Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS,
in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his
capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his capacity as Director,
Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette
or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish,
and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286,
298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447,
473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793,
800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242,
1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173,
180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245,
248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-
315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-
445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615,
641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-
1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535,
1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-
1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826,
1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-
2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522,
524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-
604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107,
120, 122, 123. 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have
no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that
petitioners are personally and directly affected or prejudiced by the alleged nonpublication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not
being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course oflaw, the person aggrieved thereby may file a verified petition in the proper court alleging the
facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other
specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by
the petitioner by reason of the wrongful acts of the defendant. Upon the other hand, petitioners maintain that since the
subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show
any specific interest for their petition to be given due course. The issue posed is not one of first impression. As early as the
1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be
granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless,
"when the question is one of public right and the object of the mandamus is to procure the enforcement of a public
duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus
proceedings brought to compel the Governor General to call a special election for the position of municipal president in the
town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to
proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we
think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a
particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for
the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error' No reason exists in the
case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this
case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no
other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the
people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to
the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than
the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to
conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally
empowered to represent the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of
laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential
issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4
this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not
provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect. Respondents'
argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered
in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not
preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of
the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said
courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be
published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from
time to time to have general applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to
regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application
of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a constructive one. Perhaps at no time since the
establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the
people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept
abreast by the mass media of the debates and deliberations in
the Batasan Pambansaand for the diligent ones, ready access to the legislative recordsno such publicity accompanies the
law-making process of the President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of
such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The
word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the
Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law
itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included or excluded from such publication. The publication of all presidential
issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for
fines, forfeitures or penalties for their violation or otherwise
impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances
which apply only to particular persons or class of persons such as administrative and executive orders need not be published
on the assumption that they have been circularized to all concerned. 6 It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee
said in Peralta vs. COMELEC 7: In a time of proliferating decrees, orders and letters of instructions which all form part of the
law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official
government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may
know where to obtain their official and specific contents. The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive
about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential
decrees which were published only during the pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too
familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot
County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a
law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with
qualifications.
The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot
justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of
rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly,
of public policy in the light of the nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is
manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
justified. Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the
Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an
operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new
judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners
to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939,
inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs
has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said
penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent
officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting
violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances
which are of general application, and unless so published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6791 March 29, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
QUE PO LAY, defendant-appellant.
Prudencio de Guzman for appellant.
First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez for appellee.
MONTEMAYOR, J.:
Que Po Lay is appealing from the decision of the Court of First Instance of Manila, finding him guilty of violating Central Bank
Circular No. 20 in connection with section 34 of Republic Act No. 265, and sentencing him to suffer six months imprisonment,
to pay a fine of P1,000 with subsidiary imprisonment in case of insolvency, and to pay the costs.
The charge was that the appellant who was in possession of foreign exchange consisting of U.S. dollars, U.S.
checks and U.S. money orders amounting to about $7,000 failed to sell the same to the Central Bank through its agents within
one day following the receipt of such foreign exchange as required by Circular No. 20. the appeal is based on the claim that
said circular No. 20 was not published in the Official Gazette prior to the act or omission imputed to the appellant, and that
consequently, said circular had no force and effect. It is contended that Commonwealth Act. No., 638 and Act 2930 both
require said circular to be published in the Official Gazette, it being an order or notice of general applicability. The Solicitor
General answering this contention says that Commonwealth Act. No. 638 and 2930 do not require the publication in the
Official Gazette of said circular issued for the implementation of a law in order to have force and effect. We agree with the
Solicitor General that the laws in question do not require the publication of the circulars, regulations and notices therein
mentioned in order to become binding and effective. All that said two laws provide is that laws, resolutions, decisions of the
Supreme Court and Court of Appeals, notices and documents required by law to be of no force and effect. In other words, said
two Acts merely enumerate and make a list of what should be published in the Official Gazette, presumably, for the guidance
of the different branches of the Government issuing same, and of the Bureau of Printing. However, section 11 of the Revised
Administrative Code provides that statutes passed by Congress shall, in the absence of special provision, take effect at the
beginning of the fifteenth day after the completion of the publication of the statute in the Official Gazette. Article 2 of the new
Civil Code (Republic Act No. 386) equally provides that laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. It is true that Circular No. 20 of the Central Bank is not a
statute or law but being issued for the implementation of the law authorizing its issuance, it has the force and effect of law
according to settled jurisprudence. (See U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule,
circulars and regulations especially like the Circular No. 20 of the Central Bank in question which prescribes a
penalty for its violation should be published before becoming effective, this, on the general principle and theory that before
the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the
people officially and specifically informed of said contents and its penalties. Our Old Civil code, ( Spanish Civil Code of 1889) has
a similar provision about the effectivity of laws, (Article 1 thereof), namely, that laws shall be binding twenty days after their
promulgation, and that their promulgation shall be understood as made on the day of the termination of the publication of the
laws in the Gazette. Manresa, commenting on this article is of the opinion that the word "laws" include regulations and
circulars issued in accordance with the same. He says:
El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia de 22 de Junio de 1910, en el sentido de que
bajo la denominacion generica de leyes, se comprenden tambien los Reglamentos,
Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de
su potestad. Tambien el poder ejecutivo lo ha venido entendiendo asi, como lo prueba el hecho de que muchas de sus
disposiciones contienen la advertencia de que empiezan a regir el mismo dia de su publicacion en la Gaceta, advertencia que
seria perfectamente inutil si no fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil Espaol, Vol. I.
p. 52).
In the present case, although circular No. 20 of the Central Bank was issued in the year 1949, it was not published until
November 1951, that is, about 3 months after appellant's conviction of its violation. It is clear that said circular, particularly its
penal provision, did not have any legal effect and bound no one until its publication in the Official Gazzette or after November
1951. In other words, appellant could not be held liable for its violation, for it was not binding at the time he was found to have
failed to sell the foreign exchange in his possession thereof. But the Solicitor General also contends that this question of non-
publication of the Circular is being raised for the first time on appeal in this Court, which cannot be done by appellant.
Ordinarily, one may raise on appeal any question of law or fact that has been raised in the court below and which is within the
issues made by the parties in their pleadings. (Section 19, Rule 48 of the Rules of Court). But the question of non-publication is
fundamental and decisive. If as a matter of fact Circular No. 20 had not been published as required by law before its violation,
then in the eyes of the law there was no such circular to be violated and consequently appellant committed no violation of the
circular or committed any offense, and the trial court may be said to have had no jurisdiction. This question may be raised at
any stage of the proceeding whether or not raised in the court below. In view of the foregoing, we reverse the decision
appealed from and acquit the appellant, with costs de oficio.


_____________________________________________________________________________________
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 138322 October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,
vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the
national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained
the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts,
both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision1 and the
March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed
Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994
at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both
parties."3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.4 They
lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly dissolving the marriage,
was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the
Australian government.6 Petitioner a Filipina and respondent were married on January 12, 1994 in Our Lady of Perpetual
Help Church in Cabanatuan City.7 In their application for a marriage license, respondent was declared as "single" and
"Filipino."8 Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their
Statutory Declarations secured in Australia.9 On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of
Marriage10 in the court a quo, on the ground of bigamy respondent allegedly had a prior subsisting marriage at the time he
married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November,
1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its
subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce
decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.1 w p h i1 . n t
On July 7, 1998 or about five years after the couple's wedding and while the suit for the declaration of nullity was pending
respondent was able to secure a divorce decree from a family court in Sydney, Australia because the "marriage ha[d]
irretrievably broken down."13 Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated
no cause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and admitted the
documentary evidence of both parties.16 After they submitted their respective memoranda, the case was submitted for
resolution.17 Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in
the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that
is, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage; thus, there was no more martial union to nullify or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated
his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry
constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent.
"3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the
applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by
the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment
granting the divorce decree before our courts."19
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the
divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated
to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong
Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this
jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements. Petitioner adds that, based on the first paragraph
of Article 26 of the Family Code, marriages solemnized abroad Petitioner adds that, based on the first paragraph of Article 26
of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in
question to the legal requirements of the place where the marriage was performed. At the outset, we lay the following basic
legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts
cannot grant it.21 A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of
Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family
Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse
capacitating him or her to remarry."26 A divorce obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws.27 A comparison between marriage and divorce, as far
as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national law."28 Therefore, before a
foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate
its conformity to the foreign law allowing it.29 Presentation solely of the divorce decree is insufficient. Divorce as a Question of
Fact Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration
requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows: "ART. 11. Where a marriage
license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local
civil registrar which shall specify the following:
x x x x x x x x x
"(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
x x x x x x x x x
"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be
required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous
marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of
the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their persons." Respondent, on the other hand, argues that the
Australian divorce decree is a public document a written official act of an Australian family court. Therefore, it requires no
further proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a foreign judgment is given
presumptive evidentiary value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad
is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The decree purports to
be a written act or record of an act of an officially body or tribunal of a foreign country.32 Under Sections 24 and 25 of Rule
132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an
official publication or (2) a copy thereof attested33 by the officer having legal custody of the document. If the record is not
kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer
in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of
his office.34 The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an
Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must
be demonstrated. Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence,
counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil
Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's qualification.37 Hence, it was
admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia.38 Compliance with the quoted articles (11, 13 and
52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired
Australian citizenship in 1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil
rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former states, don the attires of
their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum
juris that had tied him to Philippine personal laws. Burden of Proving Australian Law Respondent contends that the burden to
prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He
contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is
allegedly known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing necessary in the
prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of proving the material allegations of the
complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their
answer when they introduce new matters.42 Since the divorce was a defense raised by respondent, the burden of proving the
pertinent Australian law validating it falls squarely upon him. It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws.43 Like any other facts, they must be alleged and proved. Australian marital laws are not among
those matters that judges are supposed to know by reason of their judicial function.44 The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in
1994. Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal
capacity to marry under Australian law. Respondent's contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1)
absolute divorce
or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second
suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was procured by
respondent. Respondent presented a decree nisi or an interlocutory decree a conditional or provisional judgment of divorce.
It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the
prescribed period during which no reconciliation is effected.46 Even after the divorce becomes absolute, the court may under
some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying
again. The court may allow a remarriage only after proof of good behavior.47 On its face, the herein Australian divorce decree
contains a restriction that reads: "1. A party to a marriage who marries again before this decree becomes absolute (unless the
other party has died) commits the offence of bigamy."48 This quotation bolsters our contention that the divorce obtained by
respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto
restored respondent's capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of
respondent that the divorce decree raises a disputable presumption or presumptive We also reject the claim of respondent
that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule
3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree
obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together
with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to
remarry. We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity
of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal
capacity to marry on the part of the alien applicant for a marriage license.50 As it is, however, there is absolutely no evidence
that proves respondent's legal capacity to marry petitioner. A review of the records before this Court shows that only the
following exhibits were presented before the lower
court: (1) for petitioner: (a) Exhibit "A" Complaint;51 (b) Exhibit "B" Certificate of Marriage Between Rederick A. Recto
(Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;52 (c) Exhibit "C"
Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon,
Metro Manila;53 (d) Exhibit "D" Office of the City Registrar of Cabanatuan City Certification that no information of annulment
between Rederick A. Recto and Editha D. Samson was in its records;54 and (e) Exhibit "E" Certificate of Australian Citizenship
of Rederick A. Recto;55 (2) for respondent: (Exhibit "1" Amended Answer;56 (b) Exhibit "S" Family Law Act 1975 Decree Nisi
of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" Certificate of Australian Citizenship of Rederick A.
Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;59 and Exhibit "5"
Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since
October 22, 1995.60 Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian
citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a
quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring
him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his
legal capacity to contract the second marriage. Neither can we grant petitioner's prayer to declare her marriage to respondent
null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to
the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the
court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing
marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the
other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the
purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner; and failing in that, of
declaring the parties' marriage void on the ground of bigamy, as above discussed. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Baguio City
FIRST DIVISION
G.R. No. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14 floors
from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report dated November
25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila where he was
pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose A. Juego together with Jessie Jaluag and Delso
Destajo [were] performing their work as carpenter[s] at the elevator core of the 14th floor of the Tower D, Renaissance Tower
Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid plywood
flooring and cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which
was merely inserted to connect the chain block with the [p]latform, got loose xxx causing the whole [p]latform assembly and
the victim to fall down to the basement of the elevator core, Tower D of the building under construction thereby crushing the
victim of death, save his two (2) companions who luckily jumped out for safety. It is thus manifest that Jose A. Juego was
crushed to death when the [p]latform he was then on board and performing work, fell. And the falling of the [p]latform was
due to the removal or getting loose of the pin which was merely inserted to the connecting points of the chain block and
[p]latform but without a safety lock.1 On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of
Pasig a complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other
defenses, the widows prior availment of the benefits from the State Insurance Fund. After trial, the RTC rendered a decision in
favor of the widow Maria Juego. The dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS ADMISSIBLE
EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA LOQUITOR [sic]
IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED NEGLIGENT
UNDER ARTICLE 2180 OF THE CIVIL CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT PRECLUDED FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The CA ruled otherwise.
It held that said report, being an entry in official records, is an exception to the hearsay rule. The Rules of Court provide that a
witness can testify only to those facts which he knows of his personal knowledge, that is, which are derived from his
perception.4 A witness, therefore, may not testify as what he merely learned from others either because he was told or read or
heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned.5
This is known as the hearsay rule. Hearsay is not limited to oral testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral statements.6 The theory of the hearsay rule is that the many possible
deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a
witness, may be best brought to light and exposed by the test of cross-examiantion.7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination.8 The Rules of Court allow several exceptions to the rule,9 among which
are entries in official records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein
stated. In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran, enumerated the
requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a
duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information. The CA held that the police report
meets all these requisites. Petitioner contends that the last requisite is not present. The Court notes that PO3 Villanueva, who
signed the report in question, also testified before the trial court. In Rodriguez vs. Court of Appeals,11 which involved a Fire
Investigation Report, the officer who signed the fire report also testified before the trial court. This Court held that the report
was inadmissible for the purpose of proving the truth of the statements contained in the report but admissible insofar as it
constitutes part of the testimony of the
officer who executed the report. x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the summary of the statements of the parties based on their
sworn statements (which were annexed to the Report) as well as the latter, having been included in the first purpose of the
offer [as part of the testimony of Major Enriquez], may then be considered as independently relevant statements which were
gathered in the course of the investigation and may thus be admitted as such, but not necessarily to prove the truth thereof. It
has been said that: "Where regardless of the truth or falsity of a statement, the fact that it has been made is relevant, the
hearsay rule does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary
but primary, for the statement itself may constitute a fact in issue, or be circumstantially relevant as to the existence of such a
fact."
When Major Enriquez took the witness stand, testified for petitioners on his Report and made himself available for cross-
examination by the adverse party, the Report, insofar as it proved that certain utterances were made (but not their truth), was
effectively removed from the ambit of the aforementioned Section 44 of Rule 130. Properly understood, this section does
away with the testimony in open court of the officer who made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in evidence as prima facie evidence of the facts therein
stated. The underlying reasons for this exceptionary rule are necessity and trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be
summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose daily work
something is not done in which testimony is not needed from official sources. Were there no exception for official statements,
hosts of officials would be found devoting the greater part of their time to attending as witnesses in court or delivering
deposition before an officer. The work of administration of government and the interest of the public having business with
officials would alike suffer in consequence. For these reasons, and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts with accuracy
and fidelity; and, therefore, whatever acts they do in discharge of their duty may be given in evidence and shall be taken to be
true under such a degree of caution as to the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not presented to testify on his report. In that case the
applicability of Section 44 of Rule 143 would have been ripe for determination, and this Court would have agreed with the
Court of Appeals that said report was inadmissible since the aforementioned third requisite was not satisfied. The statements
given by the sources of information of Major Enriquez failed to qualify as "official information," there being no showing that, at
the very least, they were under a duty to give the statements for record. Similarly, the police report in this case is inadmissible
for the purpose of proving the truth of the statements contained therein but is admissible insofar as it constitutes part of the
testimony of PO3 Villanueva. In any case, the Court holds that portions of PO3 Villanuevas testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva had seen
Juegos remains at the morgue,12 making the latters death beyond dispute. PO3 Villanueva also conducted an ocular
inspection of the premises of the building the day after the incident13 and saw the platform for himself.14 He observed that
the platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia and Fabro to bring the
chain block to the police headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine,
without any pin or bolt.17
What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall of the platform was the
loosening of the bolt from the chain block. It is claimed that such portion of the testimony is mere opinion. Subject to certain
exceptions,18 the opinion of a witness is generally not admissible.19 Petitioners contention, however, loses relevance in the
face of the application of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that
the mere fall of the elevator was a result of the person having charge of the instrumentality was negligent. As a rule of
evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may
be established without direct proof and furnishes a substitute for specific proof of negligence.20 The concept of res ipsa
loquitur has been explained in this wise: While negligence is not ordinarily inferred or presumed, and while the mere
happening of an accident or injury will not generally give rise to an inference or presumption that it was due to negligence on
defendants part, under the doctrine of res ipsa loquitur, which means, literally, the thing or transaction speaks for itself, or in
one jurisdiction, that the thing or instrumentality speaks for itself, the facts or circumstances accompanying an injury may be
such as to raise a presumption, or at least permit an inference of negligence on the part of the defendant, or some other
person who is charged with negligence. x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the
x x x where it is shown that the thing or instrumentality which caused the injury complained of was under the control or
management of the defendant, and that the occurrence resulting in the injury was such as in the ordinary course of things
would not happen if those who had its control or management used proper care, there is sufficient evidence, or, as sometimes
stated, reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the
defendants want of care.21 One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent
or not available.22 The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it
and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon
the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is
grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person. It has been said that the doctrine of res ipsa loquitur furnishes a bridge by
which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any
explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsa loquitur
doctrine, another court has said, is a rule of necessity, in that it proceeds on the theory that under the peculiar circumstances
in which the doctrine is applicable, it is within the power of the defendant to show that there was no negligence on his part,
and direct proof of defendants negligence is beyond plaintiffs power. Accordingly, some court add to the three prerequisites
for the application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it
must appear that
the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged
with negligence has superior knowledge or opportunity for explanation of the accident.23 The CA held that all the requisites of
res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14th floor of a building to the basement while he was working
with appellants construction project, resulting to his death. The construction site is within the exclusive control and
management of appellant. It has a safety engineer, a project superintendent, a carpenter leadman and others who are in
complete control of the situation therein. The circumstances of any accident that would occur therein are peculiarly within the
knowledge of the appellant or its employees. On the other hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily available, provided the
following requisites are present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2)
the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence;
and (3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. x
x x.
No worker is going to fall from the 14th floor of a building to the basement while performing work in a construction site unless
someone is negligent[;] thus, the first requisite for the application of the rule of res ipsa loquitur is present. As explained
earlier, the construction site with all its paraphernalia and human resources that likely caused the injury is under the exclusive
control and management of appellant[;] thus[,] the second requisite is also present. No contributory negligence was attributed
to the appellees deceased husband[;] thus[,] the last requisite is also present. All the requisites for the application of the rule
of res ipsa loquitur are present, thus a reasonable presumption or inference of appellants negligence arises. x x x.24 Petitioner
does not dispute the existence of the requisites for the application of res ipsa loquitur, but argues that the presumption or
inference that it was negligent did not arise since it "proved that it exercised due care to avoid the accident which befell
respondents husband." Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendants negligence is presumed or inferred25 when the plaintiff establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of all the elements, the burden then shifts to defendant to explain.26
The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances
disputable presumption, such as that of due care or innocence, may outweigh the inference.27 It is not for the defendant to
explain or prove its defense to prevent the presumption or inference from arising. Evidence by the defendant of say, due care,
comes into play only after the circumstances for the application of the doctrine has been established.1 w p h i1 . n t In any
case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the police investigator as evidence
of its due care. According to Fabros sworn statement, the company enacted rules and regulations for the safety and security of
its workers. Moreover, the leadman and the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing that private respondent
failed to prove negligence on the part of petitioners employees, also assails the same statement for being hearsay. Petitioner
is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are inadmissible as evidence under the hearsay rule,
unless the affiant is placed on the witness stand to testify thereon.28 The inadmissibility of this sort of evidence is based not
only on the lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the commonly known
fact that, generally, an affidavit is not prepared by the affiant himself but by another who uses his own language in writing the
affiants statements which may either be omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot
use said statement as proof of its due care any more than private respondent can use it to prove the cause of her husbands
death. Regrettably, petitioner does not cite any other evidence to rebut the inference or presumption of negligence arising
from the application of res ipsa loquitur, or to establish any defense relating to the incident. Next, petitioner argues that
private respondent had previously availed of the death benefits provided under the Labor Code and is, therefore, precluded
from claiming from the deceaseds employer damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be
exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to
receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the
recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred
sixty-one, as amended, Republic Act Numbered Six hundred ten, as amended, Republic Act Numbered Forty-eight hundred
sixty-four as amended, and other laws whose benefits are administered by the System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens Compensation Act, provided that:
Section 5. Exclusive right to compensation. The rights and remedies granted by this Act to an employee by reason of a
personal injury entitling him to compensation shall exclude all other rights and remedies accruing to the employee, his
personal representatives, dependents or nearest of kin against the employer under the Civil Code and other laws because of
said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act as well as under the Civil Code used
to be the subject of conflicting decisions. The Court finally settled the matter in Floresca vs.Philex Mining Corporation,30 which
involved a cave-in resulting in the death of the employees of the Philex Mining Corporation. Alleging that the mining
corporation, in violation of government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of First Instance (CFI).
Upon motion of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En Banc,31 following the rule in
Pacaa vs. Cebu Autobus Company, held in the affirmative. WE now come to the query as to whether or not the injured
employee or his heirs in case of death have a right of selection or choice of action between availing themselves of the workers
right under the Workmens Compensation Act and suing in the regular courts under the Civil Code for higher damages (actual,
moral and exemplary) from the employers by virtue of the negligence or fault of the employers or whether they may avail
themselves cumulatively of both actions, i.e., collect the limited compensation under the Workmens Compensation Act and
sue in addition for damages in the regular courts. In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus
Company, 32 SCRA 442, ruled that an injured worker has a choice of either to recover from the employer the fixed amounts set
by the Workmens Compensation Act or to prosecute an ordinary civil action against the tortfeasor for higher damages but he
cannot pursue both courses of action simultaneously. [Underscoring supplied.] Nevertheless, the Court allowed some of the
petitioners in said case to proceed with their suit under the Civil Code despite having availed of the benefits provided under
the Workmens Compensation Act. The Court reasoned: With regard to the other petitioners, it was alleged by Philex in its
motion to dismiss dated May 14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra,
Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for compensation to the Regional
Office No. 1 of the then Department of Labor and all of them have been paid in full as of August 25, 1967, except Saturnino
Martinez whose heirs decided that they be paid in installments x x x. Such allegation was admitted by herein petitioners in
their opposition to the motion to dismiss dated may 27, 1968 x x x in the lower court, but they set up the defense that the
claims were filed under the Workmens Compensation Act before they learned of the official report of the committee created
to investigate the accident which established the criminal negligence and violation of law by Philex, and which report was
forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x. WE
hold that although the other petitioners had received the benefits under the Workmens Compensation Act, such my not
preclude them from bringing an action before the regular court because they became cognizant of the fact that Philex has
been remiss in its contractual obligations with the deceased miners only after receiving compensation under the Act. Had
petitioners been aware of said violation of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmens Compensation Commission which awarded a lesser amount for compensation. The
choice of the first remedy was based on ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent
choice. The case should therefore be remanded to the lower court for further proceedings.
However, should the petitioners be successful in their bid before the lower court, the payments made under the Workmens
Compensation Act should be deducted from the damages that may be decreed in their favor. [Underscoring supplied.] The
ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime Corporation vs. Avelino,32
Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the last case, the Court again recognized that
a claimant who had been paid under the Act could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of their employment could be filed
only under the Workmens Compensation Law, to the exclusion of all further claims under other laws. In Floresca, this doctrine
was abrogated in favor of the new rule that the claimants may invoke either the Workmens Compensation Act or the
provisions of the Civil Code, subject to the consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for additional benefits under the other remedy.
The exception is where a claimant who has already been paid under the Workmens Compensation Act may still sue for
damages under the Civil Code on the basis of supervening facts or developments occurring after he opted for the first remedy.
(Underscoring supplied.)
Here, the CA held that private respondents case came under the exception because private respondent was unaware of
petitioners negligence when she filed her claim for death benefits from the State Insurance Fund. Private respondent filed the
civil complaint for damages after she received a copy of the police investigation report and the Prosecutors Memorandum
dismissing the criminal complaint against petitioners personnel. While stating that there was no negligence attributable to the
respondents in the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception in Floresca: x x x We do not agree that appellee has knowledge of the alleged
negligence of appellant as early as November 25, 1990, the date of the police investigators report. The appellee merely
executed her sworn statement before the police investigator concerning her personal circumstances, her relation to the victim,
and her knowledge of the accident. She did not file the complaint for "Simple Negligence Resulting to Homicide" against
appellants employees. It was the investigator who recommended the filing of said case and his supervisor referred the same
to the prosecutors office. This is a standard operating procedure for police investigators which appellee may not have even
known. This may explain why no complainant is mentioned in the preliminary statement of the public prosecutor in her
memorandum dated February 6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple
Negligence Resulting to Homicide." It is also possible that the appellee did not have a chance to appear before the public
prosecutor as can be inferred from the following statement in said memorandum: "Respondents who were notified pursuant
to Law waived their rights to present controverting evidence," thus there was no reason for the public prosecutor to summon
the appellee. Hence, notice of appellants negligence cannot be imputed on appellee before she applied for death benefits
under ECC or before she received the first payment therefrom. Her using the police investigation report to support her
complaint filed on May 9, 1991 may just be an afterthought after receiving a copy of the February 6, 1991 Memorandum of the
Prosecutors Office dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The death of the
victim is not attributable to any negligence on the part of the respondents. If at all and as shown by the records this case is civil
in nature." (Underscoring supplied.) Considering the foregoing, We are more inclined to believe appellees allegation that she
learned about appellants negligence only after she applied for and received the benefits under ECC. This is a mistake of fact
that will make this case fall under the exception held in the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her educational attainment; that she did
not know what damages could be recovered from the death of her husband; and that she did not know that she may also
recover more from the Civil Code than from the ECC. x x x.36 Petitioner impugns the foregoing rulings. It contends that private
respondent "failed to allege in her complaint that her application and receipt of benefits from the ECC were attended by
ignorance or mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or
adjudicate that issue." Petitioner also claims that private respondent could not have been ignorant of the facts because as
early as November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple Negligence Resulting
to Homicide" against petitioners employees. On February 6, 1991, two months before the filing of the action in the lower
court, Prosecutor Lorna Lee issued a resolution finding that, although there was insufficient evidence against petitioners
employees, the case was "civil in nature." These purportedly show that prior to her receipt of death benefits from the ECC on
January 2, 1991 and every month thereafter, private respondent also knew of the two choices of remedies available to her and
yet she chose to claim and receive the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the election is final and bars
any action, suit, or proceeding inconsistent with the elected remedy, in the absence of fraud by the other party. The first act of
election acts as a bar.37 Equitable in nature, the doctrine of election of remedies is designed to mitigate possible unfairness to
both parties. It rests on the moral premise that it is fair to hold people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule in Floresca that a claimant
cannot simultaneously pursue recovery under the Labor Code and prosecute an ordinary course of action under the Civil Code.
The claimant, by his choice of one remedy, is deemed to have waived the other. Waiver is the intentional relinquishment of a
known right.39 [It] is an act of understanding that presupposes that a party has knowledge of its rights, but chooses not to
assert them. It must be generally shown by the party claiming a waiver that the person against whom the waiver is asserted
had at the time knowledge, actual or constructive, of the existence of the partys rights or of all material facts upon which they
depended. Where one lacks knowledge of a right, there is no basis upon which waiver of it can rest. Ignorance of a material
fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact. A
person makes a knowing and intelligent waiver when that person knows that a right exists and has adequate knowledge upon
which to make an intelligent decision. Waiver requires a knowledge of the facts basic to the exercise of the right waived, with
an awareness of its consequences. That a waiver is made knowingly and intelligently must be illustrated on the record or by
the evidence.40 That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception in
Floresca. It is in light of the foregoing principles that we address petitioners contentions. Waiver is a defense, and it was not
incumbent upon private respondent, as plaintiff, to allege in her complaint that she had availed of benefits from the ECC. It is,
thus, erroneous for petitioner to burden private respondent with raising waiver as an issue. On the contrary, it is the defendant
who ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise, the defense is waived. It is, therefore,
perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue when petitioner itself pleaded
waiver in the proceedings before the trial court. Does the evidence show that private respondent knew of the facts that led to
her husbands death and the rights pertaining to a choice of remedies? It bears stressing that what negates waiver is lack of
knowledge or a mistake of fact. In this case, the "fact" that served as a basis for nullifying the waiver is the negligence of
petitioners employees, of which private respondent purportedly learned only after the prosecutor issued a resolution stating
that there may be civil liability. In Floresca, it was the negligence of the mining corporation and its violation of government
rules and regulations. Negligence, or violation of government rules and regulations, for that matter, however, is not a fact, but
a conclusion of law, over which only the courts have the final say. Such a conclusion binds no one until the courts have decreed
so. It appears, therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca
and in the case at bar. In any event, there is no proof that private respondent knew that her husband died in the elevator crash
when on November 15, 1990 she accomplished her application for benefits from the ECC. The police investigation report is
dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner filed the application in her behalf on
November 27, 1990. There is also no showing that private respondent knew of the remedies available to her when the claim
before the ECC was filed. On the contrary, private respondent testified that she was not aware of her rights. Petitioner, though,
argues that under Article 3 of the Civil Code, ignorance of the law excuses no one from compliance therewith. As judicial
decisions applying or interpreting the laws or the Constitution form part of the Philippine legal system (Article 8, Civil Code),
private respondent cannot claim ignorance of this Courts ruling in Floresca allowing a choice of remedies. The argument has
no merit. The application of Article 3 is limited to mandatory and prohibitory laws.42 This may be deduced from the language
of the provision, which, notwithstanding a persons ignorance, does not excuse his or her compliance with the laws. The rule in
Floresca allowing private respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance
thereof cannot be held against her. Finally, the Court modifies the affirmance of the award of damages. The records do not
indicate the total amount private respondent ought to receive from the ECC, although it appears from Exhibit "K"43 that she
received P3,581.85 as initial payment representing the accrued pension from November 1990 to March 1991. Her initial
monthly pension, according to the same Exhibit "K," was P596.97 and present total monthly pension was P716.40. Whether
the total amount she will eventually receive from the ECC is less than the sum of P644,000.00 in total damages awarded by the
trial court is subject to speculation, and the case is remanded to the trial court for such determination. Should the trial court
find that its award is greater than that of the ECC, payments already received by private respondent under the Labor Code shall
be deducted from the trial court' award of damages. Consistent with our ruling in Floresca, this adjudication aims to prevent
double compensation. WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award decreed by the trial court be greater than that
awarded by the ECC, payments already made to private respondent pursuant to the Labor Code shall be deducted therefrom.
In all other respects, the Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15127 May 30, 1961
EMETERIO CUI, plaintiff-appellant,
vs.
ARELLANO UNIVERSITY, defendant-appellee.
G.A.S. Sipin, Jr., for plaintiff-appellant.
E. Voltaire Garcia for defendant-appellee.
CONCEPCION, J.:
Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila, absolving defendant
Arellano University from plaintiff's complaint, with costs against the plaintiff, and dismissing defendant's counter claim, for
insufficiency of proof thereon.
In the language of the decision appealed from:
The essential facts of this case are short and undisputed. As established by the agreement of facts Exhibits X and by the
respective oral and documentary evidence introduced by the parties, it appears conclusive that plaintiff, before the school year
1948-1949 took up preparatory law course in the defendant University. After finishing his preparatory law course plaintiff
enrolled in the College of Law of the defendant from the school year 1948-1949. Plaintiff finished his law studies in the
defendant university up to and including the first semester of the fourth year. During all the school years in which plaintiff was
studying law in defendant law college, Francisco R. Capistrano, brother of the mother of plaintiff, was the dean of the College
of Law and legal counsel of the defendant university. Plaintiff enrolled for the last semester of his law studies in the defendant
university but failed to pay his tuition fees because his uncle Dean Francisco R. Capistrano having severed his connection with
defendant and having accepted the deanship and chancellorship of the College of Law of Abad Santos University, plaintiff left
the defendant's law college and enrolled for the last semester of his fourth year law in the college of law of the Abad Santos
University graduating from the college of law of the latter university. Plaintiff, during all the time he was studying law in
defendant university was awarded scholarship grants, for scholastic merit, so that his semestral tuition fees were returned to
him after the ends of semester and when his scholarship grants were awarded to him. The whole amount of tuition fees paid
by plaintiff to defendant and refunded to him by the latter from the first semester up to and including the first semester of his
last year in the college of law or the fourth year, is in total P1,033.87. After graduating in law from Abad Santos University he
applied to take the bar examination. To secure permission to take the bar he needed the transcripts of his records in defendant
Arellano University. Plaintiff petitioned the latter to issue to him the needed transcripts. The defendant refused until after he
had paid back the P1,033 87 which defendant refunded to him as above stated. As he could not take the bar examination
without those transcripts, plaintiff paid to defendant the said sum under protest. This is the sum which plaintiff seeks to
recover from defendant in this case. Before defendant awarded to plaintiff the scholarship grants as above stated, he was
made to sign the following contract covenant and agreement:
"In consideration of the scholarship granted to me by the University, I hereby waive my right to transfer to another school
without having refunded to the University (defendant) the equivalent of my scholarship cash. (Sgd.) Emeterio Cui". It is
admitted that, on August 16, 1949, the Director of Private Schools issued Memorandum No. 38, series of 1949, on the subject
of "Scholarship," addressed to "All heads of private schools, colleges and universities," reading:
1. School catalogs and prospectuses submitted to this, Bureau show that some schools offer full or partial scholarships to
deserving students for excellence in scholarship or for leadership in extra-curricular activities. Such inducements to poor but
gifted students should be encouraged. But to stipulate the condition that such scholarships are good only if the students
concerned continue in the same school nullifies the principle of merit in the award of these scholarships.
2. When students are given full or partial scholarships, it is understood that such scholarships are merited and earned. The
amount in tuition and other fees corresponding to these scholarships should not be subsequently charged to the recipient
students when they decide to quit school or to transfer to another institution. Scholarships should not be offered merely to
attract and keep students in a school.
3. Several complaints have actually been received from students who have enjoyed scholarships, full or partial, to the effect
that they could not transfer to other schools since their credentials would not be released unless they would pay the fees
corresponding to the period of the scholarships. Where the Bureau believes that the right of the student to transfer is being
denied on this ground, it reserves the right to authorize such transfer. that defendant herein received a copy of this
memorandum; that plaintiff asked the Bureau of Private Schools to pass upon the issue on his right to secure the transcript of
his record in defendant University, without being required to refund the sum of P1,033.87; that the Bureau of Private Schools
upheld the position taken by the plaintiff and so advised the defendant; and that, this notwithstanding, the latter refused to
issue said transcript of records, unless said refund were made, and even recommended to said Bureau that it issue a written
order directing the defendant to release said transcript of record, "so that the case may be presented to the court for judicial
action." As above stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said sum of P1,033.87, in
order that he could take the bar examination in 1953. Subsequently, he brought this action
for the recovery of said amount, aside from P2,000 as moral damages, P500 as exemplary damages, P2,000 as attorney's fees,
and P500 as expenses of litigation. In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private Schools,
namely, that the provisions of its contract with plaintiff are valid and binding and that the memorandum above-referred to is
null and void. It, likewise, set up a counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees.
The issue in this case is whether the above quoted provision of the contract between plaintiff and the defendant, whereby the
former waived his right to transfer to another school without refunding to the latter the equivalent of his scholarships in cash,
is valid or not. The lower court resolved this question in the affirmative, upon the ground that the aforementioned
memorandum of the Director of Private Schools is not a law; that the provisions thereof are advisory, not mandatory in nature;
and that, although the contractual provision "may be unethical, yet it was more unethical for plaintiff to quit studying with the
defendant without good reasons and simply because he wanted to follow the example of his uncle." Moreover, defendant
maintains in its brief that the aforementioned memorandum of the Director of Private Schools is null and void because said
officer had no authority to issue it, and because it had been neither approved by the corresponding department head nor
published in the official gazette. We do not deem it necessary or advisable to consider as the lower court did, the question
whether plaintiff had sufficient reasons or not to transfer from defendant University to the Abad Santos University. The nature
of the issue before us, and its far reaching effects, transcend personal equations and demand a determination of the case from
a high impersonal plane. Neither do we deem it essential to pass upon the validity of said Memorandum No. 38, for, regardless
of the same, we are of the opinion that the stipulation in question is contrary to public policy and, hence, null and void. The
aforesaid memorandum merely incorporates a sound principle of public policy. As the Director of Private Schools correctly
pointed, out in his letter, Exhibit B, to the defendant, There is one more point that merits refutation and that is whether or not
the contract entered into between Cui and Arellano University on September 10, 1951 was void as against public policy. In the
case of Zeigel vs. Illinois Trust and Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In determining a public policy of
the state, courts are limited to a consideration of the Constitution, the judicial decisions, the statutes, and the practice of
government officers.' It might take more than a government bureau or office to lay down or establish a public policy, as alleged
in your communication, but courts consider the practices of government officials as one of the four factors in determining a
public policy of the state. It has been consistently held in America that under the principles relating to the doctrine of public
policy, as applied to the law of contracts, courts of justice will not recognize or uphold a transaction which its object, operation,
or tendency is calculated to be prejudicial to the public welfare, to sound morality or to civic honesty (Ritter vs.
Mutual Life Ins. Co., 169 U.S. 139; Heding vs. Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University
understood clearly the real essence of scholarships and the motives which prompted this office to issue Memorandum No. 38,
s. 1949, it should have not entered into a contract of waiver with Cui on September 10, 1951, which is a direct violation of our
Memorandum and an open challenge to the authority of the Director of Private Schools because the contract was repugnant to
sound morality and civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off. Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In
order to declare a contract void as against public policy, a court must find that the contract as to consideration or the thing to
be done, contravenes some established interest of society, or is inconsistent with sound policy and good morals or tends clearly
to undermine the security of individual rights. The policy enunciated in Memorandum No. 38, s. 1949 is sound policy.
Scholarship are awarded in recognition of merit not to keep outstanding students in school to bolster its prestige. In the
understanding of that university scholarships award is a business scheme designed to increase the business potential of an
education institution. Thus conceived it is not only inconsistent with sound policy but also good morals. But what is morals?
Manresa has this definition. It is good customs; those generally accepted principles of morality which have received some kind
of social and practical confirmation. The practice of awarding scholarships to attract students and keep them in school is not
good customs nor has it received some kind of social and practical confirmation except in some private institutions as in
Arellano University. The University of the Philippines which implements Section 5 of Article XIV of the Constitution with
reference to the giving of free scholarships to gifted children, does not require scholars to reimburse the corresponding value
of the scholarships if they transfer to other schools. So also with the leading colleges and universities of the United States after
which our educational practices or policies are patterned. In these institutions scholarships are granted not to attract and to
keep brilliant students in school for their propaganda mine but to reward merit or help gifted students in whom society has an
established interest or a first lien. (Emphasis supplied.) WHEREFORE, the decision appealed from is hereby reversed and
another one shall be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with interest thereon at
the legal rate from September 1, 1954, date of the institution of this case, as well as the costs, and dismissing defendant's
counterclaim. It is so ordered.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.
ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case. The judicial administrator of this
estate filed a scheme of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it. The errors which the oppositor-appellant assigns are: (1) The approval
of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of
the order approving the partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's business and the
deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent to this cause, and the failure not
to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the
receipt of the depositions requested in reference to the Turkish laws. The appellant's opposition is based on the fact that the
partition in question puts into effect the provisions of
Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as
being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and
testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the
intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question,
whatever may be the nature of the property or the country in which it may be situated.But the fact is that the oppositor did
not prove that said testimentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any
evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to
be the same as those of the Philippines. (Lim
and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be
given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not having
deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on
the matter. The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to introduce
competent evidence, we find no abuse of discretion on the part of the court in this particular. There is, therefore, no evidence
in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question
which, not being contrary to our laws in force, must be complied with and executed. la w p h il. n e t
Therefore, the approval of the scheme of partition in this respect was not erroneous. In regard to the first assignment of error
which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in
will, it must be taken into consideration that such exclusion is based on the last part of the second clause of the will, which
says: Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been conferred upon me
by conquest and not by free choice, nor by nationality and, on the other hand, having resided for a considerable length of time
in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution
of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in
the Philippine islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's
will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the laws of the
Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by
his attitude in these proceedings has not respected the will of the testator, as expressed, is prevented from receiving his
legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides the
following:
Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the
heir or legatee in any manner whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of
the civil Code above quoted, such national law of the testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in
said will is unconditional and consequently valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed
upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing
that said clauses are contrary to the testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a
manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition submitted by the
judicial administrator is approved in all other respects, without any pronouncement as to costs.
So ordered.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal
infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto
appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a
German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic
of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where
their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1 Thereafter, marital discord set in, with mutual
recriminations between the spouses, followed by a separation de facto between them. After about three and a half years of
marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in
Germany before the Schoneberg Local Court in January, 1983.
He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2 Petitioner, on the
other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila,
Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3 On January 15, 1986, Division
20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of
marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said
court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally
founded on and authorized by the applicable law of that foreign jurisdiction. 4 On June 27, 1986, or more than five months
after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila
alleging that, while still married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and
with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However,
upon review, the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for
adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the
Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as
Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People of
the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge Leonardo
Cruz, Branch XXV, of the same court. 7 On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that
the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed
by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor,
gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused
have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records
of both cases to his office for review. 9 Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and
to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case
No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87- 52435
to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending before the
Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion
was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to
be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel
were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14 On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with
a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to
quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of
adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner,
does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the
criminal complaint." 15 On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87- 52435.
Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and,
upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the
complaints against the petitioner. 16 We find this petition meritorious. The writs prayed for shall accordingly issue. Under
Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot be
prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn
written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and
without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the
complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of
lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four
offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae,
was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or
incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents,
grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the
offended spouse, and no other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a
familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and
rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and
fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the
complaining witness therein. However, in the so-called "private crimes" or those which cannot be prosecuted de oficio, and the
present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to
commence the action, or to refrain therefrom, is a matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather
than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code
thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery.
This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed offended
party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be
definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates
the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the
commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but
did not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit
at the very time when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the
status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in
law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry;
would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the
complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the
latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that
after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders
where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery.
Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the
prosecution of the criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint of the husband or wife.'
Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased
to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the
reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the
prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory
law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be
an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the
complaint.
In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany,
is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned
23 in view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between
Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business
concern was conjugal property and praying that she be ordered to render anaccounting and that the plaintiff be granted the
right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered
by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality.
However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to
their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to
sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. ...
25 Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal
standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of
knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce
proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the
marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of
the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship
to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the
actuations of one would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433
of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her
marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect".
Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because
such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from
the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on.
Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the
criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The
same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of
inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a
complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant.
Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one entered
DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this
case on October 21, 1987 is hereby made permanent.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 142820 June 20, 2003
WOLFGANG O. ROEHR, petitioner,
vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of Makati
RTC, Branch 149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed by public respondent and
(b) lack of jurisdiction of the regional trial court, in matters that spring from a divorce decree obtained abroad by petitioner. In
this special civil action for certiorari, petitioner assails (a) the order1 dated September 30, 1999 of public respondent Judge
Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2 Branch 149, in Civil Case No. 96-1389 for
declaration of nullity of marriage, and (b) the order3 dated March 31, 2000 denying his motion for reconsideration. The
assailed orders partially set aside the trial courts order dismissing Civil Case No. 96-1389, for the purpose of resolving issues
relating to the property settlement of the spouses and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondent Carmen Rodriguez, a
Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was subsequently ratified on February 14, 1981 in
Tayasan, Negros Oriental.4 Out of their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October
25, 1987, respectively.
On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before the Regional Trial Court
(RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6 but it was denied by the trial court in its order7
dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order8 dated August 13, 1997. On
September 5, 1997, petitioner filed a petition for certiorari with the Court of Appeals. On November 27, 1998, the appellate
court denied the petition and remanded the case to the RTC. Meanwhile, petitioner obtained a decree of divorce from the
Court of First Instance of Hamburg-Blankenese, promulgated on December 16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van Buiren of the Court of First
Instance on the basis of the oral proceedings held on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of Hamburg-Altona is hereby dissolved.
The parental custody for the children Carolynne Roehr, born 18 November 1981 Alexandra Kristine Roehr, born on 25 October
1987 is granted to the father.
The litigation expenses shall be assumed by the Parties.9 In view of said decree, petitioner filed a Second Motion to Dismiss on
May 20, 1999 on the ground that the trial court had no jurisdiction over the subject matter of the action or suit as a decree of
divorce had already been promulgated dissolving the marriage of petitioner and private respondent. On July 14, 1999, Judge
Guevara-Salonga issued an order granting petitioners motion to dismiss. Private respondent filed a Motion for Partial
Reconsideration, with a prayer that the case proceed for the purpose of determining the issues of custody of children and the
distribution of the properties between petitioner and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the petitioner on the ground that
there is nothing to be done anymore in the instant case as the marital tie between petitioner Wolfgang Roehr and respondent
Ma. Carmen D. Rodriguez had already been severed by the decree of divorce promulgated by the Court of First Instance of
Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of divorce had already been recognized by
the RTC in its order of July 14, 1999, through the implementation of the mandate of Article 26 of the Family Code,10 endowing
the petitioner with the capacity to remarry under the Philippine law. On September 30, 1999, respondent judge issued the
assailed order partially setting aside her order dated July 14, 1999 for the purpose of tackling the issues of property relations of
the spouses as well as support and custody of their children. The pertinent portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by petitioner thru counsel which was
opposed by respondent and considering that the second paragraph of Article 26 of the Family Code was included as an
amendment thru Executive Order 227, to avoid the absurd situation of a Filipino as being still married to his or her alien spouse
though the latter is no longer married to the Filipino spouse because he/she had obtained a divorce abroad which is recognized
by his/her national law, and considering further the effects of the termination of the marriage under Article 43 in relation to
Article 50 and 52 of the same Code, which include the dissolution of the property relations of the spouses, and the support and
custody of their children, the Order dismissing this case is partially set aside with respect to these matters which may be
ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by respondent judge in an order
dated March 31, 2000.12 Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of
respondent judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not allowed by 1997
Rules of Civil Procedure.13
2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had recognized and admitted the Divorce
Decision obtained by her ex-husband in Hamburg, Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in the Petition for
Annulment of Marriage and in the Divorce petition, and the custody of the children had already been awarded to Petitioner
Wolfgang Roehr.15 Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in issuing her order dated September 30, 1999, which
partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she assumed and retained
jurisdiction over the present case despite the fact that petitioner has already obtained a divorce decree from a German court.

On the first issue, petitioner asserts that the assailed order of respondent judge is completely inconsistent with her previous
order and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim, deny the motion, or order the
amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon
is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action or claim, denying the motion, or ordering
the amendment of the pleading. Private respondent, on her part, argues that the RTC can validly reconsider its order dated July
14, 1999 because it had not yet attained finality, given the timely filing of respondents motion for reconsideration. Pertinent
to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil Procedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set aside the judgment or final order and
grant a new trial, upon such terms as may be just, or may deny the motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final order
accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule appear to the court to affect the issues
as to only a part, or less than all of the matters in controversy, or only one, or less than all, of the parties to it, the court may
order a new trial or grant reconsideration as to such issues if severable without interfering with the judgment or final order
upon the rest. (Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has not yet attained finality.
Considering that private respondent filed a motion for reconsideration within the reglementary period, the trial court's
decision of July 14, 1999 can still be modified. Moreover, in Saado v. Court of Appeals,16 we held that the court could modify
or alter a judgment even after the same has become executory whenever circumstances transpire rendering its decision unjust
and inequitable, as where certain facts and circumstances justifying or requiring such modification or alteration transpired
after the judgment has become final and executory17 and when it becomes imperative in the higher interest of justice or when
supervening events warrant it.18 In our view, there are even more compelling reasons to do so when, as in this case, judgment
has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion when she partially set
aside her order dated July 14, 1999, despite the fact that petitioner has already obtained a divorce decree from the Court of
First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently held that a divorce
obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law
of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically recognized the validity of
a divorce obtained by a German citizen in his country, the Federal Republic of Germany. We held in Pilapil that a foreign
divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality
principle in our civil law on the status of persons.
In this case, the divorce decree issued by the German court dated December 16, 1997 has not been challenged by either of the
parties. In fact, save for the issue of parental custody, even the trial court recognized said decree to be valid and binding,
thereby endowing private respondent the capacity to remarry. Thus, the present controversy mainly relates to the award of
the custody of their two children, Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction, but the legal
effects thereof, e.g. on custody, care and support of the children, must still be determined by our courts.23 Before our courts
can give the effect of res judicata to a foreign judgment, such as the award of custody to petitioner by the German court, it
must be shown that the parties opposed to the judgment had been given ample opportunity to do so on grounds allowed
under Rule 39, Section 50 of the Rules of Court (now Rule 39,
Section 48, 1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country, having jurisdiction to
pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgment 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.It is essential that there should be an opportunity to
challenge the foreign judgment, in order for the court in this jurisdiction to properly determine its efficacy. In this jurisdiction,
our Rules of Court clearly provide that with respect to actions in personam, as distinguished from actions in rem, a foreign
judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is subject to proof to the
contrary.24 In the present case, it cannot be said that private respondent was given the opportunity to challenge the judgment
of the German court so that there is basis for declaring that judgment as res judicata with regard to the rights of petitioner to
have parental custody of their two children. The proceedings in the German court were summary. As to what was the extent of
private respondents participation in the proceedings in the German court, the records remain unclear. The divorce decree
itself states that neither has she commented on the proceedings25 nor has she given her opinion to the Social Services
Office.26 Unlike petitioner who was represented by two lawyers, private respondent had no counsel to assist her in said
proceedings.27 More importantly, the divorce judgment was issued to petitioner by virtue of the German Civil Code provision
to the effect that when a couple lived separately for three years, the marriage is deemed irrefutably dissolved. The decree did
not touch on the issue as to who the offending spouse was. Absent any finding that private respondent is unfit to obtain
custody of the children, the trial court was correct in setting the issue for hearing to determine the issue of parental custody,
care, support and education mindful of the best interests of the children. This is in consonance with the provision in the Child
and Youth Welfare Code that the childs welfare is always the paramount consideration in all questions concerning his care and
custody. 28
On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of her jurisdiction when
she claimed cognizance of the issue concerning property relations between petitioner and private respondent. Private
respondent herself has admitted in Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed
with the RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any conjugal or community
property nor have they incurred any debts during their marriage."29
Herein petitioner did not contest this averment. Basic is the rule that a court shall grant relief warranted by the allegations and
the proof.30 Given the factual admission by the parties in their pleadings that there is no property to be accounted for,
respondent judge has no basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the two children born of
the union between petitioner and private respondent. Private respondent erred, however, in claiming cognizance to settle the
matter of property relations of the parties, which is not at issue. WHEREFORE, the orders of the Regional Trial Court of Makati,
Branch 149, issued on September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that
the trial court has jurisdiction over the issue between the parties as to who has parental custody, including the care, support
and education of the children, namely Carolynne and Alexandra Kristine Roehr. Let the records of this case be remanded
promptly tothe trial court for continuation of appropriate proceedings. No pronouncement as to costs.
SO ORDERED.