Civil Code Art 2: Effectivity of laws

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

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 e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to
a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights are
to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of
public right and the object of the mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being sufficient
to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that

2
 it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,4 this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...

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The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank 8 to wit:

4
 The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

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G.R. No. 101279 August 6, 1992

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,

vs.
HON. RUBEN D. TORRES, as Secretary of the Department of Labor & Employment, and JOSE
N. SARMIENTO, as Administrator of the PHILIPPINE OVERSEAS EMPLOYMENT
ADMINISTRATION, respondents.

De Guzman, Meneses & Associates for petitioner.

GRIÑO-AQUINO, J.:

This petition for prohibition with temporary restraining order was filed by the Philippine Association of
Service Exporters (PASEI, for short), to prohibit and enjoin the Secretary of the Department of Labor
and Employment (DOLE) and the Administrator of the Philippine Overseas Employment
Administration (or POEA) from enforcing and implementing DOLE Department Order No. 16, Series
of 1991 and POEA Memorandum Circulars Nos. 30 and 37, Series of 1991, temporarily suspending
the recruitment by private employment agencies of Filipino domestic helpers for Hong Kong and
vesting in the DOLE, through the facilities of the POEA, the task of processing and deploying such
workers.

PASEI is the largest national organization of private employment and recruitment agencies duly
licensed and authorized by the POEA, to engaged in the business of obtaining overseas
employment for Filipino landbased workers, including domestic helpers.

On June 1, 1991, as a result of published stories regarding the abuses suffered by Filipino
housemaids employed in Hong Kong, DOLE Secretary Ruben D. Torres issued Department Order
No. 16, Series of 1991, temporarily suspending the recruitment by private employment agencies of
"Filipino domestic helpers going to Hong Kong" (p. 30, Rollo). The DOLE itself, through the POEA
took over the business of deploying such Hong Kong-bound workers.

In view of the need to establish mechanisms that will enhance the protection for
Filipino domestic helpers going to Hong Kong, the recruitment of the same by private
employment agencies is hereby temporarily suspended effective 1 July 1991. As
such, the DOLE through the facilities of the Philippine Overseas Employment
Administration shall take over the processing and deployment of household workers
bound for Hong Kong, subject to guidelines to be issued for said purpose.

In support of this policy, all DOLE Regional Directors and the Bureau of Local
Employment's regional offices are likewise directed to coordinate with the POEA in
maintaining a manpower pool of prospective domestic helpers to Hong Kong on a
regional basis.

For compliance. (Emphasis ours; p. 30, Rollo.)

Pursuant to the above DOLE circular, the POEA issued Memorandum Circular No. 30, Series of
1991, dated July 10, 1991, providing GUIDELINES on the Government processing and deployment
of Filipino domestic helpers to Hong Kong and the accreditation of Hong Kong recruitment agencies
intending to hire Filipino domestic helpers.

6
 Subject: Guidelines on the Temporary Government Processing and Deployment of
Domestic Helpers to Hong Kong.

Pursuant to Department Order No. 16, series of 1991 and in order to operationalize
the temporary government processing and deployment of domestic helpers (DHs) to
Hong Kong resulting from the temporary suspension of recruitment by private
employment agencies for said skill and host market, the following guidelines and
mechanisms shall govern the implementation of said policy.

I. Creation of a joint POEA-OWWA Household Workers Placement Unit (HWPU)

An ad hoc, one stop Household Workers Placement Unit [or HWPU] under the
supervision of the POEA shall take charge of the various operations involved in the
Hong Kong-DH industry segment:

The HWPU shall have the following functions in coordination with appropriate units
and other entities concerned:

1. Negotiations with and Accreditation of Hong Kong Recruitment Agencies

2. Manpower Pooling

3. Worker Training and Briefing

4. Processing and Deployment

5. Welfare Programs

II. Documentary Requirements and Other Conditions for Accreditation of Hong Kong
Recruitment Agencies or Principals

Recruitment agencies in Hong Kong intending to hire Filipino DHs for their employers
may negotiate with the HWPU in Manila directly or through the Philippine Labor
Attache's Office in Hong Kong.

xxx xxx xxx

X. Interim Arrangement

All contracts stamped in Hong Kong as of June 30 shall continue to be processed by

POEA until 31 July 1991 under the name of the Philippine agencies concerned.
Thereafter, all contracts shall be processed with the HWPU.

Recruitment agencies in Hong Kong shall submit to the Philippine Consulate General
in Hong kong a list of their accepted applicants in their pool within the last week of
July. The last day of acceptance shall be July 31 which shall then be the basis of
HWPU in accepting contracts for processing. After the exhaustion of their respective
pools the only source of applicants will be the POEA manpower pool.

For strict compliance of all concerned. (pp. 31-35, Rollo.)

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On August 1, 1991, the POEA Administrator also issued Memorandum Circular No. 37, Series of
1991, on the processing of employment contracts of domestic workers for Hong Kong.

TO: All Philippine and Hong Kong Agencies engaged in the recruitment of Domestic
helpers for Hong Kong

Further to Memorandum Circular No. 30, series of 1991 pertaining to the government
processing and deployment of domestic helpers (DHs) to Hong Kong, processing of
employment contracts which have been attested by the Hong Kong Commissioner of
Labor up to 30 June 1991 shall be processed by the POEA Employment Contracts
Processing Branch up to 15 August 1991 only.

Effective 16 August 1991, all Hong Kong recruitment agent/s hiring DHs from the
Philippines shall recruit under the new scheme which requires prior accreditation
which the POEA.

Recruitment agencies in Hong Kong may apply for accreditation at the Office of the
Labor Attache, Philippine Consulate General where a POEA team is posted until 31
August 1991. Thereafter, those who failed to have themselves accredited in Hong
Kong may proceed to the POEA-OWWA Household Workers Placement Unit in
Manila for accreditation before their recruitment and processing of DHs shall be
allowed.

Recruitment agencies in Hong Kong who have some accepted applicants in their
pool after the cut-off period shall submit this list of workers upon accreditation. Only
those DHs in said list will be allowed processing outside of the HWPU manpower
pool.

For strict compliance of all concerned. (Emphasis supplied, p. 36, Rollo.)

On September 2, 1991, the petitioner, PASEI, filed this petition for prohibition to annul the
aforementioned DOLE and POEA circulars and to prohibit their implementation for the following
reasons:

1. that the respondents acted with grave abuse of discretion and/or in excess of their
rule-making authority in issuing said circulars;

2. that the assailed DOLE and POEA circulars are contrary to the Constitution, are
unreasonable, unfair and oppressive; and

3. that the requirements of publication and filing with the Office of the National
Administrative Register were not complied with.

There is no merit in the first and second grounds of the petition.

Article 36 of the Labor Code grants the Labor Secretary the power to restrict and regulate
recruitment and placement activities.

Art. 36. Regulatory Power. — The Secretary of Labor shall have the power to
restrict and regulate the recruitment and placement activities of all agencies within
the coverage of this title [Regulation of Recruitment and Placement Activities] and is

8
 hereby authorized to issue orders and promulgate rules and regulations to carry out
the objectives and implement the provisions of this title. (Emphasis ours.)

On the other hand, the scope of the regulatory authority of the POEA, which was created by
Executive Order No. 797 on May 1, 1982 to take over the functions of the Overseas Employment
Development Board, the National Seamen Board, and the overseas employment functions of the
Bureau of Employment Services, is broad and far-ranging for:

1. Among the functions inherited by the POEA from the defunct Bureau of
Employment Services was the power and duty:

"2. To establish and maintain a registration and/or licensing system to

regulate private sector participation in the recruitment and placement
of workers, locally and overseas, . . ." (Art. 15, Labor Code, Emphasis
supplied). (p. 13, Rollo.)

2. It assumed from the defunct Overseas Employment Development Board the power
and duty:

3. To recruit and place workers for overseas employment of Filipino

contract workers on a government to government arrangement and in
such other sectors as policy may dictate . . . (Art. 17, Labor Code.) (p.
13, Rollo.)

3. From the National Seamen Board, the POEA took over:

2. To regulate and supervise the activities of agents or

representatives of shipping companies in the hiring of seamen for
overseas employment; and secure the best possible terms of
employment for contract seamen workers and secure compliance
therewith. (Art. 20, Labor Code.)

The vesture of quasi-legislative and quasi-judicial powers in administrative bodies is not

unconstitutional, unreasonable and oppressive. It has been necessitated by "the growing complexity
of the modern society" (Solid Homes, Inc. vs. Payawal, 177 SCRA 72, 79). More and more
administrative bodies are necessary to help in the regulation of society's ramified activities.
"Specialized in the particular field assigned to them, they can deal with the problems thereof with
more expertise and dispatch than can be expected from the legislature or the courts of justice"
(Ibid.).

It is noteworthy that the assailed circulars do not prohibit the petitioner from engaging in the
recruitment and deployment of Filipino landbased workers for overseas employment. A careful
reading of the challenged administrative issuances discloses that the same fall within the
"administrative and policing powers expressly or by necessary implication conferred" upon the
respondents (People vs. Maceren, 79 SCRA 450). The power to "restrict and regulate conferred by
Article 36 of the Labor Code involves a grant of police power (City of Naga vs. Court of Appeals, 24
SCRA 898). To "restrict" means "to confine, limit or stop" (p. 62, Rollo) and whereas the power to
"regulate" means "the power to protect, foster, promote, preserve, and control with due regard for
the interests, first and foremost, of the public, then of the utility and of its patrons" (Philippine
Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218).

The Solicitor General, in his Comment, aptly observed:

9
 . . . Said Administrative Order [i.e., DOLE Administrative Order No. 16] merely
restricted the scope or area of petitioner's business operations by excluding
therefrom recruitment and deployment of domestic helpers for Hong Kong till after
the establishment of the "mechanisms" that will enhance the protection of Filipino
domestic helpers going to Hong Kong. In fine, other than the recruitment and
deployment of Filipino domestic helpers for Hongkong, petitioner may still deploy
other class of Filipino workers either for Hongkong and other countries and all other
classes of Filipino workers for other countries.

Said administrative issuances, intended to curtail, if not to end, rampant violations of

the rule against excessive collections of placement and documentation fees, travel
fees and other charges committed by private employment agencies recruiting and
deploying domestic helpers to Hongkong. [They are reasonable, valid and justified
under the general welfare clause of the Constitution, since the recruitment and
deployment business, as it is conducted today, is affected with public interest.

xxx xxx xxx

The alleged takeover [of the business of recruiting and placing Filipino domestic
helpers in Hongkong] is merely a remedial measure, and expires after its purpose
shall have been attained. This is evident from the tenor of Administrative Order No.
16 that recruitment of Filipino domestic helpers going to Hongkong by private
employment agencies are hereby "temporarily suspended effective July 1, 1991."

The alleged takeover is limited in scope, being confined to recruitment of domestic

helpers going to Hongkong only.

xxx xxx xxx

. . . the justification for the takeover of the processing and deploying of domestic
helpers for Hongkong resulting from the restriction of the scope of petitioner's
business is confined solely to the unscrupulous practice of private employment
agencies victimizing applicants for employment as domestic helpers for Hongkong
and not the whole recruitment business in the Philippines. (pp. 62-65, Rollo.)

The questioned circulars are therefore a valid exercise of the police power as delegated to the
executive branch of Government.

Nevertheless, they are legally invalid, defective and unenforceable for lack of power publication and
filing in the Office of the National Administrative Register as required in Article 2 of the Civil Code,
Article 5 of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code
of 1987 which provide:

Art. 2. Laws shall take effect after fifteen (15) days following the completion of their
publication in the Official Gazatte, unless it is otherwise provided. . . . (Civil Code.)

Art. 5. Rules and Regulations. — The Department of Labor and other government
agencies charged with the administration and enforcement of this Code or any of its
parts shall promulgate the necessary implementing rules and regulations. Such rules
and regulations shall become effective fifteen (15) days after announcement of their
adoption in newspapers of general circulation. (Emphasis supplied, Labor Code, as
amended.)

10
 Sec. 3. Filing. — (1) Every agency shall file with the University of the Philippines Law
Center, three (3) certified copies of every rule adopted by it. Rules in force on the
date of effectivity of this Code which are not filed within three (3) months shall not
thereafter be the basis of any sanction against any party or persons. (Emphasis
supplied, Chapter 2, Book VII of the Administrative Code of 1987.)

Sec. 4. Effectivity. — In addition to other rule-making requirements provided by law

not inconsistent with this Book, each rule shall become effective fifteen (15) days
from the date of filing as above provided unless a different date is fixed by law, or
specified in the rule in cases of imminent danger to public health, safety and welfare,
the existence of which must be expressed in a statement accompanying the rule.
The agency shall take appropriate measures to make emergency rules known to
persons who may be affected by them. (Emphasis supplied, Chapter 2, Book VII of
the Administrative Code of 1987).

Once, more we advert to our ruling in Tañada vs. Tuvera, 146 SCRA 446 that:

. . . Administrative rules and regulations must also be published if their purpose is to

enforce or implement existing law pursuant also to a valid delegation. (p. 447.)

Interpretative regulations and those merely internal in nature, that is, regulating only
the personnel of the administrative agency and not the public, need not be published.
Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties. (p. 448.)

We agree that publication must be in full or it is no publication at all since its purpose
is to inform the public of the content of the laws. (p. 448.)

For lack of proper publication, the administrative circulars in question may not be enforced and
implemented.

WHEREFORE, the writ of prohibition is GRANTED. The implementation of DOLE Department Order
No. 16, Series of 1991, and POEA Memorandum Circulars Nos. 30 and 37, Series of 1991, by the
public respondents is hereby SUSPENDED pending compliance with the statutory requirements of
publication and filing under the aforementioned laws of the land.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Bellosillo, JJ., concur.

Civil Code Art 3: Ignorance of the law

G.R. No. 46623 December 7, 1939

MARCIAL KASILAG, petitioner,

vs.

11
RAFAELA RODRIGUEZ, URBANO ROQUE, SEVERO MAPILISAN and IGNACIO DEL
ROSARIO, respondents.

Luis M. Kasilag for petitioner.

Fortunato de Leon for respondents.

IMPERIAL, J.:

This is an appeal taken by the defendant-petitioner from the decision of the Court of Appeals which
modified that rendered by the court of First Instance of Bataan in civil case No. 1504 of said court
and held: that the contract Exhibit "1" is entirely null and void and without effect; that the plaintiffs-
respondents, then appellants, are the owners of the disputed land, with its improvements, in
common ownership with their brother Gavino Rodriguez, hence, they are entitled to the possession
thereof; that the defendant-petitioner should yield possession of the land in their favor, with all the
improvements thereon and free from any lien; that the plaintiffs-respondents jointly and severally pay
to the defendant-petitioner the sum of P1,000 with interest at 6 percent per annum from the date of
the decision; and absolved the plaintiffs-respondents from the cross-complaint relative to the value
of the improvements claimed by the defendant-petitioner. The appealed decision also ordered the
registrar of deeds of Bataan to cancel certificate of title No. 325, in the name of the deceased
Emiliana Ambrosio and to issue in lieu thereof another certificate of title in favor of the plaintiffs-
respondents and their brother Gavino Rodriguez, as undivided owners in equal parts, free of all liens
and incumbrances except those expressly provided by law, without special pronouncement as to the
costs.

The respondents, children and heirs of the deceased Emiliana Ambrosio, commenced the aforesaid
civil case to the end that they recover from the petitioner the possession of the land and its
improvements granted by way of homestead to Emiliana Ambrosio under patent No. 16074 issued
on January 11, 1931, with certificate of title No. 325 issued by the registrar of deeds of Bataan on
June 27, 1931 in her favor, under section 122 of Act No. 496, which land was surveyed and
identified in the cadastre of the municipality of Limay, Province of Bataan, as lot No. 285; that the
petitioner pay to them the sum of P650 being the approximate value of the fruits which he received
from the land; that the petitioner sign all the necessary documents to transfer the land and its
possession to the respondents; that he petitioner be restrained, during the pendency of the case,
from conveying or encumbering the land and its improvements; that the registrar of deeds of Bataan
cancel certificate of title No. 325 and issue in lieu thereof another in favor of the respondents, and
that the petitioner pay the costs of suit.

The petitioner denied in his answer all the material allegations of the complaint and by way of special
defense alleged that he was in possession of the land and that he was receiving the fruits thereof by
virtue of a mortgage contract, entered into between him and the deceased Emiliana Ambrosio on
May 16, 1932, which was duly ratified by a notary public; and in counterclaim asked that the
respondents pay him the sum of P1,000 with 12 per cent interest per annum which the deceased
owed him and that, should the respondents be declared to have a better right to the possession of
the land, that they be sentenced to pay him the sum of P5,000 as value of all the improvements
which he introduced upon the land.lawphil.net

On May 16, 1932 Emiliana Ambrosio, in life, and the petitioner executed the following public deed:

12
"This agreement, made and entered into this 16th day of May, 1932, by and between Emiliana
Ambrosio, Filipino, of legal age, widow and resident of Limay, Bataan, P.L., hereinafter called the
party of the first part, and Marcial Kasilag, Filipino, of legal age, married to Asuncion Roces, and
resident at 312 Perdigon Street, Manila, P.L., hereinafter called party of the second part.

WITNESSETH: That the parties hereto hereby covenant and agree to and with each other as
follows:

ARTICLE I. That the party of the first part is the absolute registered owner of a parcel of land
in the barrio of Alngan, municipality of Limay, Province of Bataan, her title thereto being
evidenced by homestead certificate of title No. 325 issued by the Bureau of Lands on June
11, 1931, said land being lot No. 285 of the Limay Cadastre, General Land Registration
Office Cadastral Record No. 1054, bounded and described as follows:

Beginning at point marked 1 on plan E-57394, N. 84º 32' W. 614.82 m. from B.B.M. No. 3, thence N.
66º 35' E. 307.15 m. to point "2"; S. 5º 07' W. to point "5"; S.6º 10' E. 104.26 m. to point "4"; S. 82º
17' W. to point "5"; S. 28º 53' W. 72.26 m. to point "6"; N. 71º 09' W. to point "7"; N. 1º 42' E. 173.72
m. to point 1, point of beginning, "Containing an area of 6.7540 hectares. "Points 1,2,6 and 7, B.L.;
points 3,4 and 5, stakes; points 4, 5 and 6 on bank of Alangan River. "Bounded on the North, by
property claimed by Maria Ambrosio; on the East, by Road; on the South, by Alangan River and
property claimed by Maxima de la Cruz; and on the West, by property claimed by Jose del Rosario.
"Bearing true. Declination 0º 51' E. "Surveyed under authority of sections 12-22, Act No. 2874 and in
accordance with existing regulations of the Bureau of Lands, by Mamerto Jacinto, public land
surveyor, on July 8, 1927 and approved on February 25, 1931.

ARTICLE II. That the improvements on the above described land consist of the following:

Four (4) mango trees, fruit bearing: one hundred ten (110) hills of bamboo trees; one (1)
tamarind and six (6) boñga trees.

ARTICLE III. That the assessed value of the land is P940 and the assessed value of the
improvements is P860, as evidenced by tax declaration No. 3531 of the municipality of
Limay, Bataan.

ARTICLE IV. That for and in consideration of the sum of one thousand pesos (P1,000)
Philippine currency, paid by the party of second part to the party of the first part, receipt
whereof is hereby acknowledged, the party of the first part hereby encumbers and
hypothecates, by way of mortgage, only the improvements described in Articles II and III
hereof, of which improvements the party of the first part is the absolute owner.

ARTICLE V. That the condition of said mortgage is such that if the party of the first part shall
well and truly pay, or cause to paid to the party of the second part, his heirs, assigns, or
executors, on or before the 16th day of November, 1936, or four and one-half (4½) years
after date of the execution of this instrument, the aforesaid sum of one thousand pesos
(P1,000) with interest at 12 per cent per annum, then said mortgage shall be and become
null and void; otherwise the same shall be and shall remain in full force and effect, and
subject to foreclosure in the manner and form provided by law for the amount due
thereunder, with costs and also attorney's fees in the event of such foreclosure.lawphil.net

ARTICLE VI. That the party of the first part shall pay all taxes and assessments which are or
may become due on the above described land and improvements during the term of this
agreement.

13
ARTICLE VII. That within thirty (30) days after date of execution of this agreement, the party
of the first part shall file a motion before the Court of First Instance at Balanga, Bataan, P. I.,
requesting cancellation of Homestead Certificate of Title No. 325 referred to in Article I
hereof and the issuance, in lieu thereof, of a certificate of title under the provisions of Land
Registration Act No. 496, as amended by Act 3901.

ARTICLE III. It if further agreed that if upon the expiration of the period of time (4½) years
stipulated in this mortgage, the mortgagor should fail to redeem this mortgage, she would
execute a deed of absolute sale of the property herein described for the same amount as this
mortgage, including all unpaid interests at the rate of 12 per cent per annum, in favor of the
mortgagee.

ARTICLE IX. That in the event the contemplated motion under Article VII hereof is not
approved by the Court, the foregoing contract of sale shall automatically become null and
void, and the mortgage stipulated under Article IV and V shall remain in full force and effect.

In testimony whereof, the parties hereto have hereunto set their hands the day and year first
herein before written.

(Sgd.) MARCIAL KASILAG

(Sgd.) EMILIANA AMBROSIO

Signed in the presence of:

(Sgd.) ILLEGIBLE

(Sgd.) GAVINO RODRIGUEZ.

PHILIPPINE ISLANDS } ss.

BALANGA, BATAAN } ss.

Before me this day personally appeared Emiliana Ambrosio without cedula by reason of her
sex, to me known and known to me to be the person who signed the foregoing instrument,
and acknowledged to me that she executed the same as her free and voluntary act and
deed.

I hereby certify that this instrument consists of three (3) pages including this page of the
acknowledgment and that each page thereof is signed by the parties to the instrument and
the witnesses in their presence and in the presence of each other, and that the land treated
in this instrument consists of only one parcel.

In witness whereof I have hereunto set my hand and affixed my notarial seal, this 16th day of
May, 1932.

(Sgd.) NICOLAS NAVARRO

Notary Public

My commission expires December 31, 1933.

14
 Doc. No. 178
Page 36 of my register
Book No. IV

One year after the execution of the aforequoted deed, that is, in 1933, it came to pass that Emiliana
Ambrosio was unable to pay the stipulated interests as well as the tax on the land and its
improvements. For this reason, she and the petitioner entered into another verbal contract whereby
she conveyed to the latter the possession of the land on condition that the latter would not collect the
interest on the loan, would attend to the payment of the land tax, would benefit by the fruits of the
land, and would introduce improvements thereon. By virtue of this verbal contract, the petitioner
entered upon the possession of the land, gathered the products thereof, did not collect the interest
on the loan, introduced improvements upon the land valued at P5,000, according to him and on May
22, 1934 the tax declaration was transferred in his name and on March 6, 1936 the assessed value
of the land was increased from P1,020 to P2,180.

After an analysis of the conditions of Exhibit "1" the Court of Appeals came to the conclusion and so
held that the contract entered into by and between the parties, set out in the said public deed, was
one of absolute purchase and sale of the land and its improvements. And upon this ruling it held null
and void and without legal effect the entire Exhibit 1 as well as the subsequent verbal contract
entered into between the parties, ordering, however, the respondents to pay to the petitioner, jointly
and severally, the loan of P1,000 with legal interest at 6 per cent per annum from the date of the
decision. In this first assignment of error the petitioner contends that the Court of Appeals violated
the law in holding that Exhibit 1 is an absolute deed of sale of the land and its improvements and
that it is void and without any legal effect.

The cardinal rule in the interpretation of contracts is to the effect that the intention of the contracting
parties should always prevail because their will has the force of law between them. Article 1281 of
the Civil Code consecrates this rule and provides, that if the terms of a contract are clear and leave
no doubt as to the intention of the contracting parties, the literal sense of its stipulations shall be
followed; and if the words appear to be contrary to the evident intention of the contracting parties,
the intention shall prevail. The contract set out in Exhibit 1 should be interpreted in accordance with
these rules. As the terms thereof are clear and leave no room for doubt, it should be interpreted
according to the literal meaning of its clauses. The words used by the contracting parties in Exhibit 1
clearly show that they intended to enter into the principal contract of loan in the amount of P1,000,
with interest at 12 per cent per annum, and into the accessory contract of mortgage of the
improvements on the land acquired as homestead, the parties having moreover, agreed upon the
pacts and conditions stated in the deed. In other words, the parties entered into a contract of
mortgage of the improvements on the land acquired as homestead, to secure the payment of the
indebtedness for P1,000 and the stipulated interest thereon. In clause V the parties stipulated that
Emiliana Ambrosio was to pay, within four and a half years, or until November 16, 1936, the debt
with interest thereon, in which event the mortgage would not have any effect; in clause VI the parties
agreed that the tax on the land and its improvements, during the existence of the mortgage, should
be paid by the owner of the land; in clause VII it was covenanted that within thirty days from the date
of the contract, the owner of the land would file a motion in the Court of First Instance of Bataan
asking that certificate of title No. 325 be cancelled and that in lieu thereof another be issued under
the provisions of the Land Registration Act No. 496, as amended by Act No. 3901; in clause VIII the
parties agreed that should Emiliana Ambrosio fail to redeem the mortgage within the stipulated
period of four years and a half, she would execute an absolute deed of sale of the land in favor of
the mortgagee, the petitioner, for the same amount of the loan of P1,000 including unpaid interest;
and in clause IX it was stipulated that in case the motion to be presented under clause VII should be

15
disapproved by the Court of First Instance of Bataan, the contract of sale would automatically
become void and the mortgage would subsist in all its force.

Another fundamental rule in the interpretation of contracts, not less important than those indicated, is
to the effect that the terms, clauses and conditions contrary to law, morals and public order should
be separated from the valid and legal contract and when such separation can be made because they
are independent of the valid contract which expresses the will of the contracting parties. Manresa,
commenting on article 1255 of the Civil Code and stating the rule of separation just mentioned, gives
his views as follows:

On the supposition that the various pacts, clauses or conditions are valid, no difficulty is
presented; but should they be void, the question is as to what extent they may produce the
nullity of the principal obligation. Under the view that such features of the obligation are
added to it and do not go to its essence, a criterion based upon the stability of juridical
relations should tend to consider the nullity as confined to the clause or pact suffering
therefrom, except in case where the latter, by an established connection or by manifest
intention of the parties, is inseparable from the principal obligation, and is a condition,
juridically speaking, of that the nullity of which it would also occasion. (Manresa,
Commentaries on the Civil Code, Volume 8, p. 575.)

The same view prevails in the Anglo-American law, as condensed in the following words:

Where an agreement founded on a legal consideration contains several promises, or a

promise to do several things, and a part only of the things to be done are illegal, the
promises which can be separated, or the promise, so far as it can be separated, from the
illegality, may be valid. The rule is that a lawful promise made for a lawful consideration is
not invalid merely because an unlawful promise was made at the same time and for the
same consideration, and this rule applies, although the invalidity is due to violation of a
statutory provision, unless the statute expressly or by necessary implication declares the
entire contract void. . . . (13 C. J., par. 470, p. 512; New York Cent. etc. R. Co. v. Gray, 239
U.S., 583; 60 Law ed., 451; U.S. v. Mora, 97 U.S., 413, 24 Law. ed., 1017; U.S. v. Hodson,
10 Wall, 395; 19 Law ed. 937; Gelpcke v. Dubuque, 1 Wall. 175, 17 Law ed., 520; U.S. v.
Bradly, 10 Pet. 343, 9 Law. ed., 448; Borland v. Prindle, 144 Fed 713; Western Union Tel.
Co. v. Kansas Pac. R. Co., 4 Fed., 284; Northern Pac. R. Co. v. U.S., 15 Ct. Cl., 428.)

Addressing ourselves now to the contract entered into by the parties, set out in Exhibit 1, we stated
that the principal contract is that of loan and the accessory that of mortgage of the improvements
upon the land acquired as a homestead. There is no question that the first of these contract is valid
as it is not against the law. The second, or the mortgage of the improvements, is expressly
authorized by section 116 of Act No. 2874, as amended by section 23 of Act No. 3517, reading:

SEC. 116. Except in favor of the Government or any of its branches, units or institutions, or
legally constituted banking corporations, lands acquired under the free patent or homestead
provisions shall not be subject to encumbrance or alienation from the date of the approval of
the application and for a term of five years from and after the date of issuance of the patent
or grant, nor shall they become liable to the satisfaction of any debt contracted prior to the
expiration of said period; but the improvements or crops on the land may be mortgaged or
pledged to qualified persons, associations, or corporations.

It will be recalled that by clause VIII of Exhibit 1 the parties agreed that should Emiliana Ambrosio fail
to redeem the mortgage within the stipulated period of four and a half years, by paying the loan
together with interest, she would execute in favor of the petitioner an absolute deed of sale of the

16
land for P1,000, including the interest stipulated and owing. The stipulation was verbally modified by
the same parties after the expiration of one year, in the sense that the petitioner would take
possession of the land and would benefit by the fruits thereof on condition that he would condone
the payment of interest upon the loan and he would attend to the payment of the land tax. These
pacts made by the parties independently were calculated to alter the mortgage a contract clearly
entered into, converting the latter into a contract of antichresis. (Article 1881 of the Civil Code.) The
contract of antichresis, being a real encumbrance burdening the land, is illegal and void because it is
legal and valid.

The foregoing considerations bring us to the conclusion that the first assignment of error is well-
founded and that error was committed in holding that the contract entered into between the parties
was one of absolute sale of the land and its improvements and that Exhibit 1 is null and void. In the
second assignment of error the petitioner contends that the Court of Appeals erred in holding that he
is guilty of violating the Public Land Act because he entered into the contract, Exhibit 1. The
assigned error is vague and not specific. If it attempts to show that the said document is valid in its
entirety, it is not well-founded because we have already said that certain pacts thereof are illegal
because they are prohibited by section 116 of Act No. 2874, as amended.

In the third assignment of error the petitioner insists that his testimony, as to the verbal agreement
entered into between him and Emiliana Ambrosio, should have been accepted by the Court of
Appeals; and in the fourth and last assignment of error the same petitioner contends that the Court
of Appeals erred in holding that he acted in bad faith in taking possession of the land and in taking
advantage of the fruits thereof, resulting in the denial of his right to be reimbursed for the value of the
improvements introduced by him.

We have seen that subsequent to the execution of the contract, Exhibit 1, the parties entered into
another verbal contract whereby the petitioner was authorized to take possession of the land, to
receive the fruits thereof and to introduce improvements thereon, provided that he would renounce
the payment of stipulated interest and he would assume payment of the land tax. The possession by
the petitioner and his receipt of the fruits of the land, considered as integral elements of the contract
of antichresis, are illegal and void agreements because, as already stated, the contract of antichresis
is a lien and such is expressly prohibited by section 116 of Act No. 2874, as amended. The Court of
Appeals held that the petitioner acted in bad faith in taking possession of the land because he knew
that the contract he made with Emiliana Ambrosio was an absolute deed of sale and, further, that the
latter could not sell the land because it is prohibited by section 116. The Civil Code does not
expressly define what is meant by bad faith, but section 433 provides that "Every person who is
unaware of any flaw in his title, or in the manner of its acquisition, by which it is invalidated, shall be
deemed a possessor in good faith"; and provides further, that "Possessors aware of such flaw are
deemed possessors in bad faith". Article 1950 of the same Code, covered by Chapter II relative to
prescription of ownership and other real rights, provides, in turn, that "Good faith on the part of the
possessor consists in his belief that the person from whom he received the thing was the owner of
the same, and could transmit the title thereto." We do not have before us a case of prescription of
ownership, hence, the last article is not squarely in point. In resume, it may be stated that a person is
deemed a possessor in bad faith when he knows that there is a flaw in his title or in the manner of its
acquisition, by which it is invalidated.

Borrowing the language of Article 433, the question to be answered is whether the petitioner should
be deemed a possessor in good faith because he was unaware of any flaw in his title or in the
manner of its acquisition by which it is invalidated. It will be noted that ignorance of the flaw is the
keynote of the rule. From the facts found established by the Court of Appeals we can neither deduce
nor presume that the petitioner was aware of a flaw in his title or in the manner of its acquisition,
aside from the prohibition contained in section 116. This being the case, the question is whether

17
good faith may be premised upon ignorance of the laws. Manresa, commenting on article 434 in
connection with the preceding article, sustains the affirmative. He says:

"We do not believe that in real life there are not many cases of good faith founded upon an error of
law. When the acquisition appears in a public document, the capacity of the parties has already
been passed upon by competent authority, and even established by appeals taken from final
judgments and administrative remedies against the qualification of registrars, and the possibility of
error is remote under such circumstances; but, unfortunately, private documents and even verbal
agreements far exceed public documents in number, and while no one should be ignorant of the law,
the truth is that even we who are called upon to know and apply it fall into error not infrequently.
However, a clear, manifest, and truly unexcusable ignorance is one thing, to which undoubtedly
refers article 2, and another and different thing is possible and excusable error arising from complex
legal principles and from the interpretation of conflicting doctrines.

But even ignorance of the law may be based upon an error of fact, or better still, ignorance of
a fact is possible as to the capacity to transmit and as to the intervention of certain persons,
compliance with certain formalities and appreciation of certain acts, and an error of law is
possible in the interpretation of doubtful doctrines. (Manresa, Commentaries on the Spanish
Civil Code. Volume IV, pp. 100, 101 and 102.)

According to this author, gross and inexcusable ignorance of law may not be the basis of good faith,
but possible, excusable ignorance may be such basis. It is a fact that the petitioner is not conversant
with the laws because he is not a lawyer. In accepting the mortgage of the improvements he
proceeded on the well-grounded belief that he was not violating the prohibition regarding the
alienation of the land. In taking possession thereof and in consenting to receive its fruits, he did not
know, as clearly as a jurist does, that the possession and enjoyment of the fruits are attributes of the
contract of antichresis and that the latter, as a lien, was prohibited by section 116. These
considerations again bring us to the conclusion that, as to the petitioner, his ignorance of the
provisions of section 116 is excusable and may, therefore, be the basis of his good faith. We do not
give much importance to the change of the tax declaration, which consisted in making the petitioner
appear as the owner of the land, because such an act may only be considered as a sequel to the
change of possession and enjoyment of the fruits by the petitioner, to about which we have stated
that the petitioner's ignorance of the law is possible and excusable. We, therefore, hold that the
petitioner acted in good faith in taking possession of the land and enjoying its fruits.

The petitioner being a possessor in good faith within the meaning of article 433 of the Civil Code and
having introduced the improvements upon the land as such, the provisions of article 361 of the same
Code are applicable; wherefore, the respondents are entitled to have the improvements and plants
upon indemnifying the petitioner the value thereof which we fix at P3,000, as appraised by the trial
court; or the respondents may elect to compel the petitioner to have the land by paying its market
value to be fixed by the court of origin.

The respondents also prayed in their complaint that the petitioner be compelled to pay them the sum
of P650, being the approximate value of the fruits obtained by the petitioner from the land. The Court
of Appeals affirmed the judgment of the trial court denying the claim or indemnity for damages, being
of the same opinion as the trial court that the respondents may elect to compel the petitioner to have
the land. The Court of Appeals affirmed the judgment of the trial court that the respondents have not
established such damages. Under the verbal contract between the petitioner and the deceased
Emiliana Ambrosio, during the latter's lifetime, the former would take possession of the land and
would receive the fruits of the mortgaged improvements on condition that he would no longer collect
the stipulated interest and that he would attend to the payment of the land tax. This agreement, at
bottom, is tantamount to the stipulation that the petitioner should apply the value of the fruits of the

18
land to the payment of stipulated interest on the loan of P1,000 which is, in turn, another of the
elements characterizing the contract of antichresis under article 1881 of the Civil Code. It was not
possible for the parties to stipulate further that the value of the fruits be also applied to the payment
of the capital, because the truth was that nothing remained after paying the interest at 12% per
annum. This interest, at the rate fixed, amounted to P120 per annum, whereas the market value of
the fruits obtainable from the land hardly reached said amount in view of the fact that the assessed
value of said improvements was, according to the decision, P860. To this should be added the fact
that, under the verbal agreement, from the value of the fruits had to be taken a certain amount to pay
the annual land tax. We mention these data here to show that the petitioner is also not bound to
render an accounting of the value of the fruits of the mortgaged improvements for the reason stated
that said value hardly covers the interest earned by the secured indebtednes.

For all the foregoing considerations, the appealed decision is reversed, and we hereby adjudge: (1)
that the contract of mortgage of the improvements, set out in Exhibit 1, is valid and binding; (2) that
the contract of antichresis agreed upon verbally by the parties is a real incumbrance which burdens
the land and, as such, is a null and without effect; (3) that the petitioner is a possessor in good faith;
(4) that the respondents may elect to have the improvements introduced by the petitioner by paying
the latter the value thereof, P3,000, or to compel the petitioner to buy and have the land where the
improvements or plants are found, by paying them its market value to be filed by the court of origin,
upon hearing the parties; (5) that the respondents have a right to the possession of the land and to
enjoy the mortgaged improvements; and (6) that the respondents may redeem the mortgage of the
improvements by paying to the petitioner within three months the amount of P1,000, without interest,
as that stipulated is set off by the value of the fruits of the mortgaged improvements which petitioner
received, and in default thereof the petitioner may ask for the public sale of said improvements for
the purpose of applying the proceeds thereof to the payment of his said credit. Without special
pronouncement as to the costs in all instances. So ordered.

Diaz, J., concur.

G.R. No. L-68385 May 12, 1989

ILDEFONSO O. ELEGADO, as Ancillary Administrator of the Testate Estate of the late

WARREN TAYLOR GRAHAM, petitioner
vs.
HON. COURT OF TAX APPEALS and COMMISSIONER OF INTERNAL REVENUE respondents.

Agrava, Lucero & Gineta for petitioners.

The Office of the Solictor General for public respondents.

CRUZ, J.:

What the petitioner presents as a rather complicated problem is in reality a very simple question
from the viewpoint of the Solicitor General. We agree with the latter. There is actually only one issue
to be resolved in this action. That issue is whether or not the respondent Court of Tax Appeals erred
in dismissing the petitioner's appeal on grounds of jurisdiction and lack of a cause of action.

Appeal from what? That indeed is the question.

19
But first the facts.

On March 14, 1976, Warren Taylor Graham, an American national formerly resident in the
Philippines, died in Oregon, U.S.A. 1 As he left certain shares of stock in the Philippines, his son,
Ward Graham, filed an estate tax return on September 16, 1976, with the Philippine Revenue
Representative in San Francisco, U.S.A. 2

On the basis of this return, the respondent Commissioner of Internal Revenue assessed the
decedent's estate an estate tax in the amount of P96,509.35 on February 9, 1978.3 This assessment
was protested on March 7, 1978, by the law firm of Bump, Young and Walker on behalf of the estate
. 4 The protest was denied by the Commissioner on July 7, 1978.5 No further action was taken by the
estate in pursuit of that protest.

Meanwhile, on January 18, 1977, the decedent's will had been admitted to probate in the Circuit
Court of Oregon 6Ward Graham, the designated executor, then appointed Ildefonso Elegado, the
herein petitioner, as his attorney-in-fact for the allowance of the will in the Philippines.7

Pursuant to such authority, the petitioner commenced probate proceedings in the Court of First
Instance of Rizal. 8The will was allowed on December 18, 1978, with the petitioner as ancillary
administrator. 9 As such, he filed a second estate tax return with the Bureau of Internal Revenue on
June 4, 1980.10

On the basis of this second return, the Commissioner imposed an assessment on the estate in the
amount of P72,948.87.11 This was protested on behalf of the estate by the Agrava, Lucero and
Gineta Law Office on August 13, 1980.12

While this protest was pending, the Commissioner filed in the probate proceedings a motion for the
allowance of the basic estate tax of P96,509.35 as assessed on February 9, 1978.13 He said that this
liability had not yet been paid although the assessment had long become final and executory.

The petitioner regarded this motion as an implied denial of the protest filed on August 13, 1980,
against the second assessment of P72,948.87.14 On this understanding, he filed on September 15,
1981, a petition for review with the Court of Tax Appeals challenging the said assessment. 15

The Commissioner did not immediately answer (in fact, as the petitioner stressed, no answer was
filed during a delay of 195 days) and in the end instead cancelled the protested assessment in a
letter to the decedent's estate dated March 31, 1982.16 This cancellation was notified to the Court of
Tax Appeals in a motion to dismiss on the ground that the protest had become moot and
academic.17

The motion was granted and the petition dismissed on April 25, 1984.18 The petitioner then came to
this Court oncertiorari under Rule 45 of the Rules of Court.

The petitioner raises three basic questions, to wit, (1) whether the shares of stocks left by the
decedent should be treated as his exclusive, and not conjugal, property; (2) whether the said stocks
should be assessed as of the time of the owner's death or six months thereafter; and (3) whether the
appeal filed with the respondent court should be considered moot and academic.

We deal first with the third issue as it is decisive of this case.

20
In the letter to the decedent's estate dated March 31, 1982, the Commissioner of Internal Revenue
wrote as follows:

Estate of WARREN T. GRAHAM c/o Mr. ILDEFENSO O. ELEGADO Ancillary Administrator Philex
Building cor. Brixton & Fairlane Sts. Pasig, Metro Manila

Sir:

This is with regard to the estate of the late WARREN TAYLOR GRAHAM, who died a
resident of Oregon, U.S.A. on March 14, 1976. It appears that two (2) letters of
demand were issued by this Bureau. One is for the amount of P96,509.35 based on
the first return filed, and the other in the amount of P72,948.87, based on the second
return filed.

It appears that the first assessment of P96,509.35 was issued on February 9, 1978
on the basis of the estate tax return filed on September 16, 1976. The said
assessment was, however, protested in a letter dated March 7, 1978 but was denied
on July 7, 1978. Since no appeal was made within the regulatory period, the same
has become final.

In view thereof, it is requested that you settle the aforesaid assessment for
P96,509.35 within fifteen (15) days upon receipt hereof to the Receivable Accounts
Division, this Bureau, BIR National Office Building, Diliman, Quezon City. The
assessment for P72,949.57 dated July 3, 1980, referred to above is hereby
cancelled.

Very truly yours,

(SGD.) RUBEN B. ANCHETA Acting Commissioner 19

It is obvious from the express cancellation of the second assessment for P72,948.87 that the
petitioner had been deprived of a cause of action as it was precisely from this assessment that he
was appealing.

In its decision, the Court of Tax Appeals said that the petition questioning the assessment of July 3,
1980, was "premature" since the protest to the assessment had not yet been resolved.20 As a matter
of fact it had: the said assessment had been cancelled by virtue of the above-quoted letter. The
respondent court was on surer ground, however, when it followed with the finding that the said
cancellation had rendered the petition moot and academic. There was really no more assessment to
review.

The petitioner argues that the issuance of the second assessment on July 3, 1980, had the effect of
canceling the first assessment of February 9, 1978, and that the subsequent cancellation of the
second assessment did not have the effect of automatically reviving the first. Moreover, the first
assessment is not binding on him because it was based on a return filed by foreign lawyers who had
no knowledge of our tax laws or access to the Court of Tax Appeals.

The petitioner is clutching at straws.

It is noted that in the letter of July 3, 1980, imposing the second assessment of P72,948.87, the
Commissioner made it clear that "the aforesaid amount is considered provisional only based on the

21
estate tax return filed subject to investigation by this Office for final determination of the correct
estate tax due from the estate. Any amount that may be found due after said investigation will be
assessed and collected later." 21 It is illogical to suggest that aprovisional assessment can supersede
an earlier assessment which had clearly become final and executory.

The second contention is no less flimsy. The petitioner cannot be serious when he argues that the
first assessment was invalid because the foreign lawyers who filed the return on which it was based
were not familiar with our tax laws and procedure. Is the petitioner suggesting that they are excused
from compliance therewith because of their ignorance?

If our own lawyers and taxpayers cannot claim a similar preference because they are not allowed to
claim a like ignorance, it stands to reason that foreigners cannot be any less bound by our own laws
in our own country. A more obvious and shallow discrimination than that suggested by the petitioner
is indeed difficult to find.

But the most compelling consideration in this case is the fact that the first assessment is already final
and executory and can no longer be questioned at this late hour. The assessment was made on
February 9, 1978. It was protested on March 7, 1978. The protest was denied on July 7, 1978. As no
further action was taken thereon by the decedent's estate, there is no question that the assessment
has become final and executory.

In fact, the law firm that had lodged the protest appears to have accepted its denial. In his motion
with the probate court, the respondent Commissioner stressed that "in a letter dated January 29,
1980, the Estate of Warren Taylor Graham thru the aforesaid foreign law firm informed claimant that
they have paid said tax liability thru the Agrava, Velarde, Lucero and Puno, Philippine law firm of 313
Buendia Avenue Ext., Makati, Metro Manila that initiated the instant ancillary proceedings" although
he added that such payment had not yet been received.22 This letter was an acknowledgment by the
estate of the validity and finality of the first assessment. Significantly, it has not been denied by the
petitioner.

In view of the finality of the first assessment, the petitioner cannot now raise the question of its
validity before this Court any more than he could have done so before the Court of Tax Appeals.
What the estate of the decedent should have done earlier, following the denial of its protest on July
7, 1978, was to appeal to the Court of Tax Appeals within the reglementary period of 30 days after it
received notice of said denial. It was in such appeal that the petitioner could then have raised the
first two issues he now raises without basis in the present petition.

The question of whether or not the shares of stock left by the decedent should be considered
conjugal property or belonging to him alone is immaterial in these proceedings. So too is the time at
which the assessment of these shares of stock should have been made by the BIR. These questions
were not resolved by the Court of Tax Appeals because it had no jurisdiction to act on the
petitioner's appeal from an assessment that had already been cancelled. The assessment being no
longer controversial or reviewable, there was no justification for the respondent court to rule on the
petition except to dismiss it.

If indeed the Commissioner of Internal Revenue committed an error in the computation of the estate
tax, as the petitioner insists, that error can no longer be rectified because the original assessment
has long become final and executory. If that assessment was not challenged on time and in
accordance with the prescribed procedure, that error — for error it was — was committed not by the
respondents but by the decedent's estate itself which the petitioner represents. So how can he now
complain.

22
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered,

Narvasa (Chairman), Griño-Aquino and Medialdea, JJ., concur.

G.R. No. 137873 April 20, 2001 (Civil Code Art 8: Judicial Decisions form part of the legal
system)

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc.,
fell 14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he
was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at
around 2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as carpenter[s]
at the elevator core of the 14th floor of the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid
plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain
block, when suddenly, the bolt or pin which was merely inserted to connect the chain block
with the [p]latform, got loose xxx causing the whole [p]latform assembly and the victim to fall
down to the basement of the elevator core, Tower D of the building under construction
thereby crushing the victim of death, save his two (2) companions who luckily jumped out for
safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then
on board and performing work, fell. And the falling of the [p]latform was due to the removal or
getting loose of the pin which was merely inserted to the connecting points of the chain block
and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceased’s employer, D.M. Consunji, Inc. The employer raised,
among other defenses, the widow’s prior availment of the benefits from the State Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of
the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

23
 3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorney’s fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

 THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT

WAS ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF
PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES

IPSA LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART
OF PETITIONER.

 THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS

PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

 THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible.
The CA ruled otherwise. It held that said report, being an entry in official records, is an exception to
the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may not
testify as what he merely learned from others either because he was told or read or heard the same.
Such testimony is considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error
and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best
brought to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule,9 among which are entries in official records.
Section 44, Rule 130 provides:

Entries in official records made in the performance of his duty made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law are prima facieevidence of the facts therein stated.

24
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:

(a) that the entry was made by a public officer or by another person specially enjoined by law
to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
court. In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was
inadmissible for the purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who executed the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not hearsay. The rest of the report, such
as the summary of the statements of the parties based on their sworn statements (which
were annexed to the Report) as well as the latter, having been included in the first purpose of
the offer [as part of the testimony of Major Enriquez], may then be considered
as independently relevant statements which were gathered in the course of the investigation
and may thus be admitted as such, but not necessarily to prove the truth thereof. It has been
said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been made
is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue, or be circumstantially relevant as to
the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report and made
himself available for cross-examination by the adverse party, the Report, insofar as it proved
that certain utterances were made (but not their truth), was effectively removed from the
ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does
away with the testimony in open court of the officer who made the official record, considers
the matter as an exception to the hearsay rule and makes the entries in said official record
admissible in evidence as prima facie evidence of the facts therein stated. The underlying
reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon
v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily work
something is not done in which testimony is not needed from official sources. Were
there no exception for official statements, hosts of officials would be found devoting

25
 the greater part of their time to attending as witnesses in court or delivering
deposition before an officer. The work of administration of government and the
interest of the public having business with officials would alike suffer in consequence.
For these reasons, and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3 Wigmore on Evidence,
Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they will
discharge their several trusts with accuracy and fidelity; and, therefore, whatever acts
they do in discharge of their duty may be given in evidence and shall be taken to be
true under such a degree of caution as to the nature and circumstances of each case
may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to testify
on his report. In that case the applicability of Section 44 of Rule 143 would have been ripe for
determination, and this Court would have agreed with the Court of Appeals that said report
was inadmissible since the aforementioned third requisite was not satisfied. The statements
given by the sources of information of Major Enriquez failed to qualify as "official
information," there being no showing that, at the very least, they were under a duty to give
the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of PO3
Villanueva.

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3
Villanueva had seen Juego’s remains at the morgue,12 making the latter’s death beyond dispute.
PO3 Villanueva also conducted an ocular inspection of the premises of the building the day after the
incident13 and saw the platform for himself.14 He observed that the platform was crushed15 and that it
was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the chain block to
the police headquarters. Upon inspection, he noticed that the chain was detached from the lifting
machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the fall
of the platform was the loosening of the bolt from the chain block. It is claimed that such portion of
the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a witness is generally
not admissible.19

Petitioner’s contention, however, loses relevance in the face of the application of res ipsa loquitur by
the CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the
elevator was a result of the person having charge of the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for
specific proof of negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendant’s part, under the doctrine of res ipsa loquitur, which means, literally,
the thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality

26
 speaks for itself, the facts or circumstances accompanying an injury may be such as to raise
a presumption, or at least permit an inference of negligence on the part of the defendant, or
some other person who is charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury complained of
was under the control or management of the defendant, and that the occurrence resulting in
the injury was such as in the ordinary course of things would not happen if those who had its
control or management used proper care, there is sufficient evidence, or, as sometimes
stated, reasonable evidence, in the absence of explanation by the defendant, that the injury
arose from or was caused by the defendant’s want of care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of
the instrumentality which causes the injury either knows the cause of the accident or has the
best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore
is compelled to allege negligence in general terms and to rely upon the proof of the
happening of the accident in order to establish negligence. The inference which the doctrine
permits is grounded upon the fact that the chief evidence of the true cause, whether culpable
or innocent, is practically accessible to the defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the
cause, for any explanation of care exercised by the defendant in respect of the matter of
which the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule
of necessity, in that it proceeds on the theory that under the peculiar circumstances in which
the doctrine is applicable, it is within the power of the defendant to show that there was no
negligence on his part, and direct proof of defendant’s negligence is beyond plaintiff’s power.
Accordingly, some court add to the three prerequisites for the application of the res ipsa
loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must
appear that the injured party had no knowledge or means of knowledge as to the cause of
the accident, or that the party to be charged with negligence has superior knowledge or
opportunity for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee’s husband fell down from the 14th floor of a building to the
basement while he was working with appellant’s construction project, resulting to his death.
The construction site is within the exclusive control and management of appellant. It has a
safety engineer, a project superintendent, a carpenter leadman and others who are in
complete control of the situation therein. The circumstances of any accident that would occur
therein are peculiarly within the knowledge of the appellant or its employees. On the other
hand, the appellee is not in a position to know what caused the accident. Res ipsa loquitur is
a rule of necessity and it applies where evidence is absent or not readily available, provided
the following requisites are present: (1) the accident was of a kind which does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency which caused the injury
was under the exclusive control of the person charged with negligence; and (3) the injury
suffered must not have been due to any voluntary action or contribution on the part of the
person injured. x x x.

27
 No worker is going to fall from the 14th floor of a building to the basement while performing
work in a construction site unless someone is negligent[;] thus, the first requisite for the
application of the rule of res ipsa loquitur is present. As explained earlier, the construction
site with all its paraphernalia and human resources that likely caused the injury is under the
exclusive control and management of appellant[;] thus[,] the second requisite is also present.
No contributory negligence was attributed to the appellee’s deceased husband[;] thus[,] the
last requisite is also present. All the requisites for the application of the rule of res ipsa
loquitur are present, thus a reasonable presumption or inference of appellant’s negligence
arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred25 when the plaintiff establishes the requisites for the
application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the elements,
the burden then shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable presumption, such as
that of due care or innocence, may outweigh the inference.27 It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of
say, due care, comes into play only after the circumstances for the application of the doctrine has
been established.1âwphi1.nêt

In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before
the police investigator as evidence of its due care. According to Fabro’s sworn statement, the
company enacted rules and regulations for the safety and security of its workers. Moreover, the
leadman and the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in arguing
that private respondent failed to prove negligence on the part of petitioner’s employees, also assails
the same statement for being hearsay.

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness stand to
testify thereon.28 The inadmissibility of this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly
known fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses
his own language in writing the affiant’s statements which may either be omitted or misunderstood
by the one writing them.29 Petitioner, therefore, cannot use said statement as proof of its due care
any more than private respondent can use it to prove the cause of her husband’s death. Regrettably,
petitioner does not cite any other evidence to rebut the inference or presumption of negligence
arising from the application of res ipsa loquitur, or to establish any defense relating to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits provided
under the Labor Code and is, therefore, precluded from claiming from the deceased’s employer
damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. – Unless otherwise provided, the liability of the State Insurance
Fund under this Title shall be exclusive and in place of all other liabilities of the employer to

28
 the employee, his dependents or anyone otherwise entitled to receive damages on behalf of
the employee or his dependents. The payment of compensation under this Title shall not bar
the recovery of benefits as provided for in Section 699 of the Revised Administrative Code,
Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four as
amended, and other laws whose benefits are administered by the System or by other
agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act,
provided that:

Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act to
an employee by reason of a personal injury entitling him to compensation shall exclude all
other rights and remedies accruing to the employee, his personal representatives,
dependents or nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well as
under the Civil Code used to be the subject of conflicting decisions. The Court finally settled the
matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the death of
the employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court
of First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in case of
death have a right of selection or choice of action between availing themselves of the
worker’s right under the Workmen’s Compensation Act and suing in the regular courts under
the Civil Code for higher damages (actual, moral and exemplary) from the employers by
virtue of the negligence or fault of the employers or whether they may avail themselves
cumulatively of both actions, i.e., collect the limited compensation under the Workmen’s
Compensation Act and sue in addition for damages in the regular courts.

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA
442, ruled that an injured worker has a choice of either to recover from the employer the
fixed amounts set by the Workmen’s Compensation Act or to prosecute an ordinary civil
action against the tortfeasor for higher damages but he cannot pursue both courses of action
simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under
the Civil Code despite having availed of the benefits provided under the Workmen’s Compensation
Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated
May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely
Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices
and claims for compensation to the Regional Office No. 1 of the then Department of Labor
and all of them have been paid in full as of August 25, 1967, except Saturnino Martinez

29
 whose heirs decided that they be paid in installments x x x. Such allegation was admitted by
herein petitioners in their opposition to the motion to dismiss dated may 27, 1968 x x x in the
lower court, but they set up the defense that the claims were filed under the Workmen’s
Compensation Act before they learned of the official report of the committee created to
investigate the accident which established the criminal negligence and violation of law by
Philex, and which report was forwarded by the Director of Mines to then Executive Secretary
Rafael Salas in a letter dated October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the Workmen’s
Compensation Act, such my not preclude them from bringing an action before the regular
court because they became cognizant of the fact that Philex has been remiss in its
contractual obligations with the deceased miners only after receiving compensation under
the Act. Had petitioners been aware of said violation of government rules and regulations by
Philex, and of its negligence, they would not have sought redress under the Workmen’s
Compensation Commission which awarded a lesser amount for compensation. The choice of
the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it
was not an intelligent choice. The case should therefore be remanded to the lower court for
further proceedings. However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmen’s Compensation Act should be
deducted from the damages that may be decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs.
Abeleda.34 In the last case, the Court again recognized that a claimant who had been paid under the
Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmen’s Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated in
favor of the new rule that the claimants may invoke either the Workmen’s Compensation Act
or the provisions of the Civil Code, subject to the consequence that the choice of one remedy
will exclude the other and that the acceptance of compensation under the remedy chosen
will preclude a claim for additional benefits under the other remedy. The exception is where a
claimant who has already been paid under the Workmen’s Compensation Act may still sue
for damages under the Civil Code on the basis of supervening facts or developments
occurring after he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondent’s case came under the exception because private
respondent was unaware of petitioner’s negligence when she filed her claim for death benefits from
the State Insurance Fund. Private respondent filed the civil complaint for damages after she received
a copy of the police investigation report and the Prosecutor’s Memorandum dismissing the criminal
complaint against petitioner’s personnel. While stating that there was no negligence attributable to
the respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at
all," the "case is civil in nature." The CA thus applied the exception in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as
early as November 25, 1990, the date of the police investigator’s report. The appellee merely
executed her sworn statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the accident. She did not file
the complaint for "Simple Negligence Resulting to Homicide" against appellant’s employees.
It was the investigator who recommended the filing of said case and his supervisor referred
the same to the prosecutor’s office. This is a standard operating procedure for police

30
 investigators which appellee may not have even known. This may explain why no
complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being
charged by complainant of "Simple Negligence Resulting to Homicide." It is also possible
that the appellee did not have a chance to appear before the public prosecutor as can be
inferred from the following statement in said memorandum: "Respondents who were notified
pursuant to Law waived their rights to present controverting evidence," thus there was no
reason for the public prosecutor to summon the appellee. Hence, notice of appellant’s
negligence cannot be imputed on appellee before she applied for death benefits under ECC
or before she received the first payment therefrom. Her using the police investigation report
to support her complaint filed on May 9, 1991 may just be an afterthought after receiving a
copy of the February 6, 1991 Memorandum of the Prosecutor’s Office dismissing the criminal
complaint for insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as shown by the
records this case is civil in nature." (Underscoring supplied.) Considering the foregoing, We
are more inclined to believe appellee’s allegation that she learned about appellant’s
negligence only after she applied for and received the benefits under ECC. This is a mistake
of fact that will make this case fall under the exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights as
well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the
death of her husband; and that she did not know that she may also recover more from
the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear
or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for
"Simple Negligence Resulting to Homicide" against petitioner’s employees. On February 6, 1991,
two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against petitioner’s employees, the
case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the
ECC on January 2, 1991 and every month thereafter, private respondent also knew of the two
choices of remedies available to her and yet she chose to claim and receive the benefits from the
ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
absence of fraud by the other party. The first act of election acts as a bar.37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on
the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single
wrong.38

The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code and

31
prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of one
remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights, but
chooses not to assert them. It must be generally shown by the party claiming a waiver that
the person against whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the party’s rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it
can rest. Ignorance of a material fact negates waiver, and waiver cannot be established by a
consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right exists
and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with an
awareness of its consequences. That a waiver is made knowingly and intelligently must be
illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.

It is in light of the foregoing principles that we address petitioner’s contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to
burden private respondent with raising waiver as an issue. On the contrary, it is the defendant who
ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now contend that the trial court had no jurisdiction
over the issue when petitioner itself pleaded waiver in the proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husband’s death
and the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioner’s employees, of
which private respondent purportedly learned only after the prosecutor issued a resolution stating
that there may be civil liability. In Floresca, it was the negligence of the mining corporation and
its violation of government rules and regulations. Negligence, or violation of government rules and
regulations, for that matter, however, is not a fact, but a conclusion of law, over which only the courts
have the final say. Such a conclusion binds no one until the courts have decreed so. It appears,
therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied
in Floresca and in the case at bar.

In any event, there is no proof that private respondent knew that her husband died in the elevator
crash when on November 15, 1990 she accomplished her application for benefits from the ECC. The
police investigation report is dated November 25, 1990, 10 days after the accomplishment of the
form. Petitioner filed the application in her behalf on November 27, 1990.

32
There is also no showing that private respondent knew of the remedies available to her when the
claim before the ECC was filed. On the contrary, private respondent testified that she was not aware
of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution
form part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim
ignorance of this Court’s ruling in Floresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a person’s
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing
private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the
total amount private respondent ought to receive from the ECC, although it appears from Exhibit
"K"43 that she received P3,581.85 as initial payment representing the accrued pension from
November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by
the trial court is subject to speculation, and the case is remanded to the trial court for such
determination. Should the trial court find that its award is greater than that of the ECC, payments
already received by private respondent under the Labor Code shall be deducted from the trial court'’
award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent double
compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award decreed
by the trial court be greater than that awarded by the ECC, payments already made to private
respondent pursuant to the Labor Code shall be deducted therefrom. In all other respects, the
Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.

Civil Code Art 4: Retroactive effects of law

G.R. No. 166738 August 14, 2009

ROWENA PADILLA-RUMBAUA, Petitioner,

vs.
EDWARD RUMBAUA, Respondent.

DECISION

BRION, J.:

Petitioner Rowena Padilla-Rumbaua (petitioner) challenges, through her petition for review on
certiorari,1 the decision dated June 25, 20042 and the resolution dated January 18, 20053 of the

33
Court of Appeals (CA) in CA-G.R. CV No. 75095. The challenged decision reversed the decision4 of
the Regional Trial Court (RTC) declaring the marriage of the petitioner and respondent Edward
Rumbaua (respondent) null and void on the ground of the latter’s psychological incapacity. The
assailed resolution, on the other hand, denied the petitioner’s motion for reconsideration.

ANTECEDENT FACTS

The present petition traces its roots to the petitioner’s complaint for the declaration of nullity of
marriage against the respondent before the RTC, docketed as Civil Case No. 767. The petitioner
alleged that the respondent was psychologically incapacitated to exercise the essential obligations of
marriage as shown by the following circumstances: the respondent reneged on his promise to live
with her under one roof after finding work; he failed to extend financial support to her; he blamed her
for his mother’s death; he represented himself as single in his transactions; and he pretended to be
working in Davao, although he was cohabiting with another woman in Novaliches, Quezon City.

Summons was served on the respondent through substituted service, as personal service proved
futile.5 The RTC ordered the provincial prosecutor to investigate if collusion existed between the
parties and to ensure that no fabrication or suppression of evidence would take place.6 Prosecutor
Melvin P. Tiongson’s report negated the presence of collusion between the parties.7

The Republic of the Philippines (Republic), through the office of the Solicitor General (OSG),
opposed the petition.8The OSG entered its appearance and deputized the Provincial Prosecutor of
Nueva Vizcaya to assist in all hearings of the case.9

The petitioner presented testimonial and documentary evidence to substantiate her charges.

The petitioner related that she and the respondent were childhood neighbors in Dupax del Norte,
Nueva Vizcaya. Sometime in 1987, they met again and became sweethearts but the respondent’s
family did not approve of their relationship. After graduation from college in 1991, the respondent
promised to marry the petitioner as soon as he found a job. The job came in 1993, when the
Philippine Air Lines (PAL) accepted the respondent as a computer engineer. The respondent
proposed to the petitioner that they first have a "secret marriage" in order not to antagonize his
parents. The petitioner agreed; they were married in Manila on February 23, 1993. The petitioner
and the respondent, however, never lived together; the petitioner stayed with her sister in Fairview,
Quezon City, while the respondent lived with his parents in Novaliches.

The petitioner and respondent saw each other every day during the first six months of their marriage.
At that point, the respondent refused to live with the petitioner for fear that public knowledge of their
marriage would affect his application for a PAL scholarship. Seven months into their marriage, the
couple’s daily meetings became occasional visits to the petitioner’s house in Fairview; they would
have sexual trysts in motels. Later that year, the respondent enrolled at FEATI University after he
lost his employment with PAL.10

In 1994, the parties’ respective families discovered their secret marriage. The respondent’s mother
tried to convince him to go to the United States, but he refused. To appease his mother, he
continued living separately from the petitioner. The respondent forgot to greet the petitioner during
her birthday in 1992 and likewise failed to send her greeting cards on special occasions. The
respondent indicated as well in his visa application that he was single.

In April 1995, the respondent’s mother died. The respondent blamed the petitioner, associating his
mother’s death to the pain that the discovery of his secret marriage brought. Pained by the

34
respondent’s action, the petitioner severed her relationship with the respondent. They eventually
reconciled through the help of the petitioner’s father, although they still lived separately.

In 1997, the respondent informed the petitioner that he had found a job in Davao. A year later, the
petitioner and her mother went to the respondent’s house in Novaliches and found him cohabiting
with one Cynthia Villanueva (Cynthia). When she confronted the respondent about it, he denied
having an affair with Cynthia.11 The petitioner apparently did not believe the respondents and moved
to to Nueva Vizcaya to recover from the pain and anguish that her discovery brought.12

The petitioner disclosed during her cross-examination that communication between her and
respondent had ceased. Aside from her oral testimony, the petitioner also presented a certified true
copy of their marriage contract;13 and the testimony, curriculum vitae,14 and psychological report15 of
clinical psychologist Dr. Nedy Lorenzo Tayag (Dr. Tayag).

Dr. Tayag declared on the witness stand that she administered the following tests on the petitioner: a
Revised Beta Examination; a Bender Visual Motor Gestalt Test; a Rorschach Psychodiagnostic
Test; a Draw a Person Test; a Sach’s Sentence Completion Test; and MMPI.16 She thereafter
prepared a psychological report with the following findings:

TEST RESULTS AND EVALUATION

Psychometric tests data reveal petitioner to operate in an average intellectual level. Logic and
reasoning remained intact. She is seen to be the type of woman who adjusts fairly well into most
situations especially if it is within her interests. She is pictured to be faithful to her commitments and
had reservations from negative criticisms such that she normally adheres to social norms, behavior-
wise. Her age speaks of maturity, both intellectually and emotionally. Her one fault lies in her
compliant attitude which makes her a subject for manipulation and deception such that of
respondent. In all the years of their relationship, she opted to endure his irresponsibility largely
because of the mere belief that someday things will be much better for them. But upon the advent of
her husband’s infidelity, she gradually lost hope as well as the sense of self-respect, that she has
finally taken her tool to be assertive to the point of being aggressive and very cautious at times – so
as to fight with the frustration and insecurity she had especially regarding her failed marriage.

Respondent in this case, is revealed to operate in a very self-centered manner as he believes

that the world revolves around him. His egocentrism made it so easy for him to deceitfully
use others for his own advancement with an extreme air of confidence and dominance. He
would do actions without any remorse or guilt feelings towards others especially to that of
petitioner.

REMARKS

Love happens to everyone. It is dubbed to be boundless as it goes beyond the expectations people
tagged with it. In love, "age does matter." People love in order to be secure that one will share
his/her life with another and that he/she will not die alone. Individuals who are in love had the power
to let love grow or let love die – it is a choice one had to face when love is not the love he/she
expected.

In the case presented by petitioner, it is very apparent that love really happened for her towards the
young respondent – who used "love" as a disguise or deceptive tactic for exploiting the confidence
she extended towards him. He made her believe that he is responsible, true, caring and thoughtful –
only to reveal himself contrary to what was mentioned. He lacked the commitment, faithfulness, and
remorse that he was able to engage himself to promiscuous acts that made petitioner look like an

35
innocent fool. His character traits reveal him to suffer Narcissistic Personality Disorder - declared to
be grave, severe and incurable.17 [Emphasis supplied.]

The RTC Ruling

The RTC nullified the parties’ marriage in its decision of April 19, 2002. The trial court saw merit in
the testimonies of the petitioner and Dr. Tayag, and concluded as follows:

xxxx

Respondent was never solicitous of the welfare and wishes of his wife. Respondent imposed limited
or block [sic] out communication with his wife, forgetting special occasions, like petitioner’s birthdays
and Valentine’s Day; going out only on occasions despite their living separately and to go to a motel
to have sexual intercourse.

It would appear that the foregoing narration are the attendant facts in this case which show the
psychological incapacity of respondent, at the time of the celebration of the marriage of the parties,
to enter into lawful marriage and to discharge his marital responsibilities (See Articles 68 to 71,
Family Code). This incapacity is "declared grave, severe and incurable."

WHEREFORE, in view of the foregoing, the marriage between petitioner Rowena Padilla Rumbaua
and respondent Edwin Rumbaua is hereby declared annulled.

SO ORDERED.18

The CA Decision

The Republic, through the OSG, appealed the RTC decision to the CA.19 The CA decision of June
25, 2004 reversed and set aside the RTC decision, and denied the nullification of the parties’
marriage.20

In its ruling, the CA observed that Dr. Tayag’s psychiatric report did not mention the cause of the
respondent’s so-called "narcissistic personality disorder;" it did not discuss the respondent’s
childhood and thus failed to give the court an insight into the respondent’s developmental years. Dr.
Tayag likewise failed to explain why she came to the conclusion that the respondent’s incapacity
was "deep-seated" and "incurable."

The CA held that Article 36 of the Family Code requires the incapacity to be psychological, although
its manifestations may be physical. Moreover, the evidence presented must show that the
incapacitated party was mentally or physically ill so that he or she could not have known the marital
obligations assumed, knowing them, could not have assumed them. In other words, the illness must
be shown as downright incapacity or inability, not a refusal, neglect, or difficulty to perform the
essential obligations of marriage. In the present case, the petitioner suffered because the
respondent adamantly refused to live with her because of his parents’ objection to their marriage.

The petitioner moved to reconsider the decision, but the CA denied her motion in its resolution of
January 18, 2005. 21

The Petition and the Issues

The petitioner argues in the present petition that –

36
 1. the OSG certification requirement under Republic v. Molina22 (the Molina case) cannot be
dispensed with because A.M. No. 02-11-10-SC, which relaxed the requirement, took effect
only on March 15, 2003;

2. vacating the decision of the courts a quo and remanding the case to the RTC to recall her
expert witness and cure the defects in her testimony, as well as to present additional
evidence, would temper justice with mercy; and

3. Dr. Tayag’s testimony in court cured the deficiencies in her psychiatric report.

The petitioner prays that the RTC’s and the CA’s decisions be reversed and set aside, and the case
be remanded to the RTC for further proceedings; in the event we cannot grant this prayer, that the
CA’s decision be set aside and the RTC’s decision be reinstated.

The Republic maintained in its comment that: (a) A.M. No. 02-11-10-SC was applicable although it
took effect after the promulgation of Molina; (b) invalidating the trial court’s decision and remanding
the case for further proceedings were not proper; and (c) the petitioner failed to establish
respondent’s psychological incapacity.23

The parties simply reiterated their arguments in the memoranda they filed.

THE COURT’S RULING

We resolve to deny the petition for lack of merit.

A.M. No. 02-11-10-SC is applicable

In Molina, the Court emphasized the role of the prosecuting attorney or fiscal and the OSG; they are
to appear as counsel for the State in proceedings for annulment and declaration of nullity of
marriages:

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon 1095. [Emphasis supplied.]

A.M. No. 02-11-10-SC24 -- which this Court promulgated on March 15, 2003 and duly published -- is
geared towards the relaxation of the OSG certification that Molina required. Section 18 of this
remedial regulation provides:

SEC. 18. Memoranda. – The court may require the parties and the public prosecutor, in consultation
with the Office of the Solicitor General, to file their respective memoranda in support of their claims
within fifteen days from the date the trial is terminated.lawphil.net It may require the Office of the
Solicitor General to file its own memorandum if the case is of significant interest to the State. No
other pleadings or papers may be submitted without leave of court. After the lapse of the period
herein provided, the case will be considered submitted for decision, with or without the memoranda.

37
The petitioner argues that the RTC decision of April 19, 2002 should be vacated for prematurity, as it
was rendered despite the absence of the required OSG certification specified in Molina. According to
the petitioner, A.M. No. 02-11-10-SC, which took effect only on March 15, 2003, cannot overturn the
requirements of Molina that was promulgated as early as February 13, 1997.

The petitioner’s argument lacks merit.

The amendment introduced under A.M. No. 02-11-10-SC is procedural or remedial in character; it
does not create or remove any vested right, but only operates as a remedy in aid of or confirmation
of already existing rights. The settled rule is that procedural laws may be given retroactive
effect,25 as we held in De Los Santos v. Vda. de Mangubat:26

Procedural Laws do not come within the legal conception of a retroactive law, or the general rule
against the retroactive operation of statues - they may be given retroactive effect on actions pending
and undetermined at the time of their passage and this will not violate any right of a person who may
feel that he is adversely affected, insomuch as there are no vested rights in rules of procedure.

A.M. No. 02-11-10-SC, as a remedial measure, removed the mandatory nature of an OSG
certification and may be applied retroactively to pending matters. In effect, the measure cures in any
pending matter any procedural lapse on the certification prior to its promulgation. Our rulings in
Antonio v. Reyes27 and Navales v. Navales28 have since confirmed and clarified that A.M. No. 02-11-
10-SC has dispensed with the Molina guideline on the matter of certification, although Article 48
mandates the appearance of the prosecuting attorney or fiscal to ensure that no collusion between
the parties would take place. Thus, what is important is the presence of the prosecutor in the case,
not the remedial requirement that he be certified to be present. From this perspective, the
petitioner’s objection regarding the Molina guideline on certification lacks merit.

A Remand of the Case to the RTC is Improper

The petitioner maintains that vacating the lower courts’ decisions and the remand of the case to the
RTC for further reception of evidence are procedurally permissible. She argues that the inadequacy
of her evidence during the trial was the fault of her former counsel, Atty. Richard Tabago, and
asserts that remanding the case to the RTC would allow her to cure the evidentiary insufficiencies.
She posits in this regard that while mistakes of counsel bind a party, the rule should be liberally
construed in her favor to serve the ends of justice.

We do not find her arguments convincing.

A remand of the case to the RTC for further proceedings amounts to the grant of a new trial that is
not procedurally proper at this stage. Section 1 of Rule 37 provides that an aggrieved party may
move the trial court to set aside a judgment or final order already rendered and to grant a new trial
within the period for taking an appeal. In addition, a motion for new trial may be filed only on the
grounds of (1) fraud, accident, mistake or excusable negligence that could not have been guarded
against by ordinary prudence, and by reason of which the aggrieved party’s rights have probably
been impaired; or (2) newly discovered evidence that, with reasonable diligence, the aggrieved party
could not have discovered and produced at the trial, and that would probably alter the result if
presented.

In the present case, the petitioner cites the inadequacy of the evidence presented by her former
counsel as basis for a remand. She did not, however, specify the inadequacy. That the RTC granted
the petition for declaration of nullity prima facie shows that the petitioner’s counsel had not been
negligent in handling the case. Granting arguendo that the petitioner’s counsel had been negligent,

38
the negligence that would justify a new trial must be excusable, i.e. one that ordinary diligence and
prudence could not have guarded against. The negligence that the petitioner apparently adverts to is
that cited in Uy v. First Metro Integrated Steel Corporation where we explained:29

Blunders and mistakes in the conduct of the proceedings in the trial court as a result of the
ignorance, inexperience or incompetence of counsel do not qualify as a ground for new trial. If such
were to be admitted as valid reasons for re-opening cases, there would never be an end to litigation
so long as a new counsel could be employed to allege and show that the prior counsel had not been
sufficiently diligent, experienced or learned. This will put a premium on the willful and intentional
commission of errors by counsel, with a view to securing new trials in the event of conviction, or an
adverse decision, as in the instant case.

Thus, we find no justifiable reason to grant the petitioner’s requested remand.

Petitioner failed to establish the

respondent’s psychological incapacity

A petition for declaration of nullity of marriage is anchored on Article 36 of the Family Code which
provides that "a marriage contracted by any party who, at the time of its celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its solemnization." In Santos v.
Court of Appeals,30 the Court first declared that psychological incapacity must be characterized by
(a) gravity; (b) juridical antecedence; and (c) incurability. The defect should refer to "no less than a
mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the marriage." It
must be confined to "the most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the marriage."

We laid down more definitive guidelines in the interpretation and application of Article 36 of the
Family Code in Republic v. Court of Appeals where we said:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our Constitution and our laws
cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an
entire Article on the Family, recognizing it "as the foundation of the nation." It decrees
marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be "protected" by the state.

The Family Code echoes this constitutional edict on marriage and the family and emphasizes
their permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code requires that the incapacity must be
psychological - not physical, although its manifestations and/or symptoms may be physical.
The evidence must convince the court that the parties, or one of them, was mentally or
psychically ill to such an extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption thereof. Although no
example of such incapacity need be given here so as not to limit the application of the
provision under the principle of ejusdem generis, nevertheless such root cause must be

39
 identified as a psychological illness and its incapacitating nature fully explained. Expert
evidence may be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the
marriage. The evidence must show that the illness was existing when the parties exchanged
their "I do's." The manifestation of the illness need not be perceivable at such time, but the
illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must
be relevant to the assumption of marriage obligations, not necessarily to those not related to
marriage, like the exercise of a profession or employment in a job. x x x

(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes. The illness must be
shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill
will. In other words, there is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively incapacitates the person from
really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the
Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children. Such non-complied marital obligation(s)
must also be stated in the petition, proven by evidence and included in the text of the
decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great respect by
our courts…

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the decision, briefly stating therein his
reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is deemed submitted for resolution of the
court. The Solicitor General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.

These Guidelines incorporate the basic requirements we established in Santos. To reiterate,

psychological incapacity must be characterized by: (a) gravity; (b) juridical antecedence; and (c)
incurability.31 These requisites must be strictly complied with, as the grant of a petition for nullity of
marriage based on psychological incapacity must be confined only to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage. Furthermore, since the Family Code does not define "psychological
incapacity," fleshing out its terms is left to us to do so on a case-to-case basis through
jurisprudence.32 We emphasized this approach in the recent case of Ting v. Velez-Ting33 when we
explained:

40
It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving
the application of Article 36 must be treated distinctly and judged not on the basis of a priori
assumptions, predilections or generalizations but according to its own attendant facts. Courts should
interpret the provision on a case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals.

In the present case and using the above standards and approach, we find the totality of the
petitioner’s evidence insufficient to prove that the respondent is psychologically unfit to discharge the
duties expected of him as a husband.

a. Petitioner’s testimony did not prove the root cause, gravity and incurability of respondent’s
condition

The petitioner’s evidence merely showed that the respondent: (a) reneged on his promise to cohabit
with her; (b) visited her occasionally from 1993 to 1997; (c) forgot her birthday in 1992, and did not
send her greeting cards during special occasions; (d) represented himself as single in his visa
application; (e) blamed her for the death of his mother; and (f) told her he was working in Davao
when in fact he was cohabiting with another woman in 1997.

These acts, in our view, do not rise to the level of the "psychological incapacity" that the law
requires, and should be distinguished from the "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations that characterize some marriages. In Bier v. Bier,34 we ruled
that it was not enough that respondent, alleged to be psychologically incapacitated, had difficulty in
complying with his marital obligations, or was unwilling to perform these obligations. Proof of a natal
or supervening disabling factor – an adverse integral element in the respondent's personality
structure that effectively incapacitated him from complying with his essential marital obligations –
had to be shown and was not shown in this cited case.

In the present case, the respondent’s stubborn refusal to cohabit with the petitioner was doubtlessly
irresponsible, but it was never proven to be rooted in some psychological illness. As the petitioner’s
testimony reveals, respondent merely refused to cohabit with her for fear of jeopardizing his
application for a scholarship, and later due to his fear of antagonizing his family. The respondent’s
failure to greet the petitioner on her birthday and to send her cards during special occasions, as well
as his acts of blaming petitioner for his mother’s death and of representing himself as single in his
visa application, could only at best amount to forgetfulness, insensitivity or emotional immaturity, not
necessarily psychological incapacity. Likewise, the respondent’s act of living with another woman
four years into the marriage cannot automatically be equated with a psychological disorder,
especially when no specific evidence was shown that promiscuity was a trait already existing at the
inception of marriage. In fact, petitioner herself admitted that respondent was caring and faithful
when they were going steady and for a time after their marriage; their problems only came in later.

To be sure, the respondent was far from perfect and had some character flaws. The presence of
these imperfections, however, does not necessarily warrant a conclusion that he had a psychological
malady at the time of the marriage that rendered him incapable of fulfilling his duties and obligations.
To use the words of Navales v. Navales:35

Article 36 contemplates downright incapacity or inability to take cognizance of and to assume basic
marital obligations. Mere "difficulty," "refusal" or "neglect" in the performance of marital obligations or
"ill will" on the part of the spouse is different from "incapacity" rooted on some debilitating
psychological condition or illness. Indeed, irreconcilable differences, sexual infidelity or perversion,
emotional immaturity and irresponsibility, and the like, do not by themselves warrant a finding of
psychological incapacity under Article 36, as the same may only be due to a person's refusal or

41
unwillingness to assume the essential obligations of marriage and not due to some psychological
illness that is contemplated by said rule.

b. Dr. Tayag’s psychological report and court testimony

We cannot help but note that Dr. Tayag’s conclusions about the respondent’s psychological
incapacity were based on the information fed to her by only one side – the petitioner – whose bias in
favor of her cause cannot be doubted. While this circumstance alone does not disqualify the
psychologist for reasons of bias, her report, testimony and conclusions deserve the application of a
more rigid and stringent set of standards in the manner we discussed above.36 For, effectively, Dr.
Tayag only diagnosed the respondent from the prism of a third party account; she did not actually
hear, see and evaluate the respondent and how he would have reacted and responded to the
doctor’s probes.

Dr. Tayag, in her report, merely summarized the petitioner’s narrations, and on this basis
characterized the respondent to be a self-centered, egocentric, and unremorseful person who
"believes that the world revolves around him"; and who "used love as a…deceptive tactic for
exploiting the confidence [petitioner] extended towards him." Dr. Tayag then incorporated her own
idea of "love"; made a generalization that respondent was a person who "lacked commitment,
faithfulness, and remorse," and who engaged "in promiscuous acts that made the petitioner look like
a fool"; and finally concluded that the respondent’s character traits reveal "him to suffer Narcissistic
Personality Disorder with traces of Antisocial Personality Disorder declared to be grave and
incurable."

We find these observations and conclusions insufficiently in-depth and comprehensive to warrant the
conclusion that a psychological incapacity existed that prevented the respondent from complying
with the essential obligations of marriage. It failed to identify the root cause of the respondent's
narcissistic personality disorder and to prove that it existed at the inception of the marriage. Neither
did it explain the incapacitating nature of the alleged disorder, nor show that the respondent was
really incapable of fulfilling his duties due to some incapacity of a psychological, not physical, nature.
Thus, we cannot avoid but conclude that Dr. Tayag’s conclusion in her Report – i.e., that the
respondent suffered "Narcissistic Personality Disorder with traces of Antisocial Personality Disorder
declared to be grave and incurable" – is an unfounded statement, not a necessary inference from
her previous characterization and portrayal of the respondent. While the various tests administered
on the petitioner could have been used as a fair gauge to assess her own psychological condition,
this same statement cannot be made with respect to the respondent’s condition. To make
conclusions and generalizations on the respondent’s psychological condition based on the
information fed by only one side is, to our mind, not different from admitting hearsay evidence as
proof of the truthfulness of the content of such evidence.

Petitioner nonetheless contends that Dr. Tayag’s subsequent testimony in court cured whatever
deficiencies attended her psychological report.

We do not share this view.

A careful reading of Dr. Tayag’s testimony reveals that she failed to establish the fact that at the time
the parties were married, respondent was already suffering from a psychological defect that deprived
him of the ability to assume the essential duties and responsibilities of marriage. Neither did she
adequately explain how she came to the conclusion that respondent’s condition was grave and
incurable. To directly quote from the records:

ATTY. RICHARD TABAGO:

42
Q: I would like to call your attention to the Report already marked as Exh. "E-7", there is a statement
to the effect that his character traits begin to suffer narcissistic personality disorder with traces of
antisocial personality disorder. What do you mean? Can you please explain in layman’s word,
Madam Witness?

DR. NEDY LORENZO TAYAG:

A: Actually, in a layman’s term, narcissistic personality disorder cannot accept that there is
something wrong with his own behavioral manifestation. [sic] They feel that they can rule the world;
they are eccentric; they are exemplary, demanding financial and emotional support, and this is
clearly manifested by the fact that respondent abused and used petitioner’s love. Along the line, a
narcissistic person cannot give empathy; cannot give love simply because they love themselves
more than anybody else; and thirdly, narcissistic person cannot support his own personal need and
gratification without the help of others and this is where the petitioner set in.

Q: Can you please describe the personal [sic] disorder?

A: Clinically, considering that label, the respondent behavioral manifestation under personality
disorder [sic] this is already considered grave, serious, and treatment will be impossible [sic]. As I
say this, a kind of developmental disorder wherein it all started during the early formative years and
brought about by one familiar relationship the way he was reared and cared by the family.
Environmental exposure is also part and parcel of the child disorder. [sic]

Q: You mean to say, from the formative [years] up to the present?

A: Actually, the respondent behavioral manner was [present] long before he entered marriage.
[Un]fortunately, on the part of the petitioner, she never realized that such behavioral manifestation of
the respondent connotes pathology. [sic]

xxxx

Q: So in the representation of the petitioner that the respondent is now lying [sic] with somebody
else, how will you describe the character of this respondent who is living with somebody else?

A: This is where the antisocial personality trait of the respondent [sic] because an antisocial person
is one who indulge in philandering activities, who do not have any feeling of guilt at the expense of
another person, and this [is] again a buy-product of deep seated psychological incapacity.

Q: And this psychological incapacity based on this particular deep seated [sic], how would you
describe the psychological incapacity? [sic]

A: As I said there is a deep seated psychological dilemma, so I would say incurable in nature and at
this time and again [sic] the psychological pathology of the respondent. One plays a major factor of
not being able to give meaning to a relationship in terms of sincerity and endurance.

Q: And if this psychological disorder exists before the marriage of the respondent and the petitioner,
Madam Witness?

A: Clinically, any disorder are usually rooted from the early formative years and so if it takes enough
that such psychological incapacity of respondent already existed long before he entered marriage,
because if you analyze how he was reared by her parents particularly by the mother, there is already

43
an unhealthy symbiosis developed between the two, and this creates a major emotional havoc when
he reached adult age.

Q: How about the gravity?

A: This is already grave simply because from the very start respondent never had an inkling that his
behavioral manifestation connotes pathology and second ground [sic], respondent will never admit
again that such behavior of his connotes again pathology simply because the disorder of the
respondent is not detrimental to himself but, more often than not, it is detrimental to other party
involved.

xxxx

PROSECUTOR MELVIN TIONGSON:

Q: You were not able to personally examine the respondent here?

DR. NEDY TAYAG:

A: Efforts were made by the psychologist but unfortunately, the respondent never appeared at my
clinic.

Q: On the basis of those examinations conducted with the petitioning wife to annul their marriage
with her husband in general, what can you say about the respondent?

A: That from the very start respondent has no emotional intent to give meaning to their relationship.
If you analyze their marital relationship they never lived under one room. From the very start of the
[marriage], the respondent to have petitioner to engage in secret marriage until that time their family
knew of their marriage [sic]. Respondent completely refused, completely relinquished his marital
obligation to the petitioner.

xxxx

COURT:

Q: Because you have interviewed or you have questioned the petitioner, can you really enumerate
the specific traits of the respondent?

DR. NEDY TAYAG:

A: One is the happy-go-lucky attitude of the respondent and the dependent attitude of the
respondent.

Q: Even if he is already eligible for employment?

A: He remains to be at the mercy of his mother. He is a happy-go-lucky simply because he never

had a set of responsibility. I think that he finished his education but he never had a stable job
because he completely relied on the support of his mother.

Q: You give a more thorough interview so I am asking you something specific?

44
A: The happy-go-lucky attitude; the overly dependent attitude on the part of the mother merely
because respondent happened to be the only son. I said that there is a unhealthy symbiosis
relationship [sic] developed between the son and the mother simply because the mother always
pampered completely, pampered to the point that respondent failed to develop his own sense of
assertion or responsibility particularly during that stage and there is also presence of the simple lying
act particularly his responsibility in terms of handling emotional imbalance and it is clearly
manifested by the fact that respondent refused to build a home together with the petitioner when in
fact they are legally married. Thirdly, respondent never felt or completely ignored the feelings of the
petitioner; he never felt guilty hurting the petitioner because on the part of the petitioner, knowing
that respondent indulge with another woman it is very, very traumatic on her part yet respondent
never had the guts to feel guilty or to atone said act he committed in their relationship, and clinically
this falls under antisocial personality. 37

In terms of incurability, Dr. Tayag’s answer was very vague and inconclusive, thus:

xxxx

ATTY. RICHARD TABAGO

Q: Can this personally be cured, madam witness?

DR. NEDY TAYAG

A: Clinically, if persons suffering from personality disorder curable, up to this very moment, no
scientific could be upheld to alleviate their kind of personality disorder; Secondly, again respondent
or other person suffering from any kind of disorder particularly narcissistic personality will never
admit that they are suffering from this kind of disorder, and then again curability will always be a
question. [sic]38

This testimony shows that while Dr. Tayag initially described the general characteristics of a person
suffering from a narcissistic personality disorder, she did not really show how and to what extent the
respondent exhibited these traits. She mentioned the buzz words that jurisprudence requires for the
nullity of a marriage – namely, gravity, incurability, existence at the time of the marriage,
psychological incapacity relating to marriage – and in her own limited way, related these to the
medical condition she generally described. The testimony, together with her report, however, suffers
from very basic flaws.

First, what she medically described was not related or linked to the respondent’s exact
condition except in a very general way. In short, her testimony and report were rich in
generalities but disastrously short on particulars, most notably on how the respondent can be
said to be suffering from narcissistic personality disorder; why and to what extent the
disorder is grave and incurable; how and why it was already present at the time of the
marriage; and the effects of the disorder on the respondent’s awareness of and his capability
to undertake the duties and responsibilities of marriage. All these are critical to the success
of the petitioner’s case.

Second, her testimony was short on factual basis for her diagnosis because it was wholly
based on what the petitioner related to her. As the doctor admitted to the prosecutor, she did
not at all examine the respondent, only the petitioner. Neither the law nor jurisprudence
requires, of course, that the person sought to be declared psychologically incapacitated
should be personally examined by a physician or psychologist as a condition sine qua non to
arrive at such declaration.39 If a psychological disorder can be proven by independent

45
 means, no reason exists why such independent proof cannot be admitted and given
credit.40 No such independent evidence, however, appears on record to have been gathered
in this case, particularly about the respondent’s early life and associations, and about events
on or about the time of the marriage and immediately thereafter. Thus, the testimony and
report appear to us to be no more than a diagnosis that revolves around the one-sided and
meager facts that the petitioner related, and were all slanted to support the conclusion that a
ground exists to justify the nullification of the marriage. We say this because only the baser
qualities of the respondent’s life were examined and given focus; none of these qualities
were weighed and balanced with the better qualities, such as his focus on having a job, his
determination to improve himself through studies, his care and attention in the first six
months of the marriage, among others. The evidence fails to mention also what character
and qualities the petitioner brought into her marriage, for example, why the respondent’s
family opposed the marriage and what events led the respondent to blame the petitioner for
the death of his mother, if this allegation is at all correct. To be sure, these are important
because not a few marriages have failed, not because of psychological incapacity of either or
both of the spouses, but because of basic incompatibilities and marital developments that do
not amount to psychological incapacity. The continued separation of the spouses likewise
never appeared to have been factored in. Not a few married couples have likewise
permanently separated simply because they have "fallen out of love," or have outgrown the
attraction that drew them together in their younger years.

Thus, on the whole, we do not blame the petitioner for the move to secure a remand of this case to
the trial courts for the introduction of additional evidence; the petitioner’s evidence in its present state
is woefully insufficient to support the conclusion that the petitioner’s marriage to the respondent
should be nullified on the ground of the respondent’s psychological incapacity.

The Court commiserates with the petitioner’s marital predicament. The respondent may indeed be
unwilling to discharge his marital obligations, particularly the obligation to live with one’s spouse.
Nonetheless, we cannot presume psychological defect from the mere fact that respondent refuses to
comply with his marital duties. As we ruled in Molina, it is not enough to prove that a spouse failed to
meet his responsibility and duty as a married person; it is essential that he must be shown to be
incapable of doing so due to some psychological illness. The psychological illness that must afflict a
party at the inception of the marriage should be a malady so grave and permanent as to deprive the
party of his or her awareness of the duties and responsibilities of the matrimonial bond he or she
was then about to assume.41

WHEREFORE, in view of these considerations, we DENY the petition and AFFIRM the decision and
resolution of the Court of Appeals dated June 25, 2004 and January 18, 2005, respectively, in CA-
G.R. CV No. 75095.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

CONCHITA CARPIO-MORALES*
Associate Justice
Acting Chairperson

46
 ANTONIO T. CARPIO** MINITA V. CHICO-NAZARIO***
Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO****

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO-MORALES
Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Acting Division Chairperson’s
Attestation, it is hereby certified that the that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

47
A.M. No. MTJ-92-706 March 29, 1995

LUPO ALMODIEL ATIENZA, complainant,

vs.
JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28,
Manila, respondent.

QUIASON, J.:

This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against
Judge Francisco Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila.

Complainant alleges that he has two children with Yolanda De Castro, who are living together at No.
34 Galaxy Street, Bel-Air Subdivision, Makati, Metro Manila. He stays in said house, which he
purchased in 1987, whenever he is in Manila.

In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his
(complainant's) bed. Upon inquiry, he was told by the houseboy that respondent had been
cohabiting with De Castro. Complainant did not bother to wake up respondent and instead left the
house after giving instructions to his houseboy to take care of his children.

Thereafter, respondent prevented him from visiting his children and even alienated the affection of
his children for him.

Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five
children, as appearing in his 1986 and 1991 sworn statements of assets and liabilities. Furthermore,
he alleges that respondent caused his arrest on January 13, 1992, after he had a heated argument
with De Castro inside the latter's office.

For his part, respondent alleges that complainant was not married to De Castro and that the filing of
the administrative action was related to complainant's claim on the Bel-Air residence, which was
disputed by De Castro.

Respondent denies that he caused complainant's arrest and claims that he was even a witness to
the withdrawal of the complaint for Grave Slander filed by De Castro against complainant. According
to him, it was the sister of De Castro who called the police to arrest complainant.

Respondent also denies having been married to Ongkiko, although he admits having five children
with her. He alleges that while he and Ongkiko went through a marriage ceremony before a Nueva
Ecija town mayor on April 25, 1965, the same was not a valid marriage for lack of a marriage
license. Upon the request of the parents of Ongkiko, respondent went through another marriage
ceremony with her in Manila on June 5, 1965. Again, neither party applied for a marriage license.
Ongkiko abandoned respondent 17 years ago, leaving their children to his care and custody as a
single parent.

Respondent claims that when he married De Castro in civil rites in Los Angeles, California on
December 4, 1991, he believed, in all good faith and for all legal intents and purposes, that he was
single because his first marriage was solemnized without a license.

48
Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage
before a party thereto can enter into a second marriage. Article 40 of said Code provides:

The absolute nullity of a previous marriage may be invoked for the purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void.

Respondent argues that the provision of Article 40 of the Family Code does not apply to him
considering that his first marriage took place in 1965 and was governed by the Civil Code of the
Philippines; while the second marriage took place in 1991 and governed by the Family Code.

Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August
3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code,
said Article is given "retroactive effect insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws." This is particularly true with Article 40, which
is a rule of procedure. Respondent has not shown any vested right that was impaired by the
application of Article 40 to his case.

The fact that procedural statutes may somehow affect the litigants' rights may not preclude their
retroactive application to pending actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely affected (Gregorio v. Court of
Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no vested right may attach to,
nor arise from, procedural laws (Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]).

Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of
marriage and employed deceit to be able to cohabit with a woman, who beget him five children.

Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963.
At the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer.
Yet, he never secured any marriage license. Any law student would know that a marriage license is
necessary before one can get married. Respondent was given an opportunity to correct the flaw in
his first marriage when he and Ongkiko were married for the second time. His failure to secure a
marriage license on these two occasions betrays his sinister motives and bad faith.

It is evident that respondent failed to meet the standard of moral fitness for membership in the legal
profession.

While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial
Judge, his immoral and illegal act of cohabiting with De Castro began and continued when he was
already in the judiciary.

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of
impropriety, not only with respect to his performance of his judicial duties but also as to his behavior
as a private individual. There is no duality of morality. A public figure is also judged by his private life.
A judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must
behave with propriety at all times, in the performance of his judicial duties and in his everyday life.
These are judicial guideposts too self-evident to be overlooked. No position exacts a greater
demand on moral righteousness and uprightness of an individual than a seat in the judiciary (Imbing
v. Tiongzon, 229 SCRA 690 [1994]).

WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement
benefits and with prejudice to reappointment in any branch, instrumentality, or agency of the

49
government, including government-owned and controlled corporations. This decision is immediately
executory.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.

G.R. No. 112193 March 13, 1996

JOSE E. ARUEGO, JR., SIMEONA SAN JUAN ARUEGO, MA. IMMACULADA T. ALANON,
ROBERTO A. TORRES, CRISTINA A. TORRES, JUSTO JOSE TORRES and AGUSTIN
TORRES, petitioners,
vs.
THE HON. COURT OF APPEALS, THIRTEENTH DIVISION and ANTONIA
ARUEGO, respondents.

HERMOSISIMA, JR., J.:p

On March 7, 1983, a Complaint1 for Compulsory Recognition and Enforcement of Successional

Rights was filed before Branch 30 of the Regional Trial Court of Manila by the minors, private
respondent Antonia F. Aruego and her alleged sister Evelyn F. Aruego, represented by their mother
and natural guardian, Luz M. Fabian. Named defendants therein were Jose E. Aruego, Jr. and the
five (5) minor children of the deceased Gloria A. Torres, represented by their father and natural
guardian, Justo P. Torres, Jr., now the petitioners herein.

In essence, the complaint avers that the late Jose M. Aruego, Sr., a married man, had an amorous
relationship with Luz M. Fabian sometime in 1959 until his death on March 30, 1982. Out of this
relationship were born Antonia F. Aruego and Evelyn F. Aruego on October 5, 1962 and September
3, 1963, respectively. The complaint prayed for an Order praying that herein private respondent and
Evelyn be declared the illegitimate children of the deceased Jose M. Aruego, Sr.; that herein
petitioners be compelled to recognize and acknowledge them as the compulsory heirs of the
deceased Jose M. Aruego; that their share and participation in the estate of their deceased father be
determined and ordered delivered to them.

The main basis of the action for compulsory recognition is their alleged "open and continuous
possession of the status of illegitimate children" as stated in paragraphs 6 and 7 of the Complaint, to
wit:

6. The plaintiffs' father, Jose M. Aruego, acknowledged and recognized the herein
plaintiffs as his children verbally among plaintiffs' and their mother's family friends, as
well as by myriad different paternal ways, including but not limited to the following:

(a) Regular support and educational expenses;

(b) Allowance to use his surname;

(c) Payment of maternal bills;

50
 (d) Payment of baptismal expenses and attendance therein;

(e) Taking them to restaurants and department stores on occasions of family

rejoicing;

(f) Attendance to school problems of plaintiffs;

(g) Calling and allowing plaintiffs to his office every now and then;

(h) Introducing them as such children to family friends.

7. The plaintiffs are thus, in continuous possession of the status

of (illegitimate) children of the deceased Jose M. Aruego who showered them, with
the continuous and clear manifestations of paternal care and affection as above
outlined.2

Petitioners denied all these allegations.

After trial, the lower court rendered judgment, dated June 15, 1992, the dispositive portion of which
reads:

WHEREFORE, judgment is rendered —

1. Declaring Antonia Aruego as illegitimate daughter of Jose Aruego and Luz Fabian;

2. Evelyn Fabian is not an illegitimate daughter of Jose Aruego with Luz Fabian;

3. Declaring that the estate of deceased Jose Aruego are the following:

xxx xxx xxx

4. Antonia Aruego is entitled to a share equal to 1/2 portion of share of the legitimate
children of Jose Aruego;

5. Defendants are hereby ordered to recognize Antonia Aruego as the illegitimate

daughter of Jose Aruego with Luz Fabian;

6. Defendants are hereby ordered to deliver to Antonia Aruego (her) share in the
estate of Jose Aruego, Sr.;

7. Defendants to play (sic) plaintiffs (Antonia Aruego) counsel the sum of P10,000.00
as atty's fee;

8. Cost against the defendants.3

Herein petitioners filed a Motion for Partial Reconsideration of the decision alleging loss of
jurisdiction on the part of the trial court over the complaint by virtue of the passage of Executive
Order No. 209 (as amended by Executive Order No. 227), otherwise known as the Family Code of
the Philippines which took effect on August 3, 1988. This motion was denied by the lower court in
the Order, dated January 14, 1993.

51
Petitioners interposed an appeal but the lower court refused to give it due course on the ground that
it was filed out of time.

A Petition for Prohibition and Certiorari with prayer for a Writ of Preliminary Injunction was filed by
herein petitioners before respondent Court of Appeals, the petition was dismissed for lack of merit in
a decision promulgated on August 31, 1993. A Motion for Reconsideration when filed was denied by
the respondent court in a minute resolution, dated October 13, 1993.

Hence, this Petition for Review on Certiorari under Rule 45 alleging the following grounds:

RESPONDENT COURT HAD DECIDED A QUESTION OF SUBSTANCE IN A WAY

NOT IN ACCORD WITH THE LAW AND IS DIRECTLY CONTRADICTORY TO THE
APPLICABLE DECISION ALREADY ISSUED BY THIS HONORABLE COURT.

RESPONDENT COURT ERRED IN HOLDING THAT THE PETITION FILED BY

PETITIONERS BEFORE IT DOES NOT INVOLVE A QUESTION OF
JURISDICTION.

RESPONDENT COURT HAD CLEARLY ERRED IN RULING THAT THERE IS NO

PERCEPTIBLE DIFFERENCE BETWEEN THE CIVIL CODE PROVISION AND
THOSE OF THE FAMILY CODE ANENT THE TIME AN ACTION FOR
COMPULSORY RECOGNITION MAY BE MADE AND THAT THERE IS NO
DIFFERENCE UNDER THE CIVIL CODE FROM THAT OF THE FAMILY CODE
CONCERNING THE REQUIREMENT THAT AN ACTION FOR COMPULSORY
RECOGNITION ON THE GROUND OF CONTINUOUS POSSESSION OF THE
STATUS OF AN ILLEGITIMATE CHILD SHOULD BE FILED DURING THE
LIFETIME OF THE PUTATIVE PARENT, IN UTTER DISREGARD OF THE RULING
OF THIS HONORABLE COURT IN THE UYGUANGCO CASE THAT THE CIVIL
CODE PROVISION HAD BEEN SUPERSEDED OR AT LEAST MODIFIED BY THE
CORRESPONDING ARTICLES IN THE FAMILY CODE.

RESPONDENT COURT ERRED IN DISMISSING PETITIONERS' PETITION FOR

PROHIBITION AND IN HOLDING THAT PETITIONERS REMEDY IS THAT OF AN
APPEAL WHICH ALLEGEDLY HAD ALREADY BEEN LOST.4

Private respondent's action for compulsory recognition as an illegitimate child was brought under
Book I, Title VIII of the Civil Code on PERSONS, specifically Article 285 thereof, which state the
manner by which illegitimate children may prove their filiation, to wit:

Art. 285. The action for the recognition of natural children may be brought only during
the lifetime of the presumed parents, except in the following cases:

52
 (1) If the father or mother died during the minority of the child, in which case the latter
may file the action before the expiration of four years from the attainment of his
majority; . . . .

Petitioners, on the other hand, submit that with the advent of the New Family Code on
August 3, 1988, the trial court lost jurisdiction over the complaint of private respondent on the
ground of prescription, considering that under Article 175, paragraph 2, in relation to Article
172 of the New Family Code, it is provided that an action for compulsory recognition of
illegitimate filiation, if based on the "open and continuous possession of the status of an
illegitimate child," must be brought during the lifetime of the alleged parent without any
exception, otherwise the action will be barred by prescription.

The law cited reads:

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way
and on the same evidence as legitimate children.

The action must be brought within the same period specified in Article 173 [during
the lifetime of the child], except when the action is based on the second paragraph of
Article 172, in which case the action may be brought during the lifetime of the alleged
parent.

In the case at bench, petitioners point out that, since the complaint of private respondent and
her alleged sister was filed on March 7, 1983, or almost one (1) year after the death of their
presumed father on March 30, 1982, the action has clearly prescribed under the new rule as
provided in the Family Code. Petitioners, further, maintain that even if the action was filed
prior to the effectivity of the Family Code, this new law must be applied to the instant case
pursuant to Article 256 of the Family Code which provides:

This Code shall, have retroactive effect insofar as it does not prejudice or impair
vested of acquired rights in accordance with the Civil Code or other laws.

The basic question that must be resolved in this case, therefore, appears to be:

Should the provisions of the Family Code be applied in the instant case? As a corollary Will the
application of the Family Code in this case prejudice or impair any vested right of the private
respondent such that it should not be given retroactive effect in this particular case?

53
The phrase "vested or acquired rights" under Article 256, is not defined by the Family Code. "The
Committee did not define what is meant by a 'vested or acquired right,' thus leaving it to the courts to
determine what it means as each particular issue is submitted to them. It is difficult to provide the
answer for each and every question that may arise in the future."5

In Tayag vs. Court of Appeals,6 a case which involves a similar complaint denominated as "Claim for
Inheritance" but treated by this court as one to compel recognition as an illegitimate child brought
prior to the effectivity of the Family Code by the mother of the minor child, and based also on the
"open and continuous possession of the status of an illegitimate child," we had occasion to rule that:

Under the circumstances obtaining in the case at bar, we hold that the right of action
of the minor child has been vested by the filing of the complaint in court under the
regime of the Civil Code and prior to the effectivity of the Family Code. We herein
adopt our ruling in the recent case of Republic of the Philippines vs. Court of
Appeals, et. al. 7 where we held that the fact of filing of the petition already vested in
the petitioner her right to file it and to have the same proceed to final adjudication in
accordance with the law in force at the time, and such right can no longer be
prejudiced or impaired by the enactment of a new law.

xxx xxx xxx

Accordingly, Article 175 of the Family Code finds no proper application to the instant
case since it will ineluctably affect adversely a right of private respondent and,
consequentially, of the minor child she represents, both of which have been vested
with the filing of the complaint in court. The trial court is, therefore, correct in applying
the provisions of Article 285 of the Civil Code and in holding that private respondent's
cause of action has not yet prescribed.

Tayag applies four-square with the case at bench. The action brought by private respondent Antonia
Aruego for compulsory recognition and enforcement of successional rights which was filed prior to
the advent of the Family Code, must be governed by Article 285 of the Civil Code and not by Article
175, paragraph 2 of the Family Code. The present law cannot be given retroactive effect insofar as
the instant case is concerned, as its application will prejudice the vested right of private respondent
to have her case decided under Article 285 of the Civil Code. The right was vested to her by the fact
that she filed her action under the regime of the Civil Code. Prescinding from this, the conclusion
then ought to be that the action was not yet barred, notwithstanding the fact that it was brought when
the putative father was already deceased, since private respondent was then still a minor when it
was filed, an exception to the general rule provided under Article 285 of the Civil Code. Hence, the
trial court, which acquired jurisdiction over the case by the filing of the complaint, never lost
jurisdiction over the same despite the passage of E.O. No. 209, also known as the Family Code of
the Philippines.

Our ruling herein reinforces the principle that the jurisdiction of a court, whether in criminal or civil
cases, once attached cannot be ousted by subsequent happenings or events, although of a
character which would have prevented jurisdiction from attaching in the first instance, and it retains
jurisdiction until it finally disposes of the case. 8

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals dated August 31,
1993 and its Resolution dated October 13, 1993 are hereby AFFIRMED.

SO ORDERED.

54
Padilla, Bellosillo and Kapunan, JJ., concur.

Civil Code Art 5: Mandatory and Prohibitory laws

G.R. No. L-18566 September 30, 1963

IN THE MATTER OF THE ADOPTION OF ELIZABETH MIRA, GILBERT R. BREHM and ESTER
MIRA BREHM,petitioners-appellees,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.

Pitt Vasquez for petitioners-appellees.

Office of the Solicitor General for oppositor-appellant.

PAREDES, J.:

Finding that only legal issues are involved in the instant case, the Court of Appeals certified the
same to this Court for disposition.

Gilbert R. Brehm is an American citizen, serving the U.S. Navy with temporary assignment at Subic
Bay. On October 9, 1958, he married Ester Mira, a Filipino citizen, who had a daughter Elizabeth, by
another man, also of the American Navy, who left the country in 1952, and never heard from since
then. After the marriage, the couple established residence at Intramuros, Manila, and the minor
Elizabeth had always been under their care and support of Brehm.

On January 28, 1959, the spouses filed a Joint Petition with the Juvenile and Domestic Relations
Court for the adoption of the minor Elizabeth, claiming that they have mutually given their consent to
the adoption, not only to promote her best interest and well-being, but also to give her a legitimate
status. They prayed that after the proper proceedings, judgment be entered, freeing the child
Elizabeth Mira from all legal obligations of obedience and maintenance with respect to her natural
father, and be, for all legal intents and purposes, the child of the petitioners, with all the rights
pertinent thereto.

An opposition to the petition with respect to Gilbert Brehm was registered by the Republic of the
Philippines, it appearing that Brehm testified that his residence in Philippines was merely temporary,
same being effective only for purposes of his tour of duty with the Navy, thus disqualifying him from
making an adoption (Art. 335 [4], New Civil Code; Sec. 2, Rule 100, Rules of Court), and that being
a non-resident alien, the Court has no jurisdiction over him.

A reply to the opposition was presented by petitioners. They claim that Art. 335 does not apply in the
case, reasoning out that it covers only adoptions for the purpose establishing a relationship of
paternity and filiation, where none existed, but not where the adopting parents are not total strangers
to said child; that there is already a relation between the child and Brehm, created by affinity that Art.
338 of the New Civil code, expressly authorizes the adoption of a step-child by a step-father, in
which category petitioner Brehm falls. Petitioners contend that the records show their residence is
Manila, for while Brehm works at Subic, he always goes home to Manila, during week-ends and
manifested that he intends to reside in the Philippines permanently, after his tour of duty with the
U.S. Naval Forces.

The Juvenile & Domestic Relations Court rendered judgment, the Pertinent portions of which read —

55
 ... Since residence is principally a matter of intention, the Court is of the opinion that
notwithstanding the nature of Petitioner Gilbert R. Brehm's coming to the Philippines, his
subsequent acts, coupled with his declared intention of permanently residing herein, have
cured the legal defect on the point of residence.

Finally, we must consider the status of the minor Elizabeth Mira whose welfare deserves
paramount consideration. Being a natural child of the petitioning wife, it cannot be in
conscience be expected that when petitioners married, the mother would reduce her
responsibility and her affection toward her child....

WHEREFORE, finding that the principal allegations of the petitioners are true, it is hereby
adjudged that henceforth the minor Elizabeth is freed from all obligations of obedience and
maintenance with respect to her natural father, and is, to all legal intents and purposes, the
child of the petitioners Gilbert R. Brehm and Ester Mira Brehm, said minor's surname being
change from "Mira" to "Mira Brehm".1awphîl.nèt

The Solicitor General took exception from the judgment, claiming that it was error for the Court in
adjudging the minor Elizabeth Mira the adopted child of petitioner Gilbert R. Brehm. The appeal,
however, did not assail the right of petitioner Ester Mira Brehm, the natural mother of the minor, to
adopt her.

There is no question that petitioner Gilbert R. Brehm is a non-resident alien. By his own testimony,
he supplied the conclusive proof of his status here, and no amount of reasoning will overcome the
same. For this reason, he is not qualified to adopt. On this very point, We have recently declared:

The only issue in this appeal is whether, not being permanent residents in the Philippines,
petitioners are qualified to adopt Baby Rose. Article 335 of the Civil Code of the Philippines,
Provides that —

The following cannot adopt

xxx xxx xxx

(4) Non-resident aliens;

xxx xxx xxx

This legal provision is too clear to require interpretation. No matter how much we may
sympathize with the plight of Baby Rose and with the good intentions of petitioners herein,
the law leaves us no choice but to apply its explicit terms, which unqualifiedly deny to
petitioners the power to adopt anybody in the Philippines (Ellis & Ellis v. Republic, L-16922,
Apr. 30, 1963).

Prior to the above decision, We have also denied petitions to adopt by persons similarly situated as
petitioner Brehm. Thus, in the case of Caraballo v. Republic, G.R. No. L-15080, April 25, 1962,
giving some reason why non-resident aliens are disqualified to adopt, We said —

... Looking after the welfare of a minor to be adopted the law has surrounded him with
safeguards to achieve and insure such welfare. It cannot be gain said that an adopted minor
may be removed from the country by the adopter, who is not a resident of the Philippines,

56
 and placed beyond the reach and protection of the country of his birth. (See also S/Sgt.
Katancik, v. Republic, G.R. No. L-15472, June 20, 1962).

This notwithstanding, petitioners press the argument that Brehm being now the step-father of the
minor, he is qualified to adopt, in view of the provisions of par. 3, Art. 338, Civil Code, which states
—

The following may be adopted:

(1) The natural child by the natural father

(2) Other legitimate children, by the father or mother

(3) A step-child, by the step-father or step-mother.

We should construe, however, Article 338 in connection with article 335. Art. 335 clearly states that
"The following cannot adopt: ... (4). Non-resident aliens". It is therefore, mandatory, because it
contains words of positive prohibition and is couched in the negative terms importing that the act
required shall not be done otherwise than designated (50 Am. Jur. 51). On the other hand, Art. 338,
Provides "the following may be adopted: (3) a
step-child, by the step-father or step-mother", which is merely directory, and which can only be given
operation if the same does not conflict with the mandatory provisions of Art. 335. Moreover, as
heretofore been shown, it is article 335 that confers jurisdiction to the court over the case, and
before Article; 338 may or can be availed of, such jurisdiction must first be established. We ruled out
the adoption of a step-child by a step-father, when the latter has a legitimate child of his own (Ball v.
Rep., 50 O.G. 145; and McGee v. Rep., L-5387, April 29, 1959).

IN VIEW HEREOF, the decision appealed from, in so far as it affects the petitioner Gilbert R. Brehm,
is hereby reversed, and his Petition to adopt the child EIizabeth Mira, denied. Without costs.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Dizon, Regala and Makalintal, JJ.,
concur.
Labrador and Reyes, J.B.L., JJ., took no part.

Civil Code Art 7: Repeal of laws

G.R. No. L-19628 December 4, 1922

LICHAUCO & COMPANY, INC., petitioner,

vs.
SILVERIO APOSTOL, as Director of Agriculture, and RAFAEL CORPUS, as Secretary of
Agriculture and Natural Resources, respondents.

Gibbs, McDonough and Johnson for petitioner.

Attorney-General Villa-Real for respondents.

STREET, J.:

57
This is an original petition for the writs of mandamus and injunction, filed in this court by Lichauco &
Company against the respondents, Silverio Apostol, as Director of Agriculture, and Rafael Corpus,
as Secretary of Agriculture and Natural Resources. An order having been issued by this court
requiring the respondents to appear and show cause why the relief prayed for should not be granted,
the Attorney-General presented a return, in the nature of a demurrer, in their behalf; and the cause is
now before us for the determination of the questions thus presented.

It is alleged in the complaint that the petitioner is a corporation duly organized under the laws of the
Philippine Islands and that it has been engaged for several years in the business of importing
carabao and other draft animals into the Philippine Islands and that it is now desirous of importing
from Pnom-Pehn, in French Indo-China, a shipment of draft cattle and bovine cattle for the
manufacture of serum but that the respondent Director of Agriculture refuses to admit said cattle,
except upon the condition, stated in Administrative Order No. 21 of the Bureau of Agriculture, that
said cattle shall have been immunized from rinderpest before embarcation at Pnom-Pehn. The
petitioner therefore asks for an order requiring the respondents to admit the contemplated
importation of cattle into the Islands and enjoining them from the enforcement of said administrative
order in the future.

The petitioner asserts that under the first proviso to section 1762 of the Administrative Code, as
amended by Act No. 3052 of the Philippine Legislature, it has "an absolute and unrestricted right to
import carabao and other draft animals and bovine cattle for the manufacture of serum from Pnom-
Pehn, Indo-China, into the Philippine Islands" and that the respondents have no authority to impose
upon the petitioner the restriction referred to above, requiring the immunization of the cattle before
shipment.

The respondents, on the other hand, rely upon section 1770 of the Administrative Code and upon
Administrative Order No. 21 of the Bureau of Agriculture, promulgated on July 29, 1922, by the
Director of Agriculture, in relation with Department Order No. 6, promulgated on July 28, 1922, by
the Secretary of Agriculture and Natural Resources, as supplying authority for the action taken.

Such portions of the laws above-mentioned as are material to the present controversy will be set out
in full, preceded by section 1762 of the Administrative Code, as originally enacted, to which will be
appended the pertinent parts of the orders referred to and the communication of the Director of
Agriculture of August 31, 1922.

1. First paragraph of section 1762 of Administrative Code in original form:

SEC. 1762. Bringing of diseased animal into Islands forbidden. — Except upon
permission of the Director of Agriculture, with the approval of the head of Department
first had, it shall be unlawful for any person knowingly to ship or otherwise bring into
the Philippine Islands any animal suffering from, infected with, or dead of any
dangerous communicable disease, or any effects pertaining to such animal which are
liable to introduce such disease into the Philippine Islands.

2. First paragraph of section 1762 of Administrative Code, as amended by Act No. 3052 of
the Philippine Legislature:

SEC. 1762. Bringing of animals imported from foreign countries into the Philippine
Islands. — It shall be unlawful for any person or corporation to import, bring or
introduce live cattle into the Philippine Islands from any foreign country. The Director
of Agriculture may, with the approval of the head of the department first had,
authorize the importation, bringing or introduction of various classes of thoroughbred

58
 cattle from foreign countries for breeding the same to the native cattle of these
Islands, and such as may be necessary for the improvement of the breed, not to
exceed five hundred head per annum: Provided, however, That the Director of
Agriculture shall in all cases permit the importation, bringing or introduction of draft
cattle and bovine cattle for the manufacture of serum: Provided, further, That all live
cattle from foreign countries the importation, bringing or introduction of which into the
Islands is authorized by this Act, shall be submitted to regulations issued by the
Director of Agriculture, with the approval of the head of the department, prior to
authorizing its transfer to other provinces.

3. Section 1770 of Administrative Code:

SEC. 1770. Prohibition against bringing of animals from infected foreign countries. —
When the Department Head shall by general order declare that a dangerous
communicable animal disease prevails in any foreign country, port, or place and that
there is danger of spreading such disease by the importation of domestic animals
therefrom, it shall be unlawful for any person knowingly to ship or bring into the
Philippine Islands any such animal, animal effects, parts, or products from such
place, unless the importation thereof shall be authorized under the regulation of the
Bureau of Agriculture.

4. Department Order No. 6, promulgated on July 28, 1922, by Secretary of Agriculture and
Natural Resources:

DEPARTMENT ORDER }
}Series of 1922.
NO. 6. }

Owing to the fact that a dangerous communicable disease known as rinderpest exist
in Hongkong, French Indo-China and British India, it is hereby declared, in
accordance with the provisions of section 1770 of Act No. 2711 (Administrative Code
of the Philippine Islands of 1917), that rinderpest prevails in said countries, and as
there is danger of spreading such disease by the importation of cattle, carabaos, and
pigs therefrom, it shall be unlawful for any person knowingly to ship or bring into the
Philippine Islands any such animal, animal effects, parts, or products from
Hongkong, French Indo-China and British India, unless the importation thereof shall
be authorized under the regulations of the Bureau of Agriculture.

The provisions of this order shall take effect on and after August 1, 1922.

5. Administrative Order No. 21, of the Bureau of Agriculture, promulgated July 29, 1922, by
the Director of Agriculture:

ADMINISTRATIVE ORDER }
}
NO. 21 }

Re importation of cattle, carabaos, and pigs from French Indo-China, Hongkong and
India.

59
 1. Pursuant to the provisions of Department Order No. 6, series of 1922, of the
Department of Agriculture and Natural Resources, the present regulations of the
Bureau of Agriculture governing the importation of livestock from French Indo-China
and Hongkong are hereby amended to the effect that the importation of livestock of
the species named in the aforementioned Department Order is hereby prohibited
from French Indo-China, Hongkong and India. However, animals immunized against
rinderpest, for which the importer before placing his order shall have obtained from
the Director of Agriculture a written permit to import them from the above named
countries, may be allowed entrance into the Philippine Islands.

2. This order shall take effect on and after August 1, 1922.

6. Communication of August 31, 1922, from the Acting Director of Agriculture to Faustino
Lichauco (in part):

SIR: In reply to your application for permission to import from 300 to 400 carabaos
immunized against rinderpest from Pnom-Pehn, French Indo-China, I have the honor
to inform you that the permission is hereby granted, under the following conditions:

1. Animals must be immunized by the simultaneous method before shipment. At

least 10 c.c. of good virulent blood must be injected at the first injection
simultaneously with the serum. Ten days after the simultaneous inoculation all non-
reactors must receive another injection of not less than 10 c.c. of virulent blood
(alone).

2. The immunization must be done by a veterinarian designated by the French

Government for the purpose, who must issue a certificate stating the fact that the
animal has been immunized according to the requirements in number 1 and it must
not be embarked until ten days after the second injection of virulent blood.

xxx xxx xxx

Very respectfully,

SILVERIO APOSTOL,
Acting Director of Agriculture.

Upon glancing over the matter above collated, it will be seen at once that section 1770 of the
Administrative Code on its face authorizes the action taken by the Secretary of Agriculture and
Natural Resources in closing our ports (in the manner and to the extent indicated in Department
Order No. 6) to the importation of cattle and carabao from French Indo-China, supposing of course,
as everybody knows and as the petitioner does not deny, that the disease of rinderpest exists in that
country.

It is claimed, however, that section 1762 of the Administrative Code, so far as it authorizes restriction
upon the importation of draft cattle and bovine cattle for the manufacture of serum, has been
impliedly repealed by the amendatory Act No. 3052, which is of later enactment that the
Administrative Code; and in this connection reliance is chiefly placed on the first proviso to section
1762, as amended by said Act No. 3052, which is in these words: "Provided, however, That the
Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle
and bovine cattle for the manufacture of serum." This then is the first and principal question in the

60
case, namely, whether section 1770 has been repealed by implication, in so far as it relates to draft
animals and bovine cattle for the manufacture of serum. We say repealed by implication, for it will be
noted that that Act No. 3052 has no repealing clause, and it contains only one section, i. e., that
amending section 1762 of the Administrative Code.

We are of the opinion that the contention of the petitioner is untenable, for the reason that section
1762, as amended, is obviously of a general nature, while section 1770 deals with a particular
contingency not made the subject of legislation in section 1762. Section 1770 is therefore not to be
considered as inconsistent with section 1762, as amended; on the other hand, it must be treated as
a special qualification of section 1762. Of course the two provisions are different, in the sense that if
section 1762, as amended, is considered alone, the cattle which the petitioner wishes to bring in can
be imported without restriction, while if section 1770 is still in force the cattle, under the conditions
stated in the petition, can be brought in only upon compliance with the requirements of
Administrative Order No. 21. But this difference between the practical effect of the two provisions
does not make then inconsistent in the sense that the earlier provision (sec. 1770) should be
deemed repealed by the amendatory Act (3052).

That section 1770 is special, in the sense of dealing with a special contingency not dealt with in
section 1762, is readily apparent upon comparing the two provisions. Thus, we find that while
section 1762 relates generally to the subject of the bringing of animals into the Island at any time
and from any place, section 1770 confers on the Department Head a special power to deal with the
situation which arises when a dangerous communicable disease prevails in some defined foreign
country, and the provision is intended to operate only so long as that situation continues. Section
1770 is the backbone of the power to enforce animal quarantine in these Islands in the special
emergency therein contemplated; and if that section should be obliterated, the administrative
authorities here would be powerless to protect the agricultural industry of the Islands from the spread
of animal infection originating abroad.

We note that the argument for unrestricted importation extends only to the importation of cattle for
draft purposes and bovine cattle for the manufacture of serum, leaving section 1770 theoretically in
full effect as regards the importation of cattle for other purposes, as where they are imported for
slaughter; but the importation of cattle for draft purposes is the principal thing, and unless that can
be regulated under the conditions and to the extent attempted by the respondents in this case, the
power given in section 1770 is obviously worthless.

In our opinion section 1762, as amended, and section 1770 must be construed in pari materia as
harmonious parts of the law dealing with animal quarantine; and section 1762, as amended, can be
given effect only in so far as it is not restricted by section 1770. Here, as always, the general must
yield to the particular.

If the Congress of the United States should this day repeal the Chinese Exclusion Law so far as it
affects these Islands, and should declare that all persons of Chinese nationality shall be at liberty to
enter the Philippine Islands without restriction, would anybody suppose that such enactment would
have the effect of abolishing the power to maintain quarantine against any Chinese port where
cholera or bubonic plaque might hereafter be raging in epidemic form? Yet the question now before
us is not fundamentally different from the one thus supposed.

The judicial precedents are conclusive to the effect that no implied repeal of a special provisions of
the character of the one now under consideration will result from the enactment of broader provision
of a general nature. In other words, a general statute without negative words does not repeal a
previous statute which is particular, even though the provisions of one be different from the other.

61
(Rymer vs. Luzerne County, 12 L. R. A., 192; Petri vs. F. E. Creelman Lumber Co., 199 U. S., 487;
50 L. ed., 281.)

Wherever there is a particular enactment and a general enactment in the same statute, and the
latter, taken in its most comprehensive sense, would overrule the former, the particular enactment
must be operative, and the general enactment must be taken to affect only the other parts of the
statute to which it may properly apply. (Sir John Romilly, Master of the Rolls, in Pretty vs. Solly, 26
Beav., 606, 610.)

The additional words of qualification needed to harmonize a general and a prior special provision in
the same statute should be added to the general provision, rather than to the special one.
(Rodgers vs. United States, 185 U. S., 82; 46 L. ed., 816.)

Specific legislation upon a particular subject is not affected by a general law upon the same subject
unless it clearly appears that the provision of the two laws are so repugnant that the legislature must
have intended by the later to modify or repeal the earlier legislation. The special act and the general
law must stand together, the one as the law of the particular subject and the other as the general law
of the land. (Ex Parte United States, 226 U. S., 420; 57 L. ed., 281; Ex Parte Crow Dog, 109 U. S.,
556; 27 L. ed., 1030; Partee vs. St. Louis & S. F. R. Co., 204 Fed. Rep., 970.)

Where there are two acts or provisions, one of which is special and particular, and certainly includes
the matter in question, and the other general, which, if standing alone, would include the same
matter and thus conflict with the special act or provision, the special must be taken as intended to
constitute an exception to the general act or provision, especially when such general and special
acts or provisions are contemporaneous, as the Legislature is not to be presumed to have intended
a conflict. (Crane vs. Reeder and Reeder, 22 Mich., 322, 334; University of Utah vs. Richards, 77
Am. St. Rep., 928.)

It is well settled that repeals by implication are not to be favored. And where two statutes cover, in
whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court — no
purpose to repeal being clearly expressed or indicated — is, if possible, to give effect to both. In
other words, it must not be supposed that the Legislature intended by a latter statute to repeal a prior
one on the same subject, unless the last statute is so broad in its terms and so clear and explicit in
its words as to show that it was intended to cover the whole subject, and therefore to displace the
prior statute. (Frost vs. Wenie, 157 U. S., 46; 39 L. ed., 614, 619.)

As stated in the pages of the two most authoritative legal encyclopedias, the rule is that a prior
legislative act will not be impliedly repealed by a later act unless there is a plain, unavoidable and
irreconcilable repugnancy between the two. If both acts can by any reasonable construction stand
together, both will be sustained. (36 Cyc., 1074- 1076; 26 Am. & Eng. Encyc. Law, 2d ed., 725-726.)

A masterly analysis of the decisions of the United States Courts pertinent to the matter now in hand
will be found in the monographic article on "Statutes and Statutory Construction," written by Chas. C.
Moore and prefixed as a General Introduction to Federal Statutes Annotated. The discussion there
given is too lengthy to be here reproduced in full, but some of the observations of the learned author
are so appropriate to the case before us that we cannot forego the temptation to include the same in
this opinion. Says the writer: "The various provisions of an act should be read so that all may, if
possible, have their due and conjoint effect without repugnancy or inconsistency. The sections of a
code relative to any subject must be harmonized and to that end the letter of any section may
sometimes be disregarded. But where absolute harmony between parts of a statute is demonstrably
non-existent, the court must reject that one which is least in accord with the general plan of the
whole, or if there be no such ground for choice between inharmonious section, the later section

62
being the last expression of the legislative mind must, in construction, vacate the former to the extent
of the repugnancy." (1 Fed. Stat. Ann., 2d ed., 49-50.)

And speaking with reference to the rule by which special provisions are held to dominate over
general provisions in the same or later laws, the author proceeds: " 'it is an old and familiar rule,' said
Mr. Justice Lamar, 'that where there is in the same statute a particular enactment, and also a
general one, which in its most comprehensive sense would include what is embraced in the former,
the particular enactment must be operative, and the general enactment must be taken to affect only
such cases within its general language as are not within the provisions of the particular enactment.'
And the Justice proceeded to apply that rule in the construction of a statute upon which there had
been much ingenious argument and a decided conflict of authority in the inferior federal courts. The
stature was an act of Congress of 1876, declaring nonmailable 'every obscene . . . book, pamphlet,
paper, writing, print, or other publication of an indecent character,' and other enumerated articles,
and making it a misdemeanor to deposit any of them for mailing. In a prosecution under the act, the
Circuit Court certified to the Supreme Court the following question: 'Is the knowingly depositing in the
mails of an obscene letter, inclosed in an envelope or wrapper upon which there is nothing but the
name and address of the person to whom the letter is written, an offense within the act?' On behalf
of the government it was contended that the word 'writing' comprehended such a letter, but the
Supreme Court held otherwise. In the course of his argument in support of the view of the court,
Justice Lamar pointed out that the statute, after enumeration what articles shall be nonmailable,
adds a separate and distinct clause declaring that 'every letter upon the envelope of which . . .
indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or
printed . . . shall not be conveyed in the mails,' and the person knowingly or willfully depositing the
same in the mails 'shall be deemed guilty of a misdemeanor,' etc. 'This distinctly additional clause,'
continued the Justice, 'specifically designating and describing the particular class of letters which
shall be nonmailable, clearly limits the inhibitions of the statute to that class of letters alone whose
indecent matter is exposed on the envelope.' " (1 Fed. Stat. Ann., 2d ed., 50-51; also at pp. 164-
166.)

The cases relating to the subject of repeal by implication all proceed on the assumption that if the act
of latter date clearly reveals an intention on the part of the lawmaking power to abrogate the prior
law, this intention must be given effect; but there must always be a sufficient revelation of this
intention, and it has become an unbending rule of statutory construction that the intention to repeal a
former law will not be imputed to the Legislature when it appears that the two statute, or provisions,
with reference to which the question arises bear to each other the relation of general to special. It is
therefore idle to speculate whether in the case before us the Philippine Legislature may or may not
have intended to modify or abrogate section 1770 of the Administrative Code at the time the
amendment to section 1762 was enacted, for if any such intention was entertained, it was not
revealed in a way that would justify a court in giving this intention effect. We may add, however, that,
in the opinion of the majority of the Justices participating in this decision, the Legislature in amending
section 1762 could not possibly have entertained a design to modify section 1770; for, as we have
already shown, the abrogation of that provision, even as regards draft animals alone, would leave
the animal industry of the Islands exposed to the danger incident to the unrestricted importation of
infected animals from districts where rinderpest prevails. The unreasonableness of this interpretation
of the amendatory law alone supplies sufficient warrant for rejecting it. The Legislature could not
possibly have intended to destroy the effectiveness of quarantine as regards imported animals.

Our conclusion then is that section 1770 of the Administrative Code remains in full force; and the
determination of this question is we think necessarily fatal to the petitioner's case.

It is insisted, however, that even supposing section 1770 of the Administrative Code to be in force,
nevertheless, the requirement of immunization at the port of embarcation is unreasonable, inasmuch
as the immunization of the cattle at that port, under the supervision of the Government veterinarians

63
of French Indo-China, is not unconditionally accepted as efficacious by the Philippine authorities, as
shown by the fact that the latter further require tests to be made upon the arrival of the cattle here,
consisting of inoculation with virulent blood of animals suffering from rinderpest — which involves
additional expenses and exposes the importer to the loss of his entire herd.

Considerations of this nature are we think more proper to be addressed to the authorities
responsible for the regulations than to this court. About the principal fact that rinderpest exists in the
regions referred to in Department Order No. 6, there is, and can be no dispute; and when the
Department Head declared that the disease prevails in those regions and that there is danger of
spreading it by the importation of cattle and carabao into this country, he was acting upon a matter
within his province, and we are not disposed to review the conclusion.

It has been suggested that the regulative power vested in the Director of Agriculture under section
1770 of the Administrative Code with respect to the admission of cattle into the Philippine Islands
attaches only when the importation has been effected; and that the said Director has no authority to
dictate the measures to be taken by the importer before the cattle are embarked for transportation to
these Islands. This contention, in our opinion, reflects a mistaken point of view with reference to the
effect of the regulations; and the answer is to be found in the consideration that the regulation in
question has prospective reference to the condition of the cattle upon their arrival here. In other
words, the prior immunization of the cattle is made a condition precedent to the right to bring them
in; as much as to say, that only animals conforming to the required type will be admitted. The
importer is thus left at entire liberty in respect to the taking of the necessary measures to gain
admittance for his cattle in our ports; and if he fails to do so, the penalty merely is that the cattle are
not admitted.

Upon the whole we are of the opinion that the petition does not show sufficient ground for granting
the writs of mandamus and injunction. The demurrer interposed thereto by the respondents in their
return to the order to show cause, dated October 7, 1922, is therefore sustained, and the temporary
restraining order heretofore promulgated in this cause, dated September 21, 1922, is dissolved; and
unless within five days after notification hereof the petitioner shall so amend his petition as to show a
sufficient cause of action, an order absolute will be entered, dismissing the same, with costs. So
ordered.

Malcolm, Avanceña, Villamor, and Ostrand, JJ., concur.

G.R. No. L-11002 January 17, 1916

THE UNITED STATES, plaintiff-appellee,

vs.
MATEO P. PALACIO, defendant-appellant.

Antonio Belmonte for appellant.

Attorney-General Avanceña for appellee.

ARAULLO, J.:

These proceedings for violation of section 87 of Act No. 82, the Municipal Code, were brought
against the defendant, Mateo P. Palacio, in the Court of First Instance of Leyte by the following
complaint filed therein by the fiscal on December 18, 1914.

64
 The undersigned charges Mateo P. Palacio with having violated section 87 of Act No. 82, in
the following manner, to wit: Said accused, on or about the 26th day of September, 1914, in
the municipality of Tacloban, Province of Leyte, P.I., he being then and there a deputy to the
provincial assessor of Leyte, charged with the duty of assessing real property, did wilfully,
unlawfully, and criminally upon revising the assessment and in reassessing the property of
Francisco Madlonito, situated in the barrio of Di-it, municipality of Tacloban, omit from the tax
list certain real properties and improvements belonging to said Francisco Madlonito, knowing
that the properties omitted were lawfully taxable; in violation of law.

A demurrer having been filed by defendant's counsel on the ground that the facts alleged in the
complaint did not constituted the crime provided for and punished by said section 87 of Act No. 82,
the same was overruled, and, defendant having pleaded not guilty, the case came to trial. Evidence
was introduced by both the prosecution and the defense, and, on January 15, 1915, said Court of
First Instance rendered judgment in which, insisting upon the overruling of the demurrer interposed
to the complaint, and finding of the demurrer interposed to the complaint, and finding the defendant
guilty of the crime therein charged, he sentenced him to the penalty of forty days' imprisonment in
the provincial jail, to pay a fine of P100, or, in case of insolvency, to suffer the corresponding
subsidiary imprisonment and to pay the costs. Defendant has appealed from this judgment and has
assigned thereto various errors which, as stated by the Attorney-General in his brief, may be
reduced to the following:

1. That the lower court erred in holding that the evidence adduced at trial proves defendant's
guilt beyond all reasonable doubt.

2. That the facts alleged in the complaint and proven at trial do not constitute the infraction
provided for and punished by section 87 of Act No. 82, known as the Municipal Code.

The evidence shows beyond all doubt that while defendant was serving as a deputy to the provincial
assessor of Leyte, duly appointed and such, and having proceeded under orders of said assessor,
given in the month of September, 1914, to verify the measurement, evaluation, and assessment of
the properties of one Francisco Madlonito, situated in the barrio of Di-it, municipality of Tacloban of
said province, he presented in performance of his duty a report in which he recorded as real property
belonging to said Francisco Madlonito a rectangular parcel of unirrigated land which was adjoined on
the north by the land of Anacleto Condes; on the east, by that of Ventura Viñas; on the south, by that
of Jose Guardino; and on the west, by woods; it measured 3 hectares 51 ares and 23 centiares in
area, the only improvements consisting of 500 hemp plants; that several days afterwards, in the
following month of October, the provincial assessor, having been advised that defendant's report
was false, proceeded in company with another deputy to remeasure and to make a new valuation
and assessment of the same land, under guidance of and in accordance with date furnished by the
same Francisco Madlonito who had previously conducted and furnished information to defendant; as
a result of this proceeding on the part of said provincial assessor, it was ascertained that said land
was unirrigated hemp or corn land; that it was polygonal in form and was adjoined on the north by
the property of Anacleto Condes and Basilio Espejo; on the east, by that of Nicanor Dolina, Basilio
Espejo and Ventura Viñas; on the south, by the land of Tomas Tabosa and a wood; and by a wood
on the west; it was found to measure 15 hectares 17 ares and 65 centiares in extent, the
improvements thereon consisting of a plantation of hemp, a dwelling house of mixed material, 80
clumps of banana trees, 9 cacao trees, 24 coconut trees 5 years of age, and one coconut tree in
bearing. It was therefore apparent that in the tax list of real property which, as deputy to the
provincial assessor, defendant was charged to prepare — that is, the report presented by him — he
had omitted real property belonging to Francisco Madlonito, which property consisted of 12 hectares
66 ares and 42 centares of land and all the improvements mentioned, with the exception of the 500
hemp plants specified in this report.

65
Defendant endeavored in a way to explain this omission by attributing it to the fact that in making his
report he relied upon the information furnished by Francisco Madlonito himself, and, with respect to
the area, on that given him at the time by the two laborers who measured the land and who assured
him that said measurement was correct, because it was the same as that which has been pointed
out to them by the owner of the land. Defendant further explained that he also accepted the
informations furnished by said laborers with respect to the improvements specified in said report as
consisting of a plantation of hemp; that these men had told him that there were no other
improvements except the hemp plantation and some banana trees of which he did not know how
many there were; with respect to the house, Francisco Madlonito told him that it belonged to
Emiliano, Francisco's brother; that this latter was absent at the time and therefore defendant did not
measure the property, deciding to postpone doing so until the 15th of January of the following year,
when he intended to return.

These explanations of the defendant are not satisfactory, nor can they serve to exonerate him as he
claims because, in the first place, he should not have relied on what the interest party himself,
Francisco Madlonito, told him, nor upon the information which, at the time he inspected and
measured the lands, was furnished him by the two laborers of whose services he availed himself for
the actual performance of that labor. He himself ought to have verified the correctness of the
information and have informed himself of the true area of the land and of all the improvements
thereon, they being in sight, in order to include them in the report which it was his duty to render to
the provincial assessor in fulfillment of the mission confined to him. In the second place, Francisco
Madlonito himself testified at the trial that he had furnished defendant with the same date and
information which he subsequently gave to the provincial assessor and to the latter's other deputy
when they both went to verify and investigate the defendant's work, form which verification and
investigation it was disclosed that the land was larger by 12 hectares 66 ares and 42 centiares and
that it contained many other improvements such as clumps of coconut, cacao and banana trees,
besides the 500 hemp plants mentioned in defendant's report. We therefore fail to understand and it
has not been explained how said improvements could have been omitted from the report, nor how
defendant could have failed to mentioned therein such a large tract of land as that of the 12 hectares
above referred to. This, together with the circumstances of defendant's having passed the previous
night in Francisco Madlonito's own house, and having had, therefore, sufficient opportunity and time
to inform himself of exactly what the latter's property, which was to be measure and recorded in said
report, consisted of, constitute proof that defendant (exception made in so far as the house is
concerned, for it might be true that it did belong to Francisco Madlonito's brother), willfully omitted
from his report and extensive portion of Francisco Madlonito's real property that he knew was
lawfully taxable and which it was his duty to record in said document. The lower court did not,
therefore, incur the first error assigned by defendant's counsel in his brief.

Defendant's counsel alleges, however, that the act committed by his client and which, as aforesaid,
was proven at trial, does not constitute an infraction provided for and punished by section 87 of Act
No. 82, known as the Municipal Code."

That section provides as follows:

Any officer charged with the duty of assessing real property, who shall willfully omit from the
tax lists real property which he knows to be lawfully taxable, shall be guilty of a misdemeanor
and punishable by a fine not exceeding one thousand pesos, or imprisonment not exceeding
two years, or both, in the discretion of the court.

Section 49 of the same Act, No. 82, provides that the real estate of the municipality shall be valued
and assessed for taxation by a board, to consist of the president, the municipal treasurer, and a

66
specially authorized deputy of the provincial treasurer, which board shall be known as the municipal
board of assessors.

Said section 49 was amended by section 1 of Act No. 1930, so that the aforementioned municipal
board of assessors should consist of the municipal president the municipal treasurer and, instead of
the deputy to the provincial treasurer, of a third member to be appointed by the provincial board.

Subsequently, on February 11, 1913, Act No. 2238 was passed, section 1 of which created the
position of provincial assessor for each province containing municipalities organized under the
provisions of the Municipal Code. Section 2 of this Act provides that provincial assessors shall be
allowed such number of deputies and clerks as shall be fixed by the provincial board with the
approval of the Executive Secretary, and section 4, in reciting the duties of the provincial assessor,
and, consequently, those of his deputies, provides that, when directed by provincial board, he shall
revise and correct the assessments and valuations of real property for the purpose of taxation, and ,
in the manner set forth in the Act, revise and correct, when so directed, any and all assessments and
valuations for taxation, make a correct and just assessments and state the true value of the real
property. Other sections of this Act confer upon the provincial assessor various powers in connection
with the preparation of the lists of property subject to assessment, and, finally, establishes the
procedure that must be followed where any municipality or any property owner does not agree with
the assessment and valuation so made.

As may be seen, the purpose of Act No. 2238, in creating the office of provincial assessor and
allowing him such number of deputies and clerks as shall be fixed by the provincial board with the
approval of the Executive Secretary, was the same as that of Act No. 82, in creating, in section 49
thereof, the municipal board of assessors; and Act No. 1930, in amending said section in the manner
aforementioned, to wit, by providing that all the real property, taxable or subject to the land tax,
existing in the municipalities of these Islands, should be assessed, and, for this purpose and in order
that the provincial board should exercise the necessary and proper supervision over acts of the
municipalities relative to said tax, provided that someone representing the provincial board or better
said, a provincial official, should be a member of the municipal board of assessors — a purpose and
object which are more accentuated in Act No. 2238 by expressly creating the office of provincial
assessor for the revision and correction of assessments and valuations of real property declared in
the municipalities — and to enable this official to take a direct and active part in preparing the lists of
property subject to said tax. Said Act 2238 is therefore intimately related to the two Acts Nos. 82 and
1930 aforecited, and is virtually a complement of the same in so far as regards the declaration and
assessment of taxable property.

Said Act No. 2238 provides in section 18 that all Acts or parts of Acts in conflict therewith are
repealed. In the two aforementioned Acts, Nos. 82 and 1930, in so far as relates to the assessment
and valuation of taxable real property in municipalities, there is, strictly speaking, nothing which may
be said to be in conflict with said Act no. 2238, not only for the reason above stated, but also
because this Act has done nothing but change the method and procedure provided in Act No. 82,
the Municipal Code, for determining the taxable real property in the municipalities and the value
thereof, by means of the intervention which in said procedure is given to the provincial assessors.
But that municipalities are not excluded from taking part in the proceedings is shown by the fact that
section 9 of this Act No. 2238 provides that, prior to directing the provincial assessor in accordance
with the provisions thereof, to proceed to revise and correct the assessments and valuations of real
property, the provincial board shall require each municipal council of the municipalities organized
under the provisions of the Municipal Code (Act No. 82) to prepare, in such form and detail as the
Executive Secretary may prescribe, a general schedule of the values of the different classes of land
for the municipality which shall be forwarded to the provincial board for approval, and such schedule,
when approved by the provincial board, shall serve the assessor as basis for the valuation and
assessment. It also provides in section 13 that it shall be the duty of the municipal president,

67
secretary and treasurer and all municipal employees, to render every assistance in their power to the
provincial assessor.

Furthermore, one of the rules of interpretation, as very properly said by defendant's counsel in his
brief, is that "when there are two laws on the same subject enacted on different dates, and it appears
evidently by the form and essence of the later law that it was the intention of the legislator to cover
therein the whole of the subject, and that it is a complete and perfect system, or is in itself a
provision, the latest law should be considered as a legal declaration that all that is comprised therein
shall continue in force and that all that is not shall rejected and repealed." A simple perusal of Act
No. 2238 is sufficient to show that it was not the intention of the legislature to cover all matters
relative to the assessment and valuation of the taxable real property of the municipalities, and
subject, because, as aforesaid, the Act in question is closely related to Act No. 82, of which it is
virtually a complement in so far as regards the organization of the service of making the lists for the
complete and adequate collection to the tax on the real property in municipalities organized under
said Act No. 82. It cannot, therefore, be maintained that section 87 of this latter Act should be
considered as repealed, in so far as it prescribes the penalty incurred by any official who, being
charged with the duty of assessing real property, wilfully omits form the tax lists any real property
which he knows to be lawfully taxable.

Repeals by implications are not favored, and will not be decreed, unless it is manifest that
the legislature so intended. As laws are presumed to be passed with deliberation and with
full knowledge of all existing ones on the subject, it is but reasonable to conclude that in
passing a statute it was not intended to interfere with or abrogate any former law relating to
same matter, unless the repugnancy between the two is not only irreconcilable, but also
clear and convincing, and flowing necessarily from the language used, unless the later act
fully embraces the subject matter of the earlier, or unless the reason for the earlier act is
beyond peradventure removed. Hence, every effort must be used to make all acts stand and
if, by any reasonable construction, they can be reconciled, the later act will not operate as a
repeal of the earlier. (23 Am. and Eng. Ency. of Law, p. 489, and cases there cited [vol. 26,
pp. 721, 726].)

As said Act No. 2238 provides no penalty for the provincial assessor or his deputy who, in revising
the assessment and preparing the tax list of real property, wilfully makes any omission such as that
aforestated; and as the provincial assessor, or his deputy, is a public official or an official of the class
referred to in section 87, it being immaterial whether he be a provincial or a municipal official (for it is
sufficient that it be the duty of such official to assess real property) it is evident that the said penal
provisions in force and is applicable to the provincial assessors and their deputies referred to in Act
No. 2238, and that the lower court did not err in sentencing defendant, under the provisions of said
section 87, to the penalty specified in the judgment appealed from.

The fact that the cadastral survey of the municipality of Tacloban was to terminated at the time of the
discovery of the omission made by the defendant in the report presented by him to the provincial
assessor, and that such omission might have been repaired by correcting the list or report by means
of revision and new assessment made by the provincial assessor himself on his proceeding with the
investigation of the misdemeanor committed by defendant, does not exempt the latter from liability,
because what the law punished in said section 87 is the fact of the willful omission, by the official
charged with the duty of assessing the real property in the tax list, of any property which he knows to
be lawfully taxable; and it is immaterial whether said omission can or cannot subsequently be
remedied, because it constitutes in itself a false representation in that document and a fraud
committed by the public official to prejudice of the Government or with intent to cause such
prejudice.

68
By reason of the foregoing, and the judgment appealed from being in accordance with the merits of
the case and the law, we hereby affirm the same, with the costs against appellant. So ordered.

Arellano, C.J., Torres and Johnson, JJ., concur.

Carson and Trent, JJ., dissent.

69