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June 8, 2019
 ZAYCO and HINLO, etc v. HINLO, JR.
FACTS:
After Enrique Hinlo died intestate, his heirs filed a
petition for letters of administration of his estate in the
RTC. Ceferina Hinlo, widow of Enrique, was initially
appointed as special administratix of Enrique’s estate. In
1991, petitioners Nancy H. Zayco and Remo Hinlo were
appointed as co-administrators in lieu of their mother
Ceferina who was already sickly and could no longer
effectively perform her duties as special administratix.
Respondent, Atty. Jesus V. Hinlo, Jr. filed a
petition for the issuance of letters administration in his
favor and and urgent motion for the removal of petitioners
as co-administrators of Enrique’s estate. Jesus, Jr. entered
into the same in representation of his father Jesus, Sr.
So, the petition for the issuance of letters
administration and the opposition of Jesus Jr. was
eventually granted by the probate court, the RTC.The
previous letter of administration issued in favor of Nancy
and Rimo as co-administrators were revoked. Jesus, Jr.
was ordered to post bond as an administrator which he
did.
NOTE: Hindi na to special administration. It’s already
regular kasi nga narevoke yung kina Nancy.
Aggrieved, the two children of Ceferina filed a motion for
reconsideration.
Q: Motion for reconsideration on what?
A: On the order granting the petition for the issuance of
letters administration issued by the probate court in favor
of Jesus, Jr.
In this case, RTC denied the motion for reconsideration.
REMEMBER: When you are asked in the quiz or exam to
resolve the motion. There are only two ways in which a
motion is resolved. Either you grant it or deny it.
Q: So what did Nancy and Remo do afterwards?
A: They filed a notice of appeal on the day that they
received the order denying their motion for reconsideration
on the order granting the petition for letters administration
granted by the RTC to Jesus Jr.
Q: What did they do after filing the notice of appeal? On
the 30th day from receipt of the order denying their motion
for reconsideration, what did they file?
A: A record on appeal.
Thereafter, the RTC did not give due course to the notice
and the record on appeal.
Q: Why did the RTC not give due course to the notice and
the record on appeal?
A: Because according to the RTC, the order granting the
letters administration is an interlocutory order.
Q: What is an interlocutory order?
A: An interlocutory order is an order that does not
disposed of the case. There is something left to be done
once the same is issued by the Court.
With that particular rationalization of the RTC, it denied
the notice and the record on appeal.
But the RTC furthered “Assuming for the sake of argument
that it is not an interlocutory order, the same was filed out
of time. “
Q: Why was it filed out of time according to the RTC?
A: The Trial Court held that records will show that the
order of this court dated July 23, 2002 removing the
former co-administrators were received by them on August
2, 2002. Subsequently, they filed a motion for
reconsideration on August 9, 2002 which was denied by
this court in its order dated July 23, 2003 and was
received by them on July 31, 2003. A notice of appeal was
filed on July 31, 2003 but a record on appeal was only
filed on August 29, 2003. The 30 days reglementary period
to file an appeal in special proceedings started to run on
August 2, 2002 when the former co-adminstrators received
the order of this Court and stopped to run when they filed
their motion for reconsideration and started to run again
on July 31, 2003 when they received the order denying
their motion for reconsideration until they filed their record
on appeal on August 29, 2003.
Thus, from August 2, 2002 to August 9, 2002, the former
co-administrators already consumed a period of 7 days
and from July 31, 2003 to August 29, 2003, a period of 29
days, or a total of 36 days.
Q: What is the difference of a notice of appeal and a record
on appeal?
A: A NOTICE OF APPEAL is filed within 15 days from
the receipt of the final order or judgment. It is only applied
if there is a single proceeding while a RECORD ON
APPEAL is filed within 30 days from the receipt of the
order or final judgment. Record on appeal is applied if
there are multiple proceedings whereby the Trial Court has
the authority to still determine the issue which is distinct
and separate from each other.
REMEMBER: All judgments are actually in a sense final
order.
CAVEAT!!!: Be very technical about your words
considering that this is remedial law. Maybe the reason
why you are not able to make it is because the technical
words that the professor is looking for, you fail to place it
on your paper. In the Bar Exams, Remedial Law is very or
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highly technical so please be very careful in your choice of
words. It is not because you do not know the concept that
you didn’t make it; maybe because you have not been
using the appropriate word. Then that is why it is a
deduction. Remember that it is not substantive law. This is
Remedial Law.
When it is a case which will say involves multiple
proceedings and the court trying that case having multiple
proceedings issues a final order or judgment as the case
may be with respect to a particular proceeding and one of
the parties definitely is positively affected by that final
order or judgment and the other is disfavorably affected.
Usually, the disfavorably affected individual or party is the
one who files the notice and record on appeal.
NOTE: If it were a multiple proceedings case and there is
a final order or judgment issued by the court and the party
to whom the final order or judgment is not beneficial,he
will not only file a notice of appeal, he will also file a record
on appeal.
The notice of appeal may be filed within 15 days from
receipt of the order subject of the appeal and the record on
appeal must be filed within 30 days reckoned from the
same period.
Q: Can they be filed at the same time?
A: Yes, why not.
Q: What if the notice of appeal was filed on the 16th day
and the record on appeal was filed on the 17th day?
A: This will be denied because the notice of appeal shall be
filed for a maximum period of 15 days from the time of the
receipt of the order subject of the appeal while the record
on appeal must be filed from the 1st day to the 30th day
from receipt of the order subject of the appeal.
So pwedeng magkasabay or pwedeng magkahiwalay so
long as it is seasonably filed.
EXAMPLE: Probate of will.
After the court allowed the will or when the will was
admitted to probate, therefore the court will determine who
are the heirs or creditors thereafter or what are the
properties forming part of the estate.
So lima na proceedings na yun, allowance of will,
determination of the heirs, determination of the
distributive shares of the heirs determination of the claims
of the creditors and determination of the properties
forming part of the estate.
If for example, during the probate of will proceedings, it
was allowed. But the oppositors believed that the will
should not be allowed considering that it does not conform
with the forms and solemnities required by the law.
Q: What law?
A: Civil Law
Q: What part of the Civil Law?
A: Succession Laws
Q: Is there something left to be done as a proceeding after
allowing the will?
A: Yes. The determination of who are the heirs, etc.
So what will happen is this is the entire record. From
receipt of the order allowing the probate of will, the
oppositor who is not happy with the court’s decision
allowing the probate of a will may file a notice and a record
because the entire records of the probate court whether
MTC acting as a probate court or RTC acting as a probate
court will not be elevated to the appellate court which is
usually done in ordinary criminal actions and ordinary
civil actions having singular proceedings; because some
proceedings are yet to be undertaken by the probate court.
So if there is yet to be undertaken if you will elevate the
entire record to the appellate court, what will the probate
court use as a basis in the next proceedings? And that is
why the entire records will still be there.
Q: What is the record on appeal? Will the entire records be
photocopied, certified true copied by the clerk of court or
by the court?
A: Not necessarily. It is only the essential parts of the
entire record which will be photocopied and which will be
elevated to the appellate court.
EXAMPLES:
1. In the probate of will, maybe the petition is essential,
maybe the last will and testament is essential and of
course the order and the opposition to the petition is
essential and the order granting the probate of will is
essential but maybe the minutes is not essential.
2. In Expropriation proceedings which is a special civil
action. There are two proceedings involved. The first is the
determination of the propriety of the exercise of the power
of eminent domain of the exercising authority. Included in
that first stage is the determination of WON the authority
exercising the power of eminent domain has that power.
The second stage is the determination of just
compensation.
If there is an issue with respect to the final determination
of the rights and obligations of the parties in the first stage
of the expropriation proceedings, someone is not happy;
the entire records will not be elevated to the appellate
court, only the essential parts of the record so that the
determination of the just compensation will still continue.
Q: Isn’t it that the parties should await the outcome of the
issues on appeal before there should be a determination of
just compensation because what if the issue brought to the
appellate court would reverse or modify the decision of the
court a quo?
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A: There is always an order of restitution.
ISSUES:
1. WON the order granting the issuance of letters
administration and appointing a regular
administrator is a final order.
- Because if it were a final order, it could be
appealed.
RULING:
1. Yes it is a final order.
Q: Why is an order appointing a regular administrator a
final order?
NOTE: We are talking about a regular administrator not a
special administrator.
A: According to the court, it held that any interested
person may file an appeal on the special proceedings for
the final order or judgment in the following cases:
1. When there is a final determination of the rights of
any of the parties in a particular case.
NOTE: This is the particular situation applicable in the
case of Zayco.
Q: Why is the issuance of letters administration considered
as a final determination of the rights of the parties in a
special proceedings case for judicial settlement of estate?
A: The appointment of a regular administrator is already a
final order because it touches upon the administration,
management and settlement of the decedent’s estate.
Q: Why? What is the responsibility of the administrator?
A: The administrator supervises and manages the estate
not to his interest.
Q: To who’s interest? To the estate’s interest?
A: No. To everyone’s interest or all of the interested parties’
interests.
Q: Who are the interested parties in a settlement of estate
case?
A: The heirs, creditors, legatees, devisees or may be even a
concubine provided she can prove that a particular
property is actually co-owned.
CAVEAT!!!: Alisin na yung as held as held by the court.
Those are superfluity.
The basis of the court in stating that it is a final order is
there in Sec. 1 of Rule 109
Sec. 1. Orders or judgments from which appeals may be
taken. - An interested person may appeal in special
proceedings from an order or judgment rendered by a
Court of First Instance or a Juvenile and Domestic
Relations Court, where such order or judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased
person, or the distributive share of the estate to which
such person is entitled;
(c) Allows or disallows, in whole or in part, any claim
against the estate of a deceased person, or any claim
presented on behalf of the estate in offset to a claim
against it;
(d) Settles the account of an executor, administrator,
trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of
the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no
appeal shall be allowed from the appointment of a special
administrator; and
(f) Is the final order or judgment rendered in the case, and
affects the substantial rights of the person appealing,
unless it be an order granting or denying a motion for a
new trial or for reconsideration.
NOTE: CFI is no longer the court which has exclusive
original jurisdiction over judicial settlements of estate
because we already explained that BP 129 as amended by
RA 7691 prevails and your Juvenile Domestic Relations
Court is actually your Family Court.
Q: What is the applicable letter in this case?
A: E. That is why it’s a final order.
(e) Constitutes, in proceedings relating to the settlement of
the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no
appeal shall be allowed from the appointment of a special
administrator
Q: It being a final order, can one file a motion for
reconsideration?
A: You know a motion for reconsideration on a particular
order or resolution whether that order or resolution is final
or interlocutory, it’s not even an issue; You can always file
a motion for reconsideration.
Q: Can you file a notice of appeal on the order with respect
to the order to question the order granting letters of
regular administration?
A: Since it is a final order, yes it is admissible.
Q: Should it only be a notice of appeal or a combination of
notice and record on appeal?
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A: Since this particular case is a special proceedings case,
a record on appeal is also required.
Q: How many days to file a notice? How many days to file a
record?
A: The notice of appeal and record on appeal should be
filed within 30 days from notice of final order or judgment
or from receipt of final order or judgments.
The problem is there is a motion for reconsideration here.
Q: If there is an MR, where will we reckon the 30-day
period? Should it be reckoned from receipt of the final
order or judgment, or from receipt of the order denying the
motion for reconsideration on the final order or judgment?
A: Pursuant to the case of Neypes v. CA, September 14,
2005, the SC said that the 30-day period to file the notice
of appeal and record on appeal should be reckoned from
the receipt of the order denying the motion for
reconsideration.
One of the limitations enumerated by Ms. Haboc with
respect to the rule-making power of the SC is that the
rules promulgated by the SC should not diminish, increase
or modify substantive rights.
While appeal is actually a substantive right, when the SC
issued and promulgated the Neypes ruling, it did not
diminish, it did not increase, and it did not modify
substantive rights. It merely clarified actually the period to
appeal which is 15 days.
Because there were issues before regarding ang hirap
magcompute kasi mga abogado daw ang mga judges. It
may be a joke but it’s true. At times, it’s quite confusing to
count and that is actually an issue. The SC then
standardized the period to appeal a final order or judgment
or a final resolution. Antecedent to the Neypes ruling, it’s
the period which is left behind which is the reckoning
period.
EXAMPLE:
You received a judgment to your disfavor July 1, 2016.
You filed a motion for reconsideration July 6, 2016.
It was denied and you received it September 2, 2016.
Prior to Neypes, you are given only 10 days because that is
the balance, eh nahihirapan ata yung mga courts na
magcompute. And that is why the Supreme Court
acknowledged na oo nga pati kami nahihirapan. So to
standardized the period to appeal, 15 days na lang para
hindi tayo mahirapan.
Q: Why?
A: Because kung minsan, may maiiwan na 7 days or 6
days na lang or 1 day na lang basta it should not be less
than 5 days.
EXAMPLE:
Natanggap mo yung order July 1, 2016.
Nagfile ka ng MR July 16, 2016.
Therefore 0 days left to file an appeal.
But it cannot be that you will not file an appeal if your MR
is denied. You are still given a maximum period of 5 days.
That is prior to Neypes. So, para hindi na lahat mahirapan
sa counting, standardized na to 15 days.
 REPUBLIC OF THE PHILIPPINES v.
NISAIDA SUMERA NISHINA
FACTS:
Nisaida Sumera Nishina is represented by her mother
Zenaida Sumera Watanabe.
The first husband of Zenaida Sumera was Koishi Nishina.
The second was Hakamada. The third is Watanabe.
Nisaida as represented by her mother, filed a petition
praying that her second birth certificate bearing the
surname Hakamada be cancelled and that her surname
Nishina in the original birth certificate changed to
Watanabe.
However, in this case the Republic opposed such petition.
Because here, there were two birth certificates registered
with the Civil Registrar. The first reflects the name Nisaida
Nishina because the father of Nisaida is actually Nishina.
But Zenaida and the male Nishina separated and that is
why Zenaida get married to another Japanese, Hakamada.
Zenaida registered, but it was late registration. So,
nagkaron ng second registration of birth certificate but
hindi na Nishina kundi Hakamada.
Inadopt siya (Nisaida) subsequently ni Watanabe (3rd
husband)
Eh gustong iparegister yung decree of adoption in the
Family Court of Japan by Nisaida Nishina here in the
Philippines but she discovered that she has two birth
certificates registered here. And that is why she wanted to
cancel the second birth certificate which was registered in
the Local Civil Registry of Malolos and prayed that her
name by virtue of the decree of adoption, her surname be
changed from Nishina to Watanabe.
Q: Was it granted by the RTC?
A: Yes.
The issue went all the way up to the SC.
When the order favoring Nisaida was received by the OSG,
it filed a notice of appeal in behalf of the Philippines.
According to Nishina, pursuant to Zayco, they should have
filed a notice and a record on appeal because it is a special
proceedings case and under Zayco, the SC said that in
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special proceedings cases, the notice of appeal and the appeal shall be allowed from the appointment of a special
record on appeal must be filed within 30 days. administrator; and

Q: Is Nishina correct in her submission that the appeal of (f) Is the final order or judgment rendered in the case, and
the Republic of the Philippines must not be given due affects the substantial rights of the person appealing,
course and ultimately be denied considering that the unless it be an order granting or denying a motion for a
Republic did not file a record on appeal? new trial or for reconsideration.

A: No. The Republic is not required to file a record on  FERNANDEZ v. MARAVILLA

appeal. It was held that the record on appeal is only
applicable to multiple proceedings. FACTS:
In this case, there is no need for the trial court to Respondent contends that appeals in special proceedings,
determine an issue which is distinct and separate to each as distinguished from ordinary civil actions cases, are
other. within the exclusive appellate jurisdiction of the Court of
It is sufficient that upon the issuance of the order granting Appeals, since they are not enumerated in Sec. 17 of the
the cancellation of record and change of name, the Judiciary Act, as amended.
Republic filed a notice of appeal. Granting arguendo, that a special proceeding is not a civil
action, it has never been decided that a special proceeding
NOTE: Not all special proceedings cases are multiple is not a civil case.
proceeding cases. There are special proceedings cases
which are merely singular. One of which is this particular On the other hand, it has been held that the term civil case
special proceedings case for cancellation of birth certificate includes special proceedings. Moreover, Sec. 2, Rule 73 of
and correction of an entry in the Birth Certificate pursuant the Rules of Court provides that the rules on ordinary civil
to Rule 108 such as change of name under Rule 103. actions are applicable in special proceedings where they
are not inconsistent with, or when they may serve to
 PRINCIPLES IN SPECIAL supplement the provisions relating to special proceedings.
PROCEEDINGS THAT NEED TO BE 4. (Yung 4th principle to guys)
REMEMBERED:
1. The period to appeal Civil actions today are found in Rules 1-71 and special
2. Not all special proceedings are multiple proceedings are found Rules 72-109 and the Crim Pro are
proceedings cases. found in 110-127; sir wants us to remember that it doesn’t
3. What are the final orders in special proceedings mean to say that the provisions in Civ Pro particularly in
cases which can be appealed via notice and record Rules 1-71 will not be applicable in special proceedings
on appeal; and that is under Sec. 1, Rule 109. cases and as well as in Criminal Procedure in criminal
cases.
Sec. 1. Orders or judgments from which appeals may be
taken. - An interested person may appeal in special There is a particular provision in Special Proceedings rules
proceedings from an order or judgment rendered by a that states As far as practicable, the rules on ordinary civil
Court of First Instance or a Juvenile and Domestic actions shall be applicable in special proceedings.
Relations Court, where such order or judgment:
EXAMPLES:
(a) Allows or disallows a will;
1. The period to appeal
(b) Determines who are the lawful heirs of a deceased 2. The form of pleadings
person, or the distributive share of the estate to which 3. The form of motions
such person is entitled; 4. The Rules on Subpoena
5. The Rules on Court processes
(c) Allows or disallows, in whole or in part, any claim 6. The Rules on Computation of Time
against the estate of a deceased person, or any claim 7. The Rules on Appeal
presented on behalf of the estate in offset to a claim 8. The Rules on Intervention
against it;
Those are applicable while they are in your Rules 1-71
(d) Settles the account of an executor, administrator, which are actually civil action rules; they are applicable in
trustee or guardian; Special Proceedings.
(e) Constitutes, in proceedings relating to the settlement of NOTE: Do not confuse special proceedings with summary
the estate of a deceased person, or the administration of a procedure cases. They are different.
trustee or guardian, a final determination in the lower
court of the rights of the party appealing, except that no SPECIAL SUMMARY
PROCEEDINGS PROCEDURE CASES
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Rules 72-109 1991 Revised Rule on Q: Why?

Summary Procedure
A: Because summary proceedings cases under the Family
e.g Code of the Philippines are considered as final and
executory. Hence, appeal is not a proper remedy.
a. Ejectment Suits
b. All BP 22 cases Therefore, if someone appeals a judgment on certain
regardless of the summary proceedings cases under the Family Code, the
face value of the same should be denied because Summary proceedings
check. cases under the Family Code, once the judgment is issued,
c. Summary becomes automatically final and executory.
Proceeding cases
under the Family Q: What should be the remedy?
Code of the
Philippines. A: According to the SC, the proper remedy would be
- Most of which Certiorari under Rule 65.
could be seen in
Title XI of the CAVEAT!!!: Under Rule 65, there are three special civil
Family Code of the actions. Be categorical which among the three in 65, is it
Philippines.
certiorari, prohibition or mandamus.
- But the case
falling under Art. Q: Should the issue in certiorari be errors of judgment?
41 of the Family
Code is actually a A: Errors of Jurisdiction. Or if not errors of jurisdiction,
case which is issues regarding discretion if there is grave abuse of
considered as a discretion or lack of jurisdiction.
summary
proceedings case. Therefore, the period to file a petition for certiorari under
(Petition for the Rule 65 is within 60 days.
Declaration of
Presumptive Under Rule 64, 30. Under Rule 65, 60.
Death of a missing
spouse) The filing of the appeal then did not toll the running of the
period to file certiorari.

Q: Is Family Code of the Philippines a source of procedural

 REPUBLIC v. NARCEDA
FACTS:
Robert P. Narceda married Marina, who was only 17 years
old at that time. Marina went to Singapore in 1994 and
never returned since. There was never any communication
between them. He tried to look for her, but he could not
find her.
Several years after, one of their friends in Luna, La Union
came home from Singapore and told him that the last time
she saw his wife, she was already living with a
Singaporean husband.
In view of Marina’s absence and Robert’s desire to remarry,
Robert filed a petition for judicial declaration of the
presumptive death and/or absence of Marina.
The RTC granted respondent’s petition.
However, the Office of the Solicitor General opposed and
that is why it filed an appeal on the judgment granting the
petition to declare Marina presumptively dead.
Q: Was the appeal given due course and ultimately
granted?
A: The appeal was dismissed.
laws?
A: Yes. It is not only the Rules of Court.
Another special proceedings case under the Family Code of
the Philippines is for example:
The natural guardian of a child who is not emancipated. A
guardian takes care of the person or the property of the
ward.
Q: Eh pano kung walang property?
A: Eh di the person lang of the ward.
But there are particular wards who are even far richer and
wealthier than their guardians. Like for example, Sarah
Geronimo will be far richer than her parents. Nino Mulach
was far richer than his parents.
Q: What if the ward has real property, the market value of
which is Php 50,000 and higher or even the market value
of the real property is not at least Php 50,000 but it is
income-generating of at least Php 50,000 and above; then
the guardian of the ward must post a bond as a guardian
to protect the property rights of the ward.
If yung mother and father, nag-aaway kung sino ang
magmamanage at mag-aadminister nung property ng
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ward, then you go to court to determine who should be the
guardian of the property or person of the ward; and
whoever shall be chosen should post a bond. The bond is
for the security of the property of the ward.
BACK TO THE TOPIC OF JURISDICTION
Q: Is RECONVEYANCE is really one which is a case
which is incapable of pecuniary estimation or is it really
title to title to or possession to real property or any
interested therein.
NOTE: There are a grave length of cases which says that
it belongs to the species of cases which is title to or
possession of real property or any interest therein.
Before, there is this particular concept that QUIETING
OF TITLE is incapable of pecuniary estimation. That is
already passed gone. Today, it belongs to the species of
cases which is title to or possession of real property or any
interest therein.
As of 2018, JUDICIAL FORECLOSURE OF REAL
ESTATE MORTGAGE is not a case belonging to the
species of cases which is incapable of pecuniary
estimation. It is already considered to be a real action,
meaning it involves title to or possession of real property or
any interest therein.
If it were PARTITION OF REAL PROPERTY, it belongs
to the species of cases which involves title to or possession
of real property or any interest therein.
If it were a PARTITION OF PERSONAL PROPERTY,
(because it is not only real property that may be
partitioned); if in Metro Manila, 400 K and below, MeTC;
more than 400 K, RTC. If outside of Metro Manila, more
than 300 K, RTC; 300K and below, MTC.
RECOVERY OF POSSESSION OF REAL PROPERTY
Q: What court has jurisdiction?
A: It depends upon the assessed value.
Q: Is that the only variable you need to determine which
court has jurisdiction? Don’t you also consider where the
property is located?
A: Yes. It depends upon the assessed value and where the
real property is located.
That is the foundation. If you lay down the correct
foundation, then you get the correct answer.
NOTE: So that you will no longer be get confused, always
use real property, if it were real property. Never use below
so that you will not get confused. Start with 50k and
below, and then there is only one left which should be
above.
WITHIN METRO OUTSIDE
MANILA METRO MANILA
RTC Above 50 K Above 2O K
MTC 50K and below 20K and below
Q: What if in Pateros?
A: Part of Metro Manila
Q: Taguig?
A: Metro Manila
Q: What about Mandaluyong City?
A: Metro Manila
Q: What about Muntinlupa City?
A: Metro Manila
e.g Accion Publiciana cases, same rule.
Q: What about a contract of BOTTOMRY where the value
is 500 K and you want to enforce that. You know the
difference between bottomry and respondentia?
A: If the value is 500K regardless if in Metro Manila or
Outside Manila or regardless of the venue, the RTC has
jurisdiction.
Q: What is bottomry?
A: It is a loan using as collateral the hulk of the ship.
Q: What about RESPONDENTIA?
A: Instead of using the hulk of the ship as collateral for the
loan, the collateral used shall be the cargoes and the goods
in the ship.
Q: What about SPECIFIC PERFORMANCE?
EXAMPLE:
Ms. Perez and Ms. Tamulong entered into a deed of
absolute sale over a real property here in Baguio City. The
seller is Ms. Tamulong and the buyer is Debs for 5 M over
a real property. Debs paid the 5 M to Ms. Tamulong but
Debs did not sign the deed of absolute sale.
A: With respect to cases regarding to specific performance,
it is within the jurisdiction of the RTC.
Q: Why?
A: Because the case involve is incapable of pecuniary
estimation.
Q: But we are talking about real property here, shouldn’t
we go to the ultimate objective test?
A: NO. If we are going to look at the issue between Debs
and Ms. Tamulong, the issue is NOT with respect to title to
real property. The issue is the non-signing of the deed of
conveyance. And that is why it is specific performance.
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Q: What about DELIVERY OF PERSONAL PROPERTY?
EXAMPLE:
Bumili ka ng Shitzu kay Ms. Barawid for 20k pesos. The
prayer is to deliver the two puppies worth 20k pesos
Shitzu puppets.
Q: What is the case? Is it a case involving personal
property?
A: It is a case for specific performance. Therefore, RTC has
the jurisdiction.
Q: What about recovery of memory card worth 5 php?
EXAMPLE:
The husband filed a case for recovery of memory card
against the wife because the memory card was full of you
know what.
A: It is a case for recovery of personal property. Since the
actual value of the property is 5 php, then the MTC has
jurisdiction.
Q: What if it is a recovery of a motor vehicle?
EXAMPLE:
Toyota Hilux worth 1.2 M.
A: Since it is also a recovery of personal property and the
value of the property is 1.2 M, then it is within the
jurisdiction of the RTC.
Q: What if it is a recovery of 10 carabaos worth 20K each?
A: It is still within the jurisdiction of the MTC because it is
worth 200k.
 SETTLEMENT OF ESTATE
There are two types to settle an estate of a decedent.
1. Extrajudicial
2. Judicial
Q: Where do you think would your Law on Succession
come in would respect to its applicability? Extrajudicial
Settlement of Estate or Judicial Settlement of Estate?
A: The law on succession comes into play with respect to
cases involving only the Judicial Settlement of Estate.
Q: What if sir add the qualifying word “strictly applied”?
EXAMPLE:
Magkakapatid sina sir, King and Debs. Namatay yung
parents nila. May iniwan na tatlong real properties.
Walang last will and testament. Pare parehas silang mga
abogado. Sabi nila, magextrajudicial settlement sila eh
masyado silang maalam sa batas, hindi ba nila pwedeng
iapply ang kaalaman nila sa batas kahit hindi judicial
settlement dun sa extrajudicial settlement following what
should be rightfully there distributive share under the laws
on succession in an extrajudicial settlement?
A: Pwede but not as strictly as in judicial settlement
because in judicial settlement of estate, you have to follow
the letter strictly of your Laws on Succession.
Q: Ikaw Mr. Motilla, papayag ka ba sa isang extrajudicial
settlement na kung ikaw ay isang compulsory heir at si
Mr. Nunez at si Mr. Ordinario ang mga kapatid mo na mas
maliit yung share mo kaysa sa kanila?
A: No. So you will still apply the rules on the Law of
Succession. Hindi pwede kasi dapat equal daw sila.
Pero minsan pupwede namang hindi strictly iapply kaya
nga extrajudicial. There is more room para magtawaran.
 REALITY: Magjujudicial settlement lang kayo
kung nag-aaway kayong mga heirs.
Kahit na may last will and testament, kung minsan
magkakasundo yung mga heirs na wag na lang nilang
ipaprobate.
But if we will follow the law, there can only be extrajudicial
settlement if there is no will left by the decedent. But in
reality, even if the will is there but the parties, the heirs
agree to extrajudicially settle, better because judicial
settlement of estate requires much energy. It is expensive
especially the success fees of lawyers who get 10% of the
market value of the estate kung talagang susundin yung
mga acceptance fees, success fees ganerns.
CAVEAT!! Sir is not saying that when we become
lawyers, we will tell our clients in the future na masyadong
magastos ang settlement of estate tapos na kung
magkakasundo naman sila, eh wag na nilang sundin yung
last will and testament ng tatay nila. Siyempre, we’ve
learned in the Law of Succession that it should be the will
of the decedent which must prevail because it is his last
will. That is already a question of Ethics in the future on
our part if we are going to advocate that particular kind of
settlement.
 SETTLEMENT OF ESTATE
There are two types to settle an estate of a decedent.
1. Extrajudicial
2. Judicial
A. ORDINARY
B. SUMMARY
A. TESTATE
- When there is a last will and testament either
notarial or holographic
B. INTESTATE
- There is no last will and testament or there is a
last will and testament but it was not
allowed/disallowed/not admitted to probate.
9|Page

CAVEAT!!! Do not use the word PROBATION. Probation
is in criminal law.
Q: What are the ways in which an estate of a decedent can
be EXTRAJUDICIALLY settled?
A: Yes. Since he is a Philippine citizen, then his will can be
probated here in the Philippines regardless of the
properties’ location. More so, the heirs who have interest
over the estate of the deceased are still citizens of the
Philippines.

A: Q: What is the venue?

1. AGREEMENT THROUGH A PUBLIC A: Any of the RTC for that matter.

INSTRUMENT
3. Husband left his wife, D1,D2,S1,S2. He is an
- Through a public instrument known as an
American resident but a citizen of the Philippines.
extrajudicial settlement.
He left the ff:
Q: If there is only one heir, can that heir extrajudicially a. Savings account worth 150 M- BPI Abanao
settle the estate? b. House and Lot at Suello around 10 M, around
500 square meters with a house constructed
A: Yes thereon.
c. 3 motor vehicles worth 1.2 M each acquisition
2. VIA AN AFFIDAVIT OF SOLE OR SELF- cost. These 3 motor vehicles are in Makati City
ADJUDICATION d. One condo along Ayala Avenue with rights for
2 parking spaces in the condo building which
If there is no last will and testament, there is no issue
parking spaces are included to the cost of the
anyway amongst the party with respect to a real party or a
condo.
personal property or a combination of real and personal
- Kasi kung bibili ka ng condo unit, wala kang
properties, then
parking, ang hirap mo. Bibilhin mo yung parking
3. ORDINARY SUIT FOR PARTITION space. And usually it is equivalent to the value of 1
- But the project of partition must be registered with condo unit.
the Register of Deeds where the property is e. Shares of stocks with the San Miguel
located. Corporation located in Ortigas, Pasig City.

ILLUSTRATION: Q: What probate court has jurisdiction?

A: RTC because whether Manila or outside Metro Manila,

1. Husband died leaving wife, Daughter1 and
Daughter2, Son1 and Son2. the gross value of the estate exceeds 300k php or 400k
php
Husband is an American Citizen but he is a resident of the
Philippines. Q: Where should the settlement of estate take place?

He left a will made here in the Philippines. Wife is from Zamboanga City. D1 is from Cebu. D2 is from
Baler. S 1 is from San Juan. S2 is from Nasugbu,
Q: Can his will be probated here in the Philippines? Batangas.

A: Yes. Q: The venue would be where any of the property forming

Q: Why?
A: A will can be probated here in the Philippines if such
will complies with the formalities of the law of the country
where it was executed.
Anyway, it is only with respect to extrinsic validity but with
respect to intrinsic validity, it is already the National Law
of the decedent that will be applicable.
2. He is an American resident but a Philippine
citizen. He is particularly from Anchorage, Alaska.
He left a will. The properties are in Anchorage
Alaska which is a house and lot, there is also one
in Orlando, Florida, bank account worth 1M USD
and real property and 3 motor vehicles.
Q: Can his will be probated here in the Philippines?
part of the estate is located.
 FERNANDEZ V. MARAVILLA
- There is a suppletory application of the rules of
ordinary civil action in special proceedings. One of
the rules in our ordinary civil action is our rules
on venue. And the rule on venue says that it can
be filed at the proper court where either plaintiff or
the defendant is a resident of at the option of the
plaintiff unless there is an exclusive agreement
between the parties as to the venue for the case
particularly Rule 4 of the Rules of Court.
Q: Shouldn’t we apply that suppletorily?
A: We do not apply Rule 4 of the Rules of Court because
there is an express provision provided under the Rules on
Special Proceedings specifically Rule 73 with respect to
venue on the settlement of estate of the deceased.
10 | P a g e
To wit:
The venue for the settlement of estate of the deceased shall
be where the property forming part of the estate of the
deceased is located. If more than one property in different
locations, the venue shall be where the petition shall be
first filed to the exclusion of others. That is in case of a
non-resident decedent. However, if the decedent is a
resident of the Philippines at the time of his death, the
venue is the place where he last resided.
NOTE: Not where he died but where he last resided.
So, we do not apply suppletorily here the rule on venue in
ordinary civil actions because what is stated under Rule 73
(Spec Pro) is that as far as practicable or if there is no
specific provision in Spec Pro, yes it can be applied
suppletorily. But under Rule 73, there is a specific
provision regarding venue.
If resident of the Philippines at the time of his death, then
settlement of estate shall be filed with the proper court
having jurisdiction at the residence at the time of death of
the decedent.
If not a resident of the Philippines, proper court having
territorial jurisdiction over the property forming part of the
estate, but if the property forming part of the estate is
more than one, in any of the places where the property is
located but the filing of one excludes the filing in other
venues.
Q: Here what would be the court which has jurisdiction?
A: RTC
Q: Can the settlement of estate be filed in Baguio City?
A: Yes because there is BPI Abanao, Baguio and there is
Suello.
Q: What about Makati City? Is it possible?
A: Yes
Q: What about RTC Pasig City?
A: Yes.
Q: If filed in RTC Makati, then that already excludes
Baguio and Pasig.
Q: If filed in Makati, what properties must be included in
the settlement of estate?
A: All properties which form part of the estate of the
decedent.
Q: What do we mean by residence as decided in the case of
Garcia-Fule for purposes of determining venue in
settlement of estate?
A: RESIDENCE means physical abode or the actual place
of residence. It does not mean domicile.
EXAMPLE:
Mr. Mamitag is from Muntinlupa. He was born, raised, and
studied there. Eventually, you went to Baguio but you
have the intention in going back to Muntinlupa City.
Q: Isn’t it that it is domicile if you have the intention to go
back there?
A: Yes. Animus Revertendi. He has the intention of coming
back because he wanted to run as a mayor but he is
actually here in Baguio City.
Q: Where is his physical residence?
A: Baguio City
Q: Where is his political residence or his domicile?
A: Muntinlupa City.
EXAMPLE:
Fevy and Mich wanted to be lawyers in the future. They
studied in Baguio City. They both worked in the DOJ in
Manila but they are from Tayug, Pangasinan and Isabela
respectively. Dun pa rin sila bumoboto because they are
coming from the political clans there.
Since they are working in the DOJ in Manila, they got a
condo unit in Robinsons in front of DOJ.
Q: Where is their physical abode?
A: In Padre Faura in Robinsons fronting DOJ but their
political abode is Tayug and Isabela respectively.
Ganun din sa extrajudicial. If nagfile ng extrajudicial or
magkakaroon ng extrajudicial settlement, only sa last
residence ng decedent and if he is not a resident, then in
any of the places where he left properties. The same rule
like judicial settlement for purposes of venue.
There are common elements among the 3 ways by which
estate of a decedent may be extrajudicially settled.
Q: What are those COMMON REQUISITES AND
ELEMENTS?
A:
CAVEAT!!! Sir don’t want us to use would be when he is
asking us the elements or requisites because it will not
change and it is not future. Therefore, the answer is “is” or
“are”. They are as follows:
1. THE DECEDENT LEFT NO WILL
2. THE DECEDENT LEFT NO DEBTS
Q: When do we know or how do we presume that the
decedent left no debts such as for example funeral
expenses, hospital expenses.
11 | P a g e
A: There is a presumption that the decedent left no debts if
after 2 years from his death, there are no creditors that
would file a claim against the estate.
It is merely a presumption. It is a rebuttable presumption.
In extrajudicial settlement of estate, even if they have been
executed, there are remedies by which they can be set
aside.
3. THE HEIRS ARE ALL OF AGE OR THE MINORS
ARE REPRESENTED BY THEIR GUARDIANS OR
THEIR JUDICIAL OR LEGAL
REPRESENTATIVES DULY AUTHORIZED FOR
THE PURPOSE.
4. THE REQUISITE OF POSTING OF A BOND. THE
BOND SHOULD BE IN CASH.
Q: How much should be the bond?
A: It depends upon the value of the personal properties
forming part of the estate because we do not take into
account in the computation of the bond, the real properties
forming part of the estate because the real properties
themselves shall be the bond.
Here, ang magiging basis would be the 150 M and the 1.2
M since those are personal properties.
And the shares like for example, 50 pesos per share and
she has 1000 shares.
5. THE REGISTRATION IN THE REGISTER OF
DEEDS.
- It should be in a public instrument either a public
instrument known as Extrajudicial Settlement if
more than one heir; or if only one heir, Affidavit of
Self-Adjudication or Sole Adjudication; or in the
partition, the Project of Partition.
- That instrument shall be registered with the
Registry of Deeds where the property or properties
are located.
Q: What do we mean by registration?
A: It would be encumbered in the titles whether original
title or torrens title.
Q: What if there’s no torrens title or original certificate or
transfer certificate or because there is no torrens, it’s not
placed in the Torrens System.
A: It can still be registered with the Register of Deeds
because anyway, there is Tax Declaration.
Q: What if there is no Tax Declaration also?
A: You still have to register it with the registry of deeds.
You just give a copy of the Registry of Deeds.
In practice, if you are a notary public (because not all
lawyers are notaries public), you have to apply for your
commission, which commission is good for two years.
Kung maaga kang nag-apply for a commission immediately
after January this year, it would end December 31, 2020.
6. PUBLICATION OF THE EXTRAJUDICIAL
SETTLEMENT OF ESTATE ONCE FOR THREE
CONSECUTIVE WEEKS IN A NEWSPAPER OF
GENERAL CIRCULATION
Q: In Baguio City, what is a newspaper of general
circulation?
A: Midland Courier.
Q: What about Inquirer?
A: It is a national newspaper of general circulation; while
Midland is a local newspaper of general circulation. So
pupuwede pa rin.
And when we talk about newspaper of general circulation,
it includes Abante or Bandera.
It is offered indiscriminately to the public. Anyone can buy.
If it is White and Blue, it is a newspaper but it is not of
general circulation because it is not offered to the public. It
cannot be bought by the public.
It does not matter if the newspaper is credible or if it is
credible, so long as it is offered INDISCRIMINATELY to the
public such as public transportation.
 HILADO v. CA
FACTS:
Benedicto Hilado died intestate. He was survived by his
wife Julita and his daughter Francisca.
Upon the death of her husband, Julita filed with the RTC a
petition for the settlement of estate of his husband praying
for the issuance of letters of administration in her favor.
Before that, when Julita was asked to file for the list of
properties and liabilities, they discovered that there are
two pending cases against her decedent husband pending
in rtc of Bacolod City wherein his husband was a party to
that case which are collection suits amounting to millions
of pesos.
After that, the RTC assigned her as the administrator of
the estate of his deceased husband. Later on, the plaintiffs
Alfredo Hilado, Lopez Sugar Corporation and First Farmers
Holding Corporation filed with the RTC a
Manifestation/Motion Ex Abundanti Cautela (a motion
with extreme abundance or extreme or abundant caution)
.It is a for a precautionary measure. You are trying to say
to the court uy I have a motion with extreme urgency.
Please take a look the soonest possible time. The plaintiffs
are praying that they be furnished with copies of all
processes and orders pertaining to the intestate
proceedings.
Julita opposed the said manifestation/motion disputing
the personality of petitioners to intervene in the intestate
proceedings of her husband.
12 | P a g e
RTC denied the manifestation or motion on the ground
that petitioners are not interested parties within the
contemplation of the Rules of Court to intervene in the
intestate proceedings. Although they have a legal interest,
the legal interest is merely an expectancy or contingent.
After all, there is a specific rule that has to be followed in
this particular case which is Rule 87 and not 86.
Q: Why?
A: Because the civil case of the wanna be intervenors is
based from torts. It is a civil action which survives inspite
of the death of the decedent.
One civil action which survives the death of the decedent is
a civil action based from tort.
What happened here is that, there are 2 RTC Bacolod
cases.
Civil Case 1- Plaintiff v. Benedicto
- Benedicto died pending Civil Case 1
Civil Case 2 – Plaintiff v. Benedicto
- He died pending Civil Case 2.
Both cases are sourced from torts.
When Julita filed for a petition for settlement of estate and
for the issuance of letters administration, she eventually
filed a list of properties and liabilities. She included in the
list of liabilities, the 2 civil cases pending because they
amount to hundreds of millions of pesos, in anticipation
that just in case in the future, it would turn out to be
successful on the part of the plaintiffs, then at least it is
recorded that the estate has millions owing to plaintiff 1
and plaintiff 2 in these two civil cases in the RTC of
Bacolod City.
So what the plaintiffs did is that they intervened in the
RTC of Manila, they filed a manifestation/motion/ex
abundanti cautela.
Q: Is there intervention allowed in Special Proceedings?
REMEMBER: Suppletory application of the Rules on
Ordinary Civil Actions unless otherwise provided.
A: Intervention is allowed in special proceedings.
Q: When can one intervene?
A: Under Rule 19, one can intervene if he has a legal
interest over the legal outcome of the case, interest in the
success of one, interest in the success of both parties in a
particular case or interest in the distribution and
disposition of the property in the custody of the court.
GENERAL RULE:
Under Rule 19, one can intervene until before judgment.
EXCEPTION:
Jurisprudentially however, if on appeal, if it is to the best
interest of indispensable parties, the SC allowed the
intervention of those indispensable parties even if after
judgment which has not yet attained finality. In short, on
appeal.
NOTE:
One can only intervene if it will not unnecessarily delay the
outcome of the case or the disposition of the case. If the
rights of the intervenor can be protected in another case or
a separate case, intervention will not be allowed.
There is no problem in the fact that these plaintiffs has
legal interest in the outcome of the case. They have an
interest in the distribution and disposition of the
properties in the custody of the court considering that this
is an estate settlement case.
Q: Will it unnecessarily delay the disposition? Would the
right be best protected in another case?
A: Yes. The right would be best protected in another case.
Q: In what case?
A: The pending cases because these are the cases which
survive the death of the decedent.
The SC further added:
Q: What if the source of obligation is not tort but written or
oral contract demandable or contingent? Can they
intervene?
A: If it is based on contract, they can intervene according
to the SC under Rule 86.
The problem is under Rule 87, it says there that if the
decedent dies and he has pending cases and the case is
based from tort and he is a defendant there, let that case
continue. And just in case the plaintiffs there wins, then
that is the only time that they can enter the intestate
proceedings as CREDITORS. They should file their claims
within the statute of non-claims.
Q: Why were they not allowed to intervene?
A: Simply because under Rule 87, there is a specific rule.
REMEMBER: If there is a specific rule, that specific rule
must prevail. Besides, the claims are not material and
direct and not immediate; but merely contingent and
expectant.
Q: Were they allowed? Because there is a prayer that they
be furnished the copies of all processes and orders
pertaining to the intestate proceedings.
A: Yes.
Q: What are the legal remedies available to an excluded
heir or excluded creditor?
13 | P a g e

A: - Kasi diba kung extrajudicial, there is no will. Then,

file a settlement of estate within two years from
1. ANNULMENT OF THE EXTRAJUDICIAL distribution.
SETTLEMENT OF ESTATE
Q: What if there is last will and testament?
Q: On what ground?
A: Then you can file a petition for probate of will.
A: On the ground of extrinsic fraud.
4. GO AFTER THE BOND IF THERE IS A
Q: When we talk about extrinsic fraud, what do we mean
BOND.
by that?
- That is the purpose of the bond which is to protect
A: Fraud committed outside of the court or outside of the the interest for 2 years of the possible excluded
court proceedings. heirs or possible excluded creditors.
- NOTE: The bond is good for 2 years. But after 2
But in this case there is no proceedings being years, it can be withdrawn. It is intended to
extrajudicial. protect the possible excluded heirs.
Q: What then is extrinsic fraud generally?
But if there is no bond because the estate is
EXAMPLE: merely comprised of real properties, then
5. GO AFTER THE REAL PROPERTY
Nagtestigo ka. Nagsisinungaling ka. Dahil sa - Attach the real properties.
pagsisinungaling mo, na-acquit ka, naniwala sayo yung
judge. EXAMPLE:

Q: Is there extrinsic fraud? There is an extrajudicial settlement. D died left wife child 1
and child 2. There is an illegitimate child 1 and illegitimate
A: None. There is intrinsic fraud. child 2 from other woman.

A: It is a fraud that prevents a person from participating in
a particular process. In short, if it is in court, he was not
given his day in court. If in a particular proceeding, he was
not given the opportunity to participate such as an
excluded heir or excluded creditor.
There were 3 real properties. One in Yangco, one in Suello,
and one in Outlook Drive.
Wife got Yangco property, C1 got Suello property and C2
got Outlook Drive property.

The EJS would be registered with the Register of Deeds.

That is why the excluded heir or the excluded creditor can
file an annulment of the extrajudicial settlement on the
ground of extrinsic fraud but everything under the law has
prescriptive period.
Q: What is the prescriptive period?
A: Within 4 years from discovery of the extrinsic fraud.
Q: How do we know that he discovered the extrinsic fraud?
A: Pursuant to Constructive Notice Rule, from the date of
registration with the Register of Deeds.
Pag naregister na yan sa Register of Deeds, it is considered
as having been published.
2. FILE AN ORDINARY CIVIL ACTION TO SETTLE
THE AMOUNT OF DEBT TO BE FILED BY THE
CREDITOR.
The registration is good for 2 years.
They distributed amongst themselves these properties on
July 1, 2012.
Q: Point of reckoning of distribution?
A: Registration with the Register of Deeds para walang
gulangan sa date.
On July 1, 2013, wife sold the property to Stranger 1.
Nalaman ni illegitimate child 1 and 2 na nag-EJS sina
wife, C1 and C2 on September 30, 2013. Natransfer na
yung titulo sa pangalan ni S1.
Walang bond kasi walang property.
Ayaw nilang magfile ng kaso ng settlement of estate. Ayaw
din nilang magfile ng annulment.

Q: Within how many years?
A: 2 years from distribution.
Q: When do we know that it is distributed?
A: Constructive Notice Rule again, the date when the same
was registered with the Register of Deeds.
Q: Can the 2 illegitimate children claim their respective
rights against either the property of C1 or C2?
A: Yes because the registration is good for 2 years.
Q: What if pinasa yan lahat kay S1 na walang kaalam-
alam and S1 is a purchaser for value in good faith?

3. FILE AN AUTOMATIC SETTLEMENT OF ESTATE

14 | P a g e
A: They can because the registration is good for 2 years
because he cannot be considered to be a purchaser in good
faith because the extrajudicial settlement is registered in
the titles.
The dorsal portion is where you include your
encumbrances. Malalaman mo na malinis ang titulo kung
malinis ang dorsal portion. Kung marami yang
encumbrances or annotations, caveat emptor or buyer
beware.
Even if marami yang annotations, kung speculative
investment yan, pwede pa rin.
In Credit Transactions, we said that Real Estate Mortgage
follow the title and the new owner will be bound by the
Real Estate Mortgage because it is annotated there. But if
the REM is not annotated, it is your fault.
Q: Paano kung nabayaran na yung utang pero andun pa
din yung REM?
A: Then you file a quieting of title for the removal of the
cloud because it is not a proceeding, it is not a record, it is
not instrument, it is not a claim but it is an encumbrance
which appears to be valid, but in fact and in truth, not
valid.
Q: What is the purpose of quieting of title?
A: Removal of cloud and the prevention of the casting of
cloud.
6. COMBINATION OF GOING AFTER THE BOND
AND THE REAL PROPERTY
EXAMPLE:
One goes after the bond but it is not enough for his
distributive share. Then, he can attach so much of the real
property or get the real property which is just for the
excluded heir or creditor with respect to the distributive
share or the claim and then get so much of the bond, if
there is a bond.
7. ACCION PUBLICIANA
Q: Within how many years?
A: 10 years from the registration of the settlement with the
Registry of Deeds or pursuant to Constructive Notice Rule.
8. ACTION FOR RESCISSION ON THE GROUND OF
LESION
Q: What is Lesion?
A:
EXAMPLE:
There are three children. Mr. Roca was removed. There are
only two properties but when the father is still alive,
nabigyan naman siya ng mana. Nung nagdivide sila,
nakuha na nila ng full yung sa other 2 children pero Mr.
Roca, may mga previous nang nakuha so hindi na siya
binigyan nung siblings. So kulang so may economic lesion
on the part of Mr. Roca.
Therefore Mr. Roca should only get so much which is due
to complete his distributive shar.
9. ANNULMENT OF TITLE DUE TO THE
REPUDIATION OF THE TRUSTOR IN AN
IMPLIED TRUST
Q: When do we know that there is a trust because trust
can be express or implied?
A: For example, if it is wrongfully registered in the name of
one of the heir. The one who registered the property in his
own name is merely a trustor in favor of the beneficiaries.
So, the beneficiaries can file for the annulment of title
within 10 years based from implied trust.
June 14, 2019
Quiz: June 21, 2019 (Friday)
Bring 40 leaves booklet, expect at least 20 questions
Spouses Benatiro v. Heirs of Cuyos
Spouses Evaristo Cuyos and Agatona Arrogante Cuyos
were blessed with nine (9) children, namely: Francisco,
Victoria, Columba, Lope, Salud, Gloria, Patrocenia,
Numeriano, and Enrique. Gloria filed for a petition for
Letters of Administration, which was opposed by her
brother, Francisco. In a heariung, both parties appeared
and manifested that they had come to an agreement to
settle their case and suggested that the Clerk of Court,
Atty. Andres C. Taneo, be appointed to act as
Commissioner to effect the agreement and to prepare the
project of partition.
Partition is a special civil action. Hence, Jurisdiction
over it depends on the assessed value of the subject
real property or properties taken in whole. If it’s
personal property, then we go to the jurisdictional
amount of P300,000 and Below or Above P300,000
outside Metro Manila.
If it’s the case for partition is a combination of both
real and personal property, there’s no categorical
jurisprudence yet by the Supreme Court as to how
the jurisdictional amount is computed.
In partition, the Court may appoint a commissioner
or a number of commissioners for the actual proposal
for the partition. In this case, it was the Clerk of
Court who was the commissioner.
The Commissioner issued subpoenae supplemented by
telegrams to all the heirs to cause their appearance and
that out of the nine (9) heirs, only Gloria, Salud and
Enrique Cuyos failed to attend. That since some of the
15 | P a g e
heirs present resided outside the province of Cebu, they
decided to go ahead with the scheduled meeting.
The 3 heirs who failed to attend the hearing for the
project of partition are not bound project of partition.
It bears stressing that the purpose of the conference was
for the heirs to arrive at a compromise agreement over the
estate of Evaristo Cuyos. Thus, it was imperative that all
the heirs must be present in the conference and be heard
to afford them the opportunity to protect their interests.
The publication of the settlement of the estate does not
constitute constructive notice to the absent heirs who had
no knowledge or did not take part in the partition because
the same was notice after the fact of execution of the
partition. What matters is whether the heirs were indeed
notified before the compromise agreement was arrived at,
which was not established, and not whether they were
notified of the Commissioner's Report embodying the
alleged agreement afterwards.
Remember that there are ways by which an estate
of the decedent may be extrajudicially settled, and
one of which is through an ordinary action for
partition which is a special civil action, whereby in
that partition case, the heirs can enter into a
compromise agreement on how to partition the
estate of the decedent. And the proposal for that
partition should be registered with the Register of
Deeds where the real properties forming part of the
estate is situated.
But even if the partition is duly published in a
newspaper of general circulation, once a week for
three consecutive weeks, the constructive notice
rule does not apply to those 1) who did not
participate or 2) were not duly notified of the
compromise agreement or 3) who did not
participate and not duly notified. Therefore, the
extrajudicial settlement, by way of the compromise
agreement in a partition case may be annulled. And
in annulment of judgment, there are only two
grounds under the Rules of Court:
1. Lack of Jurisdiction over the subject matter
before estoppel by laches sets in
In this case, since the other 3 heirs were not duly notified
2. Due to extrinsic Fraud
and had not participated in the conference of the partition,
then they were denied due process which is a ground for
3. Lack of Due Process
the annulment of the partition.
Reillo v. San Jose
G.R. No. 166393 June 18, 2009
Some heirs of the decedent extrajudicially settled among
themselves the estate to the exclusion of other heirs. The
other heirs moved for the nullification of the said
settlement on the ground that the settlement was made
without the knowledge and consent of all the other
surviving heirs of the deceased. The RTC annulled the
settlement on the ground that the petitioners
misrepresented themselves when they alleged in the Deed
of Extrajudicial Settlement of Estate Among Heirs with
Waiver of Rights that they are the sole heirs of the
decedent.
The Supreme Court ruled in here that a deed of
extrajudicial partition executed without including some of
the heirs, who had no knowledge of and consent to the
same, is fraudulent and vicious. The deed of settlement
made by petitioners was invalid because it excluded
respondents who were entitled to equal shares in the
subject property. Under the rule, no extrajudicial
settlement shall be binding upon any person who has not
participated therein or had no notice thereof.
Romero v. CA
G.R. No. 188921 April 18, 2012
Petitioners Leo and David, sons of the decedent, discovered
that several Deeds of Sale were registered in the name of
their brother, Vittorio. Petitioners allege that through
fraud, misrepresentation and duress, Vittorio succeeded in
registering the properties in his name, thus, filed a
Complaint for Annulment of Sale, Nullification of Title and
Conveyance of Title with the Regional Trial Court. Private
respondents, Aurora and Vittorio, in their Answer, alleged
that the lots in question were paraphernal properties of
Aurora which she mortgaged, and it was Vittorio who
redeemed them.
Can the probate court, being a court of limited jurisdiction
may pass upon issues on ownership?
The Supreme Court ruled that the probate court may
provisionally pass upon in an intestate or testate
proceeding the question of inclusion in, or exclusion from,
the inventory of a piece of property without prejudice to its
final determination in a separate action.
It being a probate court, it is not a court of general jurisdiction but
it’s only a court of limited jurisdiction. There are only four (4)
important things that it can pass upon during the allowance of the
proceedings or stage of the case. That would be the:
a. Extrinsic validity of the will
b. Testamentary capacity of the testator
c. due execution of the will
d. that the will has been or has complied with the forms and
solemnities of the law.
In this case, the petitioners are questioning the validity of
the sales made by the administrator, an issue that can
only be properly threshed out by the probate court. The
validity of the sales made by Aurora, allegedly orchestrated
by Vittorio, can only be determined by the probate court
which is empowered to identify the nature of the property,
and that has jurisdiction over Aurora’s actions and
disposition as administrator.
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Take Note: Sir Gayya precaution us on the use
of technical terms. In this instance, he took
note of the phrase “Provisionally pass upon”
Remember here that:
a)all of the parties are heirs
b) The purpose of the petition is to include or exclude the
properties
If the Probate Court for that matter determines what
properties must be included or excluded in the estate is
only provisional. If those who are adversely affected by the
decision or resolution of the court with respect to the
inclusion or exclusion of particular property as part of the
estate, finally decides to settle the issue on ownership,
then they may do so in a separate civil action.
Example: In the last will and testament, some properties
are included in the estate of the decedent when in fact they
are not anymore part therefore the will becomes a cloud on
the title of the present owners of such properties. They can
file a case of quieting of title.
Or that the property was erroneously named to the
decedent and was acquired by the heirs, the rightful owner
can file for reconveyance.
Heirs of Ypon v. Ricaforte
G.R. No. 198680 July 8, 2013
Gaudioso Ricaforte executed an affidavit of Self-
Adjudication being the only son of Magdaleno, as
evidenced by live birth certificate, and passport and
transferred the title of the properties to his own name.
Petitioners Ypon filed a complaint for Cancellation of Title
and Reconveyance against Ricaforte.
This is an ordinary civil action case and not special
proceedings case, hence the court is exercising in its
general jurisdiction. Nonetheless, it took the issue of
whether or not the Ricaforte is indeed the son of
Magdaleno.
The Court enumerated the jurisdiction of the probate court
which are:
1. Probate of the will
2. Appoint an administrator
3. Determination of who are the lawful heirs
4. Recognizance of a natural child
5. Declaration of heirship
6. Determination of who is the legal wife
In this case, the case was reconveyance which is an
ordinary civil action. It seeks to protect and enforcement of
a right which is the right to property. In contrast with the
special civil action which establishes a status, as in this
case also, which also seeks to establish that Ricaforte is
the true heir of Magdaleno.
Summary proceedings cases under the family code of the
Philippines, such as petition for the declaration of
presumptive death of a particular spouse, if one spouse
is excited to marry another. Just to reiterate, summary
proceedings are not special proceedings cases because
summary proceedings becomes final and executory once
a decision is rendered by a Regional Trial Court
designated as the Family Court.
But, they partake of the nature of special proceedings
cases.
Q: Is declaration of nullity of marriage a summary
proceedings?
No. it is a special proceedings case because it seeks to
establish a status which is to be not marymore.
Reyes v. Mosqueda
G.R. No. L-45262 July 23, 1990
Dr. Emilio Pascual died intestate. He was survived by his
sister Ursula Pascual and the children of his late sisters.
The heirs filed a special proceeding with the CFI for the
administration of Pascual’s estate. Ursula alleged that Dr.
Pascual executed a donation mortis causa in her favour.
And among those donated properties is one which is also
donated to Ofelia Parungao through a donation inter vivos.
Ursula then executed a deed of absolute sale over the
property allegedly donated also to Parungao which
prompted Parungao to file a case for recovery of possession
over the property.
The Supreme Court ruled that the probate court has
jurisdiction. The questioned order of the Court of First
Instance categorically stated that the exclusion from the
inventory of the estate of the deceased Dr. Emilio D.
Pascual was "without prejudice to its final determination in
a separate action." The provisional character of the
exclusion of the contested properties in the inventory as
stressed in the order is within the jurisdiction of the
probate court.
De Leon v. CA
G.R. No. 128781 August 6, 2002
The Order Including or excluding certain properties
forming part of the estate is an interlocutory order because
it does not settle once and for all the issue of the case. An
order of collation is an interlocutory order.
Agtarap v. Agtarap
G.R No. 177099 June 8, 2011
Joaquin contracted two marriages. In these marriages,
they produced three children each. Joaquin left parcels of
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land. Eduardo filed with the RTC a verified petition for the
judicial settlement of the estate of Joaquin Agtarap and for
the petition for the issuance of letters of administration.
The children of the 2nd marriage filed an opposition on the
petition alleging that the properties sought to be settled are
properties of Joaquin in his 2nd marriage.
I In the dissolution of the conjugal partnership or
communal property whichever is the economic regime
of the spouses, if one of the spouse is already dead,
the determination of what forms part of the estate
and what forms part of the share of the surviving
spouse is determined in the estate proceedings.
The Supreme Court in this case ruled that the trial
court acting as a probate court may provisionally pass
upon questions of ownership. While it is true that the
general rule is that questions of ownership cannot be
passed upon by the trial court, this case comes under the
exception: 1) When the trial court decides on what
properties shall be included or excluded in the estate, 2)
when the interested parties in the case are the heirs, 3)
when the heirs voluntarily submitted the question on
ownership to the probate court, 4) when the rights or
interest of third persons are not affected. In this case, it
falls under the exceptions because the parties in this case
are all heirs of Joaquin.
Opulencia v. CA
GR No. 125835 July 30, 1998
May an administrator who is an heir of the decedent sell a
property forming part of the estate?
The sale is considered valid even without the approval of
the probate court because Opulencia sold the property as
an heir and not as an administrator. The heir has the right
to dispose of his aliquot part of the estate as an owner.
Hereditary rights are already vested in favour of the heir at
the time of death of the decedent hence the heir can
already exercise her right of ownership over her
inheritance.
Caubang vs. Crisologo
G.R. No. 174581 February 4, 2015
Spouses Crisologo obtained two loans from PDCP Bank. As
security for both loans, the spouses mortgaged their
property covered by Transfer Certificate of Title. Despite
several demands made by the bank,the spouses still failed
to pay. PDCP Bank filed a Petition for the Extrajudicial
Foreclosure of the Mortgage. Caubang caused the
publication of the sale of the mortgaged property. Caubang
conducted the auction sale of the mortgaged property, with
the bank as the only bidder. Then, a Certificate of Sale in
favor of the bank was issued. Spouses Crisologo were
surprised to learn that their mortgaged property had
already been sold to the bank. Thus, they filed a Complaint
for Nullity of Extrajudicial Foreclosure.
The Court held that the publication requirement of the
notice of sale was not complied with by petitioner. It ruled
that Oriental Daily Examiner is not a newspaper of general
circulation, as required by law. It was found that Oriental
Daily Examiner is not even on the list of newspapers
accredited to publish legal notices, as recorded in the
Davao RTC’s Office of the Clerk of Court. It also has no
paying subscribers and it would only publish whenever
there are customers. Since there was no proper publication
of the notice of sale, the Spouses Crisologo, as well as the
rest of the general public, were never informed that the
mortgaged property was about to be foreclosed and
auctioned.
In Special Proceedings, cases must be published in
an accredited newspaper.
For Example: Baguio Midland Courier
Take Note: When a person dies, the mortgage
follows the principal property.
Ocampo v. Ocampo
G.R. No. 187879 July 5, 2010
Leonardo and his siblings were the heirs of the decedent.
Five months later, Leonardo died, and was survived by his
wife and his children. The wife Melinda and her child
Dalisay applied for letters of administration to be
appointed as administrators of the estate of the decedent
Ocampo. RTC approved such application then Dalisay
became administrator.
This was opposed by Renato and Erlinda on the ground
that he was not competent to be an administrator. RTC
replaced Dalisay as the administrator and appointed
Erlinda was appointed.
Melinda and Dalisay opposed such appointment of Erlinda
as special administrator on the ground that they should
not be prioritized as an appointment, considering that
according to the list of priority in appointing an
administrator, Erlinda is not a nearest next of Kin. The
nearest next of Kin is the surviving spouse, any of the
surviving children, or any of the principal creditors. In case
of failure of the nearest next of kin or the principal
creditor, the one appointed by the Court.
(MEMORIZE THE LIST OF PERSONS
WHO ARE PRIORITIES IN
SELECTING ADMINISTRATORS)
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Should the list of priorities be determinative if the
appointment is a position for special administrator?
We have a special administrator considering that the
probate court is still determining who should be
appointed as the regular administrator. So once there
is appointment of a regular administrator, the special
administrator must relinquish his rights to the regular
administraton.
In appointing a special administrator, we should always
take into consideration what is beneficial to the estate and
to the beneficiaries of the estate.
Suntay v. Suntay
G.R. No. 183053 June 16, 2010
Emilio I and Isabel are involved in a parricide case where
Isabel filed a parricide case against Emilio I. As a
retaliation, Emilio filed a case for a legal separation case.
to maintain relationship with the grandchildren of
Christina and Federico, they filed a complaint for visitation
rights as requested by the grandchildren. However, the
visitation rights were stopped because they felt anxiety and
stress.
After a few years, Federico adopted the, Isabel, the
illegitimate grandchild of Christina and Federico filed a
petition for the issuance of letters of administration.
Federico opposed this because he alleged that he should
be the one who should be the administrator for being the
surviving spouse of Christina and that the estate involves
conjugal property. Federico then filed a motion to dismiss
against the petition of Isabel.
Federico nominated Emilio III to take his place as the
administrator of the estate of Christina. The RTC
appointed Emilio III while the CA appointed Isabel.
In the 2010 decision, the SC ruled that there should be
joint administrator on the estate of Christina because:
1. Emilio III grew up with Federico and Christina
2. Most of the properties involved were claimed by Federico
and Federico was the one who nominated Emilio III
3. The exclusive properties of Federico and Cristina were
still comingled with the estate
There was a joint administration, it was allowed by the
court especially because both parties have an interest over
the properties forming part of the estate but as to the
second decision the Supreme Court removed Emilio III
considering that he has certain disqualifications rendering
him unfit to be an administrator of the estate. Therefore, if
the disqualifications are tolerated, the estate might be
prejudiced.
June 15, 2019
 VDA. DE CHUA V. CA
FACTS:
Roberto Lim Chua lived out of wedlock with Florita Vallejo.
Roberto died intestate so Vallejo filed a petition for the
declaration of heirship, guardianship over the persons and
properties of minors Robert Rafson and Rudyard Pride
Chua, and the issuance of letters of administration. The
trial court issued an order setting the hearing of the
petition and directed that notice thereof be published in a
newspaper of general circulation in the province of
Maguindanao and Cotabato City and or Davao City.
Q: Where was the petition filed?
A: Cotabato City
Petitioner Antonietta Garcia Vda. De Chua who claimed to
be the surviving spouse of the decedent, filed a motion to
dismiss on the ground of improper venue. She alleged that
at the time of the decedent’s death, Davao City was his
residence, hence, The RTC of Davao City is the proper
forum.
Vallejo then filed a motion for admission of an amended
petition in order that the designation of the case title can
properly and appropriately capture or capsulize in clear
terms the material averments in the body of the pleadings;
thus avoiding any confusion or misconception of the
nature and real intent and purpose of the petition.
Q: What is the title of the original petition?
A: Petition for declaration of heirship, guardianship over
the persons and properties of minors Robert Rafson Alonzo
and Rudyard Pride Alonzo Chua and Issuance of Letters of
Administration.
Q: What was the amended application?
A: In re: Petition for the settlement of the intestate estate of
Roberto Chua, declaration of heirship, guardianship over
the persons and properties of minors robert and rudyard,
all surnamed chua and issuance of letters of
administration.
Q: In the original petition, was it published?
A: Yes.
Q: Where did the RTC of Cotabato ordered the publication
of the original petition?
A: Maguindanao, Cotobato, and Davao.
ISSUE:
Is there a requirement for the republication of the petition?
Q: Isn’t it that one of the jurisdictional facts that must bbe
alleged in the petition for the probate of a will or in case of
judicial settlement of estate by way of intestacy is with
respect to the fact of residency of the decedent at the time
of his death? Why did the SC allowed the relaxation of the
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rules regarding publication with respect to the amended
petition which included this time around the resident at
the time of death of the decedent?
RULING:
NO. This is because the original petition substantially
indicated all the facts required in the petition.
It can be seen in the original petition that the residence at
the time of death of the decedent is Cotabato City, while it
was not the way it is supposed to be phrased this way,
EXAMPLE:
The decedent was a resident of Cotabato City at the time of
his death.
Nonetheless, immersed in the original petition are
allegations alluding to the fact that the decedent is a
resident of Cotabato City, and therefore there is no need
for republication.
However, if in the original petition there were no phrases
alluding to the residency of the decedent at the time of his
death, then there must be republication.
 VDA. DE PEREZ V. TOLETE
FACTS:
Dr. Jose Cunanan and wife Dr. Evelyn Perez-Cunanan
became American citizens and established their medical
practice in the US.
Later on, the husband executed a will and which he stated
that when he dies, he is bequeathing to his wife all his
properties in the US and in the Philippines. But in the
event that he survived his wife, all his properties will be
given to his children and grandchildren. He then appointed
his wife as the executor and Dr. Rafael Cunanan as
substitute executor.
Q: What if both of them dies at the same time, what is the
presumption in the last will and testament? If both of them
died at the same time, there is a presumption that who
died a few seconds before or after?
A: The husband died a few seconds before.
Dr. Evelyn Cunanan then executed her last will and
testament containing the same provisions.
On January 9, 1982, Dr. Cunanan and his entire family
perished when they were trapped by fire that gutted their
home.
Thereafter, Dr. Rafael Cunanan filed with the Surrogate
Court of New York two separate proceedings for the
probate of the estate of the spouses Cunanan. Letters
testamentary were issued in his favor.
Salud Teodoro Perez, Mother of Dr. Evelyn Cunanan filed
with the RTC of Bulacan a reprobate of the two probate
proceedings in New York. She also prayed that she be
appointed Administrator of the estate particularly a farm
in Bulacan. The RTC granted his motion to be declared as
administrator.
NOTE: There were a number of times that the RTC wants
to dismiss the probate proceedings but everytime Salud
promise that she will comply with the requirements for the
reprobate of the will, it was allowed by the RTC to
continue.
Through their counsel Rafael Cunanan, Sr., manifested
that Salud has deliberately excluded the heirs of Jose
Cunanan. Salud is persistent in alleging that she is the
sole surviving heir of Dr. Evelyn but she has excluded the
heirs of Jose Cunanan, to name a few are Ignacio, Felipe
and Priscilla.
Salud counters as per the prior admission in probate of
said two wills of the spouses, they have no interest in the
estate of the spouses and that being complete strangers to
this controversy, Salud asked that the court should
disregard their manifestation.
One of the defects that the party of Cunanan Sr.
interposed in this case is the lack of publication and notice
as to them.
The RTC ruled to disallow the reprobate of the wills
considering that the exclusion of the heirs resulted to them
not being notified. The failure of Salud to prove the state of
New York’s law as to the allowance and formalities of the
will.
ISSUES:
1. WON the publication or notice is required
2. WON Salud was able to substantiate the existence
of New York Law
RULING:
1. As per the rules on special proceedings, the
reprobate of the will, once filed is still subject to
the requisite of publication as if it was originally
filed for probate.
Meaning that any heir that can be determined under
the Philippine Law must still be entitled to notice as to
the existence of the initiation of the reprobate
proceedings.
2. The SC ruled to admit those pieces of evidence and
this was actually remanded back to the probate
court for the continuation of the proceedings as in
the motion for reconsideration, Salud was able to
present certifications from the Secretary of the
state of New York and a certified decree as to the
admission of the wills to probate.
The SC had the occasion to discuss that in the
reprobate of the wills initially probated in foreign
jurisdiction, the following requisites must concur:
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1. The due execution of the will in accordance with
the foreign laws
2. The testator has his domicile in the foreign
country and not in the Philippines
3. The will has been admitted to probate in such
country
4. The fact that the foreign tribunal is a probate
court, and
5. The laws of a foreign country on procedure and
allowance of wills
 CONCLUSION:
The SC ultimately ruled that the certifications and
evidences presented by Salud be accepted and the
proceedings were remanded back to the probate court to
allow petitioner reasonable time within which to submit
evidence needed for the joint probate of the wills of the
Cunanan spouses and see to it that the brothers and
sisters of Dr. Jose F. Cunanan are given all notices and
copies of all pleadings pertinent to the probate
proceedings.
 VDA. DE MANALO v. CA
FACTS:
Troadio Manalo died intestate leaving his wife, Pilar S.
Manalo, and his eleven children who are all of legal age.
Troadio Manalo left several real properties located in
Manila and in the province of Tarlac.
The respondents in this case who are eight of the surviving
children of the decedent filed a petition with the Regional
Trial Court of Manila of the judicial settlement of the estate
of their late father, and for the appointment of their
brother, Romeo Manalo, as the estate’s administrator.
Vda. De Manalo opposed alleging that the petition for
judicial settlement was actually one of an ordinary civil
action and not a special proceeding since it failed to
establish one of the condition precedent before the filing of
petition which is the members of the family must actually
come to an agreement first before filing the petition.
ISSUE:
Is the petition for issuance of letters of administration,
settlement and distribution of estate filed by the
respondents with the RTC in the nature of special
proceedings?
RULING:
YES. It is a fundamental rule that, in the determination of
the nature of an action or proceeding, the averments and
the character of the relief sought in the complaint, or
petition, as in the case at bar, shall be controlling. A
careful scrutiny of the Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estate in
SP. PROC. No. 92-63626 belies herein petitioners' claim
that the same is in the nature of an ordinary civil action.
The said petition contains sufficient jurisdictional facts
required in a petition for the settlement of estate of a
deceased person such as the fact of death of the late
Troadio Manalo on February 14, 1992, as well as his
residence in the City of Manila at the time of his said
death. The fact of death of the decedent and of his
residence within the country are foundation facts upon
which all the subsequent proceedings in the
administration of the estate rest.
The petition in SP. PROC. No. 92-63626 also contains an
enumeration of the names of his legal heirs including a
tentative list of the properties left by the deceased which
are sought to be settled in the probate proceedings. In
addition, the reliefs prayed for in the said petition leave no
room for doubt as regard the intention of the petitioners
therein (private respondents herein) to seek judicial
settlement of the estate of their deceased father.
It is our view that herein petitioners may not be allowed to
defeat the purpose of the essentially valid petition for the
settlement of the estate of the late Troadio Manalo by
raising matters that are irrelevant and immaterial to the
said petition.
The Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC. No. 92-
63626 is a special proceeding and, as such, it is a remedy
whereby the petitioners therein seek to establish a status,
a right, or a particular fact. The petitioners therein (private
respondents herein) merely seek to establish the fact of
death of their father and subsequently to be duly
recognized as among the heirs of the said deceased so that
they can validly exercise their right to participate in the
settlement and liquidation of the estate of the decedent
consistent with the limited and special jurisdiction of the
probate court.
SIR:
So, the better issue therefore goes to the Law on the
Pleadings because there appears to be an issue that crack
up because of the phrases in the pleadings, the averments
and allegations in the pleadings.
And if we are going to look in the allegations and the
averments in the pleadings, particularly the petition, it
would support the conclusion that the particular petition
is one for settlement of estate and not an ordinary civil
action.
 RIOFERIO v. CA
FACTS:
Alfonso P. Orfinada, Jr. died without a will in Angeles City
leaving several personal and real properties located in
Angeles City, Dagupan City and Kalookan City.
He also left a widow, respondent Esperanza P. Orfinada,
and with whom he had seven children who are the herein
21 | P a g e
respondents. The demise of the decedent left in mourning
his paramour and their children.
Alfonso James and Lourdes Orfinada discovered that
petitioner Teodora Rioferio and her children executed an
Extrajudicial Settlement of Estate of a Deceased Person
with Quitclaim involving the properties of the estate of the
decedent located in Dagupan City and that accordingly,
the Registry of Deeds in Dagupan issued Certificates of
Titles in favor of petitioners. Respondents also found out
that petitioners were able to obtain a loan of P700,000.00
from the Rural Bank of Mangaldan Inc. by executing a Real
Estate Mortgage over the properties subject of the extra-
judicial settlement.
Respondent Alfonso Clyde P. Orfinada III filed a Petition for
Letters of Administration. Respondents filed a Complaint
for the Annulment/Rescission of Extra Judicial Settlement
of Estate of a Deceased Person with Quitclaim, Real Estate
Mortgage and Cancellation of Transfer Certificate of Titles
and Other Related Documents with Damages against
petitioners, the Rural Bank of Mangaldan, Inc. and the
Register of Deeds of Dagupan City.
One of the defenses interposed by Teodora was that they
do not possess the legal standing in order to initiate said
action. Teodora used a provision in the Rules of Court
wherein only the executor/administrator as appointed has
the legal standing to bring about suits in behalf of the
estate.
ISSUE:
WON Esperanza has the legal personality to file despite the
provision under the Rules of Court.
RULING:
YES.
Such particular provision of the Rules of Court
presupposes that there is already an administrator or
executor appointed for purposes of administering and
managing the estate.
Pending the filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in behalf
of the estate of the decedent in accordance with the
provision of Article 777 of the New Civil Code that (t)he
rights to succession are transmitted from the moment of
the death of the decedent.
Even if administration proceedings have already been
commenced, the heirs may still bring the suit if an
administrator has not yet been appointed. This is the
proper modality despite the total lack of advertence to the
heirs in the rules on party representation, namely Section
3, Rule 3 and Section 2, Rule 87of the Rules of Court. In
fact, in the case of Gochan v. Young, this Court
recognized the legal standing of the heirs to represent the
rights and properties of the decedent under administration
pending the appointment of an administrator. Thus: The
above-quoted rules, while permitting an executor or
administrator to represent or to bring suits on behalf of the
deceased, do not prohibit the heirs from representing the
deceased. These rules are easily applicable to cases in
which an administrator has already been appointed. But
no rule categorically addresses the situation in which
special proceedings for the settlement of an estate have
already been instituted, yet no administrator has been
appointed.
GENERAL RULE:
If there is an appointed administrator or executor, an heir
does not have the legal standing to institute for or on
behalf of the estate, any proceeding, no matter how noble
the intention of the heir is.
EXCEPTIONS:
1. If the executor or administrator is unwilling or
refuses to bring suit; and
2. When the administrator is alleged to have
participated in the act complained of and he is
made a party defendant.
3. When there is no appointed administrator
Q: In this case, what is the applicable exception?
A: The third one wherein there is no appointed
administrator yet.
 GARCIA-FULE v. CA
FACTS:
Virginia G. Fule filed with the CFI of Laguna a petition for
letters of administration alleging, inter alia, "that on April
26, 1973, Amado G. Garcia, a property owner of Calamba,
Laguna, died intestate in the City of Manila, leaving real
estate and personal properties in Calamba, Laguna, and in
other places, within the jurisdiction of the Honorable
Court." At the same time, she moved ex parte for her
appointment as special administratrix over the estate
which was granted.
A motion for reconsideration was filed by Preciosa B.
Garcia on May 8, 1973, contending that the order
appointing Virginia G. Fule as special administratrix was
issued without jurisdiction, since no notice of the petition
for letters of administration has been served upon all
persons interested in the estate. She also alleged that she
should be preferred since she is the surviving spouse of
Amado G. Garcia and that Virginia G. Fule is a debtor of
the estate of Amado G. Garcia. Therefore, Preciosa B.
Garcia prayed that she be appointed special administratrix
of the estate of Amado G. Garcia, in lieu of Virginia G.
Fule, and as regular administratrix after due hearing.
During the hearing of the case, Virginia G. Fule presented
the death certificate of Amado G. Garcia showing that his
residence at the time of his death was Quezon City. On her
part, Preciosa B. Garcia presented the residence certificate
of the decedent for 1973 showing that three months before
22 | P a g e
his death his residence was in Quezon City. Virginia G.
Fule also testified that Amado G. Garcia was residing in
Calamba, Laguna at the time of his death, and that he was
a delegate to the 1971 Constitutional Convention for the
first district of Laguna.
Later on, Preciosa B. Garcia a petition for letters of
administration before the Court of First Instance of Rizal,
Quezon City Branch, docketed as Sp. Proc. No. Q-19738,
over the same intestate estate of Amado G. Garcia.
ISSUE:
Which, between Calamba, Laguna and Quezon City, is the
proper venue in this case.
RULING:
The Court ruled that Quezon City is the proper venue for
the petition for letters administration in this case.
Section 1, Rule 73 of the Revised Rules of Court provides:
"If the decedent is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted, and
his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, x x
x.”
In the application of venue statutes and rules — Section
1, Rule 73 of the Revised Rules of Court is of such
nature — residence rather than domicile is the significant
factor. RESIDENCE simply requires bodily presence as
an inhabitant in a given place, while domicile requires
bodily presence in that place and also an intention to make
it one's domicile. No particular length of time of residence
is required though; however, the residence must be more
than temporary.
As it is, the death certificate of Amado G. Garcia, which
was presented in evidence by Virginia G. Fule herself and
also by Preciosa B. Garcia, shows that his last place of
residence was at 11 Carmel Avenue, Carmel Subdivision,
Quezon City. A death certificate is admissible to prove the
residence of the decedent at the time of his death. Thus,
the instant case was properly assumed by and transferred
to Quezon City and that it is in the interest of justice and
avoidance of needless delay that the Quezon City court's
exercise of jurisdiction over the settlement of the estate of
the deceased Amado G. Garcia and the appointment of
special administratrix over the latter's estate be approved
and authorized and the Court of First Instance of Laguna
be disauthorized from continuing with the case and
instead be required to transfer all the records thereof to
the Court of First Instance of Quezon City for the
continuation of the proceedings.
 HEIRS OF PEDRO ESCANLAR v. CA
FACTS:
Spouses Guillermo Nombre and Victoriana Cari-an, the
original owner of the Two parcels of land subject of the
case, died without issue.
Gregorio Cari-an, the nephew of Victoria was declared as
Victoriana’s heir in the estate proceedings for Nombre and
Victoria but After Gregorio died, he was survived by his
wife and children.
Gregorio Cari-an’s heirs, (collectively known private
respondents Cari-an)
 executed a Deed of Sale of Rights, Interests and
Participation IN FAVOR OF
 Pedro Escanlar and Francisco Holgado
 They further stipulated that “this Contract of Sale
of rights, interests and participations shall become
effective only upon the approval by the Honorable
Court of First Instance of Negros Occidental,
Branch VI-Himamaylan - (this stipulation is in the
issue in this case)
Later on, the buyer(petitioner) failed to pay the stipulated
balance of the agreed purchase price.
Private respondent Cari-an
 Initiated a probate proceedings of Nombre and
Cari-an estate And
 move for the approval of sale of their rights,
interests and participation to the settlement of the
estate of Nombre and Cari-an in favor of spouses
Ney Sarrosa Chua and Paquito Chua.
Petitioner (Escanlar and Holgado)
 Moved to intervene the said proceeding as a buyer
of the rights, interests and participation of the
Private respondent Cari-ans.
PROBATE COURT
 Approved the sale of the rights and interest of the
Private respondent Cari-an
Private respondents Cari-an
 instituted this case for cancellation of sale against
petitioners (Escanlar and Holgado) alleging that
 their failure to pay the balance of the purchase
price and thus cause the cancellation of the
contract as stipulated in the same.
Petitioners (Escanlar and Holgado) in their answer they
alleged that:
 having been to fully paid
23 | P a g e
 Private respondent had no right to resell the
subject lots;
 that the Chuas were purchasers in bad faith;
 and that the court approval of the sale to the
Chuas was subject to their existing claim over said
properties
Subsequently, petitioners also sold their rights and
interests and latter turned over possession in the subject
parcels of land to Edwin Jayme
PROBATE COURT
 approved the sale executed by the private
respondent Cari-an.
 This is however with no prejudice to the rights and
claim of interested person which can be ventilated
in other proceeding or ordinary civil action.
 Directed the issuance of title in favour of the Ney
Sarrosa Chua and Paquito Chua.
Subsequently,
Petitioners (Escanlar and Holgado)
 alleged that the Cari-ans conspired with the Chuas
when they executed the second sale and that the
latter sale is illegal and of no effect.
Respondents Chua countered that they did not know of
the earlier sale of one-half portion of the subject lots to
Escanlar and Holgado.
Meanwhile,
Regional Trial Court of Himamaylan which took
cognizance of Special Proceeding for Intestate Estate of
Guillermo Nombre and Victoriana Cari-an
 probate court concluded that since all the
properties of the estate were disposed of or sold by
the declared heirs of both spouses, the case is
considered terminated and the intestate estate of
Guillermo Nombre and Victoriana Cari-an is
closed.
Declaring the following contracts null and void and of
no effect:
a) The Deed of Sale in favor of the defendants Pedro
Escanlar and Francisco Holgado
b) The Deed of Sale executed by the defendants in favor of
the fourth-party defendants, Dr. Edwin Jayme and Elisa
Tan Jayme
Petitioner elevated the case to CA but
Court of appeals affirmed the decision of the RTC
- An MR was filed by the petitioner but was denied
by the CA
ISSUE: Is the deed of sale null and void for not having
been approved by the probate court.
RULING:
In the instant case, the Deed of Sale, complying as it does
with the essential requisites of contract, and thus a valid
one. However, it did not bear the stamp of approval of the
court. The contract’s validity was not affected for the lack
of approval of such court.
This Contract of Sale of rights, interests and participations
shall become effective only upon the approval by the
Honorable Court . . .” In other words, only the effectivity
and not the validity of the contract is affected.
Then, too, petitioners are correct in saying that the need
for approval by the probate court exists only where specific
properties of the estate are sold and not when only ideal
and indivisible shares of an heir are disposed of.
It is within the jurisdiction of the probate court to approve
the sale of properties of a deceased person by his
prospective heirs before final adjudication.
It is settled that court approval is necessary for the validity
of any disposition of the decedent’s estate. However,
reference to judicial approval cannot adversely affect the
substantive rights of the heirs to dispose of their ideal
share in the co-heirship and/or co-ownership among the
heirs. It must be recalled that during the period of
indivision of a decedent’s estate, each heir, being a co-
owner, has full ownership of his part and may therefore
alienate it. But the effect of the alienation with respect to
the co-owners shall be limited to the portion which may be
allotted to him in the division upon the termination of the
co-ownership.
From the foregoing, it is clear that hereditary rights in an
estate can be validly sold without need of court approval
and that when private respondents Cari-an sold their
rights, interests and participation in the subject property,
they could legally sell the same without the approval of the
probate court.
 CONCLUSION:
The SC ruled in this case that the hereditary rights of an
heir is not per se a part of the properties’ compromising of
the estate of the decedent. However, upon the death of the
decedent by virtue of hereditary succession, what is
actually inherited is the aliquot share of the heir in the
estate of the decedent.
In applying this in the facts of this case, what is actually
sold by Gregorio’s heirs is actually their aliquot share in
the estate which is represented by the 2 parcels of land at
issue in this case.
The SC held that the heirs of Gregorio are validly
exercising their rights as an heir since as an heir, he
24 | P a g e
becomes the owner thereof, albeit only his aliquot share in
the estate of the decedent.
 PASTOR JR. v. CA
FACTS:
Alvaro Pastor, Sr. is a Spanish subject who died in Cebu
City on June 5, 1966 and was survived by his Spanish wife
Sofia Bossio who also died on October 21, 1966. They have
two legitimate children Alvaro Pastor, Jr. and Sofia Pastor
de Midgely and an illegitimate child, not natural, by the
name of Lewellyn Barlito Quemada.
Pastor Jr. is a Philippine citizen, having been naturalized
in 1936 while Sofia remains to be Spanish. QUEMADA is a
Filipino, following his mother’s citizenship.
On November 13, 1970, Quemada filed a petition for the
probate and allowance of an alleged holographic will of
PASTOR, SR. with the CFI of Cebu. The will contained only
one testamentary disposition: a legacy in favor of Quemada
consisting of 30% of PASTOR, SR.'s 42% share in the
operation by Atlas Consolidated Mining and Development
Corporation (ATLAS) of some mining claims in Pina-Barot,
Cebu.
During the settlement proceeding of the estate of Alvaro
Pastor, Sr. Quemada was appointed as the special
administrator. In accordance with the powers vested upon
him as the special administrator, he initiated a case for
reconveyance of the properties currently in the possession
of Alvaro Jr. and Sofia, the two legitimate children.
Pastor Jr. and his sister Sofia filed their opposition to the
petition for probate and the order appointing Quemada as
special administrator.
However, the probate court issued an order allowing the
will to probate.
CA affirmed the decision. SC dismissed the petition and
remanded the same to the probate court.
After 2 years, Quemada filed pleading after pleading asking
for payment of his legacy and seizure of the properties
subject of said legacy.
Pastor Jr. and Sofia opposed these pleadings on the
ground of pendency of the reconveyance suit with another
branch of the Cebu Court of First Instance.
While the reconveyance suit was still being litigated, the
probate court issued the Order of Execution and
Garnishment, resolving the question of ownership of the
royalties payable by ATLAS and ruling in effect that the
legacy to Quemada was not inofficious.
The order being "immediately executory", Quemada
succeeded in obtaining a Writ of Execution and
Garnishment.
The Court of Appeals denied motion for reconsideration
filed by Pastor Jr.
ISSUE:
Is the writ of execution ordered by the probate court
proper?
GENERAL RULE:
Probate courts do not have the power to issue writs of
execution anyway in all special proceedings cases. What is
there to execute? It is not a money judgment. It is not a
specific performance judgment.
RULING:
NO. It is not proper.
GENERAL RULE:
Probate courts cannot issue writs of execution.
EXCEPTIONS:
The probate court may issue execution:
1. To satisfy debts of the estate out of the
contributive shares of devisees, legatees and heirs
in possession of the decedent's assets (Sec. 6. Rule
88),
- Because heirs are not liable for the debts of the
estate. The only time that they can be held liable
for the debts of the estate is if they are in
possession of particular properties forming part of
the estate and they have to contribute for the
payment of the debts of the estate.
2. To enforce payment of the expenses of partition
(Sec. 3, Rule 90), and
3. To satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule
142) may mean, under the rule of inclusio unius
est exclusion alterius, that those are the only
instances when it can issue a writ of execution.
The assailed order of execution was unauthorized, having
been issued purportedly under Rule 88, Section 6 of the
Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees,
legatees, or heirs have been in possession. — Where
devisees, legatees, or heirs have entered into possession of
portions of the estate before the debts and expenses have
been settled and paid and have become liable to contribute
for the payment of such debts and expenses, the court
having jurisdiction of the estate may, by order for that
purpose, after hearing, settle the amount of their several
liabilities, and order how much and in what manner each
person shall contribute, and may issue execution as
circumstances require.
A legacy is not a debt of the estate; indeed, legatees are
among those against whom execution is authorized to be
issued.
 VDA. DE ALBERTO v. CA
FACTS:
25 | P a g e
This case originated from a complaint for acknowledgment
and partition filed with the then CFI of Manila by Antonio
J. Alberto, Jr., a minor, 18 years of age, assisted by his
mother, Andrea Jongco, as his natural guardian, against
the herein petitioners.
In the said Complaint, private respondent alleged, that in
1941 his alleged father, Antonio C. Alberto, and his
mother, Andrea Jongco, lived together as husband and
wife and as a result of which, he was born on September
10, 1942. During the time that his alleged father and
mother lived together as husband and wife and up to the
time of his birth, both were single and had no legal
impediment to marry each other. After his birth, his father
and mother continued living together as husband and wife,
his father supporting them and introducing him to the
public as his natural child.
On or about the year 1944, his father and mother
separated, and subsequently, his father married herein
petitioner Natividad del Rosario and as a result of the
marriage, two children were born. Although his father was
separated from his mother, he continued to support him
and recognized him as his own child.
In 1949, his father died, and without notice to him,
petitioner Natividad del Rosario Vda. de Alberto, on July
17, 1949, instituted before the the CFI of Manila an
intestate proceedings for the estate of his deceased father.
In the said intestate proceedings, petitioners deliberately
omitted private respondent as one of the heirs and for this
reason they succeeded in having the properties of his
deceased father adjudicated and partitioned among
themselves.
Private respondent now claims that as a natural child of
his father, he is entitled to at least P18,000.00 and he had
absolutely no previous knowledge of the intestate
proceedings and came to know about it only recently and
thereupon made a demand from the petitioners who
refused to give him his share. Accordingly, he prays that
the petitioners be ordered to acknowledge him as the
natural child of Antonio C. Alberto; that his one-fourth
share be turned over to him; and that petitioners be
sentenced to pay him the sum of P5,000.00 as attorney's
fee and the cost of suit.
Petitioners filed a Motion to Dismiss on the grounds that
(1) the cause of action is barred by prior judgment; and
(2) that the cause of action is also barred by the statute of
limitation.
The trial court issued an Order denying the Motion to
Dismiss and rendered a decision in favor of the petitioners.
The Court of Appeals reversed such judgment declaring
plaintiff Antonio J. Alberto, Jr. as an acknowledged natural
child of the deceased Antonio C. Alberto and declared said
plaintiff the owner pro indiviso of one-fifth of the hereditary
estate of Antonio C. Alberto and ordered the defendants to
deliver to plaintiff Antonio J. Alberto, Jr., his one-fifth
share in said estate, subject to the usufructuary rights of
defendants Natividad del Rosario Vda. de Alberto pursuant
to Articles 834 of the Old Civil Code, and to pay the costs
of suit.
ISSUE:
Is private respondent’s cause of action barred by prior
judgment and by statute of limitations?
RULING:
Yes.
This Court has invariably ruled that insolvency
proceedings and settlement of a decedent's estate are both
proceedings in rem which are binding against the whole
world. All persons having interest in the subject matter
involved, whether they were notified or not, are equally
bound (Philippine Savings Bank vs. Lantin,) The court
acquires jurisdiction over all persons interested, through
the publication of the notice prescribed and any order that
may be entered therein is binding against all of them
(Ramon vs. Ortuzar)
It was ruled further that a final order of distribution of the
estate of a deceased person vests the title to the land of the
estate in the distributees; and that the only instance
where a party interested in a probate proceeding
may have a final liquidation set aside is when
he is left out by reason of circumstances beyond
his control or through mistake or inadvertence
not imputable to negligence. Even then, the better
practice to secure relief is reopening of the same case by
proper motion within the reglementary period, instead of
an independent action, the effect of which, if successful,
would be, as in the instant case, for another court or judge
to throw out a decision or order already final and executed
and reshuffle properties long ago distributed and disposed
of.
What happened here is that there was already a liquidation
and distribution of the estate of the decedent. And when
we talk about liquidation and distribution of the estate of
the decedent, it is already in the administration stage. The
administration stage in a probate proceedings case is the
culminating stage in a probate proceedings case.
Liquidation is the act of determining what is left of the
assets deducting the liabilities so that whatever is left as
part of the Net Estate of the decedent shall be distributed
in accordance with the Laws on Succession.
If it were probate, giving preference to the testamentary
heirs. And when we talk about testamentary heirs, the
legatees and the devisees which shares of the testamentary
heirs should not be infringe upon the legitime of the
compulsory heirs.
 RALLA v. UNTALAN
FACTS:
In 1959, Rosendo Ralla, a widower, filed a petition for the
probate of his own will, as a special proceeding, before the
CFI Albay.
In his will he left his entire estate to his son, petitioner
Pablo, leaving nothing to his other son, Pedro.
26 | P a g e
In the same year, Pedro Ralla filed a civil action for the
partition of the estate of their mother, Paz Escarella.
Pablo Ralla filed a motion to dismiss the petition for
probate on the ground that he was no longer interested in
the allowance of the will of his late father, for its probate
would no longer be beneficial and advantageous to him.
This motion was denied, and the denial was denied by the
Court of Appeals with a conclusion that petitioner Pablo
stood to gain if the testate proceedings were to be
dismissed because then he would not be compelled to
submit for inclusion in the inventory of the estate of
Rosendo’s 149 parcels of land from which he alone had
been collecting rentals and receiving income, to the
exclusion and prejudice of his brother, Pedro.
Meanwhile, the brothers agreed to compromise in a civil
action for partition case. Then, they entered into a project
of partition, which was approved by the lower court,
whereby sixty- three parcels of land, apparently forming
the estate of their deceased mother, Paz Escarella, were
amicably divided between the two of them.
Years later, Joaquin Chancoco, brother-in- law of Pablo
filed a petition for the probate of the same will of Rosendo
on the ground that the decedent owed him. This petition
for probate was granted.
However, in taking possession of the properties belonging
to the estate of Rosendo Ralla, Teodorico Almine also took
possession of the sixty-three parcels of land covered by the
project of partition mentioned earlier.
Consequently, the heirs of Pedro Ralla moved to exclude
from the estate of Rosendo the aforesaid parcels of land.
In an order, respondent Judge Untalan initially ruled that
the sixty-three parcels of land should be included in the
proceedings for the settlement of the estate of Rosendo
Ralla. But Judge Untalan reconsidered it. On his Order, he
stated that the Project of Partition should, therefore, be
respected and upheld. Hence, the sixty-three (63) parcels
referred to therein should be excluded from the probate
proceedings and, likewise from the administration of
Special Administrator Teodorico Almine, Jr.
On appeal, the in-laws of Pablo interposed that no
partition shall be executed without having the will of the
testator being probated.
ISSUE:
WON it was proper for the probate court to exclude the
said 63 parcels of land forming part of the estate of Paz
Escarella.
RULING:
The exclusion was proper considering that there were
actually two distinct proceedings in consideration here.
One is the civil action for partition proceedings which is a
special civil action and the other one is a special
proceedings for probate of a will.
Furthermore, the rule that no partition shall be executed
without the probate of a will presupposes that the
properties sought to be partitioned is actually the same
properties pertained for reference within the will of the
testator.
The SC has found that the 63 parcels of land of Paz
Escarella, as well as the properties covered by the will of
Rosendo Ralla are actually separate and distinct
properties.
In fine, the partition in the special civil action is valid and
binding upon the petitioner and Pedro Ralla, as well as
upon their heirs, especially as this was accompanied by
delivery of possession to them of their respective shares in
the inheritance from their mother, the late Paz Escarella.
They are duty bound to respect the division agreed upon
by them and embodied in the document of partition. Thus,
the petitioner could no longer question the exclusion of the
lands subject of the partition from the proceedings for the
settlement of the estate of Rosendo Ralla.
Q: What are the two general ways to settle an estate?
A:
1. EXTRAJUDICIAL SETTLEMENT OF ESTATE
Q: What are the ways by which an estate may be
extrajudicially settled?
A:
a. Through a project of partition in an ordinary civil
action
b. Through a public instrument for the extrajudicial
settlement of estate if there is more than one heir
c. Through an affidavit of self-adjudication if there is
only one heir.
Q: What are the common denominators or elements
amongst these three ways of settling extrajudicially an
estate?
A:
a. The decedent left no debts
- There is a presumption that the decedent left no
debts if there is no creditor who institutes a
petition for settlement of estate within the period
of 2 years from the time of the death of the
testator.
b. The decedent left no will either holographic or
notarial
c. All the heirs are of age
-If there is a minor, they are represented by their
guardians.
d. The extrajudicial settlement must be written in
a public instrument
e. The heirs are going to post a bond.
Q: Bond is sine qua non only if?
A: There are personal properties forming part of the estate
because the bond should be equivalent to the value of the
personal properties.
27 | P a g e
f. There is a requirement of publication of the
extrajudicial settlement in a newspaper of
general circulation.
Q: How many times?
A: Once for three consecutive weeks.
Q: Where?
A: It should be published at the residence of the decedent
at the time of his death.
But if he is not a resident, then in the locality where he left
his real property.
If he left more than one real property and the same are
located in different localities, then one publication shall
suffice provided the publication shall be in the locality
where one of the real properties forming part of the estate
of a non-resident decedent is located.
g. The deed must be recorded in the proper
Register of deeds.
Q: What is the proper register of deeds?
A: The Register of Deeds of the locality where the decedent
last resided or if he is not a resident of the Philippines at
the time of his death, then in the area where real
properties forming part of his estate is situated.
Q: What is the significance of registering the extrajudicial
settlement in the Register of Deeds?
A: To create a constructive notice to the whole world that
the said property is extrajudicially partitioned by the heirs.
It is a constructive notice to the entire world that that
particular property forms part of the extrajudicial
settlement of estate of a particular decedent.
NOTE:
Despite this constructive notice to the entire world, those
who did not participate in the extrajudicial settlement shall
not be bound by the extrajudicial settlement of estate.
Q: What about if some of the heirs were not notified?
A: Then, they will not also be bound by the extrajudicial
settlement of estate.
Q: How can an extrajudicial settlement of estate be
attacked by an excluded heir or creditor?
A:
a. Going after the bond.
- If there is no bond,
b. Go after the real property
Q: What if the real property or the bond is not enough to
cover the contributive share of the excluded heir or the
credit of the excluded creditor?
A: Then a combination so much of the bond and of the real
property.
c. Institution of a settlement of estate by the
excluded heir or the excluded creditor
d. An action for annulment of the extrajudicial
settlement of estate.
 ADDITIONAL REMEDIES FOR AN
EXCLUDED HEIR:
A. Completion of his contributive share on account of
lesion under the Civil Code
B. An action for recovery of ownership
C. Recovery on account of implied trust.
NOTE: There are PRESCRIPTIVE PERIODS for all of
these remedies.
For going after the bond/going after the real property/
combination of the bond or the real property/ordinary
collection of suit or the institution of the judicial
settlement of estate; the same prescribes after the lapse of
2 years from the death of the decedent.
With respect to the annulment of the extrajudicial
settlement, it prescribes within a period of 4 years after the
death of the decedent.
With respect to completion of the contributive share of the
excluded heir, within 4 years from discovery of extrinsic
fraud. We count that 4 years from the time the
extrajudicial settlement was recorded with the Register of
Deeds.
In an action for recovery of ownership, 10 years from the
discovery of extrinsic fraud.
In an action for recovery on account of implied trust, 10
years from discovery of extrinsic fraud
2. JUDICIAL SETTLEMENT OF ESTATE
Q: What court has jurisdiction to entertain judicial
settlement of estate?
A: The probate court
Q: Here in the Philippines, what are the probate courts?
A: MTC or RTC depending on the gross value of the estate
Q: Venue? Ask yourself if the decedent is a resident or
non-resident.
A: If the decedent is a resident, the residence at the time of
his death.
If he is not a resident, then in any of the localities where
his real property or personal property is situated.
 TWO WAYS BY WHICH AN ESTATE MAY BE
JUDICIALLY SETTLED
You cannot choose one over the other because one
becomes obligatory if there is a will.
If there is a last will and testament, you have to probate
the will. You cannot choose.
If there is a last will and testament, you cannot choose an
extrajudicial settlement of estate.
28 | P a g e

However, in reality, that happens but anytime that can be A: By filing an opposition
annulled because if there is a last will and testament, it
should be probated. Q: On what ground?

A:
1. TESTACY
a. The decedent is not being of sound mind or
Q: When can there be testacy? insanity
b. During the creation of the will, the decedent
A: If there is a last will and testament either notarial or was compelled by force, threat and
holographic. intimidation by another person
c. There was coercion
It is notarial if it follows the forms and solemnities for a
d. There was undue influence
notarial will. Here in the Philippines, there must be an
e. The last will and testament was not supposed
attestation clause and there must be an acknowledgment.
to be signed as it is by the testator because his
In the attestation clause, it must be signed by the 3
signature was procured through trickery or
competent witnesses of the testator.
fraud.
Q: Should the witnesses know the content of the last will
and testament? NOTE: There is only one instance whereby a probate
court will pass upon the intrinsic validity of the last will
A: No. They only have to visibly see that the testator affixed and testament. That is if there is PRETERITION.
his or her signature on the marginal side on each and
every page of the last will and testament except the page Q: When can there be preterition?
where he places his entire signature on top of his name
including a signature on the acknowledgment. A: If there is an exclusion of a compulsory heir whether
intentional or not.
Q: Who signs the acknowledgment?
Q: Which compulsory heir are you referring to for purposes
A: The notary public. of preterition?

NOTE: When a particular instrument is notarized, it is EXAMPLE:

considered as a public instrument.
You have 15 children. 15 different wives. You preterited
So, all the notarized documents such as Affidavit of Loss, them all.
Deed of Sale of personal properties or a lease, or a
usufruct; once notarized, they are public documents. Q: Is that preterition?

There is only one notarized document that is not
considered, under the Notarial Law, as a public
instrument. And that is a notarized last will and
testament.
The last will and testament should first be allowed before
other proceedings of the judicial settlement of estate could
prosper.
Q: In the probate of will, what are the CONCERNS AND
THE ISSUES THAT MUST BE LOOKED INTO BY
THE PROBATE COURT FOR THE LAST WILL AND
TESTAMENT TO BE ALLOWED?
So, you file a petition for the probate of a will to determine:
A: Yes
Q: What about if you did not include in your last will and
testament your legal wife? Is there preterition?
A: None because there is only preterition if there is an
omission intentionally or unintentionally of compulsory in
the direct ascending or descending line; not the spouse.
ILLUSTRATION:
1. Assuming that decedent has:
- a real property in Baguio City worth 1 M.
- a real property in Manila worth 5 M
- Personal property in San Fernando City , La Union
- Savings account with the BPI worth 1.5 M

a. The due execution of the last will and testament Q: What court has jurisdiction?
b. The testamentary capacity of the testator
c. The extrinsic validity of the last will and testament A: RTC because we look into the gross value of the estate
d. If the last will and testament conforms with the which is 7.5 M.
forms and solemnities required by the law here in Q: Venue?
the Philippines
A: Either Baguio, Manila or San Fernando. That is if the
When the court finally settles to allow the probate of a will, decedent is non-resident.
then there is a final conclusory end to the fact that the
testator has testamentary capacity. Q: What if he is a resident of Tayug? What court has
jurisdiction?
Q: How can one who wants to oppose the last will and
testament assail the testator’s testamentary capacity? A: RTC of Tayug.
29 | P a g e

Q: What should you include in your petition? What should
be your allegations?
A: You state the jurisdictional facts.
Q: What are the jurisdictional facts?
A:
a. The death of the testator
b. Residence at the time of death in the province
where the probate court is located or last actual
physical habitation
c. If the decedent was a non-resident, the fact of
being a resident of a foreign country and that the
decedent has left an estate in the province where
the court is sitting.
Q: What is the best proof for the fact of death of the
decedent?
A: The death certificate or the Certificate of Death issued
by the Local Civil Registrar or PSA.
- A parcel of land located in East Modern Site,
Aurora Hill, Baguio City has a value of 1 M.
 ALTERNATIVE:
- The two-storey residential house located at
Engineer’s Hill, Baguio City.
Q: What else?
A: A parcel of land with an improvement thereon
located at 115F New Lucban, Baguio City.
 BE MORE PARTICULAR:
A parcel of land with an area of 3 hectares covered by
TCT 123 with improvements thereon comprising of a
two-storey residential building located at East Modern
Site, Aurora Hill with a market value of 1 M.
Q: What else?
A: If the will has not been delivered to the court, the
name of the person having custody of it.
Q: What is the 20-20-20 Rule?

Q: What should be allege further aside from the A:

jurisdictional facts?
A:
- The names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
- The name of the person to whom letters
testamentary or letters administration are
prayed for.
Q: Testacy to, why should we include letters
administration? Shouldn’t it be that letters
administration should only be in intestacy?
A: In the event that the executor or administrator of
the will refuses to accept the trust and the duty, they
court can appoint an administrator.
Q: What else?
A: If in the last wil and testament, there is no named
executor or if the named executor will not accept the
trust obligation, then there must be an administrator
who must be appointed.
Q: What else?
A: The nature, probable value and character of the
property of the estate
In our example,
Q: What are the properties forming part of the estate?
A:
- a real property in Baguio City worth 1 M.
- a real property in Manila worth 5 M
- Personal property in San Fernando City , La Union
- Savings account with the BPI worth 1.5 M
 IMPROVE HOW WILL YOU ALLEGE THAT IN
THE PETITION
RULE 75
Sec. 2. Custodian of will to deliver. - The person who has
custody of a will shall, within twenty (20) days after he
knows of the death of the testator, deliver the will to the
court having jurisdiction, or to the executor named in the
will.
Sec. 3. Executor to present will and accept or refuse trust.
- A person named as executor in a will shall, within twenty
(20) days after he knows of the death of the testator, or
within twenty (20) days after knows that he is named
executor if he obtained such knowledge after the death of
the testator, present such will to the court having
jurisdiction, unless the will has reached the court in any
other manner, and shall, within such period, signify to the
court in writing his acceptance of the trust or his refusal to
accept it.
Now, the court will look into the last will and testament. If
the last will and testament has been duly executed in
accordance with the forms and solemnities of our law, it is
proven that there is testamentary capacity of the testator;
then it will be allowed for probate.
Q: Will it be a judgment?
A: It will be an order.
Q: Is it a final order?
A: Yes
Q: Subject to appeal or certiorari?
A: Appeal
Q: How?
A: By filing a notice of appeal and a record on appeal
within 30 days from notice of judgment.
30 | P a g e
2. INTESTACY
Q: In the appointment of an executor, is there a rule
provided under the rules on special proceeding, or it
depends upon the will of the testator?
A. It will depend upon the last will.
Q: Can the decedent appoints as executor his
grandchild?
A.Yes
Q: What about the concubine?
A.Yes.
Q: How about the paramour?
A.Yes.
Q: Who can file for the probate of the will?
a. Testator himself, during his lifetime
It is easier for the testator to probate his will
because there will be no issues regarding due
execution or testamentary capacity.
Moreover, if the testator probates his will
personal notice must be given to all of the
interested persons for the probate of the will.
But still, there should be publication since this
is a special proceedings case.
b. Compulsory heir
c. Testamentary heir
d. Creditor
e. Legatees and Devisees
If the appointed executor is found out to be
disqualified, or if there is no named executor,
then there will be an appointment of an
administrator.
Priority list on administrators
1. Surviving spouse or the next of kin or any person
nominated by the surviving spouse or the next of kin
or both if they do not accept being as administrators.
2. Any of the Principal Creditors if the surviving
spouse or next of kin neglectfully failed to file for an
application for administration within 30 days from the
death of the decedent.
3. If the surviving spouse or the next of kin does not
accept as being administrators or that the principal
creditors are not willing to assume the obligations of
the administrator then the court may appoint another.
Q: Is the preference to the appointment of
administrator a hard and fast rule that is binding
upon the court?
A.No, because we always take into consideration the
best interest of the estate and its beneficiaries.
Q: Who cannot be appointed as administrators?
1. Minor, who is one who have not reached the age of
emancipation which is 18 years of age.
2. One who is not a resident
The duties of the executor or administrator demands
that he should always be physically present in the
place where the estate is located.
Q: An OFW who is actually a co-owner of the
properties forming part of the estate, can she be
appointed as administrator?
He cannot fulfil the duty of an administrator because
he is not physically present on the location of the
estate.
In answering questions on the Bar exam and in
our examinations, don’t look at certain
elements which are not present in the
question, since the issues that must be
resolved should be based on the given facts.
Don’t search for issues which are not there,
because it would meddle your analysis.
“Diyos ko sumigaw dito si Sir, I’m shookt!”
(NAWAWALA UNG NUMBER 3. )
4. Any person who is unfit to perform the duties of an
administrator by reason of
a. drunkenness
Being a drunkard does not necessarily disqualify
someone for being an administrator. However, if his
being a drunkard will adversely affect the obligations
and duties reposed upon him as an administrator,
then definitely, he should be disqualified.
b. improvidence
One who is a spend-thrift or prodigal
c. A person who is want of understanding or integrity
This is very important, because and administrator
must understand the duties and obligations. The
administrator must have integrity because he must
not be interested. If an administrator has interest, that
interest should be for the benefit of the estate, and not
for personal interest.
d. a conviction by final judgment of a crime involving
moral turpitude
Moral turpitude – it is an act of baseless, or vileness of
moral depravity which is antithetical to common
31 | P a g e

honesty and justice. Therefore all crimes which are The executor may immediately commence his work
mala inse are crimes involving moral turpitude. without posting a bond.

Violation of B.P. 22, although it is mala prohibita, is a
crime involving moral turpitude because why would
one person issue a check which is drawn against an
account which is insufficiently funded.
Take note: You have to ask yourself whether or not it
is intrinsically wrong.
Possession of illegal firearms is not intrinsically wrong.
What is conceived as wrong is the possession of a
firearm which is not licensed.
4. If the administrator has an antagonistic interest
against the estate.
As to the administrator, it will depend entirely on the
facts and circumstances. It is a case-by-case basis.
Therefore, in that particular case that we have read, in
the discretion of that court, it was not wise to exempt
those persons to be appointed as administrator from
posting their respective bonds.
Q: Therefore, is the posting of the bond, sine qua non
before a special administrator may take his duties
and obligations?
A. It still depends.
1. If the heirs have their trust over the special
administrator, then the special administrator would
not be required to post a bond anymore.

2. If the court, after weighing the positions of the heirs

Medina v. CA
In this Jurisdiction, one is to be considered to be
unstable for appointment as administrator when he
has adverse interest of some kind of hostility to
those immediately interested in the estate.
with respect to their request, thinks that it is for the
best interest not to post a bond, then the special
administrator would not be required to post a bond.
Q:Can the special administrator and the regular
administrator simultaneously work together?

A: A special administrator is appointed while waiting

While waiting for the appointment of a regular
administrator, the court can appoint a special
administrator.
Q: Are the duties and obligations of the special
administrator, basically the same as that of a regular
administrator?
A.Yes. Because, the same is a trust relation, the
special administrator momentarily or in the interim
will take care of the estate.
for the appointment of a regular administrator. Hence,
they cannot simultaneously work together because
there is a need for the special administrator to
relinquish his duties when a regular administrator is
appointed.
Momentarily, if the appointment of the regular
administrator is in question, it is the special
administrator, if one is appointed, who will perform the
duties and obligations as a trustee of the estate.

Q: In the appointment of a special administrator,

should the court strictly abide with the appointment of
a regular administrator?

A. No, because the preference on the priority on who

should be an administrator is not binding taking
consideration of the interest of the estate and its
beneficiaries.

Bond

General Rule: An administrator or executor, before

assuming his obligations, must post a cash bond.

The cash bond will be for the protection of the estate

just in case the administrator or executor will perform
some acts which would not be beneficial to the estate.
It will be the contingent amount for whatever wrongful
acts or decisions the administrator or executor will do.

Exception:

Q: Is it possible that an administrator or executor be

exempted from the posting of a bond?

A. If it were the will of the testator that a person will

serve as executor without paying a cash bond, then
the court must abide by the will of the testator.
32 | P a g e
For example:
Mr. Ordinario was appointed as regular
administrator. It was opposed by Mr. Mamitag, and
also prayed that letters of special administration be
given to him. It was granted by the probate court.
And while the case is pending on appeal with respect
to the order appointing Mr. Ordinario as a regular
administrator, it is Mr. Mamitag who would perform
the duties and obligations.
Now, if the appellate court affirms the decision of the
order of the court a quo with respect to the
appointment of Mr. Ordinario as regular
administrator, and no further appeal was undertaken
by Mr. Mamitag, or any of the heirs or parties in a
particular hypothetical that we are discussing, then
that is the time when Mr. Mamitag will relinquish his
duties and obligations to Mr. Ordinario, and give a
full account of the properties and liabilities of the
estate and from there, if required by the court, we
post a bond, if not required by the court, that’s fine.
Mr. Ordinario will take his oath, that is sine qua non,
then he can now start performing his duties and
obligations as regular administrator.
For Special Administrator and Regular Administrator
or for an Executor for that matter, taking an oath is a
sine qua non. The oath is a promise that the
administrator, whether regular or special, or the
executor, shall perform his duties and obligations,
and the oath will be part of the court records.
Q: Is the executor or administrator regular or special
entitled to compensation?
A: Yes, he is entitled. The will of the testator will also
provide for a provision regarding his compensation.
Duties and obligations of an executor or administrator:
1. To maintain the estate in tenantable repair and
deliver the same in such repair to the heirs or devisees
when directed by the court.
2. To possess and manage the estate of the deceased
for the payment of the debts and expenses of
administration.
3. To have access to the partnership books and
property where the deceased was a partner, under
pain of contempt by the probate court.
4. With the approval of the court, to compound or
compromise with a debtor of the deceased.
Q: If the estate has certain obligations in favour of
certain individuals, will the administrator or executor
be the representative of the estate?
A: Yes.
Q: What if the executor or administrator does not want
to bring a suit against a person or any suit in behalf of
the estate, can the heir now be the representative of
the estate?
A: Yes.
The appointment of a regular administrator is a
final order while the appointment of a special
administrator is an interlocutory order. Therefore,
if one is not satisfied with the appointment of a
special administrator, this can be attacked
through a certiorari. But if it were a regular
administrator, then this can be attacked by way of
an appeal through a notice of appeal and record
on appeal.
Inventory of the estate
Within 3 months after entry of duties, taking the oath,
posting a bond, then the executor or administrator
must now submit an inventory.
It is at this stage when there can be ‘Collation’, or the
inclusion or exclusion of certain properties. This is
also the stage whereby the court can pass upon by
way of exception, issues on ownership of properties.
Example:
Q: Assuming that at the time of death of the decedent,
these real properties in Manila was already sold to a
third person, and that third person even sold it to
another person, should that still be included or must
already be excluded?
The order of a judge in the inclusion or exclusion of a
property in the estate of the deceased is not final and
executory.
Q: In the inventory, should the liabilities of the
deceased be included as well?
A: Yes, but the inclusion of the liabilities is merely
temporary.
Q: Can finally settled liabilities be included?
A: Yes.
Q: May a partially settled liabilities be included?
A: Yes.
Q: What about if the liabilities are not settled at all?
A: Yes.
Q: What about pending cases arising from contracts,
whether written or not written or pending cases on
torts whereby the testator is a defendant?
A: Yes.
The inventory is part of the many proceedings in a
judicial settlement. But whatever order arising which
is part of our judicial settlement of estate are merely
interlocutory order.
33 | P a g e
Determination of heirs
As to the determination of the heir, whether legitimate
or illegitimate children (which are the only two
classifications under our Family Code), or compulsory
or testamentary heirs.
We are more interested with our compulsory heirs.
Q: Is the determination of who are the compulsory
heirs, if granted by the court, a final order?
A: Yes.
Q: Are the rules on DNA applicable in Special
proceeding of judicial settlement of estate?
A: Yes.
Q: What about if during the determination of who are
the heirs, it was found out that one of the legatees who
is not a compulsory heir exerted undue influence, or
coerced the testator and that is why that testamentary
heir was removed or disqualified as an heir, is that
order of probate court a final order or an interlocutory
order?
A: It is a final order.
Q: All throughout all of this, in the interim, the
administrator or the executor may request that certain
properties be sold or be subject of a lease, or be
subject of an investment, or be subject of a mortgage.
Can the administrator or executor without the
approval of the court, do those?
A: As a general rule, the administrator or executor
must obtain the approval of the court. However, as to
those which are perishable, it is not needed anymore.
If those perishable were sold, then it should be duly
accounted for.
Q: When can there be sale or mortgage of real
properties?
A: Only upon the application of the executor or
administrator requesting to be allowed to sell or
mortgage the property for the following purpose:
1. For payment of any expenses for the preservation of
the other properties which are not subject of the sale
or mortgage.
2. To provide for an allowance to widow/widower and
children
Q: In the inventory, should the jewelleries be included?
A: Yes. Even fake jewelleries can be included.
Q: What about the matrimonial bed and wearing
apparels of the testator?
A: Both should not be included in the inventory
Q: What will happen to the proceeds of the sale or
mortgage?
A: The proceeds will be for the:
a. Expenses for the preservation of the other properties
which are not subject of the sale or mortgage.
b. Allowance to widow/widower and children.
We said awhile ago that it is possible that the estate
may be the plaintiff or defendant in a civil case. If that
happens, it is the administrator or executor who
represents the estate.
Q: What if the decedent died as a debtor in the amount
of P10 Million based on a written contract. This can be
a liability to be included in the inventory of assets and
liabilities.
The debt was not yet due and demandable at the time
of the debt of the decedent. This was secured by a real
estate mortgage of which in our example, the collateral
used was the Manila Property worth P10 Million.
Claims
Q: Who can file claims in an estate of a decedent?
A: The Creditors
Q: Can a compulsory and testamentary heir be a
creditor?
A: Yes.
Q: Can an administrator be a creditor?
A: No. Or else he will act with an antagonistic interest.
For example:
Bpi executed a loan in favour of the decedent
February 1, 2015 (First publication)
February 8, 2015 (Second publication
February 15, 2015 (Third Publication)
When the debt became due and demandable, there
came a claim.
Claims must be posted and published once a week for
three consecutive weeks of a newspaper of general
circulation, it is constructive to all the creditors named
or unnamed to post their respective claims against the
estate.
Q: May BPI, after reading the newspaper, file a claim
as the creditor?
A: Yes.
Q: Assuming that BPI filed a claim in the judicial
settlement of estate, and it was able to duly prove its
claim against the estate, then all of a sudden, it
realized that he was actually a preferred creditor, since
the loan it extended was secured by a real estate
mortgage over the property in Manila. Instead of filing
a direct claim to the judicial settlement of estate, can
BPI foreclose the REM instead?
BPI can no longer exercise his right to foreclose
whether judicially or extrajudicially the REM, because
34 | P a g e
when BPI files a claim directly to the Estate Court, it
became an ordinary creditor and it waived its right to
foreclose , because under the rules, the questions of a
secured creditor of a decedent are alternative but
mutually exlusive.
Discussions about the Answer
If during the lifetime of the decedent, he is a debtor,
and the debt is secured by a real estate mortgage,
upon his death, the creditor in this example BPI, has
three options, which are alternative but mutually
exclusive:
1. Judicial Foreclosure
If the proceeds are not enough to fully satisfy the debt
of P10 Million, then the deficient amount could be
claimed against the estate. But the claim for the
deficiency will be treated as an ordinary claim, which
means that it will abide by the rules on concurrence
and preference of credits.
2. Extrajudicial Foreclosure
Q: May a creditor choose foreclosure of REM judicially
or extrajudicially?
A: No, it cannot. One may only extrajudicially foreclose
a REM if there is a Special Power of Attorney in the
real estate mortgage empowering the mortgage creditor
to extrajudicially foreclose the REM, under Act 3135. If
no provision in the REM that it can be extrajudicially
foreclosed, then it may only be a judicial.
But, if the contract entered into by the BPI and the
decedent,allows BPI to extrajudicially foreclose the
REM, and that was undertaken by BPI, then there can
be no deficiency of judgment and the same may be
claimed from the estate.
3. File a direct claim against the Estate.
But if we choose this act, we will become an ordinary
creditor. It means that the rule on preference and
concurrence of credits will apply.
In the filing of claims, the creditors must file the same
within the statute of non-claims.
Statute of non-claims is the period of time within
which creditors will file their claim against the estate,
which should not be more than 12 months nor less
than 6 months from the time of the first publication of
the notice of claims.
For example:
There was an order issued by the court which
stipulates that:
“Notice is hereby given to all creditors to file their
respective claims against the estate of the above
entitled case not earlier than May 1, 2015 but not
later than December 1, 2015.”
So ordered.
January 12, 2015
(signed)
Judge A
Presiding Judge
This order was published
February 1, 2015,
February 8, 2015,
February 15, 2015
Q: Is the order valid?
The date December 1, 2015 is valid because it is
within the phrase “not more than 12 months” since
December is the 10th month from the first publication
(February 1, 2015)
However, the date May 1, 2015 is not valid because it
is not within the phrase “nor should be less than 6
months” since May is the 3rd month from the first
publication (February 1, 2015).
A: The rule provides that the claim should be within
not more than 12 months nor less than 6 months from
the date of the first publication. But, the law provides
for another 1 month for the creditors to file their claim
under meritorious circumstances provided there is no
distribution yet.
If there are still pending civil cases that might not be
favourable to the estate, then there is no distribution
yet of the estate.
Administration
This is the liquidation stage. Liquidation involves
assets minus liabilities: We deduct taxes, funeral
expenses, expenses during the last hospitalization,
provisions to widow and children, and the rightfully
proven claims.
The liquidated assets of the estate shall be distributed
to the heirs.
JUNE 22, 2019
QUIZ DISCUSSION:
1. Spouses William and Noora had four children
namely Eva, Vilde, Sana and Chris. Noora died
leaving 6 parcels of land located in Baguio, Noora
left no will and left no debts. Thus, William filed a
partition case. Eva and Vilde filed their respective
answers. While Sana and Chris did not who were
declared in default. Despite having been declared
in default, court notices were sent to Sana and
Chris including the notice which refer all the heirs
for CAM. Sana and Chris did not attend the CAM
thinking that they were not needed for they were
declared in default. During the CAM, William and
Eva including Vilde agreed to amicably settled and
divide the parcels of land among all the heirs
including Sana and Chris. The Court issued an
order approving the compromise agreement which
was likewise published in accordance with the
35 | P a g e
rules. A year after, not happy with the shares that
were given to them, Sana and Chris filed an action
to annul the court order approving the
compromise agreement in the partition case.
During the hearing, William, Eva and Vilde argued
that Sana and Chris have no cause action
considering that even if they did not participate
during the CAM, they were not deprived of their
shares in the estate of Noora. Besides, Sana and
Chris came to court not in clean hands because
despite their knowledge of the CAM, they chose not
to participate. Finally, the compromise agreement
was duly published and hence, bind Sana and
Chris. As counsel for Sana and Chris, what are
your counter arguments to those of William, Eva
and Vilde’s? EXPLAIN.
NOTE: The question is phrased in the perspective of a
practicing lawyer. So, penetrate the mind of a practicing
lawyer because if you were the counsel; that’s the
question. But if the question is resolve; then penetrate the
mind of the Court. But in penetrating the minds of
whoever perspective, see to it that the answer is still
correct.
A:
a. As to the first argument, the argument interposed
by William, Eva and Vilde is not correct. Sana and
Chris still have a cause of action over the
proceedings because an heir who is not satisfied
for the share in the estate that was given to him
may file for an annulment of the partition on the
ground of lesion.
Q: Did they participate? Were they notified?
A: They did not participate though they were notified.
Q: In extrajudicial settlement of estate, are those
individuals who are interested parties like in this case
the heirs, who did not participate but were notified,
bound by the agreement?
A: NO. They are not bound.
If not notified, notified but did not participate, much
more notified and did not participate; still not bound.
Here, while they were notified but did not participate,
they are not bound and they have a cause of action
which is with respect to completion of their
contributive shares in their inheritance on the ground
of lesion four years from discovery of fraud.
Q: Was there fraud here?
A: None. They were notified but they did not
participate and as an effect, they were deprived of their
right to share in the estate.
b. The argument of William, Eva, and Vilde is not
correct because even though Sana and Chris were
notified but failed to participate in the discussion
for project of partition; the same should not be a
ground to render them not coming to court not in
clean hands because in the first place, the project
of partition or the compromise agreement will not
bind them because of the fact that they did not
participate. They were not given their day in court.
Q: What is your legal basis?
A: Those who were not notified or have not participated
during the discussion of the extrajudicial settlement of the
estate should not be bound by the after effects of that
compromise agreement.
c. The argument is not correct because the
compromise agreement, even though it was
published, the after effect of the perfection of the
compromise agreement would not bind Sana and
Chris because in the first place; although they
were notified, they still failed to participate in the
discussion of the compromise agreement.
Therefore, they are not bound by the compromise
agreement.
Q: Is the constructive notice rule with respect to a
published extrajudicial settlement of estate a constructive
notice to those heirs or creditors who did not participate?
A: NO. Despite the publication, those who did not
participate in the compromise agreement are not bound.
It is a constructive notice to those who will buy perhaps
the properties because it will be annotated there in the
title. But with respect to the heirs or the interested
creditors who did not participate or who are not notified or
both not notified and did not participate; it is NOT
CONSTRUCTIVE NOTICE.
2. What are the common requisites for the different
modes extrajudicial settlement of estate?
A: The COMMON REQUISITES are the following:
1. The decedent left no will
2. The decedent left no debts
3. The heirs are all of age or the minors are
represented by their judicial or legal
representatives duly authorized for the purpose
4. The filing of a bond if there be personal properties
forming part of the estate
5. Publication in a newspaper of general circulation
once a week for three consecutive weeks.
6. Recording of the settlement with the register of
deeds.
7. The extrajudicial settlement must be in a public
instrument.
36 | P a g e
3. Isak was born and raised in Baguio City. He went
to college in Manila and went back to Baguio City
and worked. When his parents died, the house in
Baguio City where he grew up was assigned to him
as his inheritance upon the settlement or
distribution of the estate of his parents. Said
property is valued at Php 300 K. Upon Isak’s
retirement from his job in January, 2016, he
purchased a cottage valued at Php 100K along the
beach in La, Union. He decided to spend the last
days of his life there. However, in 2017, he
borrowed 20 K from his brother Wilhelm since his
pension was delayed. In December,2017, Isak
went to Laguna to spend Christmas with his sister
Noora. The next day, he suffered a heart attack in
his sister’s house and died in Laguna.
QA: Where and what court should the petition for the
settlement of estate of Isak be filed?
A: The RTC of La Union.
Q: Why?
A: Considering that Isak died having his residence in
La Union, the same should be filed in La Union and
considering that the gross value of the estate of Isak is
400K and outside of Metro Manila, in judicial
settlement of estate, if the gross value of the estate is
more than 300k K. then it is the RTC which has
jurisdiction.
QB: Suppose that in the pending intestate proceedings,
Noora filed a motion to dismiss on the ground of failure to
comply with a condition precedent set forth in Art. 151 of
the Civil Code which provides “No suit between members of
the same family shall prosper unless it should appear from
the verified complaint or petition that earnest efforts
toward a compromise have been made, but that the same
have failed. If it is shown that no such efforts were in fact
made, the same case must be dismissed.” RULE ON THE
MOTION.
A: The motion should be denied. Art. 151 of the Family
Code applies only in ordinary civil action and not in special
proceedings just like in settlement of estate. Hence, Art.
151 of the Family Code cannot be applicable in the
settlement of estate.
QC: Suppose that letters administration was issued by the
Court to Wilhelm and he was already in the process of
liquidating the estate; Noora, while cleaning the above-
mentioned house in Baguio City, she discovered a notarial
will executed by Isak. Noora files a petition for probate of
the will in the court of Baguio City. If you were the lawyer
of Wilhelm, what would you raise to oppose the petition?
A: I will oppose the petition on the ground of improper
venue because the proper venue of the probate of the will
of Isak is in La Union where he last resided at the time of
his death.
QD: What would happen to the pending intestate
proceedings and letters administration already issued?
A: The pending intestate proceedings will be suspended to
give way for the probate of the will because testacy prevails
over intestacy.
Q: What happens to the letters administration already
issued?
A: The letters of administration shall remain in force and
effect until the probate is allowed. Once the probate is
allowed, there shall be an appointment of an executor who
will administer the estate of the decedent.
Hindi pwedeng kung nagfile ng petition for testacy of the
settlement of estate; the letters administration shall
automatically be revoked. What will happen to the
administration of the estate diba?
4. Eden died intestate and without issue. He was
survived by his sister Sana and his brother Jeuset.
The heirs of Eden then filed a special proceedings
case with the RTC for the administration of his
estate. Tarjei, the boyfriend of Eden during his
lifetime filed a motion to exclude some properties
from the inventory of Eden’s estate and to deliver
the titles to her because they were allegedly
donated by Eden in her favor as evidenced by a
Deed of Donation. The RTC granted the motion of
Tarjei without prejudice to the final determination
of the exclusion of some of the properties in the
inventory of the estate of Eden in a separate
action.
Q: Is the RTC, acting as an intestate court correct in
granting Tarjei’s motion?
ACCEPTABLE SUGGESTED ANSWER: Yes. The RTC is
correct in granting Tarjei’s motion. The SC has the
occasion to rule that the intestate court is allowed to
provisionally pass upon in ruling questions involving title
or ownership but the order without prejudice on the party
to file a separate civil action. Thus, the RTC acting
provisionally upon the question of title is correct because
of the aforementioned rule.
5. What are the EXCEPTIONS THAT PROBATE
COURTS WHICH HAVE LIMITED JURISDICTION
MAY PASS UPON ISSUES WITH RESPECT TO
OWNERSHIP?
A:
a. The parties are all heirs
b. It is an issue on collation or exclusion/inclusion of
real properties
37 | P a g e
c. The parties consent to the assumption of
jurisdiction by the probate court
d. The rights of third parties are not impaired
6. What are the GROUNDS FOR THE
DISALLOWANCE OF THE WILL?
A:
a. If not executed and attested as required by law
b. If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
c. If it was executed under duress, or the influence of
fear, or threats
d. If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his benefit
e. If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of
affixing his signature thereto.
f. If there is preterition appearing on the face of the
will as an exception
7. Henrick, a filipino citizen married Tarjei, also a
Filipino citizen in the Philippines. After a year,
Henrick left and obtained a divorce of their
marriage in New York, USA. Henrick came back to
the Philippines and married Sofia with whom he
has a child Eskild. Sofia died in 2010. Upon the
demise of Henrick in 2016, Tarjei, claiming to be
the surviving spouse, filed a petition to be the
administratrix of the estate of Henrick. Eskild
opposed claiming that he should be the one
appointed as administrator of the estate being the
only legitimate child of Henrick and considering
that Tarjei cannot enjoy preference and is not an
interested party since her marriage to Henrick was
already terminated by the divorce obtained by
Henrick. Tarjei countered that Eskild is not the
child of Henrick. The court appointed Tarjei as
administratrix ruling that divorce obtained by
Henrick cannot be given legal effect here in the
Philippines since he was a Filipino. Thus, Tarjei
was still the spouse and the lawful heir of Henrick
given preference in the administration of the estate
of Henrick and that Eskild is an illegitimate chid
since the marriage of Henrick to Sofia is bigamous.
QA: If you were the counsel of Eskild, how would you
appeal the order of appointment of administrator?
A: I would file a notice of appeal and record on appeal
within 30 days from the receipt of the final order or
judgment by Eskild.
Q: Why?
A: Eskild should file notice of appeal and record on appeal
because this is a matter of multiple proceedings
considering that this is judicial settlement of estate and
there are certain issues which may be resolve by the court
and to enable the case to proceed in the event that there
are other issues which are not yet resolved by the court.
The answer is Sec. 1, Rule 109 considering that an order
appointing a regular administrator is a final order and this
case being a special proceedings case involving multiple
proceedings; the proper mode of appeal is a notice of
appeal coupled with a record on appeal.
QB: Is the estate court correct in stating that Tarjei enjoys
preference over Eskild in being the administrator of the
estate of Henrick?
A: Yes because the divorce decree obtained abroad is void
because at the time of obtaining such, they were both
Filipinos and under the Civil Code, your status as a
Filipino follows you wherever you go. So, the second
marriage of Henrick to Sofia was bigamous.
Debs: Tarjei has priority over the appointment as a regular
administrator because under the Rules of Court, the
surviving spouse has first priority or the nearest next of
kin. In this case, the spouse is Tarjei and Eskild is
considered as an illegitimate child because the marriage of
Henrick is Sofia is void.
Q: Do you agree King?
A: While it is true that there is an order of preference
under the Rules on Special Proceedings that the surviving
spouse is preferred over the next of kin which in this case
is Eskild; it was established that if it is true that the
divorce decree is null and void and Tarjei remains to be the
surviving spouse and Eskild is illegitimate child;
notwithstanding that fact, it would still within the
discretion of the court if Tarjei would be the one that
would be appointed as administrator or Eskild or it may
also be possible that both of them would be appointed as
co-administrators of the estate of Henrick; the basis of
such appointment of administrator of an estate is for the
best interest of the estate and it’s beneficiary.
Q: If you look at the order of preference, who is number 1?
A: Surviving spouse or next of kin
Q: Did it qualify if legitimate or illegitimate?
A: It did not.
It says surviving spouse or next of kin or both
You look at the reasoning of the court. The court appointed
Tarjei as adminstratrix ruling that the divorce obtained by
Henrick cannot be given legal effect here in the Philippines
since he was a Filipino. Thus, Tarjei was still the spouse
and the lawful heir of Henrick given preference to the
administration of the estate of Henrick and that Eskild is
38 | P a g e
an illegitimate child since the marriage of Henrick to Sofia
is bigamous.
Q: Is that even an issue that should be passed upon by the
court?
A: Not.
Q: Is there grave abuse of discretion here in appointing
Tarjei?
A: None.
Q: Is the court correct in giving preference to the wife from
that of the illegitimate child?
A: The court is not correct because they are of equal status
in the order of preference.
8. Upon the motion of Jonas, one of the parties in the
judicial settlement of estate, the intestate court
revoked and terminated the appointment of Lucas
and Eliot as joint special administrators on
account of their failure to comply with the order
requiring them to post bond and to enter their
duties and responsibilities as special
administrators. In lieu of them, Jonas was
appointed special administrator. Lucas and Eliot
moved to reconsider on the ground that they are
the nearest next of kin of the decedent and that
they are entitled to be appointed as special
administrators and that Jonas is a far relative of
the decedent and that as much as they want to
enter upon their duties to the requirement of the
law to post a bond, they failed to do so which
requirement is only required for regular
administrators.
Q: Are Lucas and Eliot correct?
A: No. Lucas and Eliot are not correct. Lucas and Eliot
cannot claim the order of priority under the Rules of Court
with respect to regular administrators because the order of
priority in regular administrators does not apply to the
appointment of special administrators because the probate
court can appoint a new one, which in its discretion is
vested based on reason, equity and justice.
On the argument that Jonas is a far relative, that
argument is not correct because as mentioned, the matter
on WON they are the nearest next of kin is of no merit
since the order of priority under the Rules of Court does
not apply in special administrator.
Q: On the matter of posting a bond, what is the issue?
A: If the posting of a bond also apply as to the special
administrator.
Their argument is incorrect. Under the rules, the
requirement of posting a bond also applies to special
administrators.
Q: The court may require, correct?
A: Yes. The posting of a bond may be required even to the
appointment of special administrator because the bond is
actually for the protection of the interest of the estate in
case the special administrator neglects his duties in the
management of the estate.
9. Clarence, a former Filipino citizen but was
naturalized as a U.S Citizen died in San Jose,
California. He left a notarial will he executed before
his lawyer in San Jose, California distributing his
properties in the Philippines, all located in Manila
to his sister Dina and his two nephews, son of his
deceased brother Ferdie. Dina filed for the probate
of Clarence’s will in the RTC of Manila but the
probate court dismissed such on the ground that
it should have been probated first in San Jose,
California before the will can be reprobated in the
Philippines.
Q: Is the court correct?
A: NO.
Q: Is there a bar on the rules that only the will executed by
Filipinos can be probated here in the Philippines?
A: None
The only condition is if there is a bond. Second, is he a
resident? If he is not a resident, file it in the locality where
his properties are located.
(NO FURTHER EXPLANATION pero no dapat kasi daw in
the first place, hindi pa naprobate sa ibang bansa, so nung
dito sa Pilipinas, yun yung pinakafirst na probate kaya
was pa pwede ang reprobate)
10. Melfort entered into a contract to sell with the
Bayucans for the sale of a parcel of land where he
represented himself as the lawful owner and seller
of the land. However, the parcel of land is part of
the estate of his father which at the time of the
execution of the contract was under probate. The
Bayucans paid 300 K. Due to failure of Melfort to
deliver the lot, the Bayucans filed for a complaint
for specific performance with damages against
Melfort. Melfort interposed the defense that he
made effort to return the downpayments to the
Bayucans upon recognition that the contract was
invalid averring that the contract was not
approved by the probate court and the Rules of
Court provides that the probate court’s approval is
a requisite for the sale, mortgage or encumbrance
of a real property belonging to the estate of a
decedent.
Q: Is the court correct? Is the contract to sell invalid due to
lack of the probate court’s approval? EXPLAIN.
39 | P a g e
A: The contract to sell is valid. The rule that the approval
of the court must be acquired first before a valid sale or
mortgage shall be taken is only applied when the
administrator is the one who is selling or engaged in the
mortgage of such property.
In cases where the sale is instituted by an heir as his
hereditary rights.
Q: When does it attach?
A: It attaches pursuant to Art. 777 of the Civil Code, such
properties and rights shall be transferred at the moment of
death of the decedent.
In this case, Melfort already acquired such right upon the
moment of the death of his father.
Therefore, such approval is not required because he is not
exercising his right as an administrator of the estate but as
an heir.
Upon the death of the father of Melfort, he already
acquired his right of ownership over the property and as
an heir or as an owner of an aliquot portion of the property
forming part of the estate, he can already disposed of the
property even without the approval of the court.
11. State the Rule-making of the Supreme Court and
the limitations thereto.
 THE RULE-MAKING POWER OF THE SUPREME
COURT
The Supreme Court shall have the power to promulgate
rules concerning:
a) The protection and enforcement of constitutional rights,
b) Pleading, practice, and procedure in all courts,
c) The admission to the practice of law,
d) The integrated bar, and
e) Legal assistance to the under-privileged.
 LIMITATIONS ON THE RULE-MAKING POWER
OF THE SUPREME COURT
1) The rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases.
2) The rules shall be uniform for all courts of the same
grade.
3) The rules shall not diminish, increase, or modify
substantive rights.
4) Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the
Supreme Court.
CAVEAT!!!: Wag tayong gagamit ng untenable ha, it’s
not correct na lang because you are penetrating the mind
of the practitioner.
Do not use the words “in the cases that we have tuckled”,
“in one case”, “jurisprudence dictates”.Go straight to the
point. Obviously, the legal basis would either be the law or
jurisprudence.
 ESCHEAT
What is an ESCHEAT?
Escheat is a proceeding, unlike that of succession or
assignment, whereby the state, by virtue of its sovereignty,
steps in and claims the real or personal property of a
person who dies intestate leaving no heir. Since escheat is
one of the incidents of sovereignty, the state may, and
usually does, prescribe the conditions and limits the time
within which a claim to such property may be made. (RP v.
CA and Solano, G.R. No. 143483, January 31, 2002)
Escheat proceedings are actions in rem, whereby an action
is brought against the thing itself instead of the person.
Thus, an action may be instituted and carried to judgment
without personal service upon the claimants. (RCBC v. Hi-
Tri Development Corporation and Luz R. Bakunawa,
G.R. No. 192413, June 13, 2012)
 PETITION FOR ESCHEAT
The following should be alleged in the petition:
1. State the name of the decedent
2. State his last residence, or in the alternative if not a
resident, then state that you are filing the case of escheat
in the locality where a real property forming part of the
estate is situated.
3. That the deceased left properties and state the nature
and character of the properties forming part estate.
4. That the person left no will and died intestate;
5. That he left no heirs or persons by law entitled to the
same.
6. He left no debts.
NOTE: The fact that there are creditors of the decedent
when he died does not defeat the escheat proceedings.
What the Court will do is to pay the creditors and whatever
is left will be escheated.
7. If the petition is complete with the substance required
by the rules, it will be ordered for publication once a week
for six consecutive weeks in a newspaper of General
Circulation along with the notice of initial hearing.
In the published petition, there must be a notice of initial
hearing.
40 | P a g e
In the notice of initial hearing, it contains the particular
date and time whereby all the interested parties must
appear in order for the parties to put forward their
respective claims against the estate.
EXAMPLE:
Gayya made a last will and testament with a stipulation
that all his properties will be bequeathed to Queddeng.
Therefore, Queddeng is a testamentary heir. However, the
will was not allowed for probate and Gayya had no known
relative. Would that result to escheat?
Yes. (kasi diba yun yung elements; walang heir tapos
although my will, hindi xa naallow for probate so parang
wala ding will so parang namatay si decedent intestate)
 DORMANT ACCOUNTS SUBJECT OF ESCHEAT
(P.D. No. 679)
It is a proceeding whereby the state compels the surrender
to it of unclaimed deposit balances when there is
substantial ground for a belief that they have been
abandoned, forgotten, or without an owner (RCBC v. Hi-Tri
Development Corporation and Luz R. Bakunawa, G.R.
No. 192413, June 13, 2012)
 UNCLAIMED BALANCES
All forms of credit which are inactive for the past 10 years
from last activity and remains inactive.
Q: What kind of activity?
A: Deposit and withdrawal.
Q: What about balance inquiry of bank deposit, would
that amount to activity?
A: Yes, this is an activity since it is part of maintaining
such bank account.
In sum, if there is an abandoned, forgotten, and unclaimed
account for a period of 10 years from last activity, the
manager of the bank will inform the treasurer of the
Philippines, who is under the supervision and control of
the Department of Budget and management, about the
bank account and to post in a conspicuous place within
the bank premises, a notice of such inactivity of the bank
account and informing the owner of that account through
mail or otherwise in his last known address and to all
known creditors.
The last known address as appearing in the bank records.
After the lapse of 60 days and there is no claimant, then
the Republic of the Philippines, through the OSG, will file a
petition for escheat of the inactive bank account on the
ground of abandonment, forgotten, and unclaimed.
 RCBC V. HI-TRI DEVELOPMENT CORPORATION
AND LUZ R. BAKUNAWA, G.R. No. 192413, June
13, 2012
FACTS:
Spouses Bakunawa are owners of 6 parcels of land. They
sold the lands in a conditional sale to Teresita Millan with
the condition that Millan will take care of clearing whatever
obstacles to complete the sales. Thereafter, Millan made
downpayment. However, Milan failed to comply with the
condition of the sale so Spouses Bakunawa rescinded the
sale and offered to return the downpayment which Millan
refused to accept. Spouses Bakunawa thru Hi Tri
Development Corp took out a Manager’s check from RCBC
payable to Millan’s company Rosmil Realty and
Development Corp. Spouses Bakunawa informed Teresita
that the Manager’s check can already be encashed.
However, Teresita still refused therefore the Check was
undelivered and remains to be with RCBC and the funds
therein remained in the name of the Hi-Tri.
The bank then informed the Bureau of Treasury that there
is an unclaimed fund in the name of Hi-Tri. Therefore, the
Republic instituted an escheat proceeding against such
funds.
ISSUE: Is the fund covered by the manager’s check
escheated in favour of the Republic?
RULING: Yes.
The SC ruled that the Manager’s check remained
undelivered to Millan hence Spouses Bakunawa retained
custody over the said check and Hi-Tri retained custody
over the funds since the same has not completely
transferred to Millan because she did not accepted it.
Therefore, since Spouses Bakunawa failed to cancel the
check and claimed the funds therein for more than 10
years, then such unclaimed funds can be escheated to the
Republic.
 RP V. CA AND SOLANO, G.R. NO. 143483,
JANUARY 31, 2002
FACTS:
Elizabeth Hankins executed two deeds of donation and
donated two parcels of land in favour of Amada Solano in
recognition of Solano’s faithful and dedicated service.
While the deeds were missing, the Republic of the
Philippines filed a petition for escheat of the estate of
Hankins. Romeo Solano and Gaudencio Regosa intervene
in the escheat proceedings but was denied for failure to
show a valid claim and hence the RTC escheated the estate
of Hankins in favor of the Republic.
41 | P a g e
After seven years, Solano filed for the annulment of the
RTC’s decision claiming that she accidentally found the
deeds of donation she had been looking for.
ISSUE: Should the subject properties be declared
escheated in favour of the state?
RULING:
Yes. A claimant to an escheated property must file his
claim within 5 years from the date of judgment, otherwise,
the claim shall be barred forever. In this case, it was more
or less seven years when Solano decided to contest the
escheat judgment in the guise of a petition for annulment
of judgment before the CA. Therefore, Solano’s belated
assertion of her right is already barred.
Moreover, a judgment of escheat was held conclusive upon
persons notified by advertisement (publication once a
week for SIX consecutive weeks) to all persons
interested. Absolute lack on the part of Republic of any
dishonest intent to deprive Solano of any right, or in any
way injure him, constitutes due process of law, proper
notice having been observed." With the lapse of the 5-year
period therefore, private respondent has irretrievably lost
her right to claim and the supposed "discovery of the
deeds of donation" is not enough justification to nullify
the escheat judgment which has long attained finality.
Q: Can an estate escheated in favour of the Republic be
reopened?
A: Yes.
An interested person may commence the reopening of the
escheat within 5 years from the final judgment and
provided that the subject properties forming part of
the escheated estate have not yet transferred to third
persons. Otherwise, there is nothing to recover anymore.
The only ground to nullify is LACK OF DUE PROCESS
provided further that there is NO CONTRIBUTORY
NEGLIGENCE on the part of the interested person.
Publication for escheat proceedings must be done once a
week in SIX consecutive weeks in a newspaper of
general circulation.
Q: Why SIX consecutive weeks as compared to the
settlement of estate which is only three consecutive weeks?
A: To afford all interested persons more time, as
contradistinguished from all the special proceedings cases,
to place their claim in the escheat proceedings.
 CITY OF MANILA V. ARCHBISHOP OF MANILA,
G.R. NO. 1033, AUGUST 30, 1977
FACTS:
Ana Sarmiento executed a will which contained a provision
for the establishment of Capellania de Misas, whose
chaplain should be her nephew Pedro de Castillo. The
administration of such capellana shall be given to her
nephew and to those who succeed and must continue
perpetually.
After 200 years, the City of Manila filed with the CFI for the
escheat of properties located around the city including the
subject property of Sarmiento. The CFI denied the prayer
of the City of Manila and ruled that The Roman Catholic
Archbishop of Manila, through his various agencies, has
administered the property of Sarmiento, and that the
Roman Catholic Archbishop of Manila has rightfully and
legally succeeded in accordance with the terms and
provisions of the will of Ana Sarmiento.
ISSUE: Can the escheat proceeding prosper?
RULING: No.
A will has been executed by Ana Sarmiento which provides
a stipulation as to how shall her properties be
administered by her nephew and those who succeed to
him. She did not die without persons entitled to administer
her estate.
The will, clearly, definitely and unequivocally defines and
designates what disposition shall be made of the property
in question. The heir mentioned in said will evidently
accepted its terms and permitted the property to be
administered in accordance therewith. And, so far as the
record shows, it is still being administered in accordance
with the terms of said will for the benefit of the real
beneficiary as was intended by the original owner.
 JURISDICTION OVER ESCHEAT
PROCEEDINGS
Jurisdiction over Escheat does not qualify with respect to
the gross value of the estate since it is a sovereign act by
the Republic of the Philippines. Therefore, we do not look
into the value of the estate to be escheated.
The exclusive and original jurisdiction in all of escheat
proceedings is with the Regional Trial Court.
Even dormant accounts, it’s still the RTC.
 VENUE OF ESCHEAT
Venue is at the last residence of the decedent at the time of
his death or if he is not a resident then where the property
forming part of the estate is situated.
 NOTIFICATION ON THE OSG ABOUT THE
ESCHEAT PROCEEDINGS
42 | P a g e
In all special proceedings cases, the OSG must always be
notified, except in escheat proceedings because the OSG is
the one who initiates the petition for escheat. However, in
succeeding court orders and processes, the OSG must be
notified.
 DELEGATION OF THE DUTY OF OSG
In all special proceedings cases, the OSG can always
delegate the task to a person who is a member of the bar,
which is usually the prosecutor.
EXAMPLE:
A died in 1999. He has no heirs and he left no will. The
properties left behind by A are the following:
a. P40 Million Cash with BPI Ayala, Makati.
b. P15 Million worth Real property with improvement
located in Antipolo, Rizal.
c. P3 Million worth Real property with improvement
located in Malolos, Bulacan.
d. P50 Million worth Real property with an improvement of
Commercial seven-storey building located in Baguio City.
Gross value of the Estate: P108 Million
Last Residence: Antipolo, Rizal
Q: What court has jurisdiction and where should the
action for escheat commence?
A: The Regional Trial Court of Antipolo Rizal.
Q: What if he is an American Citizen but still a resident of
Antipolo, Rizal?
A: The same, Regional Trial Court of Antipolo, Rizal
Q: What if he is an American citizen who is a resident of
Brussels, Belgium?
A: In the RTC of the place where the properties forming
part of the estate is located.
In the publication of the escheat proceedings, If the
escheat was filed with the RTC of Antipolo, Rizal, the same
shall be published in a newspaper of general circulation in
Antipolo, Rizal.
Or if the escheat is filed in the RTC of Makati, then the
same shall be published in the newspaper of general
circulation in Makati.
 NO OPPOSITORS IN THE ESCHEAT
If there be no oppositors in the escheat, then there will be
one-time hearing, which is the marking of the
jurisdictional requirements, and the court will inquire into
the nature, character, and value of the properties forming
part of the estate.
If the court determines that the decedent has no heirs, or
no debts, then the properties will be escheated in favour of
the Republic.
Q: To whom will the properties be awarded?
A: If PERSONAL PROPERTY such as cash, then the
proceeds of the escheated estate will be given to the local
government of the last residence of the decedent if he was
a resident. If non-resident, then where that personal
property is situated.
If REAL PROPERTY, then the same will be escheated to
the city or municipality where the properties are situated.
Using the example above:
a. P40 Million Cash with BPI Ayala, Makati will be
escheated in favour of the local government of Antipolo,
Rizal, following the rule that Personal property such as
cash, will be escheated in favour of the local government of
the last residence of the decedent.
b. P15 Million worth Real property with improvement
located in Antipolo, Rizal will be escheated in the local
government of Antipolo, Rizal following the rule that real
property will be escheated to the city or municipality where
the properties are situated.
c. P3 Million worth Real property with improvement
located in Malolos, Bulacan will be escheated in favour of
the local government of Malolos, Bulacan.
d. P50 Million worth Real property with an improvement of
Commercial seven-storey building located in Baguio City
will be escheated in favour of the local government of
Baguio City.
Q: What will the Local Government do to the escheated
properties?
A: It will be used for EDUCATIONAL, CHARITABLE, AND
SIMILAR PURPOSES.
 GUARDIANSHIP
Q: What is Guardianship?
A: It is a trust relationship between a ward and a guardian
wherein the person and/or properties of the ward who is
declared as incompetent are taken care of by a guardian.
 PURPOSE OF GUARDIANSHIP
A guardianship is designed to further the ward’s well-
being, not that of the guardian. It is intended to preserve
the ward’s property, as well as to render any assistance
that the ward may personally require. It has been stated
that while custody involves immediate carte and control
43 | P a g e
guardianship indicates not only those responsibilities, but
those of one in loco parentis as well. (Oropesa v. Oropesa,
G.R. No. 184528, April 25, 2012)
 NECESSITY FOR GUARDIANSHIP
A court will have no jurisdiction to render judgment
against one adjudged physically and mentally incompetent
to manage her affairs where no guardian was appointed
upon whom summons and notice of the proceedings might
be served (Gorostiaga v. Sarte, G.R. No. L-45622, May
5, 1939)
NOTE:
Before the issuance of our Rules on Guardianship over
minors under Administrative Matter No. 03-02-05 SC, in
connection with R.A. No. 8369, the Rules of Court applies.
Our rules of court no longer apply to Guardianship
proceedings over minors, except suppletorily.
 ADMINISTRATIVE MATTER NO. 03-02-05 SC
RULE ON GUARDIANSHIP OF MINORS
Section 1 . APPLICABILITY OF THE RULE
This Rule shall apply to petitions for guardianship over the
person or property, or both, of a minor.
The father and the mother shall jointly exercise legal
guardianship over the person and property of their
unemancipated common child without the necessity of a
court appointment. In such case, this Rule shall be
suppletory to the provisions of the Family Code on
guardianship.
Sec. 2. WHO MAY PETITION FOR APPOINTMENT OF
GUARDIAN
On grounds authorized by law, any relative or other person
on behalf of a minor, or the minor himself if fourteen years
of age or over, may petition the Family Court for the
appointment of a general guardian over the person or
property, or both, of such minor. The petition may also be
filed by the Secretary of Social Welfare and Development
and by the Secretary of Health in the case of an insane
minor who needs to be hospitalized.
Sec. 3. WHERE TO FILE PETITION
A petition for guardianship over the person or property, or
both, of a minor may be filed in the Family Court of the
province or city where the minor actually resides. If he
resides in a foreign country, the petition shall be filed with
the Family Court of the province or city where his property
or any part thereof is situated.
Sec. 4. GROUNDS OF PETITION
The grounds for the appointment of a guardian over the
person or property, or both, of a minor are the following:
(a) death, continued absence, or incapacity of his
parents;
(b) suspension, deprivation or termination of parental
authority;
(c) remarriage of his surviving parent, if the latter Is
found unsuitable to exercise parental authority; or
(d) when the best interests of the minor so require.
Sec. 5. QUALIFICATIONS OF GUARDIANS
In appointing a guardian, the court shall consider the
guardian’s:
(a) moral character;
(b) physical, mental and psychological condition;
(c) financial status;
(d) relationship of trust with the minor;
(e) availability to exercise the powers and duties of a
guardian for the full period of the guardianship;
(f) lack of conflict of interest with the minor; and
(g) ability to manage the property of the minor.
Sec. 6. WHO MAY BE APPOINTED GUARDIAN OF THE
PERSON OR PROPERTY, OR BOTH, OF A MINOR
In default of parents or a court-appointed guardian, the
court may appoint a guardian of the person or property, or
both, of a minor, observing as far as practicable, the
following order of preference:
(a) the surviving grandparent and In case several
grandparents survive, the court shall select any of
them taking Into account all relevant considerations;
(b) the oldest brother or sister of the minor over
twenty-one years of age, unless unfit or disqualified;
(c) the actual custodian of the minor over twenty-one
years of age, unless unfit or disqualified; and
(d) any other person, who in the sound discretion of
the court, would serve the best interests of the minor.
 OROPESA V. OROPESA, G.R. No. 184528, April
25, 2012
FACTS:
Nilo Oropesa filed a petition for guardianship before the
RTC in the belief that his father, General Oropesa is
incompetent to run his personal affairs and to administer
his properties. He alleged that his father had already
memory and judgment lapses which have worsen because
he suffered stroke. He further alleged that his father would
be an easy prey for deceit and exploitation by his girlfriend.
44 | P a g e
Nilo Oropesa only offered as evidence only the testimonies
given by him by his sister and his father’s former caregiver.
However, the Neuropsychological Screening found that
General Oropesa is still competent because: the reasoning
abilities of Gen. Oropesa was generally intact, he performs
on the average range in most of the domains that were
tested, and he is capable of providing mental solutions.
ISSUE: Should Nilo be appointed as guardian over the
properties of his father?
RULING: No. Nilo failed to show in clear, positive, and
definite evidence that his father is incompetent. He merely
relied on his testimony, and the testimonies of his sister,
and there father’s former caregiver. Further, the medical
reports on the Neuropsychological Screening of his father
which was higly persuasive to the Court showed that his
father is indeed competent as he is still sharp, alert, and
able.
Being extravagant person or “galante” does not necessarily
place a person under guardianship over his properties. It
must be such a way that he is really prodigal to the extent
that he cannot control his being spendthrift.
 Another important ruling in Oropesa v.
Oropesa:
A physical and mental examination which is a mode of
discovery in civil procedure is equally applicable in special
proceedings. Since Rules on Civil Procedure applies
suppletorily on Special Proceedings, therefore in the case
of Oropesa, if the father was ordered to undergo physical
and mental examination, pursuant to the request of his
children, the court can grant the same. If a person does
not comply with court processes and procedure such as
called up to take testimonies but the witness does not
appear every time the court called upon such witness, the
court can issue a ‘bench warrant’ for the witness to be
incarcerated until the testimony of the witness shall be
completed. This is the time when the witness can post bail
because they might fail to appear during the taking of the
testimony.
Q: So, if the Father does not comply with the order of the
court to undergo physical and mental examination, can he
be imprisoned?
No, because our rules in Civil Procedure will only apply
suppletorily. But, a specific provision will prevail over the
general provision.
The general provision is that those who do not comply with
court processes will be imprisoned. But there is a specific
provision which provides that:
Rule 29, Section 3 – If any party or an officer or managing
agent of a party refuses to obey an order made under
section 1 of this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce any
document or other thing for inspection, copying, or
photographing or to permit it to be done, or to permit entry
upon land or other property or other property or an order
made under Rule 28 requiring him to submit to a
physical or mental examination, the court may make
such orders in regard to the refusal as are just, and among
others the following:
xxx
(d) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or
agent of a party for disobeying any of such orders
except an order to submit to a physical or mental
examination.
xxx
Therefore:
Orders of the Court with respect to orders for deposition,
Written Interrogatories, Admission by Adverse Party, and
Production or Inspection of Documents or Things, if not
complied with then the witness will be imprisoned.
However, the refusal on an order to submit to physical and
mental examination will not subject the subject person to
an arrest and imprisonment.
This rule also applies in special proceedings because as far
as practicable, rules on civil procedure apply suppletorily
to special proceedings.
 GOROSTIAGA V. SARTE, G.R. NO. L-45622,
MAY 5, 1939
FACTS:
Gorostiaga filed an action against Sarte to recover a sum of
money. Sarte filed an answer interposing a defense of
general denial saying that Sarte is physically and mentally
incapable of managing her estate. During trial, Sarte failed
to appear hence the trial court ruled in favour of
Gorostiaga.
A motion was filed by the guardian of Sarte praying that all
the proceedings against Sarte be declared null and void for
lack of jurisdiction over her person based on the fact that
before the action to recover a sum of money commences, a
petition for guardianship over Sarte was already filed and
the court granted such petition. Hence, the incapacity
already existed at the time of the filing of the action to
recover a sum of money.
ISSUE: Should the decision of the trial court on the action
to recover a sum of money be declared null and void?
RULING:
Yes. It was clear that during the proceedings for the action
to recover a sum of money, from the time of the filing of the
complaint to the rendition of the judgment, Sarte was
already declared physically and mentally unfit to manage
her affairs as found by the court in the petition for
45 | P a g e
guardianship. Hence, during the proceedings over the
action to recover a sum of money, Sarte has no guardian
yet, and since there is no proper service of the summons
and notices of the proceedings to her and her would-be
guardian, the trial court trying the action to recover a sum
of money failed to acquire jurisdiction over her person.
Story-telling of Atty. Gayya
“During my days as a clerk of court, there was a petition
for guardianship with a prayer for a petition for the
issuance of habeas corpus filed by sibling1 against the
sibling2 considering that the sibling2 is controlling already
the mother who was already in her 90s, and whatever
sibling2 says, the property would be sold or used by
sibling2. So, the court of Atty. Gayya granted the petition
for guardianship considering that the mother no longer
really knows what to do with her property because sibling2
could easily dictate upon the mother what to do with the
properties owned by the mother.
We also granted the petition for the issuance of a writ of
habeas corpus because the mother is already being
contained inside one room so she can sign anytime
whatever needs to be signed. The sibling2 who was in
custody of the mother was waiting for a lot of buyers for all
of her properties.”
So, Guardianship is battle over the person of the ward and
battle over the properties of the ward, if there is any.
 DIFFERENCE BETWEEN NATURAL GUARDIAN,
GUARDIAN AD LITEM AND JUDICIAL
GUARDIAN
1. NATURAL GUARDIAN – those deemed as
guardians without need of a court appointment
(Art. 225, Family Court); e.g parents
2. GUARDIAN AD LITEM – those appointed by
courts of justice to prosecute or defend a minor,
insane or person declared to be incompetent, in an
action in court; and
3. JUDICIAL GUARDIAN – those who are appointed
by the court in pursuance to law, as guardian for
insane persons, prodigals, minor heirs or deceased
war veterans and other incompetent persons.
 WHO MAY FILE A PETITION FOR
GUARDIANSHIP
 FOR RESIDENT WARD
1. Parent or lawful guardian
2. If no parent – any relative, friend, or other person
3. minor himself who is 14 years of age or over
4. Director of health (for insane or hospitalized leper)
 FOR NON-RESIDENT WARD
1. Any Relative
2. Any Friend
3. Anyone interested in his estate, in expectancy or
otherwise
 GROUNDS FOR A PETITION FOR
GUARDIANSHIP
One who is incompetent to take care over his person
and/or his properties
Q: WHO ARE INCOMPETENTS?
1. Persons suffering from the penalty of civil interdiction
If a person is suffering this, he is incapacitated to
make donation inter vivos. But, he can dispose his
property by donation mortis causa since this will take
effect after death.
2. Hospitalized lepers
3. Prodigals
4. Deaf and dumb who are unable to read and write.
5. Those who are of unsound mind even though they may
have lucid intervals
6. Those who are not of unsound mind, but by reason of
age, disease, weak mind, and other similar causes,
cannot without outside aide, take care of themselves and
manage their property, becoming thereby an easy prey for
deceit and exploitation.
 CONTENTS OF A PETITION FOR
GUARDIANSHIP
1. JURISDICTIONAL FACTS
a. name of the person subject of guardianship
b. address of the person subject of guardianship
2. The ground for guardianship whether minority or
incompetency
3. Names, Ages, and residences of the relatives of the
minor or incompetent, and of the persons having him in
their care.
4. Probable value and character of his estate
5. Names of the person for whom letters of guardianship
are prayed for.
CAVEAT!!!! Sir Gayya don’t want to see the word
“Taken cared of”. It should be “Taken care of”
 JURISDICTION OVER GUARDIANSHIP
PROCEEDINGS
Regional Trial Court
46 | P a g e
 VENUE OF THE GUARDIANSHIP PROCEEDINGS
If the properties of the ward are located in different
jurisdictions, then venue is anywhere where these
properties are located.
 WHEN PARENTS ARE GUARDIANS OF THEIR
CHILD/CHILDREN
If property of child is P50,000 or less, then the parents of
the guardian shall be his legal guardian without the
necessity of a court appointment.
However, if the property of child is more than P50,000:
a. There must be a petition for Guardianship in
accordance with Rule 93, Section 2 to be filed in court
before a parent can be considered as a guardian.
b. The court for good reasons may appoint another
suitable person.
 GROUNDS FOR REMOVAL OF THE GUARDIAN
1. Insanity
2. incapable of discharging the trust
3. Unsuitability of the guardian
4. Wasted or mismanaged the properties of the ward
5. Failure for thirty days to render an account or make a
return
6. Advanced age, if justified
7. Marriage of voluntary emancipation of the ward, and/or
competency of the alleged incompetent ward.
8. Conflict of interest
SPECIAL PROCEEDINGS
June 28, 2019
CASES
A. Mandriñan v. Mandriñan
554 Phil. 363 (2007)
Re: Habeas Corpus
1. RA 8369 did not divest the Court of Appeals and
the Supreme Court of their jurisdiction over habeas
corpus cases involving the custody of minors.
2. The reasoning that by giving family courts
exclusive jurisdiction over habeas corpus cases, the
lawmakers intended them to be the sole courts which
can issue writs of habeas corpus will result in an
iniquitous situation, leaving individuals without legal
recourse in obtaining custody of their children.
Individuals who do not know the whereabouts of
minors they are looking for would be helpless since
they cannot seek redress from family courts whose
writs are enforceable only in their respective territorial
jurisdictions. Thus, if a minor is being transferred from
one place to another, which seems to be the case here,
the petitioner in a habeas corpus case will be left
without legal remedy. This lack of recourse could not
have been the intention of the lawmakers when they
passed RA 8369.
3. A careful reading of Section 5(b) of RA 8369
reveals that family courts are vested with original
exclusive jurisdiction in custody cases, not in habeas
corpus cases. Writs of habeas corpus which may be
issued exclusively by family courts under Section 5(b)
of RA 8369 pertain to the ancillary remedy that may be
availed of in conjunction with a petition for custody of
minors under Rule 99 of the Rules of Court. In other
words, the issuance of the writ is merely ancillary to
the custody case pending before the family court. The
writ must be issued by the same court to avoid
splitting of jurisdiction, conflicting decisions,
interference by a co-equal court and judicial
instability.
B. Lorzano (?) v. Abaya, Jr.
Re: Trust
Trust – an agreement where the trustor transfers
property to another who is the trustee for the benefit of
the beneficiary.
Constructive Implied Trust – created by operation of
law. Prescription will set in even if there is no
repudiation.
e.g., If the title was transferred to another person
fraudulently, the property is in trust for the real
owners.
Resulting implied trust – created through the
implication of the law. Prescription will not set in
unless there is repudiation of the trust.
Q: Can an express trust be repudiated?
A: Yes. If such is the case, prescription will set in.
C. Tanezo (?) v. Roxas
Re: Trust
Soledad alleged that she bought the property from one
Crisologo, but not evidenced in writing. Thereafter, she
left with her husband. She left the property to her
father.
When Soledad returned, she discovered that the said
property was already under the care of Concepcion
Roxas, the second wife of her father. This was in the
1930, but was only learned by Soledad in the 1980’s.
Soledad filed the case.
Concepcion claimed that the property was actually
already under the name of Soledad’s father. There was
already prescription, Crosologo already acquired
ownership of such property and was even included in
the estate of Crisologo, and Soledad even benefitted
from the fruits of the estate.
47 | P a g e

- 16 years older

Is there express trust between Soledad and her father? - Psychologically and physically
There was none. Since there was no clear evidence as
to the intention of Soledad to create an express trust - Financially
with her father.
- Diplomatic relation
Is there a resulting implied trust? None. Prescription
- The alien is also considered legally able to adopt
thus sets in.
- The adoptee is allowed to enter into the country of
Is a legacy or a device whereby the executor is given
the alien
the responsibility and obligation by the testator to take
care of their real and personal property with their - 3 continuous years of residence
legacy or device amongst the testator, executor the
devisee and the legatee? Yes, because there is a
fiduciary relationship created.
Filipino intending to adopt a person:
Testamentary trust – which is created through a will
to take effect upon the death. 1. Legal age – BC

Living trusts – created during the lifetime of a person. 2. Full legal capacity and legal rights
Highly discouraged in the Philippines because it will or
3. GMC – Barangay Clearance, Police Clearance, NBI
may impair legitime.
Clearance
If so much is reserved by the donor during his lifetime,
4. Not convicted of a crime involving moral turpitude
payment of estate taxes will be lower. During the
– NBI, Court Clearance
lifetime, it is a way of saying that it is his/her will
which is being respected. Danger when death, may be 5. Emotionally, financially – allege employment, Cert.
subject of litigation. They are considered as of Employment, Income sufficient to support
advancements under Philippine Law.
6. Emotional mental psychological – psych evaluation
A testamentary trust is litigious, relatively expensive.
7. He is 16 years older than the adoptee: Exc.
Testamentary trust is irrevocable. Living trust is Biological parents or a spouse of the biological parent
either revocable and irrevocable.
8. Has all the qualifications and none of the
Revocable living trust can be change, modified, or disqualifications
revoked entirely.
Consent – required on part of the child to be adopted?
Advantages: [for trustor] can change, subtract or add Yes, age of 10 years of more.
who are beneficiaries or trustee.
Consent of children of adopting parents. Biological
Properties covered by living revocable trust WILL form children – legitimate and illegitimate
part of the estate. – subject to estate tax.
Jurisdiction: Family Court
Irrevocable living trust – not part of estate but
donor’s tax. Venue: Residence of Adopter

Express trust – created by either a deed or a will or Rescission of Adoption – Petitioner: The Adoptee
any written instrument or could be unwritten but it is
intention of the parties to create one. Court: RTC/Family Court

Adoption – The adoptee in the eyes of the law is the Venue: (inaudible)
legitimate parent of the adopted child, vv.
General contents of Petition:
Non-Filipinos can adopt under the Inter-Country
1. Filipino citizen
Adoption Act and Domestic Adoption act under
exceptional circumstances: 2. Jurisdictional facts
1. Adopting a child of his Fil. Spouse 3. Residence of the adoptee
2. He has the qualifications: 4. Legal age
- Legal age 5. Take care of the child
- Good Moral Character (GMC) 6. GMC
- Full legal capacity 7. At least 16 y.o. older
- Not convicted of a crime involving moral turpitude 8. No crime involving moral turpitude
48 | P a g e

9. Financially, emotionally, psychologically capable Invasion – Brought by external forces inside the
Custody of Minors territorial jurisdiction of the Philippines.
1. Jurisdictional Facts 2) Only the privilege of the writ is suspended,
2. Value of estate of minor if any and only the president can suspend the same.

3. Qualifications 3) It can be for a period not exceeding 60 days

4. None of the disqualifications
but such period is extendable.

(ang alam ko incomplete to) 4) The suspension may be for the entire
country or a part only thereof.
Court: FC

Venue: (inaudible) 5) Within 48 hours from the proclamation of

Prostitution per se is not disqualification unless
activities are conducted at the very house of the child.
—oOo—
Spec Pro July 5
HABEAS CORPUS
It is a protective writ. It’s a palladium of rights
or a protective theater of rights because it
protects the following constitutional rights:
a. Right to life
b. Right to liberty
We do not use this writ in order to protect and
enforce the constitutional rights to property,
only the constitutional right to life and
liberty.
Lansang v. Garcia, G.R. No. L-33964,
December 11, 1971
The ruling of the case is about the extent of
judicial review by the courts on the propriety of
the suspension of the privilege of writ of habeas
corpus which is now indoctrinated into our
1987 Constitution.
CONSTITUTIONAL SAFEGUARDS IN THE
SUSPENSION OF THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS
1) The suspension of the privilege is only in two
instances: When there is INVASION or
REBELLION
Martial law, or the suspension of the privilege of
the writ of Habeas Corpus, the President shall
submit a report in person or in writing into the
congress.
Q: What will the Congress do after receiving
the report?
A: The Congress, holding jointly, by a vote of at
least a majority of all its members, in a regular
or special session, may revoke or extend such
proclamation or suspension.
If Congress is not in session, it must convene
without need of a call within 24 hours or one
day following the proclamation of martial law or
the suspension of the privilege of the writ of
habeas corpus.
The revocation or suspension is subject to final
review by the Supreme Court.
Take Note: The suspension applies only to
those judicially charged for rebellion or invasion
or those offenses which is intrinsic or inherent
in or absorbed and/or directly connected with
the same crimes.
Take Note: The privilege of writ is different from
the writ of habeas corpus itself. If the crime
involved is not one of rebellion or invasion or is
not inherent or directly connected with the
same crimes, then the writ of habeas corpus
must be entertained and the privilege thereof
should not be suspended.
EXAMPLE:

Rebellion – Brought by internal forces inside If murder is used to perpetuate rebellion or

the territorial jurisdiction of the Philippines invasion, under the principle of absorption, the
crime of murder is absorbed by the crime of
49 | P a g e
rebellion or invasion, and so the privilege of the
writ is suspended. But, if the murder is not
used to perpetuate rebellion or invasion, then
the privilege of the writ is not suspended.
Take Note: In times of rebellion or invasion,
and when there is declaration of martial law and
suspension of the privilege of the writ of habeas
corpus, not all petitions for issuance of writ of
habeas corpus must not be entertained by the
court, since they may still entertain depending
upon the crime committed if it’s connected to or
absorbed by the invasion or rebellion.
DELAY IN THE DELIVERY OF DETAINED
PERSONS
Article 125. Delay in the Delivery of
Detained persons to the Proper Judicial
Authorities
The penalties provided in the next preceding
article shall be imposed upon the public officer
or employee who shall detain any person for
some legal ground and shall fail to deliver such
person to the proper judicial authorities within
the period of; twelve (12) hours, for crimes or
offenses punishable by light penalties, or their
equivalent; eighteen (18) hours, for crimes or
offenses punishable by correctional penalties, or
their equivalent and thirty-six (36) hours, for
crimes, or offenses punishable by afflictive or
capital penalties, or their equivalent.
In every case, the person detained shall be
informed of the cause of his detention and shall
be allowed upon his request, to communicate
and confer at any time with his attorney or
counsel. (As amended by E.O. Nos. 59 and 272,
Nov. 7, 1986 and July 25, 1987, respectively)
Elements:
1. Offender is a public officer or employee;
2. He detains a person for some legal ground;
3. He fails to deliver such person to the proper
judicial authorities within –
a. 12 hour for light penalties;
b. 18 hours for correctional penalties; and
c. 36 hours for afflictive or capital penalties.
This article presupposes that the detention is legal
since it is in the pursuance of a lawful arrest
because the situation contemplated here is an arrest
by virtue of some legal ground or valid warrantless
arrest. But, this article does not apply if the arrest is
with a warrant.
If there is valid warrant of arrest, there is no
time limit specified except that the return must
be made within a reasonable time. The period
fixed by law under Article 125 does not apply
because the arrest was made by virtue of a
warrant of arrest, he can be detained
indefinitely until case is decided or he post a
bail for his temporary release.
Circumstances Considered in Determining
Liability of Officer Detaining a Person
beyond the Legal Period
1. The means of communication
2. The hour of arrest
3. Other circumstances such as the time of
surrender and the material possibility of the
prosecutor to make the investigation and file in
time the necessary information.
Delaying release by the public officer
Article 126 - Delaying Release - The penalties
provided for in Article 124 shall be imposed
upon any public officer or employee who delays
for the period of time specified therein the
performance of any judicial or executive order
for the release of a prisoner or detention
prisoner, or unduly delays the service of the
notice of such order to said prisoner or the
proceedings upon any petition for the liberation
of such person.
Acts that are punished are the following:
1. Delaying the performance of a judicial or
executive order for the release of a prisoner;
2. Unduly delaying the service of the notice of
such order to said prisoner;
3. Unduly delaying the proceedings upon any
petition for the liberation of such person.
50 | P a g e
ELEMENTS
1. Offender is a public officer or employee;
2. There is a judicial or executive order for the
release of a prisoner or detention prisoner, or
that there is a proceeding upon a petition for
the liberation of such person;
3. Offender without good reason delays –
a. the service of the notice of such order to the
prisoner;
b. the performance of such judicial or executive
order for the release of the prisoner; or
c. the proceedings upon a petition for the
release of such person.
Take note: Wardens and jailers are the persons
most likely to violate this provision.
Take Note: The penalty depends on the length
of the delay i.e. 12, 18, or 36 hours.
PERSONS AUTHORIZED TO ORDER THE
RELEASE OF A PERSON IN CUSTODY OF
THE LAW
1. The courts when:
a. Detained person posts bail
b. Case is dismissed
c. Accused is acquitted
d. Petition for habeas corpus is filed and the
court finds no valid reason to detain him.
2. Board of Pardon and Parole upon the grant of
Parole
3. Office of the President upon the grant of
presidential Pardon or Amnesty
4. Commissioner of the Board of Immigration
and Deportation
5. Office of the prosecutor with respect to cases
they are acting on if:
a. No probable cause
b. Arrest is not proper
c. There is meritorious ground (humanitarian
reasons)
Discussion about the two rules:
If a person is detained, then the detaining
person should file a case within the following
period:
a. 12 hour for light penalties;
b. 18 hours for correctional penalties; and
c. 36 hours for afflictive or capital penalties.
d. 72 hours for violation of human security act
of 2007.
If a child was detained, then the detaining
person should file a case within 8 HOURS to the
proper authority before it becomes illegal
Within these mentioned hours, a person
detained must be judicially charged in the
proper court where the crime was committed,
otherwise, the detaining officers including the
police authorities must set free the person,
otherwise, there will be a violation of Article
125.
For failure to deliver a person arrested or
detained to the proper judicial authorities. It
simply means it is the filing of the appropriate
information in court.
If within those hours no proper charges have
been filed, then you can assert that you have
the right to liberty and if not, then spouse can
file for a petition for a writ of habeas corpus.
Exception:
If there is waiver of right under Article 125 to
authorized the conduct of preliminary
investigation.
Before the complaint or information is filed,
the detained person may ask for a
preliminary investigation provided he signs a
waiver of his rights under Article 125 of the
RPC (Delay in the Delivery to Judicial
Authorities) in the presence of counsel
- He may still apply for bail in spite of the waiver
51 | P a g e
- The investigation must be terminated within
15 days
After the complaint was filed but before
arraignment, the accused may within 5 days
from the time he learns of the filing, ask for a
preliminary investigation.
EXAMPLE:
After 72 hours and the detained person was not
yet properly charged, then he or another person
can petition for a writ of habeas corpus.
But, if there is already a criminal case filed in
court, the petition will not be entertained.
However, if during the hearing of the petition for
writ, there was a case filed for rebellion or
invasion, it will moot the petition for a writ of
habeas corpus. That is why the petition
should be dismissed on the ground that it is
already moot and academic.
CONCEPT OF HABEAS CORPUS
“To produce the living or dead body of a
person.”
Q: What is the difference between a
peremptory writ of habeas corpus from
preliminary citation?
A: Both are writ of Habeas corpus hence both
orders that the person detaining the person
subject of the writ of Habeas Corpus to produce
the living body of that particular person at a
particular date and time and particular place,
which place is usually the court.
A preliminary citation – In this instance, in
the face of the petition it appears that the
deprivation of liberty is lawful.
Peremptory writ – In this instance, there is
patent nullity with respect to the deprivation of
liberty of the person subject of the writ.
WRIT OF HABEAS CORPUS
It is an order demanding the person detaining
another to produce the body of that person at a
given date and place.
Q: On what part of the proceedings will the
privilege be issued or granted?
A: After hearing when finally it has been
determined that indeed the deprivation of liberty
is unlawfully illegal, then the privilege will be
issued.
Because if you are the judge, you receive the
petition, automatically you will issue an order.
Q: And what is that order?
A: That order is actually the writ of Habeas
Corpus, which can be preliminary citation or a
peremptory writ.
In the meantime, if you are the detaining person
who deprived the liberty of that detained
person, you must present his living body to the
court and explain the reason of his detention
EXAMPLE:
If M deprived the liberty of N, he has to explain
why, say for example, because N was caught in
flagrante for the crime of rebellion.
If after four days, the information of the crime is
still with the Prosecutor’s office, then the
detention is illegal since it’s already pass 72
hours to allow the detention of M for the alleged
crime of rebellion.
If that’s the case, the privilege of the writ will be
issued.
But, before the issuance of such privilege, and a
case was already filed, the petition for writ
becomes moot and academic.
FUNCTION AND SCOPE OF HABEAS CORPUS
This was primarily designed for particular cases
involving illegal confinement or detention, such
as kidnapping, or abduction.
Even though you can move from one place to
another, but if you could not leave that
particular place, then it means that while you
have the freedom of locomotion, you are still
deprived of liberty.
EXAMPLE:
You can roam around the campus of Saint
Louis University, but you cannot leave the
52 | P a g e
premises the campus, then your liberty is
deprived and that can be subjected to writ of
Habeas Corpus. Or it can be because a person
is deprived of the rightful custody of a particular
person, such as the custody battle between the
parent and the child, or with respect to
guardianship over his ward. But, a wife whose
husband does not want to cohabit with her,
cannot file for a petition for habeas corpus
against the husband, because under the Family
Code, Spouses cannot be forced to cohabit
together.
If there is illegal confinement or detention,
there can be deprivation of fundamental
constitutional rights:
a) Freedom of Action
b) Freedom of Locomotion
Being tied to a particular chair deprives you of
that two freedoms.
But, using the example above, if you’re able to
roam around the premises of SLU, there is
freedom of locomotion but there is no freedom of
action.
That is one way by which a habeas corpus may
be used, because there is deprivation of the
fundamental or constitutional rights.
EXAMPLE:
A criminal case of estafa was filed against T. T
was engaged in the selling of Natasha products.
She sold a product to R that will whiten his
skin. But, instead of his skin getting white, it
became darker. Hence, a case was filed with the
RTC. The imposable penalty for estafa is at most
4 years only and in MTC, the criminal cases
filed therein are at most 6 years and below or a
fine of at most P4,000 and below. T raised the
defense of lack of jurisdiction but it was not
granted by the RTC.
If T filed for a petition for habeas corpus, it will
be granted.
To complete the process, there must be an
antecedent motion to quash the information on
the ground of lack of jurisdiction. If it was
denied, you can file a petition for habeas corpus
because the court has no jurisdiction.
EXCESSIVE BOND
There is denial of the bond of the person
entitled thereto. When bail is a matter of right,
it is a matter of right before and after conviction
of a person before the first level courts or before
conviction in the RTC where the imposable
penalty is not Life imprisonment, or is not
Reclusion Perpetua, or is not Death, bail is a
matter of right.
EXAMPLE:
The case of estafa was filed in the RTC against
T. The bail for her provisional liberty was pegged
at P1 Million. That is practically excessive and
was already divesting T of her right to Bail.
The deprivation of her right to bail proceeds
from the constitutional presumption of
innocence, because if the judge says, P1 M,
then that Judge has that presumption of
conviction and not presumption of innocence.
There are particular guidelines with respect to
the proper determination to the amount of bail
under Rule 114.
If the penalty of imprisonment is only reclusion
temporal and the judge gave you the penalty of
reclusion perpetua, and you file for motion for
reconsideration because of error of law due to
the imposition of the wrong penalty. If MR was
denied then you can file a petition for habeas
corpus.
THE POWER TO GRANT HABEAS CORPUS
AND ITS ENFORCEABILITY
Q: What court has jurisdiction over Habeas
Corpus?
A: If the issuing authority is the Supreme
Court, or any of its members, it can be enforced
anywhere in the Philippines.
Q: But to whom should the return be
submitted?
53 | P a g e
A: The return should be submitted to the
Supreme Court or to any of its members.
Take Note: But, in one case, what the court did
was to order that the return be submitted to the
RTC having territorial jurisdiction over the
person of the petitioner which is possible.
If the issuing authority is the Court of Appeals,
or any of its members, it can be enforced
anywhere in the Philippines.
But, if the issuing authority is the RTC, or the
RTC acting as the Family Court, then the
return should be submitted only to the RTC
within its territorial jurisdiction.
Q: Is there an instance when the MTC can
entertain and subsequently issue a petition
for habeas corpus?
A: Yes, in the exercise of its special jurisdiction
when there is no available RTC or RTC Judges.
PROCEDURE FOR THE APPLICATION FOR
THE PETITION FOR HABEAS CORPUS
If the detention is by an officer, the officer shall
be asked to explain the cause of the detention
via the issuance of an order which is the writ of
Habeas Corpus which is either preliminary
citation or a peremptory writ on the date, time,
and place to produce the body of the living
person, the officer detaining that particular
person deprived of his liberty will explain the
cause of the detention.
If the cause of the detention is valid and legal,
the privilege will not be issued. But, if it were
not lawful, then the privilege of the writ shall be
issued and the person detained will be
correspondingly set free.
However, if the detention is by other persons,
such as in kidnapping and abduction, in
custody battle case, a writ will be issued
and the writ is a simple order issued by
the court.
EXAMPLE:
During the custody battle of D and N over J,
and during the trial, D is in custody over J and
was hiding J from N, the court will issue an
order directing D to appear in court and that to
order her to turn over J to N.
CONTENTS AND FORM OF THE PETITION
1) Every petition must be verified. The
verification must state that it is base from
the personal knowledge and information of
the affiant and/or authentic records.
Qualify it with the phrase “personal
knowledge”, because if you state there in your
verification that is only base from knowledge
or information, it is not a compliant
verification under the Rules of Court.
But usually, complaints have attachments, and
if that’s the case, then the full phrase must be:
“From personal knowledge and/or
information AND authentic records.”
This must be signed and verified by the party
for whose relief it is intended. But, if more often
than not, it is the relatives, or friends, of the
detained person who would file the petition for
habeas corpus, they must state that the person
on whose behalf the application is made is
imprisoned or strained of his or her liberty.
EXAMPLE:
The detained person must state that has have
been held in captivity for ten days and no
criminal information has yet been filed against
you, or you might have been in military captivity
because you are suspected of being a member of
the Maute Group, or as a member of NPA. Or, a
member of the insurgency group.
2) You must state the officer or name of the
person by whom he is so imprisoned or
restrained.
Q: Is an Alyas allowed if the identity of the
detaining person is unknown?
A: Yes. Alyas “Mamitag” Hahaha
Or, if both are unknown or uncertain and such
officer or the person can be described by a
presumed appellation and the person who is
54 | P a g e
served with the writ shall be the person
intended.
3) The place where he is so imprisoned or
restrained, if known.
4) A copy of the commitment or cause of
detention of such person, if there is.
If it can be procured without impairing the
efficiency of the remedy, or if the imprisonment
or the restraint is without any legal authority,
then such fact shall appear.
If there is a Commitment or cause of detention
which may be in a form of a “warrant” arresting
such person subject of the petition for habeas
corpus, then you only have to state the ground
for the restraint of the liberty.
Q: If the officer depriving another person of
his liberty must file his return, what must be
the contents of the return?
A: Return is common among habeas data,
amparo, and even writ of Kalikasan.
But, for habeas corpus, these must be the
contents of the return:
1. Whether he has or has not had the party
in custody or whose person is under
restraint.
a. If you have no custody over the person
subject of the writ, a return must be made
stating that:
“Pursuant to the order dated 5 July 2019, I
cannot produce the living body of this person
considering that I am not the person who is
allegedly restraining his liberty or depriving him
his liberty.
b. But, if that particular person is the one
depriving the person of liberty, then state:
“I am the person depriving that particular
person and the reason being this one…”
If he has the party in his custody or power to
restrain then the true and whole cause of the
detention and must be set forth in the copy of
the return
c. If the party who is in the custody or power
of the detaining officer or person cannot be
produced, the detaining officer must state
the reason why the person cannot be
produced, particularly the nature and gravity
of the sickness and conformity of such
person.
EXAMPLE:
If the detained person suffers wounds while in
detention, as to render him in danger and/or
unable to go to court, then such existence of
wounds must be alleged by the detaining person
or officer.
2. If he has had the party in his custody or
power or under restraint and has transferred
such custody or restraint to another
particularly to whom at what time for what
cause and by what authority.
EXAMPLE:
Arresting officer is O of Baguio City, but the
crime was committed in La Trinidad. So, the job
under the rules of court is to turn it over the
proper police authorities having jurisdiction
where the crime was committed which is in La
Trinidad.
Return it over to the jail warden in La Trinidad
and state:
“Yes I was the one who arrested initially I had
custody but, considering that the crime was
committed in La Trinidad but he was caught in
Baguio city by a hot pursuit, but the crime was
committed fully or consummated fully and no
other elements was committed in Baguio city,
then I have to turn custody of his person to the
jail warden in La Trinidad.”
DNA Evidence in relation to Habeas Corpus
Habeas Corpus was being used as a post-
conviction remedy because of DNA test.
Under Section 10 of A.M. No. 06-11-5-SC, it
says that the convict or the prosecution may file
a petition for a writ of habeas corpus in the
court of origin or the court which convicted
originally the accused.
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If the result of the post-conviction DNA testing
are favorable to the convict, and after due
hearing, finds the petition as meritorious, the
court of origin shall reverse or modify the
judgment of conviction and order the release of
the convict unless continued detention is
justified for a lawful cause. A similar petition
shall be filed either in the CA or SC or any
members of said court which may conduct a
hearing thereon or remand the petition in the
court of origin for the issuance of the
appropriate orders.
Q: So, as a post-conviction remedy what
court has jurisdiction to try, hear, and
decide a petition for habeas corpus?
A: It’s the court of origin, or the SC or the CA or
any justices of the CA or any justices of the SC.
Atty. Gayya: “My submission is also
Sandiganbayan, because it says there court of
origin. Sandiganbayan exercises exclusive and
original jurisdiction.
De Villa vs Director, New Bilibid Prisons :
158802 : November 17, 2004
Bearing a child out of rape is not an element of
rape, because in rape, the slightest penetration
of the vagina consummates rape.
2. The remedy for a petition for habeas
corpus as a post-conviction remedy is
unavailing, because it is not a newly-
discovered evidence.
When trial is ongoing in the court below, the
DNA evidence was already in defect. Therefore,
the SC said that one can only avail of DNA
testing in a petition for habeas corpus by virtue
on the ground that DNA test results would point
out that the convict is not the perpetrator of the
crime if the case was decided before the 2007
DNA evidence rule. But, if after the
promulgation of the 2007 rule on DNA evidence,
Section 10 can no longer be applied.
Pursuant to Locard’s principle, every
perpetrator of a crime will leave something in
the crime scene which is his DNA.
Other DNA evidence cases taken from Evidence:
CASES ON DNA EVIDENCE
A. PEOPLE vs. TEEHANKEE, JR. (249 SCRA
54)
The Supreme Court in an obiter dictum stated
that while eyewitnesses identification is
significant, it is not as accurate and
authoritative as the scientific forms of
identification evidence such as DNA testing.
B. PE LIM vs. COURT OF APPEALS (270
SCRA 1)
The Supreme Court said that DNA being a
relatively new science, had not as yet been
accorded official recognition by our courts.
Paternity would still have to be resolved by such
conventional evidence as the relevant
incriminating acts, verbal and written, by the
putative father.
C. TIJING vs. COURT OF APPEALS (354
SCRA 17)
The Supreme Court opened the possibility of
admitting DNA as evidence of paternity when it
held that “parentage will still be resolved using
conventional methods unless the Supreme
Court adopts the modern and scientific ways
available”.
LANDMARK CASES ON THE ADMISSIBILITY
OF DNA EVIDENCE PRIOR TO 2007
a. PEOPLE VS. VALLEJO (G.R. No.
144656, May 9, 2002)
A case of Rape with Homicide. The vaginal
swabs of the victim taken during the autopsy
contained the DNA profiles of the accused and
the victim. Accused was found guilty beyond
reasonable doubt.
b. PEOPLE VS. YATAR (G.R. No. 150224,
May 19, 2004)
A case of Rape with Homicide. Presence of
semen in the vaginal canal of the victim. DNA of
the sperm specimen from the vagina of the
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victim was identical to the semen of the gene
type of the accused.
LANDMARK CASES AFTER THE
EFFECTIVITY OF THE RULE ON DNA
EVIDENCE
a. PEOPLE vs. UMANITO (G.R. No.
172607, October 26, 2007)
This is a Post-Conviction DNA Analysis, the
Accused was already convicted of the crime of
rape. The Supreme Court said that the trial
court must first determine the feasibility of DNA
testing in accordance with the standards set in
the Rule. Upon receipt of the test results, it
shall be incumbent upon the parties to avail of
it and the trial court to assess such results as
evidence in keeping with Sections 7 and 8 of the
Rule. The Court also enjoined the trial court to
observe the requirements of confidentiality and
preservation of the DNA evidence under Section
11 and 12 of the said Rule.
b. ESTATE OF ONG vs. DIAZ (G.R. No.
171713, December 17, 2007)
The Supreme Court stated that the death of the
petitioner does not ipso facto negate the
application of DNA testing for as long as there
exist appropriate biological samples of his DNA.
c. Barcelon v. Baker, 5 PR 8 (1905)
During the American regime in the Philippines,
lawlessness was rampant and criminal activities
were at large. Governor-General James Francis
Smith with the consent of the Philippine
Commission suspended the privilege of the writ
of Habeas Corpus in the provinces of Batangas
and Cavite. A petition was raised questioning
such suspension of the writ.
The US Supreme Court issued a ruling
sustaining the suspension of the privilege of the
writ and said that the decision of the Governor
General is his duty on his part and that that
court cannot question the act of executive and
legislative branches of the government because
it is a political issue
.
d. Montenegro v. Castaneda, 91 PR
882, 1949
In 1949, we have Elpidio Quirino. He had
problems with respect to Insurgencies in
Central Luzon with respect to the
Guerillas. He also suspended the
privilege of the writ in some part of Luzon
and that was questioned all the way to
the Supreme Court.
The Supreme Court, using as basis the
barcelon case, said that the suspension
of the privilege of the writ is a political
question. It goes into the wisdom of the
political executive agency exercising such
power.
We do not question the wisdom of a
person in court.
Q: Is that a right which is legally
demandable and enforceable?
A: It is not justiciable, but of course you
know that the second definition of
judicial power encroaches upon political
question, and that is the grave abuse of
discretion.
e. Lansang v. Garcia (G.R. No. L-
33964, December 11, 1971)
Grenades exploded at Plaza Miranda in
the City of Manila during a public
meeting of the liberal party. Acting on
such an event on August 23, 1972,
President Ferdinand Marcos suspended
the privilege of the writ on the entire
country. Petitions were filed in the
Supreme Court for the release of several
arrested persons including former
Senator Salonga.
The Supreme Court ruled that the
suspension of the privilege of the habeas
corpus was proper for having factual and
legal basis which is clearly provided for
by the Government. But the SC turned
from Barcelon and Montenegro case and
declaring that the judiciary has the
57 | P a g e
authority to inquire into the factual basis
for the declaration.
Because, if we look into who has the
actual intelligence gathering resources
that could validate a threat of invasion or
rebellion it is the President as the
Commander-in-Chief. So, if there is
factual basis, then the declaration is
valid. If none, then the declaration stated
with grave abuse of discretion and
therefore the same must be revoked.
JULY 6, 2019
 GARCIA-PADILLA v. ENRILE
FACTS:
On July 6, 1982, after securing a Search Warrant, a raid,
led by Lt. Col. Coronel, was conducted at the residence of
Dra. Aurora Parong. Apprehended during the said raid
were nine of the fourteen detainees in this case. The other
four detainees were arrested on the following day by the
same teams, while Tom Vasquez was arrested on July 15,
1982.
The fourteen detainees, namely: Dra. Aurora Parong,
Benjamin Pineda, Sabino Padilla, Francisco Divinagracia,
Zenaida Mallari, LettyBallogan, Norberto Portuguese,
Mariano Soriano, Imelda de los Santos, Eufronio Ortiz, Jr.,
Juanita Granada, Bienvenida Garcia, and Tom Vasquez,
were all detained at the PC/INP Command Headquarters,
Bayombong, Nueva Vizcaya from July 6, 1982 until their
transfer to an undisclosed place reportedly to Camp
Crame, Quezon City, to Echague, Isabela, and to
Tuguegarao, Cagayan.
A petition for the issuance of a writ of habeas corpus was
then filed by Josefina Garcia-Padilla, the mother of Sabino
G. Padilla. She alleged that the arrest of petitioners was
patently unlawful and illegal since the raiding team was
only armed with a search warrant and nowhere in said
warrant was there an authority to make arrests and
detention. She also alleged that the search warrant which
authorized respondents to seize subversive documents,
firearms of assorted calibers, medicine and other
subversive paraphernalia in the house and clinic of Dra.
Aurora Parong was a general warrant and is therefore,
illegal per se because it does not state specifically the
things that are to be seized. There are also no criminal
charges which has yet been filed against any of the
detainees. There is no judgment, decree, decision or order
from a court of law which would validate the continued
detention of the petitioners. And while it is true that a
purported telegram stating the issuance of a Presidential
Commitment Order was shown to the detainees, the
counsel of the detainees have not yet been given a copy of
such PCO nor notified of its contents, raising a doubt
whether such commitment order has in fact been issued. It
is further alleged that respondents are denying the
detainees their constitutional right to counsel averring that
the detainees were allowed regular visits before but when a
certain Lt. Marcos took full control of the investigation,
counsels were allowed to visit only on weekends. And when
detainees were transferred to a place known only to
respondents, their counsels and relatives were not notified.
And thus claiming that petitioner’s constitutional rights to
silence, to counsel and against self-incrimination are being
violated.
The writ of habeas corpus was issued by the court. The
respondents, through the Solicitor General, alleged in the
return of the writ that the petitioners were detained by
virtue of a Presidential Commitment Order (PCO) issued on
July 12, 1982 by then President Ferdinand E. Marcos for
violation of P.D. No. 885, pursuant to LOI No. 1211 dated
March 9, 1982, in relation to Presidential Proclamation No.
2045 dated January 17, 1981. They also alleged that
petitioner Josefina Garcia-Padilla does not appear to have
been authorized by 13 other detainees to represent them in
this case.
ISSUE:
Is the detention of the petitioners valid pursuant to the
PCO issued by the president following their arrest for the
covered offenses under Proclamation No. 2045?
RULING:
Yes. 9 of the detainees were caught in flagrante delicto
when they mentioned scampered towards different
directions leaving on top of their table numerous proofs
including a plan on how they would infiltrate the youth
and the student sector and guns were also discovered.
The crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and other
crimes and offenses committed in the furtherance on the
occasion thereof, or incident thereto, or in connection
therewith are all in the nature of continuing offenses which
set them apart from the common offenses, aside from their
essentially involving a massive conspiracy of nationwide
magnitude.
The function of the PCO is to validate, on constitutional
ground, the detention of a person for any of the offenses
covered by Proclamation No. 2045 which continues in force
the suspension of the privilege of the writ of habeas
corpus. The significance of the conferment of this power,
constitutionally upon the President as Commander-in-
Chief, is that the exercise thereof is not subject to judicial
inquiry, with a view to determining its legality in the light
of the bill of rights guarantee to individual freedom. This
must be so because the suspension of the privilege is a
military measure the necessity of which the President
alone may determine as an incident of his grave
responsibility as the Commander-in-Chief of the Armed
Forces, of protecting not only public safety but the very life
58 | P a g e
of the State, the government, and the duly constituted
authorities.
The suspension of the privilege of the writ of habeas
corpus, to be effective, should be left to the exclusive and
sound judgment of the President, at least while the
exigencies of invasion, rebellion or insurrection persist,
and the public safety requires it, a matter, likewise, which
should be left for the sole determination of the President as
Commander-in-Chief of the Nation's armed forces.
Q: May the Executive Department be compelled by the
Supreme Court to prove the factual bases for the
declaration of martial law and for the suspension of the
privilege of the writ of habeas corpus?
A: At this particular timeline, the SC stated that it is a
political issue. And therefore, the Judiciary cannot inquire
as to the factual bases of the existence of rebellion,
insurrection or invasion. And being a political question,
when a Constitution or statute vest the power to a person
who has discretion to determine a certain fact, that person
alone can determine such fact. Thus, the SC cannot
inquire as to the existence of such fact, aside from that
person which is the President in this case.
Q: Is that particular doctrine laid down in Enrile still the
prevailing doctrine as of today?
A: No more.
 LAGMAN v. MEDIALDEA
FACTS:
Effective May 23, 2017, and for a period not exceeding 60
days, President Rodrigo RoaDuterte issued Proclamation
No. 216 declaring a state of martial law and suspending
the privilege of the writ of habeas corpus in the whole of
Mindanao.
The President, in accordance with Section 18, Article VII of
the Constitution, submitted to Congress a written Report
on the factual basis of Proclamation 216. The Report
pointed out that for decades, Mindanao has been plagued
with rebellion and lawless violence which only escalated
and worsened with the passing of time and because of
series of violent act committed by the Maute terrorist
group in Mindanao.
After the submission of the Report and the briefings, the
Senate issued P.S. Resolution No. 388 expressing full
support to the martial law proclamation and finding
Proclamation No. 216 "to be satisfactory, constitutional
and in accordance with the law". In the same Resolution,
the Senate declared that it found "no compelling reason to
revoke the same". The House of Representatives likewise
issued House Resolution No. 1050 expressing its full
support to the President as it finds no reason to revoke
Proclamation No. 216.
Subsequently, several petitions were filed invoking the
third paragraph of Section 18, Article VII of the
Constitution for the Court’s specific and special
jurisdiction to review the sufficiency of the factual basis of
Proclamation No. 216 and seeking to nullify Proclamation
No. 216 for being unconstitutional.
As to Lagman’s petition, it claims that:
1. The declaration of martial law has no sufficient
factual basis because there is no rebellion or
invasion in Marawi City or in any part of
Mindanao. It argues that acts of terrorism in
Mindanao do not constitute rebellion since there is
no proof that its purpose is to remove Mindanao or
any part thereof from allegiance to the Philippines,
its laws, or its territory. It labels the flying of ISIS
flag by the Maute Group in Marawi City and other
areas as mere propaganda and not an open
attempt to remove such areas from the allegiance
to the Philippine Government.
2. The declaration lacks sufficient factual basis since
the President’s report contained false, inaccurate,
contrived and hyperbolic accounts.
3. The declaration lacks sufficient factual basis since
the President’s report mistakenly included other
events which either took place long before the
conflict in Marawi City began, had long been
resolved or with the culprits having already been
arrested.
4. The declaration lacks sufficient factual basis
considering that the President acted alone and did
not consult the military establishment or any
ranking official before making the proclamation.
As to Culamat’s petition, it claims that:
1. The alleged culpability of the Maute group and
other rebel groups to sow terror and cause death
and damage to property does not rise to the level of
rebellion sufficient to declare martial law in the
whole of Mindanao.
2. There is no lawless violence in other parts of
Mindanao similar to that in Marawi City.
As to Muhamad’s petition, it claims that:
1. Martial law is a measure of last resort and should
be invoked by the President only after exhaustion
of less severe remedies.
2. The factual situation in Marawi City is not so grave
as to require the imposition of martial law. It
asserts that the Marawi incidents do not equate to
the existence of a public necessity brought about
by an actual rebellion which would compel the
declaration of martial law or the suspension of the
privilege of the writ of habeas corpus.
These several petitions were filed invoking the third
paragraph of Section 18, Article VII of the Constitution for
the Court’s specific and special jurisdiction to review the
59 | P a g e
sufficiency of the factual basis of Proclamation No. 216
and seeking to nullify Proclamation No. 216 for being
unconstitutional.
The OSG felt that "defending the constitutionality of
Proclamation No. 216" should serve as "a rallying call for
every Filipino to unite behind one true flag and defend it
against all threats from within and outside our shores.
ISSUE:
Does the Supreme Court have the power to review the
sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ of
habeas corpus?
RULING:
Yes.
The Supreme Court in the 1971 case of Lansang held that
the factual basis of the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus is
not a political question and is within the ambit of judicial
review.
By inserting Section 18 in Article VII which allows judicial
review of the declaration of martial law and suspension of
the privilege of the writ of habeas corpus, the framers of
the 1987 Constitution in effect constitutionalized the
Lansang doctrine.
Section 18, Article VII is meant to provide additional
safeguard against possible abuse by the President in the
exercise of his power to declare martial law or suspend the
privilege of the writ of habeas corpus. Reeling from the
aftermath of the Marcos martial law, the framers of the
Constitution deemed it wise to insert the now third
paragraph of Section 18 of Article VII. This is clear from
the records of the Constitutional Commission when its
members were deliberating on whether the President could
proclaim martial law even without the concurrence of
Congress.
To give more teeth to this additional safeguard, the framers
of the 1987 Constitution not only placed the President's
proclamation of martial law or suspension of the privilege
of the writ of habeas corpus within the ambit of judicial
review, it also relaxed the rule on standing by allowing any
citizen to question before this Court the sufficiency of the
factual basis of such proclamation or suspension.
Moreover, the third paragraph of Section 18, Article VII
veritably conferred upon any citizen a demandable right to
challenge the sufficiency of the factual basis of said
proclamation or suspension. It further designated this
Court as the reviewing tribunal to examine, in an
appropriate proceeding, the sufficiency of the factual basis
and to render its decision thereon within a limited period
of 30 days from date of filing.
OTHER COLLATERAL ISSUES:
1. The act of terrorism is not considered as a
ground for the declaration of martial law and
the suspension of the privilege of the writ of
habeas corpus.
RULING:
The SC held that although act of terrorism is not a ground
under the Constitution, the President is in the best
position to declare the State under national emergency
because to protect and conserve peace and order, and to
protect the rights and properties of the people in Mindanao
as well as the Philippines.
SIR: With respect to the Maute group, they are being
funded and supported by the ISIS or the Islamic State of
Iraq and Syria. So, it’s a world-renounced terrorist State
but of course to fund the terrorists, it’s a matter of who is
in power. And you know that we are in the era of Pan
Americanism which shapes world’s thinking, ideology,
philosophy, culture.
Q: Are the activities of the Maute group acts of terrorism or
acts of rebellion or acts of invasion?
A: Acts of terrorism.
Q: What was the justification for the suspension of the
privilege of the writ of habeas corpus if the Maute activities
were considered as acts of terrorism and not acts of
invasion or rebellion?
A: Because they are absolutely taking control over the
Mindanao and there were series of violent acts committed
by the Maute group such as the attack on the military
outpust in Butig, Lanao del Sur, mass jailbreak in Marawi
City freeing arrested comrades and other detainees, and
burning down of certain government and private facilities
and inflicting casualties and starting flying the flag of ISIS.
Q: How do you reconcile the constitutional limitations for
the declaration of martial law and the suspension of the
privilege of writ of habeas corpus with regard to invasion
and or rebellion only when what was found out is that the
Maute group are engaged in acts of terrorism?
A: The President can declare Martial Law or to suspend the
privilege of writ of habeas corpus in order to protect the
national security and for the safety of the State.
Q: But it is very clear in the Constitution that the only
time that the President may proclaim Martial Law and
suspend the privilege of writ of habeas corpus is on two
instances only; invasion or rebellion?
A: And also when public safety requires it.
Q: State in toto that particular provision invasion or
rebellion, then when public safety requires it. Is it a
comma or is it an or?
A: Comma
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Q: How should you interpret it pursuant to your statutory
construction or constitutional construction pursuant to
legal hermeneutics? Shouldn’t that be a qualification
which defines invasion or rebellion because it appears as
an appositive pursuant to grammatical rules.
A: No. It is connected to rebellion or invasion but as long
as the public safety is in danger, then the President can
proclaim such.
NOTE: We are only talking about Maute activities. There
are a number of activities that had been happening in
Mindanao that justify according to the Supreme Court, the
declaration of martial law and the suspension of the
privilege of the writ.
Q: Do you agree with the SC with respect to its
justification on the Maute activities being an act of
terrorism and therefore there is a need to declare Martial
Law and the suspension of the privilege of the writ because
public safety requires it? What is your personal opinion on
that?
A: I dissent to the justification of the Supreme Court that
the acts of Maute group are only acts of terrorism. I think
that such violent acts committed by the Maute groups can
be considered as rebellion and invasion since there is an
act of removing such parts of Mindanao from allegiance to
the Philippines, its laws and territory. Besides, they are
already taking control over Mindanao on which it should
be the Government taking control over Mindanao.
Q: What about your opinion Mr. Mamitag?
A: The acts of Maute group in Marawi City is justified for
our President to declare Martial Law or to suspend the
privilege of the writ of habeas corpus to the whole of
Mindanao because the terrorists attacks done by the
Maute group as just the preparation for their plan to take
over Mindanao and if they successfully take over the
Mindanao, there will be a political archival here in the
Philippines because it will tantamount to the separation of
Mindanao from the rest of the State including the
archipelago of Luzon and Visayas as well. As much as
possible, before that imminent possibility of the separation
of Mindanao from the rest of the Philippines, it is better to
prevent that by declaring Martial Law over the whole of
Mindanao.
2. The SC also discussed the difference between
judicial review and the review of the Congress.
RULING:
The Court may strike down the presidential proclamation
in an appropriate proceeding filed by any citizen on the
ground of lack of sufficient factual basis. On the other
hand, Congress may revoke the proclamation or
suspension, which revocation shall not be set aside by the
President.
In reviewing the sufficiency of the factual basis of the
proclamation or suspension, the Court considers only the
information and data available to the President prior to or
at the time of the declaration; it is not allowed td
"undertake an independent investigation beyond the
pleadings."106 On the other hand, Congress may take into
consideration not only data available prior to, but likewise
events supervening the declaration. Unlike the Court I
which does not look into the absolute correctness of the
factual basis as will be discussed below, Congress could
probe deeper and further; it can delve into the accuracy of
the facts presented before it.
In addition, the Court's review power is passive; it is only
initiated by the filing of a petition "in an appropriate
proceeding" by a citizen. On the other hand, Congress'
review mechanism is automatic in the sense that it may be
activated by Congress itself at any time after the
proclamation or suspension was made.
Thus, the power to review by the Court and the power to
revoke by Congress are not only totally different but
likewise independent from each other although concededly,
they have the same trajectory, which is, the nullification of
the presidential proclamation. Needless to say, the power
of the Court to review can be exercised independently from
the power of revocation of Congress.
Q: So it is merely reviewing the factual basis?
A: Yes.
Q: What about validating the factual basis because it is the
Executive who has the machinery with respect to gathering
intelligence as to justify the declaration of martial law and
suspension of the privilege of the writ of habeas corpus?
Reviewing the factual basis is altogether different from
validating. Can the Supreme Court do that?
A: No.
Q: Why?
A: The purpose of judicial review is not the determination
of accuracy or veracity of the facts upon which the
President anchored his declaration of Martial Law or the
suspension of the privilege of the writ of habeas corpus;
rather only the sufficiency of the factual basis as to
convince the President that there is probable cause that
rebellion exists.
Q: So regardless of the truthfulness or falsity of the
information given by the Executive so long as there is
factual basis and the factual basis or bases justify the
declaration of Martial Law and the suspension of the
privilege of the writ of habeas corpus, that’s alright? So as
to verification?
A: As to verification, No.
Q: Why? How was that explained by the SC in this
decision?
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A: Because the knowledge of the court to determine the
veracity of the legal basis for the declaration of martial law
and the suspension of the privilege of the writ of habeas
corpus is limited to the reports submitted by the President
to the Senate whereas as regards to the collected
knowledge and information by the President which may
have been or may not have been disclosed in the report
submitted by the President as compared to the report is
wider or has more basis than that of what would be the
actual basis of the SC in ruling the veracity of such.
Q: So it is possible that the factual basis is exaggerated
pursuant to the report submitted by the President?
A: Yes it is possible. It is also possible that it would miss
certain details.
Q: Why? Who makes the report?
A: It is the Executive so he can design and tailor fit the
report in order to justify the declaration of the martial law
and the suspension of the privilege of the writ of habeas
corpus. He who holds the report can control the report. He
who makes the report can control the report or the
contents of the report in order to justify the declaration
and the suspension.
Q: With respect to the issue regarding what should be the
correct format of the petition in assailing the
constitutionality and validity of the declaration of martial
law and the suspension of the privilege of the writ of
habeas corpus, what should be the form of the petition?
Should it be a formal petition? Does the Constitution
requires a specific form? What does the Constitution say?
A: None. Even through simple letter or writing, the
constitutionality of the declaration and suspension of the
privilege of the writ of habeas corpus can be assailed.
Q: What if the Constitution does not contain the provision
that the provision that the court, upon filing of the
appropriate petition before it can review the factual bases
for the declaration and the suspension? Remove that
particular ingredient. If there is declaration of martial law
and the suspension of the privilege of the writ of habeas
corpus, can the Supreme Court still entertain questions in
order to review the factual bases for the declaration of
martial law and the suspension of the privilege of the writ
of habeas corpus? (HYPOTHETICAL QUESTION)
A: No because the Constitution give the President the sole
discretion to determine the grounds for the declaration of
martial law and suspension of the privilege of the writ of
habeas corpus; wherein this proclamation and suspension
will be conclusive upon all courts. As such, the courts may
not judicially review such.
Since the declaration of martial law and the suspension of
the privilege of the writ of habeas corpus is discretionary
on the President based on the factual information that it
collected, such power may be subject to grave abuse of
discretion. Hence, the proper remedy is to file for a petition
for certiorari under Rule 65 with the SC.
SIR: We have the same point of view. If we remove that
particular provision giving the Supreme Court the power to
review the factual bases, because the definition of judicial
power includes the power to determine whether or not the
government or a branch or instrumentality committed
grave abuse of discretion amounting to lack or excess of
jurisdiction.
 NOTE:
The 1987 Constitution gave enough elbow room for the
courts to look into whether instrumentalities or branches
of our Government in the exercise of their power or abuse
of their power; unlike in the 1973 and 1935 Constitution,
there is none.
 LEE YICK HON v. INSULAR COLLECTOR OF
CUSTOMS
FACTS:
A petition for the writ of habeas corpus was filled in the
Court of First Instance by Lee Yick Hon. He alleged that he
had lately arrived from China at the port of manila with a
view of entering the Philippine Islands, however he was
prevented from doing so and he was detained for
deportation by the Insular Collector.
The Insular Collector was served with a citation issued by
the court to appear and show cause why the writ of
Habeas Corpus should not be issued. However Lee Yick
Hon was deported within two or three hours after the
insular collector has been served with citation to show
cause in habeas corpus proceeding. Thus, a contempt
proceeding was instituted against the insular collector.
On appeal with the Court of Appeals, the Court of Appeals
reversed the decision of CFI ruling that:
1. The citation that was served upon the appellant
required him to appear at a stated time in the
court and show cause why the writ prayed for
should not be issued.
2. The citation was literally complied with when the
Atty. General, on behalf of the Insular Collector,
filed his answer, wherein it was in effect stated
that the case of Lee Yick Hon had been regularly
passed upon by the Special Board of Inquiry and
that it had been found that he had entered the
Philippine Islands in contravention of the
Immigration and Exclusion Acts, wherefore the
Insular Collector had ordered his deportation.
ISSUE:
Is the lawful writ, process, order or judgment of the court
disobeyed by the Insular Collector?
RULING:
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No.
The order to show cause which was served to the insular
collector is not a peremptory writ of habeas corpus but
rather a preliminary citation. In the case at hand, the
Court ruled that the order served to the Insular collector is
merely a preliminary citation requiring the latter to appear
and show cause why the peremptory writ of habeas corpus
should not be granted. This order of citation is being made
in cases where the necessity for the immediate issuance of
the peremptory writ is not manifest. Thus, Preliminary
citation is issued when a person id detained under
governmental authority and the illegality is not patent from
the petition for the writ. On the contrary, peremptory writ
is issued when the cause of the detention appears to be
patently illegal.
Further, a contempt proceeding is not well grounded. It is
well settled that a person cannot be held liable for
contempt in violation of an injunction or in fact if any
judicial order unless the act which is forbidden or required
to be done is clearly and defined, so as to leave no
reasonable doubt or uncertainty as to what specific act or
thing is forbidden or required. In the case at hand, the
deportation of Lee Yick Hon was not forbidden by any
order of the court, and hence cannot be considered as
disobedience to the court.
 IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF BENJAMIN VERGARA
v. HON. FRANCISCO C. GEDORIO JR.
FACTS:
Vergara et al, are the tenants of Berlito P. Taripe on a
property located in Dr. A. Santos Ave., Paranaque City.
Pending the settlement of the estate of the deceased Allers,
Bolao included the property leased by Taripe to Vergara et
al in the inventory of the estate. The probate court issued
an order ordering Vergara et al to pay their monthly
rentals to Bolao. Copies of the order were sent to Vergara
et al via registered mail. Five months later, on motion of
Bolao, as Special Administratrix, the probate court issued
a writ of execution to enforce the aforesaid order. The
Sheriff submitted a return stating that he met with
Vergara et al but failed to collect the rentals due on the
property as Taripe had already collected from them three
months advance rentals.
Six months later, some of the petitioners, together with the
other tenants of the property, informed the probate court
through a letter that they are freezing their monthly
rentals as they are in a quandary as to whom to pay the
rentals. Bolao then filed a motion to cite petitioners in
contempt, which was set for hearing. In its Order, the
probate court found Vergara et al guilty of indirect
contempt and ordered them to pay a fine of P30,000.00
each and to undergo imprisonment until they comply with
the probate courts order for them to pay rentals.
Vergara et al again wrote the probate court asking that the
indirect contempt slapped against them be withdrawn.
They stated that their failure to attend the hearing was due
to financial constraints, most of them working on
construction sites, receiving minimum wages, and
repeated that the reason why they are freezing the monthly
rentals is that they are uncertain as to whom to remit it.
Upon motion of Bolao, the probate court, issued a warrant
of arrest. Vergara et al were arrested. As a result, they filed
with the Court of Appeals a petition for the issuance of a
writ of habeas corpus. The appellate court ordered the
temporary release of petitioners. However, after due
proceedings, the appellate court rendered its decision
denying the petition for lack of merit.
ISSUE:
Should Vergara et al be punished with contempt for failure
to comply with the order of the court?
RULING:
No.
The salutary rule is that the power to punish to contempt
must be exercised on the preservative, not vindictive
principle, and on the corrective and not retaliatory idea of
punishment. Courts must exercise their contempt powers
judiciously and sparingly, with utmost self-restraint. In
Philippine jurisdiction, Section 20, Article 3 of the 1987
Philippine Constitution expressly provides that no person
shall be imprisoned for debt. Debt, as used in the
Constitution, refers to civil debt or one not arising from a
criminal offense. It means any liability to pay arising out of
a contract, express or implied. In the present case, Vergara
et al, as recognized lessees of the estate of the deceased,
were ordered by the probate court to pay the rentals to the
administratrix. Vergara et al did not comply with the order
for the principal reason that they were not certain as to the
rightful person to whom to pay the rentals because it was
a certain Berlito P. Taripe who had originally leased the
subject property to them. Clearly, the payment of rentals is
covered by the constitutional guarantee against
imprisonment.
Moreover, Vergara et al cannot be validly punished for
contempt under Section 8, Rule 71 of the Rules of
Court to wit:
SEC. 8. Imprisonment until order obeyed. When the
contempt consists in the refusal or omission to do an act
which is yet in the power of the respondent to perform, he
may be imprisoned by order of the court concerned until
he performs it because herein subject order is not a special
judgment enforceable, under Section 11, Rule 39. The
order directing the payment of rentals falls within the
purview of Section 9 as quoted above. Until and unless all
the means provided for under Section 9, Rule 39 have been
resorted to and failed, imprisonment for contempt as a
means of coercion for civil purposes cannot be resorted to
by the courts. Where an order for the arrest and
imprisonment of defendant for contempt of court (for
63 | P a g e
failure to satisfy a judgment for support on ground of
insolvency) would, in effect, violate the Constitution. Thus,
Vergara et al could not be held guilty of contempt of court
for their continued refusal to comply with the probate
courts order to pay rentals to the administratrix nor could
they be held guilty of contempt for disobeying the writ of
execution issued by the probate court.
 PETITION FOR HABEAS CORPUS OF DATUKAN
MALANG SALIBO v. WARDEN, Quezon City Jail
FACTS:
From November 7, 2009 to December 19, 2009, Salibowas
allegedly in Saudi Arabia for the Hajj Pilgrimage.When he
arrived home, he learned that police officers suspected him
to be Malang, one of the accused the Maguindanao
Massacre. Salibo presented himself before the Police
Station to clear his name. There, he explained that he was
not Butukan S. Malang and that he could not have
participated in the Maguindanao Massacre because he was
in Saudi Arabia at that time. To support his allegations,
Salibo presented to the police his passport and other
document proving that he was in Saudi Arabia when the
Massacre occurred.Despite his attempt to clear his name,
he was still arrested. They then detained Salibo then
subsequently he was transferred to the Quezon City Jail.
Thus, Salibo filed before the Court of Appeals a Petition for
Habeas Corpusquestioning the legality of his detentio.He
maintained that he is not the accused Butukan S. Malang
and that he was in KSA when the Maguindanao Massacre
happened. The Court of Appeals issued a Writ of Habeas
Corpus, but the Writ is returnable to the Regional Trial
Court, Pasig City.In the RTC, the Office of the Solicitor
General argued that Since Salibo was arrested by virtue of
a Warrant,a petition for habeas corpus was no longer
availing. The RTC held that salibo was notvalidly arrested
and thus, was not judicially charged as the warrant and
information was for a different person,Malang. On appeal
by the Warden, however, the Court of Appeals reversed the
trial court's Decision. It ruled that contrary to the trial
court's finding, the arrest and subsequent detention were
made under a valid Information and Warrant of Arrest.
Even assuming that Salibo was not the Malang named in
the Warrant of Arrest, the Court of Appeals said that the
orderly course of trial must be pursued and the usual
remedies exhausted before the writ of habeas corpus may
be invoked. Hence, Salibo filed for a petition for Review on
Certiorari.
ISSUES:
1. Is the Decision of the RTC on petition of Salibo's Petition
for Habeas Corpus appealable to the CA?
2. Is Salibo's remedy to file a Petition for Habeas Corpus
proper?
RULING:
1. Yes. An application for a writ of habeas corpus may be
made through a petition filed before this court or any of its
members, the Court of Appeals or any of its members in
instances authorized by law, or the Regional Trial Court or
any of its presiding judges.The court or judge grants the
writ and requires the officer or person having custody of
the person allegedly restrained of liberty to file a return of
the writ.A hearing on the return of the writ is then
conducted. The return of the writ may be heard by a court
apart from that which issued the writ.Should the court
issuing the writ designate a lower court to which the writ is
made returnable, the lower court shall proceed to decide
the petition of habeas corpus. By virtue of the designation,
the lower court acquires the power and authority to
determine the merits of the petition for habeas corpus.
Therefore, the decision on the petition is a decision
appealable to the court that has appellate jurisdiction over
decisions of the lower court.
2. YES
The writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived
of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto. The
primary purpose of the writ is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and
to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is
sufficient.
It is true that a writ of habeas corpus may no longer be
issued if the person allegedly deprived of liberty is
restrained under a lawful process or order of the court.
The restraint then has become legal, and the remedy of
habeas corpus is rendered moot and academic. It does not
apply, however, where a person was deprived of his liberty
due to mistaken identity. In such cases, the person is not
under any lawful process and is continuously being
illegally detained.
 IN THE MATTER OF APPLICATION FOR THE
ISSUANCE OF A WRIT OF HABEAS CORPUS BY
RICHARD BRIAN THORNTON v. ADELFA
FRANCISCO THORNTON
FACTS:
Richard Brian Thornton and Adelfa Francisca Thornton,
were married on August 28, 1998 in Manila. A year later,
Adelfa gave birth to a baby girl whom they named Sequeira
Jennifer Delle Francisco Thornton. However, after three
years, Adelfa got fed up as a plain housewife. She wanted
to return to her old job as a "guest relations officer" in a
nightclub, with the freedom to go out with her friends. In
fact, whenever Richard was out of the country, Adelfa was
also often out with her friends, leaving her daughter in the
care of the house helper.
Richard gently confronted Adelfa about her irresponsibility
but she continued her carefree ways. On December 7,
2001, Adelfa left the family home with her daughter
64 | P a g e
Sequiera without notifying Richard. She told the helper
that she was bringing Sequiera to Basilan Province.
Richard then filed a petition for habeas corpus in the
designated Family Court in Makati City but this was
dismissed, for the reason that it was indicated in the
petition, as allegation, that the child was in Basilan.
Richard then went to Basilan to ascertain the whereabouts
of Adelfa and Sequiera, only to find out that Adelfa was no
longer residing there. Richard thereafter filed another
petition for habeas corpus, this time in the Court of
Appeals (CA). This petition was denied on the ground that
it did not have jurisdiction over the case. It ruled that RA
8369 (The Family Courts Act of 1997) gave family courts
exclusive original jurisdiction over petitions for habeas
corpus, it impliedly repealed RA 7902 (An Act Expanding
the Jurisdiction of the Court of Appeals) and Batas
Pambansa 129 (The Judiciary Reorganization Act of 1980).
ISSUE:
Does the Court of Appeals have jurisdiction to issue writs
of habeas corpus in cases involving custody of minors?
RULING:
Yes.
The provisions of RA 8369 reveal no manifest intent to
revoke the jurisdiction of the Court of Appeals and
Supreme Court to issue writs of habeas corpus relating to
the custody of minors.
Further, it cannot be said that the provisions of RA 8369,
RA 7092 and BP 129 are absolutely incompatible since RA
8369 does not prohibit the CA and SC from issuing writs of
habeas corpus in cases involving the custody of minors.
Thus, the provisions of RA 8369 must be read in harmony
with RA 7029 and BP 129. Thus, the Family Courts have
concurrent jurisdiction with the CA and the SC in petitions
for habeas corupus where the custody of minor is at issue.
The Family Court can issue writs of habeas corpus
enforceable only within its territorial jurisdiction. On the
other hand, in cases where the territorial jurisdiction for
the enforcement of the writ cannot be determined with
certainty, the Court of Appeals can issue the same writ
enforceable throughout the Philippines.
The CAs reasoning will result in an iniquitous situation,
leaving individuals like petitioner without legal recourse in
obtaining custody of their children. Individuals who do not
know the whereabouts of minors they are looking for
would be helpless since they cannot seek redress from
family courts whose writs are enforceable only in their
respective territorial jurisdictions. Thus, if a minor is being
transferred from one place to another, which seems to be
the case here, Richard, in a habeas corpus case will be left
without legal remedy. This lack of recourse could not have
been the intention of the lawmakers when they passed the
Family Courts Act of 1997. Therefore, the CA has
jurisdiction to issue writs of habeas corpus involving
custody of minors.
 ALFREDO B. SAULO v. BRIG. GENERAL
PELAGIO CRUZ
FACTS:
After successfully evading arrest in connection with three
criminal cases one for inciting to rebellion with murders,
arsons, robberies and kidnappings, Alfredo B. Saulo, in
whose behalf the present petition for a writ of habeas
corpus has been presented, finally showed up at the
Indonesian Embassy, Manila, to seek refuge. One of the
two criminal cases for rebellion having been dismissed
with respect to him on motion of the prosecution, Saulo
put up bail in the two remaining cases. When the
corresponding order for his temporary release was served,
the herein respondent Commanding General of the
Philippine Constabulary commanded one of his
subordinates to withhold the release of Saulo on account
that there is still pending criminal case. Said criminal case
is a complaint against Saulo, for alleged violation of
Republic Act No. 1700, otherwise known as the Anti-
Subversion Act. While the preliminary investigation was
still going on petitioner applied for a writ of habeas corpus
with the Supreme Court on the ground that his detention
is without warrant of arrest, by reason of the pendency of
the aforesaid Criminal Case, is illegal and void. It gave due
course to the application and directed the respondent
Commanding General of the Philippine Constabulary to file
answer, returnable to the Court of First Instance of Manila.
Respondent filed answer, as directed, admitting practically
all the facts above related and alleged in the application,
with the plea that "the pendency of the Criminal Case for
violation of Republic Act No. 1700. The Court of First
instance of Manila consequently denied the petition for
habeas corpus.
ISSUE:
Does the Court of First Instance to whom the writ is
returned to have the authority to examine and settle issues
raised in the case?
RULING:
Yes. When a writ of habeas corpus is, conformably to law,
made returnable to a court other than that issuing the
writ, the court to which the writ is returned, or the judge
thereof, possesses full authority to examine all issues
raised in the case and to settle the same. After a return to
a writ, it must pass upon all questions of both law and fact
and determine the ultimate question whether the prisoner
is wrongfully restrained of his liberty. It is necessary for
the court to determine the credibility of the evidence where
the testimony is conflicting. It the case for determination
on the merits, and its findings, either for the release of the
detainee or for sustaining his continued custody, if not
appealed on time, can become final just as it may in an
ordinary case.
65 | P a g e
Q: Now that Mindanao is declared under Martial Law by
virtue of its extension. During the pendency of the Martial
Law effectivity, is there any prohibition on the part of any
citizen to file another petition contesting such
proclamation or suspension?
A: Constitutionally, there is none. There is none in the
Constitution which prohibits a citizen from questioning the
factual bases for the extension of Martial Law.
MIDTERM EXAMS Q and As:
I. On January 2, 2019, Deborah Malaya, who
has been residing in New Zealand came home
to the Philippines only to know that her
distant cousin Bratinella died sometime in
June 2016 in Baguio City. He was survived by
his husband King and 4 children Prince,
Empress, Duke and Count. King filed a
petition of settlement of estate of Bratinella in
the RTC of Baguio City to be appointed as an
administrator in Bratinella’s estate and letters
administration be issued to him. The court
granted the petition and letters of
administration was issued to King. Notice to
creditors was issued by the Court and order
was published in the Baguio Midland Courier
for three consecutive Sundays from January 7,
14, and 21, 2016.
On January 5, 2019, Deborah Malaya filed a claim
in Bratinella’s estate alleging that Bratinella
obtained a loan from her in the amount of 500,000
which Bratinella failed to pay. King opposed
Deborah Malaya’s claim alleging that it was
already barred since it was filed beyond the
required period under the rules. He further alleged
that he has paid all the debts and charges on
Bratinella’s estate and that a project of partition of
the residuary estate was finalized by him and his
four children which was submitted to the court for
its approval.
a. Rule on the claim of Deborah Malaya
A: The claim of Deborah Malaya should be granted.
Under the statue of non-claims, claims against the estate
must be filed by a creditor or a claimant not more than 12
months nor less than six months from the first
publication. However, at any time before an order of
distribution is entered, on application of a creditor who
has failed to file his claim within the time previously
limited, the court may, for a cause shown and on such
terms as are equitable, allow such claim to be filed within
a time not exceeding one month.
Q: Based on the fact, do you think that the ground of
Deborah Malaya is meritorious as to warrant the
applicability of the exception?
A : Yes. It is meritorious. KASI NON-RESIDENT SIYA.
 CAVEAT: Do not qualify. There are particular
facts that we want to play on. Do not just take for
granted the facts given in the problem.
b. If the loan of Bratinella was secured by a
mortgage on a parcel of land of Bratinella,
what would have been the available remedies
of Deborah Malaya?
A: The available remedies of Deborah Malaya are the
following:
1. To extrajudicially foreclose the mortgaged
property. However, she cannot claim any
deficiency resulting from the insufficiency of the
sale if any;
2. To judicially foreclose the mortgaged property. Any
deficiency may be claimed further against the
estate of Bratinella; and
3. To file a written claim against the estate of
Bratinella. Consequently, it is considered as a
waiver of he right to foreclose the mortgaged land.
 CAVEAT: But these remedies are not
cumulative; they are alternative and exclusive.
Availing one means to say that the others are
foregone.
II. On September 15, 2016, Cherilyn Gonzales, a
long-time resident of Baguio City died intestate
leaving properties consisting of three-storey
house built on a lot; two vehicles (Hilux 4x4
and Montero SUV); condominium apartment
located at Ortigas Center, Pasig City; cash
deposited with the BPI Ayala Branch, Makati
and bank deposits with BPI Baguio Session
Road Branch. No known heirs of Cherilyn
Gonzales appears to claim the said properties.
a. Who should file the proper proceeding to
collect the estate left by Cherilyn Gonzales and
where should the same be filed?
A: The Republic of the Philippines through the Solicitor
General should file an escheat proceeding to settle the
estate left by Cherilyn by virtue of its sovereignty, as the
State is the ultimate heir of its citizens.
The escheat proceeding should be filed before the Regional
Trial Court of Baguio City. Escheat proceeding is within
the exclusive jurisdiction of the Regional Trial Court. As to
venue, the proceeding should be filed at the last known
residence of the deceased. In this case, it is undisputed
that the deceased last resided in Baguio City.
SIR:
Escheat proceedings must be commenced by the State,
through the Office of the Solicitor General considering that
she left no known heirs, no debt, and no will with respect
to all the personal and real properties except the bank
accounts. For the bank accounts, what shall prevail would
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be the Bangko Sentral ng Pilipinas rules. Only when the
account has been declared as dormant could escheat
proceeding commence.
b. What should the court do upon receipt of the
petition?
A: If the court finds that the petition is sufficient in form
and substance and it is verified, then the court, upon
receipt of the petition shall set the time and date for the
hearing for the said escheat proceedings. Futher, there
would be a publication for the said hearing in a newspaper
of general circulation once every week for six consecutive
weeks and notifies as well the Office of the Solicitor
General.
c. If no opposition was entered and after hearing,
to whom shall the properties of Cherilyn
Gonzales be awarded?
A: If the escheat is granted, the real properties and
personal properties other than the cash if he is a
resident will go to the local government unit.
1. 3-storey house built on a lot – Baguio City
2. 2 vehicles (Hilux 4x4 and Montero SUV) – Baguio
City
3. Condominium Apartment ATP – Pasig City
4. Cash deposited with the BPI Ayala Branch Makati
City – Makati City
5. Bank deposits with the BPI Session Road Branch –
Baguio City
PROVIDED that the same must be utilized by the local
government for educational, charitable and similar
purposes.
d. If any of Cherilyn’s heirs or other persons has a
claim against her estate should appear after the
judgment was issued by the court, can they
recover?
A: Yes. The heirs and other persons having claim
against the estate of Cherilyn Gonzales can still
recover from Cherilyn Gonzales’ properties provided
they will file such claim within 5 years from judgment
thereof.
Otherwise, if the respective claim is will only be filed
beyond the five-year period required by law, their
respective claims will forever be barred.
III. King and Deborah, due to being members of
different religious denominations, decided not
to marry and happy lived together as couple
for 30 years. They purchased properties
together. After King died intestate, Deborah
filed a petition for letters of administration.
Prince and Emperor opposed the petition on
the ground that Deborah has no legal
personality. If you are the judge, will you grant
Deborah’s petition?
A: I will grant Deborah’s petition.
Any person who has an interest over the estate of the
deceased can file a petition for letters of
administration, if the deceased died intestate.
As the common law wife of the deceased, who co-
owned properties of the latter, Deborah has a valid
interest over the estate of King. Further, the grant of
such petition is also within the discretion of the judge
handling the case.
As the judge of this case, I will hold that Deborah has
legal personality on filing such petition for letters of
administration, and that it is for the best interest of
the estate of King.
SIR:
While there is a rule with respect to preference on who
must be appointed as administrator, such is not a
hard and fast rule and as a matter of fact, that is
merely recommendatory upon the court; the court may
even appoint someone not from the enumeration.
Much more in this particular case, where Deborah is a
co-owner of the property; she has all the more
personality to be appointed as an administrator of the
estate of the decedent King.
IV. Before Rocky’s death, he contracted a 10 M
loan with the Banco Delas Islas Filipinas
secured with his lot with a building with a
market value of 20 M. When Rocky’s debt
became due and demandable, Banco delas
Islas Filipinas filed its money with the probate
court settling Rocky’s estate. 2 years from
filing his money claim and considering that it’s
taking quite some time for the probate court to
settle Rocky’s estate; Banco delas Islas
Filipinas instituted a judicial foreclosure of
real estate mortgage to which the
administrator of Rocky’s estate moved to be
dismissed. Resolve the motion with reason.
A: The motion to dismiss must be granted.
A creditor of a deceased has three options to pursue
his claim:
1. To judicially foreclose the mortgaged property
2. To extrajudically foreclose the property
3. To file its money claim against the estate of the
deceased with the proper probate court.
Once the creditor chose an option, he waives all others
because these options are alternative and mutually
exclusive.
In this case, it is apparent that Barco delas Islas Filipinas
chose the third option. Consequently, it waived its right to
foreclose the mortgaged property. As such, it is an error on
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its part to institute a judicial foreclosure subsequent to its
filing of the money claim.
Hence, the motion to dismiss filed by the administrator
should be granted.
V. Considering the state of dormancy for 9 years
since the last movement of Don Frias savings
account with Banco delas Islas Filipinas and
by virtue of the bank’s manager knowledge by
the death of Don Frias, the bank manager
notified the Treasurer to inform the OSG of the
inactivity of Don Frias’ saving’s account. The
OSG commenced escheat proceedings.
Q: Should the court grant the escheat?
A: No, the court should not grant the escheat proceedings.
Under PD 679 or the Unclaimed Balance Act, the bank
manager of the bank which has a dormant account shall
notify the treasurer of the Philippines, if such bank
account remains dormant for a period of 10 years from its
last activity.
In this case, the state of dormancy of the account is short
of 1 year. Thus, it is an error for the bank manager to
notify the treasurer and for the OSG to initiate the escheat,
being premature.
Hence, the Court should not grant the escheat for lack of
jurisdiction, the case being premature.
Q: So no cause of action yet?
A: Yes.
VI. John Paul Ordinario filed a petition for
guardianship over the person and properties of
his biological father Mark Fevy Mamitag. Upon
receipt of the notice of hearing, Mark Fevy
Mamitag filed an opposition to the petition of
John Paul Ordinario. John Paul Ordinarion
filed a petition before the court to order Mark
Fevy Mamitag to submit to physical and
mental examination which the court granted.
Mark Fevy Mamitag filed a demurrer to
evidence. John Paul Ordinario’s lawyer
objected on the ground that the demurrer to
evidence is not proper in special proceedings.
a. Is a demurrer to evidence allowed in a petition
for guardianship?
A: Yes, a demurrer to evidence is allowed in a petition
for guardianship.
A petition for guardianship is primarily governed by
the Rules on Special Proceedings i.e Rule 91 to 97, and
the subsequent rules on guardianship of minors.
However, the Rules on Civil Procedure will remain in
effect as suppletory in character in governing a petition
for guardianship unless otherwise stated under the
Special Rules.
A reading of the rules on guardianship would show
that a demurrer to evidence is not prohibited.
Therefore, following the rules and principles stated, a
demurrer to evidence is allowed in a petition for
guardianship.
b. Assume that the order directing Mark Fevy
Mamitag to physical and mental examination is
allowed under the rules, can the court order his
arrest for purposes of complying with the said
order?
A: No, the court cannot order his arrest.
Under Sec. 3 of Rule 29 of the Rules of Court, refusal
to comply with the court order directing an individual
to undergo physical and mental examination would
not result to the arrest of such person.
Therefore, pursuant to the express rule, Mark Fevy
Mamitag cannot be arrested for such refusal.
VII. .State the order of preference in the
appointment of a regular administrator
A: As provided in Sec. 6, Rule 78 of the Rules of Court,
the order of preference in the appointment of a regular
administrator is:
1. Surviving spouse or next of kin or both at the
discretion of the court or any person suggested by
either the surviving spouse or next of kin to be
appointed
2. If within thirty days after the death of the
decedent, the surviving spouse or next of kin failed
to file for a petition for letters administration or
failed to suggest a person to be appointed or they
be incompetent, then the preferred creditor may be
appointed as administrator if willing to serve
3. If ther is still no creditor, then any person who
may be competent upon the order of the court.
VIII. Being the eldest next of kin, Kuyang Pido
Dido’s application for the issuance of letters
administration in the judicial settlement of
estate of Kuyang Eleazar was granted by the
probate court on March 1, 2015 which order
was received on March 15, 2015 by Ateng
Krystal, the surviving spouse of Kuyang
Eleazar who was pregnant. Ateng Krystal filed
a motion for reconsideration of the court’s
order on March 30, 2015. The court denied the
motion for reconsideration which order was
received by Ateng Krystal on April 1, 2015.
Undaunted, Ateng Krystal filed a notice of
appeal and record on appeal on May 2, 2015,
considering that May 1, 2015 was a holiday.
Kuyang Pido Dido objected on the appeal
stating that it was filed out of time because of
the following reasons:
1. Under the Rules, an appeal must be filed
within 15 days from notice of the order or
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judgment subject of a motion to appeal
unless a motion for reconsideration was
previously filed which was subsequently
denied and in such case the appellant may
file the appeal within the remaining period
which in no case should be less than 5
days. Since Ateng Krystal filed her motion
for reconsideration, on the 15th day, she
only has 5 days to appeal reckoned from
the notice of the order of denial.
2. The proper mode is simply a notice and
not coupled with a record on appeal.
In the meantime that the appointment for regular
administrator had yet to be resolved, Kambal Samuel and
Kambal Sarenas. Identical twins and siblings of Kuyang
Pido Dido moved that they be appointed as a joint special
administrators which was granted by the probate court
over the opposition of Ateng Krystal considering that
Kambal Samuel and Kambal Sarenas are drug-dependent
and a party maniac respectively which circumstances
impede the proper administration of the estate of Kuyang
Eleazar.
The order appointing Kambal Samuel and Kambal Arenas
was brought to the appellate court via a notice of appeal
and a record on appeal.
While awaiting the decision of the appellate court with
respect to the pending incidents, Kambal Samuel and
Kambal Arenas entered upon their duites as special
administrators after taking their respective oaths and
posting of their respective bonds. They submitted an
inventory of all the properties forming part of the estate of
Kuyan Eleazar and one of such property is a 1000-square
meter of untitled lot with improvements in the possession
of Ateng Krystal while the tax declaration thereof is in the
name of the late Kuyang Eleazar. Ateng Krystal objected to
the inclusion of the said property as a part of the estate of
Kuyang Eleazar claiming that she is the real owner and the
same is her paraphernal and exclusive property and not
part of the conjugal property with the late Kuyang Eleazar.
To prove her claim of ownership, she presented her
application for a free patent with the property RD of the
DENR which dates back prior to her marriage with Kuyang
Eleazar. The Probate court made a ruling regarding the
ownership of the 1000- square meter of untitled lot in favor
of Ateng Krystal.
a. Rule with reasons on the objections of Kuyang
Pido Dido with respect to the appeal of Ateng
Krystal on the order appointing him as regular
administrator. Rule with reasons.
A: On his FIRST OBJECTION, Kuyang Pido Dido is wrong.
The fresh period rule does not apply in the issue regarding
the appointment of a regular administrator. In fact, a
notice of appeal and a record of appeal must be filed within
30 days from receipt of the order denying the motion for
reconsideration which was previously filed.
In this case, Ateng Krystal filed her appeal within the
reglementary period on May 2, 2015 which is 30 days from
her receipt of the denial of her motion on April 1, 2015,
considering that May 1, 2015 was a holiday.
SIR:
It is actually Zayco v. Hinlo which actually punctuated
the Neypes ruling.
On his SECOND OBJECTION, Kuyang Pido Dido is also
wrong.
Appeals in cases of special proceedings must be coupled
with a record of appeal, not simply a notice of appeal, as
expressly provided for under the Rules on Special
Proceedings.
b. Are Kambal Samuel and Kambal Arenas
incompetent and thus, cannot be appointed as
special adminsitrators? Look Kambal Samuel is
a drug dependent and Kambal Arenas is a party
maniac.
A: Yes. For the party maniac, not necessarily incompetent.
But for the drug-dependent, there is want of integrity
there. Because those are qualifying words. It is so general.
c. Was the remedy used by Ateng Krystal with
respect to the order appointing Kambal Samuel
and Arenas correct?
A: No. The remedy used by Ateng Krystal is not correct.
The order appointing a special administrator is considered
as an interlocutory order, not a final order. Hence, the
proper remedy of Ateng Krystal is a petition for certiorari
under Rule 65 on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction.
d. As a court of special and limited jurisdiction,
was the probate court correct in passing upon
the issue regading the ownership of the 1000-
square meter of untitled lot?
A: Yes. The probate court is correct in passing upon the
issue regarding the ownership.
As a general rule, a probate court cannot decided on issues
of ownership. The exceptions however are the following:
1. matters which shall be included or excluded in the
etate of the deceased
2. collation or advancement, and
3. when the parties subject themselves to the
jurisdiction of the court and consented thereto
without prejudice to third persons.
In this case, the ruling made by the probate court
regarding the issue of ownership over the untitled land is
proper, as provisionally ruling to determine in passing
properties to be included in the estate of the deceased.
This decision, however, is without prejudice to the final
determination of ownership in a separate proceedings.
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Q: Are the parties all relatives?
A: Yes
Q: Will it prejudice the rights of a third person?
A: NO.
The court therefore, can provisionally pass upon the issue
on ownership; but it is only provisional.
IX. The remedies of an excluded heir and an
excluded creditor are the following:
1. To file an ordinary civil action for a collection suit
within two years from settlement
2. To go against the bond posted, within two years
from settlement
3. To file a letter of administration in order to manage
the estate of the deceased. It must be filed within
two years from settlement.
4. To go against the real property of the deceased, if
any, filed within two years from settlement; and
5. To file an action for rescission on the ground of
fraud, filed within four years from such discovery
of the fraud
The remedies which are exclusive to the excluded heir are:
1. To file an annulment of extrajudicial settlement of
estate within 4 years from such settlement
2. To file an action for rescission on the ground of
lesion within 4 years from settlement
3. To file an action for reconveyance as an implied
trustee on the ground of fraud within 10 years
from settlement.
X. Define the following:
a. ADMINISTRATION
Administration in judicial settlement of estate is the last
stage of settlement wherein there will already be
distribution to the entitled heirs, legatees and devises and
such other persons entitled thereto.
b. LIQUIDATION
Liquidation in judicial settlement of estate is listing down
all the assets and liabilities of the estate; deducting from
the assets the liabilities before it will be distributed to the
heirs, devises and legatees.
c. ESCHEAT
Escheat is a judicial proceeding in which the State, by
virtue of its sovereignty, steps in and claims abandoned,
left vacant and unclaimed properties, wherein no person
appears to have a legal claim thereto.
WRIT OF HABEAS CORPUS
Habeas Corpus only applies with respect to living bodies
deprived of liberty whether he is deprived of his action OR
locomotion or BOTH his action or locomotion.
Q: What about the Extra legal killings and the
government is behind the missing persons?
A: The answer to this dilemma is the Writ of Amparo.
WRIT OF AMPARO
This is promulgated September 25, 2007 and became
effective on October 24, 2007.
CHARACTERISTICS OF A WRIT OF AMPARO
1. It is NOT a high prerogative writ like the Habeas
Corpus
2. It is NOT a “paledium”?? of rights like the Habeas
Corpus.
3. It is a prerogative writ and it is meant NOT to supply
NOR supplement your habeas corpus but it is
intended to answer certain questions which can be
answered by your WoHC
4. It is SUI GENERIS because it is not a criminal case
nor a civil case nor an administrative suit
5. Like you Habeas Corpus, it is summary in nature and
it is born out of the SC’s rule-making power
- Because it is born out of the SC’s rule-making
power, which is the power to promulgate rules for
the protection and enforcement of constitutional
rights.
- The constitutional rights protected and enforced
are the constitutional right to life, security, and
liberty.
- The SC said that the Amparo Writ is NOT
intended to protect and enforce property rights. It
is decided primarily to protect and enforce
constitutional rights of life,liberty, and security or
threats to life, threats to liberty, threats to
security. This is what is beautiful about the Writ
of Amparo and the Writ of Habeas Datat because
even mere threats can be addressed by these
writs.
 SHORT HISTORY
But do take note that way back 2007 and 2 decades
thereafter, it is still NOT that comprehensive as compared
to its Latin-American counterparts. It originated in Mexico
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and there was a lot of EJK in Mexico particularly the
shared border between the USA and Mexico. Inlcuding
Bolivia, Columbia, Valenzuela, and Chile. There is these
prerogative writ for your Amparo.
Even though the Writ of Amparo in the Philippines is not
that extensive or comprehensive compared to its Latin-
American counterparts, it is allowed to evolve through time
through jurisprudence, law, and practice.
 5 MEXICAN WRITS OF AMPARO
1. AMPARO LIBERTAD
- This is equivalent to our Habeas Corpus
2. AMPARO CONTRALAYAS
- This is equivalent to your review of the
constitutionality of statutes
3. AMPARO CASACION
- Judical review of the constitutionality and legality
of judicial decisions
4. AMPARO ADMINISTRATIBO
- This is with respect to the power to judicially
review administrative cases
5. AGRARIO AMPARO
- In Columbia,etc. there were large peasant settors.
If there are tenancy here in the Philippines, there
was the Encomendero and Encomendera System.
 FUN FACT: the Philippines was not directly ruled
by Spain but was ruled by the Viscon for Spain.
That is why were ruled by Spain through Mexico.
Your tortilla and empanada are actually mexican
origin.
 COVERAGE OF THE WRIT OF AMPARO
EJK and Enforced Disappearances because it was
premeditated. These are one of the reasons why the Writ of
Amparo was promulgated. Even threats are covered but
the threats must not be from one’s imagination. There can
be threats to life, threats to liberty, and threats to security.
The writ must be availed of judiciously and
circumspectively and not due to whims and caprices.
Q: Referred where?
A: When it is directly filed to the CA or SC and it is a case
of noble issue or a controversial case it is referred to the
RTC.
 NATURE OF WOA
The nature is both amicable and extraordinary and it is
both preventive and curative.
Q: Why is it curative?
A: Curative because the coverage is EJK and enforced
disappearances. If you happen to know the persons behind
the EJK and the ED, isn’t it curative? And the responsible
person shall be placed in the custody of the law. In
criminal and civil cases, it may be subsequently insituted
against them. The fine in a petition for a WOA and Writ of
Habeas Data does not preclude the filing of a separate civil
or criminal case.
If there is a civil case or a criminal and there is a
subsequent petition for a WOA and Writ of Habeas Data
(WHD), the WOA and habeas data will be consolidated
in the criminal case. BUT know the rules on the joinder
of causes of action.
 EXCEPTION TO THE CONSOLIDATION OF
ACTIONS
Whereby if the WOA or WHD is consolidated in the
criminal and/or civil case as the case may be, the civil
and/or criminal shall be governed by the Civil Rules on
Procedure and Criminal Rules on Procedure. The WOA and
WHD shall be governed by the Amparo Rules and Habeas
Data Rule or Data Rule as the case may be.
Q: Why is it PREVENTIVE?
A: Because if it is indeed proven that there are threats to
EJK of ED, then an Amparo Writ shall be issued. This is
intended to address, as one of the coverage of the WOA,
the EJK and ED.
Q: What are EJK?
A: These are killings committed without due process of
law, without legal safeguards and judicial proceedings.
These may include the illegal taking of life regardless of the
motive. Even if you are part of a terrorist group, due
process must still apply. You cannot be exterminated
without due process. Death penalty is prohibited
statutorily but constitutionally it is still there. Additional
examples, Summary execution and salvaging.
Q: How are Enforced Disappearances characterized?
ADA
a. Arrest;
b. Detention; and
c. Abduction
Defined in its generic sense and not as defined by the
Revised Penal Code. Aduction is NOT kidnapping. Taking a
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person and depriving that person of his/her liberty by a
government official or an organized group or a private
individual with the direct or indirect acquisence of the
government.
Q: Against whom the WOA or WHD may be enforced or
implemented?
It can be enforced against the government. It can be
imposed against an instrumentally or agency of the
government or directed against a public official or
employee like even private organizations and private
individuals can be subject of a WOA BUT in one of the
cases of the SC, if it would merely be a case involving a
private organization or private individual that is behind the
disappearance of a person, that only becomes a simple
case of a missing person because if a person disappears on
account of the responsibility of a private person or private
organization that must be under the direct or the indirect
acquisence of the government. In short, there must be the
direct or indirect participation of the government.
If without the direct or indirect participation of the
government, then a WOA and/or WHD CANNOT be
successfully granted.
The refusal of the state to disclose the fate or the
whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such
persons outside the protection of the law. If this is done,
even if there is no direct acquisence/participation of the
state, there is indirect participation of the government.
 EXAMPLE:
A person disappears and was reported as missing. When
asked by the proper authorities. What are the ways in
which you maximize the location of the missing person?
Then the person reporting a person who is missing
explained the circumstances behind the disappearances of
the person. Missing persons go missing usually because of
political motives by the government and the government
usually shies away or does nothing with respect to that
particular report with the ending view of removing from the
ambit of the protection of the law that person, then there is
INDIRECT participation of the government.
REPUBLIC ACT NO. 9851
Remember that the WOA is intended to evolve through
time, statute, and SC decisions.
In 2009, 2 years after the effectivity of the WOA, RA 9851
was enacted. RA 9851 is the Philippine Act on crimes
against international humanitarian law. It defined under
Section 3(g) what is Enforced or Involuntary
Disappearance of persons. This definition is signifant in
order to determine whether an application for the issuance
of a WOA must be granted. Because if the disappearance
does not fall squarely within the definition of Enforced or
Involuntary disappearance of persons, then the alleged
crime is with respect to crimes against humanity. Your
WOA will NOT be issued.
It means that the ADA of persons by or with the
authorization or support of a state or political organization
followed by the refusal to acknowledge that the deprivation
of freedom or to give information on the fate or
whereabouts of the persons with the intention of removing
them from the protection of the law for a prolonged period
of time.
Available to any person whos right to life, liberty, or
security is violated or threatened by an unlawful act or
omission by a public official or employee or private
individual.
 PROCEDURAL ASPECT
When there is an aggrieved party with respect to threats to
life, liberty, security or threats of enforced disappearances
or if the person is already dead (Extra legal killings)
because he is a victim of enforced disappearance. Then
any member of the immediate family (legal spouse,
legitimate or illegitimate children, any ascendant or
descendant or collateral relative of the aggrieved party
within the 4th degree of consanguinity or affinity) but if
none, any concerned citizen,any organization, association
or institution.
Q: Who may file?
A:
1. Aggrieved party
2. Any qualified person or entity in the following order:
a. Any member of the immediate family – spouse, children,
parents of aggrieved party.
b. Any ascendant, descendant, or collateral relative of
aggrieved party within fourth civil degree of consanguinity
or affinity.
c. Any concerned citizen, organization, association, or
institution.
 FILING
In the petition, state why you are the ascendant or
descendant, why no other member of the immediate family
has filed. Either because their is no member of the
immeidate family or if there are, allege that the members of
the immediate family refuses to file the petition.
If you are a concerned citizen, explain why no member of
the immediate family or ascendant filed a petition.
 DOCKET FEES
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Filing of a petition is exempt from the payment of docket
fees and other lawful fees. Remember in civil procedure
that the payment of docket fees is jurisdictional and in
filing a civil suit with a court that has no jurisdiction, you
cannot be reimbursed. Much more, you cannot request
that the previously paid docket fees be considered as
compliance or partial compliance with respect to the
payment of the current civil suit.
 WHEN AND WHERE TO FILE
Like the habeas corpus, it may be filed at any day and at
any time at:
a) the RTC in the place where the threat or where the
commission or any of its elements has occured or
b) Sandiganbayan, or
c) SC or
d) CA
 NOTE:
If issued by the RTC, it is only enforceable within its
territorial jurisdiction. Particularly its regional jurisdiction
of the granting RTC. But if it is the SB, SC, or CA, it is
enforceable anywhere in the archipelago of the Philippines.
 EFFECTS OF THE INSTITUTION OF SEPARATE
ACTIONS
A. The effects of the petition for the issuance of a writ
of amparo was instituted first e.g. January 5, 2015 and
a criminal case for e.g. murder was filed on January 5,
2016 and these has not yet been terminated, there
shall be an automatic consolidation of the previously
instituted petition with that subsequently instituted
criminal case.
Under Rule 111, there is the implied institution of civil
liability ex delicto in criminal cases. This is why the civil
liability arising from obligation ex delicto is impliedly
instituted in the criminal case unless there is:
a. Waiver
b. Previous institution or
c. Reservation
B. If there was the instituion of the criminal case first
and then there was the petition for the issuance of the
writ of amparo, they will be consolidated.
Actually, there is no need for any consolidation because
there is only the need to MOVE for the issuance of the writ
of amparo .
 LAPUZ V. DEL ROSARIO
The SC said that the Writ of Amparo should not be issued
and applied as a substitute for an appeal or certiorari
process or when it will inordinately interfere with these
processes. Like your certiorari, it is not an alternative to
your writ of error and your writ of amparo is not an
alternative to your writ of error or writ of superintending
writ. Superintending writ is your writ of certiorari. Thus
when there is an ongoing civil process, dealing directly
with a possessory dispute and the reported acts of violence
and harassment there is no point in separately and
directly intervening in the absence of any clear prima facie
showing that the right to life, liberty and security is
immediately in danger or threatened or that the danger or
threat will be imminent. However, there is no legal bar for
the application of a petition for the issuance of the writ in
a proper case. Either in a motion or a pending case. A
criminal case already filed, there is no need to file a
petition but there is only the need to file a motion.
By motion in a pending case, there can be an original case
or an appealed by via appeal or through the remedy of
certiorari.
 SUMMARY
1. If criminal actions subsequently filed, the effect is it is
consolidated. The rules that shall govern for criminal cases
is Rule 111 to Rule 127 while for the Petition for the
issuance of a Writ of Amparo is the Rule on Amparo.
2. If a civil action is subsequently filed, PWA will be
consolidated with the civil action. The rules that will
govern the civil action are Rule 12(class answers) to 139
and also Rule 155.
3. If both criminal action and civil action are subsequently
filed and the civil action arises out of the criminal action
then Rules 1102 and 31:37
 CONTENTS OF THE PETITION
1. It must be signed and verified
- The proper way to phrase your verification is that
it must be based on personal knowledge and
information and authentic documents
2. State the personal circumstances of the petitioner
- Who is the petitioner? He is the aggrieved party or
a member of the family or a descendant or
ascendant or a concerned citizen
3. State the circumstances of the respondent
responsible for the threat or act or omission
73 | P a g e
- The rule on description personae applies
EXAMPLE:
If it were the state responsible for the disappearance or
extra legal killing of the person.
4. State what was violated: right to life, right to liberty,
or right to security
- The aggrieved party has been violated his rights or
there was a violation through an unlawfal act or
omission.
- Was it the right to life or liberty or both that was
violated?
- Was it a threat to life or liberty or security?
- Do NOT couch it in general terms but must be
couched in particular terms. Example: “For 15
days from the last day that I was held in
captive….”
5. State the jurisdictional facts
- Was there an invesitgation conducted, if any?
- Was it reported to the proper authorities?
6. State the recourses/ actions taken by the petitioner
to determine the fate or whereabouts of the aggrieved
party and identity of the person responsible for the
threat
- The SC held that it is a jurisdictional requirement
to state the action or recourse taken. Or in order
to discover the identity of the person responsible
for the continuous threat to life, liberty, and
security.
- State the condition and facts. Therefore, reporting
to the proper authorities is a sine qua non. This is
because you must show in the face of your petition
that there is direct or indirect participation by the
state.
- If not, your petition facially is DEFECTIVE. When
your petition or complaint in an ordinary civil
action is defective, it is suceptible to dismissal. For
the civil action, it will be on the ground of failure
to state a cause of action.
The relief prayed for is the writ of amparo. You pray for the
privilege of a Writ of Amparo. There are 4 interim relief that
you could pray for such as Inspection order and Protection
order.
 LAPUZ V. DEL ROSARIO
The SC held that writ shall be issued if the court is
primarily satisfied with prima facie existence of the
ultimate facts determinable from the sworn affidavits. The
detail and the circumstances of how and to what extent a
threat to or the violation of the rights to life, liberty, and
security of the aggrieved party was or is being compelled.
The SC also held that the writ does not protect concerns
that are purely property or commercial. It cannot be issued
on uncertain or vague or absurd or ambiguous rights.
 POLICE SUPERINTENDENT CASTILLO V. CRUZ
Bear allegations that the Petitioners are in unison
conspiracy and in contempt of court there and then
wilfully, forcibly, and felloniously with the use of force,
intimidation, and physically man-handled the petitioners.
Those respondents and the court above and arrested the
hearing petitioners who are the respondents therein will
NOT suffice to prove the entitlement of the writ of amparo.
Remember that it must be categorical and must be
specific. Above were only bear allegations. The bear
allegations must be supported by evidenciary statements.
 WITNESS PROTECTION ORDER (one of the 4
interim relief)
- Rule 119 (state witness rule)
- The witness protection order and the witness
security benefit act are both applicable in your
petition for writ of amparo.
- A petition for the issuance of a WOA shall be
prayed for in a criminal case if there is the threat
to life, liberty, or security or there is a violation of
said rights.
 NOTE:
The TPO, IPO, WPO can be prayed for once by the
petitioner. All together because they are all mutually
exclusive. Availing one does not preclude a person from
availing of the others.
For the RESPONDENT, he can pray for the interim relief of
IPO and TPO.
- Inspection order is for the inspection of an area.
Physical inspection is done by a physician.
 TEMPORARY PROTECTION ORDER
- is not a petition but a mere application.
Remember the provisional remedies in civil suits.
The application of the provisional remedies must
be verified. These are also applicable to criminal
cases. May be granted moto propio or ex parte.
When ex parte, once the application is filed and
facially it has met the ---- , the court shall issue
the same.
- The TRO can be issued moto propio without
hearing but with due notice because without such
there is the violation of due process.
- Order that the petitioner or the aggrieved party or
the member of the immediate family be protected
in a government agency. It can be the department
of national defense or the PNP or DSWD or by any
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accredited person or private institution capable of
keeping the safety but it has to be an accredited
security agency.
 INSPECTION ORDER
- This should be via a motion under oath. Therefore,
it must be with supporting affidavits.
- Available to both the petitioner and the respondent
- When granted, what will be inspected is an area/ a
place. What if an area is being used e.g. to torture
individuals who are threats to the current
administration.
- After due notice and hearing, a writ of amparo is
issued and it becomes a privilege. The privilege of
a writ of amparo shall be issued and the inerim
relief of an inspection order.
EXAMPLE:
There was a particular house particularly in the middle of
camp crame with particular cells. It appears to be used as
a prison where those insurgents or suspects are there. In
order to prove this point, an inspection order is to be
issued by the court and the court will conduct occular
inspection. If it is found out that indeed the allegation in
the petition matches what they saw, that is a bonus
evidence on their part. If not, then that would be good on
your part in order to establish your case.
- The motion shall state in sufficient detail the
places to be inspected. The search warrants shall
be supported with statements or affidavits with the
personal knowledge.
Case
There was an escapee and they saw how their other friends
were raped and burned alive in a particular area. This
particular area can be subject to an inspection.
 The order shall specify those persons authorized to do
the inspection and the date, time, place, and manner
and prescribe other conditions to protect the
constitutional rights of one party. This is usually done
circumspectively.
 PRODUCTION ORDER
Example:
Escapees are Mr. Ordinario, Ms. Queddeng, Ms. Bunquin,
and Ms. B. Mr. O was listed in the watch list. If his name
is really listed, there are continuing threats to his life and
liberty.
The production order is not only for paper and documents
but also includes electronic information. Upon motion and
hearing, available to both petitioner and respondent,
ordered to any person who has possession or custody or
control of any designated document, papers, books of
accounts, letters, photos, objects or any tangible objects in
digitized or electronic form (Electronic Evidence Rule/
Functional Equivalence Rule). Under said rule, the printed
copy is the equivalent of the softcopy and vice versa which
constitutes or contains evidence relevant to the petitioner
to return and to produce and to permit the inspection or to
copy it or photograph it on behalf of the movant.
 WTO
- This is available only to the Petitioner. For both
WTO and TPO, only the petitioner can avail of it.
- This may be issued moto proprio or ex parte.
- The witnesses are to be referred to the DOJ for
admission to the witness protection, security and
benefit program.
Under Rule 119, at anytime before the prosecution rests,
it appears that it can prove its case and there is more than
one accused and not all are equally guilty, the prosecution
can pray for the release or discharge of one or more who
are not the most guilty in order to be utilized as a state
witness. Provided that their testimonies shall be relevant
and must be direct testimonies.
What is the direct evidence? It is direct or primary evidence
because it does not need any collaborative or cumulative
evidence but provided that the direct evidence will be
corroborated on material facts.
 THE WITNESS PROTECTION AND BENEFIT ACT
OF 1989 (WPBA)
Its difference with Rule 119 is that under Rule 119, before
one is discharged as a witness, there has to be a case filed
in court. While for the WPBA it does not mean that there
has to be a case filed in court. It can be a legislative
hearing because you are the starring witness.
Example:
A plunder case. You know what happened. You were the
one who know the different senators who hoard the pork
barel funds. Therefore, you applied for the witness
protection program.
It is important to WPO in controversial criminal cases
where there is a prayer for the issuance of a wrti of amparo
because it is a controversial case. Such as a case for
murder.
ILLUSTRATION:
People v. Gen. A, B, and C for multiple murders. Witness 1
and 2 were also detained and they were able to escape the
generals but the 10 others who were murdered by the
generals because they were NPA members were
unfortunate. Witness 1 and 2 are NPA identified
individuals. When they were to testify, definitely there
would be a threat to there life and they will pray for a
WPO. The one to pray for a WPO in their behalf is the
“People” represented by the Prosecution. WPO under the
1989 State Witness Act. OR order other government
agencies to protect the persons or private institutions who
75 | P a g e
are capable of keeping and securing their safety. Those
must be accredited security agencies.
Q: Why are there prohibited pleadings?
(memorize for future use kasi nakakahiya naman na I-
file mo yan dito)
Remember that this is summary in nature and that is why
there are prohibited pleadings.
These are:
1. Motion to Dismiss
2. Motion to file opposition
3. Affidavit
4. Position paper and other pleadings
5. Dilatory motion for postpones
6. Bill of Particulars
- There are vague statements. There are missing
specificities and particularities that has to be
alleged in order for the other person to properly
and intelligently prepare for his Answer.
Example:
D has a boyfriend. The boyfriend said he loves her, but she
cannot feel it because the boyfriend does not do anything
to show that. D has to file for bill of particulars, because
there are things ought to be done.
B has someone who shows interest but she does not know
if he loves her or not. B has to file for a more definite
statement, because there are things ought to be said.
7. Compulsory counterclaim and cross-claim
8. Third party claim
9. Reply
10. Motion to declare defendant in default
11. Intervention
12. Memorandum
- Summation of the case, just like a decision which is
designed in accordance with what a party wants.
13. Motion for reconsideration of interlocutory orders
or interim relief orders.
14. Certiorari, prohibition, or mandamus against any
interlocutory orders.
Q: WHAT QUANTUM OF EVIDENCE IS REQUIRED?
A: Substantial evidence is required for the petition to be
granted.
It is that evidence which a reasonable person accept in
order to support a conclusion.
Let us not be presumptuous. Let us not assume.
WRIT OF HABEAS DATA
We command to have the data be removed, rectified,
corrected, suppressed, and to be destroyed, because such
data is a threat to a person’s life, liberty, or security.
In general, it is designed to protect by means of an
individual complaint presented to a constitutional court,
which refers to all the courts, the data, image, or privacy,
honor, information self-determination, and freedom of
information of a person against any manual or automated
data registered to find out what information is held against
his or her person.
Example:
Courier services which solicits information from the sender
and recipient.
Take Note: a data can only be removed, rectified, corrected,
suppressed, and to be destroyed if such data already
became a threat to life, liberty, and security of a person.
If not, then the writ of habeas data will not be issued.
The legal nature of the individual complaint of habeas data
is that of voluntary jurisdiction. But, as a general rule, the
one who will file should be the person who wants to rectify,
suppress or remove such data.
This was promulgated on January 22, 2008 and took effect
on February 2, 2008
The right to privacy and life, liberty, and security is
violated or threatened by an unlawful act or omission.
The same with writ of amparo, as the latter presupposes a
threatened by an unlawful act or omission against the life,
liberty, and security by an official employee engaged in the
gathering, collecting, or storing of data or information.
 THE DIFFERENCE WITH AMPARO WITH
HABEAS DATA IS THAT:
a. the officer is engaged in the gathering, collecting, storing
of data or information regarding the person’s family, home,
a correspondence of the aggrieved person.
b. it is done by a private institution engaged in the
gathering of data about a person.
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This compliments amparo and habeas corpus. This writ
protects the right to privacy of a person especially the right
to informational privacy.
If we file a case of Amparo, it is usually coupled with writ
of habeas data. Because in Amparo, we pray for the
inspection order or interim relief of production order,
whereas if we couple it with a habeas data, we really need
the inspection order in order to really support the prayer
for the suppression or rectification of data or information.
 INFORMATIONAL PRIVACY
It is the information one intends to share only to the
public. The other information not shared are not intended
to be shared on public or to a limited number of persons.
 REMEDY FOR VIOLATION OF RIGHT TO
PRIVACY
Updating, rectification, suppression, or destruction of
information or files in possession or in control of the
respondent
A was listed as a member of the NPA. After sometime, he
retired and decided to live a normal life. That particular list
should be updated and exclude the name of A.
PDEA has a list of drug pushers and users under monitor.
If a person, not a drug pusher and user is not there, then
such person may file a writ of habeas data to destroy or
rectify such list.
Q: WHO CAN FILE?
Because the nature of the writ is voluntary jurisdiction,
as a general rule, it is only the aggrieved person who can
file.
But, if the aggrieved person is a minor, incapacitated or of
unsound mind, the legal guardian may file.
But in cases of extralegal killings and enforced
disappearances, a. any member of the immediate family,
or; b. descendant and ascendant, collateral relatives up to
the 4th degree of consanguinity and/or affinity.
Q: WHERE TO FILE?
a. In the RTC where the petitioner resides at the option of
the petitioner.
b. That which court has jurisdiction over the place where
the data or information was collected, gathered, or stored.
 NOTE:
The place of filing is at the option of the petitioner.
However, when the action concerns public data files of the
government offices, it can be the SC, CA, or the
Sandiganbayan.
 PROCESS
1. There is partial exemption from payment of docket
fees only for the indigent petitioners, without
prejudice to the submission of proof of indigency.
PROOF OF INDIGENCY can be secured from the DSWD
and/or from the barangay.
2. Institution of several actions shall not preclude the
filing of a separate criminal, civil, or administrative
action.
If this happens, the subsequent filing of a criminal, civil, or
administrative case when there is an antecedent habeas
data case which arises from the same passing
circumstances would warrant the consolidation of the
antecedently filed habeas data case to that of the
subsequently instituted criminal case.
If a criminal action has been commenced, no separate
petition for the writ shall be filed anymore since the reliefs
prayed for under the writ can be used as the same reliefs
in a motion filed by the aggrieved party in such criminal
action.
 NOTE:
If the writ is filed, there will be consolidation of criminal,
civil, and administrative action subsequently filed and will
have suppletory application of the rules.
In both amparo and habeas data, ordinary civil actions
rules will apply suppletorily if practicable. If not, it will not
apply.
Q: Will intervention apply suppletorily with Amparo?
A: No, because it is a prohibited pleading
Q: What about motion for postponement?
A: Yes, provided that it is not dilatory. Because motion for
postponement which is dilatory is not allowed.
Q: What about motion to declare defendant in default?
A: No, because it is a prohibited pleading.
 CONTENTS OF THE PETITION
a. Like the Amparo, it must be verified.
b. the petition must contain the following:
i. the personal circumstances of the petitioner and the
respondent.
ii. the manner on how the right to privacy is violated or
threatened.
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iii. how such violation affect the right to life, liberty and
security of the aggrieved party.
The sharing of personal number of friends should be given
permission by that friend himself.
iv. Actions and recourses taken by the petitioner to secure
the data or information.
Q: Did you write the government institution or the private
institution gathering, collecting, or storing that data in
order for that government institution or private institution
to correct, suppress, or destroy the data that is needed to
be corrected, suppressed, or destroyed?
A: If not, then the petition is facially defective.
Another example, for private institution, for example if you
have a digest uploaded in Scribd which was written in
wrong grammar, you have to send a letter to Scribd to
remove or delete such digest from their archives.
v. the location of files, registers, or databases, government
office and person in charge in possession or in control of
the data or information.
vi. reliefs prayed for (memorize!)
“The updating, removal, rectification, correction,
suppression, and destruction of information or data from
that place where such information or files are kept by the
respondent.”
In case of threats, relief may include a prayer for an order
enjoining the act complained of as a threat.
 CASTILLO V. CRUZ (2009 CASE)
The SC reversed the RTC decision which gave due course
to the petition since the petition failed to allege that
respondents are gathering, collecting, or storing data
where information regarding a person’s family, home, or
correspondence.
 PUBLIC AGENCIES WHICH COLLECTS DATA OR
INFORMATION:
1. Philippine Statistics Authority
2. Land Transportation Office
3. GSIS; SSS; Philhealth
Prohibited pleadings
(The same with Amparo. Memorize!!!)
July 12, 2019
 WRIT OF AMPARO CASES
 SECRETARY DE LIMA VS. GATDULA G.R. NO.
204528 | FEBRUARY 19, 2013 | EN BANC |
LEONEN, J.
FACTS:
Gatdula filed a Petition for the Issuance of a Writ of
Amparo against Justice Secretary De Lima to cease and
desist from framing him up for the fake ambush incident
by filing bogus charges of Frustrated Murder against him.
Instead of filing an answer as ordered by the court, De
Lima manifested a return. Judge Pampilo conducted the
hearing and ordered De Lima to file a memorandum in lieu
of an answer. The RTC then rendered a decision granting
the issuance of a writ of Amparo. De Lima filed Petition for
Review on Certiorari as enunciated in Section 19 of the
Rule on the Writ of Amparo.
The Supreme Court ruled that a RETURN is required to be
filed after the issuance of the writ of Amparo, NOT AN
ANSWER NOR A MEMORANDUM, through the clerk of
court. The Return serves as the responsive pleading to the
petition for writ of Amparo. However, De Lima is also
required to detail the actions they had taken into that
return to determine the fate or whereabouts of the
aggrieved party.
A petition for a writ of Amparo is an interlocutory order
and could not be the judgment or final order that is
appealable under Section 19 of the Rule on the Writ of
Amparo.
Q: Why are certain motions and pleadings prohibited in a
petition for the issuance of a writ of Amparo?
A: It is because of exigency of the matter at hand, which
are enforced disappearances and extralegal killings.
 RAZON, JR., VS. TAGITIS G.R. NO. 182498|
DECEMBER 3, 2009|BRION, J.
FACTS:
Engineer Morced N. Tagitis was last seen in Jolo, Sulu
when he arrived therein by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City.
Morced asked Arsimin, his companion, to buy him a boat
ticket for his return trip the following day to Zamboanga.
When Arsimin returned from this errand, Morced was no
longer around. Mary Jean, the wife of Morced filed a
Petition for the Writ of Amparo with the Court of Appeals.
Mary Jean was informed by Col. Kasim that her husband
was abducted because he is under custodial investigation
for being a liaison for J.I. or Jemaah Islamiah and was
allegedly connected with different terrorist groups. The
Court of Appeals issued its decision confirming that the
disappearance of Morced was an enforced disappearance
under the United Nations (UN) Declaration on the
Protection of All Persons from Enforced Disappearances.
The Supreme Court ruled that under the Amparo rule, the
petition for writ of Amparo need not be complete in every
detail in stating the threatened or actual violation of a
victim’s rights as long as it state the ultimate facts
constituting the cause of action, omitting the evidentiary
78 | P a g e
details. Thus, it is proper to plead the following ultimate
facts within the petitioner’s knowledge:
1. The pleaders knowledge about Morced’s
disappearance
2. The participation by agents of the State in this
disappearance
3. The failure of the State to release Engr. Morced
Tagitis or to provide sufficient information about his
whereabouts, as well as the actual violation of his right
to liberty.
The allegations in the writ of Amparo are note merely
formalities. They are jurisdictional.
 BUISING VS. PARDICO GR. NO. 184467| JUNE
19, 2012 DEL CASTILLO J.
FACTS:
Two uniformed security guards of Asian Land Strategies
Corporation went to the house of Lolita Lapore to ask for
Ben Pardico and Bong Lapore to answer questions
regarding a complaint against for alleged theft of electrical
wires and lamps in their subdivision. Bong and Ben was
brought to the office of the security department of the
subdivision. After questioning them, Bong was released
and Ben was left behind, begging Lolita and Bong not to
leave him for fear of his life. Virginia, wife of Ben then filed
a Petition for Writ of Amparo before the Regional Trial
Court.
The Supreme Court ruled that writ of Amparo is not
proper. It has arrived in the following elements that
constitute enforced disappearance: 1) there must be an
arrest, detention, abduction., or any form of deprivation of
liberty; 2) that it be carried out or with authorization of the
State or Political organization; 3) that it be followed by the
State refusal to acknowledge or give information on the
fate of the person subject to the writ of Amparo; and 4)
that the intention to such refusal is to remove the person
from protection of the law.
It is not enough that the person subject of the writ is
missing in order for the protective writ of Amparo to be
issued, there must be proof that the disappearance was
carried out by or with the authorization of the State or
Political organization, followed by a refusal to give
information as to the possible whereabouts of the person.
In other words, the petitioner, in a Writ of Amparo has the
burden of proving that the elements mentioned are present
in order to warrant the issuance of the writ.
 REYES VS. GONZALEZ G.R. NO.
182161|DECEMBER 3, 2009
FACTS:
Reverend Father Robert Reyes together with fifty others,
were brought to Camp Crame to await inquest
proceedings. DOJ Secretary Gonzales issued Hold
Departure Order (HDO) No. 45 ordering Commissioner of
Immigration to include in the Hold Departure List the
name of Fr. Reyes and 49 others. DOJ Panel of Prosecutors
filed Information for rebellion before the RTC. The RTC
then issued an Order dismissing the charge for Rebellion.
Fr. Reyes’ requested the lifting of HDO No. 45 in view of
the dismissal of the said case. But, the OSG refused to lift
such order. The petition for a writ of Amparo is anchored
claiming HDO. No. 45 violated Fr. Reyes’ constitutional
right to travel.
The petition for a writ of Amparo was not proper in this
case. A petition for a writ of Amparo is a remedy for
persons whose right to life, liberty and security is violated
or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or
entity. The restriction on Fr. Reyes’ right to travel as a
consequence of the pendency of the criminal case filed
against him was not unlawful. Fr. Reyes has also failed to
establish that his right to travel was impaired in the
manner and to the extent that it amounted to a serious
violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy.
Hence, the proper remedy was to file for a motion to life the
HDO to which Fr. Reyes failed to do which some of his
constituent did.
 LOZADA VS. PRESIDENT MACAPAGAL-ARROYO
G.R. NOS. 184379-8| APRIL 24, 2012|
SERENO, J.
FACTS:
There was an alleged corruption in the ZTE-NBN deal
between the Philippine government. In this transaction,
Former NEDA Secretary Neri sought the services of Lozada
as an unofficial consultant. Allegedly, during the course of
his engagement, Lozada discovered several anomalies in
the transaction involving certain public officials. These
events urged the Senate of the Philippines Blue Ribbon
Committee to conduct an investigation and issued a
subpoena directing Lozada to appear and testify. However,
Lozada left the country for a purported official trip to
London. For failure to appear he was then cited for
contempt and the Senate ordered his arrest and detention.
Lozada alleges that, upon disembarking from the aircraft,
several men invited him out of the airport into a car along
with his bag. He requested to be brought home to Pasig,
but the men allegedly denied his request, instead he was
brought to a restaurant in Libis, Quezon where he was
made to fill in the blanks of a prepared affidavit. Violeta,
wife of Lozada, filed a petition for a writ of Amparo.
The Supreme Court moved to dismiss the petition. The
totality of the evidence adduced by Lozada failed to meet
the threshold of substantial evidence. Lozada was not
illegally deprived of his liberty from the point when he
disembarked from the aircraft up to the time he was led to
79 | P a g e
the departure area of the airport, as he voluntarily
submitted himself to the custody of respondents.
If in fact he had been illegally restrained and his right to
liberty and security had been violated, the acts that
manifested this restraint had already ceased and has
consequently rendered the grant of the privilege of the writ
of Amparo moot. There was no continuing threat to the life,
liberty and Security to Lozada which would entail the
issuance of a writ of Amparo.
 RODRIGUEZ VS. MACAPAGAL-ARROYO G.R.
NO. 191805| NOVEMBER 15, 2011|SERENO, J.
FACTS:
Rodriguez is a member of Alyansa Dagiti Mannalon Iti
Cagayan. Four men forcibly took him and forced him to
confess to being a member of the New People’s Army but
he remained silent. Rodriguez was later brought on the
military camp where he was tied, blindfolded, and
repeatedly hit and threatened to be killed every time he
failed to answer their questions about his supposed
membership to the NPA. The soldiers then forced
Rodriguez to sign documents declaring that he had
surrendered in an encounter in Cumao and forced him to
sign the document. The soldiers took photographs of him
while he was signing. The mother and the brother of
Rodriguez arrived surrounded by several men from the
Commission on Human Rights (CHR). Upon seeing
Rodriguez, the CHR employees took photographs of his
bruises. A physician examined Rodriguez and issued a
Medical Certificate stating that the latter had been a victim
of torture. Rodriguez also noticed that several suspicious-
looking men followed them at the Metro Rail Transit (MRT),
in the streets and on a jeepney. Rodriguez filed before the
Supreme Court a Petition for the Writ of Amparo and
Petition for the Writ of Habeas Data with Prayers for
Protection Orders, Inspection of Place, and Production of
Documents and Personal Properties.
The Supreme Court ruled that the interim reliefs prayed
for by Rodriguez should not be granted, considering that
the writs of Amparo and Habeas data have already been
issued in his favour, since being interim reliefs, they can
only be granted before a final adjudication of the case is
made. Hence, there is no need to issue a temporary
protection order independently of the former.
The doctrine of command responsibility can be used in
Amparo and Habeas data cases.
But, it must meet the following conditions:
a. the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of the
crime as his subordinate.
b. the superior knew or had reason to know that the crime
was about to be or had been committed; and
c. the superior failed to take the necessary and reasonable
measures to prevent the criminal acts or punish the
perpetrators thereof.
In the first element, the president, being the commander-
in-chief of all armed forces, necessarily possesses control
over the military that qualifies him as a superior within the
purview of the command responsibility doctrine.
In the second element, a government official may be held
liable for neglect of duty under the doctrine of command
responsibility if he has knowledge that a crime or offense
shall be committed, is being committed, or has been
committed by his subordinates, or by others within his
area of responsibility and, despite such knowledge, he did
not take preventive or corrective action either before,
during, or immediately after its commission. Knowledge of
the commission of irregularities, crimes or offenses is
presumed when:
(a) The acts are widespread within the government official’s
area of jurisdiction;
(b) The acts have been repeatedly or regularly committed
within his area of responsibility; or
(c) Members of his immediate staff or office personnel are
involved.
In the third element, as to the issue of failure to prevent or
punish, it is important to note that as the commander-in-
chief of the armed forces, the president has the power to
effectively command, control and discipline the military.
Using these elements, the allegations in the petition of
Rodriguez failed to show that President Macapagal-Arroyo
had any participation with the acts committed against
Rodriguez hence, under the doctrine of command
responsibility, President Macapagal-Arroyo could not be
impleaded as respondent hence she was dropped as a
respondent.
If the findings were otherwise, she could not be dropped as
a respondent because the doctrine of command
responsibility is an exception to the immunity of the
president against suits. If all the elements were present
then President Macapagal-Arroyo would not be dropped as
a respondent.
Presidential immunity against suits will not decloth a
sitting president from being responsible with respect to
cases of enforced disappearances and extralegal killings
when the doctrine of command responsibility was
ascertained by the petitioner.
Furthermore, the doctrine of command responsibility in
Amparo proceedings can only be used to ascertain the
superior that would be responsible for the acts of his
subordinate. It does not automatically penalize such
superior.
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Moreover, the rights to life, liberty and property of
Rodriguez violated or threatened by respondent, except the
President Macapagal-Arroyo. A careful examination of the
records of this case reveals that the totality of the evidence
adduced by Rodriguez indubitably prove the responsibility
and accountability of some respondents for violating his
right to life, liberty and security. Rodriguez’s Sinumpaang
Salaysay was a meticulous and straightforward account of
his horrific ordeal with the military, detailing the manner
in which he was captured and maltreated on account of
his suspected membership in the NPA. His narration of his
suffering included an exhaustive description of his
physical surroundings, personal circumstances and
perceived observations. He likewise positively identified
respondents 1st Lt. Matutina and Lt. Col. Mina to be
present during his abduction, detention and torture.
As regards the allegation of torture, the respective
Certifications of Dr. Ramil and Dr. Pamugas validate the
physical maltreatment Rodriguez suffered in the hands of
the soldiers of the 17th Infantry Battalion, 5th Infantry
Division. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen.
Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina
are responsible or accountable for the violation of
Rodriguez, right to life, liberty and security on account of
their abject failure to conduct a fair and effective official
investigation of his ordeal in the hands of the military.
 SECRETARY OF NATIONAL DEFENSE, THE
CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES VS. RAYMOND MANALO AND
REYNALDO MANALO, G.R. NO.
180906|OCTOBER 7, 2008|PUNO, C.J
FACTS:
Brothers Raymond and Reynaldo Manalo were suspected
of being members and supporters of the National People’s
Army. They were abducted from their home in Bulacan,
detained in various places, and tortured by Citizens Armed
Forces Geographical Unit. They met the Armed Forces of
the Philippines led by General JovitoPalparan, who asked
them to convince their brother Bestre Manalo, an alleged
leader of the NPA, to surrender. After one year and six
months of torture, the Manalos escaped.
On August 23, 2007, prior to the promulgation of the
Amparo Rule on October 24, 2007, the Manalos initially
filed an action for Prohibition, Injunction, and Temporary
Restraining Order, as well as other ancillary remedies, to
stop the Secretary of National Defense and/or their officers
and agents from depriving them of their right to liberty and
other basic rights. When the Amparo Rule came into effect,
the Manalos moved to have their petition treated as an
Amparo petition. The Supreme Court resolved to treat the
August 23, 2007 Petition as a petition under the Amparo
Rule.
The Supreme Court ruled that there is a continuing
violation of Raymond and Reynaldo Manalos’ right to
security that calls for the issuance of a Writ of Amparo
since the Manalos’ right to security as freedom from threat
is violated by the apparent threat to their life, liberty and
security of person.
Understandably, since their escape, the Manalos have
been under concealment and protection by private citizens
because of the threat to their life, liberty and security. The
threat vitiates their free will as they are forced to limit their
movements or activities. Nonetheless, the circumstances of
the Manalos’ abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent
threat that they will again be abducted, tortured, and this
time, even executed. These constitute threats to their
liberty, security, and life, actionable through a petition for
a writ of Amparo.
 BALAO VS. PRESIDENT MACAPAGAL-ARROYO
G.R. NO. 186050| DECEMBER 13, 2011
|VILLARAMA, JR.
FACTS:
James M. Balao was among those who founded the
Cordillera Peoples Alliance (CPA), a coalition of NGOs
working for the cause of indigenous peoples in the
Cordillera Region. James was abducted by unidentified
men in Tomay, La Trinidad, Benguet, saying they were
policemen and was arresting him for a drugs case and
then made to ride a white van. Arthur Balao filed with the
Regional Trial Court (RTC) a Petition for the Issuance of a
Writ of Amparo in favor of James Balao. RTC issued its
decision granting the Writ of Amparo ordering the
respondents to (a) disclose where James is detained or
confined, (b) to release James considering his unlawful
detention since his abduction and (c) to cease and desist
from further inflicting harm upon his person.
The Supreme Court ruled that the totality of evidence was
not sufficient to institute the degree of proof required by
the Amparo Rule to establish an enforced disappearance.
The participation in any manner of military and police
authorities in the abduction of James has not been
adequately proven. The identities of the abductors have not
been established, much less their link to any military or
police unit. There is likewise no concrete evidence
indicating that James is being held or detained upon
orders of or with acquiescence of government agents.
Consequently, the trial court erred in granting Amparo
reliefs.
WRIT OF HABEAS DATA CASES:
SAEZ VS. PRESIDENT MACAPAGAL –
ARROYO, G.R. NO. 183533 | SEPTEMBER
25, 2012 | REYES, J.
Saez filed a petition to be granted the privilege
of the writs of Amparo and habeas data with
prayers for temporary protection order,
inspection of place and production of
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documents. In the petition, he expressed his
fear of being abducted and killed, hence, he
sought that he be placed in a sanctuary
appointed by the Court and for the military to
cease from further conducting surveillance and
monitoring of his activities and for his name to
be excluded from the order of battle and other
government records connecting him to the
Communist Party of the Philippines.
The Supreme Court ruled that the allegations of
Saez do not warrant the issuance of the
privilege of the writ of Amparo and writ of
Habeas Data. Section 1 of both the Rules on the
Writ of Amparo and Habeas Data expressly
include in their coverage even threatened
violations against a person’s right to life, liberty
or security. Further, threat and intimidation
that vitiate the free will – although not involving
invasion of bodily integrity – nevertheless
constitute a violation of the right to security in
the sense of "freedom from threat". It must be
stressed that such "threat" must find rational
basis on the surrounding circumstances of the
case. In this case, the petition was mainly
anchored on the alleged threats against his life,
liberty and security by reason of his inclusion in
the military’s order of battle, the surveillance
and monitoring activities made on him, and the
intimidation exerted upon him to compel him to
be a military asset.
ROXAS VS. PRESIDENT MACAPAGAL-
ARROYO|G.R. NO. 189155|SEPTEMBER 7,
2010|PEREZ, J.
Roxas is an American citizen of Filipino descent
who was a member of the group Bagong
Alyansang Makabayan-United States of America
(BAYAN-USA). She was allegedly abducted
during the course of her immersion under the
exposure program of said group after doing
survey work for a future medical mission by 15
heavily armed men who forcibly took them to a
nearby blue van. Roxas was informed that she
is being detained for being a member of the
Communist Party of the Philippines - New
People’s Army (CPP-NPA). She later claimed that
she was in a jail inside Fort Magsaysay as she
heard gunshots. After 5 days, she was released
and was given a phone by Dex, but Roxas
threw it away. She then filed for a
petition for a writ of amparo and Habeas Data.
The Supreme Court ruled in this case that the
petition for writ of Amparo should not be
granted. The doctrine of command responsibility
cannot be applied or used as a ground in an
Amparo proceeding because command
responsibility entails the determination of
criminal culpability which is already outside the
ambit of Amparo proceedings. However, It must
be clarified that the inapplicability of the
doctrine of command responsibility in an
Amparo proceeding does not preclude
impleading military or police commanders on
the ground that the complained acts in the
petition were committed with their direct or
indirect acquiescence. In which case,
commanders may be impleaded—not actually
on the basis of command responsibility—but
rather on the ground of their responsibility, or
at least accountability. In this case, Roxas was
not able to fully substantiate that she was
abducted by military personnel because she
relied on the previous documented abductions
and disappearances involving the government
and such similarity in the circumstances cannot
be taken as evidence to support that the alleged
abduction was indeed perpetrated by the
Government. There were also cartographic
sketches of the abductors in which the persons
described therein remained unidentified and
consequently, such sketches cannot be used as
evidence. The inspection orders herein should
also not be granted because for the inspection
order to be issued, the place to be inspected
must be the place where the petitioner was
actually detained. The allegations that she was
detained in a jail cell at Fort Magsaysay were
only mere inferences, hence does not warrant
the issuance of an inspection order.
The privilege of the writ of habeas data should
not be granted. An indispensable requirement
before the privilege of the writ may be extended
is the showing, at least by substantial evidence,
of an actual or threatened violation of the right
to privacy in life, liberty or security of the
victim, which Roxas failed to do. There was
actually no evidence on record that shows that
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any of the public officials had violated or
threatened the right to privacy of Roxas. The
keeping by the public officials of records of
investigations and other reports about Roxas’
ties with the CPP-NPA was not adequately
proven considering that the origin of such
records were virtually unexplained. No evidence
on record even shows that any of the public
officials had access to such video or photograph
which she fears as evidence that she belongs to
CPP-NPA.
GAMBOA VS. P/SSUPT. CHAN AND P/SUPT.
FANG G.R. NO. 193636 | JULY 24, 2012 | J.
SERENO
Gamboa is the Mayor of Dingras, Ilocos Norte.
President Macapagal-Arroyo issued an
administrative order to investigate the existence
of private army groups (PAGs) in the country.
Zeñarosa Commission was created whose
purpose is to eliminate PAGs before the 2010
elections. By virtue of such administrative
order, conducted surveillance on Mayor
Gamboa and subsequently a report by Zeñarosa
Commission classified Gamboa as someone who
keeps a PAG. ABS-CBN broadcasted on its
evening news program the portion of the Report
naming Gamboa as one of the politicians alleged
to be maintaining a PAG and such allegation
also appeared on print media. Thus, she was
publicly tagged as someone who maintains a
PAG on the basis of the unverified information
that the PNP-Ilocos Norte gathered and
forwarded to the Zeñarosa Commission. She
filed for the issuance of a writ of habeas data
against respondents in their capacities as
officials of the PNP-Ilocos Norte.
The Supreme Court ruled that the privilege of
the writ of habeas data cannot be granted to
protect Gamboa of her right to informational
privacy. Gamboa was able to sufficiently
establish that the data contained in the Report
listing her as a PAG coddler came from the PNP.
The respondents also admitted the existence of
the Report, but emphasized its confidential
nature. The forwarding of information by the
PNP to the Zeñarosa Commission was not an
unlawful act that violated or threatened her
right to privacy in life, liberty or security. It was
leaked to third parties and the media was
regrettable, even warranting reproach. But it
must be stressed that Gamboa failed to
establish that respondents were responsible
for this unintended disclosure. Moreover, the
determination of whether the privilege of the
writ of habeas data, being an extraordinary
remedy, may be granted in this case entails a
delicate balancing of the alleged intrusion upon
the private life of Gamboa and the relevant state
interest involved. The state interest of
dismantling PAGs far outweighs the alleged
intrusion on the private life of Gamboa,
especially when the collection and forwarding by
the PNP of information against her was
pursuant to a lawful mandate.
 YAP v. REPUBLIC OF THE PHILIPPINES
FACTS:
Herein petitioner, Yap EkSiu, instituted an action to
change his name to William Tanchon, with the Court of
First Instance (CFI) of Negros Oriental. Yap, alleged in his
petition that he could avail of the privilege due to the
following reasons:
a. That since his childhood days, his Filipino playmates
called him William;
b. That he desires to have his family name of Yap changed
to Tanchon in due respect to his father named
PioTanchon;
c. That he is still a Chinese citizen, and that his intention
in filing this petition for change of name is not to escape or
evade his civil obligations; and
d. That he has filed his income tax returns for the year
1964.
The lower court, granted the petition based on the
abovementioned allegations.
Thereafter, the Republic appealed the decision arguing
that Yap has not met the required standard in order to
avail of the privilege. Hence, this appeal.
ISSUE:
Has Yap satisfied the standard which would warrant a
change of name?
RULING:
No.
Yap has failed to satisfy the required standard to warrant
the privilege of change of name. The Court enunciated the
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decision in Yu Chu Han v. Republic, which provides for the
standard. Thus: “This Court has already had the occasion
to express the view that the State has an interest in the
names borne by individuals and entities for purpose of
identification and that a change of name is a privilege and
not a matter of right, so that before a person can be
authorized to change his name given him either in his
certificate of birth or civil registry he must show proper or
reasonable cause, or any compelling reason which may
justify such change. Otherwise, the request should be
denied." (OngPengOan v. Republic, L-8035, November 29,
1957)
The following may be considered, among others, as proper
and reasonable causes that may warrant the grant of a
petition for change of name:
1. When the name is ridiculous, tainted with dishonor, or
is extremely difficult to write or pronounce;
2. When the request for change is a consequence of a
change of status, such as when a natural child is
acknowledged or legitimated; and
3. When the change is necessary to avoid confusion. In the
case at bar, petitioner Yap has not proven that his name is
ridiculous, or tainted with dishonor or extremely difficult
to write or pronounce. Neither has he claimed that he
wants to change his name by reason of a change in his
status. Further, there is nothing in the record that would
show that petitioner's continuous use of his present name
would cause confusion. On the contrary, the change of
petitioner's name would give rise to confusion, for his real
name, Yap EkSiu appears in all his important and
personal documents and according to him, and he has
never used the name William in all his business dealings.
Further, since he is a Chinese citizen, he should also use a
Chinese name. For a Chinese citizen to use a Filipino
name, will only create embarrassment and confusion in his
social n a natural child is acknowledged or legitimated;
and 3. When the change is necessary to avoid confusion.
In the case at bar, petitioner Yap has not proven that his
name is ridiculous, or tainted with dishonor or extremely
difficult to write or pronounce. Neither has he claimed that
he wants to change his name by reason of a change in his
status. Further, there is nothing in the record that would
show that petitioner's continuous use of his present name
would cause confusion. On the contrary, the change of
petitioner's name would give rise to confusion, for his real
name, Yap EkSiu appears in all his important and
personal documents and according to him, and he has
never used the name William in all his business dealings.
Further, since he is a Chinese citizen, he should also use a
Chinese name. For a Chinese citizen to use a Filipino
name, will only create embarrassment and confusion in his
social and business dealings on the ground that he might
be mistaken to be a Filipino when in fact and in truth he is
a Chinese."
 NOTE:
So I want to point out that one cannot just pray for a
change of name automatically or ipso facto just because of
adoption. There must be a separate petition for a change of
name. That was before during the years you were born.
In 2002, the rule in adoption came out and it stated there
that it implied that one can simultaneously crave for a
change of name of the adopted child. In Yap Eksiu, it
stated there that there should be a separate petition for a
change of name because it is a legal consequence of
adoption.
In yap Eksiu, the Supreme Court really pointed out the
statutory bases or grant for the petition of a change of
name but jurisprudentially later on we will come to know
that there are other grounds provided under the decisions
of the Supreme Court.
A classic example whereby in the past the Supreme Court
not only the supreme court cases that were brought up to
the Supreme Court and cases filed with our Regional Trial
court then CFIs were played with the petitions for change
of name coming from Chinese nationals which may happen
in the future considering that we are colonies of China.
 REPUBLIC v. UY
FACTS:
Respondent Lugsanay Uy filed a Petition for Correction of
Entry in her Certificate of Live Birth. In her petition, she
impleaded the Local Civil Registrar of Gingoong City as
respondent and alleged the following:
(1) that she was born on 8 February 1952 and is the
illegitimate daughter of Sy Ton and SoteraLugsanay;
(2) her Certificate of Live Birth shows that her full name is
“Anita Sy” when she is allegedly known to her family and
friends as “Norma S. Lugsanay”;
(3) her school records, Professional Regulation Commission
Board of Medicine Certificate, and passport bear the name
"Norma S. Lugsanay";
(4) she is an illegitimate child considering that her parents
were never married, so she had to follow the surname of
her mother;
(5) she is a Filipino citizen and not Chinese, and all her
siblings bear the surname Lugsanay and are all Filipinos;
(6) she filed earlier a petition for correction of entries with
the Office of the Local Civil Registrar of Gingoog City to
effect the corrections on her name and citizenship which
was supposedly granted, however, the National Statistics
Office records did not bear such changes.
84 | P a g e
The Regional Trial Court issued an Order in her favor. On
appeal, the Court of Appeals affirmed in toto the Order of
the trial court.
ISSUE:
Did Lugsanay Uy’s compliance to publication and notice
requirement cure the defect of failure to implead
indispensable parties?
RULING:
No. The fact that the notice of hearing was published in a
newspaper of general circulation and notice thereof was
served upon the State will not change the nature of the
proceedings taken.
A reading of Sections 4 and 5, Rule 108 of the Rules of
Court shows that the Rules mandate two sets of notices to
different potential oppositors: one given to the persons
named in the petition and another given to other persons
who are not named in the petition but nonetheless may be
considered interested or affected parties.
Summons must, therefore, be served not for the purpose of
vesting the courts with jurisdiction but to comply with the
requirements of fair play and due process to afford the
person concerned the opportunity to protect his interest if
he so chooses.
Lugsanay Uy’s birth certificate shows that her full name is
Anita Sy, that she is a Chinese citizen and a legitimate
child of Sy Ton and SoteraLugsanay. In filing the petition,
however, she seeks the correction of her first name and
surname, her status from "legitimate" to "illegitimate" and
her citizenship from "Chinese" to "Filipino." Thus,
Lugsanay Uy should have impleaded and notified not only
the Local Civil Registrar but also her parents and siblings
as the persons who have interest and are affected by the
changes or corrections she wanted to make.
It is clear from the foregoing discussion that when a
petition for cancellation or correction of an entry in the
civil register involves substantial and controversial
alterations, including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, a strict
compliance with the requirements of Rule 108 of the Rules
of Court is mandated. If the entries in the civil register
could be corrected or changed through mere summary
proceedings and not through appropriate action wherein
all parties who may be affected by the entries are notified
or represented, the door to fraud or other mischief would
be set open, the consequence of which might be
detrimental and far reaching.
Q: No private individual impleaded in this case?
A: None
SIR: I just want to point out that the predecessor of your
PSA is NSO. The LCR which was the impleaded as a
respondents. The LCR even if it were a public respondent
in a petition for the correction of entries under rule 108 it
is still an indispensable party.
Under Rule 108, alterations which are substantial
and controversial are allowed despite the advent of 9048 as
amended by 10172 but despite the publication of the
notice of initial hearing for petitions under rule 108 it does
not bind other interested parties which usually private
individuals which are interested in the outcome of the
case.
EXAMPLE:
Changing a particular entry of a certificate of live birth
from legitimate to illegitimate or changing the citizenship
from Filipino to American. From legitimate to illegitimate,
who is the interested party? Maybe the father. The father
has to know if indeed, so that there would be fair play and
due process. What if he is really the person who wants to
change a particular entry of the certificate of live birth is
legitimate. We have substantive laws which define who are
legitimate and illegitimate. In the same way from legitimate
to illegitimate, what if the child was really born out of wed
luck?
Even if the child was born out of wedlock, but there is
really an evidence of certificate of live birth, because what
is written in it was legitimate, the biological father has to
be properly duly notified.
 YASIN v. JUDGE, SHARI’AH DISTRICT COURT
FACTS:
On May 5, 1990, Hatima C. Yasin filed in the Shari'a
District Court in Zamboanga City a "Petition to resume the
use of maiden name". In her petition, she alleged that she
is of legal age, a divorcee, a Muslin Filipino and a resident
of Suterville, Zamboanga City, Philippines, and is duly
represented in her petition by her elder brother and
attorney-infact, HADJI HASAN S. CENTI by virtue of a
Special Power of Attorney. She further alleged that she was
formerly married to a certain HadjiIdrisYasin, also a
Muslim Filipino in accordance with Muslim rites and
customs, and who is now residing at Barangay Recodo,
Zamboanga City, but sometime on March 13, 1984, they
were granted a decree of divorce by the Mindanao Islamic
Center Foundation, Inc., in accordance with Islamic Law
and that thereafter, her former husband HadjiIdrisYasin
contracted another marriage to another woman. She then
prayed that she be allowed to resume the use of her
maiden name HatimaCenti y Saul.
The Shari’a district court issued an order which reads as
follows:
It patently appearing that the petition filed is not sufficient
in form and substance in accordance with Section 2(a) and
3, Rule 103, Rules of Court, regarding the residence of
petitioner and the name sought to be adopted is not
properly indicated in the title thereof which should include
85 | P a g e
all the names by which the petitioner has been known, the
pleading must be rectified accordingly.
Petitioner was hereby ordered to effect the necessary
amendment of the petition within one (1) week from receipt
hereof so as to reflect the formal requirements adverted to.
Hatima filed a motion for reconsideration of the aforesaid
order alleging that the petition filed is not covered by Rule
103 of the Rules of Court but is merely a petition to
resume the use of her maiden name and surname after the
dissolution of her marriage by divorce under the Code of
Muslim Personal Laws of the Philippines (P.D. No. 1083),
and after marriage of her former husband to another
woman. The motion was denied by the respondent court
on the ground that the petition is substantially for change
of name and that compliance with the provisions of Rule
103, Rules of Court on change of name is necessary if the
petition is to be granted as it would result in the
resumption of the use of petitioner's maiden name and
surname.
ISSUE:
Is Hatima required to file a petition for change of name and
comply with the formal requirements of Rule 103 of the
Rules of Court?
RULING:
No.
Hatima is not required to comply with the formal
requirements of Rule 103 of the Rules of Court.
The true and real name of a person is that given to him
and entered in the civil register. While it is true that under
Article 376 of the Civil Code, no person can change his
name or surname without judicial authority, nonetheless,
the only name that may be changed is the true and official
name recorded in the Civil Register.
Hatima's registered name is HatimaCenti Y. Saul. In the
instant petition, she does not seek to change her registered
maiden name but, instead, prays that she be allowed to
resume the use of her maiden name in view of the
dissolution of her marriage to HadjiIdris Yasin, by virtue of
a decree of divorce granted in accordance with Muslim law.
Under Article 187, PD 1083, the Civil Code of the
Philippines, the Rules of Court and other existing laws,
insofar as they are not inconsistent with the provisions of
the Code of Muslim Personal Laws, shall be applied
suppletorily. Even under the Civil Code, the use of the
husband's surname during the marriage and after
annulment of the marriage, and after the death of the
husband is permissive and not obligatory except in case of
legal separation.
When Hatima married her husband, she did not change
her name but only her civil status. Neither was she
required to secure judicial authority to use the surname of
her husband after the marriage as no law requires it.
Thus, the petition to resume the use of maiden name filed
Hatima before the respondent court is a superfluity and
unnecessary proceeding since no law requires her to do so
as her former husband is already married to another
woman.
In the absence of a specific rule or provision governing
such a proceeding, where sufficient facts have been alleged
supported by competent proof as annexes, which appear to
be satisfactory to the court, such petition for confirmation
of change of civil status and/or to resume the use of
maiden name must be given due course and summarily
granted as in fact it is a right conferred by law.
SIR : You know the hierarchy of court with respect to your
Sharia court. First level courts or MTC equivalent to Sharia
courts, counter part of that would be Sharia circuit courts.
RTC or the 2nd level courts, in sharia, we have Sharia
district courts. Court of appeals, under regular courts but
with the advent of the BBL, there are still other superior
courts.
Q: Should she file a petition under Rule 108?
A: No. there’s no need because it’s a mere superfluity. It’s
merely a legal consequence of obtaining a divorce decree.
 REPUBLIC v. IAC
FACTS:
Kenneth Wong Man Leung was born in Hong Kong on
November 3, 1953. He came to the Philippines as a British
subject sometime in 1969. He was then known as Wong
Man Leung, the name set out in his Alien Certificate of
Registration and SSS Personal Data Record. He was
baptized on March 2, 1975 at the Parish Church of Sta.
Maria at Iloilo City, and given the Christian name,
Kenneth; his baptismal certificate declares his full name as
Kenneth Wong Man Leung.
Ten months later, in the same church, he married
Maylinda Yap, his name in the marriage contract being
Kenneth Wong Man Leung alias Kiana So. He was
naturalized as a Filipino citizen on February 10, 1976 in
accordance with Presidential Decree No. 836. In his
Certificate of Naturalization, his name is given as Kenneth
Wong Man Leung alias Kiana so; and this is how his name
is recorded in the Office of the Local Civil Registrar of Iloilo
City.
He wanted to rid himself of such a burdensomely long
name and to avoid confusion resulting from inadvertent
but frequent rearrangements of its various parts; to adopt
not only a shorter and more easily identifiable name, but
also a Filipino name which would associate himself more
closely with his countrymen by adoption; and the further
fact that he has since come to be publicly known as
Kenneth Kiana So.
The Solicitor General asserts that both the Juvenile &
Domestic Relations Court and the Intermediate Appellate
86 | P a g e
Court erred in approving the change of name because the
evidence failed to show reasonable cause for changing his
alleged true name.
ISSUE:
Did the Intermediate Appellate Court err in granting the
petition for change of name?
RULING:
No. The Intermediate Appellate Court did not err in
granting the petition for change of name. The Intermediate
Appellate Court correctly ruled that at the time Kenneth
filed the petition for change of name, the records of the
Local Civil Registrar officially showed his name to be
Kenneth Wong Man Leung alias Kiana So, the name under
which he sought and was granted Filipino citizenship by
naturalization.
His petition did therefore state his real or official name and
fulfilled the jurisdictional requirement. Moreover, the
petition also alleged his former name as a British subject,
"Wong Man Leung" as appearing in his alien certificate of
registration. The finding by the Intermediate Appellate
Court that the evidence established sufficient justification
for a change of name — that there is a sincere desire on
Kenneth's part to adopt a Filipino name to erase signs of
his former nationality which will unduly hamper his social
and business fife; his change of name will do away with
aliases which should be discouraged, apart from the fact
that it will avoid confusion and will be for the convenience
of the world at large in addressing him, or in speaking of or
dealing with him — is a finding of fact which the Supreme
Court cannot and will not review in the premises.
 PADILLA v. REPUBLIC
FACTS:
The petitioner Dolores Gemora and Vincent Co, a Chinese
national, were married on May 5, 1954. Their matrimonial
union begot five (5) children, namely: Michael Copuaco,
Abigail Copuaco, Rafael Copuaco, Gabriel Copuaco, and
Annabelle Co. Sometime in November 1960, Vincent Co left
the conjugal abode in Caloocan City and has since never
returned to, or even visited, his family. Allegedly, he was a
fugitive from justice, having been charged with several
offenses of estafa. Because of his continuous absence, the
Court of First Instance of Pampanga, on petition of
Dolores, issued an order dated December 29, 1964,
declaring Vincent Co as an absentee. On October 30, 1965,
Dolores contracted a second marriage with Sgt. Edward
Padilla, an American serviceman stationed at Clark Air
Base, Angeles City. The five (5) minor children were
generously supported and treated by Padilla with affection
as if they were his own, prompting Dolores to file the
instant petition for change of the minors' surname from
"Copuaco" or "Co" to "Padilla", which was granted by the
lower court after due notice and hearing.
ISSUE:
Should the petition of Dolores Gemora for change of
surname of her minor children be granted?
RULING:
No. The petition of Dolores Gemora for change of surname
of her minor children should not be granted.
In Moore vs. Republic, a case involving the same factual
milieu, the Court held that:
Our laws do not authorize a legitimate child to use the
surname of a person who is not his father. Article 364 of
the Civil Code specifically provides that legitimate children
shall principally use the surname of their father, and
Article 369 of the same Code provides that in case of
annulment of a voidable marriage the children conceived
before the annulment shall principally use the surname of
the father, and considering by analogy the effect of a
decree of divorce, it is correctly concluded that the children
who are conceived before such a decree should also be
understood as carrying the surname of the real father.
If a child born out of a lawful wedlock be allowed to bear
the surname of the second husband of the mother, should
the first husband die or be separated by a decree of
divorce, there may result a confusion as to his real
paternity.
In the long run the change may redound to the prejudice
of the child in the community. While the purpose which
may have animated petitioner, the minor's mother, is
plausible and may run along the feeling of cordiality and
spiritual relationship that pervades among the members of
the family of her second husband, there is a legal barrier
which cannot at present be overlooked or brushed aside.
Apart from the legal obstacles, the instant action taken by
the petitioner in behalf of her minor children is considered
to be premature. Indeed, the matter of change of their
surname should better be left to the judgment and
discretion of the children themselves when they reach the
age of maturity. If in their adulthood they want to change
their surname, then they themselves or any of them may
take such appropriate action as the law may permit.
 IN THE MATTER OF THE CHANGE OF NAMES
OF DIONESIO DIVINAGRACIA, JR., ET AL. v.
REPUBLIC
FACTS:
Zosima Naldoza was married to Dionesio Divinagracia.
They begot two children named Dionesio, Jr. and Bombi
Roberto. Zosima's husband left her after she confronted
him with his previous marriage with another woman. He
never returned to the conjugal abode. He allegedly
swindled Congressman Maglana in the sum of P50,000.00,
one Galagar in the sum of P10,000.00 also EloyGallentes
and other persons.
Due to the two criminal cases for estafa filed in court
agains their father, the classmates of Dionesio, Jr. and
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Bombi Roberto allegedly teased them about their father
being a swindler.
Desirous of obliterating any connection between her two
minor children and their scapegrace father, Zosima, on
August 10, 1978, filed in the Court of First Instance of
Bohol a petition wherein she prayed that the surname of
her two children be changed from Divinagracia to Naldoza,
her surname. After due publication and hearing, the trial
court dismissed the petition.
The trial court did not consider as sufficient grounds for
change of surname the circumstances that the children's
father was a swindler, that he had abandoned them and
that his marriage to Zosima was a second marriage which,
however, had not been annulled nor declared bigamous. It
reasoned that the children's adoption of their mother's
surname would give a false impression of family
relationship.
From that decision, ZosimaNaldoza appealed to this Court
under Republic Act No. 5440. Zosima raises the question
of whether there is a justification for the two children to
drop their father's surname and use their mother's
surname only.
ISSUE:
Is a change of name of minors dependent on a mother’s
desire and consideration alone?
RULING:
No. The Court answered in the negative and affirmed the
decision of the lower court.
The Court found that the reasons adduced for eliminating
the father's surname are not substantial enough to justify
the petition for a change of name.
To allow the change of surname would cause confusion as
to the minors' parentage and might create the impression
that the minors are illegitimate since they would carry the
maternal surname only. That would be inconsistent with
their legitimate status as indicated in their birth records.
To allow them, at their mother's behest, to bear only their
mother's surname (which they are entitled to use together
with their father's surname) and to discard altogether their
father's surname thus removing the prima-facie evidence
of their paternal provenance or ancestry, is a serious
matter in which, ordinarily, the minors and their father
should be consulted. The mother's desire should not be the
sole consideration.
The change of name is allowed only when there are proper
and reasonable causes for such change (Sec. 5, Rule 103,
Rules of Court). Where, as in this case, the petitioners are
minors, the courts should take into account whether the
change of name would redound their welfare or would
prejudice them.
 ROSALES v. CASTILLO-ROSALES
FACTS:
On June 24, 1932, Ernesto Rosales and Asuncion Castillo
were married from which union they bore four legitimate
children. On April 13, 1950 they were separated because
Ernesto had to seek employment in Iloilo from then on he
already ceased to cohabit with his wife, Asuncion. The
separation pushed Asuncion to have an illicit relationship
with Vidal Rivera which started on January 1952 and
continues up to the filing of the petition.
On March 18,1969, Ernesto filed for a petition for the
correction and/or cancellation of entries in the Civil
Registrar before the Court of First Instance of Cebu he
alleged that Mrs. F.L. Ramiro, proprietress of St. Anthony
Maternity and General Clinic made an error when she
indicated that he was the father of Cecilia and Emmanuel
when in fact they were the illegitimate children of Vidal
Rivera and Asuncion Castillo-Rosales. The court set the
hearing of the petition on June 21, 1969 and designated
all interested parties to show cause why the petition
should not be granted. The order was published in a
newspaper of general circulation in Cebu once a week for
three consecutive weeks. The Local Civil Registrar was
notified and furnished a copy of the petition.
On June 20, 1969 the Local Civil Registry filed a Motion to
Dismiss alleging that the petition o not constitute a cause
of action for correction or cancellation of entries in the
Civil Registrar. The Civil Registrar argued that the
correction sought was untenable under Rule 108 in
relation to Article 412 of the Civil Code since the correction
was not clerical but substantial which involves the
paternity and filiation of the children. The Motion to
Dismiss was opposed by Ernesto from which the Local
Civil Registrar filed a reply. The Trial Court dismissed the
Petition.
ISSUE:
Is the trial Court correct in holding that the error sought to
be corrected was substantial and not clerical?
RULING:
Yes. The correction sought by Ernesto was substantial and
not clerical since it involves the paternity and filiation of
the minor children. The petition for correction or
cancellation of entries filed by Ernesto was not the proper
petition for him to impugn the legitimacy of Cecilia and
Emmanuel. He must file a separate proceeding in court for
him to be able to prove that Cecilia and Emmanuel are not
his legitimate children but the children of Vidal and
Asuncion.
Article 412 of the New Civil Code is the substantive law
covering the alteration or correction of entries in the Civil
Registrar which alteration or correction may only be
effected through a judicial order. The changes or
corrections authorized under said Article 412, which
envisions a summary procedure therefore, relate only to
harmless and innocuous alterations such as misspellings
88 | P a g e
or errors that are visible to the eyes or obvious to the
understanding and that changes in the citizenship of a
person or in his status from legitimate to illegitimate or
from married to not married are substantial as well as
controversial, which can only be established in an
appropriate adversary proceeding as a remedy for the
adjudication of real and justiciable controversies involving
actual conflict of rights the final determination of which
depends upon the resolution of the issues of nationality,
paternity, filiation or legitimacy of the marital status for
which existing substantive and procedural laws as well as
other rules of court amply provide.
 LEE v. CA
FACTS:
This case involves two sets of children sired by one man
but begotten by two different mothers. The first set, the
private respondents, is composed of the children (eleven) of
Lee Tek Sheng and his lawful wife, KehShiok Cheng. The
second set, the petitioners, is composed of the children
(eight) of Lee Tek Sheng and his concubine, Tiu Chuan. In
October, 1948 Tiu Chuan was introduced by Lee Tek
Sheng to his family as their new housemaid but she
immediately became Lee Tek Sheng's mistress and as a
result, Tiu Chuan gave birth to petitioners. Unknown to
the private respondents, every time Tiu Chuan gave birth
to each of the petitioners, Lee Tek Sheng, falsified the
entries in the records of birth of petitioners by making it
appear that the petitioners' mother was KehShiok Cheng.
After the death of KehShiok Cheng, Lee Tek Sheng insisted
that the names of all his children, including those of
petitioners', be included in the obituary notice of KehShiok
Cheng's death that was to be published in the newspapers.
It was a seemingly irrational act that aroused private
respondents' curiosity. The private respondents, acting on
their suspicion, requested the National Bureau of
Investigation (NBI) to conduct an investigation on the
matter. The NBI concluded in their report that as per
Chinese General Hospital Patients Records, it is very
obvious that the mother of the petitioners is certainly not
KehShiok Cheng, but a much younger woman, most
probably Tiu Chuan.
The private respondents filed petitions for cancellation
and/or correction of entries in petitioners' records of birth.
The petitioners filed a motion to dismiss on the ground
that resort to Rule 108 is improper where the ultimate
objective is to assail the legitimacy and filiation of
petitioners. The regional trial court denied the motion to
dismiss, so the petitioners filed a Petition for Certiorari
with the Court of Appeals, which was dismissed by the
said court.
ISSUE:
Is the resort to Rule 108 of the Revised Rules of Court
proper?
RULING:
Yes. A proceeding for correction and/or cancellation of
entries in the civil register under Rule 108 ceases to be
summary in nature and takes on the characteristics of an
appropriate adversary proceeding when all the procedural
requirements under Rule 108 are complied with.
Rule 108 requires:
a) publication of the petition once a week for three
consecutive weeks;
b) inclusion as parties of all persons who claim any
interest which would be affected by the cancellation or
correction (the civil registrar and any person in interest are
also required to file their opposition, if any) within fifteen
days from notice of the petition, or from the last date of
publication of such notice;
and c) hearing for the court to either dismiss the petition
or issue an order granting the same.
If all these procedural requirements have been followed, a
petition for correction and/or cancellation of entries in the
record of birth even if filed and conducted under Rule 108
of the Revised Rules of Court can no longer be described as
"summary". When an opposition to the petition is filed
either by the Civil Registrar or any person having or
claiming any interest in the entries sought to be cancelled
and/or corrected and the opposition is actively prosecuted,
the proceedings thereon become adversary proceedings.
Thus, Rule 108 is the appropriate adversary proceeding to
effect substantial corrections and changes in entries of the
civil register, provided that all the procedural requirements
thereunder are followed.
 SILVERIO v. REPUBLIC
FACTS:
Petitioner Rommel Jacinto Dantes Silverio filed a petition
for the change of his first name and sex in his birth
certificate in the Regional Trial Court (RTC). He alleged in
his petition that he is a male transsexual that is,
"anatomically male but feels, thinks and acts as a female"
and that he had always identified himself with girls since
childhood. Feeling trapped in a man’s body, he consulted
several doctors in the United States. He underwent
psychological examination, hormone treatment and breast
augmentation. Subsequently, he underwent sex
reassignment surgery in Bangkok, Thailand.
From then on, Rommel lived as a female and was in fact
engaged to be married. He then sought to have his name in
his birth certificate changed from "Rommel Jacinto" to
"Mely," and his sex from "male" to "female." He claims that
the change of his name and sex in his birth certificate is
allowed under Articles 407 to 413 of the Civil Code, Rules
103 and 108 of the Rules of Court and RA 9048.
ISSUE:
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Can Rommel invoke his sex reassignment as the ground
for his petition for change of name and sex?
RULING:
No. The Court held that a change of name does not alter
one’s legal capacity or civil status. RA 9048 does not
sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing
petitioner’s first name for his declared purpose may only
create grave complications in the civil registry and the
public interest.
Before a person can legally change his given name, he
must present proper or reasonable cause or any
compelling reason justifying such change. A correction in
the civil registry involving the change of sex is not a mere
clerical or typographical error.
Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the time of
birth. Thus, the sex of a person is determined at birth,
visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at
the time of his or her birth, if not attended by error, is
immutable.
 NOTE: It’s no longer termed as sexual
reassignment that politically is incorrect, it is
gender confirmation surgery. You identify the
gender from the moment you had been thinking
about that, you are no longer a male but a female
trap in the body of a male.
There were instances in the past that the OSG
was not able to appeal it. And it became the precedence,
until now.
RTC in ruling on this case said : “Who are the
courts to impede her happiness?”
 REPUBLIC v. CAGANDAHAN
FACTS:
A petition for correction of Entries in the Birth certificate
filed by Jennifer B. Cagandahan and ordered the changes
of entries in her Birth certificate: 1.) the name Jennifer
Cagandahan to Jeff Cagandahan and 2.) gender from
Female to male.
In her petition, she allege that she was registered as female
but while growing up, she developed a secondary male
characteristics and was diagnosed to have Congenital
Adrenal Hyperplasis (CAH) which is a condition where
persons thus afflicted possess both male and female
characteristics. She then also allege that, for interest and
appearance as well as in mind and emotion, she become a
male person. Thus, she prayed that her birth certificate be
corrected such that her gender be changed from female to
male and her first name be changed from Jennifer to Jeff.
Further, Jennifer Cagandahan presented the testimony of
Dr. Michael Sionzon who issued the certificate that
Jennifer’s condition known as CAH and further explained
the genetic condition and Medical circumstances of
Jennifer.
The RTC granted the petition. However, the Office of the
Solicitor General (OSG) filed an opposition contending that
the petition for correction of entries is fatally defective for
non-compliance with Rules 103 and 108. The OSG further
allege that Rule 108 does not allow change of sex or gender
in the Birth Certificate and respondent’s claimed medical
condition known as CAH does not make her a male.
ISSUE:
Is the correction in the civil registry involving change of sex
is a clerical or typographical error?
RULING:
No. Under Republic Act No. 9048, a correction in the Civil
Registry involving the change of sex is not a mere clerical
or typographical error. It is a substantial change for which
the applicable procedure is Rule 108 of the Rules of Court.
Further, the determination of a person’s sex appearing in
his birth certificate is a legal issue and the court must look
to the statutes. In connection to Article 412 of the New
Civil Code it provides that “No entry in a civil register shall
be changed or corrected without a judicial order. However,
this provision in the civil code was amended by Republic
Act 9048 in so far as clerical or typographical errors are
involved. The correction of such matters can now be made
through administrative proceedings and without the need
for judicial order.
To this effect, Republic Act No. 9048 was removed from the
ambit of Rule 108 of the Rules of Court for the correction
of such errors. Thus, Rule 108 now applies only to
substantial changes and corrections in entries in the civil
register. And the acts, events or factual errors
contemplated under Article 412 that are correctable under
Rule 108 include even those that occur after birth.
Q: What is the difference between Silverio and
Cagandahan? Why the petition of Cagandahan must be
granted contradistinguish from Silverio?
A:
The condition is something natural. Unlike in Silverio, it
was through surgery. While indeed a physical examination
of the baby at birth will determine the sex of that
particular person, there are particular conditions such as
the condition of Cagandahan that might alter his sex in the
future. It is a very rare condition/ illnesses. A very small
percentage of the entire genetic pool in the population from
the time that we know from history that would suffer such
particular condition.
When the physical body matures or comes to maturity said
the Supreme Court, that is the time that we will be able to
know the true sex of the person, what is the dominant sex
90 | P a g e
of that particular person and it just so happen that when
we turn into the age of maturity, the dominant
characteristics magnifies the dominance of masculinity
over feminity. It’s not ones preference, it’s not ones
identification, it’s not ones choice, it is by virtue of science.
Q: What is the chromosome component of Cagandahan?
Is it an XX or an XY because if it’s an XY then that is male,
XX that is female.
A: XX when she was born.
 ONDE v. THE OFFICE OF THE LOCAL CIVIL
REGISTRAR OF LAS PINAS CITY
FACTS:
Onde filed a petition for correction of entries in his
certificate of live birth before the RTC and named
respondent Office of the Local Civil Registrar of Las Pifias
City as sole respondent. He alleged that he is the
illegitimate child of his parents Guillermo A. Onde and
Matilde DC Pakingan, but his birth certificate stated that
his parents were married. His birth certificate also stated
that his mother's first name is Tely and that his first name
is Franc Ler. He prayed that the date and place of marriage
of his parents, the first name of his mother and his first
name on his birth certificate be corrected.
The RTC dismissed the petition for correction of entries on
the ground thatit is insufficient in form and substance. It
ruled that the proceedings must be adversarial since the
first correction is substantial in nature and would affect
petitioner’s status as a legitimate child. It was further held
that the correction in the first name of petitioner and his
mother can be done by the city civil registrar under
Republic Act (R.A.) No. 9048, entitled An Act Authorizing
the City or Municipal Civil Registrar or the Consul General
to Correct a Clerical or Typographical Error in an Entry
and/or Change of First Name or Nickname in the Civil
Registrar Without Need of a Judicial Order, Amending for
this Purpose Articles 376 and 412 of the Civil Code of the
Philippines. The RTC denied Onde’s motion for
reconsideration, as it found no proof that Onde’s parents
were not married.
ISSUE:
Can the correction of the entries be done by the City Civil
Registrar under Republic Act No. 9048?
RULING:
Yes. The first name of Onde and his mother as appearing
in his birth certificate can be corrected by the city civil
registrar under R.A. No. 9048. Under Section 15 of R.A.
No. 9048, clerical or typographical errors on entries in a
civil register can be corrected and changes of first name
can be done by the concerned city civil registrar without
need of a judicial order. The entry on Onde’s birth
certificate that his parents were married on December 23,
1983 in Bicol to "not married" is a substantial correction
requiring adversarial proceedings. Said correction is
substantial as it will affect his legitimacy and convert him
from a legitimate child to an illegitimate one.
It is true in the case at bar that the changes sought to be
made by Onde are not merely clerical or harmless errors
but substantial ones as they would affect the status of the
marriage between Onde and Carlos Borbon, as well as the
legitimacy of their son, Charles Christian. Changes of such
nature, however, are now allowed under Rule 108. A
petition seeking a substantial correction of an entry in a
civil register must implead as parties to the proceedings
not only the local civil registrar, as Onde did in the
dismissed petition for correction of entries, but also all
persons who have or claim any interest which would be
affected by the correction.
This is required by Section 3, Rule 108 of the Rules of
Court: SEC. 3.Parties. - When cancellation or correction of
an entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which
would be affected thereby shall be made parties to the
proceeding.
When a petition for cancellation or correction of an entry in
the civil register involves substantial and controversial
alterations, including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, a strict
compliance with the requirements of the Rules of Court is
mandated. Thus, Onde should at least implead his father
and mother as parties since the substantial correction he
is seeking will also affect them.
 REPUBLIC v. MERCADERA
FACTS:
Merlyn L. Mercadera has been using the name Merlyn
since childhood. She have been using this name in all her
official records, such as his school records from
elementary to college and even in her employment records.
She had been using the name Merlyn because her
certificate of baptism, her name is Merlyn. However, when
she secured an authenticated copy of her certificate of live
birth from the National Statistics Office (NSO), she
discovered that her given name as registered is Marilyn
and not Merlyn. Hence, she sought the correction of her
given name before the office of the Local Civil Registrar
pursuant to RA 9048.
The Local Civil Registry, however, refused to effect the
correction unless a court order was obtained and because
the Civil Registrar has no permanent appointment yet.
Thus, Mercadera was constrained to file for a petition for
Correction of Some Entries in her Live Birth before the
Regional Trial Court (RTC) of Dipolog City.
The RTC was convinced that the correction was
justified.The Office of the Solicitor General (OSG) timely
interposed an appeal praying for the reversal and setting
aside of the RTC decision. It mainly anchored its appeal on
the availment of Mercadera of the remedy and procedure
91 | P a g e
under Rule 108. For the OSG, what the lower court
actually allowed was a change of Mercadera’s given name,
which would have been proper had she filed a petition
under Rule 103 and proved any of the grounds therefor.
The Court of Appeal was not persuaded by the OSG’s
argument and affirmed the RTC decision.
ISSUE:
Is the correction of the name of respondent from Marilyn to
Merlyn covered by Rule 108?
RULING:
Yes. The "change of name" contemplated under Article 376
and Rule 103 must not be confused with Article 412 and
Rule 108. A change of one’s name under Rule 103 can be
granted, only on grounds provided by law. In order to
justify a request for change of name, there must be a
proper and compelling reason for the change and proof
that the person requesting will be prejudiced by the use of
his official name. To assess the sufficiency of the grounds
invoked therefor, there must be adversarial proceedings.
Rule 108, on the other hand, implements judicial
proceedings for the correction or cancellation of entries in
the civil registry pursuant to Article 412 of the Civil Code.
Entries in the civil register refer to "acts, events and
judicial decrees concerning the civil status of persons, also
as enumerated in Article 408 of the same law. In petitions
for correction, only clerical, spelling, typographical and
other innocuous errors in the civil registry may be raised.
Considering that the enumeration in Section 2, Rule 108
also includes "changes of name," the correction of a
patently misspelled name is covered by Rule 108. Suffice it
to say, not all alterations allowed in one’s name are
confined under Rule 103. Corrections for clerical errors
may be set right under Rule 108. To change means "to
replace something with something else of the same kind or
with something that serves as a substitute." From the
allegations in her petition, Mercadera clearly prayed for the
lower court "to remove the faults or error" from her
registered given name "MARILYN," and "to make or set
aright" the same to conform to the one she grew up to,
"MERLYN."
 NOTE: it should not be Rule 108 but merely
9048 as amended by 10172.
 REPUBLIC v. KHO
FACTS:
On February 12, 2001, Carlito and his siblings Michael,
Mercy Nona and Heddy Moira filed before the RTC of
Butuan City a verified petition for correction of entries in
the civil registry of Butuan City to effect changes in their
respective birth certificates. Carlito also asked the court in
behalf of his minor children, Kevin and Kelly, to order the
correction of some entries in their birth certificates.
In the case of Carlito, he requested the correction of the:
a.) citizenship of his mother to Filipino instead of Chinese;
and b.) deletion of the word married opposite the phrase
Date of marriage of parents because his parents, Juan Kho
and EpifaniaInchoco (Epifania), were allegedly not legally
married. The latter correction was also requested by
Carlitos siblings on their respective birth certificates.
With respect to the birth certificates of Carlitos children,
he prayed that: a.) the date of his and his wifes marriage
be corrected from April 27, 1989 to January 21, 2000, the
date appearing in their marriage certificate; and b.) to
effect that the first name of their mother be rectified from
Maribel to Marivel.
It was additionally prayed that Carlitos second name of
John be deleted from his record of birth;and that the name
and citizenship of Carlitos father in his (Carlitos) marriage
certificate be corrected from John Kho to Juan Kho and
Filipino to Chinese, respectively.
As required, the petition was published for three
consecutive weeks in Mindanao Daily Patrol-CARAGA, a
newspaper of general circulation, after which it was set for
hearing on August 9, 2001.
The verified petition of Carlito was granted by the Regional
Trial Court (RTC). This was appealed by the Republic of the
Philippines, as represented by the Office of the Solicitor
General (OSG) with the Court of Appeals (CA) because of
the failure of: a.) Carlito to implead the minors mother,
Marivel, as an indispensable party; b.) Carlito and his
siblings to offer sufficient evidence to warrant the
corrections with regard to the questioned married status of
their parents, and the latters citizenship; c.) Carlito to
comply with the jurisdictional requirements for a change of
name under Rule 103 of the Rules of Court for the change
of Carlito John Kho to Carlito Kho.The CA denied the
appeal and affirmed the decision of the trial court.
ISSUE:
Should Marivel and Carlitos parents be impleaded in the
proceedings of this case?
RULING:
No. In Republic v. Benemerito it was held that the obvious
effect of Republic Act No. 9048 is to make possible the
administrative correction of clerical or typographical errors
or change of first name or nickname in entries in the civil
register, leaving to Rule 108 the correction of substantial
changes in the civil registry in appropriate adversarial
proceedings. Therefore, when all the procedural
requirements under Rule 108 are thus followed, the
appropriate adversary proceeding necessary to effect
substantial corrections to the entries of the civil register is
satisfied.
Section 3 , Rule 108 of the Rules of Court provides that
“When cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who
have or claim any interest which would be affected thereby
92 | P a g e
shall be made parties to the proceeding.” and Section 4
thereof states that“Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of
the same, and cause reasonable notice thereof to be given
to the persons named in the petition. The court shall also
cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in
the province.”
In Barco v. Court of Appeals, it was held that, even
though a person who have claims or interest in a
cancellation or correction of an entry in the civil register
case was not impleaded in the petition, the defect can be
cured by notice by publication.
Publication is notice to the whole world that the proceeding
has for its object to bar indefinitely all who might be
minded to make an objection of any sort against the right
sought to be established. It is the publication of such
notice that brings in the whole world as a party in the case
and vests the court with jurisdiction to hear and decide it.
Therefore, in this case, it becomes unnecessary to rule on
whether Marivel or Carlitos parents should have been
impleaded as parties to the proceeding. Parenthetically, it
seems highly improbable that Marivel was unaware of the
proceedings to correct the entries in her childrens birth
certificates, especially since the notices, orders and
decision of the trial court were all sent to the residences he
shared with Carlito and the children.
 REPUBLIC v. COSETENG-MAGPAYO
FACTS:
Born in Makati, Julian Edward Emerson CosetengMagpayo
(respondent) is the son of Fulvio M. Magpayo Jr. and Anna
Dominique Marquez-Lim Coseteng who, as respondent’s
certificate of live birthshows contracted marriage on March
26, 1972.
The respondent who is claiming that his parents were
never legally married filed a petition to change his name to
Julian Edward Emerson Marquez Lim Cosetengat the
Regional Trial Court of Quezon City. In support of his
petition, respondent submitted a certification from the
NSO stating that his mother Anna Dominique does not
appear in the National Indices of Marriage. He also
submitted his academic records from elementary up to
college showing that he carried the surname Coseteng and
the birth certificate of his child where Coseteng appears as
his surname. He was also elected as Councillor using the
name JULIAN M.L. COSETENG.
The trial court granted respondent’s petition and ordered
the following (1) Delete the entry for DATE AND PLACE OF
MARRIAGE OF PARTIES in respondent’s Certificate of live
Birth ;( 2). Correct the entry “MAGPAYO” in the space for
the Last Name of the respondent to "COSETENG";(3) Delete
the entry "COSETENG" in the space for Middle Name of the
respondent; and (4) Delete the entry "Fulvio Miranda
Magpayo, Jr." in the space for FATHER of the respondent
The Republic of the Philippines filed a motion for
reconsideration but it was denied by the trial court.
The Republic contends that the deletion of the entry on the
date and place of marriage of respondent’s parents from
his birth certificate has the effect of changing his civil
status from legitimate to illegitimate; hence, any change in
civil status of a person must be effected through an
appropriate adversary proceeding.
ISSUE:
Is respondent’s change of name affected through an
appropriate adversary proceeding, and therefore availed of
the proper remedy?
RULING:
No. Respondent’s reason for changing his name cannot be
considered as anyone of the recognized grounds in rule
103. Since respondent’s desired change affects his
legitimacy, rule 108 should apply.
A person can effect a change of name under Rule 103
(CHANGE OF NAME) using valid and meritorious grounds
including (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the
change results as a legal consequence such as
legitimation; (c) when the change will avoid confusion; (d)
when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien
parentage; (e) a sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith and without
prejudicing anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose or that the
change of name would prejudice public interest.
Rule 108 clearly directs that a petition which concerns
one’s civil status should be filed in the civil registry in
which the entry is sought to be cancelled or corrected and
all persons who have or claim any interest which would be
affected thereby should be made parties to the proceeding.
The petition of respondent was filed not in Makati where
his birth certificate was registered but in Quezon City. And
as the above-mentioned title of the petition filed by
respondent before the RTC shows, neither the civil
registrar of Makati nor his father and mother were made
parties thereto.
Q; Where was it filed? What is the residence at the time of
the filing?
A: it was filed in RTC QC, rule 103. He was born in Makati
CIty but filed in Quezon City..
 NOTE:
The entry in the certificate of live birth from
legitimate to change to illegitimate because he’s parents
were not anymore married. So he filed a change of name
under rule 103. It is not proper because it should have
93 | P a g e
been applied to rule 108 not rule 103 which is an
adversarial proceeding whereby interested person or party
must be notified which require 2 notices.
REPUBLIC v. LABRADOR
FACTS:
Sarah ZitaErasmo is the niece of Gladys C. Labrador, the
respondent. Sarah is the daughter of Maria Rosario Caon,
the sister of Gladys, and was born from a common law
relationship with a certain DegobertoErasmo. During the
registration of Sarah Zita’s birth, Maria Rosario allegedly
told the Local Civil Registrar that she was not married to
Degoberto, however, the Local Civil Registrar still entered
the name of Sarah Zita as SARAH ZITA C. ERASMO,
instead of SARAH ZITA CAON. Gladys was the one who
had reported the birth of Sarah to the local civil registrar,
to whom she had given “Rosemarie” as the first name of
the child’s mother, instead of “Maria Rosario”.
In order to correct the name of Sarah Zita C. Erasmo to
Sarah ZitaCaon and the name of her mother from
Rosemarie Caon to Maria Rosario Caon, Gladys was
constrained to file with the Regional Trial Court a Petition
for the Correction of Entries in the Record of Birth of
Sarah. The trial court granted the petition and ordered the
local civil registrar to correct the erroneous entries in the
birth certificate of Sarah Zita.
The Solicitor General, in disagreeing with the order, stated
that the summary proceedings under Rule 108 of the
Rules of court and Article 412 of the Civil Code may be
used only to correct or change clerical or innocuous errors.
It argues that Rule 108 "cannot be used to modify, alter or
increase substantive rights, such as those involving the
legitimacy or illegitimacy of the child, which respondent
desires to do. The change sought will result not only in
substantial correction in the child's record of birth but also
in the child's rights which cannot be effected in a summary
action."
ISSUE:
Can Rule 108 of the Rules of Court be used to change the
entry in a birth certificate regarding the filiation of a child?
RULING:
No. Doctrinally, the only errors that can be canceled or
corrected under Rule 108 are typographical or clerical
errors, not material or substantial ones like the validity or
nullity of a marriage. A clerical error is one which is visible
to the eyes or obvious to the understanding; error made by
a clerk or a transcriber; a mistake in copying or writing; or
some harmless and innocuous change such as a correction
of name that is clearly misspelled or of a misstatement of
the occupation of the parent.
Thus, where the effect of a correction of an entry in a civil
registry will change the status of a person from "legitimate"
to "illegitimate," as in Sarah Zita's case, the same cannot
be granted in summary proceedings.
In the present case, the changes sought by Respondent
Labrador were undoubtedly substantial: first, she sought
to have the name appearing on the birth certificate
changed from "Sarah Zita Erasmo" to "Sarah Zita Caon,
thereby transforming the filiation of the child from
legitimate to illegitimate. Second, she likewise sought to
have the name of Sarah Zita's mother, which appeared as
"Rosemarie" in the child's birth record, changed to "Maria
Rosario."
 REPUBLIC v. GRANADA
FACTS:
Yolanda and Cyrus are employees of Sumida Electric
Philippines. They got married and eventually they had a
son. Cyrus went to Taiwan to seek for employment because
Sumida Electric closed down. Nine (9) years had passed,
Cyrus did not communicate Yolanda. Thus, Yolanda filed
for a Petition to have Cyrus declared presumptively dead in
the Regional Trial Court (RTC) which was later on granted.
However through a motion for reconsideration, the Office of
the Solicitor General (OSG) contended that Yolanda failed
to prove her well-founded belief that her husband is dead,
for the reason that she did not exert earnest effort in
looking for his husband. The OSG contended that she only
presented her brother Diosdado, who allegedly asked for
the whereabouts of Cyrus from the latter’s relatives, but
his testimony was never corroborated by Cyrus’ relatives.
The motion for reconsideration was denied resulting in the
OSG to file a notice of appeal before the Court of Appeals
(CA). Yolanda filed for a motion to dismiss, on the ground
that CA has no jurisdiction over the appeal because a
Petition for declaration of presumptive death, under Article
41 of the Family Code is a summary proceeding, where the
judgment thereof is immediately final and executory to the
parties, and therefore not subject to appeal.
ISSUES:
1. Was the decision of the Regional Trial Court in a petition
for declaration of presumptive death immediately final and
executory and not subject to appeal?
2. Was there diligence and earnest effort on the part of
Yolanda in finding her husband?
RULING:
1. Yes.
A petition for declaration of presumptive death for the
purpose of remarriage is a summary judicial proceeding
under the Family Code. Hence, the RTC Decision therein is
immediately final and executory upon notice to the parties.
The decision is therefore not subject to ordinary appeal,
and the attempt to question it through a Notice of Appeal
is unavailing.
In Summary Judicial Proceedings under the Family Code,
there is no reglementary period within which to perfect an
94 | P a g e
appeal, precisely because judgments rendered thereunder,
are immediately final and executory.
2. None. Yolanda failed to show diligence in looking
for her husband. Although her brother Diosdado
Cadacio testified to having inquired about the
whereabouts of Cyrus from the latter’s relatives,
these relatives were not presented to corroborate
his testimony. She did not even bother to have
sought the aid of the Taiwanese Consular Office or
assistance from other government agencies in the
Taiwan or Philippines. Lastly, she could have used
mass media but she did not. Worse, she did not
even explain these omissions.
However the RTC’s judgment on the matter, declaring
Cyrus to be presumptively dead is already final and can no
longer be modified or reversed. Hence, when a judgment is
final and executory, it becomes immutable and
unalterable. The same may no longer be modified in any
respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law.
ABSENTEES
It is just as cowardly to judge an absent person as it is
wicked to strike a defenseless one. Only the ignorant and
narrow-minded gossip, for they speak of persons instead of
things
- Lawrence G. Lovasik
Let us just be careful in our dealings. And instead of
gossiping, let us affirm each other.
Women fall in love in a man’s presence. Men tend to realize
they are in love in a woman’s absence.
Absentee is different from presumptive death. Being
presumptively dead, for purposes of remarriage would be
either 2 years from the time that the person went missing
or 4 years from the time the person went missing. 2 years
under extraordinary circumstances and 4 years under
ordinary circumstances.
For all intents and purposes, you are presumptively dead if
you have been absent for more than 5 years except for
Succession which is 10 years; unless you are 75 years old,
it only requires 70 years.
 NOTE:
There is a presumption that you died much earlier within
the usual 10 years if you are more than 70 years old.
The mortality rate as of now is 70 years old so if you die at
the age of 79, may bonus ka na na 9 years.
Sabi nga nila, pag naattain mo na yung 70, every year
dapat nagcecelebrate ka na ng birthday mo because that is
an additional life.
But under the Constitution, if you become a judge or
justice at the age of 70, you compulsorily retire.
Pag prosecutor, pag PAO, 65; all others 60.
Not being judge, not being prosecutor in the future doesn’t
mean you’re less of a lawyer; much more less as a person.
Q: Why absentee?
When a person disappears without leaving an agent
behind, an interested party, relative or friend, may file a
petition before the RTC of the last place of residence of the
person who disappeared to appoint provisionally a
representative for him.
Q: What is the purpose?
A: If the purpose of your intestate judicial settlement of
estate is for the appointment of a permanent
administrator, for the absentee, for the appointment of a
provisional administrator who will take charge of the estate
of the properties left behind by the absentee person.
Q: When to file a Petition for declaration of absence and
appointment of a trustee or administrator?
A: Any friend, any relative may file a petition for
declaration of a person who is missing as an absentee
pursuant to our laws and rules and concurrently praying
for the issuance of letters appointing someone as a trustee
or as an administrator of the property of the absentee:
- After 2 years without any news or after five years if
an agent was left to administer his property
Q: Order of preference of who shall be appointed
- Like the order of preference in the
appointment of a regular administrator:
A. Surviving spouse or next of kin or both at the
discretion of the court or any person suggested by
either the surviving spouse or next of kin to be
appointed
B. If within thirty days after the death of the
decedent, the surviving spouse or next of kin failed
to file for a petition for letters administration or
failed to suggest a person to be appointed or they
be incompetent, then the preferred creditor may be
appointed as administrator if willing to serve
C. If there is still no creditor, then any person who
may be competent upon the order of the court.
Once the petition is filed in court stating the jurisdictional
facts such as the fact that the person to be declared
missing or to be declared as an absent has been missing
for 2 years without appointing an agent or after 5 years
but appointing an agent.
95 | P a g e
Like all our special proceedings petition, the notice of
initial hearing must be published once a week for three
consecutive weeks in a newspaper of general circulation
within the territorial jurisdiction of the court where the
petition to declare a person as an absentee has been filed.
A while ago, during the recitation of Mr. Roca, he said
that the SC pronounced that a decision declaring a
person as presumptively dead; once issued
automatically becomes final and executory.
But in Jones v. Hortiguela,, a declaration of
presumption of death can never be final.
Q: How can we reconcile the rich jurisprudence stating
that a decree declaring a person as presumptively dead
automatically becomes final and executory as
contradistinguished from Jones v. Hortiguela?
A: Both are correct.
Q: But with respect to the statement that a decree
declaring a person presumptively dead is final and
executory should be understand in the light of what
remedy should an interested party use in order to assail or
question the decree?
A: That is how to understand final and executory because
if it were final and executory, appeal is not the remedy. We
pointed that out considering that a petition to declare a
person is presumptively dead is summary in nature.
Therefore, the proper remedy is to file an MR as a sine quo
non for a petition for certiorari under Rule 65.
But, the decision itself can never be final in the sense that
until we are not certain that that person is in realilty dead,
then the decree granting the declaration of a person
presumptively dead can always be overturned upon the
reappearance of the person declared as presumptively
dead.
 NOTE:
Physical reappearance will not automatically declare as
null and void the decision declaring that person
presumptively dead because there is a difference between
actual reappearance and legal reappearance.
There must be the proper motion or petition to be filed in
court for that particular person declared as presumptively
dead to be declared as having legally reappeared.
Q: When appointment of provisional representative /
trustee / administrator shall be terminated?
A: On three instances:
1. IF THE ABSENTEE APPEARS
PERSONALLY OR BY AGENT
- Personally he appeared before the court where the
petition to declare him absentee was filed.
- Or an agent whom he appointed through a Special
Power of Attorney
e.g Nakalagay sa SPA na:
“ Kung saka-sakaling maging missing person
ako, ang mamamahala ng aking mga ari-arian at
lahat ng aking kayamanan hanggang sa mahanap
ang aking katawan ay si ganito” plus it should be
duly notarized.
The custodian of that particular SPA upon
knowledge of the declaration that a particular
person has been declared as an absentee may
bring that particular SPA to the court and the
court will summon the named agent to appear
before that particular court so that that agent will
accept the trust. And once he accept the trust,
then he must administer the estate of the missing
person.
2. When death is proved and the heirs
appear
3. When a third person acquires the property
of the absentee
Because why would you administer a particular property
already acquired by another person.
CHANGE OF NAME
What’s in a name? That which we call a rose, by any other
name would smell as sweet
-William Shakespeare
The Philippines is a terrible name, coming from Spain.
Philip II was the father of inquisition, who I believe died of
syphilis. It is my great regret that we didn’t change the
name of our country.
Imelda Marcos
- Our names has historical significance such as the
Philippines
Q: What is a name?
A: A name is something to which we identify. If you heard
someone utter your name, you will look because you were
being identified by that name.
Q: What is IN a name?
A: Your name is your person. It is a symbol of your person.
It is not only an empty word given to you by your parents.
Pinag-iisipan din yan.
96 | P a g e

Q: Who may file? known to be using that particular name but not
the name to which he applied for a change of
A: Sec. 1 of Rule 103 says a person desiring to change his name.
name. D. Having continuously use and be known since
But later on, we will look into the grounds for a valid childhood by a Filipino name, unaware of her alien
petition of a change of name. parentage
E. A sincere desire to adopt a Filipino name to erase
Q: What court has jurisdiction? signs of former alienage, all in good faith and
without prejudicing anybody; provided that he is
A: The RTC already a Filipino.
Q: Where is the venue? F. Surname causes embarrassment and there is no
showing that the desired change of name is not for
A: Residence for the past 3 years from the time the petition fraudulent purposes or that the change will not
has been filed. prejudice public interest.

Dati, sa ibang mga spec pro cases, it’s merely residence.

Example:
This time around, has been residing in the locality where
the petition is to be filed for the past 3 years from the time You can change your name from Rustom Padilla to Bb.
of filing. Gandanghari.

Q: What must be contained in the Petition? Q: But is that allowed?

1. ALLEGATION AS A BONA FIDE A:No.

RESIDENT OF THE PLACE WHERE
Q: Why?
PETITION IS FILED
A: It doesn’t fall under the grounds enumerated.
Q: What is the best proof in support of the allegation as a
bona fide resident of the place where the petition is filed? Some ridiculous names:

A: A barangay certificate stating that you have been 1. Dick’s Masher

residing in that particular barangay of that particular 2. Jesus Condom
municipality or city of that particular province for the past 3. Dickie Head
3 years. But if you have been living in different barangays, 4. Mcdonald Burger
then get as many barangay certificates as there are 5. Destinee Hooker
residences that you have been transferring from as long as
if you count all of the number of years of being a resident 3. NAME ASKED FOR
even if you live in different barangays; it must be 3 years.
A cedula can also be a proof. Examples:

2. CAUSE FOR THE CHANGE OF NAME
GROUNDS (YAP V. RP, 27 SCRA 1114)
A. Name is ridiculous, tainted with dishonor, or is
extremely difficult to write or pronounce
e.g Nabangsit as a surname
Hitler
Combination ng letters at numbers
B. When change of name is a consequence of a
change of status
e.g legitimation of a particular person because of
his or her adoption
C. Necessity to avoid confusion
- In one case that you recited, there was no
necessity considering that all the while he is
In Silverio case, she prayed that her name be changed
from Romel to Mel. For Jennifer, from Jennifer to Jeff or
Jeffrey. So maybe in the future from Charice Pempengco to
Jake Zyrus.
 PROCEDURE
1. Filing of petition
- Must be verified with certification against forum
shopping
- Contains the 3 important allegations
2. Issuance of Notice of Initial hearing
- If the court finds the petition sufficient in form and
substance.
3. Publication and posting
- Once a week for 3 consecutive weeks in a
newspaper of general circulation and a notice of
initial hearing must be posted in 3 conspicuous
public places.
e.g Bulletin board in the public market
Bulletin board in the city or municipal hall or
the provincial hall
97 | P a g e
Bulletin board in the Hall of Justice or just
outside of the court
4. Preservation of evidence
5. Initial hearing
- All the interested parties must be there.
Q: Who are the interested parties in the change of name?
Is the Republic an interested party?
A: Yes. That’s why the OSG must be there.
If you are the petitioner, your parents may be the
interested parties.
But if it is by virtue of adoption, it may be the biological
parents.
If there is no opposition during the initial hearing, (During
the initial hearing, there will be marking of jurisdictional
facts), then there will be presentation of evidence.
Because if there is opposition, and the opposition is well-
merited, asahan niyo na that madedeny yan.
6. Judgment
7. Registration
You can pray that the judgment be merely annotated in
your birth certificate or you can pray that your surname or
your middle name originally appearing in your original
certificate of live birth be erase; and in lieu thereof, the
new middle name or the new surname that you are praying
for.
Example:
You want to change the surname from Hamada to Kelly
because Hamada is the surname of the biological father.
He has been adopted by the current spouse of his mom, a
Canadian citizen Kelly. The Hamada can be drop by virtue
of the adoption decree. Anotate the adoption decree, para
ring entry sa LTD pero hindi sa likod, sa margin. And then
you can pray for the removal of the entries there.
Be very categorical because there are particular boxes.
Madali lang ang Spec Pro kung change or correction pero
meticulous dapat ang mata mo kung ano yung mga
kailangang icorrect.
It doesn’t stop in the judgment.
But if it were registration, mind you that that is no longer
the lawyer’s work. That is an administrative task to be
done by the client.
You have to go to the LCR. You have to go the Civil
Registrar in Manila or PSA in Manila.
That is why you have to include the LCR and the Civil
Registrar and some would include the PSA, then the NSO
as indispensable public respondents.
Petitions for adoption and change of name cannot be
joined. They are not the same in nature and character nor
do they present common questions of law and fact.
- Republic v. Hernandez, February 9, 1996
In 2002, Sec. 10 and Sec. 12 of the Rules on Adoption, in
case the petition, also prays for change of name, the title
or caption of the petition for adoption must contain the
registered name of the child, aliases or other names which
the child has been known and the full name which the
child is to be known.
Example:
From Deborah Perez to Tamulong
Under Sec. 12, it states among others, if the change in the
name of the adoptee is prayed for in the petition, notice to
the Solicitor General shall be mandatory.
Q: What petition?
A: The petition for adoption
Q: What is the registered name of the child?
A: As appearing in the birth certificate. There is a
particular registry number indicated there.
Anyway, even if it is not stated in the Rules on Adoption,
the Solicitor General must always be present because
adoption is a spec pro case.
The resumption by the wife of her maiden name
after a Muslim divorce is not a change of name under Rule
103. The proceeding to resume the use of the maiden
name is a superfluity but it is directory.
(Yasin v. Judge of the Sharia District Court)
Example:
Hindi mo alam kung kailangan pa bang magapply in the
future by virtue of the divorce, why not include in your
prayer that you can resume already your maiden name.
Petitioner was born in Hong Kong and came to the
Philippines as a British subject. He became a naturalized
Filipino. The Court of Appeals found that the evidence
established sufficient justification for petition for change of
name, i.e., a sincere desire to adopt a Filipino name
Kenneth Kiana So, to erase signs of his former nationality
which unduly hamper his social and business life; his
change of name will do away with his many aliases which
should be discouraged, apart from the fact that it will
avoid confusion and will be for the convenience of the
world at large in addressing him or in speaking of or
dealing with him. (Republic vs. IAC, G.R. No. L-70513,
October 13, 1986)
Legitimate minor children were not allowed to
adopt the surname of the mother’s second husband,
because there would be a false impression of their family
98 | P a g e

relations, as it could result in confusion in their paternity. But if it were sex as well as birthdate except the year,
(Padilla v. Republic , No. L-28274, April 30, 1982) 10172.

Q: So what should be done? Q: What body has jurisdiction?

A: The second husband must legally adopt the child A: If 108, RTC.
from the first husband. But if the first husband does
not give the consent, then that’s the problem. Q: Venue?

Do it the procedural way. Get a consent from the first A: The court having territorial jurisdiction over the LCR
husband who is the father of the child and then legally where the entry is registered.
adopt the child so that as a legal consequence, the So if it were in the certificate of birth,
child can use the surname.
Q: Where were you born Ms. Bunquin
On the other hand, a natural child through her
mother petitioned for a change of name to adopt the A: Urdaneta
surname of her stepfather. The Solicitor General argued
that this would hide the child’s illegitimacy. The Supreme Then file it in the city of Urdaneta.
Court held that there was nothing wrong with it, and that
Kung 9048 at 10172, it is administrative, it is not judicial.
a change of name may be asked to improve one’s
It is clerical and typographical, it is not controversial and
personality or social standing and to promote his best
substantial.
interests as long as injury or prejudice is not caused to
anyone. (Calderon v. Republic, G.R. No. L-55538, March Q: What body?
15, 1982)
A: LCR where the entry was registered.
In Padilla v. Republic, injury is caused to a third
person. SCENARIO:

Q: Who is that third person? What if in the future, Mr. Manginga you think that your
talent is not only limited to be share here in the
A: The biological father, the first husband. Philippines since it was world class. That is why you go to
Norway or you go to Switzerland, or you applied online
Q: In the Calderon case, was there injury to a third
with the UN there in Manhattan in New York. And you
person?
were taken as a lawyer there. And then, may nakakilala
A: None because anyway, the child was not sayo, inabsorb ka sa law firm there. Tapos naging
acknowledged by the father. American citizen ka. Tapos nakita mo, nag-aapply ka ng
American citizenship mo, may mga mali pala doon sa iba
NOTE: Memorize the grounds. Those are strict pang items ng birth certificate mo. Ayaw mo nang bumalik
grounds. You must know the jurisdiction and you must ng Pilipinas para don.
know the venue.
Instead of going back to the Philippines, you can file with
the Consular Office of the Philippines there in the United
States.
CANCELLATION OR
May consular office tayo sa Manhattan, sa Washington but
CORRECTION OF ENTRIES ang Embassy natin isa lang. When you talk about
IN THE CIVIL REGISTRY Embassy, you only have one Embassy in a foreign country
but if it were a big country, you may have different
consular offices. Our embassy is in Washington, DC.

Q: What rules prevail? Q: What if you go to Cuba? We have an embassy there. We

have a consular office there.
A: There are 3 rules:
Q: What about in Dominican Republic?
1. Rule 108
2. RA 9048 A: We don’t have an embassy there
3. RA 10172
Q: Do we have a consular office there?
10172 merely expanded 9048 because if it were adversarial A: None because parang circuitized din sila eh kasi konti
and controversial procedure, it’s 108. lang ang ating bilateral agreements with those particular
countries.
If it were merely typographical and clerical excluding sex
and birthdate, it’s 9048. RULE 108
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 Substantive basis of correction or alteration of
entries in the Civil Registry:
 Article 412 of the New Civil Code is the
only substantial law covering the
alteration or correction of entries in the
civil register which alteration or correction
can only be effected through a judicial
order.
SUBSTANTIAL & CONTROVERSIAL ALTERATIONS
It is clear from the foregoing discussion that when
a petition for cancellation or correction of an entry in the
civil register involves substantial and controversial
alterations, including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, a strict
compliance with the requirements of Rule 108 of the Rules
of Court is mandated.
Q: What are those strict requirements?
A: The two-notice rule. One with respect to certain public
respondents and another with private respondents who
have an interest over the case because even if there is
publication and publication is in rem and it binds the
entire world, for purposes of fair play and due process,
other interested parties must still be named in the petition
and must be notified because it is a substantial and
controversial alteration of an entry in a certificate.
If the entries in the civil register could be corrected
or changed through mere summary proceedings and not
through appropriate action wherein all parties who may be
affected by the entries are notified or represented, the door
to fraud or other mischief would be set open, the
consequence of which might be detrimental and far
reaching. (Republic of the Philippines vs.. Dr. Norma S.
Lugsanay Uy., G.R. No. 198010, August 12, 2013)
That is why Rule 108 is a good law still despite
9048 as amended by 10172.
Requirements of Rule 108 of the Rules of Court is
mandated. If the entries in the civil register could be
corrected or changed through mere summary proceedings
and not through appropriate action wherein all parties who
may be affected by the entries are notified or represented,
the door to fraud or other mischief would be set open, the
consequence of which might be detrimental and far
reaching. (Republic of the Philippines v. Dr. Norma S.
Lugsanay Uy., G.R. No. 198010, August 12, 2013)
Changes in the citizenship of a person or in his
status from legitimate to illegitimate or from married to not
married are substantial as well as controversial, which can
only be established in an
appropriate adversary proceeding. (Rosales v. Castillo-
Rosales, G.R. No. L-31712, September 28, 1984)
Clerical or typographical errors in entries of the
civil register are now to be corrected and changed without
need of a judicial order and by the city or municipal civil
registrar or consul general. What is left for the scope of
operation of Rule 108 are substantial changes and
corrections in entries of the civil register. (Lee v. CA, G.R.
No. 118387, October 11, 2001)
Republic v. Lugsanay Uy
G.R. No. 198010, August 12, 2013
DOCTRINE: Requirement of two (2) notice of
hearing to different potential oppositors
The fact that the notice of hearing was
published in a newspaper of general circulation and notice
thereof was served upon the State will not change the
nature of the proceedings taken. A reading of Sections 4
and 5, Rule 108 of the Rules of Court shows that the Rules
mandate two sets of notices to different potential
oppositors:
- one given to the persons named in the petition and
- another given to other persons who are not named
in the petition but nonetheless may be considered
interested or affected parties.
Summons must, therefore, be served not for the purpose of
vesting the courts with jurisdiction but to comply with the
requirements of fair play and due process to afford the
person concerned the opportunity to protect his interest if
he so chooses.
While there may be cases where the Court held
that the failure to implead and notify the affected or
interested parties may be cured by the publication of the
notice of hearing, earnest efforts were made by petitioners
in bringing to court all possible interested parties. Such
failure was likewise excused where the interested parties
themselves initiated the corrections proceedings; when
there is no actual or presumptive awareness of the
existence of the interested parties; or when a party is
inadvertently left out.
Nature of the Proceedings under R.A. 9048 v. Rule 108
Due to RA 9048, Rule 108 ceases to be summary
in nature and takes on the character of an appropriate
adversary proceeding. RA 9048 now embodies the
summary procedure, while Rule 108 provides for the
adversary proceeding. (Lee v. CA, G.R. No. 118387,
October 11, 2001)
9048 is summary; 108 is adversary.
9048 is administrative; 108 is judicial
ENTRIES SUBJECT TO CANCELLATION OR
CORRECTION UNDER RULE 108, IN RELATION TO R.A.
NO. 9048
1. Births
2. Marriages
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3. Deaths
4. Legal separations
5. Judgments of annulments of marriage
6. Judgments of declaration of nullity of marriage
7. Legitimations
8. Adoptions
9. Acknowledgments of natural children
10. Naturalization
11. Election, loss or recovery of citizenship
12. Civil interdiction
13. Judicial determination of filiation
14. Voluntary emancipation of a minor; and
15. Changes of names (Section 2, Rule 108)
Q: Name or surname, 108 or 9048?
A: 108
Q: Birthdate
A: It depends. If it includes the year, then 108. If it
does not include the year, then 10172.
Q: What about Maria Helena? The Maria is Ma. but it
should be Maria complete?
A: 9048
Q: Today, the sex appearing in your birth certificate is
male?
A: 10172
Q: Will there be ocular inspection to be taken?
A: Yes but not by the administrative officer.
Q: If the date in the certificate that both of you signed,
your birthdate is March 11, 1991; ang nilagay March
11, 1981
A: 108
PARTIES: CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
The civil registrar and all persons who have or claim any
interest which would be affected by such correction or
cancellation shall be made parties (Section 3, Rule 108).
Q: Where were you born Ms. Barawid?
A: Bayombong, Nueva Vizcaya
Q: So if you want to change a substantial entry in your
certificate of live birth, who will you implead as
respondents?
A: The Local Civil Registry of Bayombong, Nueva Vizcaya,
my parents and the Civil Registrar.
SCENARIO:
Ikinasal si Ms. Queddeng at Mr. Ordinario sa Pilipinas.
Both of them are Filipino citizens at the time they got
married. Then Mr. Ordinario tried his luck in Nigeria.
There, he became a high profile lawyer. He became a
Nigerian citizen. He fell inlove with a Nigerian. That is why
he filed a divorce in Nigeria. It was granted. It became
final.
Q: What is the status of the marriage here in the
Philippines?
A: It subsists.
SIR: Ms. Queddeng, pwede kang magfile ng recognition of
foreign judicial judgment or decree here in the Philippines.
Ipapaanotate mo doon sa certificate of marriage yung
divorce decree na nakuha niya. Kapag nakita mo na yung
para sayo, pwede ka nang ikasal.
In that sense, judicial recognition of a foreign judgment or
foreign decree can be a tool in order to cancel and/ correct
enteries recorded with the civil registry.
Q: Valid ba yung divorce na nakuha niya?
A: Yes pursuant to your Orbecido ruling.
Under Art. 26 of the Family Code of the Philippines, diba a
Filipino spouse is capacitated to remarry if a divorce
decree was issued in favor of the foreign spouse but at first
they are Filipinos and at the time that they got the divorce
decree, he is also a Nigerian.
Q: From the beginning ba dapat foreigner or should the
point of reckoning be at the time of the decree of divorce
was issued?
A: Obercido ruling said that it should be at the time of the
issuance of the foreign decree of divorce.
Sec. 48 of Rule 39 of the Rules of Court
Sec. 48. Effect of foreign judgments or final orders.
The effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the judgment
or final order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive
upon the title to the thing; and
Q: What if it were adoption? What if it were divorce? What
if it were annulment there in another country?
(b) In case of a judgment or final order against a
person, the judgment or final order is presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
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- That is why you have to judicially recognize it here
in the Philippines.
In either case, the judgment or final order may be repelled
by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact
The starting point in any recognition of foreign divorce,
judgment, is the acknowledgment that our courts do not
take judicial notice of foreign judgments and laws.
JUSTICE HERRERA explained that as a rule, no sovereign
is bound to give effect within its dominion to a judgment
rendered by a tribunal of another country."
This means that the foreign judgment and its authenticity
must be proven as facts under our rules on evidence
together with the alien’s applicable national law to show
the effect of the judgment on the alien himself or herself,
The recognition may be made in an action instituted
specifically for the purpose or in another action where a
party interpose foreign decree as an integral aspect of its
claim or defense.
So, it can be a part of a complaint or it can be part of an
answer.
Q: Why wait for a complaint or why wait for an answer
when you can have that decree be judicially recognized.
CORPUZ v. STO. TOMAS et.al.
The court briefly explained the nature of recognition
proceedings.
Q: What recognition?
A: Recognition of foreign judgments vis a vis cancellation of
entries under Rule 108 of the Rules of Court particularly
Art. 412 of the Civil Code declare that no entry in the civil
register shall be effected without judicial order.
The Rules of Court supplements Art. 412 of the Civil Code
by specifically providing for a special remedial proceeding
by which any entries with the civil registrar must be
judicially cancelled or collected.
Rule 108 of the Rules of Court says in detail the
jurisdictional and procedural requirements that must be
complied with before a judgment authorizing the
cancellation or correction may be annotated in the Civil
Registry. It also requires among others that the verified
petition must be filed within RTC of the province where the
corresponding civil registry is located that the civil
registrar and all persons who have or claim any interest
must be made parties to the proceedings; and that the
time and place for hearing must be published in a
newspaper of general circulation.
Q: So the same requirement as that of Rule 108?
A: Yes.
We hasten to point out, however, that this ruling should
not be construed as requiring two separate proceedings for
the registration of a foreign divorce decree in the civil
registry – one for recognition of the foreign decree and
another specifically for cancellation of the entry under Rule
108 of the Rules of Court.
Wag kang magfafile in the future if you are a private
counsel ng judicial recognition of a foreign decree of
divorce and then if it were judicially recognized, then you
will file a petition to annotate that judicially recognized
foreign divorce. It is splitting a single cause of action. You
must include that in your prayer. Lump them together.
The recognition of the foreign divorce decree may be made
in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of
Court) is precisely to establish the status or right of a party
or a particular fact. Moreover, Rule 108 of the Rules of
Court can serve as the appropriate adversarial
proceeding41 by which the applicability of the foreign
judgment can be measured and tested in terms of
jurisdictional infirmities, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
Q: How would you do that?
A: You register and record with the local civil registrar the
divorce, you register the adoption decree and then by
virtue of the recognition of the adoption decree, you correct
therefore the entries in the certificate of marriage and in
the certificate of life birth.
Q: From where would the cancellation or correction of
entry flow from?
A: It would flow from the recognition of the foreign decree
from the foreign judgment.
Q: WHAT CORRECTIONS CAN BE MADE BY RA 9048?
1. Correction of clerical or typographical errors in any
entry in civil registry documents, EXCEPT
corrections involving the change in sex, age,
nationality and status of a person.
- But as to sex, this can be done already under 10172 but
attach a certification coming from a government physician
in support of the change of sex from female to male or from
male to female.
2. Change of a person's first name in his/her civil registry
document under certain grounds specified under the law
through administrative process.
Q: If age, what rule will prevail?
A: adversarial
Q: Birth year
A: Adversarial
Q: Birth month
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A: Administrative - R.A. 10172 (An Act Further Authorizing the City

or Municipal Civil Registrar or the Consul General
Q: Birthday and birth moth excluding birth year
to Correct Clerical or Typographical Errors in the
A: Administrative Day and Month in the Date of Birth or Sex of a
Person Appearing in the Civil Register Without
Q: Nationality Need of a Judicial Order Amending for this
A: 108 Purposes RA 9048)

Q: Status of a person SECTION 1. Section 1 of Republic Act No. 9048,

A: 108
Q: Change of a person’s first name in his or her civil
registry document like Marilyn to Manilyn
A: 9048
What is clerical error?
“A clerical or typographical error” refers to an obvious
mistake committed in clerical work, either in writing,
copying, transcribing, or typing an entry in the civil
register that is harmless and innocuous, such as a
misspelled name or misspelled place of birth and the like,
and can be corrected or changed only by reference to other
existing record or records. (Section 2, RA 9048)
Sexual Reassignment Not a Ground for Change of Name
A person’s first name cannot be changed on the ground of
sex reassignment. No law allows the change of an entry in
the birth certificate of petitioner as to sex on the ground of
sex reassignment of the applicant. Also, all entries in the
birth certificate of petitioner were correct since the sex of a
person is determined at birth. (Silverio v. Republic, G.R.
No. 174689, Oct. 22, 2007)
NOTE: Gender confirmation na tawag ngayon.
SCENARIO:
What if Mark Fevy is male here in the Philippines. And
then he had a sexual reawakening. Sabi niya babae pala
siya. So he went to Germany and became a German
national and underwent gender confirmation surgery. He
came back here in the Philippines. You are a german
national. You are not a dual citizen.
hereinafter referred to as the Act, is hereby amended to
read as follows:
“SECTION 1. Authority to Correct Clerical or Typographical
Error and Change of First Name or Nickname. – No entry
in a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors
and change of first name or nickname, the day and month
in the date of birth or sex of a person where it is patently
clear that there was a clerical or typographical error or
mistake in the entry, which can be corrected or changed by
the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and
its implementing rules and regulations.”
“SEC. 2. Definition of Terms. – As used in this Act, the
following terms shall mean:
(1) xxx xxx
(2) xxx xxx
(3) ‘Clerical or typographical error’ refers to a mistake
committed in the performance of clerical work in writing,
copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name
or misspelled place of birth, mistake in the entry of
day and month in the date of birth or the sex of the
person or the like, which is visible to the eyes or
obvious to the understanding, and can be corrected or
changed only by reference to other existing record or
records: Provided, however, That no correction must
involve the change of nationality, age, or status of the
petitioner.”

In Germany, you were able to get a foreign decree that you

are a female and that your name now is Marka Phoebe.

Q: Can you correct the entries in your birth certificate from

male to female and from Mark Fevy to Marka Phoebe?

A: For as long as it is allowed in my nationality, then the

Philippines can no longer do anything. We follow the law
on the nationality because it was granted eh.

You may already have that foreign decree confirming him

as a female be annotated in the birth certificate.

But of course, we need jurisprudence.

CANCELLATION OR CORRECTION OF ENTRIES IN THE

CIVIL REGISTRY
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