Tanada vs.

Tuvera (146 SCRA 446)

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,
1
Article IV of the 1973 Philippine Constitution, as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234,
265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406,
415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594,
599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030,
1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644,
1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155,
161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228,
231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837839, 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, 16061609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 17371742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 18021804, 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, 20302044, 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, 788852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92,
94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground
that petitioners have no legal personality or standing to bring the instant petition. The view is submitted
that in the absence of any showing that petitioners are personally and directly affected or prejudiced by
2
the alleged non-publication of the presidential issuances in question said petitioners are without the
requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use a rd
enjoyment of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant, immediately or at some other
specified time, to do the act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful acts of the
defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and
its object is to compel the performance of a public duty, they need not show any specific interest for their
petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
3
General, this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party
to the mandamus proceedings brought to compel the Governor General to call a special election for the
position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought

to be enforced. If the general rule in America were otherwise, we think that it would not
be applicable to the case at bar for the reason 'that it is always dangerous to apply a
general rule to a particular case without keeping in mind the reason for the rule, because,
if under the particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel
for the respondent. The circumstances which surround this case are different from those
in the United States, inasmuch as if the relator is not a proper party to these proceedings
no other person could be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned
case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein
is a public right recognized by no less than the fundamental law of the land. If petitioners were not
allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate
the same, considering that the Solicitor General, the government officer generally empowered to
represent the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for
the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a long
4
line of decisions, this Court has ruled that publication in the Official Gazette is necessary in those cases
where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with
the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts
and resolutions of a public nature of the, Congress of the Philippines; [2] all executive
and administrative orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court
of Appeals as may be deemed by said courts of sufficient importance to be so published;
[4] such documents or classes of documents as may be required so to be published by
law; and [5] such documents or classes of documents as the President of the Philippines
shall determine from time to time to have general applicability and legal effect, or which
he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the various
laws which are to regulate their actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the

height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had
no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so
vital significance that at this time when the people have bestowed upon the President a power heretofore
enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates
and deliberations in the Batasan Pambansaand for the diligent ones, ready access to the legislative
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
5
conformidad con las mismas por el Gobierno en uso de su potestad.
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty.
That duty must be enforced if the Constitutional right of the people to be informed on matters of public
concern is to be given substance and reality. The law itself makes a list of what should be published in
the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to
what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated
by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have been
6
circularized to all concerned.
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by
law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said
7
in Peralta vs. COMELEC :
In a time of proliferating decrees, orders and letters of instructions which all form part of
the law of the land, the requirement of due process and the Rule of Law demand that the
Official Gazette as the official government repository promulgate and publish the texts of
all such decrees, orders and instructions so that the people may know where to obtain
their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past this
Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter
8
Bank to wit:
The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. Norton
v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The actual

existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects-with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.
9

Consistently with the above principle, this Court in Rutter vs. Esteban sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official
Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past
cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030,
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inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. Neither the subject matters
nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented
11
or enforced by the government. In Pesigan vs. Angeles, the Court, through Justice Ramon Aquino,
ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make
the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been
published in the Official Gazette or in some other publication, even though some criminal laws provide
that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws
to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in
1
the Official Gazette. The due process clause is not that precise. I am likewise in agreement with its
closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
2
Official Gazette.
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
3
be ascertainable in some form if it is to be enforced at all. It would indeed be to reduce it to the level of
4
mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. Publication, to repeat,
is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date
of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
5
prosecution, then, of course, its ex post facto character becomes evident. In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
6
tainted by infirmity. In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera.
The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that
a reasonable opportunity to be informed must be afforded to the people who are commanded to obey
1
before they can be punished for its violation, citing the settled principle based on due process
enunciated in earlier cases 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 specially informed of said
contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of
the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly
untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a
different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this
is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not
2
15 days] after such publication. To sustain respondents' misreading that "most laws or decrees specify
the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
3
effectivity would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate
effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its
publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of
laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion
of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws
must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of
the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders and proclamations, except such
as have no general applicability." It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be,
for all statutes are equal and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is
the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws
to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in
1
the Official Gazette. The due process clause is not that precise. I am likewise in agreement with its
closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
2
Official Gazette.

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
3
be ascertainable in some form if it is to be enforced at all. It would indeed be to reduce it to the level of
4
mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. Publication, to repeat,
is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date
of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
5
prosecution, then, of course, its ex post facto character becomes evident. In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
6
tainted by infirmity. In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera.
The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that
a reasonable opportunity to be informed must be afforded to the people who are commanded to obey
1
before they can be punished for its violation, citing the settled principle based on due process
enunciated in earlier cases 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 specially informed of said
contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of
the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly
untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a
different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this
is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not
2
15 days] after such publication. To sustain respondents' misreading that "most laws or decrees specify
the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
3
effectivity would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate
effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its
publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of
laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion
of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws
must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of
the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the

Official Gazette, among them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders and proclamations, except such
as have no general applicability." It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be,
for all statutes are equal and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is
the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
Footnotes
1 Section 6. The right of the people to information on matters of public concern shag be
recognized, access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, shag be afforded the citizens subject to such limitation as
may be provided by law.
2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345;
Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924;
Dumlao vs. Comelec, 95 SCRA 392.
3 16 Phil. 366, 378.
4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil.
486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills,
Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.
5 1 Manresa, Codigo Civil 7th Ed., p. 146.
6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al.,
110 Phil. 150.

7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.
9 93 Phil.. 68,.
10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo
Jr. of the Government Printing Office, failed to respond to her letter-request regarding the
respective dates of publication in the Official Gazette of the presidential issuances listed
therein. No report has been submitted by the Clerk of Court as to the publication or nonpublication of other presidential issuances.
11 129 SCRA 174.
Fernando, CJ.:
1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection
Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior
Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A
2 Ibid, closing paragraph.
3 Learned Hand, The Spirit of Liberty 104 (1960).
4 Cardozo, The Growth of the Law, 3 (1924).
5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA
433.
6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.
Teehankee, J.:
1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras.
2 Notes in brackets supplied.
3 Respondents: comment, pp. 14-15.
Plana, J.:
* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide
publication of all statute laws ... and no general law shall be in force until published." See
also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution of
Indiana, U.S.A.

People vs. Que Po Lay (94 Phil 640)

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.
Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.

Garcia vs. Recio (G.R no. 138322, October 2, 2002)

THIRD DIVISION

[G.R. No. 138322. October 2, 2001]

GRACE J. GARCIA, a.k.a.

RECIO, respondent.

GRACE

J.

GARCIA-RECIO, petitioner,

vs.

REDERICK

A.

DECISION
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 judgments; 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
[1]
[2]
7, 1999 Decision and the March 24, 1999 Order of the Regional Trial Court of Cabanatuan City,
Branch 28, in Civil Case No. 3026AF. 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
[3]
under existing and applicable laws to any and/or both parties.
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,
[4]
[5]
Rizal, on March 1, 1987. They lived together as husband and wife in Australia. On May 18, 1989, 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
[6]
Citizenship issued by the Australian government. Petitioner -- a Filipina -- and respondent were married
[7]
on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City. In theirapplication for a
[8]
marriage license, respondent was declared as single and Filipino.
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,
[9]
1996, in accordance with their Statutory Declarations secured in Australia.
[10]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage 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 respondents 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
[11]
marriage and its subsequent dissolution. He contended that his first marriage to an Australian citizen
[12]
had been validly dissolved by a divorce decree obtained in Australia in 1989; thus, he was legally
capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples 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,
[13]
Australia because the marriage ha[d] irretrievably broken down.
Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated no
[14]
[15]
cause of action. The Office of the Solicitor General agreed with respondent. The court marked and
[16]
admitted the documentary evidence of both parties. After they submitted their respective memoranda,
[17]
the case was submitted for resolution.
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, respondents 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 marital union to nullify or annul.
Hence, this Petition.

[18]

Issues
Petitioner submits the following issues for our consideration:
1
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 petitioners 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 decree obtained by the respondent in
Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment
[19]
granting the divorce decree before our courts.
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 Courts Ruling

The Petition is partly meritorious.

First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent and Editha
[20]
Samson. Citing Adong v. Cheong Seng Gee, 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 are governed by the law of the place where they were celebrated (the lex loci
celebrationis). 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
[21]
discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. A
marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of
[22]
[23]
[24]
Articles 15 and 17 of the Civil Code. In mixed marriages involving a Filipino and a foreigner, Article
[25]
26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is
[26]
validly obtained abroad by the alien spouse capacitating him or her to remarry. A divorce obtained
abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent
[27]
with their respective national laws.
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
[28]
in the Philippines, provided they are valid according to their national law. Therefore, before a foreign
divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and
[29]
demonstrate its conformity to the foreign law allowing it. 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:
xxxxxxxxx
(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been previously married, the applicant shall be
required to
ART. 13. In case either of the contracting parties has been previously married, the applicant shall be
required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial decree of the absolute divorce, 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 childrens 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
[30]
value, the document must first be presented and admitted in evidence. A divorce obtained abroad is
[31]
proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself. The
[32]
decree purports to be a written act or record of an act of an official body or tribunal of a foreign country.
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
[33]
attested 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)
[34]
authenticated by the seal of his office.
The divorce decree between respondent and Editha Samson appears to be an authentic one issued
[35]
by an Australian family court. However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.
Fortunately for respondents 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
[36]
registered in the Local Civil Registry of Cabanatuan City. The trial court ruled that it was admissible,
[37]
subject to petitioners qualification. Hence, it was admitted in evidence and accorded weight by the
judge. Indeed, petitioners failure to object properly rendered the divorce decree admissible as a written
[38]
act of the Family Court of Sydney, Australia.
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
[39]
1992. Naturalization is the legal act of adopting an alien and clothing him with the political and civil
[40]
rights belonging to a citizen. 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
[41]
thing necessary in the prosecution or defense of an action. 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
[42]
matters. Since the divorce was a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.
[43]

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like
any other facts, they must be alleged and proved. Australian marital laws are not among those matters
[44]
that judges are supposed to know by reason of their judicial function. 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: Respondents 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.
Respondents 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
[45]
terminates the marriage, while the second suspends it and leaves the bond in full force. 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
[46]
divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.
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 marrying
[47]
again. The court may allow a remarriage only after proof of good behavior.
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
[48]
other party has died) commits the offence of bigamy.
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 respondents 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
[49]
presumptive evidence as to his civil status based on Section 48, Rule 39 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
[50]
a marriage license.
As it is, however, there is absolutely no evidence that proves respondents legal capacity to marry
petitioner. A review of the records before this Court shows that only the following exhibits were presented
[51]
before the lower court: (1) for petitioner: (a) Exhibit A Complaint; (b) Exhibit B Certificate of Marriage
Between Rederick A. Recio (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in
[52]
Cabanatuan City, Nueva Ecija; (c) Exhibit C Certificate of Marriage Between Rederick A. Recio
[53]
(Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila; (d) Exhibit D
Office of the City Registrar of Cabanatuan City Certification that no information of annulment between
[54]
Rederick A. Recio and Editha D. Samson was in its records; and (e) Exhibit E Certificate of Australian
[55]
[56]
Citizenship of Rederick A. Recio; (2) for respondent: (a) Exhibit 1 -- Amended Answer; (b) Exhibit 2
[57]
Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia; (c) Exhibit
[58]
3 Certificate of Australian Citizenship of Rederick A. Recio; (d) Exhibit 4 Decree Nisi of Dissolution of
[59]
Marriage in the Family Court of Australia Certificate; and Exhibit 5 -- Statutory Declaration of the Legal
[60]
Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.
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
petitioners 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 petitioners 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 petitioners 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 respondents 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.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.

[1]

Penned by Judge Feliciano V. Buenaventura; rollo, pp. 7-9.

[2]

Rollo, p. 10.

[3]

Ibid., p. 9.

[4]

Rollo, p. 37.

[5]

Ibid., p. 47.

[6]

Id., p. 44.

[7]

Id., p. 36.

[8]

Annex 1; temporary rollo, p. 9.

[9]

The couple secured an Australian Statutory Declaration of their legal separation and division of
conjugal assets.
See Annexes 3 and 4 of Respondents Comment; rollo, p. 48.
[10]

Id., pp. 33-35.

[11]

Id., p. 39.

[12]

Amended Answer, p. 2; rollo, p. 39.

[13]

Id., pp. 77-78.

[14]

Id., p. 43.

[15]

Rollo, pp. 48-51.

[16]

TSN, December 16, 1998, pp. 1-8; records, pp. 172-179.

[17]

RTC Order of December 16, 1998; ibid., p. 203.

[18]

The case was deemed submitted for decision on January 11, 2000, upon this Courts receipt of the
Memorandum for petitioner, signed by Atty. Olivia Velasco-Jacoba. The Memorandum for respondent,
signed by Atty. Gloria V. Gomez of Gomez and Associates, had been filed on December 10, 1999.
[19]

Petitioners Memorandum, pp. 8-9; rollo, pp. 242-243.

[20]

43 Phil. 43, 49, March 3, 1922.

[21]

Ruben F. Balane, Family Courts and Significant Jurisprudence in Family Law, Journal of the Integrated
st
nd
Bar of the Philippines, 1 & 2 Quarters, 2001, Vol. XXVII, No. 1, p. 25.
[22]

ART. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad.
[23]

ART. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed
by the laws of the country in which they are executed.
xxxxxxxxx
Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.
[24]

Tenchaves v. Escano 15 SCRA 355, 362, November 29, 1965; Barretto Gonzalez v. Gonzalez, 58
Phil. 67, 71-72, March 7, 1933.
[25]

Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5), and (6), 36, 37, and 38. (71a)

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (As amended by EO 227, prom. July 27,
1987)
[26]

Cf. Van Dorn v. Romillo Jr., 139 SCRA 139, 143-144, October 8, 1985; and Pilapil v. IbaySomera, 174 SCRA 653, 663, June 30, 1989.
[27]
Van Dorn v. Romillo Jr., supra.
[28]

Ibid., p. 143.

[29]

For a detailed discussion of Van Dorn, see Salonga, Private International Law, 1995 ed. pp. 295300. See also Jose C. Vitug, Compendium of Civil Law and Jurisprudence, 1993 ed., p. 16;
[30]

SEC. 19. Classes of documents.For the purpose of their presentation in evidence, documents are
either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether in the Philippines, or of a foreign country.
x x x x x x x x x.
[31]

Burr W. Jones, Commentaries on the Law of Evidence in Civil Cases, Vol. IV, 1926 ed., p. 3511; 3,
Rule 130 of the Rules on Evidence provides that when the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself.
[32]

SEC. 19. Classes of documents. For the purpose of their presentation in evidence, documents are
either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether in the Philippines, or of a foreign country.
x x x x x x x x x.
[33]

Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must be under the official seal of
the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such
court.
[34]

Sec. 24. Proof of official record.The record of public documents referred to in paragraph (a) of Section
19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy
or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service
of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the
seal of his office.
See also Asiavest Ltd. v. Court of Appeals, 296 SCRA 539, 550-551, September 25, 1998; Pacific Asia
Overseas Shipping Corp. v. National Labor Relations Commission, 161 SCRA 122, 133-134, May 6,
1988.
[35]

The transcript of stenographic notes states that the original copies of the divorce decrees were
presented in court (TSN, December 16, 1998, p. 5; records, p. 176), but only photocopies of the same
documents were attached to the records (Records, Index of Exhibits, p. 1.).
[36]

TSN, December 15, 1998, p. 7; records, p. 178.

[37]

TSN, December 16, 1998, p. 7; records, p. 178.

[38]

People v. Yatco, 97 Phil. 941, 945, November 28, 1955; Marella v. Reyes, 12 Phil. 1, 3, November 10,
1908; People v. Diaz, 271 SCRA 504, 516, April 18, 1997; De la Torre v. Court of Appeals, 294 SCRA
196, 203-204, August 14, 1998; Maunlad Savings & Loan Asso., Inc. v. Court of Appeals, GR No.
114942, November 27, 2000, pp. 8-9.
[39]

Art. 15, Civil Code.

[40]

Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p.
566.
[41]

Ricardo J. Francisco, Evidence: Rules of Court in the Philippines, second edition, p. 382.

[42]

Ibid., p. 384.

[43]

Wildvalley Shipping Co., Ltd. v. Court of Appeals, GR No. 119602, October 6, 2000, p. 7.

[44]

Francisco, p. 29, citing De los Angeles v. Cabahug, 106 Phil. 839, December 29, 1959.

[45]

27A CJS, 15-17, 1.

[46]

Ibid., p. 611-613, 161.

[47]

27A CJS, 625, 162.

[48]

Rollo, p. 36.

[49]

SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final order of a tribunal
of a foreign country, having jurisdiction to render the judgment or final order is as follows:
xxxxxxxxx
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.
[50]

In passing, we note that the absence of the said certificate is merely an irregularity in complying with
the formal requirement for procuring a marriage license. Under Article 4 of the Family Code, an
irregularity will not affect the validity of a marriage celebrated on the basis of a marriage license issued
without that certificate. (Vitug, Compendium, pp. 120-126; Sempio-Diy, Handbook on the Family Code of
the Philippines, 1997 reprint, p. 17; Rufus Rodriguez, The Family Code of the Philippines
Annotated, 1990 ed., p. 42; Melencio Sta. Maria Jr., Persons and Family Relations Law, 1999 ed., p.
146.)
[51]

Records, pp. 1-3.

[52]

Ibid., p. 4.

[53]

Id., p. 5.

[54]

Id., p. 180.

[55]

Id., pp. 170-171.

[56]

Id., pp. 84-89.

[57]

Id., pp. 181-182.

[58]

Id., pp. 40-41.

[59]

Id., p. 183.

[60]

Id., pp. 184-187.

D.M. Consunji vs. CA (G.R. No. 137873, 20 April 2001)

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
th
core of the 14 floor of the Tower D, Renaissance Tower Building on board a [p]latform made of
channel beam (steel) measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and
cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the
bolt or pin which was merely inserted to connect the chain block with the [p]latform, got loose xxx
causing the whole [p]latform assembly and the victim to fall down to the basement of the elevator
core, Tower D of the building under construction thereby crushing the victim of death, save his
two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was then on
board and performing work, fell. And the falling of the [p]latform was due to the removal or getting
loose of the pin which was merely inserted to the connecting points of the chain block and
1
[p]latform but without a safety lock.
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a complaint
for damages against the deceaseds employer, D.M. Consunji, Inc. The employer raised, among other
defenses, the widows prior availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive portion of the
RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF
PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED

NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

3
PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.

Petitioner maintains that the police report reproduced above is hearsay and, therefore, inadmissible. The
CA ruled otherwise. It held that said report, being an entry in official records, is an exception to the
hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows of his personal
4
knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as what
he merely learned from others either because he was told or read or heard the same. Such testimony is
5
considered hearsay and may not be received as proof of the truth of what he has learned. This is known
as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as evidence
6
applies to written, as well as oral statements.
The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to
7
light and exposed by the test of cross-examiantion. The hearsay rule, therefore, excludes evidence that
8
cannot be tested by cross-examination.
9

The Rules of Court allow several exceptions to the rule, among which are entries in official records.
Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law areprima facie evidence of the facts therein stated.

10

In Africa, et al. vs. Caltex (Phil.), Inc., et al., this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially enjoined by law to
do so;
(b) that it was made by the public officer in the performance of his duties, or by such other person
in the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends that the last requisite is
not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified before the trial
11
court. InRodriguez vs. Court of Appeals, which involved a Fire Investigation Report, the officer who
signed the fire report also testified before the trial court. This Court held that the report was inadmissible
for the purpose of proving the truth of the statements contained in the report but admissible insofar as it
constitutes part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for crossexamination, 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
12
had seen Juegos remains at the morgue, making the latters death beyond dispute. PO3 Villanueva
13
also conducted an ocular inspection of the premises of the building the day after the incident and saw
14
15
the platform for himself. He observed that the platform was crushed and that it was totally
16
damaged. PO3 Villanueva also required Garcia and Fabro to bring the chain block to the police
headquarters. Upon inspection, he noticed that the chain was detached from the lifting machine, without
17
any pin or bolt.
What petitioner takes particular exception to is PO3 Villanuevas testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain block. It is claimed that such portion of the testimony
18
19
is mere opinion. Subject to certain exceptions, the opinion of a witness is generally not admissible.
Petitioners contention, however, loses relevance in the face of the application of res ipsa loquitur by the
CA. The effect of the doctrine is to warrant a presumption or inference that the mere fall of the elevator
was a result of the person having charge of the instrumentality was negligent. As a rule of evidence, the
doctrine of res ipsa loquituris peculiar to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and furnishes a substitute for specific proof of
20
negligence.
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere happening of an
accident or injury will not generally give rise to an inference or presumption that it was due to
negligence on defendants part, under the doctrine of res ipsa loquitur, which means, literally, the
thing or transaction speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks
for itself, the facts or circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part of the defendant, or some
other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury complained of was
under the control or management of the defendant, and that the occurrence resulting in the injury
was such as in the ordinary course of things would not happen if those who had its control or
management used proper care, there is sufficient evidence, or, as sometimes stated, reasonable

evidence, in the absence of explanation by the defendant, that the injury arose from or was
21
caused by the defendants want of care.
One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is absent or not
22
available.
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the
instrumentality which causes the injury either knows the cause of the accident or has the best
opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is
compelled to allege negligence in general terms and to rely upon the proof of the happening of
the accident in order to establish negligence. The inference which the doctrine permits is
grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is
practically accessible to the defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff,
without knowledge of the cause, reaches over to defendant who knows or should know the
cause, for any explanation of care exercised by the defendant in respect of the matter of which
the plaintiff complains. The res ipsa loquitur doctrine, another court has said, is a rule of
necessity, in that it proceeds on the theory that under the peculiar circumstances in which the
doctrine is applicable, it is within the power of the defendant to show that there was no negligence
on his part, and direct proof of defendants negligence is beyond plaintiffs power. Accordingly,
some court add to the three prerequisites for the application of the res ipsa loquitur doctrine the
further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured
party had no knowledge or means of knowledge as to the cause of the accident, or that the party
to be charged with negligence has superior knowledge or opportunity for explanation of the
23
accident.
The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
th

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

No worker is going to fall from the 14 floor of a building to the basement while performing work
in a construction site unless someone is negligent[;] thus, the first requisite for the application of
the rule of res ipsa loquitur is present. As explained earlier, the construction site with all its
paraphernalia and human resources that likely caused the injury is under the exclusive control
and management of appellant[;] thus[,] the second requisite is also present. No contributory
negligence was attributed to the appellees deceased husband[;] thus[,] the last requisite is also
present. All the requisites for the application of the rule of res ipsa loquitur are present, thus a
24
reasonable presumption or inference of appellants negligence arises. x x x.
Petitioner does not dispute the existence of the requisites for the application of res ipsa loquitur, but
argues that the presumption or inference that it was negligent did not arise since it "proved that it
exercised due care to avoid the accident which befell respondents husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
25
defendants negligence is presumed or inferred 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
26
burden then shifts to defendant to explain. The presumption or inference may be rebutted or overcome
by other evidence and, under appropriate circumstances disputable presumption, such as that of due
27
care or innocence, may outweigh the inference. It is not for the defendant to explain or prove its defense
to prevent the presumption or inference from arising. Evidence by the defendant of say, due care, comes
into play only after the circumstances for the application of the doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed before the
police investigator as evidence of its due care. According to Fabros sworn statement, the company
enacted rules and regulations for the safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but, in arguing that
private 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
28
evidence under the hearsay rule, unless the affiant is placed on the witness stand to testify thereon. The
inadmissibility of this sort of evidence is based not only on the lack of opportunity on the part of the
adverse party to cross-examine the affiant, but also on the commonly known fact that, generally, an
affidavit is not prepared by the affiant himself but by another who uses his own language in writing the
29
affiants statements which may either be omitted or misunderstood by the one writing them. Petitioner,
therefore, cannot use said statement as proof of its due care any more than private respondent can use it
to prove the cause of her husbands death. Regrettably, petitioner does not cite any 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
30
in Floresca vs.Philex Mining Corporation, which involved a cave-in resulting in the death of the
employees of the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a complaint against Philex Mining in the Court of
First Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction.
The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
31
Banc, following the rule in Pacaa vs. Cebu Autobus Company, held in the affirmative.
WE now come to the query as to whether or not the injured employee or his heirs in case of death
have a right of selection or choice of action between availing themselves of the workers right
under the Workmens Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and exemplary) from the employers by virtue of the negligence or
fault of the employers or whether they may avail themselves cumulatively of both actions, i.e.,
collect the limited compensation under the Workmens Compensation Act and sue in addition for
damages in the regular courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company, 32 SCRA 442,
ruled thatan injured worker has a choice of either to recover from the employer the fixed amounts
set by the Workmens Compensation Act or to prosecute an ordinary civil action against the
tortfeasor for higher damages but he cannot pursue both courses of action simultaneously.
[Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit under the
Civil Code despite having availed of the benefits provided under the Workmens Compensation Act. The
Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May
14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra,
Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for
compensation to the Regional Office No. 1 of the then Department of Labor and all of them have
been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they
be paid in installments x x x. Such allegation was admitted by herein petitioners in their opposition
to the motion to dismiss dated may 27, 1968 x x x in the lower court, but they set up the defense
that the claims were filed under the Workmens Compensation Act before they learned of the
official report of the committee created to investigate the accident which established the criminal
negligence and violation of law by Philex, and which report was forwarded by the Director of
Mines to then Executive Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the Workmens
Compensation Act, such my not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual
obligations with the deceased miners only after receiving compensation under the Act. Had
petitioners been aware of said violation of government rules and regulations by Philex, and of its
negligence, they would not have sought redress under the Workmens Compensation
Commission which awarded a lesser amount for compensation. The choice of the first remedy
was based on ignorance or a mistake of fact, which nullifies the choice as it was not an intelligent
choice. The case should therefore be remanded to the lower court for further proceedings.
However, should the petitioners be successful in their bid before the lower court, the payments
made under the Workmens Compensation Act should be deducted from the damages that may
be decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael Maritime
32
33
Corporation vs. Avelino, Vda. De Severo vs. Feliciano-Go, and Marcopper Mining Corp. vs.
34
Abeleda. In the last case, the Court again recognized that a claimant who had been paid under the Act
could still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in the course of
their employment could be filed only under the Workmens Compensation Law, to the exclusion of
all further claims under other laws. In Floresca, this doctrine was abrogated in favor of the new
rule that the claimants may invoke either the Workmens Compensation Act or the provisions of
the Civil Code, subject to the consequence that the choice of one remedy will exclude the other
and that the acceptance of compensation under the remedy chosen will preclude a claim for
additional benefits under the other remedy. The exception is where a claimant who has already
been paid under the Workmens Compensation Act may still sue for damages under the Civil
Code on the basis of supervening facts or developments occurring after he opted for the first
remedy. (Underscoring supplied.)
Here, the CA held that private respondents case came under the exception because private respondent
was unaware of petitioners negligence when she filed her claim for death benefits from the State
Insurance Fund. Private respondent filed the civil complaint for damages after she received a copy of the
police investigation report and the Prosecutors Memorandum dismissing the criminal complaint against
petitioners personnel. While stating that there was no negligence attributable to the respondents in the
complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of appellant as
early as November 25, 1990, the date of the police investigators report. The appellee merely
executed her sworn statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the accident. She did not file the
complaint for "Simple Negligence Resulting to Homicide" against appellants employees. It was
the investigator who recommended the filing of said case and his supervisor referred the same to
the prosecutors office. This is a standard operating procedure for 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
35
mistake of fact that will make this case fall under the exception held in the Floresca ruling.
The CA further held that not only was private respondent ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary school for her
educational attainment; that she did not know what damages could be recovered from the death
of her husband; and that she did not know that she may also recover more from the Civil
36
Code than from the ECC. x x x.

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in her
complaint that her application and receipt of benefits from the ECC were attended by ignorance or
mistake of fact. Not being an issue submitted during the trial, the trial court had no authority to hear or
adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts because as early
as November 28, 1990, private respondent was the complainant in a criminal complaint for "Simple
Negligence Resulting to Homicide" against petitioners employees. On February 6, 1991, two months
before the filing of the action in the lower court, Prosecutor Lorna Lee issued a resolution finding that,
although there was insufficient evidence against petitioners employees, the case was "civil in nature."
These purportedly show that prior to her receipt of death benefits from the ECC on January 2, 1991 and
every month thereafter, private respondent also knew of the two choices of remedies available to her and
yet she chose to claim and receive the benefits from the ECC.
When a party having knowledge of the facts makes an election between inconsistent remedies, the
election is final and bars any action, suit, or proceeding inconsistent with the elected remedy, in the
37
absence of fraud by the other party. The first act of election acts as a bar. Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to both parties. It rests on the
moral premise that it is fair to hold people responsible for their choices. The purpose of the doctrine is not
38
to prevent any recourse to any remedy, but to prevent a double redress for a single wrong.
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the rule
in Florescathat a claimant cannot simultaneously pursue recovery under the Labor Code and prosecute
an ordinary course of action under the Civil Code. The claimant, by his choice of one remedy, is deemed
to have waived the other.
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
40
illustrated on the record or by the evidence.
That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the exception
in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in her
complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner to burden
private respondent with raising waiver as an issue. On the contrary, it is the defendant who ought to plead
41
waiver, as petitioner did in pages 2-3 of its Answer; otherwise, the defense is waived. It is, therefore,
perplexing for petitioner to now contend that the trial court had no jurisdiction over the issue when
petitioner itself pleaded waiver in the proceedings before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husbands death and
the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case, the
"fact" that served as a basis for nullifying the waiver is the negligence of petitioners employees, of which
private respondent purportedly learned only after the prosecutor issued a resolution stating that there may
be civil liability. InFloresca, it was the negligence of the mining corporation and its violation of government
rules and regulations. Negligence, or violation of government rules and regulations, for that matter,
however, is not a fact, but aconclusion of law, over which only the courts have the final say. Such a
conclusion binds no one until the courts have decreed so. It appears, therefore, that the principle that
ignorance or mistake of fact nullifies a waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the elevator crash
when on November 15, 1990 she accomplished her application for benefits from the ECC. The police
investigation report is dated November 25, 1990, 10 days after the accomplishment of the form. Petitioner
filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her when the claim
before the ECC was filed. On the contrary, private respondent testified that she was not aware of her
rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no one
from compliance therewith. As judicial decisions applying or interpreting the laws or the Constitution form
part of the Philippine legal system (Article 8, Civil Code), private respondent cannot claim ignorance of
this Courts ruling inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
42
laws. This may be deduced from the language of the provision, which, notwithstanding a persons
ignorance, does not excuse his or her compliance with the laws. The rule in Floresca allowing private
respondent a choice of remedies is neither mandatory nor prohibitory. Accordingly, her ignorance thereof
cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records do not indicate the total
43
amount private respondent ought to receive from the ECC, although it appears from Exhibit "K" that she
received P3,581.85 as initial payment representing the accrued pension from November 1990 to March
1991. Her initial monthly pension, according to the same Exhibit "K," was P596.97 and present total
monthly pension was P716.40. Whether the total amount she will eventually receive from the ECC is less
than the sum of P644,000.00 in total damages awarded by the trial court is subject to speculation, and the
case is remanded to the trial court for such determination. Should the trial court find that its award is
greater than that of the ECC, payments already received by private respondent under the Labor Code
shall be deducted from the trial court' award of damages. Consistent with our ruling in Floresca, this
adjudication aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine whether
the award decreed in its decision is more than that of the ECC. Should the award decreed by the trial
court be greater than that awarded by the ECC, payments already made to private respondent pursuant
to the Labor Code shall be deducted therefrom. In all other respects, the Decision of the Court of Appeals
is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.
Footnote

Exhibit "A," Records, pp. 60-61.

Rollo, pp. 79-80.

Id., at 19.

Sec. 36, Rule 130.

People vs. Ramos, 122 SCRA 312 (1983).

31A C.J.S. Evidence 194. See also Philippine Home Assurance Corp. vs. Court of Appeals,
257 SCRA 479 (1996).
7

5 J. H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common

rd
Law 3 (3 Ed.).
8

San Sebastian College vs. Court of Appeals, 197 SCRA 138 (1991).

See Rules of Court, Rule 130, Sections 37-47.

10

16 SCRA 448 (1966). See also People vs. San Gabriel, 253 SCRA 84 (1996).

11

273 SCRA 607 (1997).

12

TSN, December 20, 1991, p. 9.

13

Id., at 28; TSN, January 6, 1992, p. 29.

14

Id., at 29; Ibid.

15

Id., at 33.

16

Id., at 34.

17

Id., at 24 and 28.

18

Rules of Court, Rule 130, Sections 49-50.

19

Id., Sec. 48.

20

Layugan vs. Intermediate Appellate Court, 167 SCRA 363 (1988). See also Batiquin vs. Court
of Appeals, 258 SCRA 334 (1996); Radio Communications of the Philippines, Inc. vs. Court of
Appeals, 143 SCRA 657 (1986).
21

57B Am Jur 2d, Negligence 1819.

22

Id., at 1824.

23

Id., at 1914.

24

Rollo, pp. 87-88.

25

Whether the doctrine raises a presumption or merely an inference is subject to debate. See
57B Am Jur 2d, Negligence 1925-1928.
26

Id., at 1920.

27

Id., at 1947.

28

People vs. Villeza, 127 SCRA 349 (1984); People vs. Quidato, 297 SCRA 1 (1998).

29

People vs. Ramos, supra.

30

136 SCRA 141 (1985).

31

Justices Aquino, Melencio-Herrera, and Gutierrez dissented.

32

151 SCRA 333 (1987).

33

157 SCRA 446 (1988).

34

164 SCRA 317 (1988).

35

Rollo, pp. 90-91. Underscoring by the Court of Appeals.

36

Id., at 90. Underscoring by the Court of Appeals.

37

Id., at 5.

38

Id., at 2.

39

Castro vs. Del Rosario, et al., 19 SCRA 196 (1967).

40

28 Am Jur 2d, Estoppel and Waiver 202.

41

Records, pp. 17-18.

42

I Tolentino, A.M. Commentaries and Jurisprudence on the Civil Code of the Philippines 19
(1995).
43

Records, p. 100.

Cui vs. Arellano University (2 SCRA 205)

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.

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Parades, Dizon, De Leon and Natividad,
JJ., concur.
Bautista Angelo, J., reserves his vote.

Maciano vs. Brimo (50 Phil 867)

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22595

November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J.:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial
of the motion for reconsideration of the order approving the partition; (4) the approval of the purchase
made by the Pietro Lana of the deceased's business and the deed of transfer of said business; and (5)
the declaration that the Turkish laws are impertinent to this cause, and the failure not to postpone the
approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the
receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the provisions
of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which
reason they are void as being in violation or article 10 of the Civil Code which, among other things,
provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of succession as well
as to the amount of the successional rights and the intrinsic validity of their provisions, shall be
regulated by the national law of the person whose succession is in question, whatever may be the
nature of the property or the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance
with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are
on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those
of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it
when he desires to be given an opportunity to present evidence on this point; so much so that he assigns

as an error of the court in not having deferred the approval of the scheme of partition until the receipt of
certain testimony requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this
particular. There is, therefore, no evidence in the record that the national law of the testator Joseph G.
Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in
force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant as a
legatee, inasmuch as he is one of the persons designated as such in will, it must be taken into
consideration that such exclusion is based on the last part of the second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having
been conferred upon me by conquest and not by free choice, nor by nationality and, on the other
hand, having resided for a considerable length of time in the Philippine Islands where I
succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of
my property and everything in connection with this, my will, be made and disposed of in
accordance with the laws in force in the Philippine islands, requesting all of my relatives to
respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will
favorable to the person or persons who fail to comply with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted legatees must
respect the testator's will to distribute his property, not in accordance with the laws of his nationality, but in
accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the
herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code
provides the following:
Impossible conditions and those contrary to law or good morals shall be considered as not
imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the
testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national law when,
according to article 10 of the civil Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the
institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to the
condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and
effective it not appearing that said clauses are contrary to the testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be
made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and the
scheme of partition submitted by the judicial administrator is approved in all other respects, without any
pronouncement as to costs.
So ordered.
Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

Pilapil vs. Ibay-Somera (174 Scra 663)

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
1
Geiling, was born on April 20, 1980.
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
2
apart since April, 1982.
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
3
pending as Civil Case No. 83-15866.
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
4
founded on and authorized by the applicable law of that foreign jurisdiction.
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. However, upon review, the respondent city fiscal approved a resolution, dated January 8,
6
1986, directing the filing of two complaints for adultery against the petitioner. 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. 877
52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court.
On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid
8
resolution of respondent fiscal be set aside and the cases against her be dismissed. 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
9
office for review.
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further
10
proceedings thereon. 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. 8711
52435 until after the resolution of the petition for review then pending before the Secretary of Justice. A
12
motion to quash was also filed in the same case on the ground of lack of jurisdiction, 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
13
detained until she submitted herself for arraignment. Later, private respondent entered a plea of not
14
guilty.
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
15
divorce decree under his national law prior to his filing the criminal complaint."
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
16
respondent city fiscal to move for the dismissal of the complaints against the petitioner.
We find this petition meritorious. The writs prayed for shall accordingly issue.
17

Under Article 344 of the Revised Penal Code, 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
18
jurisdictional, and not merely a formal, requirement. 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
19
just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 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 socalled "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
20
outrage in silence rather than go through the scandal of a public trial. 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
21
ceased to be the spouse of the alleged offender at the time of the filing of the criminal case.
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
22
criminal proceedings to a conclusion.

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
23
insofar as private respondent is concerned in view of the nationality principle in our civil law on the
matter of status of persons.
24

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 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 an accounting 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
25
entitled to exercise control over conjugal assets. ...
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
26
formulation of our law on adultery, 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.
27

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 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
enteredDISMISSING 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.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute divorce as valid
also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an
absolute divorce in Germany can no longer be considered as the offended party in case his former wife
actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the
woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is
free to have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce
between the American husband and his American wife as valid and binding in the Philippines on the
theory that their status and capacity are governed by their National law, namely, American law. There is

no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an
American, is married to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely because
of theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband
is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially
grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is
the opinion however, of the undersigned that very likely the opposite expresses the correct view. While
under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the
application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an
injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute
divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose
marriage would be still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce insofar
as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the German absolute divorce as valid
also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an
absolute divorce in Germany can no longer be considered as the offended party in case his former wife
actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the
woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is
free to have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce
between the American husband and his American wife as valid and binding in the Philippines on the
theory that their status and capacity are governed by their National law, namely, American law. There is
no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an
American, is married to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and precisely because
of theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband
is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially
grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is
the opinion however, of the undersigned that very likely the opposite expresses the correct view. While
under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the
application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an
injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute
divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose
marriage would be still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the
husband was an American can with a Filipino wife because in said case the validity of the divorce insofar
as the Filipino wife is concerned was NEVER put in issue.
Footnotes
1 Rollo, 5, 29.
2 Ibid., 6, 29.
3 Ibid., 7.
4 Ibid., 7, 29-30; Annexes A and A-1, Petition.
5 Ibid., 7, 178.
6 Ibid., 8; Annexes B, B-1 and B-2, id.
7 Ibid., 8-9, 178.
8 Ibid., 9, 178; Annex C, id.
9 Ibid., 9-10, 178; Annex D, id.
10 Ibid., 9; Annexes E and E-1, id.
11 Ibid., 10; Annex F, id.
12 Ibid., 9, 179; Annex G, id.
13 Ibid., 10 Annex H, id.
14 Ibid, 105.
15 Ibid., 11.
16 Ibid., 311-313.
17 Cf. Sec. 5, Rule 110, Rules of Court.
18 People vs. Mandia, 60 Phil. 372, 375 (1934); People vs. Zurbano, 37 SCRA 565, 569
(1971); People vs. Lingayen, G.R. No. 64556, June 10, 1988.
19 Valdepeas vs. People, 16 SCRA 871 (1966); People vs. Babasa, 97 SCRA 672
(1980).
20 Samilin vs. Court of First Instance of Pangasinan, 57 Phil. 298 (1932); Donio-Teves,
et al. vs. Vamenta, et al., 133 SCRA 616 (1984).
21 Rollo, 289.

22 2 Am. Jur. 2d., 973 citing State vs. Loftus, 104 NW 906, 907; Re Smith, 2 Okla. 153,
37 p. 1099; State vs. Russell, 90 Iowa 569, 58 NW 915.
23 Recto vs. Harden, 100 Phil. 427 (1956).
24 139 SCRA 139,140 (1985).
25 The said pronouncements foreshadowed and are adopted in the Family Code of the
Philippines (Executive Order No. 209, as amended by Executive Order No. 227, effective
on August 3, 1988), Article 26 whereof provides that "(w)here marriage between a Filipino
citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to re under Philippine law.
26 U.S. vs. Mata, 18 Phil. 490 (1911).
27 Footnote 20, ante.

Roehr vs. Rodriguez (G.R. No. 142820, 20 June 2003)

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.
1

In this special civil action for certiorari, petitioner assails (a) the order dated September 30, 1999 of
public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial
2
Court, Branch 149, in Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the
3
order 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
4
subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental. Out of their union were born
Carolynne and Alexandra Kristine on November 18, 1981 and October 25, 1987, respectively.
5

On August 28, 1996, private respondent filed a petition for declaration of nullity of marriage before the
6
Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss, but it
7
was denied by the trial court in its order dated May 28, 1997.
8

On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order 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 HamburgBlankenese, 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.

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
10
Code, 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
12
judge in an order dated March 31, 2000.
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
13
by 1997 Rules of Civil Procedure.

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,
14
Germany.
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
15
the children had already been awarded to Petitioner Wolfgang Roehr.
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
16
v. Court of Appeals, 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
17
after the judgment has become final and executory and when it becomes imperative in the higher
18
interest of justice or when supervening events warrant it. 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.
19

20

21

In Garcia v. Recio, Van Dorn v. Romillo, Jr., and Llorente v. Court of Appeals, 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. Ibay22
Somera, 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
23
determined by our courts. 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
24
the contrary.
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
25
has she commented on the proceedings nor has she given her opinion to the Social Services

26

Office. Unlike petitioner who was represented by two lawyers, private respondent had no counsel to
27
assist her in said proceedings. 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
28
questions concerning his care and custody.
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
29
incurred any debts during their marriage." Herein petitioner did not contest this averment. Basic is the
30
rule that a court shall grant relief warranted by the allegations and the proof. 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 to the trial court for continuation of appropriate proceedings. No
pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.

Footnotes
1

Rollo, p. 15.

Judge Josefina Guevara-Salonga signed as Executive Judge.

Rollo, p. 16.

Records, pp. 5-6.

Id. at 1-4.

Id. at 19-28.

Id. at 147.

Id. at 165.

Rollo, p. 33.

10

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force
in the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her
to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine
law. (As amended by E. O. No. 227, dated July 17, 1987.)
11

Supra, note 1.

12

Supra, note 3.

13

Rollo, p. 6.

14

Id. at 8.

15

Ibid.

16

G.R. No. 108338, 17 April 2001, 356 SCRA 546, 561.

17

David v. Court of Appeals, G.R. No. 115821, 13 October 1999, 316 SCRA 710, 719.

18

People v. Gallo, G.R. No. 124736, 29 September 1999, 315 SCRA 461, 463.

19

G.R. No. 138322, 2 October 2001, 366 SCRA 437, 447.

20

No. L-68470, 8 October 1985, 139 SCRA 139, 143.

21

G.R. No. 124371, 23 November 2000, 345 SCRA 592, 601.

22

G.R. No. 80116, 30 June 1989, 174 SCRA 653, 663.

23

Llorente v. Court of Appeals, supra at 602.

24

Philsec Investment Corporation v. Court of Appeals, G.R. No. 103493, 19 June 1997, 274
SCRA 102, 110.
25

Rollo, p. 57.

26

Ibid.

27

Id. at 55-56.

28

Sagala-Eslao v. Court of Appeals, G.R. No. 116773, 16 January 1997, 266 SCRA 317, 321,
citing Art. 8, P.D. No. 603, The Child and Youth Welfare CodeArt. 8. Childs Welfare Paramount. - In all questions regarding the care, custody,
education and property of the child, his welfare shall be the paramount consideration.
29

30

Rollo, p. 19.

JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, 20 November 2000, 345
SCRA 143, 154.

Nikko Hotel Manila vs. Reyes

SECOND DIVISION

[G.R. No. 154259. February 28, 2005]

NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners, vs. ROBERTO REYES, a.k.a. AMAY
BISAYA,respondent.
DECISION
CHICO-NAZARIO, J.:
[1]

In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko) and
[2]
Ruby Lim assail the Decision of the Court of Appeals dated 26 November 2001 reversing the
[3]
[4]
Decision of the Regional Trial Court (RTC) of Quezon City, Branch 104, as well as the Resolution of
the Court of Appeals dated 09 July 2002 which denied petitioners motion for reconsideration.
The cause of action before the trial court was one for damages brought under the human relations
provisions of the New Civil Code. Plaintiff thereat (respondent herein) Roberto Reyes, more popularly
known by the screen name Amay Bisaya, alleged that at around 6:00 oclock in the evening of 13 October
[5]
1994, while he was having coffee at the lobby of Hotel Nikko, he was spotted by his friend of several
[6]
years, Dr. Violeta Filart, who then approached him. Mrs. Filart invited him to join her in a party at the
[7]
hotels penthouse in celebration of the natal day of the hotels manager, Mr. Masakazu Tsuruoka. Mr.
[8]
Reyes asked if she could vouch for him for which she replied: of course. Mr. Reyes then went up with
[9]
the party of Dr. Filart carrying the basket of fruits which was the latters present for the celebrant. At the
penthouse, they first had their picture taken with the celebrant after which Mr. Reyes sat with the party of
[10]
Dr. Filart. After a couple of hours, when the buffet dinner was ready, Mr. Reyes lined-up at the buffet
table but, to his great shock, shame and embarrassment, he was stopped by petitioner herein, Ruby Lim,
[11]
who claimed to speak for Hotel Nikko as Executive Secretary thereof. In a loud voice and within the
presence and hearing of the other guests who were making a queue at the buffet table, Ruby Lim told him
[12]
to leave the party (huwag ka nang kumain, hindi ka imbitado, bumaba ka na lang). Mr. Reyes tried to
[13]
explain that he was invited by Dr. Filart. Dr. Filart, who was within hearing distance, however,
[14]
completely ignored him thus adding to his shame and humiliation. Not long after, while he was still
recovering from the traumatic experience, a Makati policeman approached and asked him to step out of
[15]
[16]
the hotel. Like a common criminal, he was escorted out of the party by the policeman. Claiming
damages, Mr. Reyes asked for One Million Pesos actual damages, One Million Pesos moral and/or
[17]
exemplary damages and Two Hundred Thousand Pesos attorneys fees.
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the
ignominious circumstance painted by the latter. Ms. Lim narrated that she was the Hotels Executive
[18]
Secretary for the past twenty (20) years. One of her functions included organizing the birthday party of
[19]
the hotels former General Manager, Mr. Tsuruoka. The year 1994 was no different. For Mr. Tsuruokas
[20]
party, Ms. Lim generated an exclusive guest list and extended invitations accordingly. The guest list
was limited to approximately sixty (60) of Mr. Tsuruokas closest friends and some hotel employees and
[21]
that Mr. Reyes was not one of those invited. At the party, Ms. Lim first noticed Mr. Reyes at the bar
[22]
counter ordering a drink. Mindful of Mr. Tsuruokas wishes to keep the party intimate, Ms. Lim
approached Mr. Boy Miller, the captain waiter, to inquire as to the presence of Mr. Reyes who was not
[23]
[24]
invited. Mr. Miller replied that he saw Mr. Reyes with the group of Dr. Filart. As Dr. Filart was
engaged in conversation with another guest and as Ms. Lim did not want to interrupt, she inquired instead
[25]
from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did not invite Mr. Reyes. Ms.
[26]
Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party as he was not invited. Mr. Reyes,

however, lingered prompting Ms. Lim to inquire from Ms. Fruto who said that Mr. Reyes did not want to
[27]
leave. When Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung whom she
[28]
later approached. Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim requested
from him the same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party as he
[29]
was not invited. Still, Mr. Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet table, she
[30]
decided to speak to him herself as there were no other guests in the immediate vicinity. However, as
[31]
Mr. Reyes was already helping himself to the food, she decided to wait. When Mr. Reyes went to a
corner and started to eat, Ms. Lim approached him and said: alam ninyo, hindo ho kayo dapat nandito.
Pero total nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at pagkatapos kung pwede lang po
[32]
umalis na kayo. She then turned around trusting that Mr. Reyes would show enough decency to leave,
but to her surprise, he began screaming and making a big scene, and even threatened to dump food on
[33]
her.
Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version of
[34]
the story to the effect that she never invited Mr. Reyes to the party. According to her, it was Mr. Reyes
who volunteered to carry the basket of fruits intended for the celebrant as he was likewise going to take
[35]
the elevator, not to the penthouse but to Altitude 49. When they reached the penthouse, she reminded
[36]
Mr. Reyes to go down as he was not properly dressed and was not invited. All the while, she thought
[37]
that Mr. Reyes already left the place, but she later saw him at the bar talking to Col. Batung. Then there
[38]
[39]
was a commotion and she saw Mr. Reyes shouting. She ignored Mr. Reyes. She was embarrassed
[40]
and did not want the celebrant to think that she invited him.
[41]

After trial on the merits, the court a quo dismissed the complaint, giving more credence to the
testimony of Ms. Lim that she was discreet in asking Mr. Reyes to leave the party. The trial court likewise
ratiocinated that Mr. Reyes assumed the risk of being thrown out of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the birthday
celebrant. He assumed the risk of being asked to leave for attending a party to which he was not invited
by the host. Damages are pecuniary consequences which the law imposes for the breach of some duty or
the violation of some right. Thus, no recovery can be had against defendants Nikko Hotel and Ruby Lim
because he himself was at fault (Garciano v. Court of Appeals, 212 SCRA 436). He knew that it was not
the party of defendant Violeta Filart even if she allowed him to join her and took responsibility for his
[42]
attendance at the party. His action against defendants Nikko Hotel and Ruby Lim must therefore fail.
On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding of
belief the testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud voice within hearing
distance of several guests:
In putting appellant in a very embarrassing situation, telling him that he should not finish his food and to
leave the place within the hearing distance of other guests is an act which is contrary to morals, good
customs . . ., for which appellees should compensate the appellant for the damage suffered by the latter
as a consequence therefore (Art. 21, New Civil Code). The liability arises from the acts which are in
themselves legal or not prohibited, but contrary to morals or good customs. Conversely, even in the
exercise of a formal right, [one] cannot with impunity intentionally cause damage to another in a manner
[43]
contrary to morals or good customs.
The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to inquire
into the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as she should have
approached Dr. Filart first and both of them should have talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to
approach appellee Mrs. Filart and together they should have told appellant Reyes in private that the latter
should leave the party as the celebrant only wanted close friends around. It is necessary that Mrs. Filart
be the one to approach appellant because it was she who invited appellant in that occasion. Were it not
for Mrs. Filarts invitation, appellant could not have suffered such humiliation. For that, appellee Filart is
equally liable.

...
The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but respect of such dignity.
Under Article 20 of the Civil Code, every person who violates this duty becomes liable for damages,
especially if said acts were attended by malice or bad faith. Bad faith does not simply connote bad
judgment or simple negligence. It imports a dishonest purpose or some moral obliquity and conscious
doing of a wrong, a breach of a known duty to some motive or interest or ill-will that partakes of the nature
[44]
of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603).
Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the
solidary obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred Thousand
Pesos (P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos (P200,000); and
[45]
(3) attorneys fees in the amount of Ten Thousand Pesos (P10,000). On motion for reconsideration, the
Court of Appeals affirmed its earlier decision as the argument raised in the motion had been amply
[46]
discussed and passed upon in the decision sought to be reconsidered.
Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals
seriously erred in
I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY ITS OWN
FINDINGS, AMAY BISAYA WAS A GATE-CRASHER
II.
HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR. FILART FOR
DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA COULD NOT HAVE SUFFERED SUCH
HUMILIATION, WERE IT NOT FOR DR. FILARTS INVITATION
III.
DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE
CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA
IV.
IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS POVERTY,
CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS
REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANTS BRIEF, THEREBY
DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they
cannot be made liable for damages as respondent Reyes assumed the risk of being asked to leave (and
being embarrassed and humiliated in the process) as he was a gate-crasher.
[47]

The doctrine of volenti non fit injuria (to which a person assents is not esteemed in law as injury )
[48]
[49]
refers to self-inflicted injury or to the consent to injury which precludes the recovery of damages by
one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing

[50]

so. As formulated by petitioners, however, this doctrine does not find application to the case at bar
because even if respondent Reyes assumed the risk of being asked to leave the party, petitioners, under
Articles 19 and 21 of the New Civil Code, were still under obligation to treat him fairly in order not to
expose him to unnecessary ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes,
a.k.a. Amay Bisaya, to leave the party where he was not invited by the celebrant thereof thereby
becoming liable under Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim were so
liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and irreconcilable conclusions
concerning the same facts and evidence of the case, this Court is left without choice but to use its latent
power to review such findings of facts. Indeed, the general rule is that we are not a trier of facts as our
[51]
jurisdiction is limited to reviewing and revising errors of law. One of the exceptions to this general rule,
however, obtains herein as the findings of the Court of Appeals are contrary to those of the trial
[52]
court. The lower court ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to leave the party as
she talked to him politely and discreetly. The appellate court, on the other hand, held that Ms. Lim is liable
for damages as she needlessly embarrassed Mr. Reyes by telling him not to finish his food and to leave
the place within hearing distance of the other guests. Both courts, however, were in agreement that it was
Dr. Filarts invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the lower courts findings of fact.
First, let us put things in the proper perspective.
[53]

We are dealing with a formal party in a posh, five-star hotel, for-invitation-only, thrown for the
hotels former Manager, a Japanese national. Then came a person who was clearly uninvited (by the
[54]
celebrant) and who could not just disappear into the crowd as his face is known by many, being an
actor. While he was already spotted by the organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the celebrant was aware of his presence. Ms. Lim,
mindful of the celebrants instruction to keep the party intimate, would naturally want to get rid of the gatecrasher in the most hush-hush manner in order not to call attention to a glitch in an otherwise seamless
affair and, in the process, risk the displeasure of the celebrant, her former boss. To unnecessarily call
attention to the presence of Mr. Reyes would certainly reflect badly on Ms. Lims ability to follow the
instructions of the celebrant to invite only his close friends and some of the hotels personnel. Mr. Reyes,
upon whom the burden rests to prove that indeed Ms. Lim loudly and rudely ordered him to leave, could
not offer any satisfactory explanation why Ms. Lim would do that and risk ruining a formal and intimate
affair. On the contrary, Mr. Reyes, on cross-examination, had unwittingly sealed his fate by admitting that
when Ms. Lim talked to him, she was very close. Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet
table? How close was she when she approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was that close and she shouted?
A: Yes. She said, wag kang kumain, hindi ka imbitado dito, bumaba ka na lang.
Q: So, you are testifying that she did this in a loud voice?
...
A: Yes. If it is not loud, it will not be heard by many.

[55]

In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him to
ridicule and shame, it is highly unlikely that she would shout at him from a very close distance. Ms. Lim
having been in the hotel business for twenty years wherein being polite and discreet are virtues to be

emulated, the testimony of Mr. Reyes that she acted to the contrary does not inspire belief and is indeed
incredible. Thus, the lower court was correct in observing that
Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the party
was made such that they nearly kissed each other, the request was meant to be heard by him only and
there could have been no intention on her part to cause embarrassment to him. It was plaintiffs reaction
to the request that must have made the other guests aware of what transpired between them. . .
Had plaintiff simply left the party as requested, there was no need for the police to take him out.

[56]

Moreover, another problem with Mr. Reyess version of the story is that it is unsupported. It is a basic
rule in civil cases that he who alleges proves. Mr. Reyes, however, had not presented any witness to
back his story up. All his witnesses Danny Rodinas, Pepito Guerrero and Alexander Silva - proved only
[57]
that it was Dr. Filart who invited him to the party.
Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not invited,
cannot be made liable to pay for damages under Articles 19 and 21 of the Civil Code. Necessarily, neither
[58]
can her employer, Hotel Nikko, be held liable as its liability springs from that of its employee.
Article 19, known to contain what is commonly referred to as the principle of abuse of rights,
a panacea for all human hurts and social grievances. Article 19 states:

[59]

is not

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Elsewhere, we explained that when a right is exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for
[60]
which the wrongdoer must be responsible. The object of this article, therefore, is to set certain
standards which must be observed not only in the exercise of ones rights but also in the performance of
[61]
ones duties. These standards are the following: act with justice, give everyone his due and observe
[62]
honesty and good faith. Its antithesis, necessarily, is any act evincing bad faith or intent to injure. Its
elements are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the
[63]
sole intent of prejudicing or injuring another. When Article 19 is violated, an action for damages is
proper under Articles 20 or 21 of the Civil Code. Article 20 pertains to damages arising from a violation of
[64]
law which does not obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to leave.
Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.
[65]

Article 21 refers to acts contra bonus mores and has the following elements: (1) There is an act which
is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and (3) it is done
[66]
with intent to injure.
A common theme runs through Articles 19 and 21,
[68]
intentional.

[67]

and that is, the act complained of must be

As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was
driven by animosity against him. These two people did not know each other personally before the evening
of 13 October 1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms. Lims alleged abusive
conduct except the statement that Ms. Lim, being single at 44 years old, had a very strong bias and
prejudice against (Mr. Reyes) possibly influenced by her associates in her work at the hotel with foreign
[69]
businessmen. The lameness of this argument need not be belabored. Suffice it to say that a complaint
based on Articles 19 and 21 of the Civil Code must necessarily fail if it has nothing to recommend it but
innuendos and conjectures.

Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable and
humane under the circumstances. In this regard, we cannot put our imprimatur on the appellate courts
declaration that Ms. Lims act of personally approaching Mr. Reyes (without first verifying from Mrs. Filart if
indeed she invited Mr. Reyes) gave rise to a cause of action predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but respect of such
[70]
dignity. Without proof of any ill-motive on her part, Ms. Lims act of by-passing Mrs. Filart cannot
amount to abusive conduct especially because she did inquire from Mrs. Filarts companion who told her
[71]
that Mrs. Filart did not invite Mr. Reyes. If at all, Ms. Lim is guilty only of bad judgment which, if done
with good intentions, cannot amount to bad faith.
Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be
[72]
made answerable for exemplary damages especially for the reason stated by the Court of Appeals.
The Court of Appeals held
Not a few of the rich people treat the poor with contempt because of the latters lowly station in life. This
has to be limited somewhere. In a democracy, such a limit must be established. Social equality is not
sought by the legal provisions under consideration, but due regard for decency and propriety (Code
Commission, pp. 33-34). And by way of example or correction for public good and to avert further
[73]
commission of such acts, exemplary damages should be imposed upon appellees.
The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of the case
and the evidence on hand. It is not disputed that at the time of the incident in question, Mr. Reyes was an
actor of long standing; a co-host of a radio program over DZRH; a Board Member of the Music Singer
Composer (MUSICO) chaired by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime
Watch; and 1992 official candidate of the KBL Party for Governor of Bohol; and an awardee of a number
[74]
of humanitarian organizations of the Philippines. During his direct examination on rebuttal, Mr. Reyes
[75]
stressed that he had income and nowhere did he say otherwise. On the other hand, the records are
bereft of any information as to the social and economic standing of petitioner Ruby Lim. Consequently,
the conclusion reached by the appellate court cannot withstand scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might
have suffered through Ms. Lims exercise of a legitimate right done within the bounds of propriety and
good faith, must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden
is GRANTED. The Decision of the Court of Appeals dated 26 November 2001 and its Resolution dated 09
July 2002 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Quezon
City, Branch 104, dated 26 April 1999 is hereby AFFIRMED. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1]

Now Dusit Hotel Nikko.

[2]

Penned by Associate Justice Eugenio S. Labitoria with Justices Teodoro P. Regino and Rebecca de
Guia-Salvador concurring (Rollo, pp. 48-57).

[3]

Penned by Judge Thelma A. Ponferrada.

[4]

Penned by Associate Justice Eugenio S. Labitoria with Justices Teodoro P. Regino and Rebecca de
Guia-Salvador concurring (Rollo, pp. 59-60).

[5]

TSN, 08 March 1995, p. 8.

[6]

Id. at 10.

[7]

Ibid.

[8]

Id. 11.

[9]

Id. at 13.

[10]

Id. at 13 & 16.

[11]

COMPLAINT, RTC Record, p. 2.

[12]

Supra, note 5 at 17.

[13]

Supra, note 11.

[14]

Ibid.

[15]

Id. at 2-3.

[16]

Id. at 3.

[17]

Ibid.

[18]

TSN, 27 July 1996, p. 9.

[19]

Id. at 10.

[20]

Id. at 12-13, 15.

[21]

Id. at 15-17, 25.

[22]

Id. at 25.

[23]

Id. at 27.

[24]

Ibid.

[25]

Id. at 31-32.

[26]

Id. at 33.

[27]

Id. at 37.

[28]

Id. at 38-39.

[29]

Ibid.

[30]

Petition, Rollo, p. 18.

[31]

Supra, note 29 at 41-42.

[32]

Id. at 42-43.

[33]

Answer, pp. 32-33, RTC Records; RTC Decision, Rollo p. 62; TSN, 27 July 1995, pp. 43-46.

[34]

TSN, 05 November 1997, p. 15.

[35]

Violeta Filarts ANSWER WITH COMPULSORY COUNTERCLAIM, RTC Records, p. 21.

[36]

Supra, note 34 at 17.

[37]

Or Captain Batung from the testimony of Ruby Lim; Id. at 18.

[38]

Id. at 19.

[39]

Ibid.

[40]

Ibid.

[41]

Dismissed as well were the counterclaims filed by then defendants Nikko Hotel Manila Garden, Ruby
Lim and Violeta Filart, RTC Records, p. 347.

[42]

RTC Records, p. 342.

[43]

CA Rollo, p. 205.

[44]

Id. at 208-209.

[45]

Id. at 238.

[46]

CA Rollo, pp. 239-240.

[47]

E.L. Pineda, Torts and Damages Annotated, p. 52 (2004 ed).

[48]

Garciano v. Court of Appeals, G.R. No. 96126, 10 August 1992, 212 SCRA 436, 440.

[49]

cf. Servicewide Specialists, Inc. v. Intermediate Appellate Court, G.R. No. 74553, 08 June 1989, 174
SCRA 80, 88.

[50]

Sangco, Torts and Damages Vol.1 , pp. 83-84.

[51]

Floro v. Llenado, G.R. No. 75723, 02 June 1995, 244 SCRA 713, 720.

[52]

Ibid.

[53]

TSN, 22 May 1999, p. 11.

[54]

Admitted by Mr. Reyes, see TSN, 15 March 1995, p. 10.

[55]

TSN, 15 March 1995, p. 20.

[56]

RTC Records, pp. 340-341.

[57]

Danny Rodinas and Pepito Guerrero (TSN, 18 May 1995), Alexander Silva (TSN, 21 June 1995).

[58]

Article 2180, Civil Code.

[59]

Globe-Mackay Cable and Radio Corp. v. Court of Appeals, G.R. No. 81262, 25 August 1989, 176
SCRA 779, 783.

[60]

Albenson Enterprises Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993, 217 SCRA 16, 25.

[61]

Supra, note 61 at 783-784.

[62]

Ibid.

[63]

Supra, note 62.

[64]

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall
indemnify the latter for the same. See Globe Mackay, supra, note 61 at 784.

[65]

Civil Code.

[66]

Supra, note 62 at 25.

[67]

Civil Code.

[68]

Ibid.

[69]

COMMENT, Rollo, p. 302; MEMORANDUM, Rollo, p. 417.

[70]

CA Rollo, p. 209.

[71]

In fact, Mrs. Filart herself, in her testimony and in her pleadings, consistently disclaimed having invited
Mr. Reyes to the party such that when Mr. Reyes was being escorted out of the penthouse, she
lifted nary a finger to his rescue.

[72]

Art. 2234, Civil Code.

[73]

CA Rollo, pp. 209-210.

[74]

Appellants Brief, CA Rollo, p. 27; see also TSN, 08 March 1995, pp. 7-8.

[75]

TSN, 29 October 1998, p. 11.

Sps Qui Sumbing vs. MERALCO

THIRD DIVISION

[G.R. No. 142943. April 3, 2002]

Spouses ANTONIO and LORNA QUISUMBING, petitioners, vs. MANILA ELECTRIC COMPANY
(MERALCO),respondent.
DECISION
PANGANIBAN, J.:
Under the law, the Manila Electric Company (Meralco) may immediately disconnect electric service
on the ground of alleged meter tampering, but only if the discovery of the cause is personally witnessed
and attested to by an officer of the law or by a duly authorized representative of the Energy Regulatory
Board.

The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the February 1,
[1]
[2]
2000 Decision and the April 10, 2000 Resolution of the Court of Appeals (CA) in CA-GR SP No.
49022. The decretal portion of the said Decision reads as follows:
WHEREFORE, the challenged decision in Civil Case No. Q-95-23219 is hereby SET ASIDE and the
complaint against defendant-appellant MERALCO is hereby DISMISSED. Plaintiffs-appellees are
hereby ORDERED to pay defendant-appellant MERALCO the differential billing of P193,332.00
[3]
representing the value of used but unregistered electrical consumption.
The assailed Resolution denied petitioners Motion for Reconsideration.

The Facts
The facts of the case are summarized by the Court of Appeals in this wise:
Defendant-appellant Manila Electric Company (MERALCO) is a private corporation, authorized by law to
charge all persons, including the government, for the consumption of electric power at rates duly
authorized and approved by the Board of Energy (now the Energy Regulatory Board).
Plaintiffs-appellees Spouses Antonio and Lorna Quisumbing are owners of a house and lot located at No.
94 Greenmeadows Avenue, Quezon City, which they bought on April 7, 1994 from Ms. Carmina Serapio
Santos. They alleged to be business entrepreneurs engaged in the export of furnitures under the
business name Loran Industries and recipient of the 1993 Agora Award and 1994 Golden Shell
Award. Mrs. Quisumbing is a member of the Innerwheel Club while Mr. Quisumbing is a member of the
Rotary Club, Chairman of Cebu Chamber of Commerce, and Director of Chamber of Furniture.

On March 3, 1995 at around 9:00 a.m., defendant-appellants inspectors headed by Emmanuel C. Orlino
were assigned to conduct a routine-on-the-spot inspection of all single phase meters at Greenmeadows
Avenue. House no. 94 of Block 8, Lot 19 Greenmeadows Avenue owned by plaintiffs-appellees was
inspected after observing a standard operating procedure of asking permission from plaintiffs-appellees,
through their secretary which was granted.The secretary witnessed the inspection. After the inspection,
defendant-appellants inspectors discovered that the terminal seal of the meter was missing; the meter
cover seal was deformed; the meter dials of the meter was mis-aligned and there were scratches on the
meter base plate. Defendant-appellants inspectors relayed the matter to plaintiffs-appellees secretary,
who in turn relayed the same to plaintiff-appellee, Lorna Quisumbing, who was outraged of the result of
the inspection and denied liability as to the tampering of the meter. Plaintiffs-appellees were advised by
defendant-appellants inspectors that they had to detach the meter and bring it to their laboratory for
verification/confirmation of their findings. In the event the meter turned out to be tampered, defendantappellant had to temporarily disconnect the electric services of plaintiffs-appellees. The laboratory testing
conducted on the meter has the following findings to wit:
1. Terminal seal was missing.
2. Lead cover seals (90 ERB 1-Meralco 21) were tampered by forcibly pulling out from the
sealing wire.
3. The 1000th, 100th and 10th dial pointers of the register were found out of alignment and
with circular scratches at the face of the register which indicates that the meter had
been opened to manipulate the said dial pointers and set manually to the desired
reading. In addition to this, the meter terminal blades were found full of scratches.
After an hour, defendant-appellants head inspector, E. Orlina returned to the residence of plaintiffsappellees and informed them that the meter had been tampered and unless they pay the amount
of P178,875.01 representing the differential billing, their electric supply would be disconnected. Orlina
informed plaintiffs-appellees that they were just following their standard operating procedure. Plaintiffsappellees were further advised that questions relative to the results of the inspection as well as the
disconnection of her electrical services for Violation of Contract (VOC) may be settled with Mr. M.
Manuson of the Special Accounts, Legal Service Department. However, on the same day at around 2:00
oclock in the afternoon defendant-appellants officer through a two-way radio instructed its service
inspector headed by Mr. Orlino to reconnect plaintiffs-appellees electric service which the latter faithfully
complied.
On March 6, 1995, plaintiffs-appellees filed a complaint for damages with prayer for the issuance of a writ
of preliminary mandatory injunction, despite the immediate reconnection, to order defendant-appellant to
furnish electricity to the plaintiffs-appellees alleging that defendant-appellant acted with wanton,
capricious, malicious and malevolent manner in disconnecting their power supply which was done without
due process, and without due regard for their rights, feelings, peace of mind, social and business
reputation.
In its Answer, defendant-appellant admitted disconnecting the electric service at the plaintiffs-appellees
house but denied liability citing the Terms and Conditions of Service, and Republic Act No. 7832
otherwise known as Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994.
After trial on the merits, the lower court rendered judgment, ruling in favor of plaintiffs[4]
appellees. (Citations omitted)

Ruling of the Trial Court

The trial court held that Meralco (herein respondent) should have given the Quisumbing spouses
(herein petitioners) ample opportunity to dispute the alleged meter tampering.
It held that respondent had acted summarily and without procedural due process in immediately
disconnecting the electric service of petitioners. Respondents action, ruled the RTC, constituted a quasi
delict.

Ruling of the Court of Appeals

The Court of Appeals overturned the trial courts ruling and dismissed the Complaint. It held that
respondents representatives had acted in good faith when they disconnected petitioners electric
service. Citing testimonial and documentary evidence, it ruled that the disconnection was made only after
observing due process. Further, it noted that petitioners had not been able to prove their claim for
damages. The appellate court likewise upheld respondents counterclaim for the billing differential in the
[5]
amount of P193,332 representing the value of petitioners used but unregistered electrical consumption,
which had been established without being controverted.
Hence, this Petition.

[6]

The Issues
In their Memorandum,

[7]

petitioners submit the following issues for our consideration:

4.1 Whether a prima facie presumption of tampering of electrical meter enumerated under Sec. 4 (a) iv of
RA 7832 (Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994) may be had
despite the absence of an ERB representative or an officer of the law?
4.2 Whether the enumeration of instances to establish a prima facie presumption of tampering of
electrical meter enumerated under Sec. 4 (a) iv of RA 7832 (Anti-Electricity and Electric Transmission
Lines/Materials Pilferage Act of 1994) is exclusive?
4.3 What constitutes notice prior to disconnection of electricity service? Corollarily, whether the definition
of notice under Meralco v. Court of Appeals (157 SCRA 243) applies to the case at bar?
4.4 Whether a prima facie presumption may contradict logic?
4.5 Whether documentary proof is pre-requisite for award of damages?

[8]

In sum, this Petition raises three (3) main issues which this Court will address: (1) whether
respondent observed the requisites of law when it disconnected the electrical supply of petitioners, (2)
whether such disconnection entitled petitioners to damages, and (3) whether petitioners are liable for the
billing differential computed by respondent.

The Courts Ruling

The Petition is partly meritorious.

First Issue:
Compliance with Requisites of Law
Petitioners contend that the immediate disconnection of electrical service was not validly effected
because of respondents noncompliance with the relevant provisions of RA 7832, the Anti-Electricity and
Electric Transmission Lines/Materials Pilferage Act of 1994. They insist that the immediate disconnection
of electrical supply may only be validly effected only when there is prima facie evidence of its illegal
use. To constitute prima facie evidence, the discovery of the illegal use must be personally witnessed and
attested to by an officer of the law or a duly authorized representative of the Energy Regulatory Board
(ERB).
Respondent, on the other hand, points out that the issue raised by petitioners is a question of fact
which this Court cannot pass upon. It argues further that this issue, which was not raised in the court
below, can no longer be taken up for the first time on appeal. Assuming arguendo that the issue was
raised below, it also contends that petitioners were not able to specifically prove the absence of an officer
of the law or a duly authorized representative of the ERB when the discovery was made.

Prima facie Evidence of Illegal Use of Electricity

We agree with petitioners. Section 4 of RA 7832 states:
(a) The presence of any of the following circumstances shall constitute prima facie evidence of
illegal use of electricity, as defined in this Act, by the person benefited thereby, and shall be
the basis for: (1) the immediate disconnection by the electric utility to such person after due
notice, x x x
xxxxxxxxx
(viii) x x x Provided, however, That the discovery of any of the foregoing circumstances, in order to
constitute prima facie evidence, must be personally witnessed and attested to by an officer of the law or a
[9]
duly authorized representative of the Energy Regulatory Board (ERB). (Italics supplied)
Under the above provision, the prima facie presumption that will authorize immediate disconnection
will arise only upon the satisfaction of certain requisites. One of these requisites is the personal
witnessing and attestation by an officer of the law or by an authorized ERB representative when the
discovery was made.
As a rule, this Court reviews only questions of law, not of facts. However, it may pass upon the
evidence when the factual findings of the trial court are different from those of the Court of Appeals, as in
[10]
this case.
A careful review of the evidence on record negates the appellate courts holding that the actions of
[11]
defendant-appellants service inspectors were all in accord with the requirement of the law.
Respondents own witnesses provided the evidence on who were actually present when the
inspection was made. Emmanuel C. Orlino, the head of the Meralco team, testified:
Q When you were conducting this inspection, and you discovered these findings you testified
earlier, who was present?
A The secretary, sir.

[12]

ATTY. REYES - Who else were the members of your team that conducted this inspection at
Greenmeadows Avenue on that day, March 3, 1995?
A The composition of the team, sir?

Q Yes.
A Including me, we are about four (4) inspectors, sir.
Q You were four (4)?
A Yes, sir.
Q Who is the head of this team?
A I was the head of the team, sir.

[13]

Further, Catalino A. Macaraig, the area head of the Orlino team, stated that only Meralco personnel
had been present during the inspection:
Q By the way you were not there at Green Meadows on that day, right?
A Yes, sir.
Q Only Mr. Orlino and who else were there?
A Two or three of his men.
Q All members of the inspection team?
A Yes, sir.

[14]

These testimonies clearly show that at the time the alleged meter tampering was discovered, only
the Meralco inspection team and petitioners secretary were present. Plainly, there was no officer of the
law or ERB representative at that time. Because of the absence of government representatives, the prima
facie authority to disconnect, granted to Meralco by RA 7832, cannot apply.
Neither can respondent find solace in the fact that petitioners secretary was present at the time the
inspection was made. The law clearly states that for the prima facie evidence to apply, the discovery must
be personally witnessed and attested to by an officer of the law or a duly authorized representative of the
[15]
Energy Regulatory Board (ERB). Had the law intended the presence of the owner or his/her
representative to suffice, then it should have said so. Embedded in our jurisprudence is the rule that
[16]
courts may not construe a statute that is free from doubt. Where the law is clear and unambiguous, it
must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is
[17]
obeyed.
In fact, during the Senate deliberations on RA 7832, Senator John H. Osmea, its author, stressed the
need for the presence of government officers during inspections of electric meters. He said:
Mr. President, if a utility like MERALCO finds certain circumstances or situations which are listed in
Section 2 of this bill to be prima facie evidence, I think they should be prudent enough to bring in
competent authority, either the police or the NBI, to verify or substantiate their finding. If they were to
summarily proceed to disconnect on the basis of their findings and later on there would be a court case
and the customer or the user would deny the existence of what is listed in Section 2, then they could be in
[18]
a lot of trouble. (Italics supplied)
Neither can we accept respondents argument that when the alleged tampered meter was brought to
Meralcos laboratory for testing, there was already an ERB representative present.
The law says that before immediate disconnection may be allowed, the discovery of the illegal use of
electricity must have been personally witnessed and attested to by an officer of the law or by an
authorized ERB representative. In this case, the disconnection was effected immediately after the
discovery of the alleged meter tampering, which was witnessed only by Meralcos employees. That the
ERB representative was allegedly present when the meter was examined in the Meralco laboratory will
not cure the defect.

It is undisputed that after members of the Meralco team conducted their inspection and found alleged
meter tampering, they immediately disconnected petitioners electrical supply. Again, this verity is culled
from the testimony of Meralcos Orlina:
A When she went inside then she came out together with Mrs. Lourdes Quis[u]mbing at that
time. We did tell our findings regarding the meter and the consequence with it. And she
was very angry with me.
Q When you say consequence of your findings, what exactly did you tell Mrs. Quisumbing?
A We told her that the service will be temporarily disconnected and that we are referring to our
[19]
Legal Department so could know the violation, sir.
A Yes, sir. At that time, I referred her to Mr. Macaraig, sir.
Q What is the first name of this supervisor?
A Mr. Catalino Macara[i]g, sir.
Q Then after talking to Mr. Catalino Macara[i]g, this is over the telephone, what happened?
A The supervisor advised her that the service will be temporarily disconnected and she has to
go to our Legal Department where she could settle the VOC, sir.
Q You are talking of VOC, what is this all about Mr. Orlino?
A VOC is violation of contract, sir.

[20]

As to respondents argument that the presence of an authorized ERB representative had not been
raised below, it is clear, however, that the issue of due process was brought up by petitioners as a valid
issue in the CA. The presence of government agents who may authorize immediate disconnections go
into the essence of due process. Indeed, we cannot allow respondent to act virtually as prosecutor and
judge in imposing the penalty of disconnection due to alleged meter tampering. That would not sit well in
a democratic country. After all, Meralco is a monopoly that derives its power from the
government. Clothing it with unilateral authority to disconnect would be equivalent to giving it a license to
tyrannize its hapless customers.
Besides, even if not specifically raised, this Court has already ruled that [w]here the issues already
raised also rest on other issues not specifically presented, as long as the latter issues bear relevance and
close relation to the former and as long as they arise from matters on record, the Court has the authority
[21]
to include them in its discussion of the controversy as well as to pass upon them.

Contractual Right to Disconnect

Electrical Service
Neither may respondent rely on its alleged contractual right to disconnect electrical service based on
[22]
[23]
Exhibits 10 and 11, or on Decisions of the Board of Energy (now the Energy Regulatory Board). The
relevant portion of these documents concerns discontinuance of service. It provides:
The Company reserves the right to discontinue service in case the Customer is in arrears in the payment
of bills or for failure to pay the adjusted bills in those cases where the meter stopped or failed to register
the correct amount of energy consumed, or for failure to comply with any of these terms and conditions,
or in case of or to prevent fraud upon the Company. Before disconnection is made in case of or to prevent
fraud, the Company may adjust the bill of said Customer accordingly and if the adjusted bill is not paid,
the Company may disconnect the same. In case of disconnection, the provisions of Revised Order No. 1
of the former Public Service Commission (now the Board of Energy) shall be observed. Any such
[24]
suspension of service shall not terminate the contract between the Company and the Customer.

Petitioners situation can fall under disconnection only in case of or to prevent fraud upon the
Company. However, this too has requisites before a disconnection may be made. An adjusted bill shall be
prepared, and only upon failure to pay it may the company discontinue service. This is also true in regard
to the provisions of Revised Order No. 1 of the former Public Service Commission, which requires a 48hour written notice before a disconnection may be justified. In the instant case, these requisites were
obviously not complied with.

Second Issue
Damages
Having ruled that the immediate disconnection effected by Meralco lacks legal, factual or contractual
basis, we will now pass upon on the right of petitioners to recover damages for the improper
disconnection.
Petitioners are asking for the reinstatement of the RTC Decision, which awarded them actual, moral
and exemplary damages as well as attorneys fees. All these were overturned by the CA.
As to actual damages, we agree with the CA that competent proof is necessary before our award
may be made. The appellate court ruled as follows:
Considering further, it is a settled rule that in order for damages to be recovered, the best evidence
obtainable by the injured party must be presented.Actual and compensatory damages cannot be
presumed but must be duly proved and proved with reasonable degree and certainty. A court cannot rely
on speculation, conjecture or guess work as to the fact and amount of damages, but must depend upon
competent proof that they have been suffered and on evidence of actual amount thereof. If the proof is
[25]
flimsy and unsubstantial, no damages will be awarded.
Actual damages are compensation for an injury that will put the injured party in the position where it
[26]
was before it was injured. They pertain to such injuries or losses that are actually sustained and
[27]
susceptible of measurement. Except as provided by law or by stipulation, a party is entitled to an
[28]
adequate compensation only for such pecuniary loss as it has duly proven.
Basic is the rule that to recover actual damages, not only must the amount of loss be capable of
proof; it must also be actually proven with a reasonable degree of certainty, premised upon competent
[29]
proof or the best evidence obtainable.
Petitioners claim for actual damages was premised only upon Lorna Quisumbings bare testimony as
follows:
A Actually that da[y] I was really scheduled to go to that furniture exhibit. That furniture exhibit is
only once a year.
Q What is this furniture exhibit?
A The SITEM, that is a government agency that takes care of exporters and exclusive
marketing of our products around the world. We always have that once a year and thats
the time when all our buyers are here for us to show what we had that was exhibited to go
around. So, my husband had to [fly] from Cebu to Manila just for this occasion. So we have
an appointment with our people and our buyers with SITEM and also that evening we will
have to treat them [to] dinner.
Q Whereat?
A At our residence, we were supposed to have a dinner at our residence.
Q What happened to this occasion?

A So when they disconnected our electric power we had to get in touch with them and change
the venue.
Q Which venue did you transfer your dinner for your buyers?
A We brought them in a restaurant in Makati at Seasons Restaurant. But it was very
embar[r]assing for us because we faxed them ahead of time before they came to Manila.
Q Now as a result of this change of your schedule because of the disconnection of the electric
power on that day, Friday, what damage did you suffer?
A I cancelled the catering service and that is so much of a h[a]ssle it was so embarras[s]ing for
us.
Q Can you tell us how much amount?
A Approximately P50,000.00.

[30]

No other evidence has been proffered to substantiate her bare statements. She has not shown how
she arrived at the amount ofP50,000; it is, at best, speculative. Her self-serving testimonial evidence, if it
may be called such, is insufficient to support alleged actual damages.
While respondent does not rebut this testimony on the expenses incurred by the spouses in moving
the dinner out of their residence due to the disconnection, no receipts covering such expenditures have
been adduced in evidence. Neither is the testimony corroborated. To reiterate, actual or compensatory
damages cannot be presumed, but must be duly proved with a reasonable degree of certainty. It is
dependent upon competent proof of damages that petitioners have suffered and of the actual amount
[31]
thereof. The award must be based on the evidence presented, not on the personal knowledge of the
[32]
court; and certainly not on flimsy, remote, speculative and unsubstantial proof. Consequently, we
uphold the CA ruling denying the grant of actual damages.
Having said that, we agree with the trial court, however, that petitioners are entitled to moral
damages, albeit in a reduced amount.
The RTC opined as follows:
This Court agrees with the defendant regarding [its] right by law and equity to protect itself from any
fraud. However, such right should not be exercised arbitrarily but with great caution and with due regard
to the rights of the consumers. Meralco having a virtual monopoly of the supply of electric power should
refrain from taking drastic actions against the consumers without observing due process. Even assuming
that the subject meter has had history of meter tampering, defendant cannot simply assume that the
present occupants are the ones responsible for such tampering. Neither does it serve as a license to
deprive the plaintiffs of their right to due process. Defendant should have given the plaintiffs simple
opportunity to dispute the electric charges brought about by the alleged meter-tampering, which were not
included in the bill rendered them. Procedural due process requires reasonable notice to pay the bill and
reasonable notice to discontinue supply. Absent due process the defendant may be held liable for
damages. While this Court is aware of the practice of unscrupulous individuals of stealing electric
curre[n]t which causes thousands if not millions of pesos in lost revenue to electric companies, this does
not give the defendant the right to trample upon the rights of the consumers by denying them due
[33]
process.
Article 2219 of the Civil Code lists the instances when moral damages may be recovered. One such
[34]
case is when the rights of individuals, including the right against deprivation of property without due
[35]
process of law, are violated.
Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
[36]
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Although incapable of
pecuniary computation, such damages may be recovered if they are the proximate results of the
[37]
defendants wrongful act or omission.

Case law establishes the following requisites for the award of moral damages: (1) there is an injury -whether physical, mental or psychological -- clearly sustained by the claimant; (2) there is a culpable act
or omission factually established; (3) the wrongful act or omission of the defendant is the proximate cause
of the injury sustained by the claimant; and (4) the award of damages is predicated on any of the cases
[38]
stated in Article 2219 of the Civil Code.
To reiterate, respondent had no legal right to immediately disconnect petitioners electrical supply
without observing the requisites of law which, in turn, are akin to due process. Had respondent been more
circumspect and prudent, petitioners could have been given the opportunity to controvert the initial finding
of alleged meter tampering. Said the RTC:
More seriously, the action of the defendant in maliciously disconnecting the electric service constitutes a
breach of public policy. For public utilities, broad as their powers are, have a clear duty to see to it that
they do not violate nor transgress the rights of the consumers. Any act on their part that militates against
the ordinary norms of justice and fair play is considered an infraction that gives rise to an action for
[39]
damages. Such is the case at bar.
[40]

Indeed, the Supreme Court has ruled in Meralco v. CA that respondent is required to give notice of
disconnection to an alleged delinquent customer. The Court said:
x x x One can not deny the vital role which a public utility such as MERALCO, having a monopoly of the
supply of electrical power in Metro Manila and some nearby municipalities, plays in the life of people living
in such areas. Electricity has become a necessity to most people in these areas, justifying the exercise by
the State of its regulatory power over the business of supplying electrical service to the public, in which
petitioner MERALCO is engaged.Thus, the state may regulate, as it has done through Section 97 of the
Revised Order No. 1 of the Public Service Commission, the conditions under which and the manner by
which a public utility such as MERALCO may effect a disconnection of service to a delinquent
customer. Among others, a prior written notice to the customer is required before disconnection of the
[41]
service. Failure to give such prior notice amounts to a tort.
Observance of the rights of our people is sacred in our society. We cannot allow such rights to be
trifled with or trivialized. Although the Court sympathizes with respondents efforts to stamp out the illegal
use of electricity, such action must be done only with strict observance of the rights of our people. As has
[42]
been we succinctly said: there is a right way to do the right thing at the right time for the right reason.
However, the amount of moral damages, which is left largely to the sound discretion of the courts,
[43]
should be granted in reasonable amounts, considering the attendant facts and circumstances. Moral
damages, though incapable of pecuniary estimation, are designed to compensate the claimant for actual
[44]
injury suffered and not to impose a penalty. Moral damages are not intended to enrich a plaintiff at the
[45]
expense of the defendant. They are awarded only to obtain a means, a diversion or an amusement that
will serve to alleviate the moral suffering the injured party has undergone by reason of the defendants
[46]
[47]
culpable action. They must be proportionate to the suffering inflicted.
It is clear from the records that respondent was able to restore the electrical supply of petitioners on
the same day. Verily, the inconvenience and anxiety they suffered as a result of the disconnection was
thereafter corrected. Thus, we reduce the RTCs grant of moral damages to the more equitable amount
of P100,000.
Exemplary damages, on the other hand, are imposed by way of example or correction for the public
[48]
good in addition to moral, temperate, liquidated or compensatory damages. It is not given to enrich one
party and impoverish another, but to serve as a deterrent against or as a negative incentive to socially
[49]
deleterious actions. In this case, to serve an example -- that before a disconnection of electrical supply
can be effected by a public utility like Meralco, the requisites of law must be faithfully complied with -- we
award the amount of P50,000 to petitioners.

[50]

Finally, with the award of exemplary damages, the award of attorneys fees is likewise granted. It is
readily apparent that petitioners needed the services of a lawyer to argue their cause, even to the extent
[51]
of elevating the matter to this Court; thus, an award of P50,000 is considered sufficient.

Final Issue:
Billing Differential
Finally, this Court holds that despite the basis for the award of damages -- the lack of due process in
immediately disconnecting petitioners electrical supply -- respondents counterclaim for the billing
differential is still proper. We agree with the CA that respondent should be given what it rightfully
deserves. The evidence it presented, both documentary and testimonial, sufficiently proved the amount of
the differential.
Not only did respondent show how the meter examination had been conducted by its experts, but it
also established the amount ofP193,332.96 that petitioners owed respondent. The procedure through
which this amount was arrived at was testified to by Meralcos Senior Billing Computer Enrique
Katipunan. His testimony was corroborated by documentary evidence showing the accounts billing history
and the corresponding computations. Neither do we doubt the documents of inspections and
examinations presented by respondent to prove that, indeed there had been meter tampering that
resulted in unrecorded and unpaid electrical consumption.
[52]

The mere presentation by petitioners of a Contract to Sell with Assumption of Mortgage does not
necessarily mean that they are no longer liable for the billing differential. There was no sufficient evidence
to show that they had not been actually residing in the house before the date of the said document. Lorna
[53]
Quisumbing herself admitted that they did not have any contract for electrical service in their own
name. Hence, petitioners effectively assumed the bills of the former occupants of the premises.
Finally, the CA was correct in ruling that the convincing documentary and testimonial evidence
presented by respondent, was not controverted by petitioners.
WHEREFORE, the Petition is hereby PARTLY GRANTED. The assailed CA Decision
is MODIFIED as follows: petitioners areORDERED to pay respondent the billing differential
of P193,332.96; while respondent is ordered to pay petitioners P100,000 as moral damages, P50,000 as
exemplary damages, and P50,000 as attorneys fees. No pronouncement as to costs.
SO ORDERED.
Melo, (Chairman), Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., abroad on official business.

[1]

Rollo, pp. 17-30; penned by Justice Remedios A. Salazar-Fernando and concurred in by Justices Ma.
Alicia Austria-Martinez (Division chairman) and Oswaldo D. Agcaoili (member).

[2]

Rollo, p. 15.

[3]

CA Decision, p. 13; rollo, p. 29.

[4]

CA Decision, pp. 2-4; rollo, pp. 18-20.

[5]

Although this was the amount granted by the CA in its assailed Decision, the amount prayed for by
respondent in its Counterclaim and shown in its documentary and testimonial evidence
was P193,332.96.

[6]

The case was deemed submitted for decision on January 26, 2001, upon this Courts receipt of the
Memorandum for petitioners signed by Atty. Andrew D. Inocencio.Respondents Memorandum,
filed on January 16, 2001, was signed by Atty. Jose Ronald V. Valles.

[7]

Rollo, pp. 136-143.

[8]

Petitioners Memorandum, p. 2; rollo, p. 137.

[9]

Section 4, RA 7832, December 8, 1994.

[10]

Meralco v. CA, GR No. 108301, July 11, 2001.

[11]

CA Decision, p. 8; rollo, p. 24.

[12]

TSN, July 10, 1997, pp. 24-25.

[13]

Ibid., pp. 47-48.

[14]

TSN, August 21, 1997, pp. 46-47.

[15]

Section 4 (a) (viii), RA 7832, December 8, 1994.

[16]

Ramos v. CA, 108 SCRA 728, October 30, 1981; Banawa v. Mirano, 97 SCRA 517, May 16, 1980;
Espiritu v. Cipriano, 55 SCRA 533, February 15, 1974; Republic Flour Mills, Inc. v. Commissioner
of Customs, 39 SCRA 269, May 31, 1971.

[17]

Agpalo, Statutory Construction, 1990 ed., p. 45, citing Resins, Inc. v. Auditor General, 25 SCRA 754,
October 29, 1968.

[18]

Record of the Senate, Vol. IV, No. 61, March 9, 1994, p. 357.

[19]

TSN, July 10, 1997, pp. 27-28.

[20]

Ibid., pp. 31-32.

[21]

Republic v. Cocofed, GR Nos. 147062-64, December 14, 2001, per Panganiban, J. citing
Diamante v. CA, 206 SCRA 52, 64, February 7, 1992, per Davide Jr., J.(now CJ), which in turn
cited Insular Life Assurance Co., Ltd. Employees Association NATU v. Insular Life Assurance
Co., Ltd., 76 SCRA 50, 61-62, March 10, 1977, per Castro, CJ.

[22]

Records, pp. 336-354.

[23]

Ibid., pp. 355-369.

[24]

Annex A of Exhibit 10, BOE Case No. 85-121, records, p. 353; Exhibit 11, BPW Case No. 73-115, p.
361.

[25]

CA Decision, p. 11; rollo, p. 27.

[26]

Ong v. CA, 301 SCRA 387, January 21, 1999.

[27]

Ibid.

[28]

Article 2199, Civil Code.

[29]

Sabio v. The
International
Corporate
Bank,
GR
No.
132701,
September
4,
2001; Fernandez v. Fernandez, GR No. 143256, August 20, 2001; Bernardo v. Court of Appeals
(Special Sixth Division), 275 SCRA 413, July 14, 1997.

[30]

TSN, November 28, 1996, pp. 15-17.

[31]

Magat Jr. v. CA, 337 SCRA 298, August 4, 2000; Integrated Packaging Corp. v. CA, 333 SCRA 170,
June 8, 2000.

[32]

Bayer Phils., Inc. v. CA, 340 SCRA 437, September 15, 2000.

[33]

RTC Decision, p. 3; rollo, p. 33.

[34]

Article 2219 (10), Civil Code.

[35]

Article 32, Civil Code.

[36]

Article 2217, Civil Code.

[37]

Ibid.

[38]

Citytrust Banking Corporation v. Villanueva, GR No. 141011, July 19, 2001; Expertravel & Tours,
Inc. v. CA, 309 SCRA 141, 145, June 25, 1999.

[39]

RTC Decision, p. 5; rollo, p. 35, per Judge Marciano I. Bacalla.

[40]

157 SCRA 243, January 22, 1988.

[41]

Ibid., pp. 247-248, per Yap, J.

[42]

Paper Industries Corp. of the Phils. v. Asuncion, 307 SCRA 253, 275, May 19, 1999, per
Panganiban, J.

[43]

Prudenciado v. Alliance Transport System, Inc., 148 SCRA 440, March 16, 1987.

[44]

San Andres v. CA, 116 SCRA 81, August 21, 1982.

[45]

Radio Communications of the Philippines, Inc. v. Rodriguez, 182 SCRA 899, February 28, 1990.

[46]

R & B Surety & Insurance Co., Inc. v. Intermediate Appellate Court, 129 SCRA 736, June 22, 1984.

[47]

Ibid.

[48]

Article 2229, Civil Code.

[49]

Oarde v. CA, 280 SCRA 235, October 8, 1997.

[50]

Article 2208 (1), Civil Code.

[51]

Lucas v. Royo, 344 SCRA 481, October 30, 2000.

[52]

Exhibit E, Plaintiffs Formal Offer of Evidence; records, pp. 275-278.

[53]

TSN, November 28, 1996, pp. 32-33.

GASHEM SHOOKAT BAKSH vs. Court of Appeals

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the
1
Decision of the respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16
October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC) of Pangasinan in Civil
Case No. 16503. Presented is the issue of whether or not damages may be recovered for a breach of
promise to marry on the basis of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial
2
court a complaint for damages against the petitioner for the alleged violation of their agreement to get
married. She alleges in said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty
lass of good moral character and reputation duly respected in her community; petitioner, on the other
hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange
student taking a medical course at the Lyceum Northwestern Colleges in Dagupan City; before 20 August
1987, the latter courted and proposed to marry her; she accepted his love on the condition that they
would get married; they therefore agreed to get married after the end of the school semester, which was
in October of that year; petitioner then visited the private respondent's parents in Baaga, Bugallon,
Pangasinan to secure their approval to the marriage; sometime in 20 August 1987, the petitioner forced
her to live with him in the Lozano Apartments; she was a virgin before she began living with him; a week
before the filing of the complaint, petitioner's attitude towards her started to change; he maltreated and
threatened to kill her; as a result of such maltreatment, she sustained injuries; during a confrontation with
a representative of the barangay captain of Guilig a day before the filing of the complaint, petitioner
repudiated their marriage agreement and asked her not to live with him anymore and; the petitioner is
already married to someone living in Bacolod City. Private respondent then prayed for judgment ordering
the petitioner to pay her damages in the amount of not less than P45,000.00, reimbursement for actual
expenses amounting to P600.00, attorney's fees and costs, and granting her such other relief and
remedies as may be just and equitable. The complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim, petitioner admitted only the personal circumstances of the parties as
averred in the complaint and denied the rest of the allegations either for lack of knowledge or information
sufficient to form a belief as to the truth thereof or because the true facts are those alleged as his Special
and Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed to be married
with the private respondent; he neither sought the consent and approval of her parents nor forced her to
live in his apartment; he did not maltreat her, but only told her to stop coming to his place because he
discovered that she had deceived him by stealing his money and passport; and finally, no confrontation
took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint
is baseless and unfounded and that as a result thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental anxiety and a besmirched reputation, he prayed
for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages.
4

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order embodying the
stipulated facts which the parties had agreed upon, to wit:
1. That the plaintiff is single and resident (sic) of Baaga, Bugallon, Pangasinan, while
the defendant is single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig,
Dagupan City since September 1, 1987 up to the present;
2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City,
College of Medicine, second year medicine proper;
3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue,
Dagupan City since July, 1986 up to the present and a (sic) high school graduate;
4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986.
After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October
5
1989 a decision favoring the private respondent. The petitioner was thus ordered to pay the latter
damages and attorney's fees; the dispositive portion of the decision reads:
IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.
2. Condemning further the defendant to play the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation
expenses and to pay the costs.
3. All other claims are denied.

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private
respondent were lovers, (b) private respondent is not a woman of loose morals or questionable virtue who
readily submits to sexual advances, (c) petitioner, through machinations, deceit and false pretenses,
promised to marry private respondent, d) because of his persuasive promise to marry her, she allowed
herself to be deflowered by him, (e) by reason of that deceitful promise, private respondent and her
parents in accordance with Filipino customs and traditions made some preparations for the wedding
that was to be held at the end of October 1987 by looking for pigs and chickens, inviting friends and
relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of
the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of

morality, good customs, culture and traditions. The trial court gave full credit to the private respondent's
testimony because, inter alia, she would not have had the temerity and courage to come to court and
7
expose her honor and reputation to public scrutiny and ridicule if her claim was false.
The above findings and conclusions were culled from the detailed summary of the evidence for the
private respondent in the foregoing decision, digested by the respondent Court as follows:
According to plaintiff, who claimed that she was a virgin at the time and that she never
had a boyfriend before, defendant started courting her just a few days after they first met.
He later proposed marriage to her several times and she accepted his love as well as his
proposal of marriage on August 20, 1987, on which same day he went with her to her
hometown of Baaga, Bugallon, Pangasinan, as he wanted to meet her parents and
inform them of their relationship and their intention to get married. The photographs Exhs.
"A" to "E" (and their submarkings) of defendant with members of plaintiff's family or with
plaintiff, were taken that day. Also on that occasion, defendant told plaintiffs parents and
brothers and sisters that he intended to marry her during the semestral break in October,
1987, and because plaintiff's parents thought he was good and trusted him, they agreed
to his proposal for him to marry their daughter, and they likewise allowed him to stay in
their house and sleep with plaintiff during the few days that they were in Bugallon. When
plaintiff and defendant later returned to Dagupan City, they continued to live together in
defendant's apartment. However, in the early days of October, 1987, defendant would tie
plaintiff's hands and feet while he went to school, and he even gave her medicine at 4
o'clock in the morning that made her sleep the whole day and night until the following
day. As a result of this live-in relationship, plaintiff became pregnant, but defendant gave
her some medicine to abort the fetus. Still plaintiff continued to live with defendant and
kept reminding him of his promise to marry her until he told her that he could not do so
because he was already married to a girl in Bacolod City. That was the time plaintiff left
defendant, went home to her parents, and thereafter consulted a lawyer who
accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her
godmother, and a barangay tanod sent by the barangay captain went to talk to defendant
to still convince him to marry plaintiff, but defendant insisted that he could not do so
because he was already married to a girl in Bacolod City, although the truth, as stipulated
by the parties at the pre-trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of
his desire to marry Marilou, he already looked for sponsors for the wedding, started
preparing for the reception by looking for pigs and chickens, and even already invited
8
many relatives and friends to the forthcoming wedding.
Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case
9
as CA-G.R. CV No. 24256. In his Brief, he contended that the trial court erred (a) in not dismissing the
case for lack of factual and legal basis and (b) in ordering him to pay moral damages, attorney's fees,
litigation expenses and costs.
10

On 18 February 1991, respondent Court promulgated the challenged decision affirming in toto the trial
court's ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court made
the following analysis:
First of all, plaintiff, then only 21 years old when she met defendant who was already 29
years old at the time, does not appear to be a girl of loose morals. It is uncontradicted
that she was a virgin prior to her unfortunate experience with defendant and never had
boyfriend. She is, as described by the lower court, a barrio lass "not used and
accustomed to trend of modern urban life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by
the defendant to marry her." In fact, we agree with the lower court that plaintiff and

defendant must have been sweethearts or so the plaintiff must have thought because of
the deception of defendant, for otherwise, she would not have allowed herself to be
photographed with defendant in public in so (sic) loving and tender poses as those
depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's
pretense that plaintiff was a nobody to him except a waitress at the restaurant where he
usually ate. Defendant in fact admitted that he went to plaintiff's hometown of Baaga,
Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p. 54,
tsn May 18, 1988), at (sic) a beach party together with the manager and employees of
the Mabuhay Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when
he allegedly talked to plaintiff's mother who told him to marry her daughter (pp. 55-56,
tsn id.). Would defendant have left Dagupan City where he was involved in the serious
study of medicine to go to plaintiff's hometown in Baaga, Bugallon, unless there was
(sic) some kind of special relationship between them? And this special relationship must
indeed have led to defendant's insincere proposal of marriage to plaintiff, communicated
not only to her but also to her parents, and (sic) Marites Rabino, the owner of the
restaurant where plaintiff was working and where defendant first proposed marriage to
her, also knew of this love affair and defendant's proposal of marriage to plaintiff, which
she declared was the reason why plaintiff resigned from her job at the restaurant after
she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to be a man of good moral character and
must think so low and have so little respect and regard for Filipino women that he openly
admitted that when he studied in Bacolod City for several years where he finished his
B.S. Biology before he came to Dagupan City to study medicine, he had a common-law
wife in Bacolod City. In other words, he also lived with another woman in Bacolod City but
did not marry that woman, just like what he did to plaintiff. It is not surprising, then, that
he felt so little compunction or remorse in pretending to love and promising to marry
11
plaintiff, a young, innocent, trustful country girl, in order to satisfy his lust on her.
and then concluded:
In sum, we are strongly convinced and so hold that it was defendant-appellant's
fraudulent and deceptive protestations of love for and promise to marry plaintiff that made
her surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these (sic) fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's livingin with him preparatory to their supposed marriage. And as these acts of appellant are
palpably and undoubtedly against morals, good customs, and public policy, and are even
gravely and deeply derogatory and insulting to our women, coming as they do from a
foreigner who has been enjoying the hospitality of our people and taking advantage of the
opportunity to study in one of our institutions of learning, defendant-appellant should
indeed be made, under Art. 21 of the Civil Code of the Philippines, to compensate for the
moral damages and injury that he had caused plaintiff, as the lower court ordered him to
12
do in its decision in this case.
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the
13
single issue of whether or not Article 21 of the Civil Code applies to the case at bar.
It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral
wrong or injury or violated any good custom or public policy; he has not professed love or proposed
marriage to the private respondent; and he has never maltreated her. He criticizes the trial court for
liberally invoking Filipino customs, traditions and culture, and ignoring the fact that since he is a foreigner,
he is not conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he is not
familiar with Catholic and Christian ways. He stresses that even if he had made a promise to marry, the
subsequent failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then

alludes to the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that
on the basis thereof, the trial court erred in ruling that he does not posses good moral character.
Moreover, his controversial "common law life" is now his legal wife as their marriage had been
solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the private
respondent, petitioner claims that even if responsibility could be pinned on him for the live-in relationship,
the private respondent should also be faulted for consenting to an illicit arrangement. Finally, petitioner
asseverates that even if it was to be assumed arguendo that he had professed his love to the private
respondent and had also promised to marry her, such acts would not be actionable in view of the special
14
circumstances of the case. The mere breach of promise is not actionable.
On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner
had filed his Reply thereto, this Court gave due course to the petition and required the parties to submit
their respective Memoranda, which they subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it
is clear that questions of fact, which boil down to the issue of the credibility of witnesses, are also raised.
It is the rule in this jurisdiction that appellate courts will not disturb the trial court's findings as to the
credibility of witnesses, the latter court having heard the witnesses and having had the opportunity to
observe closely their deportment and manner of testifying, unless the trial court had plainly overlooked
15
facts of substance or value which, if considered, might affect the result of the case.
Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any
fact of substance or values which could alter the result of the case.
Equally settled is the rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to analyze or weigh all
over again the evidence introduced by the parties before the lower court. There are, however, recognized
16
exceptions to this rule. Thus, inMedina vs. Asistio, Jr., this Court took the time, again, to enumerate
these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4)
When the judgment is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca,
L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of both
appellate and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401
[1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v.
Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593
[1986]); (8) When the findings of fact are conclusions without citation of specific evidence
on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in
the petitioners main and reply briefs are not disputed by the respondents (Ibid.,); and (10)
The finding of fact of the Court of Appeals is premised on the supposed absence of
evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA
242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions in
this case. Consequently, the factual findings of the trial and appellate courts must be respected.

And now to the legal issue.

17

The existing rule is that a breach of promise to marry per se is not an actionable wrong. Congress
deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so.
The reason therefor is set forth in the report of the Senate Committees on the Proposed Civil Code, from
which We quote:
The elimination of this chapter is proposed. That breach of promise to marry is not
18
actionable has been definitely decided in the case of De Jesus vs. Syquia. The history
of breach of promise suits in the United States and in England has shown that no other
action lends itself more readily to abuse by designing women and unscrupulous men. It is
this experience which has led to the abolition of rights of action in the so-called Heart
19
Balm suits in many of the American states. . . .
This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the
concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the
20
statute books.
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the statutes,
which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it necessary, in the
interest of justice, to incorporate in the proposed Civil Code the following rule:
Art. 23. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
An example will illustrate the purview of the foregoing norm: "A" seduces the nineteenyear old daughter of "X". A promise of marriage either has not been made, or can not be
proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl
is above nineteen years of age. Neither can any civil action for breach of promise of
marriage be filed. Therefore, though the grievous moral wrong has been committed, and
though the girl and family have suffered incalculable moral damage, she and her parents
cannot bring action for damages. But under the proposed article, she and her parents
would have such a right of action.
Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible for
21
human foresight to provide for specifically in the statutes.
Article 2176 of the Civil Code, which defines a quasi-delict thus:
Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasidelict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an

Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it
includes not only negligence, but international criminal acts as well such as assault and battery,
false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned
by the Commission responsible for drafting the New Civil Code, intentional and malicious acts,
with certain exceptions, are to be governed by the Revised Penal Code while negligent acts or
22
omissions are to be covered by Article 2176 of the Civil Code. In between these opposite
spectrums are injurious acts which, in the absence of Article 21, would have been beyond
redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and
20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has
23
become much more supple and adaptable than the Anglo-American law on torts.
In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a
man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto
him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her
consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such
promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and
reputation which followed thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public policy.
In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive
protestations of love for and promise to marry plaintiff that made her surrender her virtue and womanhood
to him and to live with him on the honest and sincere belief that he would keep said promise, and it was
likewise these fraud and deception on appellant's part that made plaintiff's parents agree to their
24
daughter's living-in with him preparatory to their supposed marriage." In short, the private respondent
surrendered her virginity, the cherished possession of every single Filipina, not because of lust but
because of moral seduction the kind illustrated by the Code Commission in its example earlier
adverted to. The petitioner could not be held liable for criminal seduction punished under either Article
337 or Article 338 of the Revised Penal Code because the private respondent was above eighteen (18)
years of age at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry
25
where the woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals, this Court
denied recovery of damages to the woman because:
. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant who was
around thirty-six (36) years of age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be when she became intimate with
petitioner, then a mere apprentice pilot, but, also, because the court of first instance
found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her
love" for him, she "wanted to bind" him by having a fruit of their engagement even before
they had the benefit of clergy.
26

In Tanjanco vs. Court of Appeals, while this Court likewise hinted at possible recovery if there had been
moral seduction, recovery was eventually denied because We were not convinced that such seduction
existed. The following enlightening disquisition and conclusion were made in the said case:
The Court of Appeals seem to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who had been seduced. The
essential feature is seduction, that in law is more than mere sexual intercourse, or a
breach of a promise of marriage; it connotes essentially the idea of deceit, enticement,
superior power or abuse of confidence on the part of the seducer to which the woman
has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that

To constitute seduction there must in all cases be some sufficient
promise or inducement and the woman must yield because of the
promise or other inducement. If she consents merely from carnal lust and
the intercourse is from mutual desire, there is no seduction (43 Cent.
Dig. tit. Seduction, par. 56) She must be induced to depart from the path
of virtue by the use of some species of arts, persuasions and wiles,
which are calculated to have and do have that effect, and which result in
her person to ultimately submitting her person to the sexual embraces of
her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the enticement,
persuasion or deception is the essence of the injury; and a mere proof of
intercourse is insufficient to warrant a recovery.
Accordingly it is not seduction where the willingness arises out of sexual
desire of curiosity of the female, and the defendant merely affords her
the needed opportunity for the commission of the act. It has been
emphasized that to allow a recovery in all such cases would tend to the
demoralization of the female sex, and would be a reward for unchastity
by which a class of adventuresses would be swift to profit. (47 Am. Jur.
662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand out that for one whole year, from
1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual
relations with appellant, with repeated acts of intercourse. Such conduct is incompatible
with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had
the appellant been deceived, had she surrendered exclusively because of the deceit,
artful persuasions and wiles of the defendant, she would not have again yielded to his
embraces, much less for one year, without exacting early fulfillment of the alleged
promises of marriage, and would have cut short all sexual relations upon finding that
defendant did not intend to fulfill his defendant did not intend to fulfill his promise. Hence,
we conclude that no case is made under article 21 of the Civil Code, and no other cause
of action being alleged, no error was committed by the Court of First Instance in
27
dismissing the complaint.
28

In his annotations on the Civil Code, Associate Justice Edgardo L. Paras, who recently retired from this
Court, opined that in a breach of promise to marry where there had been carnal knowledge, moral
damages may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual
lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs.
Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29,
1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the
carnal knowledge, there is a chance that there was criminal or moral seduction, hence
recovery of moral damages will prosper. If it be the other way around, there can be no
recovery of moral damages, because here mutual lust has intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for the wedding
presentations (See Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino

29

is also of the same persuasion:

30

It is submitted that the rule in Batarra vs. Marcos, still subsists, notwithstanding the
31
incorporation of the present article in the Code. The example given by the Code
Commission is correct, if there wasseduction, not necessarily in the legal sense, but in
the vulgar sense of deception. But when the sexual act is accomplished without any
deceit or qualifying circumstance of abuse of authority or influence, but the woman,
already of age, has knowingly given herself to a man, it cannot be said that there is an
injury which can be the basis for indemnity.
But so long as there is fraud, which is characterized by willfulness (sic), the action lies.
The court, however, must weigh the degree of fraud, if it is sufficient to deceive the
woman under the circumstances, because an act which would deceive a girl sixteen
years of age may not constitute deceit as to an experienced woman thirty years of age.
But so long as there is a wrongful act and a resulting injury, there should be civil liability,
even if the act is not punishable under the criminal law and there should have been an
acquittal or dismissal of the criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition to the effect that granting, for
argument's sake, that he did promise to marry the private respondent, the latter is nevertheless also at
fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the Civil
32
Code and the doctrine laid down in Batarra vs. Marcos, the private respondent cannot recover
damages from the petitioner. The latter even goes as far as stating that if the private respondent had
33
"sustained any injury or damage in their relationship, it is primarily because of her own doing, for:
. . . She is also interested in the petitioner as the latter will become a doctor sooner or
later. Take notice that she is a plain high school graduate and a mere employee . . .
(Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without
doubt, is in need of a man who can give her economic security. Her family is in dire need
of financial assistance. (TSN, pp. 51-53, May 18, 1988). And this predicament prompted
34
her to accept a proposition that may have been offered by the petitioner.
These statements reveal the true character and motive of the petitioner. It is clear that he harbors a
condescending, if not sarcastic, regard for the private respondent on account of the latter's ignoble birth,
inferior educational background, poverty and, as perceived by him, dishonorable employment. Obviously
then, from the very beginning, he was not at all moved by good faith and an honest motive. Marrying with
a woman so circumstances could not have even remotely occurred to him. Thus, his profession of love
and promise to marry were empty words directly intended to fool, dupe, entice, beguile and deceive the
poor woman into believing that indeed, he loved her and would want her to be his life's partner. His was
nothing but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his
proffer of love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner
clearly violated the Filipino's concept of morality and brazenly defied the traditional respect Filipinos have
for their women. It can even be said that the petitioner committed such deplorable acts in blatant
disregard of Article 19 of the Civil Code which directs every person to act with justice, give everyone his
due and observe honesty and good faith in the exercise of his rights and in the performance of his
obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the private respondent may not have
been impelled by the purest of intentions, she eventually submitted to the petitioner in sexual congress

not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms of conscience
about the entire episode for as soon as she found out that the petitioner was not going to marry her after
all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault;
35
in a similar offense or crime; equal in guilt or in legal fault." At most, it could be conceded that she is
merely in delicto.
Equity often interferes for the relief of the less guilty of the parties, where his
transgression has been brought about by the imposition of undue influence of the party
on whom the burden of the original wrong principally rests, or where his consent to the
transaction was itself procured by
36
fraud.
In Mangayao vs. Lasud,

37

We declared:

Appellants likewise stress that both parties being at fault, there should be no action by
one against the other (Art. 1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both sides is, more or less, equivalent. It
does not apply where one party is literate or intelligent and the other one is not. (c.f.
Bough vs. Cantiveros, 40 Phil. 209).
We should stress, however, that while We find for the private respondent, let it not be said that this Court
condones the deplorable behavior of her parents in letting her and the petitioner stay together in the same
room in their house after giving approval to their marriage. It is the solemn duty of parents to protect the
honor of their daughters and infuse upon them the higher values of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby
DENIED, with costs against the petitioner.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Gutierrez, Jr., J., is on leave.

# Footnotes
1 Annex "G" of Petition; Rollo, 53-62. Per Associate Justice Alicia V. Sempio-Diy,
concurred in by Associate Justices Jose C. Campos, Jr. and Jaime M. Lantin.
2 Annex "A" of Petition; Rollo, 20-22.
3 Annex "B" of Petition; Rollo, 23-24.
4 Annex "C", Id.; Id., 25.
5 Annex "D" of Petition; Rollo, 26-33. Per Judge Antonio M. Belen.
6 Id., 33.
7 Rollo, 31-33.

8 Rollo, 54-55.
9 Exhibit "E" of Petition; Rollo, 34-50.
10 Annex "G", Id.; Id.; 53-62.
11 Rollo, 58-59.
12 Rollo, 61.
13 Id., 11.
14 In support thereof, he cites Despi vs. Aliosco, [CA] 64 O.G.; Wassmer vs. Velez, 12
SCRA 648 [1964]; Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]; and Estopa
vs. Piansay, 109 Phil. 640 [1960].
15 People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92 SCRA 465 [1979];
People vs. Abejuela, 92 SCRA 503 [1979]; People vs. Arciaga, 98 SCRA 1 [1980];
People vs. Marzan, 128 SCRA 203 [1984]; People vs. Alcid, 135 SCRA 280 [1985];
People vs. Sanchez, 199 SCRA 414 [1991]; and People vs. Atilano, 204 SCRA 278
[1991].
16 191 SCRA 218 [1990], footnote omitted; see also, Remalante vs. Tibe, 158 SCRA 138
[1988].
17 Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]; Estopa vs. Piansay, 109 Phil.
640 [1960].
18 58 Phil. 866 [1933].
19 Congressional Record, vol. IV, No. 79, Thursday, 14 May 1949, 2352.
20 Philippine National Bank vs. Court of Appeals, 83 SCRA 237 [1978].
21 Report of the Code Commission, 39-40. This passage is quoted, except for the last
paragraph, in Tanjanco vs. Court of Appeals, 18 SCRA 994, 996-997 [1966]; the Article
23 referred to is now Article 21.
22 Report of the Code Commission, 161-162.
23 TOLENTINO, A.M., Commentaries and Jurisprudence on the Civil Code of the
Philippines, vol. 1, 1985 ed., 72.
24. Rollo, 61.
25. Supra.
26. Supra.
27 At pages 997-999.
28 Civil Code of the Philippines Annotated, vol. I, Eleventh ed., (1984), 91-92.

29 Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985
ed., 76-77, omitting footnotes.
30 7 Phil. 156 [1906].
31 Article 21.
32 Supra.
33 Rollo, 16.
34 Id., 16-17.
35 Black's Law Dictionary, Fifth ed., 1004.
36 37 Am Jur 2d, 401, omitting citations.
37 11 SCRA 158 [1964]; see also, Liguez vs. Court of Appeals 102 Phil. 577 [1975].

Globe Mackay Cable and Radio Corporation v. Court of Appeals

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81262 August 25, 1989
GLOBE MACKAY CABLE AND RADIO CORP., and HERBERT C. HENDRY, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and RESTITUTO M. TOBIAS, respondents.
Atencia & Arias Law Offices for petitioners.
Romulo C. Felizmena for private respondent.

CORTES, J.:
Private respondent Restituto M. Tobias was employed by petitioner Globe Mackay Cable and Radio
Corporation (GLOBE MACKAY) in a dual capacity as a purchasing agent and administrative assistant to
the engineering operations manager. In 1972, GLOBE MACKAY discovered fictitious purchases and
other fraudulent transactions for which it lost several thousands of pesos.
According to private respondent it was he who actually discovered the anomalies and reported them on
November 10, 1972 to his immediate superior Eduardo T. Ferraren and to petitioner Herbert C. Hendry
who was then the Executive Vice-President and General Manager of GLOBE MACKAY.
On November 11, 1972, one day after private respondent Tobias made the report, petitioner Hendry
confronted him by stating that he was the number one suspect, and ordered him to take a one week
forced leave, not to communicate with the office, to leave his table drawers open, and to leave the office
keys.
On November 20, 1972, when private respondent Tobias returned to work after the forced leave,
petitioner Hendry went up to him and called him a "crook" and a "swindler." Tobias was then ordered to
take a lie detector test. He was also instructed to submit specimen of his handwriting, signature, and
initials for examination by the police investigators to determine his complicity in the anomalies.
On December 6,1972, the Manila police investigators submitted a laboratory crime report (Exh. "A")
clearing private respondent of participation in the anomalies.
Not satisfied with the police report, petitioners hired a private investigator, retired Col. Jose G. Fernandez,
who on December 10, 1972, submitted a report (Exh. "2") finding Tobias guilty. This report however
expressly stated that further investigation was still to be conducted.
Nevertheless, on December 12, 1972, petitioner Hendry issued a memorandum suspending Tobias from
work preparatory to the filing of criminal charges against him.

On December 19,1972, Lt. Dioscoro V. Tagle, Metro Manila Police Chief Document Examiner, after
investigating other documents pertaining to the alleged anomalous transactions, submitted a second
laboratory crime report (Exh. "B") reiterating his previous finding that the handwritings, signatures, and
initials appearing in the checks and other documents involved in the fraudulent transactions were not
those of Tobias. The lie detector tests conducted on Tobias also yielded negative results.
Notwithstanding the two police reports exculpating Tobias from the anomalies and the fact that the report
of the private investigator, was, by its own terms, not yet complete, petitioners filed with the City Fiscal of
Manila a complaint for estafa through falsification of commercial documents, later amended to just estafa.
Subsequently five other criminal complaints were filed against Tobias, four of which were for estafa
through Falsification of commercial document while the fifth was for of Article 290 of' the Revised Penal
Code (Discovering Secrets Through Seizure of Correspondence).lwph1.t Two of these complaints
were refiled with the Judge Advocate General's Office, which however, remanded them to the fiscal's
office. All of the six criminal complaints were dismissed by the fiscal. Petitioners appealed four of the
fiscal's resolutions dismissing the criminal complaints with the Secretary of Justice, who, however,
affirmed their dismissal.
In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from petitioners that his
employment has been terminated effective December 13, 1972. Whereupon, Tobias filed a complaint for
illegal dismissal. The labor arbiter dismissed the complaint. On appeal, the National Labor Relations
Commission (NLRC) reversed the labor arbiter's decision. However, the Secretary of Labor, acting on
petitioners' appeal from the NLRC ruling, reinstated the labor arbiter's decision. Tobias appealed the
Secretary of Labor's order with the Office of the President. During the pendency of the appeal with said
office, petitioners and private respondent Tobias entered into a compromise agreement regarding the
latter's complaint for illegal dismissal.
Unemployed, Tobias sought employment with the Republic Telephone Company (RETELCO). However,
petitioner Hendry, without being asked by RETELCO, wrote a letter to the latter stating that Tobias was
dismissed by GLOBE MACKAY due to dishonesty.
Private respondent Tobias filed a civil case for damages anchored on alleged unlawful, malicious,
oppressive, and abusive acts of petitioners. Petitioner Hendry, claiming illness, did not testify during the
hearings. The Regional Trial Court (RTC) of Manila, Branch IX, through Judge Manuel T. Reyes rendered
judgment in favor of private respondent by ordering petitioners to pay him eighty thousand pesos
(P80,000.00) as actual damages, two hundred thousand pesos (P200,000.00) as moral damages, twenty
thousand pesos (P20,000.00) as exemplary damages, thirty thousand pesos (P30,000.00) as attorney's
fees, and costs. Petitioners appealed the RTC decision to the Court of Appeals. On the other hand,
Tobias appealed as to the amount of damages. However, the Court of Appeals, an a decision dated
August 31, 1987 affirmed the RTC decision in toto. Petitioners' motion for reconsideration having been
denied, the instant petition for review on certiorari was filed.
The main issue in this case is whether or not petitioners are liable for damages to private respondent.
Petitioners contend that they could not be made liable for damages in the lawful exercise of their right to
dismiss private respondent.
On the other hand, private respondent contends that because of petitioners' abusive manner in
dismissing him as well as for the inhuman treatment he got from them, the Petitioners must indemnify him
for the damage that he had suffered.
One of the more notable innovations of the New Civil Code is the codification of "some basic principles
that are to be observed for the rightful relationship between human beings and for the stability of the
social order." [REPORT ON THE CODE COMMISSION ON THE PROPOSED CIVIL CODE OF THE
PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect of the old Code which

merely stated the effects of the law, but failed to draw out its spirit, incorporated certain fundamental
precepts which were "designed to indicate certain norms that spring from the fountain of good
conscience" and which were also meant to serve as "guides for human conduct [that] should run as
golden threads through society, to the end that law may approach its supreme ideal, which is the sway
and dominance of justice" (Id.) Foremost among these principles is that pronounced in Article 19 which
provides:
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
This article, known to contain what is commonly referred to as the principle of abuse of rights, sets certain
standards which must be observed not only in the exercise of one's rights but also in the performance of
one's duties. These standards are the following: to act with justice; to give everyone his due; and to
observe honesty and good faith. The law, therefore, recognizes a primordial limitation on all rights; that in
their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by
itself legal because recognized or granted by law as such, may nevertheless become the source of some
illegality. When a right is exercised in a manner which does not conform with the norms enshrined in
Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer
must be held responsible. But while Article 19 lays down a rule of conduct for the government of human
relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally,
an action for damages under either Article 20 or Article 21 would be proper.
Article 20, which pertains to damage arising from a violation of law, provides that:
Art. 20. Every person who contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
However, in the case at bar, petitioners claim that they did not violate any provision of law since they
were merely exercising their legal right to dismiss private respondent. This does not, however, leave
private respondent with no relief because Article 21 of the Civil Code provides that:
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
This article, adopted to remedy the "countless gaps in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and moral injury" [Id.] should
"vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to provide for specifically in the statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L27155, May 18,1978, 83 SCRA 237, 247].
In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which
can be applied. While the Court has not hesitated to apply Article 19 whether the legal and factual
circumstances called for its application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186
(1956); PNB v. CA, supra; Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December
28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558, July 31,1981,106 SCRA 391; United General
Industries, Inc, v. Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA, G.R. No. 50911,
August 21, 1987, 153 SCRA 183] the question of whether or not the principle of abuse of rights has been
violated resulting in damages under Article 20 or Article 21 or other applicable provision of law, depends
on the circumstances of each case. And in the instant case, the Court, after examining the record and
considering certain significant circumstances, finds that all petitioners have indeed abused the right that
they invoke, causing damage to private respondent and for which the latter must now be indemnified.

The trial court made a finding that notwithstanding the fact that it was private respondent Tobias who
reported the possible existence of anomalous transactions, petitioner Hendry "showed belligerence and
told plaintiff (private respondent herein) that he was the number one suspect and to take a one week
vacation leave, not to communicate with the office, to leave his table drawers open, and to leave his keys
to said defendant (petitioner Hendry)" [RTC Decision, p. 2; Rollo, p. 232]. This, petitioners do not dispute.
But regardless of whether or not it was private respondent Tobias who reported the anomalies to
petitioners, the latter's reaction towards the former upon uncovering the anomalies was less than civil. An
employer who harbors suspicions that an employee has committed dishonesty might be justified in taking
the appropriate action such as ordering an investigation and directing the employee to go on a leave.
Firmness and the resolve to uncover the truth would also be expected from such employer. But the highhanded treatment accorded Tobias by petitioners was certainly uncalled for. And this reprehensible
attitude of petitioners was to continue when private respondent returned to work on November 20, 1972
after his one week forced leave. Upon reporting for work, Tobias was confronted by Hendry who said.
"Tobby, you are the crook and swindler in this company." Considering that the first report made by the
police investigators was submitted only on December 10, 1972 [See Exh. A] the statement made by
petitioner Hendry was baseless. The imputation of guilt without basis and the pattern of harassment
during the investigations of Tobias transgress the standards of human conduct set forth in Article 19 of
the Civil Code. The Court has already ruled that the right of the employer to dismiss an employee should
not be confused with the manner in which the right is exercised and the effects flowing therefrom. If the
dismissal is done abusively, then the employer is liable for damages to the employee [Quisaba v. Sta.
Ines-Melale Veneer and Plywood Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA 771; See
also Philippine Refining Co., Inc. v. Garcia, G.R. No. L-21871, September 27,1966, 18 SCRA 107] Under
the circumstances of the instant case, the petitioners clearly failed to exercise in a legitimate manner their
right to dismiss Tobias, giving the latter the right to recover damages under Article 19 in relation to Article
21 of the Civil Code.
But petitioners were not content with just dismissing Tobias. Several other tortious acts were committed
by petitioners against Tobias after the latter's termination from work. Towards the latter part of January,
1973, after the filing of the first of six criminal complaints against Tobias, the latter talked to Hendry to
protest the actions taken against him. In response, Hendry cut short Tobias' protestations by telling him to
just confess or else the company would file a hundred more cases against him until he landed in jail.
Hendry added that, "You Filipinos cannot be trusted." The threat unmasked petitioner's bad faith in the
various actions taken against Tobias. On the other hand, the scornful remark about Filipinos as well as
Hendry's earlier statements about Tobias being a "crook" and "swindler" are clear violations of 'Tobias'
personal dignity [See Article 26, Civil Code].
The next tortious act committed by petitioners was the writing of a letter to RETELCO sometime in
October 1974, stating that Tobias had been dismissed by GLOBE MACKAY due to dishonesty. Because
of the letter, Tobias failed to gain employment with RETELCO and as a result of which, Tobias remained
unemployed for a longer period of time. For this further damage suffered by Tobias, petitioners must
likewise be held liable for damages consistent with Article 2176 of the Civil Code. Petitioners, however,
contend that they have a "moral, if not legal, duty to forewarn other employers of the kind of employee the
plaintiff (private respondent herein) was." [Petition, p. 14; Rollo, p. 15]. Petitioners further claim that "it is
the accepted moral and societal obligation of every man to advise or warn his fellowmen of any threat or
danger to the latter's life, honor or property. And this includes warning one's brethren of the possible
dangers involved in dealing with, or accepting into confidence, a man whose honesty and integrity is
suspect" [Id.]. These arguments, rather than justify petitioners' act, reveal a seeming obsession to prevent
Tobias from getting a job, even after almost two years from the time Tobias was dismissed.
Finally, there is the matter of the filing by petitioners of six criminal complaints against Tobias. Petitioners
contend that there is no case against them for malicious prosecution and that they cannot be "penalized
for exercising their right and prerogative of seeking justice by filing criminal complaints against an
employee who was their principal suspect in the commission of forgeries and in the perpetration of
anomalous transactions which defrauded them of substantial sums of money" [Petition, p. 10, Rollo, p.
11].

While sound principles of justice and public policy dictate that persons shall have free resort to the courts
for redress of wrongs and vindication of their rights [Buenaventura v. Sto. Domingo, 103 Phil. 239 (1958)],
the right to institute criminal prosecutions can not be exercised maliciously and in bad faith [Ventura v.
Bernabe, G.R. No. L-26760, April 30, 1971, 38 SCRA 5871.] Hence, in Yutuk V. Manila Electric Co., G.R.
No. L-13016, May 31, 1961, 2 SCRA 337, the Court held that the right to file criminal complaints should
not be used as a weapon to force an alleged debtor to pay an indebtedness. To do so would be a clear
perversion of the function of the criminal processes and of the courts of justice. And in Hawpia CA, G.R.
No. L-20047, June 30, 1967. 20 SCRA 536 the Court upheld the judgment against the petitioner for actual
and moral damages and attorney's fees after making a finding that petitioner, with persistence, filed at
least six criminal complaints against respondent, all of which were dismissed.
To constitute malicious prosecution, there must be proof that the prosecution was prompted by a design
to vex and humiliate a person and that it was initiated deliberately by the defendant knowing that the
charges were false and groundless [Manila Gas Corporation v. CA, G.R. No. L-44190, October 30,1980,
100 SCRA 602]. Concededly, the filing of a suit by itself, does not render a person liable for malicious
prosecution [Inhelder Corporation v. CA, G.R. No. 52358, May 301983122 SCRA 576]. The mere
dismissal by the fiscal of the criminal complaint is not a ground for an award of damages for malicious
prosecution if there is no competent evidence to show that the complainant had acted in bad faith [Sison
v. David, G.R. No. L-11268, January 28,1961, 1 SCRA 60].
In the instant case, however, the trial court made a finding that petitioners acted in bad faith in filing the
criminal complaints against Tobias, observing that:
xxx
Defendants (petitioners herein) filed with the Fiscal's Office of Manila a total of six (6)
criminal cases, five (5) of which were for estafa thru falsification of commercial document
and one for violation of Art. 290 of the Revised Penal Code "discovering secrets thru
seizure of correspondence," and all were dismissed for insufficiency or lack of evidence."
The dismissal of four (4) of the cases was appealed to the Ministry of Justice, but said
Ministry invariably sustained the dismissal of the cases. As above adverted to, two of
these cases were refiled with the Judge Advocate General's Office of the Armed Forces
of the Philippines to railroad plaintiffs arrest and detention in the military stockade, but
this was frustrated by a presidential decree transferring criminal cases involving civilians
to the civil courts.
xxx
To be sure, when despite the two (2) police reports embodying the findings of Lt.
Dioscoro Tagle, Chief Document Examiner of the Manila Police Department, clearing
plaintiff of participation or involvement in the fraudulent transactions complained of,
despite the negative results of the lie detector tests which defendants compelled plaintiff
to undergo, and although the police investigation was "still under follow-up and a
supplementary report will be submitted after all the evidence has been gathered,"
defendants hastily filed six (6) criminal cases with the city Fiscal's Office of Manila, five
(5) for estafa thru falsification of commercial document and one (1) for violation of Art.
290 of the Revised Penal Code, so much so that as was to be expected, all six (6) cases
were dismissed, with one of the investigating fiscals, Asst. Fiscal de Guia, commenting in
one case that, "Indeed, the haphazard way this case was investigated is evident. Evident
likewise is the flurry and haste in the filing of this case against respondent Tobias," there
can be no mistaking that defendants would not but be motivated by malicious and
unlawful intent to harass, oppress, and cause damage to plaintiff.
xxx

[RTC Decision, pp. 5-6; Rollo, pp. 235-236].

In addition to the observations made by the trial court, the Court finds it significant that the criminal
complaints were filed during the pendency of the illegal dismissal case filed by Tobias against petitioners.
This explains the haste in which the complaints were filed, which the trial court earlier noted. But
petitioners, to prove their good faith, point to the fact that only six complaints were filed against Tobias
when they could have allegedly filed one hundred cases, considering the number of anomalous
transactions committed against GLOBE MACKAY. However, petitioners' good faith is belied by the threat
made by Hendry after the filing of the first complaint that one hundred more cases would be filed against
Tobias. In effect, the possible filing of one hundred more cases was made to hang like the sword of
Damocles over the head of Tobias. In fine, considering the haste in which the criminal complaints were
filed, the fact that they were filed during the pendency of the illegal dismissal case against petitioners, the
threat made by Hendry, the fact that the cases were filed notwithstanding the two police reports
exculpating Tobias from involvement in the anomalies committed against GLOBE MACKAY, coupled by
the eventual dismissal of all the cases, the Court is led into no other conclusion than that petitioners were
motivated by malicious intent in filing the six criminal complaints against Tobias.
Petitioners next contend that the award of damages was excessive. In the complaint filed against
petitioners, Tobias prayed for the following: one hundred thousand pesos (P100,000.00) as actual
damages; fifty thousand pesos (P50,000.00) as exemplary damages; eight hundred thousand pesos
(P800,000.00) as moral damages; fifty thousand pesos (P50,000.00) as attorney's fees; and costs. The
trial court, after making a computation of the damages incurred by Tobias [See RTC Decision, pp. 7-8;
Rollo, pp. 154-1551, awarded him the following: eighty thousand pesos (P80,000.00) as actual damages;
two hundred thousand pesos (P200,000.00) as moral damages; twenty thousand pesos (P20,000.00) as
exemplary damages; thirty thousand pesos (P30,000.00) as attorney's fees; and, costs. It must be
underscored that petitioners have been guilty of committing several actionable tortious acts, i.e., the
abusive manner in which they dismissed Tobias from work including the baseless imputation of guilt and
the harassment during the investigations; the defamatory language heaped on Tobias as well as the
scornful remark on Filipinos; the poison letter sent to RETELCO which resulted in Tobias' loss of possible
employment; and, the malicious filing of the criminal complaints. Considering the extent of the damage
wrought on Tobias, the Court finds that, contrary to petitioners' contention, the amount of damages
awarded to Tobias was reasonable under the circumstances.
Yet, petitioners still insist that the award of damages was improper, invoking the principle of damnum
absqueinjuria. It is argued that "[t]he only probable actual damage that plaintiff (private respondent herein)
could have suffered was a direct result of his having been dismissed from his employment, which was a
valid and legal act of the defendants-appellants (petitioners herein).lwph1.t " [Petition, p. 17; Rollo, p.
18].
According to the principle of damnum absque injuria, damage or loss which does not constitute a violation
of a legal right or amount to a legal wrong is not actionable [Escano v. CA, G.R. No. L-47207, September
25, 1980, 100 SCRA 197; See also Gilchrist v. Cuddy 29 Phil, 542 (1915); The Board of Liquidators v.
Kalaw, G.R. No. L-18805, August 14, 1967, 20 SCRA 987]. This principle finds no application in this case.
It bears repeating that even granting that petitioners might have had the right to dismiss Tobias from
work, the abusive manner in which that right was exercised amounted to a legal wrong for which
petitioners must now be held liable. Moreover, the damage incurred by Tobias was not only in connection
with the abusive manner in which he was dismissed but was also the result of several other quasidelictual acts committed by petitioners.
Petitioners next question the award of moral damages. However, the Court has already ruled in Wassmer
v. Velez, G.R. No. L-20089, December 26, 1964, 12 SCRA 648, 653, that [p]er express provision of
Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article
21 of said Code." Hence, the Court of Appeals committed no error in awarding moral damages to Tobias.

Lastly, the award of exemplary damages is impugned by petitioners. Although Article 2231 of the Civil
Code provides that "[i]n quasi-delicts, exemplary damages may be granted if the defendant acted with
gross negligence," the Court, in Zulueta v. Pan American World Airways, Inc., G.R. No. L- 28589, January
8, 1973, 49 SCRA 1, ruled that if gross negligence warrants the award of exemplary damages, with more
reason is its imposition justified when the act performed is deliberate, malicious and tainted with bad faith.
As in the Zuluetacase, the nature of the wrongful acts shown to have been committed by petitioners
against Tobias is sufficient basis for the award of exemplary damages to the latter.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals in CA-G.R. CV
No. 09055 is AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., took no part.

University of the East vs Jader

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 132344

February 17, 2000

UNIVERSITY OF THE EAST, petitioner,

vs.
ROMEO A. JADER, respondent.
YNARES-SANTIAGO, J.:
May an educational institution be held liable for damages for misleading a student into believing that the
latter had satisfied all the requirements for graduation when such is not the case? This is the issue in the
instant petition for review premised on the following undisputed facts as summarized by the trial court and
1
adopted by the Court of Appeals (CA), to wit:
Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. In the first
semester of his last year (School year 1987-1988), he failed to take the regular final examination
in Practice Court I for which he was given an incomplete grade (Exhibits "2", also Exhibit "H"). He
enrolled for the second semester as fourth year law student (Exhibit "A") and on February 1, 1988
he filed an application for the removal of the incomplete grade given him by Professor Carlos
Ortega (Exhibits "H-2", also Exhibit "2") which was approved by Dean Celedonio Tiongson after
payment of the required fee. He took the examination on March 28, 1988. On May 30, 1988,
Professor Carlos Ortega submitted his grade. It was a grade of five (5). (Exhibits "H-4", also
Exhibits "2-L", "2-N").1wphi1.nt
In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate on
who among the fourth year students should be allowed to graduate. The plaintiff's name
appeared in the Tentative List of Candidates for graduation for the Degree of Bachelor of Laws
(LL.B) as of Second Semester (1987-1988) with the following annotation:
JADER ROMEO A.
Def. Conflict of Laws x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit transcript with
S.O. (Exhibits "3", "3-C-1", "3-C-2").
The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of Laws was
scheduled on the 16th of April 1988 at 3:00 o'clock in the afternoon, and in the invitation for that
occasion the name of the plaintiff appeared as one of the candidates. (Exhibits "B", "B-6", "B-6A"). At the foot of the list of the names of the candidates there appeared however the following
annotation:
This is a tentative list Degrees will be conferred upon these candidates who satisfactorily
complete requirements as stated in the University Bulletin and as approved of the
Department of Education, Culture and Sports (Exhibit "B-7-A").
The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto
Campus, during the program of which he went up the stage when his name was called, escorted

by her (sic) mother and his eldest brother who assisted in placing the Hood, and his Tassel was
turned from left to right, and he was thereafter handed by Dean Celedonio a rolled white sheet of
paper symbolical of the Law Diploma. His relatives took pictures of the occasion (Exhibits "C" to
"C-6", "D-3" to "D-11").
He tendered a blow-out that evening which was attended by neighbors, friends and relatives who
wished him good luck in the forthcoming bar examination. There were pictures taken too during
the blow-out (Exhibits "D" to "D-1").
He thereafter prepared himself for the bar examination. He took a leave of absence without pay
from his job from April 20, 1988 to September 30, 1988 (Exhibit "G") and enrolled at the pre-bar
review class in Far Eastern University. (Exhibits "F" to "F-2"). Having learned of the deficiency he
2
dropped his review class and was not able to take the bar examination.
Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental
anguish, serious anxiety, besmirched reputation, wounded feelings and sleepless nights when he was not
able to take the 1988 bar examinations arising from the latter's negligence. He prayed for an award of
moral and exemplary damages, unrealized income, attorney's fees, and costs of suit.
In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent to
believe that he completed the requirements for a Bachelor of Laws degree when his name was included
in the tentative list of graduating students. After trial, the lower court rendered judgment as follows:
WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the plaintiff and
against the defendant ordering the latter to pay plaintiff the sum of THIRTY FIVE THOUSAND
FOUR HUNDRED SEVENTY PESOS (P35,470.00) with legal rate of interest from the filing of the
complaint until fully paid, the amount of FIVE THOUSAND PESOS (P5,000.00) as attorney's fees
and the cost of suit.
Defendant's counterclaim is, for lack of merit, hereby dismissed.
SO ORDERED.

which on appeal by both parties was affirmed by the Court of Appeals (CA) with modification. The
dispositive portion of the CA decision reads:
WHEREFORE, in the light of the foregoing, the lower Court's Decision is hereby AFFIRMED with
the MODIFICATION that defendant-appellee, in addition to the sum adjudged by the lower court
in favor of plaintiff-appellant, is also ORDERED to pay plaintiff-appellant the amount of FIFTY
THOUSAND (P50,000.00) PESOS for moral damages. Costs against defendant-appellee.
SO ORDERED.

Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this Court on a
petition for review under Rule 45 of the Rules of Court, arguing that it has no liability to respondent
Romeo A. Jader, considering that the proximate and immediate cause of the alleged damages incurred
by the latter arose out of his own negligence in not verifying from the professor concerned the result of his
removal exam.
The petition lacks merit.
When a student is enrolled in any educational or learning institution, a contract of education is entered
into between said institution and the student. The professors, teachers or instructors hired by the school

are considered merely as agents and administrators tasked to perform the school's commitment under
the contract. Since the contracting parties are the school and the student, the latter is not duty-bound to
deal with the former's agents, such as the professors with respect to the status or result of his grades,
although nothing prevents either professors or students from sharing with each other such information.
The Court takes judicial notice of the traditional practice in educational institutions wherein the professor
directly furnishes his/her students their grades. It is the contractual obligation of the school to timely
inform and furnish sufficient notice and information to each and every student as to whether he or she
had already complied with all the requirements for the conferment of a degree or whether they would be
included among those who will graduate. Although commencement exercises are but a formal ceremony,
it nonetheless is not an ordinary occasion, since such ceremony is the educational institution's way of
announcing to the whole world that the students included in the list of those who will be conferred a
degree during the baccalaureate ceremony have satisfied all the requirements for such degree. Prior or
subsequent to the ceremony, the school has the obligation to promptly inform the student of any problem
involving the latter's grades and performance and also most importantly, of the procedures for remedying
the same.
Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a
time when he had already commenced preparing for the bar exams, cannot be said to have acted in good
faith. Absence of good faith must be sufficiently established for a successful prosecution by the aggrieved
party in a suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an honest
intention to abstain from taking undue advantage of another, even though the forms and technicalities of
the law, together with the absence of all information or belief of facts, would render the transaction
5
unconscientious. It is the school that has access to those information and it is only the school that can
compel its professors to act and comply with its rules, regulations and policies with respect to the
computation and the prompt submission of grades. Students do not exercise control, much less influence,
over the way an educational institution should run its affairs, particularly in disciplining its professors and
teachers and ensuring their compliance with the school's rules and orders. Being the party that hired
them, it is the school that exercises general supervision and exclusive control over the professors with
respect to the submission of reports involving the students' standing. Exclusive control means that no
6
other person or entity had any control over the instrumentality which caused the damage or injury.
The college dean is the senior officer responsible for the operation of an academic program, enforcement
7
of rules and regulations, and the supervision of faculty and student services. He must see to it that his
own professors and teachers, regardless of their status or position outside of the university, must comply
with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the
school, for instance by not promptly submitting a student's grade, is not only imputable to the professor
but is an act of the school, being his employer.
Considering further, that the institution of learning involved herein is a university which is engaged in legal
education, it should have practiced what it inculcates in its students, more specifically the principle of
good dealings enshrined in Articles 19 and 20 of the Civil Code which states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold
number of moral wrongs which is impossible for human foresight to provide specifically in statutory
8
law. In civilized society, men must be able to assume that others will do them no intended injury that
others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will
do so with due care which the ordinary understanding and moral sense of the community exacts and that
those with whom they deal in the general course of society will act in good faith. The ultimate thing in the
9
theory of liability is justifiable reliance under conditions of civilized society. Schools and professors

cannot just take students for granted and be indifferent to them, for without the latter, the former are
useless.
Educational institutions are duty-bound to inform the students of their academic status and not wait for the
latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the
10
person/persons who may be affected by his act or omission can support a claim for damages. Want of
care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause
11
naturally calculated to produce them would make the erring party liable. Petitioner ought to have known
that time was of the essence in the performance of its obligation to inform respondent of his grade. It
cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely
the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot
just give out its student's grades at any time because a student has to comply with certain deadlines set
by the Supreme Court on the submission of requirements for taking the bar. Petitioner's liability arose
from its failure to promptly inform respondent of the result of an examination and in misleading the latter
into believing that he had satisfied all requirements for the course. Worth quoting is the following
disquisition of the respondent court:
It is apparent from the testimony of Dean Tiongson that defendant-appellee University had been
informed during the deliberation that the professor in Practice Court I gave plaintiff-appellant a
failing grade. Yet, defendant-appellee still did not inform plaintiff-appellant of his failure to
complete the requirements for the degree nor did they remove his name from the tentative list of
candidates for graduation. Worse, defendant-appellee university, despite the knowledge that
plaintiff-appellant failed in Practice Court I, againincluded plaintiff-appellant's name in the
"tentative list of candidates for graduation which was prepared after the deliberation and which
became the basis for the commencement rites program. Dean Tiongson reasons out that plaintiffappellant's name was allowed to remain in the tentative list of candidates for graduation in the
hope that the latter would still be able to remedy the situation in the remaining few days before
graduation day. Dean Tiongson, however, did not explain how plaintiff appellant Jader could have
done something to complete his deficiency if defendant-appellee university did not exert any effort
12
to inform plaintiff-appellant of his failing grade in Practice Court I.
Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed
relay of information to respondent. When one of two innocent parties must suffer, he through whose
13
agency the loss occurred must bear it. The modern tendency is to grant indemnity for damages in cases
14
where there is abuse of right, even when the act is not illicit. If mere fault or negligence in one's acts can
make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make
him liable. A person should be protected only when he acts in the legitimate exercise of his right, that is,
15
when he acts with prudence and in good faith, but not when he acts with negligence or abuse.
However, while petitioner was guilty of negligence and thus liable to respondent for the latter's actual
damages, we hold that respondent should not have been awarded moral damages. We do not agree with
the Court of Appeals' findings that respondent suffered shock, trauma and pain when he was informed
that he could not graduate and will not be allowed to take the bar examinations. At the very least, it
behooved on respondent to verify for himself whether he has completed all necessary requirements to be
eligible for the bar examinations. As a senior law student, respondent should have been responsible
enough to ensure that all his affairs, specifically those pertaining to his academic achievement, are in
order. Given these considerations, we fail to see how respondent could have suffered untold
embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to
take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this
upon himself by not verifying if he has satisfied all the requirements including his school records, before
preparing himself for the bar examination. Certainly, taking the bar examinations does not only entail a
mental preparation on the subjects thereof; there are also prerequisites of documentation and submission
of requirements which the prospective examinee must meet.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with MODIFICATION.
Petitioner is ORDERED to PAY respondent the sum of Thirty-five Thousand Four Hundred Seventy
Pesos (P35,470.00), with legal interest of 6% per annum computed from the date of filing of the complaint
until fully paid; the amount of Five Thousand Pesos (P5,000.00) as attorney's fees; and the costs of the
suit. The award of moral damages is DELEIED.1wphi1.nt
SO ORDERED.
Davide, Jr., C.J., Kapunan and Pardo, JJ., concur.
Puno, J., took no part.

Footnotes
1

Court of Appeals (CA) Decision promulgated October 10, 1997 penned by Justice Barcelona,
with Justices Mabutas, Jr. and Aquino, concurring, pp. 5-6; Rollo, pp. 12-13.
2

A check with the Attorney's List in the Court shows that private respondent is not a member of
the Philippine Bar. (http.//www.supremecourt.gov.ph).
3

Decision of Regional Trial Court (RTC-Manila Branch IX) dated September 4, 1990 penned by
Judge Edilberto Sandoval, pp. 8-9; RTC Records, pp. 192-193; Rollo, pp. 8-9.
4

CA Decision, p. 24; Rollo, p. 31.

Tolentino, New Civil Code of the Philippines, Vol. I, (1960 ed.) citing Wood v. Conrad, 2, S.B.
83, 50 N.W. 95.
6

Mahowald v. Minnesota Gas Co. (Minn) 344 NW2d 856. See also Jackson v. H.H. Robertson
Co., 118 Ariz 29, 574 P2d 82; Cummins v. West Linn, 21 Or. App 643, 536 P2d 455.
7

Hawes and Hawes, "The Concise Dictionary of Education," p. 62, 1982 ed. cited in Sarmiento,
Manual, p. 164.
8

PNB v. CA, 83 SCRA 237 (1978) cited in Sea Commercial Company v. CA, G.R. No. 122823,
November 25, 1999.
9

Dean Roscoe Pound, Introduction to the Philosophy of Law.

10

Texas Pacific & Oil Co. v. Robertson, 125 Tex 4, 79 SW2d 830, 98 ALR 262.

11

See Helms v. Universal Atlas Cement Co., (CA5 Tex) 202 F2d 421 cert de 346 US 858, 98 L
ed 372, 74 S Ct 74; Otto Kuehne Preserving Co. v. Allen (CA8 Mo) 148 F 166; See also Alabama
G.S.R. Co. v. Hill, 93 Ala 514, 9 So 722; Richmond & P.R. Co. v. Vance, 93 Ala 144, 9 So 574.
12

CA Decision, pp. 222-23; Rollo, pp. 29-30.

13

Ohio Farmers, Ins. Co. v. Norman, (App) 122 Ariz 330, 594 P2d 1026.

14

Sea Commercial Company v. CA, G.R. No. 122823, November 25, 1999.

15

Tolentino, Civil Code, 1990 ed., Vol, I, p. 61.

Pe vs. Pe
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-17396

May 30, 1962

CECILIO PE, ET AL., plaintiffs-appellants,

vs.
ALFONSO PE, defendant-appellee.
Cecilio L. Pe for and in his own behalf as plaintiff-appellant.
Leodegario L. Mogol for defendant-appellee.
BAUTISTA ANGELO, J.:
Plaintiffs brought this action before the Court of First Instance of Manila to recover moral, compensatory,
exemplary and corrective damages in the amount of P94,000.00 exclusive of attorney's fees and
expenses of litigation.
Defendant, after denying some allegations contained in the complaint, set up as a defense that the facts
alleged therein, even if true, do not constitute a valid cause of action.
After trial, the lower court, after finding that defendant had carried on a love affair with one Lolita Pe, an
unmarried woman, being a married man himself, declared that defendant cannot be held liable for moral
damages it appearing that plaintiffs failed to prove that defendant, being aware of his marital status,
deliberately and in bad faith tried to win Lolita's affection. So it rendered decision dismissing the
complaint.1wph1.t
Plaintiffs brought this case on appeal before this Court on the ground that the issues involved are purely
of law.
The facts as found by the trial court are: Plaintiffs are the parents, brothers and sisters of one Lolita Pe. At
the time of her disappearance on April 14, 1957, Lolita was 24 years old and unmarried. Defendant is a
married man and works as agent of the La Perla Cigar and Cigarette Factory. He used to stay in the town
of Gasan, Marinduque, in connection with his aforesaid occupation. Lolita was staying with her parents in
the same town. Defendant was an adopted son of a Chinaman named Pe Beco, a collateral relative of
Lolita's father. Because of such fact and the similarity in their family name, defendant became close to the
plaintiffs who regarded him as a member of their family. Sometime in 1952, defendant frequented the
house of Lolita on the pretext that he wanted her to teach him how to pray the rosary. The two eventually
fell in love with each other and conducted clandestine trysts not only in the town of Gasan but also in
Boac where Lolita used to teach in a barrio school. They exchanged love notes with each other the
contents of which reveal not only their infatuation for each other but also the extent to which they had
carried their relationship. The rumors about their love affairs reached the ears of Lolita's parents
sometime, in 1955, and since then defendant was forbidden from going to their house and from further
seeing Lolita. The plaintiffs even filed deportation proceedings against defendant who is a Chinese
national. The affair between defendant and Lolita continued nonetheless.
Sometime in April, 1957, Lolita was staying with her brothers and sisters at their residence at 54-B
Espaa Extension, Quezon City. On April 14, 1957, Lolita disappeared from said house. After she left, her

brothers and sisters checked up her thing and found that Lolita's clothes were gone. However, plaintiffs
found a note on a crumpled piece of paper inside Lolita's aparador. Said note, written on a small slip of
paper approximately 4" by 3" in size, was in a handwriting recognized to be that of defendant's. In English
it reads:
Honey, suppose I leave here on Sunday night, and that's 13th of this month and we will have a
date on the 14th, that's Monday morning at 10 a.m.
Reply
Love
The disappearance of Lolita was reported to the police authorities and the NBI but up to the present there
is no news or trace of her whereabouts.
The present action is based on Article 21 of the New Civil Code which provides:
Any person who wilfully causes loss or injury to another in a manner which is contrary to morals,
good customs or public policy shall compensate the latter for the damage.
There is no doubt that the claim of plaintiffs for damages is based on the fact that defendant, being a
married man, carried on a love affair with Lolita Pe thereby causing plaintiffs injury in a manner contrary
to morals, good customs and public policy. But in spite of the fact that plaintiffs have clearly established
that in illicit affair was carried on between defendant and Lolita which caused great damage to the name
and reputation of plaintiffs who are her parents, brothers and sisters, the trial court considered their
complaint not actionable for the reason that they failed to prove that defendant deliberately and in bad
faith tried to win Lolita's affection Thus, the trial court said: "In the absence of proof on this point, the court
may not presume that it was the defendant who deliberately induced such relationship. We cannot be
unmindful of the uncertainties and sometimes inexplicable mysteries of the human emotions. It is a
possibility that the defendant and Lolita simply fell in love with each other, not only without any desire on
their part, but also against their better judgment and in full consciousness of what it will bring to both of
them. This is specially so with respect to Lolita, being an unmarried woman, falling in love with defendant
who is a married man."
We disagree with this view. The circumstances under which defendant tried to win Lolita's affection
cannot lead, to any other conclusion than that it was he who, thru an ingenious scheme or trickery,
seduced the latter to the extent of making her fall in love with him. This is shown by the fact that
defendant frequented the house of Lolita on the pretext that he wanted her to teach him how to pray the
rosary. Because of the frequency of his visits to the latter's family who was allowed free access because
he was a collateral relative and was considered as a member of her family, the two eventually fell in love
with each other and conducted clandestine love affairs not only in Gasan but also in Boac where Lolita
used to teach in a barrio school. When the rumors about their illicit affairs reached the knowledge of her
parents, defendant was forbidden from going to their house and even from seeing Lolita. Plaintiffs even
filed deportation proceedings against defendant who is a Chinese national. Nevertheless, defendant
continued his love affairs with Lolita until she disappeared from the parental home. Indeed, no other
conclusion can be drawn from this chain of events than that defendant not only deliberately, but through a
clever strategy, succeeded in winning the affection and love of Lolita to the extent of having illicit relations
with her. The wrong he has caused her and her family is indeed immeasurable considering the fact that
he is a married man. Verily, he has committed an injury to Lolita's family in a manner contrary to morals,
good customs and public policy as contemplated in Article 21 of the new Civil Code.
WHEREFORE, the decision appealed from is reversed. Defendant is hereby sentenced to pay the
plaintiffs the sum of P5,000.00 as damages and P2,000.00 as attorney's fees and expenses of litigations.
Costs against appellee.

Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.

Tenchavez vs Escano 15 scra 355

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19671

November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in
its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal
separation and one million pesos in damages against his wife and parents-in-law, the defendants1
2
appellees, Vicente, Mamerto and Mena, all surnamed "Escao," respectively.
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where
she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of
a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"),
exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of
undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises
Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous
love affair and was duly registered with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in
love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their
marital future whereby Pacita would be the governess of their first-born; they started saving money in a
piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned
the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she
pleaded for his return, and they reconciled. This time they planned to get married and then elope. To
facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's
Hall, which was their usual trysting place.
Although planned for the midnight following their marriage, the elopement did not, however, materialize
because when Vicente went back to her classes after the marriage, her mother, who got wind of the
intended nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted
that she had already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never
asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine
marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought
priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid
marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the parish
priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because
on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not

remember, a letter purportedly coming from San Carlos college students and disclosing an amorous
relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and
thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar
Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in
Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as
endearing as her previous letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating with
Pastor (Exh. "1-Escao"), but her letters became less frequent as the days passed. As of June, 1948 the
newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental,
to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a
petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition
(Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing
(Exh. "B-4").
On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application
that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she
intended to return after two years. The application was approved, and she left for the United States. On
22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second
Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme
cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was
issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's
marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage
(Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with
him in California, and, by him, has begotten children. She acquired American citizenship on 8 August
1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First
Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and
Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her
husband, and alienating her affections, and against the Roman Catholic Church, for having, through its
Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one
million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to
her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced
their daughter's acts, and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife
and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and
Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the
extent of P45,000.00, and plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for
damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao
liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents
on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta
Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by
the record before us. Both parties were then above the age of majority, and otherwise qualified; and both
consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the
presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil
law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and
State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the
time) expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not
3
essential to give the marriage civil effects, and this is emphasized by section 27 of said marriage act,
which provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid
because of the absence of one or several of the formal requirements of this Act if, when it was
performed, the spouses or one of them believed in good faith that the person who solemnized the
marriage was actually empowered to do so, and that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed
until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil.
442, 448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest
arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of
Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and
subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even
granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was
vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely
voidable, and the marriage remained valid until annulled by a competent civil court. This was never done,
and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for
non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao
remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute
divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of
Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the
4
time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen. She
was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386),
already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity of persons
are binding upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of
the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only
provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, policy and good customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give
rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those
members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces
outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties
(Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort
cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her
previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise,
that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her
husband constitute in law a wrong caused through her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an
anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate
excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with
a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant
Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code,
Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord
with the previous doctrines and rulings of this court on the subject, particularly those that were rendered
under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature).
As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710
became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in
effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore,
under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the
decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it results that the marriage of Dr.
Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in Switzerland until her death is
wholly without legal significance. The claims of the very children to participate in the estate of
Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated
and acknowledged natural children. The children of adulterous relations are wholly excluded. The
word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include
illegitimates born of adulterous relations. (Emphasis supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo
Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the
proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal
separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine
law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced
or not) would depend on the territory where the question arises. Anomalies of this kind are not new in the
Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well known to the members
of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written by
Legislature if they are constitutional. Courts have no right to say that such laws are too strict or
too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late
Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward her
husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's
animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own
letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In
these letters he expressly apologized to the defendants for "misjudging them" and for the "great
unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff
was admitted to the Escao house to visit and court Vicenta, and the record shows nothing to prove that
he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners
and breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such
unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in
strict conformity with the canons of their religion upon advice that the previous one was canonically
defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto
Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not
seek to compel or induce their daughter to assent to the recelebration but respected her decision, or that
they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact
that Vicenta's parents sent her money while she was in the United States; for it was natural that they
should not wish their daughter to live in penury even if they did not concur in her decision to divorce
Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original
suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of
age, she was entitled to judge what was best for her and ask that her decisions be respected. Her
parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or
unworthy motives, which have not been shown, good faith being always presumed until the contrary is
proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a
parent to interest himself in the marital affairs of his child and the absence of rights in a stranger
to intermeddle in such affairs. However, such distinction between the liability of parents and that
of strangers is only in regard to what will justify interference. A parent isliable for alienation of
affections resulting from his own malicious conduct, as where he wrongfully entices his son or
daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without
justification and from unworthy motives. He is not liable where he acts and advises his child in
good faith with respect to his child's marital relations in the interest of his child as he sees it, the
marriage of his child not terminating his right and liberty to interest himself in, and be extremely
solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or
result in the separation of the spouses or the obtaining of a divorce or annulment, or where he

acts under mistake or misinformation, or where his advice or interference are indiscreet or
unfortunate, although it has been held that the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into his home and afford him or her protection
and support, so long as he has not maliciously enticed his child away, or does not maliciously
entice or cause him or her to stay away, from his or her spouse. This rule has more frequently
been applied in the case of advice given to a married daughter, but it is equally applicable in the
case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with
having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them
unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by
actual malice, the charges were certainly reckless in the face of the proven facts and circumstances.
Court actions are not established for parties to give vent to their prejudices or spleen.
In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant
Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million
pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by
publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that
there is evidence that appellant had originally agreed to the annulment of the marriage, although such a
promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable
to remarry under our law, this fact is a consequence of the indissoluble character of the union that
appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage.
All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and
attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena
Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded suit
must have wounded said defendants' feelings and caused them anxiety, the same could in no way have
seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and has been correctly established in the decision of
the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable
affair. This Court, therefore, reduces the damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present
Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the
marriage contracted with another party by the divorced consort, subsequently to the foreign decree of
divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;
(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant
Vicenta F. Escao;

(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of
P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his
wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar,
JJ., concur.

Footnotes
1

The latter was substituted by her heirs when she died during the pendency of the case in the
trial court.
2

The original complaint included the Roman Catholic Church as a defendant, sought to be
enjoined from acting on a petition for the ecclesiastical annulment of the marriage between Pastor
Tenchavez and Vicenta Escao; the case against the defendant Church was dismissed on a joint
motion.
3

In the present Civil Code the contrary rule obtains (Art. 53).

She was naturalized as an American citizen only on 8 August 1958.

st. louis realty corp. vs. ca 133 scra 179

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-46061 November 14, 1984
ST. LOUIS REALTY CORPORATION, petitioner,
vs.
COURT OF APPEALS and CONRADO J. ARAMIL, respondents.
Romeo Z. Comia for petitioner.
Roman R. Bersamin for private respondent.

AQUINO, J.:
This case is about the recovery of damages for a wrongful advertisement in the Sunday Times where
Saint Louis Realty Corporation misrepresented that the house of Doctor Conrado J. Aramil belonged to
Arcadio S. Arcadio.
St. Louis Realty caused to be published with the permission of Arcadio S. Arcadio (but without permission
of Doctor Aramil) in the issue of the Sunday Times of December 15, 1968 an advertisement with the
heading "WHERE THE HEART IS". Below that heading was the photograph of the residence of Doctor
Aramil and theArcadio family and then below the photograph was the following write-up:
Home is where the heart is. And the hearts of MR. AND MRS. ARCADIO S. ARCADIO
and their family have been captured by BROOKSIDE HILLS. They used to rent a small 2bedroom house in a cramped neighborhood, sadly inadequate and unwholesome for the
needs of a large family. They dream(ed) of a more pleasant place free from the din and
dust of city life yet near all facilities. Plans took shape when they heard of BROOKSIDE
HILLS. With thrift and determination, they bought a lot and built their dream house ... for
P31,000. The Arcadios are now part of the friendly, thriving community of BROOKSIDE
HILLS... a beautiful first-class subdivision planned for wholesome family living.
The same advertisement appeared in the Sunday Times dated January 5, 1969. Doctor Aramil a
neuropsychiatrist and a member of the faculty of the U. E. Ramon Magsaysay Memorial Hospital, noticed
the mistake. On that same date, he wrote St. Louis Realty the following letter of protest:
Dear Sirs:
This is anent to your advertisements appearing in the December 15, 1968 and January 5,
1969 issues of the Sunday Times which boldly depicted my house at the abovementioned address and implying that it belonged to another person. I am not aware of
any permission or authority on my partfor the use of my house for such publicity.
This unauthorized use of my house for your promotional gain and much more the
apparent distortions therein are I believe not only transgression to my private property but

also damaging to my prestige in the medical profession I have had invited in several
occasions numerous medical colleagues, medical students and friends to my house and
after reading your December 15 advertisement some of them have uttered some remarks
purporting doubts as to my professional and personal integrity. Such sly remarks
although in light vein as "it looks like your house," "how much are you renting from the
Arcadios?", " like your wife portrayed in the papers as belonging to another husband,"
etc., have resulted in no little mental anguish on my part.
I have referred this matter to the Legal Panel of the Philippine Medical Association and
their final advice is pending upon my submission of supporting ownership papers.
I will therefore be constrained to pursue court action against your corporation unless you
could satisfactorily explain this matter within a week upon receipt of this letter.
The letter was received by Ernesto Magtoto, an officer of St. Louis Realty in charge of advertising. He
stopped publication of the advertisement. He contacted Doctor Aramil and offered his apologies.
However, no rectification or apology was published.
On February 20, 1969, Aramil's counsel demanded from St. Louis Realty actual, moral and exemplary
damages of P110,000 (Exh. D). In its answer dated March 10, St. Louis Realty claimed that there was an
honest mistake and that if Aramil so desired, rectification would be published in the Manila Times (Exh.
3).
It published in the issue of the Manila Times of March 18, 1969 a new advertisement with the Arcadio
family and their real house. But it did not publish any apology to Doctor Aramil and an explanation of the
error.
On March 29, Aramil filed his complaint for damages. St. Louis Realty published in the issue of the Manila
Timesof April 15, 1969 the following "NOTICE OF RECTIFICATION" in a space 4 by 3 inches:
This will serve as a notice that our print ad 'Where the Heart is' which appeared in
the Manila Timesissue of March 18, 1969 is a rectification of the same ad that appeared
in the Manila Times issues rectification of the same ad that appeal of December 15, 1968
and January 5, 1969 wherein a photo of the house of another Brookside Homeowner (Dr.
Aramil-private respondent) was mistakenly used as a background for the featured
homeowner's the Arcadio family.
The ad of March 18, 1969 shows the Arcadio family with their real house in the
background, as was intended all along.
Judge Jose M. Leuterio observed that St. Louis Realty should have immediately published a rectification
and apology. He found that as a result of St. Louis Realty's mistake, magnified by its utter lack of
sincerity, Doctor Aramil suffered mental anguish and his income was reduced by about P1,000 to P1,500
a month. Moreover, there was violation of Aramil's right to privacy (Art. 26, Civil Code).
The trial court awarded Aramil P8,000 as actual damages, P20,000 as moral damages and P2,000 as
attorney's fees. St. Louis Realty appealed to the Court of Appeals.
The Appellate Court affirmed that judgment, with Acting Presiding Justice Magno S. Gatmaitan
as ponente, and Justices Sixto A. Domondon and Samuel F. Reyes concurring.

The Appellate Court reasoned out that St. Louis Realty committed an actionable quasi-delict under
articles 21 and 26 of the Civil Code because the questioned advertisements pictured a beautiful house
which did not belong to Arcadio but to Doctor Aramil who, naturally, was annoyed by that contretemps.
In this appeal, St. Louis Realty contends that the Appellate Court ignored certain facts and resorted to
surmises and conjectures. This contention is unwarranted. The Appellate Court adopted the facts found
by the trial court. Those factual findings are binding on this Court.
St. Louis Realty also contends that the decision is contrary to law and that the case was decided in a way
not in conformity with the rulings of this Court. It argues that the case is not covered by article 26 which
provides that "every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons". "Prying into the privacy of another's residence" and "meddling with or
disturbing the private life or family relations of another" and "similar acts", "though they may not constitute
a criminal offense, shall produce a cause of action for damages, prevention and other relief".
The damages fixed by Judge Leuterio are sanctioned by Articles 2200, 2208 and 2219 of the Civil Code.
Article 2219 allows moral damages for acts and actions mentioned in Article 26. As lengthily explained by
Justice Gatmaitan, the acts and omissions of the firm fan under Article 26.
St. Louis Realty's employee was grossly negligent in mixing up the Aramil and Arcadio residences in a
widely circulated publication like the Sunday Times. To suit its purpose, it never made any written apology
and explanation of the mix-up. It just contented itself with a cavalier "rectification ".
Persons, who know the residence of Doctor Aramil, were confused by the distorted, lingering impression
that he was renting his residence from Arcadio or that Arcadio had leased it from him. Either way, his
private life was mistakenly and unnecessarily exposed. He suffered diminution of income and mental
anguish.
WHEREFORE, the judgment of the Appellate Court is affirmed. Costs against the petitioner.
SO ORDERED.
Makasiar, Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.

Spouses Yu vs. PCIB

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 147902

March 17, 2006

SPOUSES VICENTE YU AND DEMETRIA LEE-YU, Petitioners,

vs.
PHILIPPINE COMMERCIAL INTERNATIONAL BANK, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
1

Before the Court is a Petition for Review on Certiorari of the Decision dated November 14, 2000 of the
Court of Appeals (CA) in CA-G.R. SP No. 58982 and the CA Resolution dated April 26, 2001, which
denied petitioners Motion for Reconsideration.
The factual background of the case is as follows:
2

Under a Real Estate Mortgage dated August 15, 1994 and Amendments of Real Estate Mortgage dated
3
4
April 4, 1995 and December 4, 1995, spouses Vicente Yu and Demetria Lee-Yu (petitioners) and
spouses Ramon T. Yu and Virginia A. Tiu, or Yu Tian Hock aka Victorino/Vicente Yu, mortgaged their
title, interest, and participation over several parcels of land located in Dagupan City and Quezon City, in
favor of the Philippine Commercial International Bank (respondent) as security for the payment of a loan
5
in the amount of P9,000,000.00.
As the petitioners failed to pay the loan, the interest, and the penalties due thereon, respondent filed on
July 21, 1998 with the Office of the Clerk of Court and Ex-Officio Sheriff of the Regional Trial Court of
Dagupan City a Petition for Extra-Judicial Foreclosure of Real Estate Mortgage on the Dagupan City
6
properties. On August 3, 1998, the City Sheriff issued a Notice of Extra-Judicial Sale scheduling the
auction sale on September 10, 1998 at 10:00 oclock in the morning or soon thereafter in front of the
7
Justice Hall, Bonuan, Tondaligan, Dagupan City.
8

At the auction sale on September 10, 1998, respondent emerged as the highest bidder. On September
9
14, 1998, a Certificate of Sale was issued in favor of respondent. On October 1, 1998, the sale was
registered with the Registry of Deeds of Dagupan City.
About two months before the expiration of the redemption period, or on August 20, 1999, respondent filed
an Ex-Parte Petition for Writ of Possession before the Regional Trial Court of Dagupan City, docketed as
10
Special Proceeding No. 99-00988-D and raffled to Branch 43 (RTC Branch 43). Hearing was conducted
11
on September 14, 1999 and respondent presented its evidence ex-parte. The testimony of Rodante
Manuel was admitted ex-parte and thereafter the petition was deemed submitted for resolution.
On September 30, 1999, petitioners filed a Motion to Dismiss and to Strike Out Testimony of Rodante
Manuel stating that the Certificate of Sale dated September 14, 1998 is void because respondent violated
Article 2089 of the Civil Code on the indivisibility of the mortgaged by conducting two separate foreclosure
proceedings on the mortgage properties in Dagupan City and Quezon City and indicating in the two

notices of extra-judicial sale that petitioners obligation is P10,437,015.20

13
petitioners are not indebted for the total amount of P20,874,031.56.

12

as of March 31, 1998, when

In the meantime, petitioners filed a complaint for Annulment of Certificate of Sale before the Regional
Trial Court of Dagupan City, docketed as Civil Case No. 99-03169-D and raffled to Branch 44 (RTC
Branch 44).
On February 14, 2000, RTC Branch 43 denied petitioners Motion to Dismiss and to Strike Out Testimony
of Rodante Manuel, ruling that the filing of a motion to dismiss is not allowed in petitions for issuance of
14
writ of possession under Section 7 of Act No. 3135.
On February 24, 2000, petitioners filed a Motion for Reconsideration, further arguing that the pendency of
Civil Case No. 99-03169-D in RTC Branch 44 is a prejudicial issue to Spec. Proc. No. 99-00988-D in RTC
Branch 43, the resolution of which is determinative on the propriety of the issuance of a writ of
15
possession.
On May 8, 2000, RTC Branch 43 denied petitioners Motion for Reconsideration, holding that the principle
of prejudicial question is not applicable because the case pending before RTC Branch 44 is also a civil
16
case and not a criminal case.
17

On June 1, 2000, petitioners filed a Petition for Certiorari with the CA. On November 14, 2000, the CA
dismissed petitioners Petition for Certiorari on the grounds that petitioners violated Section 8 of Act No.
3135 and disregarded the rule against multiplicity of suits in filing Civil Case No. 99-03169-D in RTC
Branch 44 despite full knowledge of the pendency of Spec. Proc. No. 99-00988-D in RTC Branch 43; that
since the one-year period of redemption has already lapsed, the issuance of a writ of possession in favor
of respondent becomes a ministerial duty of the trial court; that the issues in Civil Case No. 99-03169-D
are not prejudicial questions to Spec. Proc. No. 99-00988-D because: (a) the special proceeding is
already fait accompli, (b) Civil Case No. 99-03169-D is deemed not filed for being contrary to Section 8 of
Act No. 3135, (c) the filing of Civil Case No. 99-03169-D is an afterthought and dilatory in nature, and (d)
18
legally speaking what seems to exist is litis pendentia and not prejudicial question.
Petitioners filed a Motion for Reconsideration

19

but it was denied by the CA on April 26, 2001.

20

Hence, the present Petition for Review on Certiorari.

Petitioners pose two issues for resolution, to wit:
A. Whether or not a real estate mortgage over several properties located in different locality [sic]
can be separately foreclosed in different places.
B. Whether or not the pendency of a prejudicial issue renders the issues in Special Proceedings
21
No. 99-00988-D as [sic] moot and academic.
Anent the first issue, petitioners contend that since a real estate mortgage is indivisible, the mortgaged
properties in Dagupan City and Quezon City cannot be separately foreclosed. Petitioners further point out
22
that two notices of extra-judicial sale indicated that petitioners obligation is P10,437,015.20 each as of
23
March 31, 1998 or a total ofP20,874,030.40, yet their own computation yields only P9,957,508.90 as of
February 27, 1998.
As to the second issue, petitioners posit that the pendency of Civil Case No. 99-03169-D is a prejudicial
issue, the resolution of which will render the issues in Spec. Proc. No. 99-00988-D moot and academic.
Petitioners further aver that they did not violate Section 8 of Act No. 3135 in filing a separate case to
annul the certificate of sale since the use of the word "may" in said provision indicates that they have the

option to seek relief of filing a petition to annul the certificate of sale in the proceeding involving the
application for a writ of possession or in a separate proceeding.
24

Respondent contends that, with respect to the first issue, the filing of two separate foreclosure
proceedings did not violate Article 2089 of the Civil Code on the indivisibility of a real estate mortgage
since Section 2 of Act No. 3135 expressly provides that extra-judicial foreclosure may only be made in the
province or municipality where the property is situated. Respondent further submits that the filing of
separate applications for extra-judicial foreclosure of mortgage involving several properties in different
locations is allowed by A.M. No. 99-10-05-0, the Procedure on Extra-Judicial Foreclosure of Mortgage, as
further amended on August 7, 2001.
As to the second issue, respondent maintains that there is no prejudicial question between Civil Case No.
99-03169-D and Spec. Proc. No. 99-00988-D since the pendency of a civil action questioning the validity
of the mortgage and the extra-judicial foreclosure thereof does not bar the issuance of a writ of
possession. Respondent also insists that petitioners should have filed their Petition to Annul the
Certificate of Sale in the same case where possession is being sought, that is, in Spec. Proc. No. 9900988-D, and not in a separate proceeding (Civil Case No. 99-01369-D) because the venue of the action
to question the validity of the foreclosure is not discretionary since the use of the word "may" in Section 8
of Act No. 3135 refers to the filing of the petition or action itself and not to the venue. Respondent further
argues that even if petitioners filed the Petition to Annul the Certificate of Sale in Spec. Proc. No. 9900988-D, the writ of possession must still be issued because issuance of the writ in favor of the purchaser
is a ministerial act of the trial court and the one-year period of redemption has already lapsed.
Anent the first issue, the Court finds that petitioners have a mistaken notion that the indivisibility of a real
estate mortgage relates to the venue of extra-judicial foreclosure proceedings. The rule on indivisibility of
a real estate mortgage is provided for in Article 2089 of the Civil Code, which provides:
Art. 2089. A pledge or mortgage is indivisible, even though the debt may be divided among the
successors in interest of the debtor or of the creditor.
Therefore, the debtors heir who has paid a part of the debt cannot ask for the proportionate
extinguishment of the pledge or mortgage as the debt is not completely satisfied.
Neither can the creditors heir who received his share of the debt return the pledge or cancel the
mortgage, to the prejudice of the other heirs who have not been paid.
From these provisions is excepted the case in which, there being several things given in mortgage or
pledge, each one of them guarantees only a determinate portion of the credit.
The debtor, in this case, shall have a right to the extinguishment of the pledge or mortgage as the portion
of the debt for which each thing is specially answerable is satisfied.
25

This rule presupposes several heirs of the debtor or creditor and therefore not applicable to the present
case. Furthermore, what the law proscribes is the foreclosure of only a portion of the property or a
number of the several properties mortgaged corresponding to the unpaid portion of the debt where,
before foreclosure proceedings, partial payment was made by the debtor on his total outstanding loan or
obligation. This also means that the debtor cannot ask for the release of any portion of the mortgaged
property or of one or some of the several lots mortgaged unless and until the loan thus secured has been
fully paid, notwithstanding the fact that there has been partial fulfillment of the obligation. Hence, it is
provided that the debtor who has paid a part of the debt cannot ask for the proportionate extinguishment
26
of the mortgage as long as the debt is not completely satisfied. In essence, indivisibility means that the
27
mortgage obligation cannot be divided among the different lots, that is, each and every parcel under
28
mortgage answers for the totality of the debt.

On the other hand, the venue of the extra-judicial foreclosure proceedings is the place where each of the
29
mortgaged property is located, as prescribed by Section 2 of Act No. 3135, to wit:
SECTION 2. Said sale cannot be made legally outside of the province in which the property sold is
situated; and in case the place within said province in which the sale is to be made is subject to
stipulation, such sale shall be made in said place or in the municipal building of the municipality in which
the property or part thereof is situated.
30

A.M. No. 99-10-05-0, the Procedure on Extra-Judicial Foreclosure of Mortgage, lays down the
guidelines for extra-judicial foreclosure proceedings on mortgaged properties located in different
provinces. It provides that the venue of the extra-judicial foreclosure proceedings is the place where each
of the mortgaged property is located. Relevant portion thereof provides:
Where the application concerns the extrajudicial foreclosure of mortgages of real estates and/or chattels
in different locations covering one indebtedness, only one filing fee corresponding to such indebtedness
shall be collected. The collecting Clerk of Court shall, apart from the official receipt of the fees, issue a
certificate of payment indicating the amount of indebtedness, the filing fees collected, the mortgages
sought to be foreclosed, the real estates and/or chattels mortgaged and their respective locations, which
certificate shall serve the purpose of having the application docketed with the Clerks of Court of
the places where the other properties are located and of allowing the extrajudicial foreclosures to
proceed thereat. (Emphasis supplied)
The indivisibility of the real estate mortgage is not violated by conducting two separate foreclosure
proceedings on mortgaged properties located in different provinces as long as each parcel of land is
answerable for the entire debt. Petitioners assumption that their total obligation is P20,874,030.40
because the two notices of extra-judicial sale indicated that petitioners obligation
31
is P10,437,015.20 each, is therefore flawed. Considering the indivisibility of a real estate mortgage, the
mortgaged properties in Dagupan City and Quezon City are made to answer for the entire debt
32
of P10,437,015.29.
As to the second issue, that is, whether a civil case for annulment of a certificate of sale is a prejudicial
question to a petition for issuance of a writ of possession, this issue is far from novel and, in fact, not
33
without precedence. In Pahang v. Vestil, the Court said:
A prejudicial question is one that arises in a case the resolution of which is a logical antecedent of the
issue involved therein, and the cognizance of which pertains to another tribunal. It generally comes into
play in a situation where a civil action and a criminal action are both pending and there exists in the
former an issue that must be preemptively resolved before the criminal action may proceed, because
howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the
guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial
question is to avoid two conflicting decisions. 1avvph!l.net
In the present case, the complaint of the petitioners for Annulment of Extrajudicial Sale is a civil action
and the respondents petition for the issuance of a writ of possession of Lot No. 3-A, Block 1, Psd-07021410, TCT No. 44668 is but an incident in the land registration case and, therefore, no prejudicial
question can arise from the existence of the two actions. A similar issue was raised in Manalo v. Court of
Appeals, where we held that:
At any rate, it taxes our imagination why the questions raised in Case No. 98-0868 must be considered
determinative of Case No. 9011. The basic issue in the former is whether the respondent, as the
purchaser in the extrajudicial foreclosure proceedings, may be compelled to have the property
repurchased or resold to a mortgagors successor-in-interest (petitioner); while that in the latter is merely
whether the respondent, as the purchaser in the extrajudicial foreclosure proceedings, is entitled to a writ

of possession after the statutory period for redemption has expired. The two cases, assuming both are
34
pending, can proceed separately and take their own direction independent of each other.
In the present case, Civil Case No. 99-01369-D and Spec. Proc. No. 99-00988-D are both civil in nature.
The issue in Civil Case No. 99-01369-D is whether the extra-judicial foreclosure of the real estate
mortgage executed by the petitioners in favor of the respondent and the sale of their properties at public
auction are null and void, whereas, the issue in Spec. Proc. No. 99-00988-D is whether the respondent is
entitled to a writ of possession of the foreclosed properties. Clearly, no prejudicial question can arise from
the existence of the two actions. The two cases can proceed separately and take their own direction
independently of each other.
Nevertheless, there is a need to correct the CAs view that petitioners violated Section 8 of Act No. 3135
and disregarded the proscription on multiplicity of suits by instituting a separate civil suit for annulment of
the certificate of sale while there is a pending petition for issuance of the writ of possession in a special
proceeding.
Section 8 of Act No. 3135 provides:
Sec. 8. Setting aside of sale and writ of possession. The debtor may, in the proceedings in which
possession was requested, but not later than thirty days after the purchaser was given possession,
petition that the sale be set aside and the writ of possession cancelled, specifying the damages suffered
by him, because the mortgage was not violated or the sale was not made in accordance with the
provisions hereof, and the court shall take cognizance of this petition in accordance with the summary
procedure provided for in section one hundred and twelve of Act Numbered Four hundred and ninety-six;
and if it finds the complaint of the debtor justified, it shall dispose in his favor of all or part of the bond
furnished by the person who obtained possession. Either of the parties may appeal from the order of the
judge in accordance with section fourteen of Act Numbered Four hundred and ninety-six; but the order of
possession shall continue in effect during the pendency of the appeal. (Emphasis supplied)
Under the provision above cited, the mortgagor may file a petition to set aside the sale and for the
cancellation of a writ of possession with the trial court which issued the writ of possession within 30 days
after the purchaser mortgagee was given possession. It provides the plain, speedy, and adequate remedy
35
in opposing the issuance of a writ of possession. Thus, this provision presupposes that the trial court
36
already issued a writ of possession. In Sps. Ong v. Court of Appeals, the Court elucidated:
The law is clear that the purchaser must first be placed in possession of the mortgaged property pending
proceedings assailing the issuance of the writ of possession. If the trial court later finds merit in the
petition to set aside the writ of possession, it shall dispose in favor of the mortgagor the bond furnished by
the purchaser. Thereafter, either party may appeal from the order of the judge in accordance with Section
14 of Act 496, which provides that "every order, decision, and decree of the Court of Land Registration
may be reviewedin the same manner as an order, decision, decree or judgment of a Court of First
Instance (RTC) might be reviewed." The rationale for the mandate is to allow the purchaser to have
possession of the foreclosed property without delay, such possession being founded on his right of
37
ownership.
Accordingly, Section 8 of Act No. 3135 is not applicable to the present case since at the time of the filing
of the separate civil suit for annulment of the certificate of sale in RTC Branch 44, no writ of possession
was yet issued by RTC Branch 43.
Similarly, the Court rejects the CAs application of the principle of litis pendentia to Civil Case No. 9903169-D in relation to Spec. Proc. No. 99-00988-D. Litis pendentia refers to that situation wherein another
action is pending between the same parties for the same cause of actions and that the second action
becomes unnecessary and vexatious. For litis pendentia to be invoked, the concurrence of the following
requisites is necessary: (a) identity of parties or at least such as represent the same interest in both

actions; (b) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts;
and, (c) the identity in the two cases should be such that the judgment that may be rendered in one
38
would, regardless of which party is successful, amount to res judicatain the other.
Applying the foregoing criteria in the instant case, litis pendentia does not obtain in this case because of
the absence of the second and third requisites. The issuance of the writ of possession being
a ministerial function, and summary in nature, it cannot be said to be a judgment on the merits, but simply
an incident in the transfer of title. Hence, a separate case for annulment of mortgage and foreclosure sale
39
cannot be barred by litis pendentiaor res judicata. Thus, insofar as Spec. Proc. No. 99-00988-D and
Civil Case No. 99-03169-D pending before different branches of RTC Dagupan City are concerned, there
is no litis pendentia.
To sum up, the Court holds that the rule on indivisibility of the real estate mortgage cannot be equated
with the venue of foreclosure proceedings on mortgaged properties located in different provinces since
these are two unrelated concepts. Also, no prejudicial question can arise from the existence of a civil
case for annulment of a certificate of sale and a petition for the issuance of a writ of possession in a
special proceeding since the two cases are both civil in nature which can proceed separately and take
their own direction independently of each other.
Furthermore, since the one-year period to redeem the foreclosed properties lapsed on October 1, 1999,
title to the foreclosed properties had already been consolidated under the name of the respondent. As the
40
owner of the properties, respondent is entitled to its possession as a matter of right. The issuance of a
writ of possession over the properties by the trial court is merely a ministerial function. As such, the trial
41
court neither exercises its official discretion nor judgment. Any question regarding the validity of the
mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a writ of
42
possession. Regardless of the pending suit for annulment of the certificate of sale, respondent is
43
entitled to a writ of possession, without prejudice of course to the eventual outcome of said case.
WHEREFORE, the petition is DENIED.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO
Associate Justice

ROMEO J. CALLEJO, SR.

Asscociate Justice

MINITA V. CHICO-NAZARIO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1

Penned by Associate Justice Andres B. Reyes, Jr. and concurred in by Associate Justices
Cancio C. Garcia (now Associate Justice of this Court) and Romeo A. Brawner (now retired).
2

Records, pp. 7-8.

Id. at 11-13.

Id. at 20-23.

Id. at 19.

Id. at 52.

Id.

Id. at 64.

Id. at 58-64.

10

Id. at 1.

11

Id. at 74.

12

Should be P10,437,015.29 per Notice of Extra-Judicial Sale, records, p. 52.

13

Id. at 135.

14

Id. at 188.

15

Id. at 195.

16

Id. at 327.

17

CA rollo, p. 1.

18

Id. at 130.

19

Id. at 134-137.

20

Id. at 158.

21

Petition, rollo, p. 15; and Memorandum, rollo, pp. 143-144.

22

Id. at 143.

23

Id.

24

Comment, rollo, p. 114; and Memorandum, rollo, p. 152.

25

Rose Packing Co., Inc. v. Court of Appeals, G.R. No. L-33084, November 14, 1988, 167 SCRA
309, 322; Central Bank of the Philippines v. Court of Appeals, G.R. No. L-45710, October 3,
1985, 139 SCRA 46, 57.
26

Philippine National Bank v. De los Reyes, G.R. Nos. 46898-99, November 28, 1989, 179 SCRA
619, 626; Philippine National Bank v. Amores, G.R. No. L-54551, November 9, 1987, 155 SCRA
445, 451; Gonzales v. Government Service Insurance System, 194 Phil. 465, 475 (1981).
27

Aquino v. Macondray & Co. Inc., 97 Phil. 731, 741 (1955).

28

Philippine National Bank v. Mallorca, 128 Phil. 747, 752 (1967); Goquiolay v. Sycip, 108 Phil.
947, 974 (1960).
29

Entitled "An Act To Regulate the Sale of Property under Special Powers Inserted in or Annexed
to Real-Estate Mortgages," approved on March 6, 1924.
30

Dated December 14, 1999 and further amended by the Resolutions of January 30, 2001 and
August 7, 2001.
31

Supra, note 12.

32

Id.

33

G.R. No. 148595, July 12, 2004, 434 SCRA 139.

34

Id. at 145-146, citing Yulienco v. Court of Appeals, 441 Phil. 397, 405-407 (2002) and Manalo
v. Court of Appeals, 419 Phil. 215, 232 (2001).
35

Samson v. Rivera, G.R. No. 154355, May 20, 2004, 428 SCRA 759, 770; Marcelo Steel
Corporation v. Court of Appeals, 153 Phil. 362, 373 (1973).
36

388 Phil. 857 (2000).

37

Id. at 865. Reiterated in Philippine National Bank v. Sanao Marketing Corporation, G.R. No.
153951, July 29, 2005, 465 SCRA 287, 303.
38

Agilent Technologies Singapore (Pte.) Ltd. v. Integrated Silicon Technology Philippines

Corporation, G.R. No. 154618, April 14, 2004, 427 SCRA 593, 601; Intramuros Administration v.
Contacto, 450 Phil. 704, 713 (2003).
39

Arquiza v. Court of Appeals, G.R. No. 160479, June 8, 2005, 459 SCRA 753, 765; Sps. Ong v.
Court of Appeals, supra, note 36 at 867-868.
40

De Vera v. Agloro, G.R. No. 155673, January 14, 2005, 448 SCRA 203, 214; Chailease
Finance Corporation v. Ma, G.R. No. 151941, August 15, 2003, 409 SCRA 250, 253.

41

Philippine National Bank v. Sanao Marketing Corporation, supra, note 37 at 303.

42

Idolor v. Court of Appeals, G.R. No. 161028, January 31, 2005, 450 SCRA 396, 403; Sps. Ong
v. Court of Appeals, supra, note 36 at 866.
43

Idolor v. Court of Appeals, supra, note 42 at 403; Sps. Ong v. Court of Appeals, supra, note 36
at 866-867.

Donato vs. Luna

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-53642 April 15, 1988
LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF MANIIA, BRANCH
XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B. ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private respondent.
City Fiscal of Manila for public respondent.

GANCAYCO, J.:
In this petition for certiorari and prohibition with preliminary injunction, the question for the resolution of
the Court is whether or not a criminal case for bigamy pending before the Court of First Itance of Manila
should be suspended in view of a civil case for annulment of marriage pending before the Juvenile and
Domestic Relations Court on the ground that the latter constitutes a prejudicial question. The respondent
judge ruled in the negative. We sustain him.
The pertinent facts as set forth in the records follow. On January 23, 1979, the City Fiscal of Manila acting
thru Assistant City Fiscal Amado N. Cantor filed an information for bigamy against herein petitioner,
Leonilo C. Donato with the Court of First Instance of Manila, docketed as Criminal Case No. 43554 and
assigned to Branch XXXII of said court. The information was filed based on the complaint of private
respondent Paz B. Abayan.
On September 28, 1979, before the petitioner's arraignment, private respondent filed with the Juvenile
and Domestic Relations Court of Manila a civil action for declaration of nullity of her marriage with
petitioner contracted on September 26, 1978, which action was docketed as Civil Case No. E-02627.
Said civil case was based on the ground that private respondent consented to entering into the marriage,
which was petitioner Donato's second one, since she had no previous knowledge that petitioner was
already married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner Donato's answer in the
civil case for nullity interposed the defense that his second marriage was void since it was solemnized
without a marriage license and that force, violence, intimidation and undue influence were employed by
private respondent to obtain petitioner's consent to the marriage. Prior to the solemnization of the
subsequent or second marriage, petitioner and private respondent had lived together and deported
themselves as husband and wife without the benefit of wedlock for a period of at least five years as
evidenced by a joint affidavit executed by them on September 26, 1978, for which reason, the requisite
marriage license was dispensed with pursuant to Article 76 of the New Civil Code pertaining to marriages
of exceptional character.

Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed a motion to
suspend the proceedings of said case contending that Civil Case No. E-02627 seeking the annulment of
his second marriage filed by private respondent raises a prejudicial question which must first be
determined or decided before the criminal case can proceed.
In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the proceedings in
Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial is the ruling laid down in the
1
case of Landicho vs. Relova. The order further directed that the proceedings in the criminal case can
proceed as scheduled.
A motion for reconsideration was flied by herein petitioner thru counsel citing as one of his grounds for
2
suspension of proceedings the ruling laid down by this Court in the case of De la Cruz vs. Ejercito which
was a much later case than that cited by respondent judge in his order of denial.
The motion for reconsideration of the said order was likewise denied in an order dated April 14, 1980, for
lack of merit. Hence, the present petition for certiorari and prohibition with preliminary injunction.
A prejudicial question has been defined to be one which arises in a case, the resolution of which question
is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another
3
tribunal. It is one based on a fact distinct and separate from the crime but so intimately connected with it
that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must
appear not only that said case involves facts intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of the issue or issues raised in the civil case,
4
the guilt or innocence of the accused would necessarily be determined. A prejudicial question usually
comes into play in a situation where a civil action and a criminal action may proceed, because howsoever
the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or
5
innocence of the accused in a criminal case.
The requisites of a prejudicial question do not obtain in the case at bar. It must be noted that the issue
before the Juvenile and Domestic Relations Court touching upon the nullity of the second marriage is not
determinative of petitioner Donato's guilt or innocence in the crime of bigamy. Furthermore, it was
petitioner's second wife, the herein private respondent Paz B. Abayan who filed the complaint for
annulment of the second marriage on the ground that her consent was obtained through deceit.
Petitioner Donato raised the argument that the second marriage should have been declared null and void
on the ground of force, threats and intimidation allegedly employed against him by private respondent
only sometime later when he was required to answer the civil action for anulment of the second marriage.
6
The doctrine elucidated upon by the case of Landicho vs. Relova may be applied to the present case.
Said case states that:
The mere fact that there are actions to annul the marriages entered into by the accused
in a bigamy case does not mean that "prejudicial questions" are automatically raised in
civil actions as to warrant the suspension of the case. In order that the case of annulment
of marriage be considered a prejudicial question to the bigamy case against the accused,
it must be shown that the petitioner's consent to such marriage must be the one that was
obtained by means of duress, force and intimidation to show that his act in the second
marriage must be involuntary and cannot be the basis of his conviction for the crime of
bigamy. The situation in the present case is markedly different. At the time the petitioner
was indicted for bigamy on February 27, 1963, the fact that two marriage ceremonies had
been contracted appeared to be indisputable. And it was the second spouse, not the
petitioner who filed the action for nullity on the ground of force, threats and intimidation.
And it was only on June 15, 1963, that petitioner, as defendant in the civil action, filed a
third-party complaint against the first spouse alleging that his marriage with her should be
declared null and void on the ground of force, threats and intimidation. Assuming that the

first marriage was null and void on the ground alleged by petitioner, the fact would not be
material to the outcome of the case. Parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be submitted to the judgment of the
competent courts and only when the nullity of the marriage is so declared can it be held
as void, and so long as there is no such declaration the presumption is that the marriage
exists. Therefore, he who contracts a second marriage before the judicial declaration of
nullity of the first marriage assumes the risk of being prosecuted for bigamy. The lower
court therefore, has not abused much less gravely abused, its discretion in failing to
suspend the hearing as sought by petitioner.
In the case at bar, petitioner has not even sufficiently shown that his consent to the second marriage has
been obtained by the use of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs. Ejercito is a later case
and as such it should be the one applied to the case at bar. We cannot agree. The situation in the case at
bar is markedly different. In the aforecited case it was accused Milagros dela Cruz who was charged with
bigamy for having contracted a second marriage while a previous one existed. Likewise, Milagros dela
Cruz was also the one who filed an action for annulment on the ground of duress, as contra-distinguished
from the present case wherein it was private respondent Paz B. Abayan, petitioner's second wife, who
filed a complaint for annulment of the second marriage on the ground that her consent was obtained
through deceit since she was not aware that petitioner's marriage was still subsisting. Moreover, in De la
Cruz, a judgment was already rendered in the civil case that the second marriage of De la Cruz was null
and void, thus determinative of the guilt or innocence of the accused in the criminal case. In the present
case, there is as yet no such judgment in the civil case.
Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot apply the rule on
prejudicial questions since a case for annulment of marriage can be considered as a prejudicial question
to the bigamy case against the accused only if it is proved that the petitioner's consent to such marriage
was obtained by means of duress, violence and intimidation in order to establish that his act in the
subsequent marriage was an involuntary one and as such the same cannot be the basis for conviction.
The preceding elements do not exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial question to evade the prosecution of the
criminal case. The records reveal that prior to petitioner's second marriage on September 26, 1978, he
had been living with private respondent Paz B. Abayan as husband and wife for more than five years
without the benefit of marriage. Thus, petitioner's averments that his consent was obtained by private
respondent through force, violence, intimidation and undue influence in entering a subsequent marriage is
belled by the fact that both petitioner and private respondent executed an affidavit which stated that they
had lived together as husband and wife without benefit of marriage for five years, one month and one day
until their marital union was formally ratified by the second marriage and that it was private respondent
who eventually filed the civil action for nullity.
Another event which militates against petitioner's contentions is the fact hat it was only when Civil Case
No. E-02627 was filed on September 28, 1979, or more than the lapse of one year from the solemnization
of the second marriage that petitioner came up with the story that his consent to the marriage was
secured through the use of force, violence, intimidation and undue influence. Petitioner also continued to
live with private respondent until November 1978, when the latter left their abode upon learning that
Leonilo Donato was already previously married.
In the light of the preceding factual circumstances, it can be seen that the respondent Judge did not err in
his earlier order. There is no pivotal issue that must be pre-emptively resolved in Civil Case No. E-02627
before proceedings in the criminal action for bigamy can be undertaken.

Accordingly, there being no prejudicial question shown to exit the order of denial issued by the
respondent judge dated April 14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for lack of merit. We
make no pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.

Footnotes
1 22 SCRA 731.
2 68 SCRA 1.
3 People va. Aragon, 94 Phil. 357; Isip vs. Gonzales, 39 SCRA 255; Rojas vs. People, 57
SCRA 243.
4 Libra va. Coscolluela, Jr., 116 SCRA 303.
5 Ibid.
6 22 SCRA 73.