sic) is handwritten
which is very unusual and of dubious source. The form used is of latest
vintage. The entry on the space for mothers maiden name is Hermogena
Calarito. There seems to be an apparent attempt to thwart plaintiffs mother
filiation with the omission of the surname Gabatan. Considering these
circumstances alone the Court is inclined to believe that Exhibit A for the
plaintiff is far more genuine and authentic certificate of live birth.[20]
Having carefully examined the questioned birth certificates, we simply
cannot agree with the above-quoted findings of the trial court. To begin
with, Exhibit A, as the trial court noted, was an original typewritten
document, not a mere photocopy or facsimile. It uses a form of 1950s
vintage[21] but this Court is unable to concur in the trial courts finding that
Exhibit 1[22] was of a later vintage than Exhibit A which was one of the trial
courts bases for doubting the authenticity of Exhibit 1. On the contrary, the
printed notation on the upper left hand corner of Exhibit 1 states Municipal
Form No. 102 (Revised, January 1945) which makes it an older form than
Exhibit A. Thus, the trial courts finding regarding which form was of more
recent vintage was manifestly contradicted by the evidence on record. No
actual signature appears on Exhibit A except that of a certain Maximo P.
Noriga, Deputy Local Civil Registrar of the Office of the Local Civil
Registrar, Cagayan de Oro City, who purportedly certified on July 6, 1977
that Exhibit A was a true copy of respondents birth certificate. The names
of the attendant at birth (Petra Sambaan) and the local civil registrar (J.L.
Rivera) in 1950 were typewritten with the notation (Sgd.) also merely
typewritten beside their names. The words A certified true copy: July 6,
1977 above the signature of Maximo P. Noriga on Exhibit A appear to be
inscribed by the same typewriter as the very entries in Exhibit A. It would
seem that Exhibit A and the information stated therein were prepared and
entered only in 1977. Significantly, Maximo P. Noriga was never presented
as a witness to identify Exhibit A. Said document and the signature of
Maximo P. Noriga therein were identified by respondent herself whose selfserving testimony cannot be deemed sufficient authentication of her birth
certificate.
We cannot subscribe to the trial courts view that since the entries in Exhibit
1 were handwritten, Exhibit 1 was the one of dubious credibility. Verily, the
certified true copies of the handwritten birth certificate of respondent
(petitioners Exhibits 1 and 8) were duly authenticated by two competent
witnesses; namely, Rosita Vidal (Ms. Vidal), Assistant Registration Officer
of the Office of the City Civil Registrar, Cagayan de Oro City and Maribeth
E. Cacho (Ms. Cacho), Archivist of the National Statistics Office (NSO),
Sta. Mesa, Manila. Both witnesses testified that: (a) as part of their official
duties they have custody of birth records in their respective offices,[23] and
(b) the certified true copy of respondents handwritten birth certificate is a
faithful reproduction of the original birth certificate registered in their
respective offices.[24] Ms. Vidal, during her testimony, even brought the
original of the handwritten birth certificate before the trial court and
respondents counsel confirmed that the certified true copy (which was
eventually marked as Exhibit 1) was a faithful reproduction of the original.
[25] Ms. Vidal likewise categorically testified that no other copy of
respondents birth certificate exists in their records except the handwritten
birth certificate.[26] Ms. Cacho, in turn, testified that the original of
respondents handwritten birth certificate found in the records of the NSO
Manila (from which Exhibit 8 was photocopied) was the one officially
transmitted to their office by the Local Civil Registry Office of Cagayan de
Oro.[27] Both Ms. Vidal and Ms. Cacho testified and brought their
respective offices copies of respondents birth certificate in compliance with
subpoenas issued by the trial court and there is no showing that they were
motivated by ill will or bias in giving their testimonies. Thus, between
respondents Exhibit A and petitioners Exhibits 1 and 8, the latter
documents deserve to be given greater probative weight.

Even assuming purely for the sake of argument that the birth certificate
presented by respondent (Exhibit A) is a reliable document, the same on
its face is insufficient to prove respondents filiation to her alleged
grandfather, Juan Gabatan. All that Exhibit A, if it had been credible and
authentic, would have proven was that respondents mother was a certain
Hermogena Clarito Gabatan. It does not prove that same Hermogena
Clarito Gabatan is the daughter of Juan Gabatan. Even the CA held that
the conflicting certificates of live birth of respondent submitted by the
parties only proved the filiation of respondent to Hermogena.[28]
It was absolutely crucial to respondents cause of action that she
convincingly proves the filiation of her mother to Juan Gabatan. To
reiterate, to prove the relationship of respondents mother to Juan Gabatan,
our laws dictate that the best evidence of such familial tie was the record
of birth appearing in the Civil Register, or an authentic document or a final
judgment. In the absence of these, respondent should have presented
proof that her mother enjoyed the continuous possession of the status of a
legitimate child. Only in the absence of these two classes of evidence is
the respondent allowed to present other proof admissible under the Rules
of Court of her mothers relationship to Juan Gabatan.
However, respondents mothers (Hermogenas) birth certificate, which
would have been the best evidence of Hermogenas relationship to Juan
Gabatan, was never offered as evidence at the RTC. Neither did
respondent present any authentic document or final judgment categorically
evidencing Hermogenas relationship to Juan Gabatan.
Respondent relied on the testimony of her witnesses, Frisco Lawan,
Felicisima Nagac Pacana and Cecilia Nagac Villareal who testified that
they personally knew Hermogena (respondents mother) and/or Juan
Gabatan, that they knew Juan Gabatan was married to Laureana Clarito
and that Hermogena was the child of Juan and Laureana. However, none
of these witnesses had personal knowledge of the fact of marriage of Juan
to Laureana or the fact of birth of Hermogena to Juan and Laureana. They
were not yet born or were very young when Juan supposedly married
Laureana or when Hermogena was born and they all admitted that none of
them were present at Juan and Laureanas wedding or Hermogenas birth.
These witnesses based their testimony on what they had been told by, or
heard from, others as young children. Their testimonies were, in a word,
hearsay.
Other circumstances prevent us from giving full faith to respondents
witnesses testimonies. The records would show that they cannot be said to
be credible and impartial witnesses. Frisco Lawan testified that he was the
son of Laureana by a man other than Juan Gabatan and was admittedly
not at all related to Juan Gabatan.[29] His testimony regarding the
relationships within the Gabatan family is hardly reliable. As for Felicisima
Nagac Pacana and Cecilia Nagac Villareal who are children of Justa
Gabatan Nagac,[30] this Court is wary of according probative weight to
their testimonies since respondent admitted during her cross-examination
that her (respondents) husband is the son of Felicisima Nagac Pacana.[31]
In other words, although these witnesses are indeed blood relatives of
petitioners, they are also the mother and the aunt of respondents husband.
They cannot be said to be entirely disinterested in the outcome of the
case.
Aside from the testimonies of respondents witnesses, both the RTC and
the CA relied heavily on a photocopy of a Deed of Absolute Sale[32]
(Exhibit H) presented by respondent and which appeared to be signed by
the siblings and the heirs of the siblings of Juan Gabatan. In this document
involving the sale of a lot different from Lot 3095 C-5, Hermogena Gabatan
as heir of the deceased Juan Gabatan was indicated as one of the
vendors. The RTC deemed the statement therein as an affirmation or
recognition by Teofilo Gabatan, petitioners predecessor in interest, that
Hermogena Gabatan was the heir of Juan Gabatan.[33] The CA
considered the same statement as a declaration against interest on the
part of Teofilo Gabatan.[34]
However, the admission of this Deed of Absolute Sale, including its
contents and the signatures therein, as competent evidence was
vigorously and repeatedly objected to by petitioners counsel for being a
mere photocopy and not being properly authenticated.[35] After a close
scrutiny of the said photocopy of the Deed of Absolute Sale, this Court
cannot uphold the admissibility of the same.
Under the best evidence rule, when the subject of inquiry is the contents of
a document, no evidence shall be admissible other than the original
document itself.[36] Although the best evidence rule admits of exceptions

and there are instances where the presentation of secondary evidence

would be allowed, such as when the original is lost or the original is a
public record, the basis for the presentation of secondary evidence must
still be established. Thus, in Department of Education Culture and Sports
v. Del Rosario,[37] we held that a party must first satisfactorily explain the
loss of the best or primary evidence before he can resort to secondary
evidence. A party must first present to the court proof of loss or other
satisfactory explanation for non-production of the original instrument.
In the case at bar, a perusal of the transcript of the testimony of Felicisima
Nagac Pacana (who identified the photocopy of the Deed of Absolute Sale)
plainly shows that she gave no testimony regarding the whereabouts of the
original, whether it was lost or whether it was recorded in any public office.
There is an ostensible attempt to pass off Exhibit H as an admissible
public document. For this, respondent relied on the stamped notation on
the photocopy of the deed that it is a certified true xerox copy and said
notation was signed by a certain Honesto P. Velez, Sr., Assessment
Officer, who seems to be an officer in the local assessors office. Regarding
the authentication of public documents, the Rules of Court[38] provide that
the record of public documents, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the
officer having legal custody of the record, or by his deputy.[39] The
attestation of the certifying officer must state, in substance, that the copy is
a correct copy of the original, or a specific part thereof, as the case may
be.[40]
To begin with, no proof whatsoever was presented by respondent that an
original of Exhibit H was registered or exists in the records of the local
assessors office. Furthermore, the stamped certification of Honesto P.
Velez is insufficient authentication of Exhibit H since Velezs certification did
not state that Exhibit H was a true copy from the original. Even worse,
Velez was not presented as a witness to attest that Exhibit H was a true
copy from the original. Indeed, it is highly doubtful that Velez could have
made such an attestation since the assessors office is not the official
repository of original notarized deeds of sale and could not have been the
legal custodian contemplated in the rules.
It is the notary public who is mandated by law to keep an original of the
Deed of Absolute Sale in his notarial register and to forward the same to
the proper court. It is the notary public or the proper court that has custody
of his notarial register that could have produced the original or a certified
true copy thereof. Instead, the Deed of Absolute Sale was identified by
Felicisima Nagac Pacana who, despite appearing to be a signatory
thereto, is not a disinterested witness and as can be gleaned from her
testimony, she had no personal knowledge of the preparation of the
alleged certified true copy of the Deed of Absolute Sale. She did not even
know who secured a copy of Exhibit H from the assessors office.[41] To be
sure, the roundabout and defective manner of authentication of Exhibit H
renders it inadmissible for the purpose it was offered, i.e. as proof that
Teofilo Gabatan acknowledged or admitted the status of Hermogena
Gabatan as heir of Juan Gabatan.
Even if we are to overlook the lack of proper authentication of Exhibit H
and consider the same admissible, it still nonetheless would have only
provided proof that a certain Hermogena Gabatan was the heir of Juan
Gabatan. Exhibit H does not show the filiation of respondent to either
Hermogena Gabatan or Juan Gabatan. As discussed above, the only
document that respondent produced to demonstrate her filiation to
Hermogena Gabatan (respondents Exhibit A) was successfully put in
doubt by contrary evidence presented by petitioners.
As for the issue of laches, we are inclined to likewise rule against
respondent. According to respondents own testimony,[42] Juan Gabatan
died sometime in 1933 and thus, the cause of action of the heirs of Juan
Gabatan to recover the decedents property from third parties or to quiet
title to their inheritance accrued in 1933. Yet, respondent and/or her
mother Hermogena, if they were truly the legal heirs of Juan Gabatan, did
not assert their rights as such. It is only in 1978 that respondent filed her
first complaint to recover the subject property, docketed as Civil Case No.
5840, against Rita Gabatan, the widow of Teofilo Gabatan.[43] However,
that case was dismissed without prejudice for failure to prosecute.[44]
Again, respondent waited until 1989 to refile her cause of action, i.e. the
present case.[45] She claimed that she waited until the death of Rita
Gabatan to refile her case out of respect because Rita was then already
old.[46]

We cannot accept respondents flimsy reason. It is precisely because Rita

Gabatan and her contemporaries (who might have personal knowledge of
the matters litigated in this case) were advancing in age and might soon
expire that respondent should have exerted every effort to preserve
valuable evidence and speedily litigate her claim. As we held in Republic of
the Philippines v. Agunoy: Vigilantibus, sed non dormientibus, jura
subveniunt, the law aids the vigilant, not those who sleep on their
rights[O]ne may not sleep on a right while expecting to preserve it in its
pristine purity.[47]
All in all, this Court finds that respondent dismally failed to substantiate,
with convincing, credible and independently verifiable proof, her assertion
that she is the sole heir of Juan Gabatan and thus, entitled to the property
under litigation. Aggravating the weakness of her evidence were the
circumstances that (a) she did not come to court with clean hands for she
presented a tampered/altered, if not outright spurious, copy of her
certificate of live birth and (b) she unreasonably delayed the prosecution of
her own cause of action. If the Court cannot now affirm her claim,
respondent has her own self to blame.
WHEREFORE, the petition is GRANTED.

HEIRS OF MAGDALENO YPON vs. RICAFORTE

G.R. No. 198680
July 8, 2013
PERLAS-BERNABE, J.:

made in the proper special proceeding for such purpose, and not in an
ordinary suit for recovery of ownership and/or possession, as in this case:

On July 29, 2010, petitioners, together with some of their cousins,4 filed a
complaint for Cancellation of Title and Reconveyance with Damages
(subject complaint) against respondent Gaudioso Ponteras Ricaforte a.k.a.
"Gaudioso E. Ypon" (Gaudioso), docketed as Civil Case No. T-2246.5 In
their complaint, they alleged that Magdaleno Ypon (Magdaleno) died
intestate and childless on June 28, 1968, leaving behind Lot Nos. 2-AA, 2C, 2-F, and 2-J which were then covered by Transfer Certificates of Title
(TCT) Nos. T-44 and T-77-A.6 Claiming to be the sole heir of Magdaleno,
Gaudioso executed an Affidavit of Self-Adjudication and caused the
cancellation of the aforementioned certificates of title, leading to their
subsequent transfer in his name under TCT Nos. T-2637 and T-2638,7 to
the prejudice of petitioners who are Magdalenos collateral relatives and
successors-in-interest.8

Jurisprudence dictates that the determination of who are the legal heirs of
the deceased must be made in the proper special proceedings in court,
and not in an ordinary suit for recovery of ownership and possession of
property.1wphi1 This must take precedence over the action for recovery
of possession and ownership. The Court has consistently ruled that the
trial court cannot make a declaration of heirship in the civil action for the
reason that such a declaration can only be made in a special proceeding.
Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action
is defined as one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong while a special
proceeding is a remedy by which a party seeks to establish a status, a
right, or a particular fact. It is then decisively clear that the declaration of
heirship can be made only in a special proceeding inasmuch as the
petitioners here are seeking the establishment of a status or right.

In his Answer, Gaudioso alleged that he is the lawful son of Magdaleno as

evidenced by: (a) his certificate of Live Birth; (b) two (2) letters from
Polytechnic School; and (c) a certified true copy of his passport.9 Further,
by way of affirmative defense, he claimed that: (a) petitioners have no
cause of action against him; (b) the complaint fails to state a cause of
action; and (c) the case is not prosecuted by the real parties-in-interest, as
there is no showing that the petitioners have been judicially declared as
Magdalenos lawful heirs.10
The RTC Ruling
On July 27, 2011, the RTC issued the assailed July 27, 2011 Order,11
finding that the subject complaint failed to state a cause of action against
Gaudioso. It observed that while the plaintiffs therein had established their
relationship with Magdaleno in a previous special proceeding for the
issuance of letters of administration,12 this did not mean that they could
already be considered as the decedents compulsory heirs. Quite the
contrary, Gaudioso satisfactorily established the fact that he is
Magdalenos son and hence, his compulsory heir through the
documentary evidence he submitted which consisted of: (a) a marriage
contract between Magdaleno and Epegenia Evangelista; (b) a Certificate
of Live Birth; (c) a Letter dated February 19, 1960; and (d) a passport.13
The plaintiffs therein filed a motion for reconsideration which was,
however, denied on August 31, 2011 due to the counsels failure to state
the date on which his Mandatory Continuing Legal Education Certificate of
Compliance was issued.14
Aggrieved, petitioners, who were among the plaintiffs in Civil Case No. T2246,15 sought direct recourse to the Court through the instant petition.
The Issue Before the Court
The core of the present controversy revolves around the issue of whether
or not the RTCs dismissal of the case on the ground that the subject
complaint failed to state a cause of action was proper.
The Courts Ruling
The petition has no merit.
Cause of action is defined as the act or omission by which a party violates
a right of another.16 It is well-settled that the existence of a cause of action
is determined by the allegations in the complaint.17 In this relation, a
complaint is said to assert a sufficient cause of action if, admitting what
appears solely on its face to be correct, the plaintiff would be entitled to the
relief prayed for.18Accordingly, if the allegations furnish sufficient basis by
which the complaint can be maintained, the same should not be
dismissed, regardless of the defenses that may be averred by the
defendants.19
As stated in the subject complaint, petitioners, who were among the
plaintiffs therein, alleged that they are the lawful heirs of Magdaleno and
based on the same, prayed that the Affidavit of Self-Adjudication executed
by Gaudioso be declared null and void and that the transfer certificates of
title issued in the latters favor be cancelled. While the foregoing
allegations, if admitted to be true, would consequently warrant the reliefs
sought for in the said complaint, the rule that the determination of a
decedents lawful heirs should be made in the corresponding special
proceeding20 precludes the RTC, in an ordinary action for cancellation of
title and reconveyance, from granting the same. In the case of Heirs of
Teofilo Gabatan v. CA,21 the Court, citing several other precedents, held
that the determination of who are the decedents lawful heirs must be

In the early case of Litam, et al. v. Rivera, this Court ruled that the
declaration of heirship must be made in a special proceeding, and not in
an independent civil action. This doctrine was reiterated in Solivio v. Court
of Appeals x x x:
In the more recent case of Milagros Joaquino v. Lourdes Reyes, the Court
reiterated its ruling that matters relating to the rights of filiation and heirship
must be ventilated in the proper probate court in a special proceeding
instituted precisely for the purpose of determining such rights. Citing the
case of Agapay v. Palang, this Court held that the status of an illegitimate
child who claimed to be an heir to a decedent's estate could not be
adjudicated in an ordinary civil action which, as in this case, was for the
recovery of property.22 (Emphasis and underscoring supplied; citations
omitted)
By way of exception, the need to institute a separate special proceeding
for the determination of heirship may be dispensed with for the sake of
practicality, as when the parties in the civil case had voluntarily submitted
the issue to the trial court and already presented their evidence regarding
the issue of heirship, and the RTC had consequently rendered judgment
thereon,23 or when a special proceeding had been instituted but had been
finally closed and terminated, and hence, cannot be re-opened.24
In this case, none of the foregoing exceptions, or those of similar nature,
appear to exist. Hence, there lies the need to institute the proper special
proceeding in order to determine the heirship of the parties involved,
ultimately resulting to the dismissal of Civil Case No. T-2246.
Verily, while a court usually focuses on the complaint in determining
whether the same fails to state a cause of action, a court cannot disregard
decisions material to the proper appreciation of the questions before it.25
Thus, concordant with applicable jurisprudence, since a determination of
heirship cannot be made in an ordinary action for recovery of ownership
and/or possession, the dismissal of Civil Case No. T-2246 was altogether
proper. In this light, it must be pointed out that the RTC erred in ruling on
Gaudiosos heirship which should, as herein discussed, be threshed out
and determined in the proper special proceeding. As such, the foregoing
pronouncement should therefore be devoid of any legal effect.
WHEREFORE, the petition is DENIED.

G.R. No. 176831

UY KIAO ENG vs. LEE,

January 15, 2010

NACHURA, J.:

Alleging that his father passed away on June 22, 1992 in Manila and left a
holographic will, which is now in the custody of petitioner Uy Kiao Eng, his
mother, respondent Nixon Lee filed, on May 28, 2001, a petition for
mandamus with damages, docketed as Civil Case No. 01100939, before
the Regional Trial Court (RTC) of Manila, to compel petitioner to produce
the will so that probate proceedings for the allowance thereof could be
instituted. Allegedly, respondent had already requested his mother to settle
and liquidate the patriarchs estate and to deliver to the legal heirs their
respective inheritance, but petitioner refused to do so without any
justifiable reason.[3]
In her answer with counterclaim, petitioner traversed the allegations in the
complaint and posited that the same be dismissed for failure to state a
cause of action, for lack of cause of action, and for non-compliance with a
condition precedent for the filing thereof. Petitioner denied that she was in
custody of the original holographic will and that she knew of its
whereabouts. She, moreover, asserted that photocopies of the will were
given to respondent and to his siblings. As a matter of fact, respondent
was able to introduce, as an exhibit, a copy of the will in Civil Case No.
224-V-00 before the RTC of Valenzuela City. Petitioner further contended
that respondent should have first exerted earnest efforts to amicably settle
the controversy with her before he filed the suit.[4]
The RTC heard the case. After the presentation and formal offer of
respondents evidence, petitioner demurred, contending that her son failed
to prove that she had in her custody the original holographic will.
Importantly, she asserted that the pieces of documentary evidence
presented, aside from being hearsay, were all immaterial and irrelevant to
the issue involved in the petitionthey did not prove or disprove that she
unlawfully neglected the performance of an act which the law specifically
enjoined as a duty resulting from an office, trust or station, for the court to
issue the writ of mandamus.[5]
The RTC, at first, denied the demurrer to evidence.[6] In its February 4,
2005 Order,[7] however, it granted the same on petitioners motion for
reconsideration. Respondents motion for reconsideration of this latter
order was denied on September 20, 2005.[8] Hence, the petition was
dismissed.
Aggrieved, respondent sought review from the appellate court. On April 26,
2006, the CA initially denied the appeal for lack of merit. It ruled that the
writ of mandamus would issue only in instances when no other remedy
would be available and sufficient to afford redress. Under Rule 76, in an
action for the settlement of the estate of his deceased father, respondent
could ask for the presentation or production and for the approval or
probate of the holographic will. The CA further ruled that respondent, in the
proceedings before the trial court, failed to present sufficient evidence to
prove that his mother had in her custody the original copy of the will.[9]
Respondent moved for reconsideration. The appellate court, in the
assailed August 23, 2006 Amended Decision,[10] granted the motion, set
aside its earlier ruling, issued the writ, and ordered the production of the
will and the payment of attorneys fees. It ruled this time that respondent
was able to show by testimonial evidence that his mother had in her
possession the holographic will.
Dissatisfied with this turn of events, petitioner filed a motion for
reconsideration. The appellate court denied this motion in the further
assailed February 23, 2007 Resolution.[11]
Left with no other recourse, petitioner brought the matter before this Court,
contending in the main that the petition for mandamus is not the proper
remedy and that the testimonial evidence used by the appellate court as
basis for its ruling is inadmissible.[12]
The Court cannot sustain the CAs issuance of the writ.
The first paragraph of Section 3 of Rule 65 of the Rules of Court
pertinently provides that
SEC. 3. Petition for mandamus.When any tribunal, corporation, board,
officer 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 and 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
respondent, immediately or at some other time to be specified by the court,
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 respondent.[13]

Mandamus is a command issuing from a court of law of competent

jurisdiction, in the name of the state or the sovereign, directed to some
inferior court, tribunal, or board, or to some corporation or person requiring
the performance of a particular duty therein specified, which duty results
from the official station of the party to whom the writ is directed or from
operation of law.[14] This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be resorted to for the
purpose of enforcing the performance of duties in which the public has no
interest.[15] The writ is a proper recourse for citizens who seek to enforce
a public right and to compel the performance of a public duty, most
especially when the public right involved is mandated by the Constitution.
[16] As the quoted provision instructs, mandamus will lie if the tribunal,
corporation, board, officer, or person unlawfully neglects the performance
of an act which the law enjoins as a duty resulting from an office, trust or
station.[17]
The writ of mandamus, however, will not issue to compel an official to do
anything which is not his duty to do or which it is his duty not to do, or to
give to the applicant anything to which he is not entitled by law.[18] Nor will
mandamus issue to enforce a right which is in substantial dispute or as to
which a substantial doubt exists, although objection raising a mere
technical question will be disregarded if the right is clear and the case is
meritorious.[19] As a rule, mandamus will not lie in the absence of any of
the following grounds: [a] that the court, officer, board, or person against
whom the action is taken unlawfully neglected the performance of an act
which the law specifically enjoins as a duty resulting from office, trust, or
station; or [b] that such court, officer, board, or person has unlawfully
excluded petitioner/relator from the use and enjoyment of a right or office
to which he is entitled.[20] On the part of the relator, it is essential to the
issuance of a writ of mandamus that he should have a clear legal right to
the thing demanded and it must be the imperative duty of respondent to
perform the act required.[21]
Recognized further in this jurisdiction is the principle that mandamus
cannot be used to enforce contractual obligations.[22] Generally,
mandamus will not lie to enforce purely private contract rights, and will not
lie against an individual unless some obligation in the nature of a public or
quasi-public duty is imposed.[23] The writ is not appropriate to enforce a
private right against an individual.[24] The writ of mandamus lies to
enforce the execution of an act, when, otherwise, justice would be
obstructed; and, regularly, issues only in cases relating to the public and to
the government; hence, it is called a prerogative writ.[25] To preserve its
prerogative character, mandamus is not used for the redress of private
wrongs, but only in matters relating to the public.[26]
Moreover, an important principle followed in the issuance of the writ is that
there should be no plain, speedy and adequate remedy in the ordinary
course of law other than the remedy of mandamus being invoked.[27] In
other words, mandamus can be issued only in cases where the usual
modes of procedure and forms of remedy are powerless to afford relief.
[28] Although classified as a legal remedy, mandamus is equitable in its
nature and its issuance is generally controlled by equitable principles.[29]
Indeed, the grant of the writ of mandamus lies in the sound discretion of
the court.
In the instant case, the Court, without unnecessarily ascertaining whether
the obligation involved here the production of the original holographic will
is in the nature of a public or a private duty, rules that the remedy of
mandamus cannot be availed of by respondent Lee because there lies
another plain, speedy and adequate remedy in the ordinary course of law.
Let it be noted that respondent has a photocopy of the will and that he
seeks the production of the original for purposes of probate. The Rules of
Court, however, does not prevent him from instituting probate proceedings
for the allowance of the will whether the same is in his possession or not.
Rule 76, Section 1 relevantly provides:

Section 1. Who may petition for the allowance of will.Any executor,

devisee, or legatee named in a will, or any other person interested in the
estate, may, at any time, after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for

the production of the original holographic will. Thus
SEC. 2. Custodian of will to deliver.The person who has custody of a will
shall, within twenty (20) days after he knows of the death of the testator,
deliver the will to the court having jurisdiction, or to the executor named in
the will.
SEC. 3. Executor to present will and accept or refuse trust.A person
named as executor in a will shall within twenty (20) days after he knows of
the death of the testator, or within twenty (20) days after he knows that he
is named executor if he obtained such knowledge after the death of the
testator, present such will to the court having jurisdiction, unless the will
has reached the court in any other manner, and shall, within such period,
signify to the court in writing his acceptance of the trust or his refusal to
accept it.
SEC. 4. Custodian and executor subject to fine for neglect.A person who
neglects any of the duties required in the two last preceding sections
without excuse satisfactory to the court shall be fined not exceeding two
thousand pesos.
SEC. 5. Person retaining will may be committed.A person having custody
of a will after the death of the testator who neglects without reasonable
cause to deliver the same, when ordered so to do, to the court having
jurisdiction, may be committed to prison and there kept until he delivers the
will.[30]

There being a plain, speedy and adequate remedy in the ordinary course
of law for the production of the subject will, the remedy of mandamus
cannot be availed of. Suffice it to state that respondent Lee lacks a cause
of action in his petition. Thus, the Court grants the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is
GRANTED.

REPUBLIC vs. MARCOS

G.R. Nos. 130371 &130855
August 4, 2009

PERALTA, J.:

Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of

the Rules of Court, seeking to set aside the March 13, 1997 Decision[2]
and August 27, 1997 Resolution[3] of the Court of Appeals (CA) in CAG.R. SP No. 43450.
The facts of the case are as follows:
On January 11, 1996, the Regional Trial Court (RTC) of Pasig City Branch
156, acting as a probate court, in Special Proceeding No. 10279, issued
an Order[4] granting letters testamentary in solidum to respondents
Ferdinand R. Marcos II and Imelda Trinidad Romualdez-Marcos as
executors of the last will and testament of the late Ferdinand E. Marcos.
The dispositive portion of the January 11, 1996 Order reads:
WHEREFORE, finding the Last Will and Testament of Ferdinand Edralin
Marcos to have been duly executed in accordance with law, the same is
hereby ALLOWED AND ADMITTED TO PROBATE.
Upon the filing of a bond in the amount of P50,000.00, let letters
testamentary be issued in solidum to Imelda Trinidad Romualdez-Marcos
AND Ferdinand Romualdez Marcos II, named executors therein.
Pending the filing of said bond and their oath, Commissioner Liwayway
Vinzons-Chato of the Bureau of Internal Revenue is hereby authorized to
continue her functions as Special Administrator of the Estate of Ferdinand
Edralin Marcos.
Let NOTICE be given to all known heirs and creditors of the decedent, and
to any other persons having an interest in the estate for them to lay their
claim against the Estate or forever hold their peace.
SO ORDERED.[5]

On January 15, 1996, the petitioner Republic of the Philippines filed a

Motion for Partial Reconsideration[6] in so far as the January 11, 1996
RTC Order granted letters testamentary to respondents. On the other
hand, respondent Imelda Marcos filed her own motion for reconsideration
on the ground that the will is lost and that petitioner has not proven its
existence and validity.
On February 5, 1996, respondent Ferdinand Marcos II filed a Compliance
stating that he already filed a bond in the amount of P50,000.00 as
directed by the January 11, 1996 RTC Order and that he took his oath as
named executor of the will on January 30, 1996.

It cannot be overstressed that the assailed January 11, 1996 Orders of the
Court was arrived at only after extensive consideration of every legal facet
available on the question of validity of the Will.
WHEREFORE, for lack of merit, the motion for reconsideration filed
separately by petitioner Republic and oppositor Imelda R. Marcos are both
DENIED.
SO ORDERED.[9]
On June 6, 1996, petitioner filed with this Court a Petition for Review on
Certiorari, under Ruled 45 of the Rules of Court, questioning the
aforementioned RTC Orders granting letters testamentary to respondents.
On February 5, 1997, the First Division of this Court issued a Resolution
referring the petition to the CA, to wit:
xxxx
The special civil action for certiorari as well as all the other pleadings filed
herein are REFERRED to the Court of Appeals for consideration and
adjudication on the merits or any other action as it may deem appropriate,
the latter having jurisdiction concurrent with this Court over the Case, and
this Court having been cited to no special and important reason for it to
take cognizance of said case in the first instance.[10] (Emphasis and
Underscoring Supplied)

On March 13, 1997, the CA issued a Decision,[11] dismissing the referred

petition for having taken the wrong mode of appeal, the pertinent portions
of which reads:
Consequently, for having taken the wrong mode of appeal, the present
petition should be dismissed in accordance with the same Supreme Court
Circular 2-90 which expressly provides that:
4. Erroneous Appeals An appeal taken to either the Supreme Court or the
Court of Appeals by the wrong or inappropriate mode shall be dismissed.
IN VIEW OF THE FOREGOING, the instant petition for review is hereby
DISMISSED.
SO ORDERED.[12]

On March 13, 1996, the RTC issued Letters of Administration[7] to BIR

Commissioner Liwayway Vinzons-Chato in accordance with an earlier
Order dated September 9, 1994, appointing her as Special Administratrix
of the Marcos Estate.

Petitioner filed a Motion for Reconsideration,[13] which was, however

denied by the CA in a Resolution[14] dated August 27, 1997.
Hence, herein petition, with petitioner raising the following assignment of
errors, to wit:

On April 1, 1996, respondent Ferdinand Marcos II filed a Motion to Revoke

the Letters of Administration issued by the RTC to BIR Commissioner
Vinzons-Chato.

Xxxxxxxxxxxxxx

On April 26, 1996, the RTC issued an Order[8] denying the motion for
partial reconsideration filed by petitioner as well as the motion for
reconsideration filed by respondent Imelda Marcos, the penultimate portion
of which reads:
Under the Rules, a decedents testamentary privilege must be accorded
utmost respect. Guided by this legal precept, therefore, in resolving the
two (2) motions at hand, the Court is constrained to DENY both.

In the meantime, on October 9, 2002, the RTC, acting on the pending

unresolved motions before it, issued an Order[16] which reads:

WHEREFORE, the Court hereby appoints as joint special administrators of

the estate of the late Ferdinand E. Marcos, the nominee of the Republic of
the Philippines (the Undersecretary of the Department of Justice whom the
Secretary of Justice will designate for this purpose) and Mrs. Imelda
Romualdez Marcos and Mr. Ferdinand R. Marcos II, to serve as such until
an executor is finally appointed.

Examining the arguments poised by the movants, the Court observed that
these are but a mere rehash of issues already raised and passed upon by
the Court.

SO ORDERED.

One has to review the previous orders issued by the Court in this case,
e.g., the orders dated September 9, 1994, November 25, 1994, as well as
October 3, 1995, to see that even as far back then, the Court has
considered the matter of competency of the oppositors and of
Commissioner Liwayway Vinzons-Chato as having been settled.

When the assailed Orders granting letters testamentary in solidum to

respondents were issued by the RTC, petitioner sought to question them
by filing a petition for review on certiorari under Rule 45 of the Rules of
Court.
Supreme Court Circular No. 2-90,[17] which was then in effect, reads:

The petition is without merit.

2. Appeals from Regional Trial Courts to the Supreme Court. Except in

criminal cases where the penalty imposed is life imprisonment to reclusion
perpetua, judgments of regional trial courts may be appealed to the
Supreme Court only by petition for review on certiorari in accordance with
Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act
of 1948, as amended, this being the clear intendment of the provision of
the Interim Rules that (a)ppeals to the Supreme Court shall be taken by
petition for certiorari which shall be governed by Rule 45 of the Rules of
Court. (Emphasis and Underscoring Supplied)
The pertinent portions of Section 17[18] of the Judiciary Act of 1948 read:
The Supreme Court shall further have exclusive jurisdiction to review,
revise, reverse, modify or affirm on certiorari as the law or rules of court
may provide, final judgments and decrees of inferior courts as herein
provided, in
(1) All cases in which the constitutionality or validity of any treaty, law,
ordinance, or executive order or regulation is in question;
(2) All cases involving the legality of any tax, impost, assessment or toll, or
any penalty imposed in relation thereto;
(3) All cases in which the jurisdiction of any inferior court is in issue;
(4) All other cases in which only errors or questions of law are involved:
Provided, however, That if, in addition to constitutional, tax or jurisdictional
questions, the cases mentioned in the three next preceding paragraphs
also involve questions of fact or mixed questions of fact and law, the
aggrieved party shall appeal to the Court of Appeals; and the final
judgment or decision of the latter may be reviewed, revised, reversed,
modified or affirmed by the Supreme Court on writ of certiorari; and
(5) Final awards, judgments, decision or orders of the Commission on
Elections, Court of Tax Appeals, Court of Industrial Relations, the Public
Service Commission, and the Workmens Compensation Commission.
A reading of Supreme Court Circular 2-90, in relation to Section 17 of the
Judiciary Act of 1948, clearly shows that the subject matter of therein
petition, that is, the propriety of granting letters testamentary to
respondents, do not fall within any ground which can be the subject of a
direct appeal to this Court. The CA was thus correct in declaring that the
issues raised by petitioner do not fall within the purview of Section 17 of
the Judiciary Act of 1948 such that the Supreme Court should take
cognizance of the instant case.[19]
Moreover, the Courts pronouncement in Suarez v. Judge Villarama[20] is
instructive:
Section 4 of Circular No. 2-90, in effect at the time of the antecedents,
provides that an appeal taken to either the Supreme Court or the Court of
Appeals by the wrong mode or inappropriate mode shall be dismissed.
This rule is now incorporated in Section 5, Rule 56 of the 1997 Rules of
Civil Procedure.
Moreover, the filing of the case directly with this Court runs afoul of the
doctrine of hierarchy of courts. Pursuant to this doctrine, direct resort from
the lower courts to the Supreme Court will not be entertained unless the
appropriate remedy cannot be obtained in the lower tribunals. This Court is
a court of last resort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the Constitution and immemorial tradition. Thus,
a petition for review on certiorari assailing the decision involving both
questions of fact and law must first be brought before the Court of Appeals.
[21]
Also, in Southern Negros Development Bank v. Court of Appeals,[22] this
Court ruled:
It is incumbent upon private respondent qua appellants to utilize the
correct mode of appeal of the decisions of trial courts to the appellate
courts. In the mistaken choice of their remedy, they can blame no one but
themselves (Jocson v. Baguio, 179 SCRA 550 [1989]; Yucuanseh Drug
Co. v. National Labor Union, 101 Phil. 409 [1957]).
xxxx
Pursuant to Section 4 of Circular No. 2-90, which provides that "[a]n
appeal taken to either the Supreme Court or the Court of Appeals by the
wrong mode or inappropriate mode shall be dismissed," the only course of
action of the Court to which an erroneous appeal is made is to dismiss the
same. There is no longer any justification for allowing transfers of
erroneous appeals from one court to another (Quesada v. Court of
Appeals, G.R. No. 93869, November 12, 1990, First Division, Minute
Resolution).[23]
Based on the foregoing, petitioner cannot deny that the determination of
whether or not respondents should be disqualified to act as executors is a
question of fact. Hence, the proper remedy was to appeal to the CA, not to
this Court.

Petitioner is adamant, however, that notwithstanding the improper remedy,

the CA should not have dismissed therein petition. Petitioner argues in the
wise:
However, as can be seen in the Resolution of February 5, 1997, (Annex H)
this Honorable Court deemed it more proper to transmit the first Petition for
Review to respondent appellate court for the reason that:
This Court having been cited to no special and important reason for it to
take cognizance of said case in the first instance. x x x
It would appear then that even though this Honorable Court apparently
considers the Republics petition as deserving to be given due course, it
deemed it in the best interest of the parties concerned if the Court of
Appeals would first take cognizance of said case, thereby preserving its
stance as a court of last resort.
Additionally, this Honorable Court itself plainly stated that the case under
review is:
.REFERRED to the Court of Appeals for consideration and adjudication on
the merits. The latter having jurisdiction concurrent with this Court over the
case[24]
Petitioners arguments are misplaced. To stress, the February 5, 1997
Resolution reads:
The special civil action for certiorari as well as all the other pleadings filed
herein are REFERRED to the Court of Appeals for consideration and
adjudication on the merits or any other action as it may deem appropriate,
the latter having jurisdiction concurrent with this Court over the Case, and
this Court having been cited to no special and important reason for it to
take cognizance of said case in the first instance.[25]

Based thereon, this Court agrees with the ruling of the CA that said
resolution gave the CA discretion and latitude to decide the petition as it
may deem proper. The resolution is clear that the petition was referred to
the CA for consideration and adjudication on the merits or any other action
as it may deem appropriate. Thus, no error can be attributed to the CA
when the action it deemed appropriate was to dismiss the petition for
having availed of an improper remedy. More importantly, the action of the
CA was sanctioned under Section 4 of Supreme Court Circular 2-90 which
provides that an appeal taken to either the Supreme Court or the Court of
Appeals by the wrong mode or inappropriate mode shall be dismissed.
Moreover, petitioner mistakenly relies in Oriental Media, Inc. v. Court of
Appeals,[26] in which this Court made the following pronouncements:
In the case at bar, there was no urgency or need for Oriental to resort to
the extraordinary remedy of certiorari for when it learned of the case and
the judgment against it on July 25, 1986, due to its receipt of a copy of the
decision by default; no execution had as yet been ordered by the trial
court. As aforementioned, Oriental had still the time and the opportunity to
file a motion for reconsideration, as was actually done. Upon the denial of
its motion for reconsideration in the first case, or at the latest upon the
denial of its petition for relief from judgment, Oriental should have
appealed. Oriental should have followed the procedure set forth in the
Rules of Court for
Rules of procedure are intended to ensure the orderly administration of
justice and the protection of substantive rights in judicial and extrajudicial
proceedings. It is a mistake to purpose that substantive law and adjective
law are contradictory to each other or, as has often been suggested, that
enforcement of procedural rules should never be permitted if it will result in
prejudice to the substantive rights of the litigants. This is not exactly true;
the concept is much misunderstood. As a matter of fact, the policy of the
courts is to give effect to both kinds of law, as complementing each other,
in the just and speedy resolution of the dispute between the parties.
Observance of both substantive rights is equally guaranteed by due
process whatever the source of such rights, be it the Constitution itself or
only a statute or a rule of court.[27]

In the case at bar, as found by this Court in its February 5, 1997

Resolution, therein petition offered no important or special reason for the
Court to take cognizance of it at the first instance. Petitioner offered no
plausible reason why it went straight to this Court when an adequate and
proper remedy was still available. The CA was thus correct that the
remedy that petitioner should have availed of was to file an appeal under
Rule 109 of the Rules of Court which states:

Section 1. Orders of judgments from which appeals taken. An interested

person may appeal in special proceedings from an order or judgment
rendered by a Court of First Instance or a Juvenile and Domestic Relations
Court, where such order or judgment:
(a)

allows or disallows a will;

Because of the preceding discussion, herein petition must necessarily fail.

However, even if this Court were to set aside petitioners procedural lapses,
a careful review of the records of the case reveal that herein petition is
without merit.
At the crux of the controversy is a determination of whether or not
respondents are incompetent to serve as executors of the will of Ferdinand
Marcos.
Ozeata v. Pecson[28] is instructive:
The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the manner
he wishes. It is natural that the testator should desire to appoint one of his
confidence, one who can be trusted to carry out his wishes in the disposal
of the estate. The curtailment of this right may be considered as a
curtailment of the right to dispose. And as the rights granted by will take
effect from the time of death (Article 777, Civil Code of the Philippines), the
management of his estate by the administrator of his choice should be
made as soon as practicable, when no reasonable objection to his
assumption of the trust can be interposed any longer. It has been held that
when a will has been admitted to probate, it is the duty of the court to issue
letters testamentary to the person named as executor upon his application
(23 C.J. 1023).
xxxx
The case of In re Erlanger's Estate, 242 N.Y.S. 249, also reiterates the
same principle.
The courts have always respected the right to which a testator enjoys to
determine who is most suitable to settle his testamentary affairs, and his
solemn selection should not lightly be disregarded. After the admission of a
will to probate, the courts will not name a better executor for the testator
nor disqualify, by a judicial veto, the widow or friend or other person
selected in the will, except upon strict proof of the statutory grounds of
incompetency. Matter of Leland's Will, 219 N.Y. 387, 393, 114 N.E. 854. x x
x[29]

court the duty and discretion to determine whether in its opinion an

individual is unfit to serve as an executor. The sufficiency of any ground for
removal should thus be determined by the said court, whose sensibilities
are, in the first place, affected by any act or omission on the part of the
administrator not conformable to or in disregard of the rules of orders of
the court.[33]
Hence, in order to reverse the findings of the RTC, this Court must
evaluate the evidence presented or alleged by petitioner in support of its
petition for disqualification. However, after a painstaking review of the
records and evidence on hand, this Court finds that the RTC committed no
error or gross abuse of discretion when it ruled that petitioner failed to
substantiate its allegation.
Petitioner conveniently omits to state that the two cases against
respondent Imelda Marcos have already been reversed by this Court. Her
conviction in Criminal Case No. 17453 was reversed by this Court in Dans,
Jr. v. People.[34] Likewise, her conviction in Criminal Case No. 17450 was
reversed by this Court in Marcos v. Sandiganbayan.[35] Hence, the socalled convictions against respondent Imelda Marcos cannot serve as a
ground for her disqualification to serve as an executor.
On the other hand, the eight cases filed against respondent Ferdinand
Marcos II involve four charges for violation of Section 45 (failure to file
income tax returns) and four charges for violation of Section 50 (nonpayment of deficiency taxes) of the National Internal Revenue Code of
1977 (NIRC).
It is a matter of record, that in CA-G.R. CR No. 18569,[36] the CA
acquitted respondent Ferdinand Marcos II of all the four charges for
violation of Section 50 and sustained his conviction for all the four charges
for violation of Section 45. It, however, bears to stress, that the CA only
ordered respondent Marcos II to pay a fine for his failure to file his income
tax return. Moreover, and as admitted by petitioner,[37] said decision is still
pending appeal.
Therefore, since respondent Ferdinand Marcos II has appealed his
conviction relating to four violations of Section 45 of the NIRC, the same
should not serve as a basis to disqualify him to be appointed as an
executor of the will of his father. More importantly, even assuming
arguendo that his conviction is later on affirmed, the same is still
insufficient to disqualify him as the failure to file an income tax return is not
a crime involving moral turpitude.
In Villaber v. Commision on Elections,[38] this Court held:

Section 1(c), Rule 78 of the Rules of Court defines who are incompetent to
serve as executors, to wit:
Section 1. Who are incompetent to serve as executors or administrators.
No person is competent to serve as executor or administrator who:
xxxx
(c) Is in the opinion of the court unfit to execute the duties of trust by
reason of drunkenness, improvidence, or want of understanding or
integrity, or by reason of conviction of an offense involving moral turpitude.
(Emphasis Supplied)
In the case at bar, petitioner anchored its opposition to the grant of letters
testamentary to respondents, specifically on the following grounds: (1)
want of integrity, and (2) conviction of an offense involving moral turpitude.
Petitioner contends that respondents have been convicted of a number of
cases[30] and, hence, should be characterized as one without integrity, or
at the least, with questionable integrity.[31]
The RTC, however, in its January 11, 1996 Order, made the following
findings:
However, except for petitioner Republics allegation of want of integrity on
the part of Imelda Trinidad Romualdez-Marcos and Ferdinand Romualdez
Marco II, named executors in the last will and testament, so as to render
them incompetent to serve as executors, the Court sees at this time, no
evidence on record, oral or documentary, to substantiate and support the
said allegation. (Emphasis Supplied)
Based on the foregoing, this Court stresses that an appellate court is
disinclined to interfere with the action taken by the probate court in the
matter of removal of an executor or administrator unless positive error or
gross abuse of discretion is shown.[32] The Rules of Court gives the lower

As to the meaning of "moral turpitude," we have consistently adopted the

definition in Black's Law Dictionary as "an act of baseness, vileness, or
depravity in the private duties which a man owes his fellow men, or to
society in general, contrary to the accepted and customary rule of right and
duty between man and woman, or conduct contrary to justice, honesty,
modesty, or good morals."
In In re Vinzon, the term "moral turpitude" is considered as encompassing
"everything which is done contrary to justice, honesty, or good morals."
xxxx
We, however, clarified in Dela Torre vs. Commission on Elections that "not
every criminal act involves moral turpitude," and that ''as to what crime
involves moral turpitude is for the Supreme Court to determine."[39]
Moreover, In De Jesus-Paras v. Vailoces:[40]
Indeed, it is well-settled that "embezzlement, forgery, robbery, and
swindling are crimes which denote moral turpitude and, as a general rule,
all crimes of which fraud is an element are looked on as involving moral
turpitude" (58 C.J.S., 1206).
The failure to file an income tax return is not a crime involving moral
turpitude as the mere omission is already a violation regardless of the
fraudulent intent or willfulness of the individual. This conclusion is
supported by the provisions of the NIRC as well as previous Court
decisions which show that with regard to the filing of an income tax return,
the NIRC considers three distinct violations: (1) a false return, (2) a
fraudulent return with intent to evade tax, and (3) failure to file a return.
The same is illustrated in Section 51(b) of the NIRC which reads:
(b) Assessment and payment of deficiency tax xxx

In case a person fails to make and file a return or list at the time prescribed
by law, or makes willfully or otherwise, false or fraudulent return or list x x
x. (Emphasis Supplied)

Likewise, in Aznar v. Court of Tax Appeals,[41] this Court observed:

To our minds we can dispense with these controversial arguments on

facts, although we do not deny that the findings of facts by the Court of Tax
Appeals, supported as they are by very substantial evidence, carry great
weight, by resorting to a proper interpretation of Section 332 of the NIRC.
We believe that the proper and reasonable interpretation of said provision
should be that in the three different cases of (1) false return, (2) fraudulent
return with intent to evade tax, (3) failure to file a return, the tax may be
assessed, or a proceeding in court for the collection of such tax may be
begun without assessment, at any time within ten years after the discovery
of the (1) falsity, (2) fraud, and (3) omission. Our stand that the law should
be interpreted to mean a separation of the three different situations of false
return, fraudulent return with intent to evade tax, and failure to file a return
is strengthened immeasurably by the last portion of the provision which
segregates the situations into three different classes, namely, "falsity,"
"fraud" and "omission."[42] (Emphasis Supplied)

Applying the foregoing considerations to the case at bar, the filing of a

fraudulent return with intent to evade tax is a crime involving moral
turpitude as it entails willfulness and fraudulent intent on the part of the
individual. The same, however, cannot be said for failure to file a return
where the mere omission already constitutes a violation. Thus, this Court
holds that even if the conviction of respondent Marcos II is affirmed, the
same not being a crime involving moral turpitude cannot serve as a ground
for his disqualification.
Anent the third error raised by petitioner, the same has no merit.
Petitioner contends that respondents denied the existence of the will, and
are, therefore, estopped from claiming to be the rightful executors thereof.
Petitioner further claims that said actions clearly show that respondents
lack the competence and integrity to serve as officers of the court.
This Court does not agree with the posture taken by petitioner, and
instead, accepts the explanation given by respondents, to wit:
Respondents opposed the petition for probate not because they are
disclaiming the existence of the will, but because of certain legal grounds,
to wit: (a) petitioner does not have the requisite interest to institute it; (b)
the original copy of the will was not attached to the petition for probate as
required by the rules; and (c) the Commissioner of the Bureau of Internal
Revenue is not qualified to be appointed as administrator of the estate.[43]

Based on the foregoing, considering the nature of their opposition,

respondents cannot be held guilty of estoppel as they merely acted within
their rights when they put in issue legal grounds in opposing the probate
proceedings. More importantly, even if said grounds were later on
overruled by the RTC, said court was still of opinion that respondents were
fit to serve as executors notwithstanding their earlier opposition. Again, in
the absence of palpable error or gross abuse of discretion, this Court will
not interfere with the RTCs discretion.
As for the remaining errors assigned by petitioner, the same are bereft of
merit.
Petitioner contends that respondents have strongly objected to the transfer
to the Philippines of the Marcos assets deposited in the Swiss Banks[44]
and thus the same should serve as a ground for their disqualification to act
as executors. This Court does not agree. In the first place, the same are
mere allegations which, without proof, deserve scant consideration. Time
and again, this Court has stressed that this Court is a court of law and not
a court of public opinion. Moreover, petitioner had already raised the same
argument in its motion for partial reconsideration before the RTC. Said
court, however, still did not find the same as a sufficient ground to

disqualify respondents. Again, in the absence of palpable error or gross

abuse of discretion, this Court will not interfere with the RTCs discretion.
Lastly, petitioner argues that the assailed RTC Orders were based solely
on their own evidence and that respondents offered no evidence to show
that they were qualified to serve as executors.[45] It is basic that one who
alleges a fact has the burden of proving it and a mere allegation is not
evidence.[46] Consequently, it was the burden of petitioner (not
respondents) to substantiate the grounds upon which it claims that
respondents should be disqualified to serve as executors, and having
failed in doing so, its petition must necessarily fail.
WHEREFORE, premises considered, the March 13, 1997 Decision and
August 27, 1997 Resolution of the Court of Appeals in CA-G.R. SP No.
43450 are hereby AFFIRMED.
The Regional Trial Court of Pasig City, Branch 156, acting as a probate
court in Special Proceeding No. 10279, is hereby ORDERED to issue
letters testamentary, in solidum, to Imelda Romualdez-Marcos and
Ferdinand Marcos II.
SO ORDERED.

SUNTAY vs. COJUANGCO-SUNTAY

G.R. No. 183053
June 16, 2010
NACHURA, J.:
On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina),
married to Dr. Federico Suntay (Federico), died intestate. In 1979, their
only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina
and Federico. At the time of her death, Cristina was survived by her
husband, Federico, and several grandchildren, including herein petitioner
Emilio A.M. Suntay III (Emilio III) and respondent Isabel CojuangcoSuntay.
During his lifetime, Emilio I was married to Isabel Cojuangco, and they
begot three children, namely: herein respondent, Isabel; Margarita; and
Emilio II, all surnamed Cojuangco-Suntay. Emilio Is marriage to Isabel
Cojuangco was subsequently annulled. Thereafter, Emilio I had two
children out of wedlock, Emilio III and Nenita Suntay Taedo (Nenita), by
two different women, Concepcion Mendoza and Isabel Santos,
respectively.
Despite the illegitimate status of Emilio III, he was reared ever since he
was a mere baby, nine months old, by the spouses Federico and Cristina
and was an acknowledged natural child of Emilio I. Nenita is an
acknowledged natural child of Emilio I and was likewise brought up by the
spouses Federico and Cristina.

Subsequently, the trial court granted Emilio IIIs Motion for Leave to
Intervene considering his interest in the outcome of the case. Emilio III
filed his Opposition-In-Intervention, which essentially echoed the
allegations in his grandfathers opposition, alleging that Federico, or in his
stead, Emilio III, was better equipped than respondent to administer and
manage the estate of the decedent, Cristina. Additionally, Emilio III averred
his own qualifications that: "[he] is presently engaged in aquaculture and
banking; he was trained by the decedent to work in his early age by
involving him in the activities of the Emilio Aguinaldo Foundation which
was established in 1979 in memory of her grandmothers father; the
significant work experiences outside the family group are included in his
curriculum vitae; he was employed by the oppositor [Federico] after his
graduation in college with management degree at F.C.E. Corporations and
Hagonoy Rural Bank; x x x."10
In the course of the proceedings, on November 13, 2000, Federico died.
After the testimonies of both parties witnesses were heard and evidence
on their respective allegations were adduced, the trial court rendered a
decision on November 9, 2001, appointing herein petitioner, Emilio III, as
administrator of decedent Cristinas intestate estate, to wit:
WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and
the Opposition[-]in[-]Intervention is GRANTED.

As previously adverted to, the marriage between Emilio I and Isabel was
annulled.6 Consequently, respondent and her siblings Margarita and
Emilio II, lived with their mother on Balete Drive, Quezon City, separately
from their father and paternal grandparents.

Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby appointed

administrator of the estate of the decedent Cristina Aguinaldo Suntay, who
shall enter upon the execution of his trust upon the filing of a bond in the
amount of P200,000.00, conditioned as follows:

Parenthetically, after the death of Emilio I, Federico filed a petition for

visitation rights over his grandchildren: respondent Isabel, Margarita, and
Emilio II. Although the Juvenile and Domestic Relations Court in Quezon
City granted the petition and allowed Federico one hour of visitation
monthly, initially reduced to thirty minutes, it was altogether stopped
because of a manifestation filed by respondent Isabel, articulating her
sentiments on the unwanted visits of her grandparents.

(1) To make and return within three (3) months, a true and complete
inventory;

Significantly, Federico, after the death of his spouse, Cristina, or on

September 27, 1993, adopted their illegitimate grandchildren, Emilio III and
Nenita.71avvphi1
On October 26, 1995, respondent filed a petition for the issuance of letters
of administration in her favor, containing the following allegations:

(2) To administer the estate and to pay and discharge all debts, legatees,
and charge on the same, or dividends thereon;
(3) To render a true and just account within one (1) year, and at any other
time when required by the court, and
(4) To perform all orders of the Court.
Once the said bond is approved by the court, let Letters of Administration
be issued in his favor.
SO ORDERED.11

[A]t the time of [the decedents] death, [she] was a resident of the
Municipality of Hagonoy, Province of Bulacan; that the [decedent] left an
estate of real and personal properties, with a probable gross value of
P29,000,000.00; that the names, ages and residences of the surviving
heirs of the [decedent] are: (1) Federico C. Suntay, 89 years old, surviving
spouse and a resident of x x x; (2) Isabel Cojuangco-Suntay, 36 years old,
legitimate granddaughter and a resident of x x x; (3) Margarita CojuangcoSuntay, 39 years old, legitimate granddaughter and a resident of x x x; and
(4) Emilio Cojuangco-Suntay, 35 years old, legitimate grandson and a
resident of x x x; and that as far as [respondent] knew, the decedent left no
debts or obligation at the time of her death.8
Disavowing the allegations in the petition of his grandchild, respondent
Isabel, Federico filed his opposition on December 21, 1995, alleging,
among others, that:

Aggrieved, respondent filed an appeal before the CA, which reversed and
set aside the decision of the RTC, revoked the Letters of Administration
issued to Emilio III, and appointed respondent as administratrix of the
intestate estate of the decedent, Cristina, to wit:
WHEREFORE, in view of all the foregoing, the assailed decision dated
November 9, 2001 of Branch 78, Regional Trial Court of Malolos, Bulacan
in SPC No. 117-M-95 is REVERSED and SET ASIDE and the letters of
administration issued by the said court to Emilio A.M. Suntay III, if any, are
consequently revoked. Petitioner Isabel Cojuangco[-]Suntay is hereby
appointed administratrix of the intestate estate of Cristina Aguinaldo
Suntay. Let letters of administration be issued in her favor upon her filing of
a bond in the amount of Two Hundred Thousand (P200,000.00) Pesos.
No pronouncement as to costs.

[B]eing the surviving spouse of Cristina, he is capable of administering her

estate and he should be the one appointed as its administrator; that as
part owner of the mass of conjugal properties left by Cristina, he must be
accorded legal preference in the administration thereof; that Isabel and her
family had been alienated from their grandparents for more than thirty (30)
years; that the enumeration of heirs in the petition was incomplete as it did
not mention the other children of his son[,] namely: Emilio III and Nenita S.
Taedo; that he is better situated to protect the integrity of the estate of
Cristina as even before the death of his wife[,] he was already the one who
managed their conjugal properties; that the probable value of the estate as
stated in the petition was grossly overstated (sic); and that Isabels
allegation that some of the properties are in the hands of usurpers is
untrue.9
Meanwhile, after a failed attempt by the parties to settle the proceedings
amicably, Federico filed a Manifestation dated March 13, 1999, nominating
his adopted son, Emilio III, as administrator of the decedents estate on his
behalf, in the event he would be adjudged as the one with a better right to
the letters of administration.

SO ORDERED.12
The motion for reconsideration of Emilio III having been denied, he
appeals by certiorari to this Court, raising the following issues:
A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE
UNDER SECTION 6 OF RULE 78 OF THE RULES OF COURT,
WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and
B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER
WAS REARED BY THE DECEDENT AND HER SPOUSE SINCE
INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES
SO AS TO BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF
THE DECEDENTS ESTATE.13
In ruling against the petition of herein respondent, the RTC ratiocinated,
thus:

Evidence objectively assessed and carefully evaluated, both testimonial

and documentary, the court opines that it is to the best interest of the
estate of the decedent and all claimants thereto, that the Intervenor, Emilio
A.M. Suntay III, be appointed administrator of the estate in the aboveentitled special proceedings.

2. The basis for Article 992 of the Civil Code, referred to as the iron curtain
bar rule,18 is quite the opposite scenario in the facts obtaining herein for
the actual relationship between Federico and Cristina, on one hand, and
Emilio III, on the other, was akin to the normal relationship of legitimate
relatives;

Based on the evidence and demeanor of the parties in court, [respondents

immediate] family and that of the decedent are apparently estranged. The
root cause of which, is not for this court to ascertain nor is this the right
time and the proper forum to dwell upon. What matters most at this time is
the welfare of the estate of the decedent in the light of such unfortunate
and bitter estrangement.

3. Emilio III was reared from infancy by the decedent, Cristina, and her
husband, Federico, who both acknowledged him as their grandchild;

The Court honestly believes that to appoint the petitioner would go against
the wishes of the decedent who raised [Emilio III] from infancy in her home
in Baguio City as her own child. Certainly, it would go against the wishes of
the surviving spouse x x x who nominated [Emilio III] for appointment as
administrator.

5. Cristinas properties forming part of her estate are still commingled with
that of her husband, Federico, because her share in the conjugal
partnership, albeit terminated upon her death, remains undetermined and
unliquidated; and

As between [respondent] and the oppositor [Federico], the latter is

accorded preference as the surviving spouse under Sec 6(a), Rule 78,
Rules of Court. On the basis of such preference, he vigorously opposed
the appointment of the petitioner and instead nominated [Emilio III], his
grandchild and adopted child. Such nomination, absent any valid and
justifiable reason, should not be imperiously set aside and insouciantly
ignored, even after the oppositor [Federico] has passed away, in order to
give effect to the order of preference mandated by law. Moreover, from the
viewpoint of the estate, the nomination of [Emilio III] appear[s] intrinsically
meritorious. For the benefit of the estate and its claimants, creditors, as
well as heirs, the administrator should be one who is prepared,
academically and by experience, for the demands and responsibilities of
the position. While [respondent], a practicing physician, is not unqualified,
it is clear to the court that when it comes to management of real estate and
the processing and payment of debts, [Emilio III], a businessman with an
established track record as a manager has a decided edge and therefore,
is in a position to better handle the preservation of the estate.14
In marked contrast, the CA zeroed in on Emilio IIIs status as an illegitimate
child of Emilio I and, thus, barred from representing his deceased father in
the estate of the latters legitimate mother, the decedent. On the whole, the
CA pronounced that Emilio III, who was merely nominated by Federico,
and which nomination hinged upon the latters appointment as
administrator of the decedents estate, cannot be appointed as the
administrator of the decedents estate for the following reasons:15
1. The appointment of Emilio III was subject to a suspensive condition, i.e.,
Federicos appointment as administrator of the estate, he being the
surviving spouse of Cristina, the decedent. The death of Federico before
his appointment as administrator of Cristinas estate rendered his
nomination of Emilio III inoperative;
2. As between the legitimate offspring (respondent) and illegitimate
offspring (Emilio III) of decedents son, Emilio I, respondent is preferred,
being the "next of kin" referred to by Section 6, Rule 78 of the Rules of
Court, and entitled to share in the distribution of Cristinas estate as an
heir;

4. Federico claimed half of the properties included in the estate of the

decedent, Cristina, as forming part of their conjugal partnership of gains
during the subsistence of their marriage;

6. Emilio III is a legally adopted child of Federico, entitled to share in the

distribution of the latters estate as a direct heir, one degree from Federico,
not simply representing his deceased illegitimate father, Emilio I.
From the foregoing, it is patently clear that the CA erred in excluding Emilio
III from the administration of the decedents estate. As Federicos adopted
son, Emilio IIIs interest in the estate of Cristina is as much apparent to this
Court as the interest therein of respondent, considering that the CA even
declared that "under the law, [Federico], being the surviving spouse, would
have the right of succession over a portion of the exclusive property of the
decedent, aside from his share in the conjugal partnership." Thus, we are
puzzled why the CA resorted to a strained legal reasoning Emilio IIIs
nomination was subject to a suspensive condition and rendered
inoperative by reason of Federicos death wholly inapplicable to the case
at bar.
Section 6, Rule 78 of the Rules of Court lists the order of preference in the
appointment of an administrator of an estate:
SEC. 6. When and to whom letters of administration granted. If no
executor is named in the will, or the executor or executors are
incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or
both, in the discretion of the court, or to such person as such surviving
husband or wife, or next of kin, requests to have appointed, if competent
and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or
the person selected by them, be incompetent or unwilling, or if the
husband or widow, or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one
or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be
granted to such other person as the court may select.

3. Jurisprudence has consistently held that Article 99216 of the Civil Code
bars the illegitimate child from inheriting ab intestato from the legitimate
children and relatives of his father or mother. Thus, Emilio III, who is
barred from inheriting from his grandmother, cannot be preferred over
respondent in the administration of the estate of their grandmother, the
decedent; and

However, the order of preference is not absolute for it depends on the

attendant facts and circumstances of each case.19 Jurisprudence has long
held that the selection of an administrator lies in the sound discretion of the
trial court.20 In the main, the attendant facts and circumstances of this
case necessitate, at the least, a joint administration by both respondent
and Emilio III of their grandmothers, Cristinas, estate.

4. Contrary to the RTCs finding, respondent is as much competent as

Emilio III to administer and manage the subject estate for she possesses
none of the disqualifications specified in Section 1,17 Rule 78 of the Rules
of Court.

In the case of Uy v. Court of Appeals,21 we upheld the appointment by the

trial court of a co-administration between the decedents son and the
decedents brother, who was likewise a creditor of the decedents estate. In
the same vein, we declared in Delgado Vda. de De la Rosa v. Heirs of
Marciana Rustia Vda. de Damian22 that:

The pivotal issue in this case turns on who, as between Emilio III and
respondent, is better qualified to act as administrator of the decedents
estate.
We cannot subscribe to the appellate courts ruling excluding Emilio III in
the administration of the decedents undivided estate. Mistakenly, the CA
glosses over several undisputed facts and circumstances:
1. The underlying philosophy of our law on intestate succession is to give
preference to the wishes and presumed will of the decedent, absent a valid
and effective will;

[i]n the appointment of an administrator, the principal consideration is the

interest in the estate of the one to be appointed. The order of preference
does not rule out the appointment of co-administrators, specially in cases
where justice and equity demand that opposing parties or factions be
represented in the management of the estates, a situation which obtains
here.
Similarly, the subject estate in this case calls to the succession other
putative heirs, including another illegitimate grandchild of Cristina and
Federico, Nenita Taedo, but who was likewise adopted by Federico, and
the two (2) siblings of respondent Isabel, Margarita and Emilio II. In all,

considering the conflicting claims of the putative heirs, and the

unliquidated conjugal partnership of Cristina and Federico which forms
part of their respective estates, we are impelled to move in only one
direction, i.e., joint administration of the subject estate.
One final note. Counsel for petitioner meticulously argues that Article 992
of the Civil Code, the successional bar between the legitimate and
illegitimate relatives of a decedent, does not apply in this instance where
facts indubitably demonstrate the contrary Emilio III, an illegitimate
grandchild of the decedent, was actually treated by the decedent and her
husband as their own son, reared from infancy, educated and trained in
their businesses, and eventually legally adopted by decedents husband,
the original oppositor to respondents petition for letters of administration.
We are not unmindful of the critiques of civilists of a conflict and a lacuna
in the law concerning the bone of contention that is Article 992 of the Civil
Code, beginning with the eminent Justice J.B.L. Reyes:
In the Spanish Civil Code of 1889 the right of representation was admitted
only within the legitimate family; so much so that Article 943 of that Code
prescribed that an illegitimate child can not inherit ab intestato from the
legitimate children and relatives of his father and mother. The Civil Code of
the Philippines apparently adhered to this principle since it reproduced
Article 943 of the Spanish Code in its own Art. 992, but with fine
inconsistency, in subsequent articles (990, 995 and 998) our Code allows
the hereditary portion of the illegitimate child to pass to his own
descendants, whether legitimate or illegitimate. So that while Art. 992
prevents the illegitimate issue of a legitimate child from representing him in
the intestate succession of the grandparent, the illegitimates of an
illegitimate child can now do so. This difference being indefensible and
unwarranted, in the future revision of the Civil Code we shall have to make
a choice and decide either that the illegitimate issue enjoys in all cases the
right of representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 995 and 998. The first
solution would be more in accord with an enlightened attitude vis--vis
illegitimate children.23
Manresa explains the basis for the rules on intestate succession:
The law [of intestacy] is founded on the presumed will of the deceased
Love, it is said, first descends, then ascends, and, finally, spreads
sideways. Thus, the law first calls the descendants, then the ascendants,
and finally the collaterals, always preferring those closer in degree to those
of remoter degrees, on the assumption that the deceased would have
done so had he manifested his last will Lastly, in default of anyone called
to succession or bound to the decedent by ties of blood or affection, it is in
accordance with his presumed will that his property be given to charitable
or educational institutions, and thus contribute to the welfare of
humanity.24
Indeed, the factual antecedents of this case accurately reflect the basis of
intestate succession, i.e., love first descends, for the decedent, Cristina,
did not distinguish between her legitimate and illegitimate grandchildren.
Neither did her husband, Federico, who, in fact, legally raised the status of
Emilio III from an illegitimate grandchild to that of a legitimate child. The
peculiar circumstances of this case, painstakingly pointed out by counsel
for petitioner, overthrow the legal presumption in Article 992 of the Civil
Code that there exist animosity and antagonism between legitimate and
illegitimate descendants of a deceased.
Nonetheless, it must be pointed out that judicial restraint impels us to
refrain from making a final declaration of heirship and distributing the
presumptive shares of the parties in the estates of Cristina and Federico,
considering that the question on who will administer the properties of the
long deceased couple has yet to be settled.
Our holding in Capistrano v. Nadurata25 on the same issue remains good
law:
[T]he declaration of heirs made by the lower court is premature, although
the evidence sufficiently shows who are entitled to succeed the deceased.
The estate had hardly been judicially opened, and the proceeding has not
as yet reached the stage of distribution of the estate which must come
after the inheritance is liquidated.
Section 1, Rule 90 of the Rules of Court does not depart from the
foregoing admonition:
Sec. 1. When order for distribution of residue is made. x x x. If there is a
controversy before the court as to who are the lawful heirs of the deceased

person or as to the distributive shares to which each person is entitled

under the law, the controversy shall be heard and decided as in ordinary
cases.
No distribution shall be allowed until the payment of the obligations above
mentioned has been made or provided for, unless the distributees, or any
of them, give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court directs.
WHEREFORE, the petition is GRANTED.

OCAMPO vs. OCAMPO

G.R. No. 187879
July 5, 2010
NACHURA, J.:

Petitioners Dalisay E. Ocampo (Dalisay), Vince E. Ocampo (Vince),

Melinda Carla E. Ocampo (Melinda), and Leonardo E. Ocampo, Jr.
(Leonardo, Jr.) are the surviving wife and the children of Leonardo
Ocampo (Leonardo), who died on January 23, 2004. Leonardo and his
siblings, respondents Renato M. Ocampo (Renato) and Erlinda M.
Ocampo (Erlinda) are the legitimate children and only heirs of the spouses
Vicente and Maxima Ocampo, who died intestate on December 19, 1972
and February 19, 1996, respectively. Vicente and Maxima left several
properties, mostly situated in Bian, Laguna. Vicente and Maxima left no
will and no debts.
On June 24, 2004, five (5) months after the death of Leonardo, petitioners
initiated a petition for intestate proceedings, entitled In Re: Intestate
Proceedings of the Estate of Sps. Vicente Ocampo and Maxima Mercado
Ocampo, and Leonardo M. Ocampo, in the RTC, Branch 24, Bian, Laguna,
docketed as Spec. Proc. No. B-3089.[5] The petition alleged that, upon the
death of Vicente and Maxima, respondents and their brother Leonardo
jointly controlled, managed, and administered the estate of their parents.
Under such circumstance, Leonardo had been receiving his share
consisting of one-third (1/3) of the total income generated from the
properties of the estate. However, when Leonardo died, respondents took
possession, control and management of the properties to the exclusion of
petitioners. The petition prayed for the settlement of the estate of Vicente
and Maxima and the estate of Leonardo. It, likewise, prayed for the
appointment of an administrator to apportion, divide, and award the two
estates among the lawful heirs of the decedents.
Respondents filed their Opposition and Counter-Petition dated October 7,
2004,[6] contending that the petition was defective as it sought the judicial
settlement of two estates in a single proceeding. They argued that the
settlement of the estate of Leonardo was premature, the same being
dependent only upon the determination of his hereditary rights in the
settlement of his parents estate. In their counter-petition, respondents
prayed that they be appointed as special joint administrators of the estate
of Vicente and Maxima.
In an Order dated March 4, 2005,[7] the RTC denied respondents
opposition to the settlement proceedings but admitted their counterpetition. The trial court also clarified that the judicial settlement referred
only to the properties of Vicente and Maxima.

Through a Motion for Appointment of Joint Special Administrators dated

October 11, 2005,[8] respondents reiterated their prayer for appointment
as special joint administrators of the estate, and to serve as such without
posting a bond.
In their Comment dated November 3, 2005,[9] petitioners argued that,
since April 2002, they had been deprived of their fair share of the income
of the estate, and that the appointment of respondents as special joint
administrators would further cause injustice to them. Thus, they prayed
that, in order to avoid further delay, letters of administration to serve as
joint administrators of the subject estate be issued to respondents and
Dalisay.
In another Motion for Appointment of a Special Administrator dated
December 5, 2005,[10] petitioners nominated the Bian Rural Bank to serve
as special administrator pending resolution of the motion for the issuance
of the letters of administration.
In its June 15, 2006 Order,[11] the RTC appointed Dalisay and Renato as
special joint administrators of the estate of the deceased spouses, and
required them to post a bond of P200,000.00 each.[12]
Respondents filed a Motion for Reconsideration dated August 1, 2006[13]
of the Order, insisting that Dalisay was incompetent and unfit to be
appointed as administrator of the estate, considering that she even failed
to take care of her husband Leonardo when he was paralyzed in 1997.
They also contended that petitioners prayer for Dalisays appointment as
special administrator was already deemed abandoned upon their
nomination of the Bian Rural Bank to act as special administrator of the
estate.
In their Supplement to the Motion for Reconsideration,[14] respondents
asserted their priority in right to be appointed as administrators being the
next of kin of Vicente and Maxima, whereas Dalisay was a mere daughter-

in-law of the decedents and not even a legal heir by right of representation
from her late husband Leonardo.
Pending the resolution of the Motion for Reconsideration, petitioners filed a
Motion to Submit Inventory and Accounting dated November 20, 2006,[15]
praying that the RTC issue an order directing respondents to submit a true
inventory of the estate of the decedent spouses and to render an
accounting thereof from the time they took over the collection of the
income of the estate.
Respondents filed their Comment and Manifestation dated January 15,
2007,[16] claiming that they could not yet be compelled to submit an
inventory and render an accounting of the income and assets of the estate
inasmuch as there was still a pending motion for reconsideration of the
June 15, 2006 Order appointing Dalisay as co-special administratrix with
Renato.
In its Order dated February 16, 2007, the RTC revoked the appointment of
Dalisay as co-special administratrix, substituting her with Erlinda. The RTC
took into consideration the fact that respondents were the nearest of kin of
Vicente and Maxima. Petitioners did not contest this Order and even
manifested in open court their desire for the speedy settlement of the
estate.
On April 23, 2007, or two (2) months after respondents appointment as
joint special administrators, petitioners filed a Motion for an Inventory and
to Render Account of the Estate,[17] reiterating their stance that
respondents, as joint special administrators, should be directed to submit a
true inventory of the income and assets of the estate.
Respondents then filed a Motion for Exemption to File Administrators
Bond[18] on May 22, 2007, praying that they be allowed to enter their
duties as special administrators without the need to file an administrators
bond due to their difficulty in raising the necessary amount. They alleged
that, since petitioners manifested in open court that they no longer object
to the appointment of respondents as special co-administrators, it would
be to the best interest of all the heirs that the estate be spared from
incurring unnecessary expenses in paying for the bond premiums. They
also assured the RTC that they would faithfully exercise their duties as
special administrators under pain of contempt should they violate any
undertaking in the performance of the trust of their office.
In an Order dated June 29, 2007,[19] the RTC directed the parties to
submit their respective comments or oppositions to the pending incidents,
i.e., petitioners Motion for Inventory and to Render Account, and
respondents Motion for Exemption to File Administrators Bond.
Respondents filed their Comment and/or Opposition,[20] stating that they
have already filed a comment on petitioners Motion for Inventory and to
Render Account. They asserted that the RTC should, in the meantime,
hold in abeyance the resolution of this Motion, pending the resolution of
their Motion for Exemption to File Administrators Bond.
On October 15, 2007, or eight (8) months after the February 16, 2007
Order appointing respondents as special joint administrators, petitioners
filed a Motion to Terminate or Revoke the Special Administration and to
Proceed to Judicial Partition or Appointment of Regular Administrator.[21]
Petitioners contended that the special administration was not necessary as
the estate is neither vast nor complex, the properties of the estate being
identified and undisputed, and not involved in any litigation necessitating
the representation of special administrators. Petitioners, likewise,
contended that respondents had been resorting to the mode of special
administration merely to delay and prolong their deprivation of what was
due them. Petitioners cited an alleged fraudulent sale by respondents of a
real property for P2,700,000.00, which the latter represented to petitioners
to have been sold only for P1,500,000.00, and respondents alleged
misrepresentation that petitioners owed the estate for the advances to
cover the hospital expenses of Leonardo, but, in fact, were not yet paid.
Respondents filed their Opposition and Comment[22] on March 10, 2008,
to which, in turn, petitioners filed their Reply to Opposition/Comment[23]
on March 17, 2008.
In its Order dated March 13, 2008,[24] the RTC granted petitioners Motion,
revoking and terminating the appointment of Renato and Erlinda as joint
special administrators, on account of their failure to comply with its Order,
particularly the posting of the required bond, and to enter their duties and

responsibilities as special administrators, i.e., the submission of an

inventory of the properties and of an income statement of the estate. The
RTC also appointed Melinda as regular administratrix, subject to the
posting of a bond in the amount of P200,000.00, and directed her to
submit an inventory of the properties and an income statement of the
subject estate. The RTC likewise found that judicial partition may proceed
after Melinda had assumed her duties and responsibilities as regular
administratrix.
Aggrieved, respondents filed a petition for certiorari[25] under Rule 65 of
the Rules of Court before the CA, ascribing grave abuse of discretion on
the part of the RTC in (a) declaring them to have failed to enter the office
of special administration despite lapse of reasonable time, when in truth
they had not entered the office because they were waiting for the
resolution of their motion for exemption from bond; (b) appointing Melinda
as regular administratrix, a mere granddaughter of Vicente and Maxima,
instead of them who, being the surviving children of the deceased
spouses, were the next of kin; and (c) declaring them to have been
unsuitable for the trust, despite lack of hearing and evidence against them.
Petitioners filed their Comment to the Petition and Opposition to
Application for temporary restraining order and/or writ of preliminary
injunction,[26] reiterating their arguments in their Motion for the revocation
of respondents appointment as joint special administrators. Respondents
filed their Reply.[27]
On December 16, 2008, the CA rendered its assailed Decision granting the
petition based on the finding that the RTC gravely abused its discretion in
revoking respondents appointment as joint special administrators without
first ruling on their motion for exemption from bond, and for appointing
Melinda as regular administratrix without conducting a formal hearing to
determine her competency to assume as such. According to the CA, the
posting of the bond is a prerequisite before respondents could enter their
duties and responsibilities as joint special administrators, particularly their
submission of an inventory of the properties of the estate and an income
statement thereon.
Petitioners filed a Motion for Reconsideration of the Decision.[28] The CA,
however, denied it. Hence, this petition, ascribing to the CA errors of law
and grave abuse of discretion for annulling and setting aside the RTC
Order dated March 13, 2008.
Our Ruling
The pertinent provisions relative to the special administration of the
decedents estate under the Rules of Court provide
Sec. 1. Appointment of special administrator. When there is delay in
granting letters testamentary or of administration by any cause including
an appeal from the allowance or disallowance of a will, the court may
appoint a special administrator to take possession and charge of the
estate of the deceased until the questions causing the delay are decided
and executors or administrators appointed.[29]
Sec. 2. Powers and duties of special administrator. Such special
administrator shall take possession and charge of goods, chattels, rights,
credits, and estate of the deceased and preserve the same for the
executor or administrator afterwards appointed, and for that purpose may
commence and maintain suits as administrator. He may sell only such
perishable and other property as the court orders sold. A special
administrator shall not be liable to pay any debts of the deceased unless
so ordered by the court.[30]
Sec. 1. Bond to be given before issuance of letters; Amount; Conditions.
Before an executor or administrator enters upon the execution of his trust,
and letters testamentary or of administration issue, he shall give a bond, in
such sum as the court directs, conditioned as follows:
(a) To make and return to the court, within three (3) months, a true and
complete inventory of all goods, chattels, rights, credits, and estate of the
deceased which shall come to his possession or knowledge or to the
possession of any other person for him;
(b) To administer according to these rules, and, if an executor, according to
the will of the testator, all goods, chattels, rights, credits, and estate which
shall at any time come to his possession or to the possession of any other

person for him, and from the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such dividends thereon as shall be
decreed by the court;
(c) To render a true and just account of his administration to the court
within one (1) year, and at any other time when required by the court;
(d) To perform all orders of the court by him to be performed.[31]
Sec. 4. Bond of special administrator. A special administrator before
entering upon the duties of his trust shall give a bond, in such sum as the
court directs, conditioned that he will make and return a true inventory of
the goods, chattels, rights, credits, and estate of the deceased which come
to his possession or knowledge, and that he will truly account for such as
are received by him when required by the court, and will deliver the same
to the person appointed executor or administrator, or to such other person
as may be authorized to receive them.[32]

Inasmuch as there was a disagreement as to who should be appointed as

administrator of the estate of Vicente and Maxima, the RTC, acting as a
probate court, deemed it wise to appoint joint special administrators
pending the determination of the person or persons to whom letters of
administration may be issued. The RTC was justified in doing so
considering that such disagreement caused undue delay in the issuance of
letters of administration, pursuant to Section 1 of Rule 80 of the Rules of
Court. Initially, the RTC, on June 15, 2006, appointed Renato and Dalisay
as joint special administrators, imposing upon each of them the obligation
to post an administrators bond of P200,000.00. However, taking into
account the arguments of respondents that Dalisay was incompetent and
unfit to assume the office of a special administratrix and that Dalisay, in
effect, waived her appointment when petitioners nominated Bian Rural
Bank as special administrator, the RTC, on February 16, 2007, revoked
Dalisays appointment and substituted her with Erlinda.
A special administrator is an officer of the court who is subject to its
supervision and control, expected to work for the best interest of the entire
estate, with a view to its smooth administration and speedy settlement.[33]
When appointed, he or she is not regarded as an agent or representative
of the parties suggesting the appointment.[34] The principal object of the
appointment of a temporary administrator is to preserve the estate until it
can pass to the hands of a person fully authorized to administer it for the
benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules
of Court.[35]
While the RTC considered that respondents were the nearest of kin to their
deceased parents in their appointment as joint special administrators, this
is not a mandatory requirement for the appointment. It has long been
settled that the selection or removal of special administrators is not
governed by the rules regarding the selection or removal of regular
administrators.[36] The probate court may appoint or remove special
administrators based on grounds other than those enumerated in the
Rules at its discretion, such that the need to first pass upon and resolve
the issues of fitness or unfitness[37] and the application of the order of
preference under Section 6 of Rule 78,[38] as would be proper in the case
of a regular administrator, do not obtain. As long as the discretion is
exercised without grave abuse, and is based on reason, equity, justice,
and legal principles, interference by higher courts is unwarranted.[39] The
appointment or removal
of special administrators, being discretionary, is thus interlocutory and may
be assailed through a petition for certiorari under Rule 65 of the Rules of
Court.[40]
Granting the certiorari petition, the CA found that the RTC gravely abused
its discretion in revoking respondents appointment as joint special
administrators, and for failing to first resolve the pending Motion for
Exemption to File Administrators Bond, ratiocinating that the posting of the
administrators bond is a pre-requisite to respondents entering into the
duties and responsibilities of their designated office. This Court disagrees.
It is worthy of mention that, as early as October 11, 2005, in their Motion
for Appointment as Joint Special Administrators, respondents already
prayed for their exemption to post bond should they be assigned as joint
special administrators. However, the RTC effectively denied this prayer
when it issued its June 15, 2006 Order, designating Renato and Dalisay as
special administrators and enjoining them to post bond in the amount of
P200,000.00 each. This denial was, in effect, reiterated when the RTC
rendered its February 16, 2007 Order substituting Dalisay with Erlinda as
special administratrix.

Undeterred by the RTCs resolve to require them to post their respective

administrators bonds, respondents filed anew a Motion for Exemption to
File Administrators Bond on May 22, 2007, positing that it would be to the
best interest of the estate of their deceased parents and all the heirs to
spare the estate from incurring the unnecessary expense of paying for
their bond premiums since they could not raise the money themselves. To
note, this Motion was filed only after petitioners filed a Motion for an
Inventory and to Render Account of the Estate on April 23, 2007.
Respondents then argued that they could not enter into their duties and
responsibilities as special administrators in light of the pendency of their
motion for exemption. In other words, they could not yet submit an
inventory and render an account of the income of the estate since they had
not yet posted their bonds.
Consequently, the RTC revoked respondents appointment as special
administrators for failing to post their administrators bond and to submit an
inventory and accounting as required of them, tantamount to failing to
comply with its lawful orders. Inarguably, this was, again, a denial of
respondents plea to assume their office sans a bond. The RTC rightly did
so.
Pursuant to Section 1 of Rule 81, the bond secures the performance of the
duties and obligations of an administrator namely: (1) to administer the
estate and pay the debts; (2) to perform all judicial orders; (3) to account
within one (1) year and at any other time when required by the probate
court; and (4) to make an inventory within three (3) months. More
specifically, per Section 4 of the same Rule, the bond is conditioned on the
faithful execution of the administration of the decedents estate requiring
the special administrator to (1) make and return a true inventory of the
goods, chattels, rights, credits, and estate of the deceased which come to
his possession or knowledge; (2) truly account for such as received by him
when required by the court; and (3) deliver the same to the person
appointed as executor or regular administrator, or to such other person as
may be authorized to receive them.
Verily, the administration bond is for the benefit of the creditors and the
heirs, as it compels the administrator, whether regular or special, to
perform the trust reposed in, and discharge the obligations incumbent
upon, him. Its object and purpose is to safeguard the properties of the
decedent, and, therefore, the bond should not be considered as part of the
necessary expenses chargeable against the estate, not being included
among the acts constituting the care, management, and settlement of the
estate. Moreover, the ability to post the bond is in the nature of a
qualification for the office of administration.[41]
Hence, the RTC revoked respondents designation as joint special
administrators, especially considering that respondents never denied that
they have been in possession, charge, and actual administration of the
estate of Vicente and Maxima since 2002 up to the present, despite the
assumption of Melinda as regular administratrix. In fact, respondents also
admitted that, allegedly out of good faith and sincerity to observe
transparency, they had submitted a Statement of Cash Distribution[42] for
the period covering April 2002 to June 2006,[43] where they indicated that
Renato had received P4,241,676.00, Erlinda P4,164,526.96, and
petitioners P2,486,656.60, and that the estate had advanced
P2,700,000.00 for the hospital and funeral expenses of Leonardo.[44] The
latter cash advance was questioned by petitioners in their motion for
revocation of special administration on account of the demand letter[45]
dated June 20, 2007 of Asian Hospital and Medical Center addressed to
Dalisay, stating that there still remained unpaid hospital bills in the amount
of P2,087,380.49 since January 2004. Undeniably, respondents had
already been distributing the incomes or fruits generated from the
properties of the decedents estate, yet they still failed to post their
respective administrators bonds despite collection of the advances from
their supposed shares. This state of affairs continued even after a
considerable lapse of time from the appointment of Renato as a special
administrator of the estate on June 15, 2006 and from February 16, 2007
when the RTC substituted Erlinda, for Dalisay, as special administratrix.
What is more, respondents insincerity in administering the estate was
betrayed by the Deed of Conditional Sale dated January 12, 2004[46]
discovered by petitioners. This Deed was executed between respondents,
as the only heirs of Maxima, as vendors, thus excluding the representing
heirs of Leonardo, and Spouses Marcus Jose B. Brillantes and Amelita
Catalan-Brillantes, incumbent lessors, as vendees, over a real property
situated in Bian, Laguna, and covered by Transfer Certificate of Title No. T332305 of the Registry of Deeds of Laguna, for a total purchase price of

P2,700,000.00. The Deed stipulated for a payment of P1,500,000.00 upon

the signing of the contract, and the balance of P1,200,000.00 to be paid
within one (1) month from the receipt of title of the vendees. The contract
also stated that the previous contract of lease between the vendors and
the vendees shall no longer be effective; hence, the vendees were no
longer obligated to pay the monthly rentals on the property. And yet there
is a purported Deed of Absolute Sale[47] over the same realty between
respondents, and including Leonardo as represented by Dalisay, as
vendors, and the same spouses, as vendees, for a purchase price of only
P1,500,000.00. Notably, this Deed of Absolute Sale already had the
signatures of respondents and vendee-spouses. Petitioners claimed that
respondents were coaxing Dalisay into signing the same, while
respondents said that Dalisay already got a share from this transaction in
the amount of P500,000.00. It may also be observed that the time of the
execution of this Deed of Absolute Sale, although not notarized as the
Deed of Conditional Sale, might not have been distant from the execution
of the latter Deed, considering the similar Community Tax Certificate
Numbers of the parties appearing in both contracts.
Given these circumstances, this Court finds no grave abuse of discretion
on the part of the RTC when it revoked the appointment of respondents as
joint special administrators, the removal being grounded on reason, equity,
justice, and legal principle. Indeed, even if special administrators had
already been appointed, once the probate court finds the appointees no
longer entitled to its confidence, it is justified in withdrawing the
appointment and giving no valid effect thereto.[48]
On the other hand, the Court finds the RTCs designation of Melinda as
regular administratrix improper and abusive of its discretion.
In the determination of the person to be appointed as regular administrator,
the following provisions of Rule 78 of the Rules of Court, state
Sec. 1. Who are incompetent to serve as executors or administrators. No
person is competent to serve as executor or administrator who:
(a)

Is a minor;

(b) Is not a resident of the Philippines; and

(c) Is in the opinion of the court unfit to execute the duties of the trust by
reason of drunkenness, improvidence, or want of understanding or
integrity, or by reason of conviction of an offense involving moral turpitude.
xxxx
Sec. 6. When and to whom letters of administration granted. If no executor
is named in the will, or the executor or executors are incompetent, refuse
the trust, or fail to give bond, or a person dies intestate, administration
shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or
both, in the discretion of the court, or to such person as such surviving
husband or wife, or next of kin, requests to have appointed, if competent
and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or
the person selected by them, be incompetent or unwilling, or if the
husband or widow, or next of kin, neglects for thirty (30) days after the
death of the person to apply for administration or to request that
administration be granted to some other person, it may be granted to one
or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be
granted to such other person as the court may select.

Further, on the matter of contest for the issuance of letters of

administration, the following provisions of Rule 79 are pertinent
Sec. 2. Contents of petition for letters of administration. A petition for letters
of administration must be filed by an interested person and must show, so
far as known to the petitioner:

(a)

The jurisdictional facts;

(b)
The names, ages, and residences of the heirs, and the names
and residences of the creditors, of the decedent;
(c)

The probable value and character of the property of the estate;

(d)
prayed.

The name of the person for whom letters of administration are

But no defect in the petition shall render void the issuance of letters of
administration.
Sec. 3. Court to set time for hearing. Notice thereof. When a petition for
letters of administration is filed in the court having jurisdiction, such court
shall fix a time and place for hearing the petition, and shall cause notice
thereof to be given to the known heirs and creditors of the decedent, and
to any other persons believed to have an interest in the estate, in the
manner provided in Sections 3 and 4 of Rule 76.
Sec. 4. Opposition to petition for administration. Any interested person
may, by filing a written opposition, contest the petition on the ground of the
incompetency of the person for whom letters are prayed therein, or on the
ground of the contestants own right to the administration, and may pray
that letters issue to himself, or to any competent person or persons named
in the opposition.
Sec. 5. Hearing and order for letters to issue. At the hearing of the petition,
it must first be shown that notice has been given as herein-above required,
and thereafter the court shall hear the proofs of the parties in support of
their respective allegations, and if satisfied that the decedent left no will, or
that there is no competent and willing executor, it shall order the issuance
of letters of administration to the party best entitled thereto.

Admittedly, there was no petition for letters of administration with respect

to Melinda, as the prayer for her appointment as co-administrator was
embodied in the motion for the termination of the special administration.
Although there was a hearing set for the motion on November 5, 2007, the
same was canceled and reset to February 8, 2008 due to the absence of
the parties counsels. The February 8, 2008 hearing was again deferred to
March 10, 2008 on account of the ongoing renovation of the Hall of
Justice. Despite the resetting, petitioners filed a Manifestation/Motion
dated February 29, 2008,[49] reiterating their prayer for partition or for the
appointment of Melinda as regular administrator and for the revocation of
the special administration. It may be mentioned that, despite the filing by
respondents of their Opposition and Comment to the motion to revoke the
special administration, the prayer for the appointment of Melinda as
regular administratrix of the estate was not specifically traversed in the
said pleading. Thus, the capacity, competency, and legality of Melindas
appointment as such was not properly objected to by respondents despite
being the next of kin to the decedent spouses, and was not threshed out
by the RTC acting as a probate court in accordance with the above
mentioned Rules.
However, having in mind the objective of facilitating the settlement of the
estate of Vicente and Maxima, with a view to putting an end to the
squabbles of the heirs, we take into account the fact that Melinda,
pursuant to the RTC Order dated March 13, 2008, already posted the
required bond of P200,000.00 on March 26, 2008, by virtue of which,
Letters of Administration were issued to her the following day, and that she
filed an Inventory of the Properties of the Estate dated April 15, 2008.[50]
These acts clearly manifested her intention to serve willingly as
administratrix of the decedents estate, but her appointment should be
converted into one of special administration, pending the proceedings for
regular administration. Furthermore, since it appears that the only unpaid
obligation is the hospital bill due from Leonardos estate, which is not
subject of this case, judicial partition may then proceed with dispatch.
WHEREFORE, the petition is PARTIALLY GRANTED.

BOSTON EQUITY RESOURCES v. COURT OF APPEALS

G.R. No. 173946 June 19, 2013
PEREZ, J.:
On 24 December 1997, petitioner filed a complaint for sum of money with
a prayer for the issuance of a writ of preliminary attachment against the
spouses Manuel and Lolita Toledo.6 Herein respondent filed an Answer
dated 19 March 1998 but on 7 May 1998, she filed a Motion for Leave to
Admit Amended Answer7 in which she alleged, among others, that her
husband and co-defendant, Manuel Toledo (Manuel), is already dead.8
The death certificate9 of Manuel states "13 July 1995" as the date of
death. As a result, petitioner filed a motion, dated 5 August 1999, to require
respondent to disclose the heirs of Manuel.10 In compliance with the
verbal order of the court during the 11 October 1999 hearing of the case,
respondent submitted the required names and addresses of the heirs.11
Petitioner then filed a Motion for Substitution,12 dated 18 January 2000,
praying that Manuel be substituted by his children as party-defendants. It
appears that this motion was granted by the trial court in an Order dated 9
October 2000.13
Pre-trial thereafter ensued and on 18 July 2001, the trial court issued its
pre-trial order containing, among others, the dates of hearing of the
case.14
The trial of the case then proceeded. Herein petitioner, as plaintiff,
presented its evidence and its exhibits were thereafter admitted.
On 26 May 2004, the reception of evidence for herein respondent was
cancelled upon agreement of the parties. On 24 September 2004, counsel
for herein respondent was given a period of fifteen days within which to file
a demurrer to evidence.15 However, on 7 October 2004, respondent
instead filed a motion to dismiss the complaint, citing the following as
grounds: (1) that the complaint failed to implead an indispensable party or
a real party in interest; hence, the case must be dismissed for failure to
state a cause of action; (2) that the trial court did not acquire jurisdiction
over the person of Manuel pursuant to Section 5, Rule 86 of the Revised
Rules of Court; (3) that the trial court erred in ordering the substitution of
the deceased Manuel by his heirs; and (4) that the court must also dismiss
the case against Lolita Toledo in accordance with Section 6, Rule 86 of the
Rules of Court.16
The trial court, in an Order dated 8 November 2004, denied the motion to
dismiss for having been filed out of time, citing Section 1, Rule 16 of the
1997 Rules of Court which states that: "[W]ithin the time for but before
filing the answer to the complaint or pleading asserting a claim, a motion to
dismiss may be made x x x."17 Respondents motion for reconsideration of
the order of denial was likewise denied on the ground that "defendants
attack on the jurisdiction of this Court is now barred by estoppel by laches"
since respondent failed to raise the issue despite several chances to do
so.18
Aggrieved, respondent filed a petition for certiorari with the Court of
Appeals alleging that the trial court seriously erred and gravely abused its
discretion in denying her motion to dismiss despite discovery, during the
trial of the case, of evidence that would constitute a ground for dismissal of
the case.19
The Court of Appeals granted the petition based on the following
grounds:cralavvonlinelawlibrary
It is elementary that courts acquire jurisdiction over the person of the
defendant x x x only when the latter voluntarily appeared or submitted to
the court or by coercive process issued by the court to him, x x x. In this
case, it is undisputed that when [petitioner] Boston filed the complaint on
December 24, 1997, defendant Manuel S. Toledo was already dead, x x x.
Such being the case, the court a quo could not have acquired jurisdiction
over the person of defendant Manuel S. Toledo.
x x x the court a quos denial of [respondents] motion to dismiss was
based on its finding that [respondents] attack on the jurisdiction of the
court was already barred by laches as [respondent] failed to raise the said
ground in its [sic] amended answer and during the pre-trial, despite her
active participation in the proceedings.
However, x x x it is well-settled that issue on jurisdiction may be raised at
any stage of the proceeding, even for the first time on appeal. By timely
raising the issue on jurisdiction in her motion to dismiss x x x [respondent]
is not estopped [from] raising the question on jurisdiction. Moreover, when
issue on jurisdiction was raised by [respondent], the court a quo had not
yet decided the case, hence, there is no basis for the court a quo to invoke

estoppel
to
justify
its
denial
reconsideration;chanroblesvirtualawlibrary

of

the

motion

for

It should be stressed that when the complaint was filed, defendant Manuel
S. Toledo was already dead. The complaint should have impleaded the
estate of Manuel S. Toledo as defendant, not only the wife, considering
that the estate of Manuel S. Toledo is an indispensable party, which stands
to be benefited or be injured in the outcome of the case. x x x
xxxx
[Respondents] motion to dismiss the complaint should have been granted
by public respondent judge as the same was in order. Considering that the
obligation of Manuel S. Toledo is solidary with another debtor, x x x, the
claim x x x should be filed against the estate of Manuel S. Toledo, in
conformity with the provision of Section 6, Rule 86 of the Rules of Court, x
x x.20
The Court of Appeals denied petitioners motion for reconsideration.
Hence, this petition.
The Issues
Petitioner claims that the Court of Appeals erred in not holding
that:cralavvonlinelawlibrary
Respondent is already estopped from questioning the trial courts
jurisdiction;chanroblesvirtualawlibrary
Petitioner never failed to implead an indispensable party as the estate of
Manuel is not an indispensable party;chanroblesvirtualawlibrary
The inclusion of Manuel as party-defendant is a mere misjoinder of party
not warranting the dismissal of the case before the lower court; and
Since the estate of Manuel is not an indispensable party, it is not
necessary that petitioner file its claim against the estate of Manuel.
In essence, what is at issue here is the correctness of the trial courts
orders denying respondents motion to dismiss.
The Ruling of the Court
We find merit in the petition.
Motion to dismiss filed out of time
To begin with, the Court of Appeals erred in granting the writ of certiorari in
favor of respondent. Well settled is the rule that the special civil action for
certiorari is not the proper remedy to assail the denial by the trial court of a
motion to dismiss. The order of the trial court denying a motion to dismiss
is merely interlocutory, as it neither terminates nor finally disposes of a
case and still leaves something to be done by the court before a case is
finally decided on the merits.21 Therefore, "the proper remedy in such a
case is to appeal after a decision has been rendered."22
As the Supreme Court held in Indiana Aerospace University v. Comm. on
Higher Education:23
A writ of certiorari is not intended to correct every controversial
interlocutory ruling; it is resorted only to correct a grave abuse of discretion
or a whimsical exercise of judgment equivalent to lack of jurisdiction. Its
function is limited to keeping an inferior court within its jurisdiction and to
relieve persons from arbitrary acts acts which courts or judges have no
power or authority in law to perform. It is not designed to correct erroneous
findings and conclusions made by the courts. (Emphasis supplied)
Even assuming that certiorari is the proper remedy, the trial court did not
commit grave abuse of discretion in denying respondents motion to
dismiss. It, in fact, acted correctly when it issued the questioned orders as
respondents motion to dismiss was filed SIX YEARS AND FIVE MONTHS
AFTER SHE FILED HER AMENDED ANSWER. This circumstance alone
already warranted the outright dismissal of the motion for having been filed
in clear contravention of the express mandate of Section 1, Rule 16, of the
Revised Rules of Court. Under this provision, a motion to dismiss shall be
filed within the time for but before the filing of an answer to the complaint
or pleading asserting a claim.24

More importantly, respondents motion to dismiss was filed after petitioner

has completed the presentation of its evidence in the trial court,25 giving
credence to petitioners and the trial courts conclusion that the filing of the
motion to dismiss was a mere ploy on the part of respondent to delay the
prompt resolution of the case against her.
Also worth mentioning is the fact that respondents motion to dismiss
under consideration herein is not the first motion to dismiss she filed in the
trial court. It appears that she had filed an earlier motion to dismiss26 on
the sole ground of the unenforceability of petitioners claim under the
Statute of Frauds, which motion was denied by the trial court. More telling
is the following narration of the trial court in its Order denying respondents
motion for reconsideration of the denial of her motion to
dismiss:cralavvonlinelawlibrary
As can be gleaned from the records, with the admission of plaintiffs
exhibits, reception of defendants evidence was set on March 31, and April
23, 2004 x x x . On motion of the defendant[s], the hearing on March 31,
2004 was cancelled.
On April 14, 2004, defendants sought the issuance of subpoena ad
testificandum and duces tecum to one Gina M. Madulid, to appear and
testify for the defendants on April 23, 2004. Reception of defendants
evidence was again deferred to May 26, June 2 and June 30, 2004, x x x.
On May 13, 2004, defendants sought again the issuance of a subpoena
duces tecum and ad testificandum to the said Gina Madulid. On May 26,
2004, reception of defendants [sic] evidence was cancelled upon the
agreement of the parties. On July 28, 2004, in the absence of defendants
witness, hearing was reset to September 24 and October 8, 2004 x x x.
On September 24, 2004, counsel for defendants was given a period of
fifteen (15) days to file a demurrer to evidence. On October 7, 2004,
defendants
filed
instead
a
Motion
to
Dismiss
x
x
x.27nadcralavvonlinelawlibrary
Respondents act of filing multiple motions, such as the first and earlier
motion to dismiss and then the motion to dismiss at issue here, as well as
several motions for postponement, lends credibility to the position taken by
petitioner, which is shared by the trial court, that respondent is deliberately
impeding the early disposition of this case. The filing of the second motion
to dismiss was, therefore, "not only improper but also dilatory."28 Thus, the
trial court, "far from deviating or straying off course from established
jurisprudence on [the] matter, x x x had in fact faithfully observed the law
and legal precedents in this case."29 The Court of Appeals, therefore,
erred not only in entertaining respondents petition for certiorari, it likewise
erred in ruling that the trial court committed grave abuse of discretion when
it denied respondents motion to dismiss.
On whether or not respondent is estopped from
questioning the jurisdiction of the trial court
At the outset, it must be here stated that, as the succeeding discussions
will demonstrate, jurisdiction over the person of Manuel should not be an
issue in this case. A protracted discourse on jurisdiction is, nevertheless,
demanded by the fact that jurisdiction has been raised as an issue from
the lower court, to the Court of Appeals and, finally, before this Court. For
the sake of clarity, and in order to finally settle the controversy and fully
dispose of all the issues in this case, it was deemed imperative to resolve
the issue of jurisdiction.
1. Aspects of Jurisdiction
Petitioner calls attention to the fact that respondents motion to dismiss
questioning the trial courts jurisdiction was filed more than six years after
her amended answer was filed. According to petitioner, respondent had
several opportunities, at various stages of the proceedings, to assail the
trial courts jurisdiction but never did so for six straight years. Citing the
doctrine laid down in the case of Tijam, et al. v. Sibonghanoy, et al.30
petitioner claimed that respondents failure to raise the question of
jurisdiction at an earlier stage bars her from later questioning it, especially
since she actively participated in the proceedings conducted by the trial
court.
Petitioners argument is misplaced, in that, it failed to consider that the
concept of jurisdiction has several aspects, namely: (1) jurisdiction over
the subject matter; (2) jurisdiction over the parties; (3) jurisdiction over the
issues of the case; and (4) in cases involving property, jurisdiction over the
res or the thing which is the subject of the litigation.31

The aspect of jurisdiction which may be barred from being assailed as a

result of estoppel by laches is jurisdiction over the subject matter. Thus, in
Tijam, the case relied upon by petitioner, the issue involved was the
authority of the then Court of First Instance to hear a case for the collection
of a sum of money in the amount of P1,908.00 which amount was, at that
time, within the exclusive original jurisdiction of the municipal courts.
In subsequent cases citing the ruling of the Court in Tijam, what was
likewise at issue was the jurisdiction of the trial court over the subject
matter of the case. Accordingly, in Spouses Gonzaga v. Court of
Appeals,32 the issue for consideration was the authority of the regional
trial court to hear and decide an action for reformation of contract and
damages involving a subdivision lot, it being argued therein that jurisdiction
is vested in the Housing and Land Use Regulatory Board pursuant to PD
957 (The Subdivision and Condominium Buyers Protective Decree). In Lee
v. Presiding Judge, MTC, Legaspi City,33 petitioners argued that the
respondent municipal trial court had no jurisdiction over the complaint for
ejectment because the issue of ownership was raised in the pleadings.
Finally, in People v. Casuga,34 accused-appellant claimed that the crime
of grave slander, of which she was charged, falls within the concurrent
jurisdiction of municipal courts or city courts and the then courts of first
instance, and that the judgment of the court of first instance, to which she
had appealed the municipal court's conviction, should be deemed null and
void for want of jurisdiction as her appeal should have been filed with the
Court of Appeals or the Supreme Court.
In all of these cases, the Supreme Court barred the attack on the
jurisdiction of the respective courts concerned over the subject matter of
the case based on estoppel by laches, declaring that parties cannot be
allowed to belatedly adopt an inconsistent posture by attacking the
jurisdiction of a court to which they submitted their cause voluntarily.35
Here, what respondent was questioning in her motion to dismiss before the
trial court was that courts jurisdiction over the person of defendant
Manuel. Thus, the principle of estoppel by laches finds no application in
this case. Instead, the principles relating to jurisdiction over the person of
the parties are pertinent herein.
The Rules of Court provide:cralavvonlinelawlibrary
RULE 9
EFFECT OF FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
RULE 15
MOTIONS
Sec. 8. Omnibus motion. Subject to the provisions of Section 1 of Rule
9, a motion attacking a pleading, order, judgment, or proceeding shall
include all objections then available, and all objections not so included
shall be deemed waived.
Based on the foregoing provisions, the "objection on jurisdictional grounds
which is not waived even if not alleged in a motion to dismiss or the
answer is lack of jurisdiction over the subject matter. x x x Lack of
jurisdiction over the subject matter can always be raised anytime, even for
the first time on appeal, since jurisdictional issues cannot be waived x x x
subject, however, to the principle of estoppel by laches."36
Since the defense of lack of jurisdiction over the person of a party to a
case is not one of those defenses which are not deemed waived under
Section 1 of Rule 9, such defense must be invoked when an answer or a
motion to dismiss is filed in order to prevent a waiver of the defense.37 If
the objection is not raised either in a motion to dismiss or in the answer,
the objection to the jurisdiction over the person of the plaintiff or the
defendant is deemed waived by virtue of the first sentence of the abovequoted Section 1 of Rule 9 of the Rules of Court.38
The Court of Appeals, therefore, erred when it made a sweeping
pronouncement in its questioned decision, stating that "issue on
jurisdiction may be raised at any stage of the proceeding, even for the first
time on appeal" and that, therefore, respondent timely raised the issue in
her motion to dismiss and is, consequently, not estopped from raising the
question of jurisdiction. As the question of jurisdiction involved here is that

over the person of the defendant Manuel, the same is deemed waived if
not raised in the answer or a motion to dismiss. In any case, respondent
cannot claim the defense since "lack of jurisdiction over the person, being
subject to waiver, is a personal defense which can only be asserted by the
party who can thereby waive it by silence."39
Jurisdiction over the person of a defendant is acquired through a valid
service of summons; trial court did not acquire jurisdiction over the person
of Manuel Toledo
In the first place, jurisdiction over the person of Manuel was never
acquired by the trial court. A defendant is informed of a case against him
when he receives summons. "Summons is a writ by which the defendant is
notified of the action brought against him. Service of such writ is the
means by which the court acquires jurisdiction over his person."40
In the case at bar, the trial court did not acquire jurisdiction over the person
of Manuel since there was no valid service of summons upon him,
precisely because he was already dead even before the complaint against
him and his wife was filed in the trial court. The issues presented in this
case are similar to those in the case of Sarsaba v. Vda. de Te.41
In Sarsaba, the NLRC rendered a decision declaring that Patricio Sereno
was illegally dismissed from employment and ordering the payment of his
monetary claims. To satisfy the claim, a truck in the possession of Serenos
employer was levied upon by a sheriff of the NLRC, accompanied by
Sereno and his lawyer, Rogelio Sarsaba, the petitioner in that case. A
complaint for recovery of motor vehicle and damages, with prayer for the
delivery of the truck pendente lite was eventually filed against Sarsaba,
Sereno, the NLRC sheriff and the NLRC by the registered owner of the
truck. After his motion to dismiss was denied by the trial court, petitioner
Sarsaba filed his answer. Later on, however, he filed an omnibus motion to
dismiss citing, as one of the grounds, lack of jurisdiction over one of the
principal defendants, in view of the fact that Sereno was already dead
when the complaint for recovery of possession was filed.
Although the factual milieu of the present case is not exactly similar to that
of Sarsaba, one of the issues submitted for resolution in both cases is
similar: whether or not a case, where one of the named defendants was
already dead at the time of its filing, should be dismissed so that the claim
may be pursued instead in the proceedings for the settlement of the estate
of the deceased defendant. The petitioner in the Sarsaba Case claimed,
as did respondent herein, that since one of the defendants died before
summons was served on him, the trial court should have dismissed the
complaint against all the defendants and the claim should be filed against
the estate of the deceased defendant. The petitioner in Sarsaba, therefore,
prayed that the complaint be dismissed, not only against Sereno, but as to
all the defendants, considering that the RTC did not acquire jurisdiction
over the person of Sereno.42 This is exactly the same prayer made by
respondent herein in her motion to dismiss.
The Court, in the Sarsaba
wise:cralavvonlinelawlibrary

Case,

resolved

the

issue

in

this

x x x We cannot countenance petitioners argument that the complaint

against the other defendants should have been dismissed, considering
that the RTC never acquired jurisdiction over the person of Sereno. The
courts failure to acquire jurisdiction over ones person is a defense which
is personal to the person claiming it. Obviously, it is now impossible for
Sereno to invoke the same in view of his death. Neither can petitioner
invoke such ground, on behalf of Sereno, so as to reap the benefit of
having the case dismissed against all of the defendants. Failure to serve
summons on Serenos person will not be a cause for the dismissal of the
complaint against the other defendants, considering that they have been
served with copies of the summons and complaints and have long
submitted their respective responsive pleadings. In fact, the other
defendants in the complaint were given the chance to raise all possible
defenses and objections personal to them in their respective motions to
dismiss and their subsequent answers.43 (Emphasis supplied.)
Hence, the Supreme Court affirmed the dismissal by the trial court of the
complaint against Sereno only.
Based on the foregoing pronouncements, there is no basis for dismissing
the complaint against respondent herein. Thus, as already emphasized
above, the trial court correctly denied her motion to dismiss.
On whether or not the estate of Manuel
Toledo is an indispensable party
Rule 3, Section 7 of the 1997 Rules of Court states:cralavvonlinelawlibrary

SEC. 7. Compulsory joinder of indispensable parties. Parties-in-interest

without whom no final determination can be had of an action shall be
joined either as plaintiffs or defendants.
An indispensable party is one who has such an interest in the controversy
or subject matter of a case that a final adjudication cannot be made in his
or her absence, without injuring or affecting that interest. He or she is a
party who has not only an interest in the subject matter of the controversy,
but "an interest of such nature that a final decree cannot be made without
affecting [that] interest or leaving the controversy in such a condition that
its final determination may be wholly inconsistent with equity and good
conscience. It has also been considered that an indispensable party is a
person in whose absence there cannot be a determination between the
parties already before the court which is effective, complete or equitable."
Further, an indispensable party is one who must be included in an action
before it may properly proceed.44
On the other hand, a "person is not an indispensable party if his interest in
the controversy or subject matter is separable from the interest of the other
parties, so that it will not necessarily be directly or injuriously affected by a
decree which does complete justice between them. Also, a person is not
an indispensable party if his presence would merely permit complete relief
between him or her and those already parties to the action, or if he or she
has no interest in the subject matter of the action." It is not a sufficient
reason to declare a person to be an indispensable party simply because
his or her presence will avoid multiple litigations.45
Applying the foregoing pronouncements to the case at bar, it is clear that
the estate of Manuel is not an indispensable party to the collection case,
for the simple reason that the obligation of Manuel and his wife,
respondent herein, is solidary.
The contract between petitioner, on the one hand and respondent and
respondents husband, on the other, states:cralavvonlinelawlibrary
FOR VALUE RECEIVED, I/We jointly and severally46 (in solemn) promise
to pay BOSTON EQUITY RESOURCES, INC. x x x the sum of PESOS:
[ONE MILLION FOUR HUNDRED (P1,400,000.00)] x x x.47
The provisions and stipulations of the contract were then followed by the
respective signatures of respondent as "MAKER" and her husband as
"CO-MAKER."48 Thus, pursuant to Article 1216 of the Civil Code,
petitioner may collect the entire amount of the obligation from respondent
only. The aforementioned provision states: "The creditor may proceed
against any one of the solidary debtors or some or all of them
simultaneously. The demand made against one of them shall not be an
obstacle to those which may subsequently be directed against the others,
so long as the debt has not been fully collected."
In other words, the collection case can proceed and the demands of
petitioner can be satisfied by respondent only, even without impleading the
estate of Manuel. Consequently, the estate of Manuel is not an
indispensable party to petitioners complaint for sum of money.
However, the Court of Appeals, agreeing with the contention of
respondent, held that the claim of petitioner should have been filed against
the estate of Manuel in accordance with Sections 5 and 6 of Rule 86 of the
Rules
of
Court.
The
aforementioned
provisions
provide:cralavvonlinelawlibrary
SEC. 5. Claims which must be filed under the notice. If not filed, barred;
exceptions. All claims for money against the decedent, arising from
contract, express or implied, whether the same be due, not due, or
contingent, all claims for funeral expenses and judgment for money
against the decedent, must be filed within the time limited in the notice;
otherwise, they are barred forever, except that they may be set forth as
counterclaims in any action that the executor or administrator may bring
against the claimants. x x x.
SEC. 6. Solidary obligation of decedent. Where the obligation of the
decedent is solidary with another debtor, the claim shall be filed against
the decedent as if he were the only debtor, without prejudice to the right of
the estate to recover contribution from the other debtor. x x x.
The Court of Appeals erred in its interpretation of the above-quoted
provisions.
In construing Section 6, Rule 87 of the old Rules of Court, the precursor of
Section 6, Rule 86 of the Revised Rules of Court, which latter provision
has been retained in the present Rules of Court without any revisions, the

Supreme Court, in the case of Manila Surety & Fidelity Co., Inc. v.
Villarama, et. al.,49 held:50
Construing Section 698 of the Code of Civil Procedure from whence
[Section 6, Rule 87] was taken, this Court held that where two persons are
bound in solidum for the same debt and one of them dies, the whole
indebtedness can be proved against the estate of the latter, the decedents
liability being absolute and primary; x x x. It is evident from the foregoing
that Section 6 of Rule 87 provides the procedure should the creditor desire
to go against the deceased debtor, but there is certainly nothing in the said
provision making compliance with such procedure a condition precedent
before an ordinary action against the surviving solidary debtors, should the
creditor choose to demand payment from the latter, could be entertained to
the extent that failure to observe the same would deprive the court
jurisdiction to take cognizance of the action against the surviving debtors.
Upon the other hand, the Civil Code expressly allows the creditor to
proceed against any one of the solidary debtors or some or all of them
simultaneously. There is, therefore, nothing improper in the creditors filing
of an action against the surviving solidary debtors alone, instead of
instituting a proceeding for the settlement of the estate of the deceased
debtor wherein his claim could be filed.
The foregoing ruling was reiterated and expounded in the later case of
Philippine National Bank v. Asuncion51 where the Supreme Court
pronounced:cralavvonlinelawlibrary
A cursory perusal of Section 6, Rule 86 of the Revised Rules of Court
reveals that nothing therein prevents a creditor from proceeding against
the surviving solidary debtors. Said provision merely sets up the procedure
in enforcing collection in case a creditor chooses to pursue his claim
against the estate of the deceased solidary debtor. The rule has been set
forth that a creditor (in a solidary obligation) has the option whether to file
or not to file a claim against the estate of the solidary debtor. x x x

Based on the last sentence of the afore-quoted provision of law, a

misjoined party must have the capacity to sue or be sued in the event that
the claim by or against the misjoined party is pursued in a separate case.
In this case, therefore, the inclusion of Manuel in the complaint cannot be
considered a misjoinder, as in fact, the action would have proceeded
against him had he been alive at the time the collection case was filed by
petitioner. This being the case, the remedy provided by Section 11 of Rule
3 does not obtain here. The name of Manuel as party-defendant cannot
simply be dropped from the case. Instead, the procedure taken by the
Court in Sarsaba v. Vda. de Te,52 whose facts, as mentioned earlier,
resemble those of this case, should be followed herein. There, the
Supreme Court agreed with the trial court when it resolved the issue of
jurisdiction over the person of the deceased Sereno in this
wise:cralavvonlinelawlibrary
As correctly pointed by defendants, the Honorable Court has not acquired
jurisdiction over the person of Patricio Sereno since there was indeed no
valid service of summons insofar as Patricio Sereno is concerned. Patricio
Sereno died before the summons, together with a copy of the complaint
and its annexes, could be served upon him.
However, the failure to effect service of summons unto Patricio Sereno,
one of the defendants herein, does not render the action DISMISSIBLE,
considering that the three (3) other defendants, x x x, were validly served
with summons and the case with respect to the answering defendants may
still proceed independently. Be it recalled that the three (3) answering
defendants have previously filed a Motion to Dismiss the Complaint which
was denied by the Court.
Hence, only the case against Patricio Sereno will be DISMISSED and the
same may be filed as a claim against the estate of Patricio Sereno, but the
case with respect to the three (3) other accused [sic] will proceed.
(Emphasis supplied.)53

xxxx

As a result, the case, as against Manuel, must be dismissed.

It is crystal clear that Article 1216 of the New Civil Code is the applicable
provision in this matter. Said provision gives the creditor the right to
"proceed against anyone of the solidary debtors or some or all of them
simultaneously." The choice is undoubtedly left to the solidary creditor to
determine against whom he will enforce collection. In case of the death of
one of the solidary debtors, he (the creditor) may, if he so chooses,
proceed against the surviving solidary debtors without necessity of filing a
claim in the estate of the deceased debtors. It is not mandatory for him to
have the case dismissed as against the surviving debtors and file its claim
against the estate of the deceased solidary debtor, x x x. For to require the
creditor to proceed against the estate, making it a condition precedent for
any collection action against the surviving debtors to prosper, would
deprive him of his substantive rights provided by Article 1216 of the New
Civil Code. (Emphasis supplied.)

In addition, the dismissal of the case against Manuel is further warranted

by Section 1 of Rule 3 of the Rules of Court, which states that: [o]nly
natural or juridical persons, or entities authorized by law may be parties in
a civil action." Applying this provision of law, the Court, in the case of
Ventura v. Militante,54 held:cralavvonlinelawlibrary

As correctly argued by petitioner, if Section 6, Rule 86 of the Revised

Rules of Court were applied literally, Article 1216 of the New Civil Code
would, in effect, be repealed since under the Rules of Court, petitioner has
no choice but to proceed against the estate of [the deceased debtor] only.
Obviously, this provision diminishes the [creditors] right under the New
Civil Code to proceed against any one, some or all of the solidary debtors.
Such a construction is not sanctioned by principle, which is too well settled
to require citation, that a substantive law cannot be amended by a
procedural rule. Otherwise stated, Section 6, Rule 86 of the Revised Rules
of Court cannot be made to prevail over Article 1216 of the New Civil
Code, the former being merely procedural, while the latter, substantive.
Based on the foregoing, the estate of Manuel is not an indispensable party
and the case can proceed as against respondent only. That petitioner
opted to collect from respondent and not from the estate of Manuel is
evidenced by its opposition to respondents motion to dismiss asserting
that the case, as against her, should be dismissed so that petitioner can
proceed against the estate of Manuel.
On whether or not the inclusion of Manuel as
party defendant is a misjoinder of party
Section 11 of Rule 3 of the Rules of Court states that "[n]either misjoinder
nor non-joinder of parties is ground for dismissal of an action. Parties may
be dropped or added by order of the court on motion of any party or on its
own initiative at any stage of the action and on such terms as are just. Any
claim against a misjoined party may be severed and proceeded with
separately."

Parties may be either plaintiffs or defendants. x x x. In order to maintain an

action in a court of justice, the plaintiff must have an actual legal existence,
that is, he, she or it must be a person in law and possessed of a legal
entity as either a natural or an artificial person, and no suit can be lawfully
prosecuted save in the name of such a person.
The rule is no different as regards party defendants. It is incumbent upon a
plaintiff, when he institutes a judicial proceeding, to name the proper party
defendant to his cause of action. In a suit or proceeding in personam of an
adversary character, the court can acquire no jurisdiction for the purpose
of trial or judgment until a party defendant who actually or legally exists
and is legally capable of being sued, is brought before it. It has even been
held that the question of the legal personality of a party defendant is a
question of substance going to the jurisdiction of the court and not one of
procedure.
The original complaint of petitioner named the "estate of Carlos Ngo as
represented by surviving spouse Ms. Sulpicia Ventura" as the defendant.
Petitioner moved to dismiss the same on the ground that the defendant as
named in the complaint had no legal personality. We agree.
x x x. Considering that capacity to be sued is a correlative of the capacity
to sue, to the same extent, a decedent does not have the capacity to be
sued and may not be named a party defendant in a court action.
(Emphases supplied.)
Indeed, where the defendant is neither a natural nor a juridical person or
an entity authorized by law, the complaint may be dismissed on the ground
that the pleading asserting the claim states no cause of action or for failure
to state a cause of action pursuant to Section 1(g) of Rule 16 of the Rules
of Court, because a complaint cannot possibly state a cause of action
against one who cannot be a party to a civil action.55
Since the proper course of action against the wrongful inclusion of Manuel
as party-defendant is the dismissal of the case as against him, thus did the
trial court err when it ordered the substitution of Manuel by his heirs.
Substitution is proper only where the party to be substituted died during
the pendency of the case, as expressly provided for by Section 16, Rule 3
of the Rules of Court, which states:cralavvonlinelawlibrary

Death of party;duty of counsel. Whenever a party to a pending action

dies, and the claim is not thereby extinguished, it shall be the duty of his
counsel to inform the court within thirty (30) days after such death of the
fact thereof, and to give the name and address of his legal representative
or representatives. x x x
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator x x x.
The court shall forthwith order said legal representative or representatives
to appear and be substituted within a period of thirty (30) days from notice.
(Emphasis supplied.)
Here, since Manuel was already dead at the time of the filing of the
complaint, the court never acquired jurisdiction over his person and, in
effect, there was no party to be substituted.
WHEREFORE, the petition is GRANTED.

G.R. No. 151876

GO vs. DIMAGIBA
June 21, 2005
PANGANIBAN, J.:

The pertinent facts are not disputed. Respondent Fernando L. Dimagiba

issued to Petitioner Susan Go thirteen (13) checks which, when presented
to the drawee bank for encashment or payment on the due dates, were
dishonored for the reason account closed.[6] Dimagiba was subsequently
prosecuted for 13 counts of violation of BP 22[7] under separate
Complaints filed with the Municipal Trial Court in Cities (MTCC) in Baguio
City.[8] After a joint trial, the MTCC (Branch 4) rendered a Decision on July
16, 1999, convicting the accused in the 13 cases. The dispositive portion
reads as follows:
WHEREFORE, in view of the foregoing disquisition, this Court finds the
evidence of the prosecution to have established the guilt of the accused
beyond reasonable doubt of the offenses charged and imposes upon the
accused the penalty of 3 months imprisonment for each count (13 counts)
and to indemnify the offended party the amount of One Million Two
Hundred Ninety Five Thousand Pesos (P1,295,000.00) with legal interest
per annum commencing from 1996 after the checks were dishonored by
reason ACCOUNT CLOSED on December 13, 1995, to pay attorneys fees
of P15,000.00 and to pay the costs.[9]
The appeal of Dimagiba was raffled to Branch 4 of the RTC in Baguio City.
[10] On May 23, 2000, the RTC denied the appeal and sustained his
conviction.[11] There being no further appeal to the Court of Appeals (CA),
the RTC issued on February 1, 2001, a Certificate of Finality of the
Decision.[12]
Thus, on February 14, 2001, the MTCC issued an Order directing the
arrest of Dimagiba for the service of his sentence as a result of his
conviction. The trial court also issued a Writ of Execution to enforce his
civil liability.[13]
On February 27, 2001, Dimagiba filed a Motion for Reconsideration of the
MTCC Order. He prayed for the recall of the Order of Arrest and the
modification of the final Decision, arguing that the penalty of fine only,
instead of imprisonment also, should have been imposed on him.[14] The
arguments raised in that Motion were reiterated in a Motion for the Partial
Quashal of the Writ of Execution filed on February 28, 2001.[15]
In an Order dated August 22, 2001, the MTCC denied the Motion for
Reconsideration and directed the issuance of a Warrant of Arrest against
Dimagiba.[16] On September 28, 2001, he was arrested and imprisoned
for the service of his sentence.
On October 9, 2001, he filed with the RTC of Baguio City a Petition[17] for
a writ of habeas corpus. The case was raffled to Branch 5, which
scheduled the hearing for October 10, 2001. Copies of the Order were
served on respondents counsels and the city warden.[18]
Ruling of the Regional Trial Court
Right after hearing the case on October 10, 2001, the RTC issued an
Order directing the immediate release of Dimagiba from confinement and
requiring him to pay a fine of P100,000 in lieu of imprisonment. However,
the civil aspect of the July 16, 1999 MTCC Decision was not touched
upon.[19] A subsequent Order, explaining in greater detail the basis of the
grant of the writ of habeas corpus, was issued on October 11, 2001.[20]
In justifying its modification of the MTCC Decision, the RTC invoked Vaca
v. Court of Appeals[21] and Supreme Court Administrative Circular (SCAC) No. 12-2000,[22] which allegedly required the imposition of a fine only
instead of imprisonment also for BP 22 violations, if the accused was not a
recidivist or a habitual delinquent. The RTC held that this rule should be
retroactively applied in favor of Dimagiba.[23] It further noted that (1) he
was a first-time offender and an employer of at least 200 workers who
would be displaced as a result of his imprisonment; and (2) the civil liability
had already been satisfied through the levy of his properties.[24]
On October 22, 2001, Petitioner Go filed a Motion for Reconsideration of
the RTC Orders dated October 10 and 11, 2001.[25] That Motion was
denied on January 18, 2002.[26]
Hence, this Petition filed directly with this Court on pure questions of law.
[27]
The Issues
Petitioner raises the following issues for this Courts consideration:

1. [The RTC] Judge was utterly devoid of jurisdiction in amending a final

and conclusive decision of the Municipal Trial Court, Branch 4, dated July
16, 1999, in nullifying the Sentence Mittimus, dated September 28, 2001,
issued by x x x [the] Municipal Trial Court, Branch 4, Baguio City, and in
ordering the release of [Dimagiba] from confinement in jail for the service
of his sentence under the said final and conclusive judgment;
2. Assuming only for the sake of argument that habeas corpus is the
proper remedy, the Petition for Habeas Corpus is utterly devoid of merit as
[Dimagiba was] not entitled to the beneficent policy enunciated in the
Eduardo Vaca and Rosa Lim cases and reiterated in the Supreme Court
Circular No. 12-2000; x x x
3. Granting for the sake of argument that [Dimagiba was] entitled to the
beneficent policy enunciated in the Eduardo Vaca and Rosa Lim cases
and reiterated in the Supreme Court Circular No. 12-2000, the minimum
fine that should be imposed on [Dimagiba] is one million and two hundred
ninety five thousand pesos (P1,295,000.00) up to double the said amount
or (P2,590,000), not just the measly amount of P100,000; and
4. [The RTC] judge committed grave abuse of discretion amounting to lack
or excess of jurisdiction in hearing and deciding [Dimagibas] Petition for
Habeas Corpus without notice and without affording procedural due
process to the People of the Philippines through the Office of [the] City
Prosecutor of Baguio City or the Office of the Solicitor General.[28]
In the main, the case revolves around the question of whether the Petition
for habeas corpus was validly granted. Hence, the Court will discuss the
four issues as they intertwine with this main question.[29]
The Courts Ruling
The Petition is meritorious.
Main Issue:
Propriety of the
Writ of Habeas Corpus
The writ of habeas corpus applies to all cases of illegal confinement or
detention in which individuals are deprived of liberty.[30] It was devised as
a speedy and effectual remedy to relieve persons from unlawful restraint;
or, more specifically, to obtain immediate relief for those who may have
been illegally confined or imprisoned without sufficient cause and thus
deliver them from unlawful custody.[31] It is therefore a writ of inquiry
intended to test the circumstances under which a person is detained.[32]
The writ may not be availed of when the person in custody is under a
judicial process or by virtue of a valid judgment.[33] However, as a postconviction remedy, it may be allowed when, as a consequence of a judicial
proceeding, any of the following exceptional circumstances is attendant:
(1) there has been a deprivation of a constitutional right resulting in the
restraint of a person; (2) the court had no jurisdiction to impose the
sentence; or (3) the imposed penalty has been excessive, thus voiding the
sentence as to such excess.[34]
In the present case, the Petition for a writ of habeas corpus was anchored
on the ruling in Vaca and on SC-AC No. 12-2000, which allegedly
prescribed the imposition of a fine, not imprisonment, for convictions under
BP 22. Respondent sought the retroactive effect of those rulings, thereby
effectively challenging the penalty imposed on him for being excessive.
From his allegations, the Petition appeared sufficient in form to support the
issuance of the writ.
However, it appears that respondent has previously sought the
modification of his sentence in a Motion for Reconsideration[35] of the
MTCCs Execution Order and in a Motion for the Partial Quashal of the Writ
of Execution.[36] Both were denied by the MTCC on the ground that it had
no power or authority to amend a judgment issued by the RTC.
In his Petition for habeas corpus, respondent raised the same arguments
that he had invoked in the said Motions. We believe that his resort to this
extraordinary remedy was a procedural infirmity. The remedy should have
been an appeal of the MTCC Order denying his Motions, in which he
should have prayed that the execution of the judgment be stayed. But he
effectively misused the action he had chosen, obviously with the intent of
finding a favorable court. His Petition for a writ of habeas corpus was
clearly an attempt to reopen a case that had already become final and
executory. Such an action deplorably amounted to forum shopping.
Respondent should have resorted to the proper, available remedy instead
of instituting a different action in another forum.

The Court also finds his arguments for his release insubstantial to support
the issuance of the writ of habeas corpus.
Preference in the
Application of Penalties
for Violation of BP 22
The following alternative penalties are imposable under BP 22: (1)
imprisonment of not less than 30 days, but not more than one year; (2) a
fine of not less or more than double the amount of the check, a fine that
shall in no case exceed P200,000; or (3) both such fine and imprisonment,
at the discretion of the court.[37]
SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001,[38] established a
rule of preference in imposing the above penalties.[39] When the
circumstances of the case clearly indicate good faith or a clear mistake of
fact without taint of negligence, the imposition of a fine alone may be
considered as the preferred penalty.[40] The determination of the
circumstances that warrant the imposition of a fine rests upon the trial
judge only.[41] Should the judge deem that imprisonment is appropriate,
such penalty may be imposed.[42]
SC-AC No. 12-2000 did not delete the alternative penalty of imprisonment.
The competence to amend the law belongs to the legislature, not to this
Court.[43]
Inapplicability of
SC-AC No. 12-2000
Petitioners argue that respondent is not entitled to the benevolent policy
enunciated in SC-AC No. 12-2000, because he is not a first time offender.
[44] This circumstance is, however, not the sole factor in determining
whether he deserves the preferred penalty of fine alone. The penalty to be
imposed depends on the peculiar circumstances of each case.[45] It is the
trial courts discretion to impose any penalty within the confines of the law.
SC-AC No. 13-2001 explains thus:
x x x. Administrative Circular No. 12-2000 establishes a rule of preference
in the application of the penal provisions of BP 22 such that where the
circumstances of both the offense and the offender clearly indicate good
faith or a clear mistake of fact without taint of negligence, the imposition of
a fine alone should be considered as the more appropriate penalty.
Needless to say, the determination of whether the circumstances warrant
the imposition of a fine alone rests solely upon the Judge. x x x.

Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC

Admin. Circular No. 12-2000 merely lays down a rule of preference in the
application of the penalties for violation of B.P. Blg. 22. It does not amend
B.P. Blg. 22, nor defeat the legislative intent behind the law. SC Admin.
Circular No. 12-2000 merely urges the courts to take into account not only
the purpose of the law but also the circumstances of the accused -whether he acted in good faith or on a clear mistake of fact without taint of
negligence -- and such other circumstance which the trial court or the
appellate court believes relevant to the penalty to be imposed.[51]
Because the Circular merely lays down a rule of preference, it serves only
as a guideline for the trial courts. Thus, it is addressed to the judges, who
are directed to consider the factual circumstances of each case prior to
imposing the appropriate penalty. In other words, the Administrative
Circular does not confer any new right in favor of the accused, much less
those convicted by final judgment.
The competence to determine the proper penalty belongs to the court
rendering the decision against the accused.[52] That decision is subject
only to appeal on grounds of errors of fact or law, or grave abuse of
discretion amounting to lack or excess of jurisdiction. Another trial court
may not encroach upon this authority. Indeed, SC-AC No. 12-2000
necessarily requires a review of all factual circumstances of each case.
Such a review can no longer be done if the judgment has become final and
executory.
In the present case, the MTCC of Baguio City had full knowledge of all
relevant circumstances from which respondents conviction and sentence
were based. The penalty imposed was well within the confines of the law.
Upon appeal, the conviction was sustained by RTC-Branch 4 of Baguio
City. Eventually, the Decision attained finality. Hence, RTC-Branch 5 did
not have the jurisdiction to modify the lawful judgment in the guise of
granting a writ of habeas corpus.
The doctrine of equal protection of laws[53] does not apply for the same
reasons as those on retroactivity. Foremost of these reasons is that the
Circular is not a law that deletes the penalty of imprisonment. As explained
earlier, it is merely a rule of preference as to which penalty should be
imposed under the peculiar circumstances of a case. At any rate, this
matter deserves scant consideration, because respondent failed to raise
any substantial argument to support his contention.[54]
Modification of Final
Judgment Not Warranted

It is, therefore, understood that:

xxxxxxxxx
2. The Judges concerned, may in the exercise of sound discretion, and
taking into consideration the peculiar circumstances of each case,
determine whether the imposition of a fine alone would best serve the
interests of justice, or whether forbearing to impose imprisonment would
depreciate the seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperatives of justice;
The Court notes that the Petition for a writ of habeas corpus relied mainly
on the alleged retroactivity of SC-AC No. 12-2000, which supposedly
favored BP 22 offenders.[46] On this point, Dimagiba contended that his
imprisonment was violative of his right to equal protection of the laws,
since only a fine would be imposed on others similarly situated.[47]
The rule on retroactivity states that criminal laws may be applied
retroactively if favorable to the accused. This principle, embodied in the
Revised Penal Code,[48] has been expanded in certain instances to cover
special laws.[49]
The issue of retroactivity of SC-AC No. 12-2000 was settled in De Joya v.
Jail Warden of Batangas City,[50] which we quote:
Petitioner's reliance of our ruling in Ordoez v. Vinarao that a convicted
person is entitled to benefit from the reduction of penalty introduced by the
new law, citing People v. Simon, is misplaced. Thus, her plea that as
provided for in Article 22 of the Revised Penal Code, SC Admin. Circular
No. 12-2000 as modified by SC Admin. Circular No. 13-2001 should
benefit her has no basis.
First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22
of the Revised Penal Code is not applicable. The circular applies only to
those cases pending as of the date of its effectivity and not to cases
already terminated by final judgment.

The Court is not unmindful of So v. Court of Appeals,[55] in which the final

judgment of conviction for violation of BP 22 was modified by the deletion
of the sentence of imprisonment and the imposition of a fine. That case
proceeded from an Urgent Manifestation of an Extraordinary Supervening
Event,[56] not from an unmeritorious petition for a writ of habeas corpus,
as in the present case. The Court exercised in that case its authority to
suspend or to modify the execution of a final judgment when warranted or
made imperative by the higher interest of justice or by supervening events.
[57] The supervening event in that case was the petitioners urgent need
for coronary rehabilitation for at least one year under the direct supervision
of a coronary care therapist; imprisonment would have been equivalent to
a death sentence.[58]
The peculiar circumstances of So do not obtain in the present case.
Respondents supposed unhealthy physical condition due to a triple bypass operation, and aggravated by hypertension, cited by the RTC in its
October 10, 2001 Order,[59] is totally bereft of substantial proof. The Court
notes that respondent did not make any such allegation in his Petition for
habeas corpus. Neither did he mention his physical state in his
Memorandum and Comment submitted to this Court.
Respondent seeks the retroactive application of SC-AC No. 12-2000 in his
favor on the basis alone of the alleged settlement of his civil liability.[60]
Citing Griffith v. Court of Appeals,[61] he theorizes that answering for a
criminal offense is no longer justified after the settlement of the debt.
Respondent, however, misreads Griffith. The Court held in that case that
convicting the accused who, two years prior to the filing of the BP 22
cases, had already paid his debt (from which the checks originated) was
contrary to the basic principles of fairness and justice.[62] Obviously, that
situation is not attendant here.
The civil liability in the present case was satisfied through the levy and sale
of the properties of respondent only after the criminal case had been
terminated with his conviction.[63] Apparently, he had sufficient properties

that could have been used to settle his liabilities prior to his conviction.
Indeed, such an early settlement would have been an indication that he
was in good faith, a circumstance that could have been favorably
considered in determining his appropriate penalty.
At any rate, civil liability differs from criminal liability.[64] What is punished
in the latter is not the failure to pay the obligation, but the issuance of
checks that subsequently bounced or were dishonored for insufficiency or
lack of funds.[65] The Court reiterates the reasons why the issuance of
worthless checks is criminalized:
The practice is prohibited by law because of its deleterious effects on
public interest. The effects of the increase of worthless checks transcend
the private interest of the parties directly involved in the transaction and
touches the interest of the community at large. The mischief it creates is
not only a wrong to the payee or holder, but also an injury to the public.
The harmful practice of putting valueless commercial papers in circulation
multiplied a thousand-fold can very well pollute the channels of trade and
commerce, injure the banking system and eventually hurt the welfare of
society and the public interest. The law punishes the act not as an offense
against property but an offense against public order.[66]
WHEREFORE, the Petition is GRANTED and the assailed Orders
NULLIFIED.

G.R. No. 182855

ADONIS vs. TESORO

June 5, 2013

REYES, J.:

In Criminal Case No. 48679-2001, Adonis was convicted by the Regional

Trial Court of Davao City (RTC), Branch 17 for Libel, filed against him by
then Representative Prospero Nograles. He was sentenced to an
indeterminate sentence of five (5) months and one (1) day of arresto
mayor maximum, as minimum penalty, to four (4) years, six (6) months
and one (1) day of prision correccional medium, as maximum penalty.4 He
began serving his sentence at the Davao Prisons and Penal Farm on
February 20, 2007.5
A second libel case, docketed as Criminal Case No. 48719-2001 was
likewise filed against Adonis by Jeanette L. Leuterio, pending before the
RTC of Davao City, Branch 14.6
On December 11, 2007, the Board of Pardons and Parole (BPP) issued an
order for the Discharge on Parole of seven (7) inmates in various jails in
the country, which included Adonis. The said document was received by
the City Parole and Probation Office of Davao on May 2, 2008.7
Meanwhile, on January 25, 2008, this Court issued Administrative Circular
No. 08-2008, the subject of which is the "Guidelines in the Observance of
a Rule of Preference in the Imposition of Penalties in Libel Cases."
In view of these developments, Adonis, on April 18, 2008 filed with the
RTC Branch 17 a Motion to Reopen Case (With Leave of Court),8 praying
for his immediate release from detention and for the modification of his
sentence to payment of fine pursuant to the said Circular.
On May 26, 2008, in Criminal Case No. 48719-2001 before the RTC
Branch 14, Adonis moved for his provisional release from detention. The
motion was granted by Presiding Judge George Omelio in open court and
he was allowed to post bail in the amount of P5,000.9 Subsequently on
even date and after Adonis filed a cash bond and an undertaking,10 the
trial court issued an Order directing the Chief of Davao Penal Colony "to
release the accused Alexis Adonis unless he is being held for some other
crimes or offenses."11 On the same date, the said order was served to the
respondent,12 but the release of Adonis was not effected.
On May 30, 2008, Adonis filed the instant petition for the issuance of a writ
of habeas corpus alleging that his liberty was restrained by the respondent
for no valid reason.13
The respondent consequently filed his Comment.14 Adonis then filed on
October 27, 2008 an Urgent Motion to Resolve15 and on November 7,
2008 a Manifestation and Motion,16 reiterating all his previous prayers.
On February 11, 2009, the Court received the letter from the respondent,
informing the Court that Adonis had been released from confinement on
December 23, 2008 after accepting the conditions set forth in his parole
and with the advise to report to the City Parole and Probation Officer of
Davao.17
The Courts Ruling
The petition is without merit.
The ultimate purpose of the writ of habeas corpus is to relieve a person
from unlawful restraint. The writ exists as a speedy and effectual remedy to
relieve persons from unlawful restraint and as an effective defense of
personal freedom. It is issued only for the lone purpose of obtaining relief
for those illegally confined or imprisoned without sufficient legal basis. It is
not issued when the person is in custody because of a judicial process or a
valid judgment.18
Section 4, Rule 102 of the Revised Rules of Court provides when a writ
must not be allowed or discharge authorized, to wit:
SEC. 4. When writ not allowed or discharge authorized. If it appears that
the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge or by virtue of a judgment
or order of a court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an
offense in the Philippines, or of a person suffering imprisonment under
lawful judgment.

In the instant case, Adonis was convicted for libel by the RTC Branch 17,
in Criminal Case No. 48679-2001.1wphi1 Since his detention was by
virtue of a final judgment, he is not entitled to the Writ of Habeas Corpus.
He was serving his sentence when the BPP granted him parole, along with
six (6) others, on December 11, 2007.19 While it is true that a convict may
be released from prison on parole when he had served the minimum
period of his sentence; the pendency of another criminal case, however, is
a ground for the disqualification of such convict from being released on
parole.20 Notably, at the time he was granted the parole, the second libel
case was pending before the RTC Branch 14.21 In fact, even when the
instant petition was filed, Criminal Case No. 48719-01 was still pending.
The issuance of the writ under such circumstance was, therefore,
proscribed. There was basis for the respondent to deny his immediate
release at that time.
Further, Adonis seeks the retroactive application of Administrative Circular
No. 08-2008, citing Fermin v. People,22 where the Court preferred the
imposition of the fine rather than imprisonment under the circumstances of
the case. Administrative Circular No. 08-2008, was issued on January 25,
2008 and provides the "guidelines in the observance of a rule of
preference in the imposition of penalties in libel cases." The pertinent
portions read as follows:
All courts and judges concerned should henceforth take note of the
foregoing rule of preference set by the Supreme Court on the matter of the
imposition of penalties for the crime of libel bearing in mind the following
principles:
1. This Administrative Circular does not remove imprisonment as an
alternative penalty for the crime libel under Article 355 of the Revised
Penal Code;
2. The Judges concerned may, in the exercise of sound discretion, and
taking into consideration the peculiar circumstances of each case,
determine whether the imposition of a fame alone would best serve the
interests of justice or whether forbearing to impose imprisonment would
depreciate the seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperative of justice;
3. Should only a fine be imposed and the accused be unable to pay the
fine, there is no legal obstacle to the application of the Revised Penal
Code provision on subsidiary imprisonment.23 (Emphasis ours)
A clear reading of the Administration Circular No. 08-2008 and considering
the attendant circumstances of the case, the benefits of the administrative
circular can not be given retroactive effect in Criminal Case No. 486792001. It is too late in the day for Adonis to raise such argument considering
that Criminal Case No. 48679-2001 has already become final and
executory; and he had, in fact, already commenced serving his sentence.
Eventually, he was released from confinement on December 23, 2008 after
accepting the conditions of the parole granted to him.
WHEREFORE, the petition is DISMISSED.

AMPATUAN vs. MACARAIG

G.R. No. 182497
June 29, 2010
PEREZ, J.:
Petitioner alleged in her petition that her husband PO1 Ampatuan was
assigned at Sultan Kudarat Municipal Police Station. On 14 April 2008, he
was asked by his Chief of Police to report to the Provincial Director of
Shariff Kabunsuan, Superintendent Esmael Pua Ali (Supt. Ali). The latter
brought PO1 Ampatuan to Superintendent Piang Adam, Provincial Director
of the Philippine National Police (PNP) Maguindanao. PO1 Ampatuan was
directed to stay at the Police Provincial Office of Maguindanao without
being informed of the cause of his restraint. The next day, 15 April 2008,
PO1 Ampatuan was brought to the General Santos City Airport and was
made to board a Philippine Airlines plane bound for Manila. Upon landing
at the Manila Domestic Airport, PO1 Ampatuan was turned over to
policemen of Manila and brought to Manila Mayor Alfredo Lim by Police
Director Geary Barias and General Roberto Rosales. A press briefing was
then conducted where it was announced that PO1 Ampatuan was arrested
for the killing of two Commission on Elections (COMELEC) Officials. He
was then detained at the Police Jail in United Nations Avenue, Manila.
Thereafter, PO1 Ampatuan was brought to inquest Prosecutor Renato
Gonzaga of the Office of the City Prosecutor of Manila due to the alleged
murder of Atty. Alioden D. Dalaig, head of the Law Department of the
COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over to the
Regional Headquarters Support Group in Camp Bagong Diwa, Taguig City.
[3]
Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor
Nelson Salva ordered the release for further investigation of PO1
Ampatuan.[4] The Order was approved by the City Prosecutor of Manila.
But Police Senior Superintendent Co Yee Co, Jr., and Police Chief
Inspector Agapito Quimson refused to release PO1 Ampatuan.
This prompted Petitioner to file the petition for writ of habeas corpus in the
RTC of Manila, Branch 37.[5]
Private respondents had another version of the antecedent facts. They
narrated that at around 7:08 oclock in the evening of 10 November 2007, a
sixty-four-year-old man, later identified as Atty. Alioden D. Dalaig, Head of
the COMELEC Legal Department, was killed at the corner of M. H. Del
Pilar and Pedro Gil Streets, Ermita, Manila. Investigation conducted by the
Manila Police District (MPD) Homicide Section yielded the identity of the
male perpetrator as PO1 Ampatuan. Consequently, PO1 Ampatuan was
commanded to the MPD District Director for proper disposition. Likewise,
inquest proceedings were conducted by the Manila Prosecutors Office.
On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto,
rendered his Pre-Charge Evaluation Report against PO1 Ampatuan,
finding probable cause to charge PO1 Ampatuan with Grave Misconduct
(Murder) and recommending that said PO1 Ampatuan be subjected to
summary hearing.
On even date, a charge sheet for Grave Misconduct was executed against
PO1 Ampatuan, the accusatory portion of which reads:
CHARGE SHEET
THE UNDERSIGNED NOMINAL COMPLAINANT hereby charges abovenamed respondent of the administrative offense of Grave Misconduct
(murder) pursuant to Section 52 of R.A. 8551[6] in relation to NAPOLCOM
Memorandum Circular 93-024, committed as follows:
That on or about 7:08 in the evening of November 10, 2007, in M.H. Del
Pilar and Pedro Gil St., Ermita, Manila, above-named respondent while
being an active member of the PNP and within the jurisdiction of this office,
armed with a cal .45 pistol, with intent to kill, did then and there willfully,
unlawfully and feloniously, shot Atty. Alioden D. Dalaig, Jr., COMELEC
official on the different parts of his body, thereby inflicting upon the latter
mortal gunshot wounds which directly cause (sic) his death.
Acts contrary to the existing PNP Laws rules and Regulations.[7]

Also, through a Memorandum dated 18 April 2008, Police Director General

Avelino I. Razon, Jr. directed the Regional Director of the National Capital
Regional Police Office (NCRPO) to place PO1 Ampatuan under restrictive
custody, thus:

1.
Reference: Memo from that Office dated April 15, 2008
re Arrest of PO1 Busser Ampatuan, suspect in the killing of Atty. Alioden
Dalaig and Atty. Wynee Asdala, both COMELEC Legal Officers.
2.
This pertains to the power of the Chief, PNP embodied
in Section 52 of RA 8551, to place police personnel under restrictive
custody during the pendency of a grave administrative case filed against
him or even after the filing of a criminal complaint, grave in nature, against
such police personnel.
3.
In this connection, you are hereby directed to place
PO1 Busser Ampatuan, suspect in the killing of Atty. Alioden Dalaig and
Atty. Wynee Asdala, both COMELEC Legal Officers, under your restrictive
custody.
4.

For strict compliance.[8]

On 19 April 2008, through a Memorandum Request dated 18 April 2008,

respondent Police Director Geary L. Barias requested for the creation of
the Summary Hearing Board to hear the case of PO1 Ampatuan.[9]
On 20 April 2008, Special Order No. 921 was issued by Police Director
Edgardo E. Acua, placing PO1 Ampatuan under restrictive custody of the
Regional Director, NCRPO, effective 19 April 2008. Said Special Order No.
921, reads:
Restrictive Custody
PO1 Basser B. Ampatuan 128677, is placed under restrictive custody of
the Regional Director, NCRPO effective April 19, 2008. (Reference:
Memorandum from CPNP dated 18 April 2008).
BY COMMAND OF POLICE DIRECTOR GENERAL RAZON:[10]

Meanwhile, on 21 April 2008, the City Prosecutor of Manila recommended

that the case against PO1 Ampatuan be set for further investigation and
that the latter be released from custody unless he is being held for other
charges/legal grounds.[11]
Armed with the 21 April 2008 recommendation of the Manila Citys
Prosecution Office, petitioner, who is the wife of PO1 Ampatuan, filed a
Petition for the Issuance of a Writ of Habeas Corpus before the RTC of
Manila on 22 April 2008. The petition was docketed as Special Proceeding
No. 08-119132 and was raffled to Branch 37.
On 24 April 2008, finding the petition to be sufficient in form and
substance, respondent Judge Virgilio V. Macaraig ordered the issuance of
a writ of habeas corpus commanding therein respondents to produce the
body of PO1 Ampatuan and directing said respondents to show cause why
they are withholding or restraining the liberty of PO1 Ampatuan.[12]
On 25 April 2008, the RTC resolved the Petition in its Order which reads:
Essentially, counsels for petitioner insists that PO1 Basser Ampatuan is
being illegally detained by the respondents despite the order of release of
Chief Inquest Prosecutor Nelson Salva dated April 21, 2008. They further
claim that as of April 23, 2008, no administrative case was filed against
PO1 Ampatuan.
Respondents, while admitting that to date no criminal case was filed
against PO1 Ampatuan, assert that the latter is under restrictive custody
since he is facing an administrative case for grave misconduct. They
submitted to this Court the Pre-charge Evaluation Report and Charge
Sheet. Further, in support of their position, respondents cited the case of
SPO2 Manalo, et al. v. Hon. Calderon, G.R. No. 178920 claiming that
habeas corpus will not lie for a PNP personnel under restrictive custody.
They claim that this is authorized under Section 52, Par. 4 of R.A. 8551
authorizing the Chief of PNP to place the PNP personnel under restrictive
custody during the pendency of administrative case for grave misconduct.

Petitioner countered that the administrative case filed against PO1

Ampatuan was ante-dated to make it appear that there was such a case
filed before April 23, 2008.

offense in the Philippines, or of a person suffering imprisonment under

lawful judgment.

The function of habeas corpus is to determine the legality of ones

detention, meaning, if there is sufficient cause for deprivation or
confinement and if there is none to discharge him at once. For habeas
corpus to issue, the restraint of liberty must be in the nature of illegal and
involuntary deprivation of freedom which must be actual and effective, not
nominal or moral.

The objective of the writ is to determine whether the confinement or

detention is valid or lawful. If it is, the writ cannot be issued. What is to be
inquired into is the legality of a person's detention as of, at the earliest, the
filing of the application for the writ of habeas corpus, for even if the
detention is at its inception illegal, it may, by reason of some supervening
events, such as the instances mentioned in Section 4 of Rule 102, be no
longer illegal at the time of the filing of the application.[16]

Granting arguendo that the administrative case was ante-dated, the Court
cannot simply ignore the filing of an administrative case filed against PO1
Ampatuan. It cannot be denied that the PNP has its own administrative
disciplinary mechanism and as clearly pointed out by the respondents, the
Chief PNP is authorized to place PO1 Ampatuan under restrictive custody
pursuant to Section 52, Par. 4 of R.A. 8551.
The filing of the administrative case against PO1 Ampatuan is a process
done by the PNP and this Court has no authority to order the release of
the subject police officer.
Lastly, anent the contention of the petitioner that the letter resignation of
PO1 Ampatuan has rendered the administrative case moot and academic,
the same could not be accepted by this Court. It must be stressed that the
resignation has not been acted (sic) by the appropriate police officials of
the PNP, and that the administrative case was filed while PO1 Ampatuan is
still in the active status of the PNP.
WHEREFORE, premises considered, the petition for habeas corpus is
hereby DISMISSED.[13]

Distressed, petitioner is now before this Court via a Petition for Certiorari
under Rule 65 of the Rules of Court to question the validity of the RTC
Order dated 25 April 2008. The issues are:
xxxxxxxxxxxxxxxxx
Essentially, a writ of habeas corpus applies to all cases of illegal
confinement or detention by which any person is deprived of his liberty.[15]
Rule 102 of the 1997 Rules of Court sets forth the procedure to be
followed in the issuance of the writ. The Rule provides:

Plainly stated, the writ obtains immediate relief for those who have been
illegally confined or imprisoned without sufficient cause. The writ, however,
should not be issued when the custody over the person is by virtue of a
judicial process or a valid judgment.[17]
The most basic criterion for the issuance of the writ, therefore, is that the
individual seeking such relief is illegally deprived of his freedom of
movement or placed under some form of illegal restraint. If an individuals
liberty is restrained via some legal process, the writ of habeas corpus is
unavailing.[18] Fundamentally, in order to justify the grant of the writ of
habeas corpus, the restraint of liberty must be in the nature of an illegal
and involuntary deprivation of freedom of action.[19]
In general, the purpose of the writ of habeas corpus is to determine
whether or not a particular person is legally held. A prime specification of
an application for a writ of habeas corpus, in fact, is an actual and
effective, and not merely nominal or moral, illegal restraint of liberty. The
writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient.[20]
In passing upon a petition for habeas corpus, a court or judge must first
inquire into whether the petitioner is being restrained of his liberty. If he is
not, the writ will be refused. Inquiry into the cause of detention will proceed
only where such restraint exists. If the alleged cause is thereafter found to
be unlawful, then the writ should be granted and the petitioner discharged.
Needless to state, if otherwise, again the writ will be refused.[21]

RULE 102
HABEAS CORPUS
SECTION 1. To what habeas corpus extends. Except as otherwise
expressly provided by law, the writ of habeas corpus shall extend to all
cases of illegal confinement or detention by which any person is deprived
of his liberty, or by which the rightful custody of any person is withheld from
the person entitled thereto.
SEC 2. Who may grant the writ. The writ of habeas corpus may be granted
by the Supreme Court, or any member thereof, on any day and at any
time, or by the Court of Appeals or any member thereof in the instances
authorized by law, and if so granted it shall be enforceable anywhere in the
Philippines, and may be made returnable before the court or any member
thereof, or before a Court of First Instance, or any judge thereof for hearing
and decision on the merits. It may also be granted by a Court of First
Instance, or a judge thereof, on any day and at any time, and returnable
before himself, enforceable only within his judicial district.
xxxx
SEC. 4. When writ not allowed or discharge authorized. If it appears that
the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge or by virtue of a judgment
or order of a court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an

While habeas corpus is a writ of right, it will not issue as a matter of course
or as a mere perfunctory operation on the filing of the petition. Judicial
discretion is called for in its issuance and it must be clear to the judge to
whom the petition is presented that, prima facie, the petitioner is entitled to
the writ. It is only if the court is satisfied that a person is being unlawfully
restrained of his liberty will the petition for habeas corpus be granted. If the
respondents are not detaining or restraining the applicant or the person in
whose behalf the petition is filed, the petition should be dismissed.[22]
Petitioner contends that when PO1 Ampatuan was placed under the
custody of respondents on 20 April 2008, there was yet no administrative
case filed against him. When the release order of Chief Inquest Prosecutor
Nelson Salva was served upon respondents on 21 April 2008, there was
still no administrative case filed against PO1 Ampatuan. She also argues
that the arrest on 14 April 2008 of PO1 Ampatuan in Shariff Kabunsuan
was illegal because there was no warrant of arrest issued by any judicial
authority against him.
On the other hand, respondents, in their Comment[23] filed by the Office of
the Solicitor General, argue that the trial court correctly denied the subject
petition. Respondents maintain that while the Office of the City Prosecutor
of Manila had recommended that PO1 Ampatuan be released from
custody, said recommendation was made only insofar as the criminal
action for murder that was filed with the prosecution office is concerned
and is without prejudice to other legal grounds for which he may be held
under custody. In the instant case, PO1 Ampatuan is also facing
administrative charges for Grave Misconduct. They cited the case of
Manalo v. Calderon,[24] where this Court held that a petition for habeas
corpus will be given due course only if it shows that petitioner is being
detained or restrained of his liberty unlawfully, but a restrictive custody and
monitoring of movements or whereabouts of police officers under

investigation by their superiors is not a form of illegal detention or restraint

of liberty.[25]
The Solicitor General is correct.
In this case, PO1 Ampatuan has been placed under Restrictive Custody.
Republic Act No. 6975 (also known as the Department of Interior and Local
Government Act of 1990), as amended by Republic Act No. 8551 (also
known as the Philippine National Police Reform and Reorganization Act of
1998), clearly provides that members of the police force are subject to the
administrative disciplinary machinery of the PNP. Section 41(b) of the said
law enumerates the disciplinary actions, including restrictive custody that
may be imposed by duly designated supervisors and equivalent officers of
the PNP as a matter of internal discipline. The pertinent provision of
Republic Act No. 8551 reads:

Sec. 52 x x x.
xxxx
4. The Chief of the PNP shall have the power to impose the disciplinary
punishment of dismissal from the service; suspension or forfeiture of
salary; or any combination thereof for a period not exceeding one hundred
eighty (180) days. Provided, further, That the Chief of the PNP shall have
the authority to place police personnel under restrictive custody during the
pendency of a grave administrative case filed against him or even after the
filing of a criminal complaint, grave in nature, against such police
personnel. [Emphasis ours].
Given that PO1 Ampatuan has been placed under restrictive custody, such
constitutes a valid argument for his continued detention. This Court has
held that a restrictive custody and monitoring of movements or
whereabouts of police officers under investigation by their superiors is not
a form of illegal detention or restraint of liberty.[26]
Restrictive custody is, at best, nominal restraint which is beyond the ambit
of habeas corpus. It is neither actual nor effective restraint that would call
for the grant of the remedy prayed for. It is a permissible precautionary
measure to assure the PNP authorities that the police officers concerned
are always accounted for.[27]
Since the basis of PO1 Ampatuans restrictive custody is the administrative
case filed against him, his remedy is within such administrative process.
We likewise note that PO1 Ampatuan has been under restrictive custody
since 19 April 2008. To date, the administrative case against him should
have already been resolved and the issue of his restrictive custody should
have been rendered moot and academic, in accordance with Section 55 of
Republic Act No. 8551, which provides:
SEC. 55. Section 47 of Republic Act No. 6975 is hereby amended to read
as follows:
Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of
a complaint or information sufficient in form and substance against a
member of the PNP for grave felonies where the penalty imposed by law is
six (6) years and one (1) day or more, the court shall immediately suspend
the accused from office for a period not exceeding ninety (90) days from
arraignment: Provided, however, That if it can be shown by evidence that
the accused is harassing the complainant and/or witnesses, the court may
order the preventive suspension of the accused PNP member even if the
charge is punishable by a penalty lower than six (6) years and one (1) day:
Provided, further, That the preventive suspension shall not be more than
ninety (90) days except if the delay in the disposition of the case is due to
the fault, negligence or petitions of the respondent: Provided, finally, That
such preventive suspension may be sooner lifted by the court in the
exigency of the service upon recommendation of the Chief, PNP. Such
case shall be subject to continuous trial and shall be terminated within
ninety (90) days from arraignment of the accused. (Emphasis supplied.)
Having conceded that there is no grave abuse of discretion on the part of
the trial court, we have to dismiss the petition.

In sum, petitioner is unable to discharge the burden of showing that she is

entitled to the issuance of the writ prayed for in behalf of her husband,
PO1 Ampatuan. The petition fails to show on its face that the latter is
unlawfully deprived of his liberty guaranteed and enshrined in the
Constitution.
WHEREFORE, premises considered, the instant petition is DISMISSED
for lack of merit.

G.R. No. 166682

BAGTAS vs. SANTOS

November 27, 2009

CARPIO, J.:

Antonio and Rosita S. Gallardo (Spouses Gallardo) are the parents of

Maricel S. Gallardo (Maricel). Two weeks after graduating from high school
in April 2000, Maricel ran away to live with her boyfriend. Maricel became
pregnant and gave birth to Maryl Joy S. Gallardo (Maryl Joy). Maricels
boyfriend left her.
In February 2002, Maricel returned to her parents. On the same day,
Maricel ran away again and lived with Noel B. Bagtas (Bagtas) and Lydia
B. Sioson (Sioson) at Ma. Corazon, Unirock, Barangay Sta. Cruz, Antipolo
City. Maricel went to Negros Occidental and left Maryl Joy in the custody of
Bagtas and Sioson. In a letter[5] dated 5 February 2001, Maricel
relinquished her rights over Maryl Joy to Bagtas and his wife. She stated:
Ako po si Maricel S. Gallardo 18 taong gulang ay kusang ipinagkaloob ang
aking anak sa pagkadalaga sa mag-asawang Noel B. Bagtas at Neneth A.
Bagtas sa kadahilanan pong itinakwil ako ng sarili kong mga magulang at
hindi ko po kayang buhayin at dahil po sa tinakbuhan ako ng aking
boyfriend kaya wala na pong ibang paraan para ako makabangon o
makapagsimula ng panibagong buhay kaya para mabigyan ng magandang
buhay ang aking anak inisip ko po na ito na ang pinaka madaling paraan
para po sa pagbabago ng aking buhay.
Kaya mula sa araw na ito ay wala na akong karapatan sa aking anak. Sila
ang tatayo bilang magulang ng aking anak.

In April 2002, the Spouses Gallardo tried to obtain the custody of Maryl Joy
from Bagtas and Sioson. Bagtas and Sioson refused. Unable to settle the
matter, the Spouses Gallardo filed with the RTC a petition[6] for habeas
corpus.
In its Order[7] dated 10 July 2002, the RTC issued a writ of habeas[8]
corpus directing the deputy sheriff to produce Maryl Joy before it and to
summon Bagtas and Sioson to explain why they were withholding the
custody of Maryl Joy.
The Spouses Gallardo, Bagtas and Sioson entered into a compromise
agreement. In its Order[9] dated 13 September 2002, the RTC stated:
In todays hearing, both parties appeared with their respective counsels
and have agreed on the following:
1.
that the child should be placed in custody of the petitioners on Friday,
Saturday and Sunday;
2. that the child should be returned to the respondents by the petitioners
on Sunday at 8:00 oclock in the evening subject to visitorial rights of the
petitioners anytime of the day; and
3.
that the child can be brought by the respondents to Valenzuela but
should be returned to the petitioners on Friday morning.
The above agreement shall take effect today and parties are ordered to
comply strictly with the said agreement under pain of contempt in case of
violation thereof.
On 29 September 2002, Bagtas and Sioson learned that Rosita S.
Gallardo brought Maryl Joy to Samar. In their motion[10] dated 30
September 2002, Bagtas and Sioson prayed that the Spouses Gallardo be
directed to produce Maryl Joy before the RTC, that they be directed to
explain why they violated the RTCs 13 September 2002 Order, and that
they be cited in contempt. In their motion[11] to dismiss dated 11 October
2002, Bagtas and Sioson prayed that the Spouses Gallardos action be
dismissed pursuant to Section 3, Rule 17, of the Rules of Court. Section 3
states that If, for no justifiable cause, the plaintiff fails x x x to comply with x
x x any order of the court, the complaint may be dismissed upon motion of
the defendant or upon the courts own motion. Bagtas and Sioson claimed
that the Spouses Gallardo failed to comply with the RTCs 13 September
2002 Order.
In its Order[12] dated 15 October 2002, the RTC cited the Spouses
Gallardo in contempt, fined them P500, and ordered them to produce
Maryl Joy before the trial court.

The RTCs Ruling

In its Order[13] dated 9 December 2002, the RTC dismissed the action for
having become moot. The RTC stated:
In this petition, the prayer of the petitioners is to produce the person of
Meryl [sic] Joy S. Gallardo before this court to be turned over to herein
petitioners who are the maternal [grandparents] of said minor.
Since the person subject of the petition has already produced [sic] to this
court and has been turned over to the petitioners, the issue on the petition
for habeas corpus is now moot and academic without prejudice to the filing
of the proper action to determine as to the rightful custody over the minor
child.
In view thereof, x x x the Motion to Dismiss is hereby granted but without
prejudice on the petitioners to file proper action for custody of the minor.
(Emphasis supplied)
In their motion[14] for reconsideration dated 27 December 2002, Bagtas
and Sioson alleged that the ground for the dismissal of the action was
erroneous. The action should have been dismissed pursuant to Section 3,
Rule 17, of the Rules of Court. They prayed that Maryl Joy be returned to
them to preserve the status quo ante. Bagtas and Sioson stated:

5.
Thus, the Honorable Court very clearly issued a conflicting Order
because It has cited the [Spouses Gallardo] in contempt of court for
violating the previous September 13, 2002 Order that the child should be
returned to the respondents in the evening of September 29, 2002
(Sunday), and yet the Honorable Court has dismissed the petition for being
moot and academic. This is in effect giving premium to the act of the
petitioners of not turning over the child to respondents on September 29,
2002. Likewise, this is tantamount to rewarding them for not producing the
child in court in violation of the aforesaid September 13, 2002 Order;
6. Moreover, the Honorable Court has issued an unreasonable Order by
stating that the dismissal of the instant case is without prejudice to the
filing of the proper action for custody of the minor by the petitioners. Why
would the petitioners still file the proper action for custody if they now have
the custody of the minor?
P R AY E R
WHEREFORE, premises considered, it is most respectfully prayed that the
December 9, 2002 Order of the Honorable Court be partially reconsidered
so that the dismissal of the case will not be based on the ground of being
moot and academic but based on failure to comply with the September 13,
2002 pursuant [sic] to Section 3, Rule 17 of the 1997 Rules of Civil
Procedure and that petitioners be consequently directed to return the
person subject of the petition to the respondents to preserve the status
quo ante.
In its Order[15] dated 21 April 2003, the RTC denied the motion for
reconsideration. The RTC held that the sole purpose of the petition for
habeas corpus was the production of Maryl Joy and that the Spouses
Gallardo exercised substitute parental authority over Maryl Joy. The RTC
stated that:
The allegations in the Petition show that the sole purpose for the filing of
the Petition is to cause the production before the Court of the person of
minor Meryl [sic] Joy S. Gallardo, not a determination of the legality or
illegality of respondents custody of the child, petitioners being aware of the
fact that the child was left by their (petitioners) daughter to [sic] the custody
of the respondents, as stated in par. no. 10 of the Petition.
The instant Petition is therefore, essentially not a petition for Habeas
Corpus as contemplated in Rule 102, Revised Rules of Court which is
resorted to in all cases of illegal confinement by which any person is
deprived of his liberty (Cruz vs. CA, 322 SCRA 518), but is resorted to also
where the rightful custody of any person is withheld from the person
entitled thereto as contemplated in Rule 102, Revised Rules of Court. In
order that the special remedy of Habeas Corpus maybe [sic] invoked, it is
necessary that there should be an actual and effective restraint or

deprivation of liberty. A nominal or moral restraint is not sufficient

(Gonzales vs. Viola, et al., 61 Phil 824).
Since therefore, the purpose of the instant Petition has already been
served, as the child has been produced and delivered to the petitioners,
the instant Petition logically has become moot and academic. Petitioners
are, under the law (Art. 214, Family Code), authorized to exercise
substitute parental authority over the child in case of death, absence or
unsuitability of the parents, the entitlement to the legal custody of the child
being necessarily included therein to make possible and/or enable the
petitioners to discharge their duties as substitute parents.
There is no inconsistency between the Order dated December 9, 2002
sought to be reconsidered, and the Order dated October 15, 2002, as the
latter was issued pursuant to an incident, an interlocutory matter, that is,
the failure of the petitioners to comply with the agreement reached
between the parties in open court on September 13, 2002. The said Order
dated October 15, 2002 is not a resolution of the case in the main, as it did
not terminate the case. The Order dated December 9, 2002, on the other
hand, terminated the case, and considering that the dismissal of the case
was unqualified, the same amounted to an adjudication on the merits
pursuant to Sec. 3, Rule 17 of the Revised Rules of Court Procedure,
therefore, the agreement earlier entered by and between the herein parties
is deemed terminated. (Emphasis supplied)
Bagtas filed with the Court of Appeals a petition[16] for certiorari under
Rule 65 of the Rules of Court. Bagtas alleged that (1) the RTC erred when
it ruled that the sole purpose of the 1 August 2002 petition was the
production of Maryl Joy before the trial court, (2) the RTC erred when it
ruled that the petition was essentially not a petition for Habeas Corpus as
contemplated in Rule 102, (3) the RTC erred when it ruled that there must
be actual and effective deprivation of liberty, (4) the RTC erred when it
ruled that the action had become moot, (5) the RTC erred when it ruled
that the Spouses Gallardo had substitute parental authority over Maryl Joy,
and (6) the RTC erred when it ruled that there was no inconsistency
between the 15 October and 9 December 2002 Orders.
The Court of Appeals Ruling
In its Decision dated 11 June 2004, the Court of Appeals dismissed the
petition and affirmed the 9 December 2002 and 23 April 2003 Orders of the
RTC. The Court of Appeals held that:
In the second part of [Section 1, Rule 102, of the Rules of Court], x x x
habeas corpus may be resorted to in cases where the rightful custody of
any person is withheld from the person entitled thereto. Accordingly, the
writ of habeas corpus is the proper remedy to enable herein private
respondents to regain the custody of their minor grand daughter Maryl Joy
who was admittedly left by her natural mother in the care of petitioner and
Lydia Sioson.
Significantly, in custody cases involving minors, the question of illegal or
involuntary restraint is not the underlying rationale for the availability of the
writ of habeas corpus as a remedy; rather, the writ is prosecuted for the
purpose of determining the right of custody of a child. By dismissing the
petition a quo, the trial court in effect upheld private respondents right of
custody over the minor involved as against that of petitioner.
While it cannot be gainsaid that private respondents obtained initial
custody of the minor in violation of a valid court order, we nonetheless
sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are
the grandparents of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence of her parents. What
is more, in awarding custody to private respondents, the best welfare of
the child was taken into consideration inasmuch as, per report of the Court
Social Worker, the implementation of the parties agreement would cause
more psychological damage and traumatic experience to Maryl Joy. To our
mind, therefore, the violation of a court order pales in significance when
considered alongside the best interest of the minor whose welfare requires
that she be in the custody of her grandparents rather than petitioners. x x x
Under the factual and legal milieux of the case, there is no question that as
grandparents of the minor, Maryl Joy, private respondents have a far
superior right of custody over her than petitioner.[17]

The Issues
In his petition dated 1 February 2005, Bagtas raised as issues that:
xxxxxxxxxxxxxxxxxxx
The Courts Ruling
The Court of Appeals erred when it affirmed the RTCs 9 December 2002
and 21 April 2003 Orders. In its Orders, the RTC ruled that, since the sole
purpose of the petition for habeas corpus was the production of Maryl Joy
before the trial court, the action became moot when Maryl Joy was
produced. The Court disagrees.
Section 1, Rule 102, of the Rules of Court states that the writ of habeas
corpus shall extend to all cases where the rightful custody of any person is
withheld from the persons entitled thereto. In cases involving minors, the
purpose of a petition for habeas corpus is not limited to the production of
the child before the court. The main purpose of the petition for habeas
corpus is to determine who has the rightful custody over the child. In Tijing
v. Court of Appeals,[18] the Court held that:
The writ of habeas corpus extends to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto.
Thus, it is the proper legal remedy to enable parents to regain the custody
of a minor child even if the latter be in the custody of a third person of his
own free will. It may even be said that in custody cases involving minors,
the question of illegal and involuntary restraint of liberty is not the
underlying rationale for the availability of the writ as a remedy. Rather, it is
prosecuted for the purpose of determining the right of custody over a child.
(Emphasis supplied)
The RTC erred when it hastily dismissed the action for having become
moot after Maryl Joy was produced before the trial court. It should have
conducted a trial to determine who had the rightful custody over Maryl Joy.
In dismissing the action, the RTC, in effect, granted the petition for habeas
corpus and awarded the custody of Maryl Joy to the Spouses Gallardo
without sufficient basis. In Laxamana v. Laxamana,[19] the Court held that:
Mindful of the nature of the case at bar, the court a quo should have
conducted a trial notwithstanding the agreement of the parties to submit
the case for resolution on the basis, inter alia, of the psychiatric report of
Dr. Teresito. Thus, petitioner is not estopped from questioning the absence
of a trial considering that said psychiatric report, which was the courts
primary basis in awarding custody to respondent, is insufficient to justify
the decision. The fundamental policy of the State to promote and protect
the welfare of children shall not be disregarded by mere technicality in
resolving disputes which involve the family and the youth. (Emphasis
supplied)
Article 214 of the Civil Code states that in case of absence or unsuitability
of the parents, substitute parental authority shall be exercised by the
surviving grandparent. Article 216 states that in default of parents or a
judicially appointed guardian, the surviving grandparent shall exercise
substitute parental authority over the child. Accordingly, in its 21 April 2003
Order, the RTC held that:
Petitioners are, under the law (Art. 214, Family Code), authorized to
exercise substitute parental authority over the child in case of death,
absence or unsuitability of the parents, the entitlement to the legal custody
of the child being necessarily included therein to make possible and/or
enable the petitioners to discharge their duties as substitute parents.[20]
In its 11 June 2004 Decision, the Court of Appeals held that:
While it cannot be gainsaid that private respondents obtained initial
custody of the minor in violation of a valid court order, we nonetheless
sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are
the grandparents of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence of her parents.[21]
In determining who has the rightful custody over a child, the childs welfare
is the most important consideration. The court is not bound by any legal

right of a person over the child. In Sombong v. Court of Appeals,[22] the

Court held that:
The controversy does not involve the question of personal freedom,
because an infant is presumed to be in the custody of someone until he
attains majority age. In passing on the writ in a child custody case, the
court deals with a matter of an equitable nature. Not bound by any mere
legal right of parent or guardian, the court gives his or her claim to the
custody of the child due weight as a claim founded on human nature and
considered generally equitable and just. Therefore, these cases are
decided, not on the legal right of the petitioner to be relieved from unlawful
imprisonment or detention, as in the case of adults, but on the courts view
of the best interests of those whose welfare requires that they be in
custody of one person or another. Hence, the court is not bound to deliver
a child into the custody of any claimant or of any person, but should, in the
consideration of the facts, leave it in such custody as its welfare at the time
appears to require. In short, the childs welfare is the supreme
consideration.
Considering that the childs welfare is an all-important factor in custody
cases, the Child and Youth Welfare Code unequivocally provides that in all
questions regarding the care and custody, among others, of the child, his
welfare shall be the paramount consideration. In the same vein, the Family
Code authorizes the courts to, if the welfare of the child so demands,
deprive the parents concerned of parental authority over the child or adopt
such measures as may be proper under the circumstances. (Emphasis
supplied)
In Sombong,[23] the Court laid down three requisites in petitions for
habeas corpus involving minors: (1) the petitioner has a right of custody
over the minor, (2) the respondent is withholding the rightful custody over
the minor, and (3) the best interest of the minor demands that he or she be
in the custody of the petitioner. In the present case, these requisites are
not clearly established because the RTC hastily dismissed the action and
awarded the custody of Maryl Joy to the Spouses Gallardo without
conducting any trial.
The proceedings before the RTC leave so much to be desired. While a
remand of the case would mean further delay, Maryl Joys best interest
demands that proper proceedings be conducted to determine the fitness of
the Spouses Gallardo to take care of her.
WHEREFORE, the Court REMANDS the case to the Regional Trial Court,
Judicial Region 4, Branch 72, Antipolo City, for the purpose of receiving
evidence to determine the fitness of the Spouses Antonio and Rosita S.
Gallardo to have custody of Maryl Joy Gallardo.

TAPUZ vs. DEL ROSARIO

G.R. No. 182484
June 17, 2008

BRION, J.:

The private respondents spouses Gregorio Sanson and Ma. Lourdes T.

Sanson (the private respondents), filed with the Fifth Municipal Circuit Trial
Court of Buruanga-Malay, Aklan (the MCTC) a complaint[3] dated 24 April
2006 for forcible entry and damages with a prayer for the issuance of a writ
of preliminary mandatory injunction against the petitioners Daniel
Masangkay Tapuz, Aurora Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn
Bamos Madriaga, Everly Tapuz Madriaga, Excel Tapuz, Ivan Tapuz and
Marian Timbas (the petitioners) and other John Does numbering about
120. The private respondents alleged in their complaint that: (1) they are
the registered owners under TCT No. 35813 of a 1.0093-hectare parcel of
land located at Sitio Pinaungon, Balabag, Boracay, Malay, Aklan (the
disputed land); (2) they were the disputed lands prior possessors when the
petitioners armed with bolos and carrying suspected firearms and together
with unidentified persons numbering 120 - entered the disputed land by
force and intimidation, without the private respondents permission and
against the objections of the private respondents security men, and built
thereon a nipa and bamboo structure.
In their Answer[4] dated 14 May 2006, the petitioners denied the material
allegations of the complaint. They essentially claimed that: (1) they are the
actual and prior possessors of the disputed land; (2) on the contrary, the
private respondents are the intruders; and (3) the private respondents
certificate of title to the disputed property is spurious. They asked for the
dismissal of the complaint and interposed a counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January 2007 a
decision[5] in the private respondents favor. It found prior possession the
key issue in forcible entry cases - in the private respondents favor, thus:
The key that could unravel the answer to this question lies in the Amended
Commissioners Report and Sketch found on pages 245 to 248 of the
records and the evidence the parties have submitted. It is shown in the
Amended Commissioners Report and Sketch that the land in question is
enclosed by a concrete and cyclone wire perimeter fence in pink and
green highlighter as shown in the Sketch Plan (p. 248). Said perimeter
fence was constructed by the plaintiffs 14 years ago. The foregoing
findings of the Commissioner in his report and sketch collaborated the
claim of the plaintiffs that after they acquired the land in question on May
27, 1993 through a Deed of Sale (Annex A, Affidavit of Gregorio Sanson,
p. 276, rec.), they caused the construction of the perimeter fence
sometime in 1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).
From the foregoing established facts, it could be safely inferred that the
plaintiffs were in actual physical possession of the whole lot in question
since 1993 when it was interrupted by the defendants (sic) when on
January 4, 2005 claiming to (sic) the Heirs of Antonio Tapuz entered a
portion of the land in question with view of inhabiting the same and
building structures therein prompting plaintiff Gregorio Sanson to confront
them before BSPU, Police Chief Inspector Jack L. Wanky and Barangay
Captain Glenn Sacapao. As a result of their confrontation, the parties
signed an Agreement (Annex D, Complaint p. 20) wherein they agreed to
vacate the disputed portion of the land in question and agreed not to build
any structures thereon.
The foregoing is the prevailing situation of the parties after the incident of
January 4, 2005 when the plaintiff posted security guards, however,
sometime on or about 6:30 A.M. of April 19, 2006, the defendants some
with bolos and one carrying a sack suspected to contain firearms with
other John Does numbering about 120 persons by force and intimidation
forcibly entered the premises along the road and built a nipa and bamboo
structure (Annex E, Complaint, p. 11) inside the lot in question which
incident was promptly reported to the proper authorities as shown by
plaintiffs Certification (Annex F, Complaint, p. 12) of the entry in the police
blotter and on same date April 19, 2006, the plaintiffs filed a complaint with
the Office of the Lupong Tagapamayapa of Barangay Balabag, Boracay
Island, Malay, Aklan but no settlement was reached as shown in their
Certificate to File Action (Annex G, Complaint, p. 13); hence the present
action.
Defendants (sic) contend in their answer that prior to January 4, 2005, they
were already occupants of the property, being indigenous settlers of the
same, under claim of ownership by open continuous, adverse possession
to the exclusion of other (sic). (Paragraph 4, Answer, p. 25).
The contention is untenable. As adverted earlier, the land in question is
enclosed by a perimeter fence constructed by the plaintiffs sometime in

1993 as noted by the Commissioner in his Report and reflected in his

Sketch, thus, it is safe to conclude that the plaintiffs where (sic) in actual
physical possession of the land in question from 1993 up to April 19, 2006
when they were ousted therefrom by the defendants by means of force.
Applying by analogy the ruling of the Honorable Supreme Court in the
case of Molina, et al. vs. De Bacud, 19 SCRA 956, if the land were in the
possession of plaintiffs from 1993 to April 19, 2006, defendants claims to
an older possession must be rejected as untenable because possession
as a fact cannot be recognized at the same time in two different
personalities.
Defendants likewise contend that it was the plaintiffs who forcibly entered
the land in question on April 18, 2006 at about 3:00 oclock in the afternoon
as shown in their Certification (Annex D, Defendants Position Paper, p.
135, rec.).
The contention is untenable for being inconsistent with their allegations
made to the commissioner who constituted (sic) the land in question that
they built structures on the land in question only on April 19, 2006 (Par.
D.4, Commissioners Amended Report, pp. 246 to 247), after there (sic)
entry thereto on even date.
Likewise, said contention is contradicted by the categorical statements of
defendants witnesses, Rowena Onag, Apolsida Umambong, Ariel Gac,
Darwin Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143144, rec.) [sic] categorically stated that on or about April 19, 2006, a group
of armed men entered the property of our said neighbors and built plastic
roofed tents. These armed men threatened to drive our said neighbors
away from their homes but they refused to leave and resisted the intruding
armed men.
From the foregoing, it could be safely inferred that no incident of forcible
entry happened on April 18, 2006 but it was only on April 19, 2006 when
the defendants overpowered by their numbers the security guards posted
by the plaintiffs prior to the controversy.
Likewise, defendants (sic) alleged burnt and other structures depicted in
their pictures attached as annexes to their position paper were not noted
and reflected in the amended report and sketch submitted by the
Commissioner, hence, it could be safely inferred that these structures are
built and (sic) situated outside the premises of the land in question,
accordingly, they are irrelevant to the instant case and cannot be
considered as evidence of their actual possession of the land in question
prior to April 19, 2006[6].
The petitioners appealed the MCTC decision to the Regional Trial Court
(RTC, Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M.
Marin (Judge Marin).
On appeal, Judge Marin granted the private respondents motion for the
issuance of a writ of preliminary mandatory injunction through an Order
dated 26 February 2007, with the issuance conditioned on the private
respondents posting of a bond. The writ[7] authorizing the immediate
implementation of the MCTC decision was actually issued by respondent
Judge Elmo F. del Rosario (the respondent Judge) on 12 March 2007 after
the private respondents had complied with the imposed condition. The
petitioners moved to reconsider the issuance of the writ; the private
respondents, on the other hand, filed a motion for demolition.
The respondent Judge subsequently denied the petitioners Motion for
Reconsideration and to Defer Enforcement of Preliminary Mandatory
Injunction in an Order dated 17 May 2007[8].
Meanwhile, the petitioners opposed the motion for demolition.[9] The
respondent Judge nevertheless issued via a Special Order[10] a writ of
demolition to be implemented fifteen (15) days after the Sheriffs written
notice to the petitioners to voluntarily demolish their house/s to allow the
private respondents to effectively take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of Appeals,
Cebu City, a Petition for Review[11] (under Rule 42 of the 1997 Rules of
Civil Procedure) of the Permanent Mandatory Injunction and Order of
Demolition of the RTC of Kalibo, Br. 6 in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to
Vacate and for Demolition on 19 March 2008.[12]

It was against this factual backdrop that the petitioners filed the present
petition last 29 April 2008. The petition contains and prays for three
remedies, namely: a petition for certiorari under Rule 65 of the Revised
Rules of Court; the issuance of a writ of habeas data under the Rule on the
Writ of Habeas Data; and finally, the issuance of the writ of amparo under
the Rule on the Writ of Amparo.
To support the petition and the remedies prayed for, the petitioners present
factual positions diametrically opposed to the MCTCs findings and legal
reasons. Most importantly, the petitioners maintain their claims of prior
possession of the disputed land and of intrusion into this land by the
private respondents. The material factual allegations of the petition bases
as well of the petition for the issuance of the writ of amparo read:
29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge
shot guns intruded into the property of the defendants [the land in dispute].
They were not in uniform. They fired their shotguns at the defendants.
Later the following day at 2:00 a.m. two houses of the defendants were
burned to ashes.
30. These armed men [without uniforms] removed the barbed wire fence
put up by defendants to protect their property from intruders. Two of the
armed men trained their shotguns at the defendants who resisted their
intrusion. One of them who was identified as SAMUEL LONGNO y
GEGANSO, 19 years old, single, and a resident of Binun-an, Batad, Iloilo,
fired twice.
31. The armed men torched two houses of the defendants reducing them
to ashes. [...]
32. These acts of TERRORISM and (heinous crime) of ARSON were
reported by one of the HEIRS OF ANTONIO TAPUZ [...]. The terrorists
trained their shotguns and fired at minors namely IVAN GAJISAN and
MICHAEL MAGBANUA, who resisted their intrusion. Their act is a blatant
violation of the law penalizing Acts of Violence against women and
children, which is aggravated by the use of high-powered weapons.
[]
34. That the threats to the life and security of the poor indigent and
unlettered petitioners continue because the private respondents Sansons
have under their employ armed men and they are influential with the police
authorities owing to their financial and political clout.
35. The actual prior occupancy, as well as the ownership of the lot in
dispute by defendants and the atrocities of the terrorists [introduced into
the property in dispute by the plaintiffs] are attested by witnesses who are
persons not related to the defendants are therefore disinterested
witnesses in the case namely: Rowena Onag, Apolsida Umambong, Ariel
Gac, Darwin Alvarez and Edgardo Penarada. Likewise, the affidavit of
Nemia T. Carmen is submitted to prove that the plaintiffs resorted to
atrocious acts through hired men in their bid to unjustly evict the
defendants.[13]
The petitioners posit as well that the MCTC has no jurisdiction over the
complaint for forcible entry that the private respondents filed below. Citing
Section 33 of The Judiciary Reorganization Act of 1980, as amended by
Republic Act No. 7691,[14] they maintain that the forcible entry case in fact
involves issues of title to or possession of real property or an interest
therein, with the assessed value of the property involved exceeding
P20,000.00; thus, the case should be originally cognizable by the RTC.
Accordingly, the petitioners reason out that the RTC - to where the MCTC
decision was appealed equally has no jurisdiction to rule on the case on
appeal and could not have validly issued the assailed orders.

the Court of Appeals on 2 August 2007, which indicates to us that the

assailed orders (or at the very least, the latest of the interrelated assailed
orders) were received on 1 August 2007 at the latest. The present petition,
on the other hand, was filed on April 29, 2008 or more than eight months
from the time the CA petition was filed. Thus, the present petition is
separated in point of time from the assumed receipt of the assailed RTC
orders by at least eight (8) months, i.e., beyond the reglementary period of
sixty (60) days[15] from receipt of the assailed order or orders or from
notice of the denial of a seasonably filed motion for reconsideration.
We note in this regard that the petitioners counsel stated in his attached
Certificate of Compliance with Circular #1-88 of the Supreme Court[16]
(Certificate of Compliance) that in the meantime the RTC and the Sheriff
issued a NOTICE TO VACATE AND FOR DEMOLITION not served to
counsel but to the petitioners who sent photo copy of the same NOTICE to
their counsel on April 18, 2008 by LBC. To guard against any insidious
argument that the present petition is timely filed because of this Notice to
Vacate, we feel it best to declare now that the counting of the 60-day
reglementary period under Rule 65 cannot start from the April 18, 2008
date cited by the petitioners counsel. The Notice to Vacate and for
Demolition is not an order that exists independently from the RTC orders
assailed in this petition and in the previously filed CA petition. It is merely a
notice, made in compliance with one of the assailed orders, and is thus an
administrative enforcement medium that has no life of its own separately
from the assailed order on which it is based. It cannot therefore be the
appropriate subject of an independent petition for certiorari under Rule 65
in the context of this case. The April 18, 2008 date cannot likewise be the
material date for Rule 65 purposes as the above-mentioned Notice to
Vacate is not even directly assailed in this petition, as the petitions Prayer
patently shows.[17]
Based on the same material antecedents, we find too that the petitioners
have been guilty of willful and deliberate misrepresentation before this
Court and, at the very least, of forum shopping.
By the petitioners own admissions, they filed a petition with the Court of
Appeals (docketed as CA G.R. SP No. 02859) for the review of the orders
now also assailed in this petition, but brought the present recourse to us,
allegedly because the CA did not act on the petition up to this date and for
the petitioner (sic) to seek relief in the CA would be a waste of time and
would render the case moot and academic since the CA refused to
resolve pending urgent motions and the Sheriff is determined to enforce a
writ of demolition despite the defect of LACK OF JURISDICTION.[18]
Interestingly, the petitioners counsel - while making this claim in the body
of the petition - at the same time represented in his Certificate of
Compliance[19] that:
xxx
(e) the petitioners went up to the Court of Appeals to question the WRIT
OF PRELIMINARY INJUNCTION copy of the petition is attached (sic);
(f) the CA initially issued a resolution denying the PETITION because it
held that the ORDER TO VACATE AND FOR DEMOLITION OF THE
HOMES OF PETITIONERS is not capable of being the subject of a
PETITION FOR RELIEF, copy of the resolution of the CA is attached
hereto; (underscoring supplied)
(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up
to this date the same had not been resolved copy of the MR is attached
(sic).
xxx

OUR RULING
We find the petitions for certiorari and issuance of a writ of habeas data
fatally defective, both in substance and in form. The petition for the
issuance of the writ of amparo, on the other hand, is fatally defective with
respect to content and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led to the
petition, that the petition for certiorari to nullify the assailed RTC orders has
been filed out of time. It is not lost on us that the petitioners have a
pending petition with the Court of Appeals (the CA petition) for the review
of the same RTC orders now assailed in the present petition, although the
petitioners never disclosed in the body of the present petition the exact
status of their pending CA petition. The CA petition, however, was filed with

The difference between the above representations on what transpired at

the appellate court level is replete with significance regarding the
petitioners intentions. We discern -- from the petitioners act of
misrepresenting in the body of their petition that the CA did not act on the
petition up to this date while stating the real Court of Appeals action in the
Certification of Compliance -- the intent to hide the real state of the
remedies the petitioners sought below in order to mislead us into action on
the RTC orders without frontally considering the action that the Court of
Appeals had already undertaken.
At the very least, the petitioners are obviously seeking to obtain from us,
via the present petition, the same relief that it could not wait for from the
Court of Appeals in CA-G.R. SP No. 02859. The petitioners act of seeking

against the same parties the nullification of the same RTC orders before
the appellate court and before us at the same time, although made through
different mediums that are both improperly used, constitutes willful and
deliberate forum shopping that can sufficiently serve as basis for the
summary dismissal of the petition under the combined application of the
fourth and penultimate paragraphs of Section 3, Rule 46; Section 5, Rule
7; Section 1, Rule 65; and Rule 56, all of the Revised Rules of Court. That
a wrong remedy may have been used with the Court of Appeals and
possibly with us will not save the petitioner from a forum-shopping violation
where there is identity of parties, involving the same assailed interlocutory
orders, with the recourses existing side by side at the same time.

(a) The personal circumstances of the petitioner;

To restate the prevailing rules, forum shopping is the institution of two or

more actions or proceedings involving the same parties for the same
cause of action, either simultaneously or successively, on the supposition
that one or the other court would make a favorable disposition. Forum
shopping may be resorted to by any party against whom an adverse
judgment or order has been issued in one forum, in an attempt to seek a
favorable opinion in another, other than by appeal or a special civil action
for certiorari. Forum shopping trifles with the courts, abuses their
processes, degrades the administration of justice and congest court
dockets. Willful and deliberate violation of the rule against it is a ground for
summary dismissal of the case; it may also constitute direct contempt.[20]

(d) The investigation conducted, if any, specifying the names, personal

circumstances, and addresses of the investigating authority or individuals,
as well as the manner and conduct of the investigation, together with any
report;

Additionally, the required verification and certification of non-forum

shopping is defective as one (1) of the seven (7) petitioners - Ivan Tapuz did not sign, in violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46;
Section 1, Rule 65; all in relation with Rule 56 of the Revised Rules of
Court. Of those who signed, only five (5) exhibited their postal identification
cards with the Notary Public.

The petition may include a general prayer for other just and equitable
reliefs.[22]

In any event, we find the present petition for certiorari, on its face and on
the basis of the supporting attachments, to be devoid of merit. The MCTC
correctly assumed jurisdiction over the private respondents complaint,
which specifically alleged a cause for forcible entry and not as petitioners
may have misread or misappreciated a case involving title to or
possession of realty or an interest therein. Under Section 33, par. 2 of The
Judiciary Reorganization Act, as amended by Republic Act (R.A.) No.
7691, exclusive jurisdiction over forcible entry and unlawful detainer cases
lies with the Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts. These first-level courts have had jurisdiction over
these cases called accion interdictal even before the R.A. 7691
amendment, based on the issue of pure physical possession (as opposed
to the right of possession). This jurisdiction is regardless of the assessed
value of the property involved; the law established no distinctions based on
the assessed value of the property forced into or unlawfully detained.
Separately from accion interdictal are accion publiciana for the recovery of
the right of possession as a plenary action, and accion reivindicacion for
the recovery of ownership.[21] Apparently, these latter actions are the ones
the petitioners refer to when they cite Section 33, par. 3, in relation with
Section 19, par. 2 of The Judiciary Reorganization Act of 1980, as
amended by Republic Act No. 7691, in which jurisdiction may either be
with the first-level courts or the regional trial courts, depending on the
assessed value of the realty subject of the litigation. As the complaint at
the MCTC was patently for forcible entry, that court committed no
jurisdictional error correctible by certiorari under the present petition.
In sum, the petition for certiorari should be dismissed for the cited formal
deficiencies, for violation of the non-forum shopping rule, for having been
filed out of time, and for substantive deficiencies.

The Writ of Amparo

To start off with the basics, the writ of amparo was originally conceived as
a response to the extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and effective
remedies to address these extraordinary concerns. It is intended to
address violations of or threats to the rights to life, liberty or security, as an
extraordinary and independent remedy beyond those available under the
prevailing Rules, or as a remedy supplemental to these Rules. What it is
not, is a writ to protect concerns that are purely property or commercial.
Neither is it a writ that we shall issue on amorphous and uncertain
grounds. Consequently, the Rule on the Writ of Amparo in line with the
extraordinary character of the writ and the reasonable certainty that its
issuance demands requires that every petition for the issuance of the Pwrit
must be supported by justifying allegations of fact, to wit:

(b) The name and personal circumstances of the respondent responsible

for the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;

(e) The actions and recourses taken by the petitioner to determine the fate
or whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(f) The relief prayed for.

The writ shall issue if the Court is preliminarily satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits
that detail the circumstances of how and to what extent a threat to or
violation of the rights to life, liberty and security of the aggrieved party was
or is being committed.
The issuance of the writ of amparo in the present case is anchored on the
factual allegations heretofore quoted,[23] that are essentially repeated in
paragraph 54 of the petition. These allegations are supported by the
following documents:
(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida
Umambong, Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, supporting
the factual positions of the petitioners, id., petitioners prior possession,
private respondents intrusion and the illegal acts committed by the private
respondents and their security guards on 19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal
acts (firing of guns, etc.) committed by a security guard against minors
descendants of Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially
corroborating Nemias affidavit;
(d) Certification dated 23 April 2006 issued by Police Officer Jackson
Jauod regarding the incident of petitioners intrusion into the disputed land;
(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis,
narrating the altercation between the Tapuz family and the security guards
of the private respondents, including the gun-poking and shooting incident
involving one of the security guards;
(f) Certification issued by Police Officer Christopher R. Mendoza, narrating
that a house owned by Josiel Tapuz, Jr., rented by a certain Jorge
Buenavente, was accidentally burned by a fire.
On the whole, what is clear from these statements - both sworn and
unsworn - is the overriding involvement of property issues as the petition
traces its roots to questions of physical possession of the property
disputed by the private parties. If at all, issues relating to the right to life or
to liberty can hardly be discerned except to the extent that the occurrence
of past violence has been alleged. The right to security, on the other hand,
is alleged only to the extent of the threats and harassments implied from
the presence of armed men bare to the waist and the alleged pointing and
firing of weapons. Notably, none of the supporting affidavits compellingly
show that the threat to the rights to life, liberty and security of the
petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of them the
statements of Nemia Carreon y Tapuz and Melanie Tapuz are practically
identical and unsworn. The Certification by Police Officer Jackson Jauod,
on the other hand, simply narrates what had been reported by one Danny
Tapuz y Masangkay, and even mentions that the burning of two residential
houses was accidental.

As against these allegations are the cited MCTC factual findings in its
decision in the forcible entry case which rejected all the petitioners factual
claims. These findings are significantly complete and detailed, as they
were made under a full-blown judicial process, i.e., after examination and
evaluation of the contending parties positions, evidence and arguments
and based on the report of a court-appointed commissioner.
We preliminarily examine these conflicting factual positions under the
backdrop of a dispute (with incidents giving rise to allegations of violence
or threat thereof) that was brought to and ruled upon by the MCTC;
subsequently brought to the RTC on an appeal that is still pending; still
much later brought to the appellate court without conclusive results; and
then brought to us on interlocutory incidents involving a plea for the
issuance of the writ of amparo that, if decided as the petitioners advocate,
may render the pending RTC appeal moot.
Under these legal and factual situations, we are far from satisfied with the
prima facie existence of the ultimate facts that would justify the issuance of
a writ of amparo. Rather than acts of terrorism that pose a continuing
threat to the persons of the petitioners, the violent incidents alleged appear
to us to be purely property-related and focused on the disputed land. Thus,
if the petitioners wish to seek redress and hold the alleged perpetrators
criminally accountable, the remedy may lie more in the realm of ordinary
criminal prosecution rather than on the use of the extraordinary remedy of
the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC findings,
as our action may carry the unintended effect, not only of reversing the
MCTC ruling independently of the appeal to the RTC that is now in place,
but also of nullifying the ongoing appeal process. Such effect, though
unintended, will obviously wreak havoc on the orderly administration of
justice, an overriding goal that the Rule on the Writ of Amparo does not
intend to weaken or negate.
Separately from these considerations, we cannot fail but consider too at
this point the indicators, clear and patent to us, that the petitioners present
recourse via the remedy of the writ of amparo is a mere subterfuge to
negate the assailed orders that the petitioners sought and failed to nullify
before the appellate court because of the use of an improper remedial
measure. We discern this from the petitioners misrepresentations pointed
out above; from their obvious act of forum shopping; and from the recourse
itself to the extraordinary remedies of the writs of certiorari and amparo
based on grounds that are far from forthright and sufficiently compelling. To
be sure, when recourses in the ordinary course of law fail because of
deficient legal representation or the use of improper remedial measures,
neither the writ of certiorari nor that of amparo - extraordinary though they
may be - will suffice to serve as a curative substitute. The writ of amparo,
particularly, should not issue when applied for as a substitute for the
appeal or certiorari process, or when it will inordinately interfere with these
processes the situation obtaining in the present case.
While we say all these, we note too that the Rule on the Writ of Amparo
provides for rules on the institution of separate actions,[24] for the effect of
earlier-filed criminal actions,[25] and for the consolidation of petitions for
the issuance of a writ of amparo with a subsequently filed criminal and civil
action.[26] These rules were adopted to promote an orderly procedure for
dealing with petitions for the issuance of the writ of amparo when the
parties resort to other parallel recourses.
Where, as in this case, there is an ongoing civil process dealing directly
with the possessory dispute and the reported acts of violence and
harassment, we see no point in separately and directly intervening through
a writ of amparo in the absence of any clear prima facie showing that the
right to life, liberty or security the personal concern that the writ is intended
to protect - is immediately in danger or threatened, or that the danger or
threat is continuing. We see no legal bar, however, to an application for the
issuance of the writ, in a proper case, by motion in a pending case on
appeal or on certiorari, applying by analogy the provisions on the coexistence of the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires the following
material allegations of ultimate facts in a petition for the issuance of a writ
of habeas data:
(a) The personal circumstances of the petitioner and the respondent;

(b) The manner the right to privacy is violated or threatened and how it
affects the right to life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(d) The location of the files, registers or databases, the government office,
and the person in charge, in possession or in control of the data or
information, if known;
(e) The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by
the respondent.
In case of threats, the relief may include a prayer for an order enjoining the
act complained of; and
(f) Such other relevant reliefs as are just and equitable.
Support for the habeas data aspect of the present petition only alleges
that:
1. [ ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so
that the PNP may release the report on the burning of the homes of the
petitioners and the acts of violence employed against them by the private
respondents, furnishing the Court and the petitioners with copy of the
same;
[]
66. Petitioners apply for a WRIT OF HABEAS DATA commanding the
Philippine National Police [PNP] to produce the police report pertaining to
the burning of the houses of the petitioners in the land in dispute and
likewise the investigation report if an investigation was conducted by the
PNP.
These allegations obviously lack what the Rule on Writ of Habeas Data
requires as a minimum, thus rendering the petition fatally deficient.
Specifically, we see no concrete allegations of unjustified or unlawful
violation of the right to privacy related to the right to life, liberty or security.
The petition likewise has not alleged, much less demonstrated, any need
for information under the control of police authorities other than those it
has already set forth as integral annexes. The necessity or justification for
the issuance of the writ, based on the insufficiency of previous efforts
made to secure information, has not also been shown. In sum, the prayer
for the issuance of a writ of habeas data is nothing more than the fishing
expedition that this Court - in the course of drafting the Rule on habeas
data - had in mind in defining what the purpose of a writ of habeas data is
not. In these lights, the outright denial of the petition for the issuance of the
writ of habeas data is fully in order.
WHEREFORE, premises considered, we hereby DISMISS the present
petition OUTRIGHT for deficiencies of form and substance patent from its
body and attachments.

G. R. No. 182161

REYES vs. GONZALEZ

December 3, 2009
LEONARDO-DE CASTRO,
J.:

Petitioner was among those arrested in the Manila Peninsula Hotel siege
on November 30, 2007. In the morning of November 30, 2007, petitioner
together with fifty (50) others, were brought to Camp Crame to await
inquest proceedings. In the evening of the same day, the Department of
Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco,
Phillip L. Dela Cruz and Aristotle M. Reyes, conducted inquest
proceedings to ascertain whether or not there was probable cause to hold
petitioner and the others for trial on charges of Rebellion and/or Inciting to
Rebellion.
On December 1, 2007, upon the request of the Department of Interior and
Local Government (DILG), respondent DOJ Secretary Raul Gonzales
issued Hold Departure Order (HDO) No. 45 ordering respondent
Commissioner of Immigration to include in the Hold Departure List of the
Bureau of Immigration and Deportation (BID) the name of petitioner and 49
others relative to the aforementioned case in the interest of national
security and public safety.
On December 2, 2007, after finding probable cause against petitioner and
36 others for the crime of Rebellion under Article 134 of the Revised Penal
Code, the DOJ Panel of Prosecutors filed an Information docketed as I.S.
No. 2007-1045 before the Regional Trial Court, Branch 150 of Makati City.
On December 7, 2007, petitioner filed a Motion for Judicial Determination
of Probable Cause and Release of the Accused Fr. Reyes Upon
Recognizance asserting that the DOJ panel failed to produce any evidence
indicating his specific participation in the crime charged; and that under the
Constitution, the determination of probable cause must be made
personally by a judge.

Hold Departure Orders under the DOJ Circulars No. 17, Series of 1998[2]
and No. 18 Series of 2007[3] pursuant to his mandate under the
Administrative Code of 1987 as ahead of the principal law agency of the
government; 2) that HDO No. 45 dated December 1, 2007 was issued by
the Sec. Gonzales in the course of the preliminary investigation of the case
against herein petitioner upon the request of the DILG; 3) that the lifting of
HDO No. 45 is premature in view of public respondents pending Motion for
Reconsideration dated January 3, 2008 filed by the respondents of the
Order dated December 13, 2007 of the RTC dismissing Criminal Case No.
07-3126 for Rebellion for lack of probable cause; 4) that petitioner failed to
exhaust administrative remedies by filing a motion to lift HDO No. 45
before the DOJ; and 5) that the constitutionality of Circulars No. 17 and 18
can not be attacked collaterally in an amparo proceeding.
During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of
the Court of Appeals, counsels for both parties appeared. Petitioners
counsel Atty. Francisco Chavez manifested that petitioner is currently in
Hong Kong; that every time petitioner would leave and return to the
country, the immigration officers at the NAIA detain and interrogate him for
several minutes because of the existing HDO; that the power of the DOJ
Secretary to issue HDO has no legal basis; and that petitioner did not file a
motion to lift the HDO before the RTC nor the DOJ because to do so would
be tantamount to recognizing the power of the DOJ Secretary to issue
HDO.
For respondents part, the Office of the Solicitor-General (OSG) maintained
that the Secretary of the DOJs power to issue HDO springs from its
mandate under the Administrative Code to investigate and prosecute
offenders as the principal law agency of the government; that in its tenyear existence, the constitutionality of DOJ Circular No. 17 has not been
challenged except now; and that on January 3, 2008, the DOJ Panel of
Investigating Prosecutors had filed a Motion for Reconsideration of the
Order of Dismissal of the trial court.

On December 13, 2007, the RTC issued an Order dismissing the charge
for Rebellion against petitioner and 17 others for lack of probable cause.
The trial court ratiocinated that the evidence submitted by the DOJ Panel
of Investigating Prosecutors failed to show that petitioner and the other
accused-civilians conspired and confederated with the accused-soldiers in
taking arms against the government; that petitioner and other accusedcivilians were arrested because they ignored the call of the police despite
the deadline given to them to come out from the 2nd Floor of the Hotel and
submit themselves to the police authorities; that mere presence at the
scene of the crime and expressing ones sentiments on electoral and
political reforms did not make them conspirators absent concrete evidence
that the accused-civilians knew beforehand the intent of the accusedsoldiers to commit rebellion; and that the cooperation which the law
penalizes must be one that is knowingly and intentionally rendered.

On February 1, 2008, petitioner filed a Manifestation attaching thereto a

copy of the Order dated January 31, 2008 of the trial court denying
respondent DOJs Motion for Reconsideration for utter lack of merit. The
trial court also observed that the said Motion should be dismissed outright
for being filed out of time. [4]

On December 18, 2007, petitioners counsel Atty. Francisco L. Chavez

wrote the DOJ Secretary requesting the lifting of HDO No. 45 in view of the
dismissal of Criminal Case No. 07-3126.

Petitioners Motion for Reconsideration[5] thereon was also denied in the

assailed Resolution[6] dated March 25, 2008.

On even date, Secretary Gonzales replied to petitioners letter stating that

the DOJ could not act on petitioners request until Atty. Chavezs right to
represent petitioner is settled in view of the fact that a certain Atty. J. V.
Bautista representing himself as counsel of petitioner had also written a
letter to the DOJ.
On January 3, 2008, petitioner filed the instant petition claiming that
despite the dismissal of the rebellion case against petitioner, HDO No. 45
still subsists; that on December 19, 2007, petitioner was held by BID
officials at the NAIA as his name is included in the Hold Departure List;
that had it not been for the timely intervention of petitioners counsel,
petitioner would not have been able to take his scheduled flight to Hong
Kong; that on December 26, 2007, petitioner was able to fly back to the
Philippines from Hong Kong but every time petitioner would present
himself at the NAIA for his flights abroad, he stands to be detained and
interrogated by BID officers because of the continued inclusion of his
name in the Hold Departure List; and that the Secretary of Justice has not
acted on his request for the lifting of HDO No. 45. Petitioner further
maintained that immediate recourse to the Supreme Court for the
availment of the writ is exigent as the continued restraint on petitioners
right to travel is illegal.
On January 24, 2008, respondents represented by the Office of the
Solicitor General (OSG) filed the Return of the Writ raising the following
affirmative defenses: 1) that the Secretary of Justice is authorized to issue

The petition for a writ of amparo is anchored on the ground that

respondents violated petitioners constitutional right to travel. Petitioner
argues that the DOJ Secretary has no power to issue a Hold Departure
Order (HDO) and the subject HDO No. 45 has no legal basis since
Criminal Case No. 07-3126 has already been dismissed.
On February 4, 2008, the CA rendered the assailed Decision dismissing
the petition and denying the privilege of the writ of amparo.

Hence, the present petition which is based on the following grounds:

Xxxxxxxxxxxxxxxxxx
Petitioner maintains that the writ of amparo does not only exclusively apply
to situations of extrajudicial killings and enforced disappearances but
encompasses the whole gamut of liberties protected by the Constitution.
Petitioner argues that [liberty] includes the right to exist and the right to be
free from arbitrary personal restraint or servitude and includes the right of
the citizens to be free to use his faculties in all lawful ways. Part of the right
to liberty guaranteed by the Constitution is the right of a person to travel.
In their Comment,[8] both respondents Secretary Gonzalez and
Commissioner Libanan argue that: 1) HDO No. 45 was validly issued by
the Secretary of Justice in accordance with Department of Justice Circular
No. 17, Series of 1998,[9] and Circular No. 18, Series of 2007,[10] which
were issued pursuant to said Secretarys mandate under the Administrative
Code of 1987, as head of the principal law agency of the government, to
investigate the commission of crimes, prosecute offenders, and provide
immigration regulatory services; and; 2) the issue of the constitutionality of
the DOJ Secretarys authority to issue hold departure orders under DOJ
Circulars Nos. 17 and 18 is not within the ambit of a writ of amparo.

The case hinges on the issue as to whether or not petitioners right to

liberty has been violated or threatened with violation by the issuance of the
subject HDO, which would entitle him to the privilege of the writ of amparo.
The petition must fail.

The writ shall issue if the Court is preliminarily satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits
that detail the circumstances of how and to what extent a threat to or
violation of the rights to life, liberty and security of the aggrieved party was
or is being committed. (Emphasis supplied)

Section 1 of the Rule on the Writ of Amparo provides:

SECTION 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a public official
or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof.
The Court, in Secretary of National Defense et al. v. Manalo et al.,[11]
made a categorical pronouncement that the Amparo Rule in its present
form is confined to these two instances of extralegal killings and enforced
disappearances, or to threats thereof, thus:
x x x As the Amparo Rule was intended to address the intractable problem
of extralegal killings and enforced disappearances, its coverage, in its
present form, is confined to these two instances or to threats thereof.
Extralegal killings are killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings. On the other hand,
enforced disappearances are attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a refusal to acknowledge
the deprivation of liberty which places such persons outside the protection
of law.[12]
In Tapuz v. Del Rosario,[13] the Court laid down the basic principle
regarding the rule on the writ of amparo as follows:
To start off with the basics, the writ of amparo was originally conceived as
a response to the extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and effective
remedies to address these extraordinary concerns. It is intended to
address violations of or threats to the rights to life, liberty or security, as an
extraordinary and independent remedy beyond those available under the
prevailing Rules, or as a remedy supplemental to these Rules. What it is
not, is a writ to protect concerns that are purely property or commercial.
Neither is it a writ that we shall issue on amorphous and uncertain
grounds. Consequently, the Rule on the Writ of Amparo in line with the
extraordinary character of the writ and the reasonable certainty that its
issuance demands requires that every petition for the issuance of the writ
must be supported by justifying allegations of fact, to wit:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible
for the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals,
as well as the manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine the fate
or whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable
reliefs.[14]

Here, petitioner invokes this extraordinary remedy of the writ of amparo for
the protection of his right to travel. He insists that he is entitled to the
protection covered by the Rule on the Writ of Amparo because the HDO is
a continuing actual restraint on his right to travel. The Court is thus called
upon to rule whether or not the right to travel is covered by the Rule on the
Writ of Amparo.
The rights that fall within the protective mantle of the Writ of Amparo under
Section 1 of the Rules thereon are the following: (1) right to life; (2) right to
liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et al.,[15] the Court
explained the concept of right to life in this wise:
While the right to life under Article III, Section 1 guarantees essentially the
right to be alive- upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure
quality of this life, viz: The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by
a powerful ruler. Rather, it is a life lived with the assurance that the
government he established and consented to, will protect the security of
his person and property. The ideal of security in life and property pervades
the whole history of man. It touches every aspect of mans existence. In a
broad sense, the right to security of person emanates in a persons legal
and uninterrupted enjoyment of his life, his limbs, his body, his health, and
his reputation. It includes the right to exist, and the right to enjoyment of
life while existing, and it is invaded not only by a deprivation of life but also
of those things which are necessary to the enjoyment of life according to
the nature, temperament, and lawful desires of the individual.[16]
The right to liberty, on the other hand, was defined in the City of Manila, et
al. v. Hon. Laguio, Jr.,[17] in this manner:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm
to include the right to exist and the right to be free from arbitrary restraint
or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare. x x
x
Secretary of National Defense et al. v. Manalo et al.[18] thoroughly
expounded on the import of the right to security, thus:
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is freedom from fear. In its whereas
clauses, the Universal Declaration of Human Rights (UDHR) enunciates
that a world in which human beings shall enjoy freedom of speech and
belief and freedom from fear and want has been proclaimed as the highest
aspiration of the common people. (emphasis supplied) Some scholars
postulate that freedom from fear is not only an aspirational principle, but
essentially an individual international human right. It is the right to security
of person as the word security itself means freedom from fear. Article 3 of
the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.
xxx
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, freedom from fear is the
right and any threat to the rights to life, liberty or security is the actionable
wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of
action. Fear caused by the same stimulus can range from being baseless
to well-founded as people react differently. The degree of fear can vary
from one person to another with the variation of the prolificacy of their
imagination, strength of character or past experience with the stimulus.

Thus, in the amparo context, it is more correct to say that the right to
security is actually the freedom from threat. Viewed in this light, the
threatened with violation Clause in the latter part of Section 1 of the
Amparo Rule is a form of violation of the right to security mentioned in the
earlier part of the provision.
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, ones body cannot be
searched or invaded without a search warrant. Physical injuries inflicted in
the context of extralegal killings and enforced disappearances constitute
more than a search or invasion of the body. It may constitute
dismemberment, physical disabilities, and painful physical intrusion. As the
degree of physical injury increases, the danger to life itself escalates.
Notably, in criminal law, physical injuries constitute a crime against
persons because they are an affront to the bodily integrity or security of a
person.

power of the DOJ Secretary to issue an HDO.[24] We quote with approval

the CAs ruling on this matter:
The said provision [Section 22] is an affirmation by the Supreme Court of
its pronouncement in Crespo v. Mogul[25] that once a complaint or
information is filed in court, any disposition of the case such as its
dismissal or its continuation rests on the sound discretion of the court.
Despite the denial of respondents MR of the dismissal of the case against
petitioner, the trial court has not lost control over Criminal Case No. 073126 which is still pending before it. By virtue of its residual power, the
court a quo retains the authority to entertain incidents in the instant case to
the exclusion of even this Court. The relief petitioner seeks which is the
lifting of the HDO was and is available by motion in the criminal case.
(Sec. 22, Rule on the Writ of amparo, supra).[26]
Even in civil cases pending before the trial courts, the Court has no
authority to separately and directly intervene through the writ of amparo,
as elucidated in Tapuz v. Del Rosario,[27] thus:

xxx
Third, the right to security of person is a guarantee of protection of ones
rights by the government. In the context of the writ of amparo, this right is
built into the guarantees of the right to life and liberty under Article III,
Section 1 of the 1987 Constitution and the right to security of person (as
freedom from threat and guarantee of bodily and psychological integrity)
under Article III, Section 2. The right to security of person in this third
sense is a corollary of the policy that the State guarantees full respect for
human rights under Article II, Section 11 of the 1987 Constitution. As the
government is the chief guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. x x x (emphasis supplied) [19]
The right to travel refers to the right to move from one place to another.[20]
As we have stated in Marcos v. Sandiganbayan,[21] xxx a persons right to
travel is subject to the usual constraints imposed by the very necessity of
safeguarding the system of justice. In such cases, whether the accused
should be permitted to leave the jurisdiction for humanitarian reasons is a
matter of the courts sound discretion. [22]
Here, the restriction on petitioners right to travel as a consequence of the
pendency of the criminal case filed against him was not unlawful.
Petitioner has also failed to establish that his right to travel was impaired in
the manner and to the extent that it amounted to a serious violation of his
right to life, liberty and security, for which there exists no readily available
legal recourse or remedy.
In Canlas et al. v. Napico Homeowners Association I XIII, Inc. et al.,[23]
this Court ruled that:
This new remedy of writ of amparo which is made available by this Court is
intended for the protection of the highest possible rights of any person,
which is his or her right to life, liberty and security. The Court will not spare
any time or effort on its part in order to give priority to petitions of this
nature. However, the Court will also not waste its precious time and effort
on matters not covered by the writ.
We find the direct recourse to this Court inappropriate, considering the
provision of Section 22 of the Rule on the Writ of Amparo which reads:
Section 22. Effect of Filing of a Criminal Action. When a criminal action has
been commenced, no separate petition for the writ shall be filed. The
reliefs under the writ shall be available by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the reliefs
available under the writ of amparo.
Pursuant to the aforementioned Section 22, petitioner should have filed
with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 073126. Petitioner, however, did not file in the RTC-Makati a motion to lift the
DOJs HDO, as his co-accused did in the same criminal case. Petitioner
argues that it was not the RTC-Makati but the DOJ that issued the said
HDO, and that it is his intention not to limit his remedy to the lifting of the
HDO but also to question before this Court the constitutionality of the

Where, as in this case, there is an ongoing civil process dealing directly

with the possessory dispute and the reported acts of violence and
harassment, we see no point in separately and directly intervening through
a writ of amparo in the absence of any clear prima facie showing that the
right to life, liberty or securitythe personal concern that the writ is
intended to protectis immediately in danger or threatened, or that the
danger or threat is continuing. We see no legal bar, however, to an
application for the issuance of the writ, in a proper case, by motion in a
pending case on appeal or on certiorari, applying by analogy the
provisions on the co-existence of the writ with a separately filed criminal
case.
Additionally, petitioner is seeking the extraordinary writ of amparo due to
his apprehension that the DOJ may deny his motion to lift the HDO.[28]
Petitioners apprehension is at best merely speculative. Thus, he has failed
to show any clear threat to his right to liberty actionable through a petition
for a writ of amparo. The absence of an actual controversy also renders it
unnecessary for us on this occasion to pass upon the constitutionality of
DOJ Circular No. 17, Series of 1998 (Prescribing Rules and Regulations
Governing the Issuance of Hold Departure Orders); and Circular No. 18,
Series of 2007 (Prescribing Rules and Regulations Governing the
Issuance and Implementation of Watchlist Orders and for Other Purposes).
WHEREFORE, the petition is DISMISSED.

G.R. No. 204528

DE LIMA vs. GATDULA

February 19, 2013

LEONEN, J.:

Submitted for our resolution is a prayer for the issuance of a temporary

restraining order and/or writ of preliminary injunction to enjoin "the
Regional Trial Court, Branch 26, in Manila from implementing its Decision
x x x in Civil Case No. 12-127405 granting respondent's application for the
issuance of inspection and production orders x x x."1 This is raised
through a Petition for Review on Certiorari under Rule 45 from the
"Decision" rendered by the Regional Trial Court dated 20 March 2012.
From the records, it appears that on 27 February 2012, respondent
Magtanggol B. Gatdula filed a Petition for the Issuance of a Writ of Amparo
in the Regional Trial Court of Manila.2 This case was docketed as In the
Matter of the Petition for Issuance of Writ of Amparo of Atty. Magtanggol B.
Gatdula, SP No. 12-127405. It was raffled to the sala of Judge Silvino T.
Pampilo, Jr. on the same day.
The Amparo was directed against petitioners Justice Secretary Leila M. De
Lima, Director Nonnatus R. Rojas and Deputy Director Reynaldo O.
Esmeralda of the National Bureau of Investigation (DE LIMA, ET AL. for
brevity). Gatdula wanted De Lima, et al. "to cease and desist from framing
up Petitioner [Gatdula] for the fake ambush incident by filing bogus
charges of Frustrated Murder against Petitioner [Gatdula] in relation to the
alleged ambush incident."3
Instead of deciding on whether to issue a Writ of Amparo, the judge issued
summons and ordered De Lima, et al. to file an Answer.4 He also set the
case for hearing on 1 March 2012. The hearing was held allegedly for
determining whether a temporary protection order may be issued. During
that hearing, counsel for De Lima, et al. manifested that a Return, not an
Answer, is appropriate for Amparo cases.5
In an Order dated 2 March 2012,6 Judge Pampilo insisted that "[s]ince no
writ has been issued, return is not the required pleading but answer".7 The
judge noted that the Rules of Court apply suppletorily in Amparo cases.8
He opined that the Revised Rules of Summary Procedure applied and thus
required an Answer.9
Judge Pampilo proceeded to conduct a hearing on the main case on 7
March 2012.10 Even without a Return nor an Answer, he ordered the
parties to file their respective memoranda within five (5) working days after
that hearing. Since the period to file an Answer had not yet lapsed by then,
the judge also decided that the memorandum of De Lima, et al. would be
filed in lieu of their Answer.11
On 20 March 2012, the RTC rendered a "Decision" granting the issuance
of the Writ of Amparo. The RTC also granted the interim reliefs prayed for,
namely: temporary protection, production and inspection orders. The
production and inspection orders were in relation to the evidence and
reports involving an on-going investigation of the attempted assassination
of Deputy Director Esmeralda. It is not clear from the records how these
pieces of evidence may be related to the alleged threat to the life, liberty or
security of the respondent Gatdula.
In an Order dated 8 October 2012, the RTC denied the Motion for
Reconsideration dated 23 March 2012 filed by De Lima, et al.
Petitioners Sec. De Lima, et al. thus came to this Court assailing the RTC
"Decision" dated 20 March 2012 through a Petition for Review on
Certiorari (With Very Urgent Application for the Issuance of a Temporary
Restraining Order/Writ of Preliminary Injunction) via Rule 45, as
enunciated in Section 19 of the Rule on the Writ of Amparo (A.M. No. 07-912-SC, 25 September 2007), viz:
SEC. 19. Appeal. Any party may appeal from the final judgment or order
to the Supreme Court under Rule 45. The appeal may raise questions of
fact or law or both. x x x (Emphasis supplied).
It is the Courts view that the "Decision" dated 20 March 2012 granting the
writ of Amparo is not the judgment or final order contemplated under this
rule. Hence, a Petition for Review under Rule 45 may not yet be the proper
remedy at this time.
The RTC and the Parties must understand the nature of the remedy of
Amparo to put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and extraordinary
remedy to safeguard the right of the people to life, liberty12 and security13
as enshrined in the 1987 Constitution.14 The Rule on the Writ of Amparo
was issued as an exercise of the Supreme Court's power to promulgate

rules concerning the protection and enforcement of constitutional rights.15

It aims to address concerns such as, among others, extrajudicial killings
and enforced disappearances.16
Due to the delicate and urgent nature of these controversies, the
procedure was devised to afford swift but decisive relief.17 It is initiated
through a petition18 to be filed in a Regional Trial Court, Sandiganbayan,
the Court of Appeals, or the Supreme Court.19 The judge or justice then
makes an "immediate" evaluation20 of the facts as alleged in the petition
and the affidavits submitted "with the attendant circumstances detailed".21
After evaluation, the judge has the option to issue the Writ of Amparo22 or
immediately dismiss the case. Dismissal is proper if the petition and the
supporting affidavits do not show that the petitioner's right to life, liberty or
security is under threat or the acts complained of are not unlawful. On the
other hand, the issuance of the writ itself sets in motion presumptive
judicial protection for the petitioner. The court compels the respondents to
appear before a court of law to show whether the grounds for more
permanent protection and interim reliefs are necessary.
The respondents are required to file a Return23 after the issuance of the
writ through the clerk of court. The Return serves as the responsive
pleading to the petition.24 Unlike an Answer, the Return has other
purposes aside from identifying the issues in the case. Respondents are
also required to detail the actions they had taken to determine the fate or
whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are also required
to state the actions they had taken to: (i) verify the identity of the aggrieved
party; (ii) recover and preserve evidence related to the death or
disappearance of the person identified in the petition; (iii) identify
witnesses and obtain statements concerning the death or disappearance;
(iv) determine the cause, manner, location, and time of death or
disappearance as well as any pattern or practice that may have brought
about the death or disappearance; and (vi) bring the suspected offenders
before a competent court.25 Clearly these matters are important to the
judge so that s/he can calibrate the means and methods that will be
required to further the protections, if any, that will be due to the petitioner.
There will be a summary hearing26 only after the Return is filed to
determine the merits of the petition and whether interim reliefs are
warranted. If the Return is not filed, the hearing will be done ex parte.27
After the hearing, the court will render the judgment within ten (10) days
from the time the petition is submitted for decision.28
If the allegations are proven with substantial evidence, the court shall grant
the privilege of the writ and such reliefs as may be proper and
appropriate.29 The judgment should contain measures which the judge
views as essential for the continued protection of the petitioner in the
Amparo case. These measures must be detailed enough so that the judge
may be able to verify and monitor the actions taken by the respondents. It
is this judgment that could be subject to appeal to the Supreme Court via
Rule 45.30 After the measures have served their purpose, the judgment
will be satisfied. In Amparo cases, this is when the threats to the
petitioners life, liberty and security cease to exist as evaluated by the court
that renders the judgment. Parenthetically, the case may also be
terminated through consolidation should a subsequent case be filed
either criminal or civil.31 Until the full satisfaction of the judgment, the
extraordinary remedy of Amparo allows vigilant judicial monitoring to
ensure the protection of constitutional rights.
The "Decision" dated 20 March 2012 assailed by the petitioners could not
be the judgment or final order that is appealable under Section 19 of the
Rule on the Writ of Amparo. This is clear from the tenor of the dispositive
portion of the "Decision", to wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the
Writ of Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the
service of the Writ of Amparo in an expeditious manner upon all
concerned, and for this purpose may call upon the assistance of any
military or civilian agency of the government.
This "Decision" pertained to the issuance of the writ under Section 6 of the
Rule on the Writ of Amparo, not the judgment under Section 18. The
"Decision" is thus an interlocutory order, as suggested by the fact that
temporary protection, production and inspection orders were given
together with the decision. The temporary protection, production and
inspection orders are interim reliefs that may be granted by the court upon
filing of the petition but before final judgment is rendered.32

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

the RTC.

More importantly, a memorandum is a prohibited pleading under the Rule

on the Writ of Amparo.35

First, the insistence on filing of an Answer was inappropriate. It is the

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

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

Judge Pampilos basis for requiring an Answer was mentioned in his Order
dated 2 March 2012:
Under Section 25 of the same rule [on the Writ of Amparo], the Rules of
Court shall apply suppletorily insofar as it is not inconsistent with the said
rule.
Considering the summary nature of the petition, Section 5 of the Revised
Rules of Summary Procedure shall apply.
Section 5. Answer Within ten (10) days from service of summons, the
defendant shall file his Answer to the complaint and serve a copy thereof
on the plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are required to
file their Answer ten (days) from receipt of this Order.33
The 1991 Revised Rules of Summary Procedure is a special rule that the
Court has devised for the following circumstances:
SECTION 1. Scope. This rule shall govern the summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, and the Municipal Circuit Trial Courts in the following cases
falling within their jurisdiction:

"Accordingly this court GRANTS the privilege of the writ and the interim
reliefs prayed for by the petitioner." (Emphasis supplied).
This gives the impression that the decision was the judgment since the
phraseology is similar to Section 18 of the Rule on the Writ of Amparo:
"SEC. 18. Judgment. The court shall render judgment within ten (10)
days from the time the petition is submitted for decision. If the allegations
in the petition are proven by substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be denied." (Emphasis supplied).
The privilege of the Writ of Amparo should be distinguished from the actual
order called the Writ of Amparo. The privilege includes availment of the
entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of
Amparo. After examining the petition and its attached affidavits, the Return
and the evidence presented in the summary hearing, the judgment should
detail the required acts from the respondents that will mitigate, if not totally
eradicate, the violation of or the threat to the petitioner's life, liberty or
security.
A judgment which simply grants "the privilege of the writ" cannot be
executed.1wphi1 It is tantamount to a failure of the judge to intervene and
grant judicial succor to the petitioner. Petitions filed to avail of the privilege
of the Writ of Amparo arise out of very real and concrete circumstances.
Judicial responses cannot be as tragically symbolic or ritualistic as
"granting the privilege of the Writ of Amparo."
The procedural irregularities in the RTC affected the mode of appeal that
petitioners used in elevating the matter to this Court.

A. Civil Cases:
(1) All cases of forcible entry and unlawful detainer, x x x.
(2) All other cases, except probate proceedings, where the total amount of
the plaintiffs claim does not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;

It is the responsibility of counsels for the parties to raise issues using the
proper procedure at the right time. Procedural rules are meant to assist the
parties and courts efficiently deal with the substantive issues pertaining to
a case. When it is the judge himself who disregards the rules of procedure,
delay and confusion result.
The Petition for Review is not the proper remedy to assail the interlocutory
order denominated as "Decision" dated 20 March 2012. A Petition for
Certiorari, on the other hand, is prohibited.36 Simply dismissing the
present petition, however, will cause grave injustice to the parties involved.
It undermines the salutary purposes for which the Rule on the Writ of
Amparo were promulgated.

(3) Violations of municipal or city ordinances;

(4) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine not
exceeding one thousand pesos (P1,000.00), or both, x x x.
xxxx
It is clear from this rule that this type of summary procedure only applies to
MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply
to proceedings in an RTC. Aside from that, this Court limited the
application of summary procedure to certain civil and criminal cases. A writ
of Amparo is a special proceeding. It is a remedy by which a party seeks to
establish a status, a right or particular fact.34 It is not a civil nor a criminal
action, hence, the application of the Revised Rule on Summary Procedure
is seriously misplaced.
The second irregularity was the holding of a hearing on the main case prior
to the issuance of the writ and the filing of a Return. Without a Return, the
issues could not have been properly joined.
Worse, is the trial courts third irregularity: it required a memorandum in
lieu of a responsive pleading (Answer) of De Lima, et al.
The Return in Amparo cases allows the respondents to frame the issues
subject to a hearing. Hence, it should be done prior to the hearing, not
after. A memorandum, on the other hand, is a synthesis of the claims of the
party litigants and is a final pleading usually required before the case is
submitted for decision. One cannot substitute for the other since these
submissions have different functions in facilitating the suit.

In many instances, the Court adopted a policy of liberally construing its

rules in order to promote a just, speedy and inexpensive disposition of
every action and proceeding.37 The rules can be suspended on the
following grounds: (1) matters of life, liberty, honor or property, (2) the
existence of special or compelling circumstances, (3) the merits of the
case, (4) a cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules, (5) a lack of any showing that
the review sought is merely frivolous and dilatory, and (6) the other party
will not be unjustly prejudiced thereby.38
WHEREFORE, in the interest of justice, as a prophylactic to the
irregularities committed by the trial court judge, and by virtue of its powers
under Article VIII, Section 5 (5) of the Constitution, the Court RESOLVES
to:
(1) NULLIFY all orders that are subject of this Resolution issued by Judge
Silvino T. Pampilo, Jr. after respondent Gatdula filed the Petition for the
Issuance of a Writ of Amparo;
(2) DIRECT Judge Pampilo to determine within forty-eight (48) hours from
his receipt of this Resolution whether the issuance of the Writ of Amparo is
proper on the basis of the petition and its attached affidavits.
The Clerk of Court is DIRECTED to cause the personal service of this
Resolution on Judge Silvino T. Pampilo, Jr. of Branch 26 of the Regional
Trial Court of Manila for his proper guidance together with a WARNING
that further deviation or improvisation from the procedure set in A.M. No.
07-9-12-SC shall be meted with severe consequences.

G.R. No. 184467

NAVIA vs. PARDICO

June 19, 2012
DEL CASTILLO, J.:

For the protective writ of amparo to issue in enforced disappearance

cases, allegation and proof that the persons subject thereof are missing
are not enough. It must also be shown by the required quantum of proof
that their disappearance was carried out by, or with the authorization,
support or acquiescence of, [the government] or a political organization,
followed by a refusal to acknowledge [the same or] give information on the
fate or whereabouts of [said missing] persons.[3]
This petition for review on certiorari[4] filed in relation to Section 19 of A.M.
No. 07-9-12-SC[5] challenges the July 24, 2008 Decision[6] of the
Regional Trial Court (RTC), Branch 20, Malolos City which granted the
Petition for Writ of Amparo[7] filed by herein respondent against the
petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land
Strategies Corporation[8] (Asian Land) arrived at the house of Lolita M.
Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale Subdivision,
Barangay Lugam, Malolos City. The arrival of the vehicle awakened Lolitas
son, Enrique Lapore (Bong), and Benhur Pardico (Ben), who were then
both staying in her house. When Lolita went out to investigate, she saw
two uniformed guards disembarking from the vehicle. One of them
immediately asked Lolita where they could find her son Bong. Before Lolita
could answer, the guard saw Bong and told him that he and Ben should go
with them to the security office of Asian Land because a complaint was
lodged against them for theft of electric wires and lamps in the subdivision.
[9]
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
department of Asian Land also located in Grand Royale Subdivision.[10]
The supervisor of the security guards, petitioner Edgardo Navia (Navia),
also arrived thereat.
As to what transpired next, the parties respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office because
they received a report from a certain Mrs. Emphasis, a resident of Grand
Royale Subdivision, that she saw Bong and Ben removing a lamp from a
post in said subdivision.[11] The reported unauthorized taking of the lamp
was relayed thru radio to petitioners Ruben Dio (Dio) and Andrew Buising
(Buising), who both work as security guards at the Asian Land security
department. Following their departments standard operating procedure,
Dio and Buising entered the report in their logbook and proceeded to the
house of Mrs. Emphasis. It was there where Dio and Buising were able to
confirm who the suspects were. They thus repaired to the house of Lolita
where Bong and Ben were staying to invite the two suspects to their office.
Bong and Ben voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and Ben. The
suspects admitted that they took the lamp but clarified that they were only
transferring it to a post nearer to the house of Lolita.[12] Soon, Navia
arrived and Buising informed him that the complainant was not keen in
participating in the investigation. Since there was no complainant, Navia
ordered the release of Bong and Ben. Bong then signed a statement to the
effect that the guards released him without inflicting any harm or injury to
him.[13] His mother Lolita also signed the logbook below an entry which
states that she will never again harbor or entertain Ben in her house.
Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those who
might be involved in the reported loss of electric wires and lamps within the
subdivision. After a brief discussion though, Navia allowed Ben to leave.
Ben also affixed his signature on the logbook to affirm the statements
entered by the guards that he was released unharmed and without any
injury.[14]
Upon Navias instructions, Dio and Buising went back to the house of Lolita
to make her sign the logbook as witness that they indeed released Ben
from their custody. Lolita asked Buising to read aloud that entry in the
logbook where she was being asked to sign, to which Buising obliged. Not
contented, Lolita put on her reading glasses and read the entry in the
logbook herself before affixing her signature therein. After which, the
guards left.

Subsequently, petitioners received an invitation[15] from the Malolos City

Police Station requesting them to appear thereat on April 17, 2008 relative
to the complaint of Virginia Pardico (Virginia) about her missing husband
Ben. In compliance with the invitation, all three petitioners appeared at the
Malolos City Police Station. However, since Virginia was not present
despite having received the same invitation, the meeting was reset to April
22, 2008.[16]
On April 22, 2008, Virginia attended the investigation. Petitioners informed
her that they released Ben and that they have no information as to his
present whereabouts.[17] They assured Virginia though that they will
cooperate and help in the investigation of her missing husband.[18]
Version of the Respondent
According to respondent, Bong and Ben were not merely invited. They
were unlawfully arrested, shoved into the Asian Land vehicle and brought
to the security office for investigation. Upon seeing Ben at the security
office, Navia lividly grumbled Ikaw na naman?[19] and slapped him while
he was still seated. Ben begged for mercy, but his pleas were met with a
flurry of punches coming from Navia hitting him on different parts of his
body.[20] Navia then took hold of his gun, looked at Bong, and said, Wala
kang nakita at wala kang narinig, papatayin ko na si Ben.[21]
Bong admitted that he and Ben attempted to take the lamp. He explained
that the area where their house is located is very dark and his father had
long been asking the administrator of Grand Royale Subdivision to install a
lamp to illumine their area. But since nothing happened, he took it upon
himself to take a lamp from one of the posts in the subdivision and transfer
it to a post near their house. However, the lamp Bong got was no longer
working. Thus, he reinstalled it on the post from which he took it and no
longer pursued his plan. [22]
Later on, Lolita was instructed to sign an entry in the guards logbook
where she undertook not to allow Ben to stay in her house anymore.[23]
Thereafter, Navia again asked Lolita to sign the logbook. Upon Lolitas
inquiry as to why she had to sign again, Navia explained that they needed
proof that they released her son Bong unharmed but that Ben had to stay
as the latters case will be forwarded to the barangay. Since she has poor
eyesight, Lolita obligingly signed the logbook without reading it and then
left with Bong.[24] At that juncture, Ben grabbed Bong and pleaded not to
be left alone. However, since they were afraid of Navia, Lolita and Bong
left the security office at once leaving Ben behind.[25]
Moments after Lolita and Bong reached their house, Buising arrived and
asked Lolita to sign the logbook again. Lolita asked Buising why she had
to sign again when she already twice signed the logbook at the
headquarters. Buising assured her that what she was about to sign only
pertains to Bongs release. Since it was dark and she has poor eyesight,
Lolita took Buisings word and signed the logbook without, again, reading
what was written in it. [26]
The following morning, Virginia went to the Asian Land security office to
visit her husband Ben, but only to be told that petitioners had already
released him together with Bong the night before. She then looked for Ben,
asked around, and went to the barangay. Since she could not still find her
husband, Virginia reported the matter to the police.
In the course of the investigation on Bens disappearance, it dawned upon
Lolita that petitioners took advantage of her poor eyesight and naivete.
They made her sign the logbook as a witness that they already released
Ben when in truth and in fact she never witnessed his actual release. The
last time she saw Ben was when she left him in petitioners custody at the
security office.[27]
Exasperated with the mysterious disappearance of her husband, Virginia
filed a Petition for Writ of Amparo[28] before the RTC of Malolos City.
Finding the petition sufficient in form and substance, the amparo court
issued an Order[29] dated June 26, 2008 directing, among others, the
issuance of a writ of amparo and the production of the body of Ben before
it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court
Resolution [in] A.M. No. 07-[9]-12-SC, also known as The Rule On The
Writ Of Amparo, let a writ of amparo be issued, as follows:
(1)
ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising of the Asian Land Security Agency to produce before the Court the

body of aggrieved party Benhur Pardico, on Monday, June 30, 2008, at

10:30 a.m.;

Petitioners filed a Motion for Reconsideration[37] which was denied by the

trial court in an Order[38] dated August 29, 2008.

(2)
ORDERING the holding of a summary hearing of the petition on
the aforementioned date and time, and DIRECTING the [petitioners] to
personally appear thereat;

Hence, this petition raising the following issues for our consideration:
Xxxxxxxxxxxxxxxxx
Petitioners Arguments

(3)
COMMANDING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising to file, within a non-extendible period of seventy-two (72)
hours from service of the writ, a verified written return with supporting
affidavits which shall, among other things, contain the following:
a) The lawful defenses to show that the [petitioners] did not violate or
threaten with violation the right to life, liberty and security of the aggrieved
party, through any act or omission;
b)
The steps or actions taken by the [petitioners] to determine the
fate or whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission; and
c)
All relevant information in the possession of the [petitioners]
pertaining to the threat, act or omission against the aggrieved party.

Petitioners essentially assail the sufficiency of the amparo petition. They

contend that the writ of amparo is available only in cases where the factual
and legal bases of the violation or threatened violation of the aggrieved
partys right to life, liberty and security are clear. Petitioners assert that in
the case at bench, Virginia miserably failed to establish all these. First, the
petition is wanting on its face as it failed to state with some degree of
specificity the alleged unlawful act or omission of the petitioners
constituting a violation of or a threat to Bens right to life, liberty and
security. And second, it cannot be deduced from the evidence Virginia
adduced that Ben is missing; or that petitioners had a hand in his alleged
disappearance. On the other hand, the entries in the logbook which bear
the signatures of Ben and Lolita are eloquent proof that petitioners
released Ben on March 31, 2008 at around 10:30 p.m. Petitioners thus
posit that the trial court erred in issuing the writ and in holding them
responsible for Bens disappearance.

(4)
GRANTING, motu proprio, a Temporary Protection Order
prohibiting the [petitioners], or any persons acting for and in their behalf,
under pain of contempt, from threatening, harassing or inflicting any harm
to [respondent], his immediate family and any [member] of his household.

Our Ruling

The Branch Sheriff is directed to immediately serve personally on the

[petitioners], at their address indicated in the petition, copies of the writ as
well as this order, together with copies of the petition and its annexes.[30]

A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated
to arrest the rampant extralegal killings and enforced disappearances in
the country. Its purpose is to provide an expeditious and effective relief to
any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity. [40]

A Writ of Amparo[31] was accordingly issued and served on the petitioners

on June 27, 2008.[32] On June 30, 2008, petitioners filed their
Compliance[33] praying for the denial of the petition for lack of merit.
A summary hearing was thereafter conducted. Petitioners presented the
testimony of Buising, while Virginia submitted the sworn statements[34] of
Lolita and Enrique which the two affirmed on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision[35]
granting the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of amparo,
and deems it proper and appropriate, as follows:
(a)
To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the [petitioners]
Edgardo Navia, Ruben Dio and Andrew Buising in connection with the
circumstances surrounding the disappearance of [Benhur] Pardico,
utilizing in the process, as part of the investigation, the documents forming
part of the records of this case;
(b)
To hereby direct the NBI to extend to the family of [Benhur]
Pardico and the witnesses who testified in this case protection as it may
deem necessary to secure their safety and security; and
(c)
To hereby direct the Office of the Provincial Prosecutor of Bulacan
to investigate the circumstances concerning the legality of the arrest of
[Benhur] Pardico by the [petitioners] in this case, utilizing in the process,
as part of said investigation, the pertinent documents and admissions
forming part of the record of this case, and take whatever course/s of
action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the Office
of Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan.
SO ORDERED.[36]

Virginias Petition for Writ of Amparo is fatally defective and must perforce
be dismissed, but not for the reasons adverted to by the petitioners.

Here, Bens right to life, liberty and security is firmly settled as the parties
do not dispute his identity as the same person summoned and questioned
at petitioners security office on the night of March 31, 2008. Such
uncontroverted fact ipso facto established Bens inherent and
constitutionally enshrined right to life, liberty and security. Article 6[41] of
the International Covenant on Civil and Political Rights[42] recognizes
every human beings inherent right to life, while Article 9[43] thereof ordains
that everyone has the right to liberty and security. The right to life must be
protected by law while the right to liberty and security cannot be impaired
except on grounds provided by and in accordance with law. This
overarching command against deprivation of life, liberty and security
without due process of law is also embodied in our fundamental law.[44]
The pivotal question now that confronts us is whether Bens disappearance
as alleged in Virginias petition and proved during the summary
proceedings conducted before the court a quo, falls within the ambit of
A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of a public official
or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or
threats thereof. (Emphasis ours.)

While Section 1 provides A.M. No. 07-9-12-SCs coverage, said Rules does
not, however, define extralegal killings and enforced disappearances. This
omission was intentional as the Committee on Revision of the Rules of
Court which drafted A.M. No. 07-9-12-SC chose to allow it to evolve
through time and jurisprudence and through substantive laws as may be
promulgated by Congress.[45] Then, the budding jurisprudence on amparo
blossomed in Razon, Jr. v. Tagitis[46] when this Court defined enforced
disappearances. The Court in that case applied the generally accepted
principles of international law and adopted the International Convention for
the Protection of All Persons from Enforced Disappearances definition of
enforced disappearances, as the arrest, detention, abduction or any other

form of deprivation of liberty by agents of the State or by persons or

groups of persons acting with the authorization, support or acquiescence
of the State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law.[47]
Not long thereafter, another significant development affecting A.M. No. 079-12-SC came about after Congress enacted Republic Act (RA) No.
9851[48] on December 11, 2009. Section 3(g) thereof defines enforced or
involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give information on the fate
or whereabouts of those persons, with the intention of removing from the
protection of the law for a prolonged period of time.

Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo D. Brion

wrote in his Separate Opinion that with the enactment of RA No. 9851, the
Rule on the Writ of Amparo is now a procedural law anchored, not only on
the constitutional rights to the rights to life, liberty and security, but on a
concrete statutory definition as well of what an enforced or involuntary
disappearance is.[50] Therefore, A.M. No. 07-9-12-SCs reference to
enforced disappearances should be construed to mean the enforced or
involuntary disappearance of persons contemplated in Section 3(g) of RA
No. 9851. Meaning, in probing enforced disappearance cases, courts
should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we can
derive the following elements that constitute it:
(a)
that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b)
that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c)
that it be followed by the State or political organizations refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the amparo petition; and,
(d)
that the intention for such refusal is to remove subject person from
the protection of the law for a prolonged period of time.

As thus dissected, it is now clear that for the protective writ of amparo to
issue, allegation and proof that the persons subject thereof are missing are
not enough. It must also be shown and proved by substantial evidence that
the disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal
to acknowledge the same or give information on the fate or whereabouts of
said missing persons, with the intention of removing them from the
protection of the law for a prolonged period of time. Simply put, the
petitioner in an amparo case has the burden of proving by substantial
evidence the indispensable element of government participation.
In the present case, we do not doubt Bongs testimony that Navia had a
menacing attitude towards Ben and that he slapped and inflicted fistic
blows upon him. Given the circumstances and the pugnacious character of
Navia at that time, his threatening statement, Wala kang nakita at wala
kang narinig, papatayin ko na si Ben, cannot be taken lightly. It
unambiguously showed his predisposition at that time. In addition, there is
nothing on record which would support petitioners assertion that they
released Ben on the night of March 31, 2008 unscathed from their wrath.
Lolita sufficiently explained how she was prodded into affixing her
signatures in the logbook without reading the entries therein. And so far,
the information petitioners volunteered are sketchy at best, like the alleged
complaint of Mrs. Emphasis who was never identified or presented in court
and whose complaint was never reduced in writing.
But lest it be overlooked, in an amparo petition, proof of disappearance
alone is not enough. It is likewise essential to establish that such
disappearance was carried out with the direct or indirect authorization,
support or acquiescence of the government. This indispensable element of

State participation is not present in this case. The petition does not contain
any allegation of State complicity, and none of the evidence presented
tend to show that the government or any of its agents orchestrated Bens
disappearance. In fact, none of its agents, officials, or employees were
impleaded or implicated in Virginias amparo petition whether as
responsible or accountable persons.[51] Thus, in the absence of an
allegation or proof that the government or its agents had a hand in Bens
disappearance or that they failed to exercise extraordinary diligence in
investigating his case, the Court will definitely not hold the government or
its agents either as responsible or
accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of
amparo may lie against a private individual or entity. But even if the person
sought to be held accountable or responsible in an amparo petition is a
private individual or entity, still, government involvement in the
disappearance remains an indispensable element. Here, petitioners are
mere security guards at Grand Royale Subdivision in Brgy. Lugam,
Malolos City and their principal, the Asian Land, is a private entity. They do
not work for the government and nothing has been presented that would
link or connect them to some covert police, military or governmental
operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12SC in relation to RA No. 9851, the disappearance must be attended by
some governmental involvement. This hallmark of State participation
differentiates an enforced disappearance case from an ordinary case of a
missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court,
Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition for
Writ of Amparo filed by Virginia Pardico is hereby DISMISSED.

G.R. No. 193636

GAMBOA vs. CHAN

July 24, 2012

SERENO, J.:

At the time the present Petition was filed, petitioner Marynette R. Gamboa
(Gamboa) was the Mayor of Dingras, Ilocos Norte.5 Meanwhile,
respondent Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was
the Officer-in-Charge, and respondent Police Superintendent (P/SUPT.)
William O. Fang was the Chief of the Provincial Investigation and Detective
Management Branch, both of the Ilocos Norte Police Provincial Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo issued
Administrative Order No. 275 (A.O. 275), "Creating an Independent
Commission to Address the Alleged Existence of Private Armies in the
Country."7 The body, which was later on referred to as the Zearosa
Commission,8 was formed to investigate the existence of private army
groups (PAGs) in the country with a view to eliminating them before the 10
May 2010 elections and dismantling them permanently in the future.9
Upon the conclusion of its investigation, the Zearosa Commission
released and submitted to the Office of the President a confidential report
entitled "A Journey Towards H.O.P.E.: The Independent Commission
Against Private Armies Report to the President" (the Report).10
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP
Ilocos Norte) conducted a series of surveillance operations against her and
her aides,11 and classified her as someone who keeps a PAG.12
Purportedly without the benefit of data verification, PNPIlocos Norte
forwarded the information gathered on her to the Zearosa Commission,13
thereby causing her inclusion in the Reports enumeration of individuals
maintaining PAGs.14 More specifically, she pointed out the following items
reflected therein:
(a) The Report cited the PNP as its source for the portion regarding the
status of PAGs in the Philippines.15
(b) The Report stated that "x x x the PNP organized one dedicated Special
Task Group (STG) for each private armed group (PAG) to monitor and
counteract their activities."16
(c) Attached as Appendix "F" of the Report is a tabulation generated by the
PNP and captioned as "Status of PAGs Monitoring by STGs as of April 19,
2010," which classifies PAGs in the country according to region, indicates
their identity, and lists the prominent personalities with whom these groups
are associated.17 The first entry in the table names a PAG, known as the
Gamboa Group, linked to herein petitioner Gamboa.18
(d) Statistics on the status of PAGs were based on data from the PNP, to
wit:
The resolutions were the subject of a national press conference held in
Malacaang on March 24, 2010 at which time, the Commission was also
asked to comment on the PNP report that out of one hundred seventeen
(117) partisan armed groups validated, twenty-four (24) had been
dismantled with sixty-seven (67) members apprehended and more than
eighty-six (86) firearms confiscated.

politicians alleged to be maintaining a PAG.21 Gamboa averred that her

association with a PAG also appeared on print media.22 Thus, she was
publicly tagged as someone who maintains a PAG on the basis of the
unverified information that the PNP-Ilocos Norte gathered and forwarded
to the Zearosa Commission.23 As a result, she claimed that her malicious
or reckless inclusion in the enumeration of personalities maintaining a PAG
as published in the Report also made her, as well as her supporters and
other people identified with her, susceptible to harassment and police
surveillance operations.24
Contending that her right to privacy was violated and her reputation
maligned and destroyed, Gamboa filed a Petition dated 9 July 2010 for the
issuance of a writ of habeas data against respondents in their capacities
as officials of the PNP-Ilocos Norte.25 In her Petition, she prayed for the
following reliefs: (a) destruction of the unverified reports from the PNPIlocos Norte database; (b) withdrawal of all information forwarded to higher
PNP officials; (c) rectification of the damage done to her honor; (d)
ordering respondents to refrain from forwarding unverified reports against
her; and (e) restraining respondents from making baseless reports.26
The case was docketed as Special Proc. No. 14979 and was raffled to
RTC Br. 13, which issued the corresponding writ on 14 July 2010 after
finding the Petition meritorious on its face.27 Thus, the trial court (a)
instructed respondents to submit all information and reports forwarded to
and used by the Zearosa Commission as basis to include her in the list of
persons maintaining PAGs; (b) directed respondents, and any person
acting on their behalf, to cease and desist from forwarding to the Zearosa
Commission, or to any other government entity, information that they may
have gathered against her without the approval of the court; (c) ordered
respondents to make a written return of the writ together with supporting
affidavits; and (d) scheduled the summary hearing of the case on 23 July
2010.28
In their Return of the Writ, respondents alleged that they had acted within
the bounds of their mandate in conducting the investigation and
surveillance of Gamboa.29 The information stored in their database
supposedly pertained to two criminal cases in which she was implicated,
namely: (a) a Complaint for murder and frustrated murder docketed as
NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder,
frustrated murder and direct assault upon a person in authority, as well as
indirect assault and multiple attempted murder, docketed as NPS
DOCKET No. 1-04-INV-10-A-00009.30
Respondents likewise asserted that the Petition was incomplete for failing
to comply with the following requisites under the Rule on the Writ of
Habeas Data: (a) the manner in which the right to privacy was violated or
threatened with violation and how it affected the right to life, liberty or
security of Gamboa; (b) the actions and recourses she took to secure the
data or information; and (c) the location of the files, registers or databases,
the government office, and the person in charge, in possession or in
control of the data or information.31 They also contended that the Petition
for Writ of Habeas Data, being limited to cases of extrajudicial killings and
enforced disappearances, was not the proper remedy to address the
alleged besmirching of the reputation of Gamboa.32

Commissioner Herman Basbao qualified that said statistics were based

on PNP data but that the more significant fact from his report is that the
PNP has been vigilant in monitoring the activities of these armed groups
and this vigilance is largely due to the existence of the Commission which
has continued communicating with the Armed Forces of the Philippines
(AFP) and PNP personnel in the field to constantly provide data on the
activities of the PAGs. Commissioner Basbao stressed that the
Commissions efforts have preempted the formation of the PAGs because
now everyone is aware that there is a body monitoring the PAGs
movement through the PNP. Commissioner Lieutenant General Edilberto
Pardo Adan also clarified that the PAGs are being destabilized so that their
ability to threaten and sow fear during the election has been considerably
weakened.19

RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed
the Petition.33 The trial court categorically ruled that the inclusion of
Gamboa in the list of persons maintaining PAGs, as published in the
Report, constituted a violation of her right to privacy, to wit:

(e) The Report briefly touched upon the validation system of the PNP:

By her inclusion in the list of persons maintaining PAGs, it is likewise

undisputed that there was certainly intrusion into Gamboas activities. It
cannot be denied that information was gathered as basis therefor. After all,
under Administrative Order No. 275, the Zearosa Commission was
tasked to investigate the existence of private armies in the country, with all
the powers of an investigative body under Section 37, Chapter 9, Book I of
the Administrative Code of 1987.

Also, in order to provide the Commission with accurate data which is truly
reflective of the situation in the field, the PNP complied with the
Commissions recommendation that they revise their validation system to
include those PAGs previously listed as dormant. In the most recent
briefing provided by the PNP on April 26, 2010, there are one hundred
seven (107) existing PAGs. Of these groups, the PNP reported that seven
(7) PAGs have been reorganized.20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news
program the portion of the Report naming Gamboa as one of the

In this light, it cannot also be disputed that by her inclusion in the list of
persons maintaining PAGs, Gamboas right to privacy indubitably has been
violated. The violation understandably affects her life, liberty and security
enormously. The untold misery that comes with the tag of having a PAG
could even be insurmountable. As she essentially alleged in her petition,
she fears for her security that at any time of the day the unlimited powers
of respondents may likely be exercised to further malign and destroy her
reputation and to transgress her right to life.

xxx

xxx

xxx

By her inclusion in the list of persons maintaining PAGs, Gamboa alleged

as she accused respondents, who are public officials, of having gathered

and provided information that made the Zearosa Commission to include

her in the list. Obviously, it was this gathering and forwarding of
information supposedly by respondents that petitioner barks at as unlawful.
x x x.34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the
Petition on the ground that Gamboa failed to prove through substantial
evidence that the subject information originated from respondents, and
that they forwarded this database to the Zearosa Commission without the
benefit of prior verification.35 The trial court also ruled that even before
respondents assumed their official positions, information on her may have
already been acquired.36 Finally, it held that the Zearosa Commission, as
the body tasked to gather information on PAGs and authorized to disclose
information on her, should have been impleaded as a necessary if not a
compulsory party to the Petition.37

zones of privacy. The right of association contained in the penumbra of the

First Amendment is one, as we have seen. The Third Amendment in its
prohibition against the quartering of soldiers in any house in time of peace
without the consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures. The Fifth Amendment in its Self-Incrimination Clause
enables the citizen to create a zone of privacy which government may not
force him to surrender to his detriment. The Ninth Amendment provides:
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." After
referring to various American Supreme Court decisions, Justice Douglas
continued: "These cases bear witness that the right of privacy which
presses for recognition is a legitimate one."
xxx

Gamboa then filed the instant Appeal by Certiorari dated 24 September

2010,38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zearosa Commission be
impleaded as either a necessary or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present sufficient
proof to link respondents as the informant to [sic] the Zearosa
Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zearosa
Commission to [sic] the PNP as alleged by Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to
PNP as an agency.39
On the other hand, respondents maintain the following arguments: (a)
Gamboa failed to present substantial evidence to show that her right to
privacy in life, liberty or security was violated, and (b) the trial court
correctly dismissed the Petition on the ground that she had failed to
present sufficient proof showing that respondents were the source of the
report naming her as one who maintains a PAG.40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order,
fulfilling the mandate to dismantle PAGs in the country should be done in
accordance with due process, such that the gathering and forwarding of
unverified information on her must be considered unlawful.41 She also
reiterates that she was able to present sufficient evidence showing that the
subject information originated from respondents.42
In determining whether Gamboa should be granted the privilege of the writ
of habeas data, this Court is called upon to, first, unpack the concept of the
right to privacy; second, explain the writ of habeas data as an
extraordinary remedy that seeks to protect the right to informational
privacy; and finally, contextualize the right to privacy vis--vis the state
interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been
recognized as a constitutional right. This Court, in Morfe v. Mutuc,43 thus
enunciated:
The due process question touching on an alleged deprivation of liberty as
thus resolved goes a long way in disposing of the objections raised by
plaintiff that the provision on the periodical submission of a sworn
statement of assets and liabilities is violative of the constitutional right to
privacy. There is much to be said for this view of Justice Douglas: "Liberty
in the constitutional sense must mean more than freedom from unlawful
governmental restraint; it must include privacy as well, if it is to be a
repository of freedom. The right to be let alone is indeed the beginning of
all freedom." As a matter of fact, this right to be let alone is, to quote from
Mr. Justice Brandeis "the most comprehensive of rights and the right most
valued by civilized men."
The concept of liberty would be emasculated if it does not likewise compel
respect for his personality as a unique individual whose claim to privacy
and interference demands respect. xxx.

xxx

xxx

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included
the idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control
of the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government, safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the individual
has become increasingly important as modern society has developed. All
the forces of a technological age industrialization, urbanization, and
organization operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a
totalitarian society."44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and statutory bases
of the right to privacy in Philippine jurisdiction, to wit:
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of
the Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized.
xxx

xxx

xxx

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health as may be provided by law.
xxx

xxx

xxx

Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.

xxx

xxx

xxx

x x x In the leading case of Griswold v. Connecticut, Justice Douglas,

speaking for five members of the Court, stated: "Various guarantees create

Zones of privacy are likewise recognized and protected in our laws. The
Civil Code provides that "every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons"

and punishes as actionable torts several acts by a person of meddling and

prying into the privacy of another. It also holds a public officer or employee
or any private individual liable for damages for any violation of the rights
and liberties of another person, and recognizes the privacy of letters and
other private communications. The Revised Penal Code makes a crime
the violation of secrets by an officer, the revelation of trade and industrial
secrets, and trespass to dwelling. Invasion of privacy is an offense in
special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits
Act and the Intellectual Property Code. The Rules of Court on privileged
communication likewise recognize the privacy of certain information.

Control Ordinance and to which he was prevented access.54 He claimed,

among others, that this procedure of security control violated Article 8 of
the European Convention of Human Rights55 on the right to privacy, as
nothing in his personal or political background would warrant his
classification in the register as a security risk.56

Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence, it is
the burden of government to show that A.O. No. 308 is justified by some
compelling state interest and that it is narrowly drawn. x x x.46 (Emphases
supplied)

The ECHR ruled that the storage in the secret police register of information
relating to the private life of Leander, coupled with the refusal to allow him
the opportunity to refute the same, amounted to an interference in his right
to respect for private life.57 However, the ECHR held that the interference
was justified on the following grounds: (a) the personnel control system
had a legitimate aim, which was the protection of national security,58 and
(b) the Personnel Control Ordinance gave the citizens adequate indication
as to the scope and the manner of exercising discretion in the collection,
recording and release of information by the authorities.59 The following
statements of the ECHR must be emphasized:

Clearly, the right to privacy is considered a fundamental right that must be

protected from intrusion or constraint. However, in Standard Chartered
Bank v. Senate Committee on Banks,47 this Court underscored that the
right to privacy is not absolute, viz:

58. The notion of necessity implies that the interference corresponds to a

pressing social need and, in particular, that it is proportionate to the
legitimate aim pursued (see, inter alia, the Gillow judgment of 24
November 1986, Series A no. 109, p. 22, 55).

With respect to the right of privacy which petitioners claim respondent has
violated, suffice it to state that privacy is not an absolute right. While it is
true that Section 21, Article VI of the Constitution, guarantees respect for
the rights of persons affected by the legislative investigation, not every
invocation of the right to privacy should be allowed to thwart a legitimate
congressional inquiry. In Sabio v. Gordon, we have held that the right of
the people to access information on matters of public concern generally
prevails over the right to privacy of ordinary financial transactions. In that
case, we declared that the right to privacy is not absolute where there is an
overriding compelling state interest. Employing the rational basis
relationship test, as laid down in Morfe v. Mutuc, there is no infringement of
the individuals right to privacy as the requirement to disclosure information
is for a valid purpose, in this case, to ensure that the government agencies
involved in regulating banking transactions adequately protect the public
who invest in foreign securities. Suffice it to state that this purpose
constitutes a reason compelling enough to proceed with the assailed
legislative investigation.48
Therefore, when the right to privacy finds tension with a competing state
objective, the courts are required to weigh both notions. In these cases,
although considered a fundamental right, the right to privacy may
nevertheless succumb to an opposing or overriding state interest deemed
legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed
to protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce ones right
to the truth and to informational privacy.49 It seeks to protect a persons
right to control information regarding oneself, particularly in instances in
which such information is being collected through unlawful means in order
to achieve unlawful ends.50 It must be emphasized that in order for the
privilege of the writ to be granted, there must exist a nexus between the
right to privacy on the one hand, and the right to life, liberty or security on
the other. Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee,
or of a private individual or entity engaged in the gathering, collecting or
storing of data information regarding the person, family, home and
correspondence of the aggrieved party.
The notion of informational privacy is still developing in Philippine law and
jurisprudence. Considering that even the Latin American habeas data, on
which our own Rule on the Writ of Habeas Data is rooted, finds its origins
from the European tradition of data protection,51 this Court can be guided
by cases on the protection of personal data decided by the European
Court of Human Rights (ECHR). Of particular note is Leander v.
Sweden,52 in which the ECHR balanced the right of citizens to be free
from interference in their private affairs with the right of the state to protect
its national security. In this case, Torsten Leander (Leander), a Swedish
citizen, worked as a temporary replacement museum technician at the
Naval Museum, which was adjacent to a restricted military security
zone.53 He was refused employment when the requisite personnel control
resulted in an unfavorable outcome on the basis of information in the
secret police register, which was kept in accordance with the Personnel

59. However, the Court recognises that the national authorities enjoy a
margin of appreciation, the scope of which will depend not only on the
nature of the legitimate aim pursued but also on the particular nature of the
interference involved. In the instant case, the interest of the respondent
State in protecting its national security must be balanced against the
seriousness of the interference with the applicants right to respect for his
private life.
There can be no doubt as to the necessity, for the purpose of protecting
national security, for the Contracting States to have laws granting the
competent domestic authorities power, firstly, to collect and store in
registers not accessible to the public information on persons and,
secondly, to use this information when assessing the suitability of
candidates for employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leanders
legitimate interests through the consequences it had on his possibilities of
access to certain sensitive posts within the public service. On the other
hand, the right of access to public service is not as such enshrined in the
Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series
A no. 105, p. 20, 34-35), and, apart from those consequences, the
interference did not constitute an obstacle to his leading a private life of his
own choosing.
In these circumstances, the Court accepts that the margin of appreciation
available to the respondent State in assessing the pressing social need in
the present case, and in particular in choosing the means for achieving the
legitimate aim of protecting national security, was a wide one.
xxx

xxx

xxx

66. The fact that the information released to the military authorities was not
communicated to Mr. Leander cannot by itself warrant the conclusion that
the interference was not "necessary in a democratic society in the interests
of national security", as it is the very absence of such communication
which, at least partly, ensures the efficacy of the personnel control
procedure (see, mutatis mutandis, the above-mentioned Klass and Others
judgment, Series A no. 28, p. 27, 58).
The Court notes, however, that various authorities consulted before the
issue of the Ordinance of 1969, including the Chancellor of Justice and the
Parliamentary Ombudsman, considered it desirable that the rule of
communication to the person concerned, as contained in section 13 of the
Ordinance, should be effectively applied in so far as it did not jeopardise
the purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the
safeguards contained in the Swedish personnel control system meet the
requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the
wide margin of appreciation available to it, the respondent State was
entitled to consider that in the present case the interests of national
security prevailed over the individual interests of the applicant (see
paragraph 59 above). The interference to which Mr. Leander was
subjected cannot therefore be said to have been disproportionate to the
legitimate aim pursued. (Emphases supplied)
Leander illustrates how the right to informational privacy, as a specific
component of the right to privacy, may yield to an overriding legitimate
state interest. In similar fashion, the determination of whether the privilege

of the writ of habeas data, being an extraordinary remedy, may be granted

in this case entails a delicate balancing of the alleged intrusion upon the
private life of Gamboa and the relevant state interest involved.
The collection and forwarding of information by the PNP vis--vis the
interest of the state to dismantle private armies.
The Constitution explicitly mandates the dismantling of private armies and
other armed groups not recognized by the duly constituted authority.60 It
also provides for the establishment of one police force that is national in
scope and civilian in character, and is controlled and administered by a
national police commission.61
Taking into account these constitutional fiats, it is clear that the issuance of
A.O. 275 articulates a legitimate state aim, which is to investigate the
existence of PAGs with the ultimate objective of dismantling them
permanently.
To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed
it with the powers of an investigative body, including the power to summon
witnesses, administer oaths, take testimony or evidence relevant to the
investigation and use compulsory processes to produce documents,
books, and records.62 A.O. 275 likewise authorized the Zearosa
Commission to deputize the Armed Forces of the Philippines, the National
Bureau of Investigation, the Department of Justice, the PNP, and any other
law enforcement agency to assist the commission in the performance of its
functions.63
Meanwhile, the PNP, as the national police force, is empowered by law to
(a) enforce all laws and ordinances relative to the protection of lives and
properties; (b) maintain peace and order and take all necessary steps to
ensure public safety; and (c) investigate and prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the foregoing
powers and functions accorded to the Zearosa Commission and the PNP,
the latter collected information on individuals suspected of maintaining
PAGs, monitored them and counteracted their activities.65 One of those
individuals is herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the
data contained in the Report listing her as a PAG coddler came from the
PNP. Contrary to the ruling of the trial court, however, the forwarding of
information by the PNP to the Zearosa Commission was not an unlawful
act that violated or threatened her right to privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence
regarding PAGs with the body specifically created for the purpose of
investigating the existence of these notorious groups. Moreover, the
Zearosa Commission was explicitly authorized to deputize the police
force in the fulfillment of the formers mandate, and thus had the power to
request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the
PNP released information to the Zearosa Commission without prior
communication to Gamboa and without affording her the opportunity to
refute the same cannot be interpreted as a violation or threat to her right to
privacy since that act is an inherent and crucial component of intelligencegathering and investigation.1wphi1 Additionally, Gamboa herself admitted
that the PNP had a validation system, which was used to update
information on individuals associated with PAGs and to ensure that the
data mirrored the situation on the field.66 Thus, safeguards were put in
place to make sure that the information collected maintained its integrity
and accuracy.
Pending the enactment of legislation on data protection, this Court
declines to make any further determination as to the propriety of sharing
information during specific stages of intelligence gathering. To do
otherwise would supplant the discretion of investigative bodies in the
accomplishment of their functions, resulting in an undue encroachment on
their competence.
However, to accord the right to privacy with the kind of protection
established in existing law and jurisprudence, this Court nonetheless
deems it necessary to caution these investigating entities that informationsharing must observe strict confidentiality. Intelligence gathered must be
released exclusively to the authorities empowered to receive the relevant
information. After all, inherent to the right to privacy is the freedom from
"unwarranted exploitation of ones person or from intrusion into ones
private activities in such a way as to cause humiliation to a persons
ordinary sensibilities."67

In this case, respondents admitted the existence of the Report, but

emphasized its confidential nature.1wphi1 That it was leaked to third
parties and the media was regrettable, even warranting reproach. But it
must be stressed that Gamboa failed to establish that respondents were
responsible for this unintended disclosure. In any event, there are other
reliefs available to her to address the purported damage to her reputation,
making a resort to the extraordinary remedy of the writ of habeas data
unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through
substantial evidence that her inclusion in the list of individuals maintaining
PAGs made her and her supporters susceptible to harassment and to
increased police surveillance. In this regard, respondents sufficiently
explained that the investigations conducted against her were in relation to
the criminal cases in which she was implicated. As public officials, they
enjoy the presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of
dismantling PAGs far outweighs the alleged intrusion on the private life of
Gamboa, especially when the collection and forwarding by the PNP of
information against her was pursuant to a lawful mandate. Therefore, the
privilege of the writ of habeas data must be denied.
WHEREFORE, the instant petition for review is DENIED. The assailed
Decision in Special Proc. No. 14979 dated 9 September 2010 of the
Regional Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the
privilege of the writ of habeas data, is AFFIRMED.

REPUBLIC vs. COSETENG-MAGPAYO

G.R. No. 189476
February 2, 2011
CARPIO MORALES, J.:
Born in Makati on September 9, 1972, Julian Edward Emerson Coseteng
Magpayo (respondent) is the son of Fulvio M. Magpayo Jr. and Anna
Dominique Marquez-Lim Coseteng who, as respondents certificate of live
birth[1] shows, contracted marriage on March 26, 1972.
Claiming, however, that his parents were never legally married, respondent
filed on July 22, 2008 at the Regional Trial Court (RTC) of Quezon City a
Petition to change his name to Julian Edward Emerson Marquez Lim
Coseteng. The petition, docketed as SPP No. Q-0863058, was entitled IN
RE PETITION FOR CHANGE OF NAME OF JULIAN EDWARD
EMERSON COSETENG MAGPAYO TO JULIAN EDWARD EMERSON
MARQUEZ-LIM COSETENG.
In support of his petition, respondent submitted a certification from the
National Statistics Office stating that his mother Anna Dominique does not
appear in [its] National Indices of Marriage.[2] Respondent also submitted
his academic records from elementary up to college[3] showing that he
carried the surname Coseteng, and the birth certificate of his child where
Coseteng appears as his surname.[4] In the 1998, 2001 and 2004
Elections, respondent ran and was elected as Councilor of Quezon Citys
3rd District using the name JULIAN M.L. COSETENG.[5]
On order of Branch 77 of the Quezon City RTC,[6] respondent amended
his petition by alleging therein compliance with the 3-year residency
requirement under Section 2, Rule 103 of the Rules of Court.[7]
The notice setting the petition for hearing on November 20, 2008 was
published in the newspaper Broadside in its issues of October 31November 6, 2008, November 7-13, 2008, and November 14-20, 2008.[8]
And a copy of the notice was furnished the Office of the Solicitor General
(OSG).
No opposition to the petition having been filed, an order of general default
was entered by the trial court which then allowed respondent to present
evidence ex parte.[9]

By Decision of January 8, 2009,[10] the trial court granted respondents

petition and directed the Civil Registrar of Makati City to:
1. Delete the entry March 26, 1972 in Item 24 for DATE AND PLACE OF
MARRIAGE OF PARTIES [in herein respondents Certificate of live Birth];
2. Correct the entry MAGPAYO in the space for the Last Name of the
[respondent] to COSETENG;
3. Delete the entry COSETENG in the space for Middle Name of the
[respondent]; and
4. Delete the entry Fulvio Miranda Magpayo, Jr. in the space for FATHER
of the [respondent] (emphasis and underscoring supplied; capitalization in
the original)

The Republic of the Philippines (Republic) filed a motion for

reconsideration but it was denied by the trial court by Order of July 2,
2009,[11] hence, it, thru the OSG, lodged the present petition for review to
the Court on pure question of law.
The Republic assails the decision in this wise:
I.
. . . THE PETITION FOR CHANGE OF NAMEINVOLVES
THE CHANGE OF [RESPONDENTS] CIVIL STATUS FROM LEGITIMATE
TO ILLEGITIMATE AND, THEREFORE, SHOULD BE MADE THROUGH
APPROPRIATE ADVERSARIAL PROCEEDINGS
II.
THE TRIAL COURT EXCEEDED ITS JURISDICTION WHEN
IT DIRECTED THE DELETION OF THE NAME OF RESPONDENTS
FATHER FROM HIS BIRTH CERTIFICATE.[12] (emphasis and
underscoring supplied)

The Republic contends that the deletion of the entry on the date and place
of marriage of respondents parents from his birth certificate has the effect
of changing his civil status from legitimate to illegitimate, hence, any
change in civil status of a person must be effected through an appropriate
adversary proceeding.[13]
The Republic adds that by ordering the deletion of respondents parents
date of marriage and the name of respondents father from the entries in
respondents birth certificate,[14] the trial court exceeded its jurisdiction,
such order not being in accord with respondents prayer reading:
WHEREFORE, premises considered, it is most respectfully prayed that the
Honorable Court issue an order allowing the change of name of petitioner
from JULIAN EDWARD EMERSON COSETENG MAGPAYO to JULIAN
EDWARD EMERSON MARQUEZ-LIM COSETENG, and that the
Honorable Court order the Local Civil Registrar and all other relevant
government agencies to reflect the said change of name in their records.
Petitioner prays for other reliefs deemed proper under the premises.[15]
(underscoring supplied)
Respondent counters that the proceeding before the trial court was
adversarial in nature. He cites the serving of copies of the petition and its
annexes upon the Civil Registrar of Makati, the Civil Registrar General,
and the OSG; the posting of copies of the notice of hearing in at least four
public places at least ten days before the hearing; the delegation to the
OSG by the City Prosecutor of Quezon City to appear on behalf of the
Republic; the publication of the notice of hearing in a newspaper of general
circulation for three consecutive weeks; and the fact that no oppositors
appeared on the scheduled hearing.[16]
The petition is impressed with merit.
A person can effect a change of name under Rule 103 (CHANGE OF
NAME) using valid and meritorious grounds including (a) when the name is
ridiculous, dishonorable or extremely difficult to write or pronounce; (b)
when the change results as a legal consequence such as legitimation; (c)
when the change will avoid confusion; (d) when one has continuously used
and been known since childhood by a Filipino name, and was unaware of
alien parentage; (e) a sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without prejudicing anybody;
and (f) when the surname causes embarrassment and there is no showing
that the desired change of name was for a fraudulent purpose or that the
change of name would prejudice public interest.[17] Respondents reason
for changing his name cannot be considered as one of, or analogous to,
recognized grounds, however.
The present petition must be differentiated from Alfon v. Republic of the
Philippines.[18] In Alfon, the Court allowed the therein petitioner, Estrella
Alfon, to use the name that she had been known since childhood in order
to avoid confusion. Alfon did not deny her legitimacy, however. She merely
sought to use the surname of her mother which she had been using since
childhood. Ruling in her favor, the Court held that she was lawfully entitled
to use her mothers surname, adding that the avoidance of confusion was
justification enough to allow her to do so. In the present case, however,
respondent denies his legitimacy.
The change being sought in respondents petition goes so far as to affect
his legal status in relation to his parents. It seeks to change his legitimacy
to that of illegitimacy. Rule 103 then would not suffice to grant respondents
supplication.
Labayo-Rowe v. Republic[19] categorically holds that changes which may
affect the civil status from legitimate to illegitimate . . . are substantial and
controversial alterations which can only be allowed after appropriate
adversary proceedings . . .
Since respondents desired change affects his civil status from legitimate to
illegitimate, Rule 108 applies. It reads:
SECTION 1. Who may file petition.Any person interested in any act, event,
order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the [RTC] of the province
where the corresponding civil registry is located.

xxxx
SEC. 3. Parties.When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
SEC. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in
the province. (emphasis, italics and underscoring supplied)

On petition before this Court after the Court of Appeals found that the order
of the trial court involved a question of law, the Court nullified the trial
courts order directing the change of Emperatriz civil status and the filiation
of her child Victoria in light of the following observations:
x x x x Aside from the Office of the Solicitor General, all other
indispensable parties should have been made respondents. They include
not only the declared father of the child but the child as well, together with
the paternal grandparents, if any, as their hereditary rights would be
adversely affected thereby. All other persons who may be affected by the
change should be notified or represented. The truth is best ascertained
under an adversary system of justice.

Respondent nevertheless cites Republic v. Capote[20] in support of his

claim that his change of name was effected through an appropriate
adversary proceeding.

The right of the child Victoria to inherit from her parents would be
substantially impaired if her status would be changed from legitimate to
illegitimate. Moreover, she would be exposed to humiliation and
embarrassment resulting from the stigma of an illegitimate filiation that she
will bear thereafter. The fact that the notice of hearing of the petition was
published in a newspaper of general circulation and notice thereof was
served upon the State will not change the nature of the proceedings taken.
Rule 108, like all the other provisions of the Rules of Court, was
promulgated by the Supreme Court pursuant to its rule-making authority
under Section 13, Article VIII of the 1973 Constitution, which directs that
such rules shall not diminish, increase or modify substantive rights. If Rule
108 were to be extended beyond innocuous or harmless changes or
corrections of errors which are visible to the eye or obvious to the
understanding, so as to comprehend substantial and controversial
alterations concerning citizenship, legitimacy of paternity or filiation, or
legitimacy of marriage, without observing the proper proceedings as earlier
mentioned, said rule would thereby become an unconstitutional exercise
which would tend to increase or modify substantive rights. This situation is
not contemplated under Article 412 of the Civil Code.[24] (emphasis, italics
and underscoring supplied)

Republic v. Belmonte,[21] illuminates, however:

As for the requirement of notice and publication, Rule 108 provides:

The procedure recited in Rule 103 regarding change of name and in Rule
108 concerning the cancellation or correction of entries in the civil registry
are separate and distinct. They may not be substituted one for the other for
the sole purpose of expediency. To hold otherwise would render nugatory
the provisions of the Rules of Court allowing the change of ones name or
the correction of entries in the civil registry only upon meritorious
grounds. . . . (emphasis, capitalization and underscoring supplied)

SEC. 4. Notice and publication.Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in
the province.

Rule 108 clearly directs that a petition which concerns ones civil status
should be filed in the civil registry in which the entry is sought to be
cancelled or corrected that of Makati in the present case, and all persons
who have or claim any interest which would be affected thereby should be
made parties to the proceeding.
As earlier stated, however, the petition of respondent was filed not in
Makati where his birth certificate was registered but in Quezon City. And as
the above-mentioned title of the petition filed by respondent before the
RTC shows, neither the civil registrar of Makati nor his father and mother
were made parties thereto.

Even assuming arguendo that respondent had simultaneously availed of

these two statutory remedies, respondent cannot be said to have
sufficiently complied with Rule 108. For, as reflected above, aside from
improper venue, he failed to implead the civil registrar of Makati and all
affected parties as respondents in the case.
Republic v. Labrador[22] mandates that a petition for a substantial
correction or change of entries in the civil registry should have as
respondents the civil registrar, as well as all other persons who have or
claim to have any interest that would be affected thereby. It cannot be
gainsaid that change of status of a child in relation to his parents is a
substantial correction or change of entry in the civil registry.
Labayo-Rowe[23] highlights the necessity of impleading indispensable
parties in a petition which involves substantial and controversial
alterations. In that case, the therein petitioner Emperatriz Labayo-Rowe
(Emperatriz) filed a petition for the correction of entries in the birth
certificates of her children, Vicente Miclat, Jr. and Victoria Miclat, in the
Civil Registry of San Fernando, Pampanga. Emperatriz alleged that her
name appearing in the birth certificates is Beatriz, which is her nickname,
but her full name is Emperatriz; and her civil status appearing in the birth
certificate of her daughter Victoria as married on 1953 Bulan are
erroneous because she was not married to Vicente Miclat who was the
one who furnished the data in said birth certificate.
The trial court found merit in Emperatrizs petition and accordingly directed
the local civil registrar to change her name appearing in her childrens birth
certificates from Beatriz to Emperatriz; and to correct her civil status in
Victorias birth certificate from married to single and the date and place of
marriage to no marriage.

SEC. 5. Opposition.The civil registrar and any person having or claiming

any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto. (emphasis
and underscoring supplied)
A reading of these related provisions readily shows that Rule 108 clearly
mandates two sets of notices to different potential oppositors. The first
notice is that given to the persons named in the petition and the second
(which is through publication) is that given to other persons who are not
named in the petition but nonetheless may be considered interested or
affected parties, such as creditors. That two sets of notices are mandated
under the above-quoted Section 4 is validated by the subsequent Section
5, also above-quoted, which provides for two periods (for the two types of
potential oppositors) within which to file an opposition (15 days from notice
or from the last date of publication).
This is the overriding principle laid down in Barco v. Court of Appeals.[25]
In that case, Nadina Maravilla (Nadina) filed a petition for correction of
entries in the birth certificate of her daughter June from June Salvacion
Maravilla to June Salvacion Gustilo, Armando Gustilo being, according to
Nadina, her daughters real father. Gustilo in fact filed before the trial court
a CONSTANCIA wherein he acknowledged June as his daughter. The trial
court granted the petition.
After Gustilo died, his son Jose Vicente Gustilo filed with the Court of
Appeals a petition for annulment of the Order of the trial court granting the
change of Junes family name to Gustilo.
Milagros Barco (Barco), natural guardian of her minor daughter Mary Joy
Ann Gustilo, filed before the appellate court a motion for intervention,
alleging that Mary Joy had a legal interest in the annulment of the trial
courts Order as Mary Joy was, by Barcos claim, also fathered by Gustilo.

The appellate court dismissed the petition for annulment and complaint-inintervention.
On appeal by Barco, this Court ruled that she should have been impleaded
in Nadinas petition for correction of entries of the birth certificate of Mary
Joy. But since a petitioner, like Nadina, is not expected to exhaustively
identify all the affected parties, the subsequent publication of the notice
cured the omission of Barco as a party to the case. Thus the Court
explained:
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule
108. Her interest was affected by the petition for correction, as any judicial
determination that June was the daughter of Armando would affect her
wards share in the estate of her father. It cannot be established whether
Nadina knew of Mary Joys existence at the time she filed the petition for
correction. Indeed, doubt may always be cast as to whether a petitioner
under Rule 108 would know of all the parties whose interests may be
affected by the granting of a petition. For example, a petitioner cannot be
presumed to be aware of all the legitimate or illegitimate offsprings of
his/her spouse or paramour. x x x x.
xxxx
The purpose precisely of Section 4, Rule 108 is to bind the whole world to
the subsequent judgment on the petition. The sweep of the decision would
cover even parties who should have been impleaded under Section 3,
Rule 108 but were inadvertently left out. x x x x.[26] (emphasis, italics and
underscoring supplied)

Meanwhile, in Republic v. Kho,[27] Carlito Kho (Carlito) and his siblings

named the civil registrar as the sole respondent in the petition they filed for
the correction of entries in their respective birth certificates in the civil
registry of Butuan City, and correction of entries in the birth certificates of
Carlitos minor children. Carlito and his siblings requested the correction in
their birth certificates of the citizenship of their mother Epifania to Filipino,
instead of Chinese, and the deletion of the word married opposite the
phrase Date of marriage of parents because their parents Juan and
Epifania were not married. And Carlito requested the correction in the
birth certificates of their children of his and his wifes date of marriage to
reflect the actual date of their marriage as appearing in their marriage
certificate. In the course of the hearing of the petition, Carlito also sought
the correction of the name of his wife from Maribel to Marivel.
The Khos mother Epifania took the witness stand where she declared that
she was not married to Juan who died before the filing of the Khos petition.
The trial court granted the petition.
On the issue of whether the failure to implead Marivel and the Khos
parents rendered the trial of the petition short of the required adversary
proceedings and the trial courts judgment void, this Court held that when
all the procedural requirements under Rule 108 are followed, the
publication of the notice of hearing cures the failure to implead an
indispensable party. In so ruling, the Court noted that the affected parties
were already notified of the proceedings in the case since the petitionersiblings Khos were the ones who initiated the petition respecting their
prayer for correction of their citizenship, and Carlito respecting the actual
date of his marriage to his wife; and, with respect to the Khos petition for
change of their civil status from legitimate to illegitimate, their mother
Epifania herself took the witness stand declaring that she was not married
to their father.
What is clear then in Barco and Kho is the mandatory directive under
Section 3 of Rule 108 to implead the civil registrar and the parties who
would naturally and legally be affected by the grant of a petition for
correction or cancellation of entries. Non-impleading, however, as partyrespondent of one who is inadvertently left out or is not established to be
known by the petitioner to be affected by the grant of the petition or
actually participates in the proceeding is notified through publication.
IN FINE, when a petition for cancellation or correction of an entry in the
civil register involves substantial and controversial alterations including
those on citizenship, legitimacy of paternity or filiation, or legitimacy of
marriage, a strict compliance with the requirements of Rule 108 of the
Rules of Court is mandated.

WHEREFORE, the petition is, in light of the foregoing discussions,

GRANTED. The January 8, 2009 Decision of Branch 77 of the Regional
Trial Court of Quezon City in SP Proc. No. Q-0863058 is NULLIFIED.

G.R. No. 198010

REPUBLIC vs. UY
August 12, 2013

PERALTA, J.:

On March 8, 2004, respondent filed a Petition for Correction of Entry in her

Certificate of Live Birth.5 Impleaded as respondent is the Local Civil
Registrar of Gingoog City. She alleged that she was born on February 8,
1952 and is the illegitimate daughter of Sy Ton and Sotera Lugsanay6 Her
Certificate of Live Birth7 shows that her full name is "Anita Sy" when in fact
she is allegedly known to her family and friends as "Norma S. Lugsanay."
She further claimed that her school records, Professional Regulation
Commission (PRC) Board of Medicine Certificate,8 and passport9 bear the
name "Norma S. Lugsanay." She also alleged that she is an illegitimate
child considering that her parents were never married, so she had to follow
the surname of her mother.10 She also contended that she is a Filipino
citizen and not Chinese, and all her siblings bear the surname Lugsanay
and are all Filipinos.11
Respondent allegedly filed earlier a petition for correction of entries with
the Office of the Local Civil Registrar of Gingoog City to effect the
corrections on her name and citizenship which was supposedly granted.12
However, the National Statistics Office (NSO) records did not bear such
changes. Hence, the petition before the RTC.
On May 13, 2004, the RTC issued an Order13 finding the petition to be
sufficient in form and substance and setting the case for hearing, with the
directive that the said Order be published in a newspaper of general
circulation in the City of Gingoog and the Province of Misamis Oriental at
least once a week for three (3) consecutive weeks at the expense of
respondent, and that the order and petition be furnished the Office of the
Solicitor General (OSG) and the City Prosecutors Office for their
information and guidance.14 Pursuant to the RTC Order, respondent
complied with the publication requirement.
On June 28, 2004, the RTC issued an Order in favor of respondent, the
dispositive portion of which reads:
WHEREFORE, premises considered, the instant petition is hereby
GRANTED. THE CITY CIVIL REGISTRAR OF GINGOOG CITY, or any
person acting in his behalf is directed and ordered to effect the correction
or change of the entries in the Certificate of Live Birth of petitioners name
and citizenship so that the entries would be:
a)
As to petitioners name :
First Name
: NORMA
Middle Name
: SY
Last Name
: LUGSANAY
b)
As to petitioners nationality/citizenship :
: FILIPINO
SO ORDERED.15
The RTC concluded that respondents petition would neither prejudice the
government nor any third party. It also held that the names "Norma Sy
Lugsanay" and "Anita Sy" refer to one and the same person, especially
since the Local Civil Registrar of Gingoog City has effected the correction.
Considering that respondent has continuously used and has been known
since childhood as "Norma Sy Lugsanay" and as a Filipino citizen, the
RTC granted the petition to avoid confusion.16
On February 18, 2011, the CA affirmed in toto the RTC Order. The CA held
that respondents failure to implead other indispensable parties was cured
upon the publication of the Order setting the case for hearing in a
newspaper of general circulation for three (3) consecutive weeks and by
serving a copy of the notice to the Local Civil Registrar, the OSG and the
City Prosecutors Office.17 As to whether the petition is a collateral attack
on respondents filiation, the CA ruled in favor of respondent, considering
that her parents were not legally married and that her siblings birth
certificates uniformly state that their surname is Lugsanay and their
citizenship is Filipino.18 Petitioners motion for reconsideration was denied
in a Resolution dated July 27, 2011.
Hence, the present petition on the sole ground that the petition is
dismissible for failure to implead indispensable parties.
Cancellation or correction of entries in the civil registry is governed by Rule
108 of the Rules of Court, to wit:
SEC. 1. Who may file petition. Any person interested in any act, event,
order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the Regional Trial Court of
the province where the corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. Upon good and

valid grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and (o) changes of name.
SEC. 3. Parties. When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
SEC. 4. Notice and Publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in
the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the proceeding is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties
pending such proceedings.
SEC. 7. Order. After hearing, the court may either dismiss the petition or
issue an order granting the cancellation or correction prayed for. In either
case, a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record.19
In this case, respondent sought the correction of entries in her birth
certificate, particularly those pertaining to her first name, surname and
citizenship. She sought the correction allegedly to reflect the name which
she has been known for since childhood, including her legal documents
such as passport and school and professional records. She likewise relied
on the birth certificates of her full blood siblings who bear the surname
"Lugsanay" instead of "Sy" and citizenship of "Filipino" instead of
"Chinese." The changes, however, are obviously not mere clerical as they
touch on respondents filiation and citizenship. In changing her surname
from "Sy" (which is the surname of her father) to "Lugsanay" (which is the
surname of her mother), she, in effect, changes her status from legitimate
to illegitimate; and in changing her citizenship from Chinese to Filipino, the
same affects her rights and obligations in this country. Clearly, the changes
are substantial.
It has been settled in a number of cases starting with Republic v.
Valencia20 that even substantial errors in a civil registry may be corrected
and the true facts established provided the parties aggrieved by the error
avail themselves of the appropriate adversary proceeding.21 The
pronouncement of the Court in that case is illuminating:
It is undoubtedly true that if the subject matter of a petition is not for the
correction of clerical errors of a harmless and innocuous nature, but one
involving nationality or citizenship, which is indisputably substantial as well
as controverted, affirmative relief cannot be granted in a proceeding
summary in nature. However, it is also true that a right in law may be
enforced and a wrong may be remedied as long as the appropriate remedy
is used. This Court adheres to the principle that even substantial errors in
a civil registry may be corrected and the true facts established provided
the parties aggrieved by the error avail themselves of the appropriate
adversary proceeding. x x x
What is meant by "appropriate adversary proceeding?" Blacks Law
Dictionary defines "adversary proceeding" as follows:
One having opposing parties; contested, as distinguished from an ex parte
application, one of which the party seeking relief has given legal warning to
the other party, and afforded the latter an opportunity to contest it.
Excludes an adoption proceeding.22
In sustaining the RTC decision, the CA relied on the Courts conclusion in
Republic v. Kho,23 Alba v. Court of Appeals,24 and Barco v. Court of
Appeals,25 that the failure to implead indispensable parties was cured by
the publication of the notice of hearing pursuant to the provisions of Rule

108 of the Rules of Court. In Republic v. Kho,26 petitioner therein

appealed the RTC decision granting the petition for correction of entries
despite respondents failure to implead the minors mother as an
indispensable party. The Court, however, did not strictly apply the
provisions of Rule 108, because it opined that it was highly improbable that
the mother was unaware of the proceedings to correct the entries in her
childrens birth certificates especially since the notices, orders and
decision of the trial court were all sent to the residence she shared with
them.27
In Alba v. Court of Appeals,28 the Court found nothing wrong with the trial
courts decision granting the petition for correction of entries filed by
respondent although the proceedings was not actually known by petitioner.
In that case, petitioners mother and guardian was impleaded in the
petition for correction of entries, and notices were sent to her address
appearing in the subject birth certificate. However, the notice was returned
unserved, because apparently she no longer lived there. Thus, when she
allegedly learned of the granting of the petition, she sought the annulment
of judgment which the Court denied. Considering that the petition for
correction of entries is a proceeding in rem, the Court held that acquisition
of jurisdiction over the person of the petitioner is, therefore, not required
and the absence of personal service was cured by the trial courts
compliance with Rule 108 which requires notice by publication.29
In Barco v. Court of Appeals,30 the Court addressed the question of
whether the court acquired jurisdiction over petitioner and all other
indispensable parties to the petition for correction of entries despite the
failure to implead them in said case. While recognizing that petitioner was
indeed an indispensable party, the failure to implead her was cured by
compliance with Section 4 of Rule 108 which requires notice by
publication. In so ruling, the Court pointed out that the petitioner in a
petition for correction cannot be presumed to be aware of all the parties
whose interests may be affected by the granting of a petition. It
emphasized that the petitioner therein exerted earnest effort to comply with
the provisions of Rule 108. Thus, the publication of the notice of hearing
was considered to have cured the failure to implead indispensable parties.
In this case, it was only the Local Civil Registrar of Gingoog City who was
impleaded as respondent in the petition below. This, notwithstanding, the
RTC granted her petition and allowed the correction sought by respondent,
which decision was affirmed in toto by the CA.
We do not agree with the RTC and the CA.
This is not the first time that the Court is confronted with the issue involved
in this case. Aside from Kho, Alba and Barco, the Court has addressed the
same in Republic v. Coseteng-Magpayo,31 Ceruila v. Delantar,32 and
Labayo-Rowe v. Republic.33
In Republic v. Coseteng-Magpayo,34 claiming that his parents were never
legally married, respondent therein filed a petition to change his name from
"Julian Edward Emerson Coseteng Magpayo," the name appearing in his
birth certificate to "Julian Edward Emerson Marquez Lim Coseteng." The
notice setting the petition for hearing was published and there being no
opposition thereto, the trial court issued an order of general default and
eventually granted respondents petition deleting the entry on the date and
place of marriage of parties; correcting his surname from "Magpayo" to
"Coseteng"; deleting the entry "Coseteng" for middle name; and deleting
the entry "Fulvio Miranda Magpayo, Jr." in the space for his father. The
Republic of the Philippines, through the OSG, assailed the RTC decision
on the grounds that the corrections made on respondents birth certificate
had the effect of changing the civil status from legitimate to illegitimate and
must only be effected through an appropriate adversary proceeding. The
Court nullified the RTC decision for respondents failure to comply strictly
with the procedure laid down in Rule 108 of the Rules of Court. Aside from
the wrong remedy availed of by respondent as he filed a petition for
Change of Name under Rule 103 of the Rules of Court, assuming that he
filed a petition under Rule 108 which is the appropriate remedy, the petition
still failed because of improper venue and failure to implead the Civil
Registrar of Makati City and all affected parties as respondents in the
case.
In Ceruila v. Delantar,35 the Ceruilas filed a petition for the cancellation
and annulment of the birth certificate of respondent on the ground that the
same was made as an instrument of the crime of simulation of birth and,
therefore, invalid and spurious, and it falsified all material entries therein.
The RTC issued an order setting the case for hearing with a directive that
the same be published and that any person who is interested in the
petition may interpose his comment or opposition on or before the
scheduled hearing. Summons was likewise sent to the Civil Register of
Manila. After which, the trial court granted the petition and nullified

respondents birth certificate. Few months after, respondent filed a petition

for the annulment of judgment claiming that she and her guardian were not
notified of the petition and the trial courts decision, hence, the latter was
issued without jurisdiction and in violation of her right to due process. The
Court annulled the trial courts decision for failure to comply with the
requirements of Rule 108, especially the non-impleading of respondent
herself whose birth certificate was nullified.1wphi1
In Labayo-Rowe v. Republic,36 petitioner filed a petition for the correction
of entries in the birth certificates of her children, specifically to change her
name from Beatriz V. Labayu/Beatriz Labayo to Emperatriz Labayo, her
civil status from "married" to "single," and the date and place of marriage
from "1953-Bulan" to "No marriage." The Court modified the trial courts
decision by nullifying the portion thereof which directs the change of
petitioners civil status as well as the filiation of her child, because it was
the OSG only that was made respondent and the proceedings taken was
summary in nature which is short of what is required in cases where
substantial alterations are sought.
Respondents birth certificate shows that her full name is Anita Sy, that she
is a Chinese citizen and a legitimate child of Sy Ton and Sotera Lugsanay.
In filing the petition, however, she seeks the correction of her first name
and surname, her status from "legitimate" to "illegitimate" and her
citizenship from "Chinese" to "Filipino." Thus, respondent should have
impleaded and notified not only the Local Civil Registrar but also her
parents and siblings as the persons who have interest and are affected by
the changes or corrections respondent wanted to make.
The fact that the notice of hearing was published in a newspaper of
general circulation and notice thereof was served upon the State will not
change the nature of the proceedings taken.37 A reading of Sections 4 and
5, Rule 108 of the Rules of Court shows that the Rules mandate two sets
of notices to different potential oppositors: one given to the persons named
in the petition and another given to other persons who are not named in
the petition but nonetheless may be considered interested or affected
parties.38 Summons must, therefore, be served not for the purpose of
vesting the courts with jurisdiction but to comply with the requirements of
fair play and due process to afford the person concerned the opportunity to
protect his interest if he so chooses.39
While there may be cases where the Court held that the failure to implead
and notify the affected or interested parties may be cured by the
publication of the notice of hearing, earnest efforts were made by
petitioners in bringing to court all possible interested parties.40 Such
failure was likewise excused where the interested parties themselves
initiated the corrections proceedings;41 when there is no actual or
presumptive awareness of the existence of the interested parties;42 or
when a party is inadvertently left out.43
It is clear from the foregoing discussion that when a petition for
cancellation or correction of an entry in the civil register involves
substantial and controversial alterations, including those on citizenship,
legitimacy of paternity or filiation, or legitimacy of marriage, a strict
compliance with the requirements of Rule 108 ofthe Rules of Court is
mandated.44 If the entries in the civil register could be corrected or
changed through mere summary proceedings and not through appropriate
action wherein all parties who may be affected by the entries are notified
or represented, the door to fraud or other mischief would be set open, the
consequence of which might be detrimental and far reaching.45
WHEREFORE, premises considered, the petition is hereby GRANTED.
The Court of Appeals Decision dated February 18, 2011 and Resolution
dated July 27, 20011 in CA-G.R. CV No. 00238-MIN, are SET ASIDE.
Consequently, the June 28, 2004 Order of the Regional Trial Court, Branch
27, Gingoog City, in Spl. Proc. No. 230-2004 granting the Petition for
Correction of Entry of Certificate of Live Birth filed by respondent Dr.
Norma S. Lugsanay Uy, is NULLIFIED.

REPUBLIC vs. OLAYBAR

G.R. No. 189538
February 10, 2014

PERALTA, J.:

Respondent requested from the National Statistics Office (NSO) a

Certificate of No Marriage (CENOMAR) as one of the requirements for her
marriage with her boyfriend of five years. Upon receipt thereof, she
discovered that she was already married to a certain Ye Son Sune, a
Korean National, on June 24, 2002, at the Office of the Municipal Trial
Court in Cities (MTCC), Palace of Justice. She denied having contracted
said marriage and claimed that she did not know the alleged husband; she
did not appear before the solemnizing officer; and, that the signature
appearing in the marriage certificate is not hers.4 She, thus, filed a Petition
for Cancellation of Entries in the Marriage Contract, especially the entries
in the wife portion thereof.5 Respondent impleaded the Local Civil
Registrar of Cebu City, as well as her alleged husband, as parties to the
case.
During trial, respondent testified on her behalf and explained that she
could not have appeared before Judge Mamerto Califlores, the supposed
solemnizing officer, at the time the marriage was allegedly celebrated,
because she was then in Makati working as a medical distributor in
Hansao Pharma. She completely denied having known the supposed
husband, but she revealed that she recognized the named witnesses to
the marriage as she had met them while she was working as a receptionist
in Tadels Pension House. She believed that her name was used by a
certain Johnny Singh, who owned a travel agency, whom she gave her
personal circumstances in order for her to obtain a passport.6 Respondent
also presented as witness a certain Eufrocina Natinga, an employee of
MTCC, Branch 1, who confirmed that the marriage of Ye Son Sune was
indeed celebrated in their office, but claimed that the alleged wife who
appeared was definitely not respondent.7 Lastly, a document examiner
testified that the signature appearing in the marriage contract was forged.8
On May 5, 2009, the RTC rendered the assailed Decision, the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered, the petition is granted in
favor of the petitioner, Merlinda L. Olaybar. The Local Civil Registrar of
Cebu City is directed to cancel all the entries in the WIFE portion of the
alleged marriage contract of the petitioner and respondent Ye Son Sune.
SO ORDERED.9
Finding that the signature appearing in the subject marriage contract was
not that of respondent, the court found basis in granting the latters prayer
to straighten her record and rectify the terrible mistake.10
Petitioner, however, moved for the reconsideration of the assailed Decision
on the grounds that: (1) there was no clerical spelling, typographical and
other innocuous errors in the marriage contract for it to fall within the
provisions of Rule 108 of the Rules of Court; and (2) granting the
cancellation of all the entries in the wife portion of the alleged marriage
contract is, in effect, declaring the marriage void ab initio.11
In an Order dated August 25, 2009, the RTC denied petitioners motion for
reconsideration couched in this wise:
WHEREFORE, the court hereby denies the Motion for Reconsideration
filed by the Republic of the Philippines. Furnish copies of this order to the
Office of the Solicitor General, the petitioners counsel, and all concerned
government agencies.
SO ORDERED.12
Contrary to petitioners stand, the RTC held that it had jurisdiction to take
cognizance of cases for correction of entries even on substantial errors
under Rule 108 of the Rules of Court being the appropriate adversary
proceeding required. Considering that respondents identity was used by
an unknown person to contract marriage with a Korean national, it would
not be feasible for respondent to institute an action for declaration of nullity
of marriage since it is not one of the void marriages under Articles 35 and
36 of the Family Code.13
Petitioner now comes before the Court in this Petition for Review on
Certiorari under Rule 45 of the Rules of Court seeking the reversal of the
assailed RTC Decision and Order based on the following grounds:
I.

RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN

THERE ARE ERRORS IN THE ENTRIES SOUGHT TO BE CANCELLED
OR CORRECTED.
II.
GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN THE WIFE
PORTION OF THE ALLEGED MARRIAGE CONTRACT," IS IN EFFECT
DECLARING THE MARRIAGE VOID AB INITIO.14
Petitioner claims that there are no errors in the entries sought to be
cancelled or corrected, because the entries made in the certificate of
marriage are the ones provided by the person who appeared and
represented herself as Merlinda L. Olaybar and are, in fact, the latters
personal circumstances.15 In directing the cancellation of the entries in the
wife portion of the certificate of marriage, the RTC, in effect, declared the
marriage null and void ab initio.16 Thus, the petition instituted by
respondent is actually a petition for declaration of nullity of marriage in the
guise of a Rule 108 proceeding.17
We deny the petition.
At the outset, it is necessary to stress that a direct recourse to this Court
from the decisions and final orders of the RTC may be taken where only
questions of law are raised or involved. There is a question of law when
the doubt arises as to what the law is on a certain state of facts, which
does not call for the examination of the probative value of the evidence of
the parties.18 Here, the issue raised by petitioner is whether or not the
cancellation of entries in the marriage contract which, in effect, nullifies the
marriage may be undertaken in a Rule 108 proceeding. Verily, petitioner
raised a pure question of law.
Rule 108 of the Rules of Court sets forth the rules on cancellation or
correction of entries in the civil registry, to wit:
SEC. 1. Who may file petition. Any person interested in any act, event,
order or decree concerning the civil status of persons which has been
recorded in the civil register, may file a verified petition for the cancellation
or correction of any entry relating thereto, with the Regional Trial Court of
the province where the corresponding civil registry is located.
SEC. 2. Entries subject to cancellation or correction. Upon good and
valid grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and (o) changes of name.
SEC. 3. Parties. When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.
SEC. 4. Notice and Publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in
the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings is
brought may make orders expediting the proceedings, and may also grant
preliminary injunction for the preservation of the rights of the parties
pending such proceedings.
SEC. 7. Order. After hearing, the court may either dismiss the petition or
issue an order granting the cancellation or correction prayed for. In either
case, a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record.
Rule 108 of the Rules of Court provides the procedure for cancellation or
correction of entries in the civil registry. The proceedings may either be
summary or adversary. If the correction is clerical, then the procedure to
be adopted is summary. If the rectification affects the civil status,

citizenship or nationality of a party, it is deemed substantial, and the

procedure to be adopted is adversary. Since the promulgation of Republic
v. Valencia19 in 1986, the Court has repeatedly ruled that "even
substantial errors in a civil registry may be corrected through a petition
filed under Rule 108, with the true facts established and the parties
aggrieved by the error availing themselves of the appropriate adversarial
proceeding."20 An appropriate adversary suit or proceeding is one where
the trial court has conducted proceedings where all relevant facts have
been fully and properly developed, where opposing counsel have been
given opportunity to demolish the opposite partys case, and where the
evidence has been thoroughly weighed and considered.21

the marriage certificate was a forgery. While we maintain that Rule 108
cannot be availed of to determine the validity of marriage, we cannot nullify
the proceedings before the trial court where all the parties had been given
the opportunity to contest the allegations of respondent; the procedures
were followed, and all the evidence of the parties had already been
admitted and examined. Respondent indeed sought, not the nullification of
marriage as there was no marriage to speak of, but the correction of the
record of such marriage to reflect the truth as set forth by the evidence.
Otherwise stated, in allowing the correction of the subject certificate of
marriage by cancelling the wife portion thereof, the trial court did not, in
any way, declare the marriage void as there was no marriage to speak of.

It is true that in special proceedings, formal pleadings and a hearing may

be dispensed with, and the remedy [is] granted upon mere application or
motion. However, a special proceeding is not always summary. The
procedure laid down in Rule 108 is not a summary proceeding per se. It
requires publication of the petition; it mandates the inclusion as parties of
all persons who may claim interest which would be affected by the
cancellation or correction; it also requires the civil registrar and any person
in interest to file their opposition, if any; and it states that although the
court may make orders expediting the proceedings, it is after hearing that
the court shall either dismiss the petition or issue an order granting the
same. Thus, as long as the procedural requirements in Rule 108 are
followed, it is the appropriate adversary proceeding to effect substantial
corrections and changes in entries of the civil register.22

WHEREFORE, premises considered, the petition is DENIED for lack of

merit. The Regional Trial Court Decision dated May 5, 2009 and Order
dated August 25, 2009 in SP. Proc. No. 16519-CEB, are AFFIRMED.

In this case, the entries made in the wife portion of the certificate of
marriage are admittedly the personal circumstances of respondent. The
latter, however, claims that her signature was forged and she was not the
one who contracted marriage with the purported husband. In other words,
she claims that no such marriage was entered into or if there was, she was
not the one who entered into such contract. It must be recalled that when
respondent tried to obtain a CENOMAR from the NSO, it appeared that
she was married to a certain Ye Son Sune. She then sought the
cancellation of entries in the wife portion of the marriage certificate.
In filing the petition for correction of entry under Rule 108, respondent
made the Local Civil Registrar of Cebu City, as well as her alleged
husband Ye Son Sune, as parties-respondents. It is likewise undisputed
that the procedural requirements set forth in Rule 108 were complied with.
The Office of the Solicitor General was likewise notified of the petition
which in turn authorized the Office of the City Prosecutor to participate in
the proceedings. More importantly, trial was conducted where respondent
herself, the stenographer of the court where the alleged marriage was
conducted, as well as a document examiner, testified. Several documents
were also considered as evidence. With the testimonies and other
evidence presented, the trial court found that the signature appearing in
the subject marriage certificate was different from respondents signature
appearing in some of her government issued identification cards.23 The
court thus made a categorical conclusion that respondents signature in
the marriage certificate was not hers and, therefore, was forged. Clearly, it
was established that, as she claimed in her petition, no such marriage was
celebrated.
Indeed the Court made a pronouncement in the recent case of Minoru
Fujiki v. Maria Paz Galela Marinay, Shinichi Maekara, Local Civil Registrar
of Quezon City, and the Administrator and Civil Registrar General of the
National Statistics Office24 that:
To be sure, a petition for correction or cancellation of an entry in the civil
registry cannot substitute for an action to invalidate a marriage. A direct
action is necessary to prevent circumvention of the substantive and
procedural safeguards of marriage under the Family Code, A.M. No. 0211-10-SC and other related laws. Among these safeguards are the
requirement of proving the limited grounds for the dissolution of marriage,
support pendente lite of the spouses and children, the liquidation, partition
and distribution of the properties of the spouses and the investigation of
the public prosecutor to determine collusion. A direct action for declaration
of nullity or annulment of marriage is also necessary to prevent
circumvention of the jurisdiction of the Family Courts under the Family
Courts Act of 1997 (Republic Act No. 8369), as a petition for cancellation
or correction of entries in the civil registry may be filed in the Regional Trial
Court where the corresponding civil registry is located. In other words, a
Filipino citizen cannot dissolve his marriage by the mere expedient of
changing his entry of marriage in the civil registry.
Aside from the certificate of marriage, no such evidence was presented to
show the existence of marriage.1wphi1 Rather, respondent showed by
overwhelming evidence that no marriage was entered into and that she
was not even aware of such existence. The testimonial and documentary
evidence clearly established that the only "evidence" of marriage which is

G.R. No. 174689

SILVERIO vs. REPUBLIC

October 22, 2007

CORONA, J.:

When God created man, He made him in the likeness of God; He created
them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard
voices coming from inside the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the reed once, then twice.
All of a sudden, the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female. Amihan named the
man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does
the law recognize the changes made by a physician using scalpel, drugs
and counseling with regard to a persons sex? May a person successfully
petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in the
Regional Trial Court of Manila, Branch 8. The petition, docketed as SP
Case No. 02-105207, impleaded the civil registrar of Manila as
respondent.
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4,
1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male
but feels, thinks and acts as a female" and that he had always identified
himself with girls since childhood.1 Feeling trapped in a mans body, he
consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast augmentation.
His attempts to transform himself to a "woman" culminated on January 27,
2001 when he underwent sex reassignment surgery2 in Bangkok,
Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a
plastic and reconstruction surgeon in the Philippines, who issued a
medical certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the Peoples
Journal Tonight, a newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were sent to the Office of
the Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. ReysioCruz, Jr. and his American fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner.
Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the purpose
of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more
in consonance with the principles of justice and equity. With his sexual [reassignment], petitioner, who has always felt, thought and acted like a
woman, now possesses the physique of a female. Petitioners misfortune
to be trapped in a mans body is not his own doing and should not be in
any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness on

the part of the petitioner and her [fianc] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or ground to deny
the present petition despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in
the Certificate of Birth of [p]etitioner, specifically for petitioners first name
from "Rommel Jacinto" to MELY and petitioners gender from "Male" to
FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor
of the Republic. It ruled that the trial courts decision lacked legal basis.
There is no law allowing the change of either name or sex in the certificate
of birth on the ground of sex reassignment through surgery. Thus, the
Court of Appeals granted the Republics petition, set aside the decision of
the trial court and ordered the dismissal of SP Case No. 02-105207.
Petitioner moved for reconsideration but it was denied.9 Hence, this
petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the purpose
of making his birth records compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the physical features of a
female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a right.12
Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law).
In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname. No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding venue,16
form17 and procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may
be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The
petition for change of first name or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted
with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously
used by the petitioner and he has been publicly known by that first name
or nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex
he thought he transformed himself into through surgery. However, a
change of name does not alter ones legal capacity or civil status.18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioners first
name for his declared purpose may only create grave complications in the
civil registry and the public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the use
of his true and official name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and
official name.
In sum, the petition in the trial court in so far as it prayed for the change of
petitioners first name was not within that courts primary jurisdiction as the
petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of
the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of Appeals
correctly dismissed petitioners petition in so far as the change of his first
name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On
the Ground of Sex Reassignment
The determination of a persons sex appearing in his birth certificate is a
legal issue and the court must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by
RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following terms
shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in the

performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality, age,
status or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial change
for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning;
(7) legitimations; (8) adoptions; (9) acknowledgments of natural children;
(10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.25 However, no
reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with something
else of the same kind or with something that serves as a substitute."26
The birth certificate of petitioner contained no error. All entries therein,
including those corresponding to his first name and sex, were all correct.
No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts, events and
judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the
sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at his
own will, such as his being legitimate or illegitimate, or his being married or
not. The comprehensive term status include such matters as the
beginning and end of legal personality, capacity to have rights in general,
family relations, and its various aspects, such as birth, legitimation,
adoption, emancipation, marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a
part of a persons legal capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall
be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local civil registrar
not later than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of infant;
(c) names, citizenship and religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of parents; (e) place where the
infant was born; and (f) such other data as may be required in the
regulations to be issued.

xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth.29 Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
persons sex made at the time of his or her birth, if not attended by error,30
is immutable.31
When words are not defined in a statute they are to be given their common
and ordinary meaning in the absence of a contrary legislative intent. The
words "sex," "male" and "female" as used in the Civil Register Law and
laws concerning the civil registry (and even all other laws) should therefore
be understood in their common and ordinary usage, there being no
legislative intent to the contrary. In this connection, sex is defined as "the
sum of peculiarities of structure and function that distinguish a male from a
female"32 or "the distinction between male and female."33 Female is "the
sex that produces ova or bears young"34 and male is "the sex that has
organs to produce spermatozoa for fertilizing ova."35 Thus, the words
"male" and "female" in everyday understanding do not include persons
who have undergone sex reassignment. Furthermore, "words that are
employed in a statute which had at the time a well-known meaning are
presumed to have been used in that sense unless the context compels to
the contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued
that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be
included in the category "female."
For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of
the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be
Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with
the principles of justice and equity. It believed that allowing the petition
would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal
and public policy consequences. First, even the trial court itself found that
the petition was but petitioners first step towards his eventual marriage to
his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.38 To grant the
changes sought by petitioner will substantially reconfigure and greatly alter
the laws on marriage and family relations. It will allow the union of a man
with another man who has undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,41 among others. These laws underscore
the public policy in relation to women which could be substantially affected
if petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the law." However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law,
not to make or amend it.
In our system of government, it is for the legislature, should it choose to do
so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statutebased.
To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature
intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex,

it has to enact legislation laying down the guidelines in turn governing the
conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when
a person may be recognized as having successfully changed his sex.
However, this Court has no authority to fashion a law on that matter, or on
anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for them, life is indeed
an ordeal. However, the remedies petitioner seeks involve questions of
public policy to be addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.

SILVERIO vs. COURT OF APPEALS

G.R. No. 178933
September 16, 2009
VELASCO, JR., J.:

Vacate[13] was issued on April 19, 2007 ordering private respondent to

leave the premises of the subject property within ten (10) days.

The instant controversy stemmed from the settlement of estate of the

deceased Beatriz Silverio. After her death, her surviving spouse, Ricardo
Silverio, Sr., filed an intestate proceeding for the settlement of her estate.
The case was docketed as SP. PROC. NO. M-2629 entitled In Re: Estate
of the Late Beatriz D. Silverio, Ricardo C. Silverio, Sr. v. Ricardo S. Silverio
Jr., et al. pending before the Regional Trial Court (RTC) of Makati City,
Branch 57 (RTC).

Consequently, private respondent filed a Petition for Certiorari and

Prohibition (With Prayer for TRO and Writ of Preliminary Injunction) dated
May 2, 2007[14] with the CA.

On November 16, 2004, during the pendency of the case, Ricardo Silverio,
Jr. filed a petition to remove Ricardo C. Silverio, Sr. as the administrator of
the subject estate. On November 22, 2004, Edmundo S. Silverio also filed
a comment/opposition for the removal of Ricardo C. Silverio, Sr. as
administrator of the estate and for the appointment of a new administrator.
On January 3, 2005, the RTC issued an Order granting the petition and
removing Ricardo Silverio, Sr. as administrator of the estate, while
appointing Ricardo Silverio, Jr. as the new administrator.

On January 26, 2005, Nelia S. Silverio-Dee filed a Motion for

Reconsideration of the Order dated January 3, 2005, as well as all other
related orders.
On February 4, 2005, Ricardo Silverio Jr. filed an Urgent Motion for an
Order Prohibiting Any Person to Occupy/Stay/Use Real Estate Properties
Involved in the Intestate Estate of the Late Beatriz Silverio, Without
Authority from this Honorable Court.[3]
Then, on May 31, 2005, the RTC issued an Omnibus Order[4] affirming its
Order dated January 3, 2005 and denying private respondents motion for
reconsideration. In the Omnibus Order, the RTC also authorized Ricardo
Silverio, Jr. to, upon receipt of the order, immediately exercise his duties as
administrator of the subject estate. The Omnibus Order also directed Nelia
S. Silverio-Dee to vacate the property at No. 3, Intsia, Forbes Park, Makati
City within fifteen (15) days from receipt of the order.

On May 4, 2007, the CA issued the assailed Resolution granting the prayer
for the issuance of a TRO. In issuing the TRO, the CA ruled that the Notice
of Appeal was filed within the reglementary period provided by the Rules of
Court applying the fresh rule period enunciated by this Court in Neypes v.
Court of Appeals[15] as reiterated in Sumaway v. Union Bank.[16]
Afterwards, on July 6, 2007, the CA issued the assailed decision granting
the petition of private respondent. The dispositive portion reads:
WHEREFORE, in view of the foregoing, the instant petition is GRANTED
and GIVEN DUE COURSE. Accordingly, the Order, dated April 2, 2007, the
writ of execution, dated April 17, 2007, and the Notice to Vacate, dated
April 19, 2007, are ANNULLED AND SET ASIDE. Further, the court a quo
is hereby directed to give due course to the appeal of Nelia S. SilverioDee.
SO ORDERED.

Hence, the instant petition.

The Issues
-AThe Omnibus Order dated May 31, 2005 (Annex G of Annex C) and the
Order dated December 12, 2005 are Interlocutory Orders which are not
subject to appeal under Sec. 1 of Rule 41;

Nelia Silverio-Dee received a copy of the Omnibus Order dated May 31,
2005 on June 8, 2005.
On June 16, 2005, private respondent filed a Motion for Reconsideration
dated June 15, 2005[5] of the Omnibus Order. This was later denied by the
RTC in an Order dated December 12, 2005, which was received by private
respondent on December 22, 2005.
Notably, the RTC in its Order dated December 12, 2005[6] also recalled its
previous order granting Ricardo Silverio, Jr. with letters of administration
over the intestate estate of Beatriz Silverio and reinstating Ricardo Silverio,
Sr. as the administrator.
From the Order dated December 12, 2005, Ricardo Silverio, Jr. filed a
motion for reconsideration which was denied by the RTC in an Order dated
October 31, 2006. In the same order, the RTC also allowed the sale of
various properties of the intestate estate of the late Beatriz Silverio to
partially settle estate taxes, penalties, interests and other charges due
thereon. Among the properties authorized to be sold was the one located
at No. 3 Intsia Road, Forbes Park, Makati City.[7]
Meanwhile, on January 6, 2006, Nelia Silverio-Dee filed a Notice of Appeal
dated January 5, 2006[8] from the Order dated December 12, 2005 while
the Record on Appeal dated January 20, 2006[9] was filed on January 23,
2006.
Thereafter, on October 23, 2006, Ricardo Silverio, Jr. filed a Motion to
Dismiss Appeal and for Issuance of a Writ of Execution[10] against the
appeal of Nelia Silverio-Dee on the ground that the Record on Appeal was
filed ten (10) days beyond the reglementary period pursuant to Section 3,
Rule 41 of the Rules of Court.
Thus, on April 2, 2007, the RTC issued an Order[11] denying the appeal on
the ground that it was not perfected within the reglementary period. The
RTC further issued a writ of execution for the enforcement of the Order
dated May 31, 2005 against private respondent to vacate the premises of
the property located at No. 3, Intsia, Forbes Park, Makati City. The writ of
execution was later issued on April 17, 2007[12] and a Notice to

-BThe respondent Court seriously erred and/or committed grave abuse of

discretion amounting to lack of or excess of jurisdiction, in deliberately
failing to decide that the basis of the occupancy of Nelia S. Silverio-Dee
are fraudulent documents, without any authority from the Intestate Court;
-CThe respondent Court seriously erred and/or committed grave abuse of
discretion amounting to lack of or excess of jurisdiction, in issuing
precipitately the temporary restraining order (TRO) in its Resolution dated
May 4, 2007 (Annex A-1);
-DThe respondent Court seriously erred and/or committed grave abuse of
discretion amounting to lack of or excess of jurisdiction in annulling the
Order dated April 2, 2007, the Writ of Execution dated April 17, 2007, and
the Notice to Vacate dated April 19, 2007 because the respondent SilverioDees occupancy of the Intestate property located at No. 3 Intsia Road,
Forbes Park, Makati City (Annex N of Annex C) will prevent the sale
authorized by the Order dated October 31, 2006 to secure funds for the
payment of taxes due which are now high and rapidly increasing payment
of which must not be enjoined.[17]

The Courts Ruling

This petition is meritorious.

The May 31, 2005 Order of the RTC Is

an Interlocutory Order, Not Subject to an Appeal
To recapitulate, the relevant facts to the instant issue are as follows:
On May 31, 2005, the RTC issued an Omnibus Order ordering Nelia
Silverio-Dee to vacate the premises of the property located at No. 3, Intsia
Road, Forbes Park, Makati City. She received a copy of the said Order on
June 8, 2005. Instead of filing a Notice of Appeal and Record on Appeal,
private respondent filed a motion for reconsideration of the Order. This
motion for reconsideration was denied in an Order dated December 12,
2005. This Order was received by private respondent on December 22,
2005. On January 6, 2006, private respondent filed her Notice of Appeal
while she filed her Record on Appeal on January 23, 2006.
Thus, in denying due course to the Notice/Record on Appeal, the RTC, in
its Order dated April 2, 2007, ruled:
Verily, the appeal taken by the movant Nelia Silverio-Dee from the Order of
this Court dated December 12, 2005 denying the Motion for
Reconsideration is misplaced as no appeal may be taken from the order
denying the motion for reconsideration (see Section 1, Rule 41 of the 1997
Rules of Civil Procedure in relation to Section 1(f), Rule 109 of the Rules of
Court). Furthermore, assuming that what said movant had appealed is the
final Order dated May 31, 2005, still, the appeal cannot be given due
course as the Record on Appeal had been filed beyond the thirty-day
period to appeal (see Section 3 Rule 41 of the Rules of Court)

The CA, however, ruled that the filing of the Notice of Appeal in this case
was proper saying that the appeal pertained to the earlier Omnibus Order
dated May 31, 2005. The CA, citing Apuyan v. Haldeman,[18] argued that
an order denying a motion for reconsideration may be appealed as such
order is the final order which disposes of the case. In that case, we stated:

In the recent case of Quelnan v. VHF Philippines, Inc., We held, thus:

[T]his Court finds that the proscription against appealing from an order
denying a motion for reconsideration refers to an interlocutory order, and
not to a final order or judgment. That that was the intention of the abovequoted rules is gathered from Pagtakhan v. CIR, 39 SCRA 455 (1971),
cited in above-quoted portion of the decision in Republic, in which this
Court held that an order denying a motion to dismiss an action is
interlocutory, hence, not appealable.
The rationale behind the rule proscribing the remedy of appeal from an
interlocutory order is to prevent undue delay, useless appeals and undue
inconvenience to the appealing party by having to assail orders as they are
promulgated by the court, when they can be contested in a single appeal.
The appropriate remedy is thus for the party to wait for the final judgment
or order and assign such interlocutory order as an error of the court on
appeal.

WHEREFORE, the appeal filed by Nelia Silverio is hereby DENIED due

course.

The denial of the motion for reconsideration of an order of dismissal of a

complaint is not an interlocutory order, however, but a final order as it puts
an end to the particular matter resolved, or settles definitely the matter
therein disposed of, and nothing is left for the trial court to do other than to
execute the order.

Let a writ of execution issue to enforce the Order dated May 31, 2005
against Nelia Silverio-Dee requiring her to vacate the premises at No. 3
Intsia, Forbes Park, Makati City.

Not being an interlocutory order, an order denying a motion for

reconsideration of an order of dismissal of a complaint is effectively an
appeal of the order of dismissal itself.

SO ORDERED.

The reference by petitioner, in his notice of appeal, to the March 12, 1999
Order denying his Omnibus MotionMotion for Reconsideration should thus
be deemed to refer to the January 17, 1999 Order which declared him
non-suited and accordingly dismissed his complaint.

Thus, the denial of due course by the RTC was based on two (2) grounds:
(1) that Nelia Silverio-Dees appeal was against an order denying a motion
for reconsideration which is disallowed under Sec. 1(a), Rule 41 of the
Rules of Court; and (2) that Nelia Silverio-Dees Record on Appeal was
filed beyond the reglementary period to file an appeal provided under Sec.
3 of Rule 41.
Sec. 1(a), Rule 41 of the Rules of Court provides:
RULE 41
APPEAL FROM THE REGIONAL TRIAL COURTS
SECTION 1. Subject of appeal.An appeal may be taken from a judgment
or final order that completely disposes of the case, or of a particular matter
therein when declared by these Rules to be appealable.

If the proscription against appealing an order denying a motion for

reconsideration is applied to any order, then there would have been no
need to specifically mention in both above-quoted sections of the Rules
final orders or judgments as subject to appeal. In other words, from the
entire provisions of Rule 39 and 41, there can be no mistaking that what is
proscribed is to appeal from a denial of a motion for reconsideration of an
interlocutory order. (Emphasis supplied.)

Thus, the question posed is whether the Omnibus Order dated May 31,
2005 is an interlocutory order.
On this aspect, the CA ruled that the Omnibus Order dated May 31, 2005
was a final order, to wit:

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;
xxxx
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil action
under Rule 65.

Petitioner argues that because private respondent filed a Notice of Appeal

from the Order dated December 12, 2005 which denied her motion for
reconsideration of the Omnibus Order dated May 31, 2005, her appeal is
of an order denying a motion for reconsideration. Thus, petitioner alleges
that private respondent employed the wrong remedy in filing a notice of
appeal and should have filed a petition for certiorari with the CA under
Rule 65 of the Rules of Court instead.

We note that the Order, dated December 12, 2005, is an offshoot of the
Omnibus Order, dated May 31, 2005. In the Omnibus Order, the court a
quo ruled that the petitioner, as an heir of the late Beatriz S. Silverio, had
no right to use and occupy the property in question despite authority given
to her by Ricardo Silverio, Sr. when it said, thus:
x x x In the first place, Nelia S. Silverio-Dee cannot occupy the property in
Intsia, Forbes Park, admittedly belonging to the conjugal estate and
subject to their proceedings without authority of the Court. Based on the
pretenses of Nelia Silverio-Dee in her memorandum, it is clear that she
would use and maintain the premises in the concept of a distributee. Under
her perception, Section 1 Rule 90 of the Revised Rules of Court is
violated. x x x
xxxx
For the property at Intsia, Forbes Park cannot be occupied or appropriated
by, nor distributed to Nelia S. Silverio-Dee, since no distribution shall be
allowed until the payment of the obligations mentioned in the aforestated
Rule is made. In fact, the said property may still be sold to pay the taxes

and/or other obligations owned by the estate, which will be difficult to do if

she is allowed to stay in the property.
Moreover, the alleged authority given by SILVERIO, SR. for Nelia S.
Silverio-Dee to occupy the property dated May 4, 2004, assuming it is not
even antedated as alleged by SILVERIO, JR., is null and void since the
possession of estate property can only be given to a purported heir by
virtue of an Order from this Court (see Sec. 1 Rule 90, supra; and Sec. 2
Rule 84, Revised Rules of Court). In fact, the Executor or Administrator
shall have the right to the possession and management of the real as well
as the personal estate of the deceased only when it is necessary for the
payment of the debts and expenses of administration (See Sec. 3 Rule 84,
Revised Rules of Court). With this in mind, it is without an iota of doubt that
the possession by Nelia S. Silverio-Dee of the property in question has
absolutely no legal basis considering that her occupancy cannot pay the
debts and expenses of administration, not to mention the fact that it will
also disturb the right of the new Administrator to possess and manage the
property for the purpose of settling the estates legitimate obligations.
In the belated Memorandum of Nelia Silverio-Dee, she enclosed a
statement of the expenses she incurred pertaining to the house renovation
covering the period from May 26, 2004 to February 28, 2005 in the total
amount of Php12,434,749.55, which supports this Courts conclusion that
she is already the final distributee of the property. Repairs of such
magnitude require notice, hearing of the parties and approval of the Court
under the Rules. Without following this process, the acts of Nelia SilverioDee are absolutely without legal sanction.
To our mind, the court a quos ruling clearly constitutes a final
determination of the rights of the petitioner as the appealing party. As such,
the Omnibus Order, dated May 31, 2002 (the predecessor of the Order
dated December 12, 2002) is a final order; hence, the same may be
appealed, for the said matter is clearly declared by the rules as appealable
and the proscription does not apply.[19] (Emphasis supplied.)
An interlocutory order, as opposed to a final order, was defined in Tan v.
Republic:[20]
A final order is one that disposes of the subject matter in its entirety or
terminates a particular proceeding or action, leaving nothing else to be
done but to enforce by execution what has been determined by the court,
while an interlocutory order is one which does not dispose of the case
completely but leaves something to be decided upon. (Emphasis
supplied.)
Additionally, it is only after a judgment has been rendered in the case that
the ground for the appeal of the interlocutory order may be included in the
appeal of the judgment itself. The interlocutory order generally cannot be
appealed separately from the judgment. It is only when such interlocutory
order was rendered without or in excess of jurisdiction or with grave abuse
of discretion that certiorari under Rule 65 may be resorted to.[21]
In the instant case, Nelia Silverio-Dee appealed the May 31, 2005 Order of
the RTC on the ground that it ordered her to vacate the premises of the
property located at No. 3 Intsia Road, Forbes Park, Makati City. On that
aspect the order is not a final determination of the case or of the issue of
distribution of the shares of the heirs in the estate or their rights therein. It
must be borne in mind that until the estate is partitioned, each heir only
has an inchoate right to the properties of the estate, such that no heir may
lay claim on a particular property. In Alejandrino v. Court of Appeals, we
succinctly ruled:
Art. 1078 of the Civil Code provides that where there are two or more
heirs, the whole estate of the decedent is, before partition, owned in
common by such heirs, subject to the payment of the debts of the
deceased. Under a co-ownership, the ownership of an undivided thing or
right belongs to different persons. Each co-owner of property which is held

pro indiviso exercises his rights over the whole property and may use and
enjoy the same with no other limitation than that he shall not injure the
interests of his co-owners. The underlying rationale is that until a division is
made, the respective share of each cannot be determined and every coowner exercises, together with his co-participants, joint ownership over the
pro indiviso property, in addition to his use and enjoyment of the same.
Although the right of an heir over the property of the decedent is inchoate
as long as the estate has not been fully settled and partitioned, the law
allows a co-owner to exercise rights of ownership over such inchoate right.
Thus, the Civil Code provides:
Art. 493. Each co-owner shall have the full ownership of his part and of the
fruits and benefits pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another person in its enjoyment,
except when personal rights are involved. But the effect of the alienation or
the mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the coownership.[22] (Emphasis supplied.)
Additionally, the above provision must be viewed in the context that the
subject property is part of an estate and subject to intestate proceedings
before the courts. It is, thus, relevant to note that in Rule 84, Sec. 2 of the
Rules of Court, the administrator may only deliver properties of the estate
to the heirs upon order of the Court. Similarly, under Rule 90, Sec. 1 of the
Rules of Court, the properties of the estate shall only be distributed after
the payment of the debts, funeral charges, and other expenses against the
estate, except when authorized by the Court.
Verily, once an action for the settlement of an estate is filed with the court,
the properties included therein are under the control of the intestate court.
And not even the administrator may take possession of any property that is
part of the estate without the prior authority of the Court.
In the instant case, the purported authority of Nelia Silverio-Dee, which she
allegedly secured from Ricardo Silverio, Sr., was never approved by the
probate court. She, therefore, never had any real interest in the specific
property located at No. 3 Intsia Road, Forbes Park, Makati City. As such,
the May 31, 2005 Order of the RTC must be considered as interlocutory
and, therefore, not subject to an appeal.
Thus, private respondent employed the wrong mode of appeal by filing a
Notice of Appeal with the RTC. Hence, for employing the improper mode of
appeal, the case should have been dismissed.[23]
The implication of such improper appeal is that the notice of appeal did not
toll the reglementary period for the filing of a petition for certiorari under
Rule 65, the proper remedy in the instant case. This means that private
respondent has now lost her remedy of appeal from the May 31, 2005
Order of the RTC.
Therefore, there is no longer any need to consider the other issues raised
in the petition.
WHEREFORE, the May 4, 2007 Resolution and July 6, 2007 Decision of
the CA in CA-G.R. SP No. 98764 are REVERSED and SET ASIDE. Thus,
the Decision dated April 2, 2007 of the RTC denying due course to the
appeal of Nelia Silverio-Dee; the Writ of Execution dated April 17, 2007;
and the Notice to Vacate dated April 19, 2007 are hereby REINSTATED.