G.R. No.

119190 January 16, 1997 CHI MING TSOI, petitioner,

vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

Man has not invented a reliable compass by which to steer a marriage in its journey over troubled waters. Laws are seemingly
inadequate. Over time, much reliance has been placed in the works of the unseen hand of Him who created all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife against her uncaring husband in the Regional Trial Court of Quezon City
(Branch 89) which decreed the annulment of the marriage on the ground of psychological incapacity. Petitioner appealed the decision
of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision November 29, 1994
and correspondingly denied the motion for reconsideration in a resolution dated February 14, 1995.

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The statement of the case and of the facts made by the trial court and reproduced by the Court of Appeals its decision are as follows:

From the evidence adduced, the following acts were preponderantly established:

Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . . Intramuros Manila, as evidenced
by their Marriage Contract. (Exh. "A")

After the celebration of their marriage and wedding reception at the South Villa, Makati, they went and proceeded to the house
of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their married life.

It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were supposed to enjoy making love,
or having sexual intercourse, with each other, the defendant just went to bed, slept on one side thereof, then turned his back
and went to sleep . There was no sexual intercourse between them during the first night. The same thing happened on the
second, third and fourth nights.

In an effort to have their honeymoon in a private place where they can enjoy together during their first week as husband and
wife, they went to Baguio City. But, they did so together with her mother, an uncle, his mother and his nephew. They were all
invited by the defendant to join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no
sexual intercourse between them, since the defendant avoided her by taking a long walk during siesta time or by just sleeping
on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988
until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. [S]he claims, that she
did not: even see her husband's private parts nor did he see hers.

Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag, a urologist at the Chinese
General Hospital, on January 20, 1989.

The results of their physical examinations were that she is healthy, normal and still a virgin, while that of her husband's
examination was kept confidential up to this time. While no medicine was prescribed for her, the doctor prescribed medications
for her husband which was also kept confidential. No treatment was given to her. For her husband, he was asked by the
doctor to return but he never did.

The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show his penis. She said, that she had
observed the defendant using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to
her, the defendant married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly
maintain the appearance of a normal man.

The plaintiff is not willing to reconcile with her husband.

On the other hand, it is the claim of the defendant that if their marriage shall be annulled by reason of psychological incapacity,
the fault lies with his wife.

But, he said that he does not want his marriage with his wife annulled for several reasons, viz: (1) that he loves her very much;
(2) that he has no defect on his part and he is physically and psychologically capable; and, (3) since the relationship is still
very young and if there is any differences between the two of them, it can still be reconciled and that, according to him, if either
one of them has some incapabilities, there is no certainty that this will not be cured. He further claims, that if there is any
defect, it can be cured by the intervention of medical technology or science.
 The defendant admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no
sexual contact between them. But, the reason for this, according to the defendant, was that everytime he wants to have sexual
intercourse with his wife, she always avoided him and whenever he caresses her private parts, she always removed his
hands. The defendant claims, that he forced his wife to have sex with him only once but he did not continue because she was
shaking and she did not like it. So he stopped.

There are two (2) reasons, according to the defendant , why the plaintiff filed this case against him, and these are: (1) that she
is afraid that she will be forced to return the pieces of jewelry of his mother, and, (2) that her husband, the defendant, will
consummate their marriage.

The defendant insisted that their marriage will remain valid because they are still very young and there is still a chance to
overcome their differences.

The defendant submitted himself to a physical examination. His penis was examined by Dr. Sergio Alteza, Jr., for the purpose
of finding out whether he is impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is
stated there, that there is no evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C")

The doctor said, that he asked the defendant to masturbate to find out whether or not he has an erection and he found out that
from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one
centimeter. Dr. Alteza said, that the defendant had only a soft erection which is why his penis is not in its full length. But, still is
capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman.

In open Court, the Trial Prosecutor manifested that there is no collusion between the parties and that the evidence is not
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fabricated."

After trial, the court rendered judgment, the dispositive portion of which reads:

ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into by the plaintiff with the defendant
on May 22, 1988 at the Manila Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before the Rt. Rev.
Msgr. Melencio de Vera. Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon City. Let
another copy be furnished the Local Civil Registrar of Manila.

SO ORDERED.

On appeal, the Court of Appeals affirmed the trial court's decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals erred:

in affirming the conclusions of the lower court that there was no sexual intercourse between the parties without making any
findings of fact.

II

in holding that the refusal of private respondent to have sexual communion with petitioner is a psychological incapacity
inasmuch as proof thereof is totally absent.

III

in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes
psychological incapacity of both.

IV

in affirming the annulment of the marriage between the parties decreed by the lower court without fully satisfying itself that
there was no collusion between them.

We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the burden of proving the allegations in
her complaint; that since there was no independent evidence to prove the alleged non-coitus between the parties, there remains no
other basis for the court's conclusion except the admission of petitioner; that public policy should aid acts intended to validate marriage
and should retard acts intended to invalidate them; that the conclusion drawn by the trial court on the admissions and confessions of
the parties in their pleadings and in the course of the trial is misplaced since it could have been a product of collusion; and that in
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actions for annulment of marriage, the material facts alleged in the complaint shall always be proved.

Section 1, Rule 19 of the Rules of Court reads:

Section 1. Judgment on the pleadings. — Where an answer fails to tender an issue, or otherwise admits the material
allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. But in
actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved.

The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to prevent is annulment of marriage without
trial. The assailed decision was not based on such a judgment on the pleadings. When private respondent testified under oath before
the trial court and was cross-examined by oath before the trial court and was cross-examined by the adverse party, she thereby
presented evidence in form of a testimony. After such evidence was presented, it be came incumbent upon petitioner to present his
side. He admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual intercourse
between them.

To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil Code provides that no judgment
annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the
Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19).

The case has reached this Court because petitioner does not want their marriage to be annulled. This only shows that there is no
collusion between the parties. When petitioner admitted that he and his wife (private respondent) have never had sexual contact with
each other, he must have been only telling the truth. We are reproducing the relevant portion of the challenged resolution denying
petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:

The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. The issue of whether or
not the appellant is psychologically incapacitated to discharge a basic marital obligation was resolved upon a review of both
the documentary and testimonial evidence on record. Appellant admitted that he did not have sexual relations with his wife
after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability. Such abnormal
reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the
mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage'
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within the meaning of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995).

Petitioner further contends that respondent court erred in holding that the alleged refusal of both the petitioner and the private
respondent to have sex with each other constitutes psychological incapacity of both. He points out as error the failure of the trial court to
make "a categorical finding about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal which
may not be necessarily due to physchological disorders" because there might have been other reasons, — i.e., physical disorders, such
as aches, pains or other discomforts, — why private respondent would not want to have sexual intercourse from May 22, 1988 to March
15, 1989, in a short span of 10 months.

First, it must be stated that neither the trial court nor the respondent court made a finding on who between petitioner and private
respondent refuses to have sexual contact with the other. The fact remains, however, that there has never been coitus between them.
At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated, the
question of who refuses to have sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on record to show that any of the parties is suffering from phychological
incapacity. Petitioner also claims that he wanted to have sex with private respondent; that the reason for private respondent's refusal
may not be psychological but physical disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or asked her what is ailing her, and why
she balks and avoids him everytime he wanted to have sexual intercourse with her. He never did. At least, there is nothing in the record
to show that he had tried to find out or discover what the problem with his wife could be. What he presented in evidence is his doctor's
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Medical Report that there is no evidence of his impotency and he is capable of erection. Since it is petitioner's claim that the reason is
not psychological but perhaps physical disorder on the part of private respondent, it became incumbent upon him to prove such a claim.

If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal
is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to
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have sexual intercourse with his or her spouse is considered a sign of psychological incapacity.
Evidently, one of the essential marital obligations under the Family Code is "To procreate children based on the universal principle that
procreation of children through sexual cooperation is the basic end of marriage." Constant non- fulfillment of this obligation will finally
destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill
the above marital obligation is equivalent to psychological incapacity.

As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him
does not inspire belief. Since he was not physically impotent, but he refrained from sexual intercourse during the entire time
(from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of symphaty for her feelings,
he deserves to be doubted for not having asserted his right seven though she balked (Tompkins vs. Tompkins, 111 Atl. 599,
cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife was suffering from incapacity, the fact that
defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose
normal expectations of her marriage were frustrated by her husband's inadequacy. Considering the innate modesty of the
Filipino woman, it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her
husband if it were not necessary to put her life in order and put to rest her marital status.

We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform
the sexual act, which is not phychological incapacity, and which can be achieved "through proper motivation." After almost ten
months of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom
he professes to love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is
indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge
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the basic marital covenants within the contemplation of the Family Code.

While the law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68,
Family Code), the sanction therefor is actually the "spontaneous, mutual affection between husband and wife and not any legal
mandate or court order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is
an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an
unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and
oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation
and ensures the continuation of family relations.

It appears that there is absence of empathy between petitioner and private respondent. That is — a shared feeling which between
husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion.
Marital union is a two-way process. An expressive interest in each other's feelings at a time it is needed by the other can go a long way
in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with
love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social
institution.

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and
unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court.

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated November 29, 1994 is hereby
AFFIRMED in all respects and the petition is hereby DENIED for lack of merit. SO ORDERED.

G.R. No. L-40098 August 29, 1975 ANTONIO LIM TANHU, DY OCHAY, ALFONSO LEONARDO NG SUA and CO OYO, petitioners,
vs.
HON. JOSE R. RAMOLETE as Presiding Judge, Branch III, CFI, Cebu and TAN PUT, respondents.

Petition for (1) certiorari to annul and set aside certain actuations of respondent Court of First Instance of Cebu Branch III in its Civil
Case No. 12328, an action for accounting of properties and money totalling allegedly about P15 million pesos filed with a common
cause of action against six defendants, in which after declaring four of the said defendants herein petitioners, in default and while the
trial as against the two defendants not declared in default was in progress, said court granted plaintiff's motion to dismiss the case in so
far as the non-defaulted defendants were concerned and thereafter proceeded to hear ex-parte the rest of the plaintiffs evidence and
subsequently rendered judgment by default against the defaulted defendants, with the particularities that notice of the motion to dismiss
was not duly served on any of the defendants, who had alleged a compulsory counterclaim against plaintiff in their joint answer, and the
judgment so rendered granted reliefs not prayed for in the complaint, and (2) prohibition to enjoin further proceedings relative to the
motion for immediate execution of the said judgment.

Originally, this litigation was a complaint filed on February 9, 1971 by respondent Tan Put only against the spouses-petitioners Antonio
Lim Tanhu and Dy Ochay. Subsequently, in an amended complaint dated September 26, 1972, their son Lim Teck Chuan and the other
spouses-petitioners Alfonso Leonardo Ng Sua and Co Oyo and their son Eng Chong Leonardo were included as defendants. In said
amended complaint, respondent Tan alleged that she "is the widow of Tee Hoon Lim Po Chuan, who was a partner in the commercial
partnership, Glory Commercial Company ... with Antonio Lim Tanhu and Alfonso Ng Sua that "defendant Antonio Lim Tanhu, Alfonso
Leonardo Ng Sua, Lim Teck Chuan, and Eng Chong Leonardo, through fraud and machination, took actual and active management of
the partnership and although Tee Hoon Lim Po Chuan was the manager of Glory Commercial Company, defendants managed to use
the funds of the partnership to purchase lands and building's in the cities of Cebu, Lapulapu, Mandaue, and the municipalities of Talisay
and Minglanilla, some of which were hidden, but the description of those already discovered were as follows: (list of properties) ...;" and
that:

13. (A)fter the death of Tee Hoon Lim Po Chuan, the defendants, without liquidation continued the business of Glory
Commercial Company by purportedly organizing a corporation known as the Glory Commercial Company,
Incorporated, with paid up capital in the sum of P125,000.00, which money and other assets of the said Glory
Commercial Company, Incorporated are actually the assets of the defunct Glory Commercial Company partnership,
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of which the plaintiff has a share equivalent to one third (¹/ ) thereof;

14. (P)laintiff, on several occasions after the death of her husband, has asked defendants of the above-mentioned
properties and for the liquidation of the business of the defunct partnership, including investments on real estate in
Hong Kong, but defendants kept on promising to liquidate said properties and just told plaintiff to

15. (S)ometime in the month of November, 1967, defendants, Antonio Lim Tanhu, by means of fraud deceit and
misrepresentations did then and there, induce and convince the plaintiff to execute a quitclaim of all her rights and
interests, in the assets of the partnership of Glory Commercial Company, which is null and void, executed through
fraud and without any legal effect. The original of said quitclaim is in the possession of the adverse party defendant
Antonio Lim Tanhu.

16. (A)s a matter of fact, after the execution of said quitclaim, defendant Antonio Lim Tanhu offered to pay the plaintiff
the amount P65,000.00 within a period of one (1) month, for which plaintiff was made to sign a receipt for the amount
of P65,000.00 although no such amount was given and plaintiff was not even given a copy of said document;

17. (T)hereafter, in the year 1968-69, the defendants who had earlier promised to liquidate the aforesaid properties
and assets in favor among others of plaintiff and until the middle of the year 1970 when the plaintiff formally
demanded from the defendants the accounting of real and personal properties of the Glory Commercial Company,
defendants refused and stated that they would not give the share of the plaintiff. (Pp. 36-37, Record.)

She prayed as follows:

WHEREFORE, it is most respectfully prayed that judgment be rendered:

a) Ordering the defendants to render an accounting of the real and personal properties of the Glory Commercial
Company including those registered in the names of the defendants and other persons, which properties are located
in the Philippines and in Hong Kong;

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b) Ordering the defendants to deliver to the plaintiff after accounting, one third (¹/ ) of the total value of all the
properties which is approximately P5,000,000.00 representing the just share of the plaintiff;

c) Ordering the defendants to pay the attorney of the plaintiff the sum of Two Hundred Fifty Thousand Pesos
(P250,000.00) by way of attorney's fees and damages in the sum of One Million Pesos (P1,000,000.00).

This Honorable Court is prayed for other remedies and reliefs consistent with law and equity and order the
defendants to pay the costs. (Page 38, Record.)

The admission of said amended complaint was opposed by defendants upon the ground that there were material modifications of the
causes of action previously alleged, but respondent judge nevertheless allowed the amendment reasoning that:

The present action is for accounting of real and personal properties as well as for the recovery of the same with
damages.

An objective consideration of pars. 13 and 15 of the amended complaint pointed out by the defendants to sustain
their opposition will show that the allegations of facts therein are merely to amplify material averments constituting the
cause of action in the original complaint. It likewise include necessary and indispensable defendants without whom
no final determination can be had in the action and in order that complete relief is to be accorded as between those
already parties.

Considering that the amendments sought to be introduced do not change the main causes of action in the original
complaint and the reliefs demanded and to allow amendments is the rule, and to refuse them the exception and in
 order that the real question between the parties may be properly and justly threshed out in a single proceeding to
avoid multiplicity of actions. (Page 40, Record.)

In a single answer with counterclaim, over the signature of their common counsel, defendants denied specifically not only the allegation
that respondent Tan is the widow of Tee Hoon because, according to them, his legitimate wife was Ang Siok Tin still living and with
whom he had four (4) legitimate children, a twin born in 1942, and two others born in 1949 and 1965, all presently residing in
Hongkong, but also all the allegations of fraud and conversion quoted above, the truth being, according to them, that proper liquidation
had been regularly made of the business of the partnership and Tee Hoon used to receive his just share until his death, as a result of
which the partnership was dissolved and what corresponded to him were all given to his wife and children. To quote the pertinent
portions of said answer:

AND BY WAY OF SPECIAL AND AFFIRMATIVE DEFENSES,

defendants hereby incorporate all facts averred and alleged in the answer, and further most respectfully declare:

1. That in the event that plaintiff is filing the present complaint as an heir of Tee Hoon Lim Po Chuan, then, she has
no legal capacity to sue as such, considering that the legitimate wife, namely: Ang Siok Tin, together with their
children are still alive. Under Sec. 1, (d), Rule 16 of the Revised Rules of Court, lack of legal capacity to sue is one of
the grounds for a motion to dismiss and so defendants prays that a preliminary hearing be conducted as provided for
in Sec. 5, of the same rule;

2. That in the alternative case or event that plaintiff is filing the present case under Art. 144 of the Civil Code, then,
her claim or demand has been paid, waived abandoned or otherwise extinguished as evidenced by the 'quitclaim'
Annex 'A' hereof, the ground cited is another ground for a motion to dismiss (Sec. 1, (h), Rule 16) and hence
defendants pray that a preliminary hearing be made in connection therewith pursuant to Section 5 of the
aforementioned rule;

3. That Tee Hoon Lim Po Chuan was legally married to Ang Siok Tin and were blessed with the following children, to
wit: Ching Siong Lim and Ching Hing Lim (twins) born on February 16, 1942; Lim Shing Ping born on March 3, 1949
and Lim Eng Lu born on June 25, 1965 and presently residing in Hongkong;

4. That even before the death of Tee Hoon Lim Po Chuan, the plaintiff was no longer his common law wife and even
though she was not entitled to anything left by Tee Hoon Lim Po Chuan, yet, out of the kindness and generosity on
the part of the defendants, particularly Antonio Lain Tanhu, who, was inspiring to be monk and in fact he is now a
monk, plaintiff was given a substantial amount evidenced by the 'quitclaim' (Annex 'A');

5. That the defendants have acquired properties out of their own personal fund and certainly not from the funds
belonging to the partnership, just as Tee Hoon Lim Po Chuan had acquired properties out of his personal fund and
which are now in the possession of the widow and neither the defendants nor the partnership have anything to do
about said properties;

6. That it would have been impossible to buy properties from funds belonging to the partnership without the other
partners knowing about it considering that the amount taken allegedly is quite big and with such big amount
withdrawn the partnership would have been insolvent;

7. That plaintiff and Tee Hoon Lim Po Chuan were not blessed with children who would have been lawfully entitled to
succeed to the properties left by the latter together with the widow and legitimate children;

8. That despite the fact that plaintiff knew that she was no longer entitled to anything of the shares of the late Tee
Hoon Lim Po Chuan, yet, this suit was filed against the defendant who have to interpose the following —

COUNTERCLAIM

A. That the defendants hereby reproduced, by way of reference, all the allegations and foregoing averments as part
of this counterclaim; .

B. That plaintiff knew and was aware she was merely the common-law wife of Tee Hoon Lim Po Chuan and that the
lawful and legal is still living, together with the legitimate children, and yet she deliberately suppressed this fact, thus
showing her bad faith and is therefore liable for exemplary damages in an amount which the Honorable Court may
determine in the exercise of its sound judicial discretion. In the event that plaintiff is married to Tee Hoon Lim Po
Chuan, then, her marriage is bigamous and should suffer the consequences thereof;
 C. That plaintiff was aware and had knowledge about the 'quitclaim', even though she was not entitled to it, and yet
she falsely claimed that defendants refused even to see her and for filing this unfounded, baseless, futile and puerile
complaint, defendants suffered mental anguish and torture conservatively estimated to be not less than P3,000.00;

D. That in order to defend their rights in court, defendants were constrained to engage the services of the
undersigned counsel, obligating themselves to pay P500,000.00 as attorney's fees;

E. That by way of litigation expenses during the time that this case will be before this Honorable Court and until the
same will be finally terminated and adjudicated, defendants will have to spend at least P5,000.00. (Pp. 44-47.
Record.)

After unsuccessfully trying to show that this counterclaim is merely permissive and should be dismissed for non-payment of the
corresponding filing fee, and after being overruled by the court, in due time, plaintiff answered the same, denying its material
allegations.

On February 3, 1973, however, the date set for the pre-trial, both of the two defendants-spouses the Lim Tanhus and Ng Suas, did not
appear, for which reason, upon motion of plaintiff dated February 16, 1973, in an order of March 12, 1973, they were all "declared in
DEFAULT as of February 3, 1973 when they failed to appear at the pre-trial." They sought to hive this order lifted thru a motion for
reconsideration, but the effort failed when the court denied it. Thereafter, the trial started, but at the stage thereof where the first witness
of the plaintiff by the name of Antonio Nuñez who testified that he is her adopted son, was up for re-cross-examination, said plaintiff
unexpectedly filed on October 19, 1974 the following simple and unreasoned

MOTION TO DROP DEFENDANTS LIM TECK

CHUAN AND ENG CHONG LEONARDO

COMES now plaintiff, through her undersigned counsel, unto the Honorable Court most respectfully moves to drop
from the complaint the defendants Lim Teck Chuan and Eng Chong Leonardo and to consider the case dismissed
insofar as said defendants Lim Teck Chuan and Eng Chong Leonardo are concerned.

WHEREFORE, it is most respectfully prayed of the Honorable Court to drop from the complaint the defendants Lim
Teck Chuan and Eng Chong Leonardo and to dismiss the case against them without pronouncement as to costs.
(Page 50, Record.)

which she set for hearing on December 21, 1974. According to petitioners, none of the defendants declared in default
were notified of said motion, in violation of Section 9 of Rule 13, since they had asked for the lifting of the order of
default, albeit unsuccessfully, and as regards the defendants not declared in default, the setting of the hearing of said
motion on October 21, 1974 infringed the three-day requirement of Section 4 of Rule 15, inasmuch as Atty. Adelino
Sitoy of Lim Teck Chuan was served with a copy of the motion personally only on October 19, 1974, while Atty.
Benjamin Alcudia of Eng Chong Leonardo was served by registered mail sent only on the same date.

Evidently without even verifying the notices of service, just as simply as plaintiff had couched her motion, and also
without any legal grounds stated, respondent court granted the prayer of the above motion thus:

ORDER

Acting on the motion of the plaintiff praying for the dismissal of the complaint as against defendants Lim Teck Chuan
and Eng Chong Leonardo. —

The same is hereby GRANTED. The complaint as against defendant Lim Teck Chuan and Eng Chong Leonardo is
hereby ordered DISMISSED without pronouncement as to costs.

Simultaneously, the following order was also issued:

Considering that defendants Antonio Lim Tanhu and his spouse Dy Ochay as well as defendants Alfonso Ng Sua and
his spouse Co Oyo have been declared in default for failure to appear during the pre-trial and as to the other
defendants the complaint had already been ordered dismissed as against them.

Let the hearing of the plaintiff's evidence ex-parte be set on November 20, 1974, at 8:30 A.M. before the Branch
Clerk of Court who is deputized for the purpose, to swear in witnesses and to submit her report within ten (10) days
thereafter. Notify the plaintiff.

SO ORDERED.
 Cebu City, Philippines, October 21, 1974. (Page 52, Record.)

But, in connection with this last order, the scheduled ex-parte reception of evidence did not take place on November 20, 1974, for on
October 28, 1974, upon verbal motion of plaintiff, the court issued the following self-explanatory order: .

Acting favorably on the motion of the plaintiff dated October 18, 1974, the Court deputized the Branch Clerk of Court
to receive the evidence of the plaintiff ex-parte to be made on November 20, 1974. However, on October 28, 1974,
the plaintiff, together with her witnesses, appeared in court and asked, thru counsel, that she be allowed to present
her evidence.

Considering the time and expenses incurred by the plaintiff in bringing her witnesses to the court, the Branch Clerk of
Court is hereby authorized to receive immediately the evidence of the plaintiff ex-parte.

SO ORDERED.

Cebu City, Philippines, October 28, 1974. (Page 53. Record.)

Upon learning of these orders on October 23, 1973, the defendant Lim Teck Cheng, thru counsel, Atty. Sitoy, filed a motion for
reconsideration thereof, and on November 1, 1974, defendant Eng Chong Leonardo, thru counsel Atty. Alcudia, filed also his own
motion for reconsideration and clarification of the same orders. These motions were denied in an order dated December 6, 1974 but
received by the movants only on December 23, 1974. Meanwhile, respondent court rendered the impugned decision on December 20,
1974. It does not appear when the parties were served copies of this decision.

Subsequently, on January 6, 1975, all the defendants, thru counsel, filed a motion to quash the order of October 28, 1974. Without
waiting however for the resolution thereof, on January 13, 1974, Lim Teck Chuan and Eng Chong Leonardo went to the Court of
Appeals with a petition for certiorari seeking the annulment of the above-mentioned orders of October 21, 1974 and October 28, 1974
and decision of December 20, 1974. By resolution of January 24, 1975, the Court of Appeals dismissed said petition, holding that its
filing was premature, considering that the motion to quash the order of October 28, 1974 was still unresolved by the trial court. This
holding was reiterated in the subsequent resolution of February 5, 1975 denying the motion for reconsideration of the previous
dismissal.

On the other hand, on January 20, 1975, the other defendants, petitioners herein, filed their notice of appeal, appeal bond and motion
for extension to file their record on appeal, which was granted, the extension to expire after fifteen (15) days from January 26 and 27,
1975, for defendants Lim Tanhu and Ng Suas, respectively. But on February 7, 1975, before the perfection of their appeal, petitioners
filed the present petition with this Court. And with the evident intent to make their procedural position clear, counsel for defendants, Atty.
Manuel Zosa, filed with respondent court a manifestation dated February 14, 1975 stating that "when the non-defaulted defendants Eng
Chong Leonardo and Lim Teck Chuan filed their petition in the Court of Appeals, they in effect abandoned their motion to quash the
order of October 28, 1974," and that similarly "when Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo, filed their
petition for certiorari and prohibition ... in the Supreme Court, they likewise abandoned their motion to quash." This manifestation was
acted upon by respondent court together with plaintiffs motion for execution pending appeal in its order of the same date February 14,
1975 this wise:

ORDER

When these incidents, the motion to quash the order of October 28, 1974 and the motion for execution pending
appeal were called for hearing today, counsel for the defendants-movants submitted their manifestation inviting the
attention of this Court that by their filing for certiorari and prohibition with preliminary injunction in the Court of Appeals
which was dismissed and later the defaulted defendants filed with the Supreme Court certiorari with prohibition they
in effect abandoned their motion to quash.

IN VIEW HEREOF, the motion to quash is ordered ABANDONED. The resolution of the motion for execution pending
appeal shall be resolved after the petition for certiorari and prohibition shall have been resolved by the Supreme
Court.

SO ORDERED.

Cebu City, Philippines, February 14, 1975. (Page 216, Record.)

Upon these premises, it is the position of petitioners that respondent court acted illegally, in violation of the rules or with grave abuse of
discretion in acting on respondent's motion to dismiss of October 18, 1974 without previously ascertaining whether or not due notice
thereof had been served on the adverse parties, as, in fact, no such notice was timely served on the non-defaulted defendants Lim
Teck Chuan and Eng Chong Leonardo and no notice at all was ever sent to the other defendants, herein petitioners, and more so, in
actually ordering the dismissal of the case by its order of October 21, 1974 and at the same time setting the case for further hearing as
against the defaulted defendants, herein petitioners, actually hearing the same ex-parte and thereafter rendering the decision of
December 20, 1974 granting respondent Tan even reliefs not prayed for in the complaint. According to the petitioners, to begin with,
there was compulsory counterclaim in the common answer of the defendants the nature of which is such that it cannot be decided in an
independent action and as to which the attention of respondent court was duly called in the motions for reconsideration. Besides, and
more importantly, under Section 4 of Rule 18, respondent court had no authority to divide the case before it by dismissing the same as
against the non-defaulted defendants and thereafter proceeding to hear it ex-parte and subsequently rendering judgment against the
defaulted defendants, considering that in their view, under the said provision of the rules, when a common cause of action is alleged
against several defendants, the default of any of them is a mere formality by which those defaulted are not allowed to take part in the
proceedings, but otherwise, all the defendants, defaulted and not defaulted, are supposed to have but a common fate, win or lose. In
other words, petitioners posit that in such a situation, there can only be one common judgment for or against all the defendant, the non-
defaulted and the defaulted. Thus, petitioners contend that the order of dismissal of October 21, 1974 should be considered also as the
final judgment insofar as they are concerned, or, in the alternative, it should be set aside together with all the proceedings and decision
held and rendered subsequent thereto, and that the trial be resumed as of said date, with the defendants Lim Teck Chuan and Eng
Chong Leonardo being allowed to defend the case for all the defendants.

On the other hand, private respondent maintains the contrary view that inasmuch as petitioners had been properly declared in default,
they have no personality nor interest to question the dismissal of the case as against their non-defaulted co-defendants and should
suffer the consequences of their own default. Respondent further contends, and this is the only position discussed in the memorandum
submitted by her counsel, that since petitioners have already made or at least started to make their appeal, as they are in fact entitled
to appeal, this special civil action has no reason for being. Additionally, she invokes the point of prematurity upheld by the Court of
Appeals in regard to the above-mentioned petition therein of the non-defaulted defendants Lim Teck Chuan and Eng Chong Leonardo.
Finally, she argues that in any event, the errors attributed to respondent court are errors of judgment and may be reviewed only in an
appeal.

After careful scrutiny of all the above-related proceedings, in the court below and mature deliberation, the Court has arrived at the
conclusion that petitioners should be granted relief, if only to stress emphatically once more that the rules of procedure may not be
misused and abused as instruments for the denial of substantial justice. A review of the record of this case immediately discloses that
here is another demonstrative instance of how some members of the bar, availing of their proficiency in invoking the letter of the rules
without regard to their real spirit and intent, succeed in inducing courts to act contrary to the dictates of justice and equity, and, in some
instances, to wittingly or unwittingly abet unfair advantage by ironically camouflaging their actuations as earnest efforts to satisfy the
public clamor for speedy disposition of litigations, forgetting all the while that the plain injunction of Section 2 of Rule 1 is that the "rules
shall be liberally construed in order to promote their object and to assist the parties in obtaining not only 'speedy' but more imperatively,
"just ... and inexpensive determination of every action and proceeding." We cannot simply pass over the impression that the procedural
maneuvers and tactics revealed in the records of the case at bar were deliberately planned with the calculated end in view of depriving
petitioners and their co-defendants below of every opportunity to properly defend themselves against a claim of more than substantial
character, considering the millions of pesos worth of properties involved as found by respondent judge himself in the impugned
decision, a claim that appears, in the light of the allegations of the answer and the documents already brought to the attention of the
court at the pre-trial, to be rather dubious. What is most regrettable is that apparently, all of these alarming circumstances have
escaped respondent judge who did not seem to have hesitated in acting favorably on the motions of the plaintiff conducive to the
deplorable objective just mentioned, and which motions, at the very least, appeared to be 'of highly controversial' merit, considering that
their obvious tendency and immediate result would be to convert the proceedings into a one-sided affair, a situation that should be
readily condemnable and intolerable to any court of justice.

Indeed, a seeming disposition on the part of respondent court to lean more on the contentions of private respondent may be discerned
from the manner it resolved the attempts of defendants Dy Ochay and Antonio Lim Tanhu to have the earlier order of default against
them lifted. Notwithstanding that Dy Ochay's motion of October 8, 1971, co-signed by her with their counsel, Atty. Jovencio Enjambre
(Annex 2 of respondent answer herein) was over the jurat of the notary public before whom she took her oath, in the order of November
2, 1971, (Annex 3 id.) it was held that "the oath appearing at the bottom of the motion is not the one contemplated by the abovequoted
pertinent provision (See. 3, Rule 18) of the rules. It is not even a verification. (See. 6, Rule 7.) What the rule requires as interpreted by
the Supreme Court is that the motion must have to be accompanied by an affidavit of merits that the defendant has a meritorious
defense, thereby ignoring the very simple legal point that the ruling of the Supreme Court in Ong Peng vs. Custodio, 1 SCRA 781,
relied upon by His Honor, under which a separate affidavit of merit is required refers obviously to instances where the motion is not over
oath of the party concerned, considering that what the cited provision literally requires is no more than a "motion under oath." Stated
otherwise, when a motion to lift an order of default contains the reasons for the failure to answer as well as the facts constituting the
prospective defense of the defendant and it is sworn to by said defendant, neither a formal verification nor a separate affidavit of merit
is necessary.

What is worse, the same order further held that the motion to lift the order of default "is an admission that there was a valid service of
summons" and that said motion could not amount to a challenge against the jurisdiction of the court over the person of the defendant.
Such a rationalization is patently specious and reveals an evident failure to grasp the import of the legal concepts involved. A motion to
lift an order of default on the ground that service of summons has not been made in accordance with the rules is in order and is in
essence verily an attack against the jurisdiction of the court over the person of the defendant, no less than if it were worded in a manner
specifically embodying such a direct challenge.

And then, in the order of February 14, 1972 (Annex 6, id.) lifting at last the order of default as against defendant Lim Tanhu, His Honor
posited that said defendant "has a defense (quitclaim) which renders the claim of the plaintiff contentious." We have read defendants'
motion for reconsideration of November 25, 1971 (Annex 5, id.), but We cannot find in it any reference to a "quitclaim". Rather, the
allegation of a quitclaim is in the amended complaint (Pars. 15-16, Annex B of the petition herein) in which plaintiff maintains that her
signature thereto was secured through fraud and deceit. In truth, the motion for reconsideration just mentioned, Annex 5, merely
reiterated the allegation in Dy Ochay's earlier motion of October 8, 1971, Annex 2, to set aside the order of default, that plaintiff Tan
could be but the common law wife only of Tee Hoon, since his legitimate wife was still alive, which allegation, His Honor held in the
order of November 2, 1971, Annex 3, to be "not good and meritorious defense". To top it all, whereas, as already stated, the order of
February 19, 1972, Annex 6, lifted the default against Lim Tanhu because of the additional consideration that "he has a defense
(quitclaim) which renders the claim of the plaintiff contentious," the default of Dy Ochay was maintained notwithstanding that exactly the
same "contentions" defense as that of her husband was invoked by her.

Such tenuous, if not altogether erroneous reasonings and manifest inconsistency in the legal postures in the orders in question can
hardly convince Us that the matters here in issue were accorded due and proper consideration by respondent court. In fact, under the
circumstances herein obtaining, it seems appropriate to stress that, having in view the rather substantial value of the subject matter
involved together with the obviously contentious character of plaintiff's claim, which is discernible even on the face of the complaint
itself, utmost care should have been taken to avoid the slightest suspicion of improper motivations on the part of anyone concerned.
Upon the considerations hereunder to follow, the Court expresses its grave concern that much has to be done to dispel the impression
that herein petitioners and their co-defendants are being railroaded out of their rights and properties without due process of law, on the
strength of procedural technicalities adroitly planned by counsel and seemingly unnoticed and undetected by respondent court, whose
orders, gauged by their tenor and the citations of supposedly pertinent provisions and jurisprudence made therein, cannot be said to
have proceeded from utter lack of juridical knowledgeability and competence.

–1–

The first thing that has struck the Court upon reviewing the record is the seeming alacrity with which the motion to dismiss the case
against non-defaulted defendants Lim Teck Chuan and Eng Chong Leonardo was disposed of, which definitely ought not to have been
the case. The trial was proceeding with the testimony of the first witness of plaintiff and he was still under re-cross-examination.
Undoubtedly, the motion to dismiss at that stage and in the light of the declaration of default against the rest of the defendants was a
well calculated surprise move, obviously designed to secure utmost advantage of the situation, regardless of its apparent unfairness. To
say that it must have been entirely unexpected by all the defendants, defaulted and non-defaulted , is merely to rightly assume that the
parties in a judicial proceeding can never be the victims of any procedural waylaying as long as lawyers and judges are imbued with the
requisite sense of equity and justice.

But the situation here was aggravated by the indisputable fact that the adverse parties who were entitled to be notified of such
unanticipated dismissal motion did not get due notice thereof. Certainly, the non-defaulted defendants had the right to the three-day
prior notice required by Section 4 of Rule 15. How could they have had such indispensable notice when the motion was set for hearing
on Monday, October 21, 1974, whereas the counsel for Lim Teck Chuan, Atty. Sitoy was personally served with the notice only on
Saturday, October 19, 1974 and the counsel for Eng Chong Leonardo, Atty. Alcudia, was notified by registered mail which was posted
only that same Saturday, October 19, 1974? According to Chief Justice Moran, "three days at least must intervene between the date of
service of notice and the date set for the hearing, otherwise the court may not validly act on the motion." (Comments on the Rules of
Court by Moran, Vol. 1, 1970 ed. p. 474.) Such is the correct construction of Section 4 of Rule 15. And in the instant case, there can be
no question that the notices to the non-defaulted defendants were short of the requirement of said provision.

We can understand the over-anxiety of counsel for plaintiff, but what is incomprehensible is the seeming inattention of respondent judge
to the explicit mandate of the pertinent rule, not to speak of the imperatives of fairness, considering he should have realized the far-
reaching implications, specially from the point of view he subsequently adopted, albeit erroneously, of his favorably acting on it.
Actually, he was aware of said consequences, for simultaneously with his order of dismissal, he immediately set the case for the ex-
parte hearing of the evidence against the defaulted defendants, which, incidentally, from the tenor of his order which We have quoted
above, appears to have been done by him motu propio As a matter of fact, plaintiff's motion also quoted above did not pray for it.

Withal, respondent court's twin actions of October 21, 1974 further ignores or is inconsistent with a number of known juridical principles
concerning defaults, which We will here take occasion to reiterate and further elucidate on, if only to avoid a repetition of the
unfortunate errors committed in this case. Perhaps some of these principles have not been amply projected and elaborated before, and
such paucity of elucidation could be the reason why respondent judge must have acted as he did. Still, the Court cannot but express its
vehement condemnation of any judicial actuation that unduly deprives any party of the right to be heard without clear and specific
warrant under the terms of existing rules or binding jurisprudence. Extreme care must be the instant reaction of every judge when
confronted with a situation involving risks that the proceedings may not be fair and square to all the parties concerned. Indeed, a keen
sense of fairness, equity and justice that constantly looks for consistency between the letter of the adjective rules and these basic
principles must be possessed by every judge, If substance is to prevail, as it must, over form in our courts. Literal observance of the
rules, when it is conducive to unfair and undue advantage on the part of any litigant before it, is unworthy of any court of justice and
equity. Withal, only those rules and procedure informed, with and founded on public policy deserve obedience in accord with their
unequivocal language or words..

Before proceeding to the discussion of the default aspects of this case, however, it should not be amiss to advert first to the patent
incorrectness, apparent on the face of the record, of the aforementioned order of dismissal of October 21, 1974 of the case below as
regards non-defaulted defendants Lim and Leonardo. While it is true that said defendants are not petitioners herein, the Court deems it
necessary for a full view of the outrageous procedural strategy conceived by respondent's counsel and sanctioned by respondent court
to also make reference to the very evident fact that in ordering said dismissal respondent court disregarded completely the existence of
defendant's counterclaim which it had itself earlier held if indirectly, to be compulsory in nature when it refused to dismiss the same on
the ground alleged by respondent Tan that he docketing fees for the filing thereof had not been paid by defendants.
Indeed, that said counterclaim is compulsory needs no extended elaboration. As may be noted in the allegations hereof aforequoted, it
arose out of or is necessarily connected with the occurrence that is the subject matter of the plaintiff's claim, (Section 4, Rule 9) namely,
plaintiff's allegedly being the widow of the deceased Tee Hoon entitled, as such, to demand accounting of and to receive the share of
her alleged late husband as partner of defendants Antonio Lim Tanhu and Alfonso Leonardo Ng Sua in Glory Commercial Company,
the truth of which allegations all the defendants have denied. Defendants maintain in their counterclaim that plaintiff knew of the falsity
of said allegations even before she filed her complaint, for she had in fact admitted her common-law relationship with said deceased in
a document she had jointly executed with him by way of agreement to terminate their illegitimate relationship, for which she received
P40,000 from the deceased, and with respect to her pretended share in the capital and profits in the partnership, it is also defendants'
posture that she had already quitclaimed, with the assistance of able counsel, whatever rights if any she had thereto in November,
1967, for the sum of P25,000 duly receipted by her, which quitclaim was, however, executed, according to respondent herself in her
amended complaint, through fraud. And having filed her complaint knowing, according to defendants, as she ought to have known, that
the material allegations thereof are false and baseless, she has caused them to suffer damages. Undoubtedly, with such allegations,
defendants' counterclaim is compulsory, not only because the same evidence to sustain it will also refute the cause or causes of action
alleged in plaintiff's complaint, (Moran, supra p. 352) but also because from its very nature, it is obvious that the same cannot "remain
pending for independent adjudication by the court." (Section 2, Rule 17.)

The provision of the rules just cited specifically enjoins that "(i)f a counterclaim has been pleaded by a defendant prior to the service
upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim
can remain pending for independent adjudication by the court." Defendants Lim and Leonardo had no opportunity to object to the
motion to dismiss before the order granting the same was issued, for the simple reason that they were not opportunity notified of the
motion therefor, but the record shows clearly that at least defendant Lim immediately brought the matter of their compulsory
counterclaim to the attention of the trial court in his motion for reconsideration of October 23, 1974, even as the counsel for the other
defendant, Leonardo, predicated his motion on other grounds. In its order of December 6, 1974, however, respondent court not only
upheld the plaintiffs supposed absolute right to choose her adversaries but also held that the counterclaim is not compulsory, thereby
virtually making unexplained and inexplicable 180-degree turnabout in that respect.

There is another equally fundamental consideration why the motion to dismiss should not have been granted. As the plaintiff's
complaint has been framed, all the six defendants are charged with having actually taken part in a conspiracy to misappropriate,
conceal and convert to their own benefit the profits, properties and all other assets of the partnership Glory Commercial Company, to
the extent that they have allegedly organized a corporation, Glory Commercial Company, Inc. with what they had illegally gotten from
the partnership. Upon such allegations, no judgment finding the existence of the alleged conspiracy or holding the capital of the
corporation to be the money of the partnership is legally possible without the presence of all the defendants. The non-defaulted
defendants are alleged to be stockholders of the corporation and any decision depriving the same of all its assets cannot but prejudice
the interests of said defendants. Accordingly, upon these premises, and even prescinding from the other reasons to be discussed anon
it is clear that all the six defendants below, defaulted and non-defaulted, are indispensable parties. Respondents could do no less than
grant that they are so on page 23 of their answer. Such being the case, the questioned order of dismissal is exactly the opposite of
what ought to have been done. Whenever it appears to the court in the course of a proceeding that an indispensable party has not been
joined, it is the duty of the court to stop the trial and to order the inclusion of such party. (The Revised Rules of Court, Annotated &
Commented by Senator Vicente J. Francisco, Vol. 1, p. 271, 1973 ed. See also Cortez vs. Avila, 101 Phil. 705.) Such an order is
unavoidable, for the "general rule with reference to the making of parties in a civil action requires the joinder of all necessary parties
wherever possible, and the joinder of all indispensable parties under any and all conditions, the presence of those latter being a sine
qua non of the exercise of judicial power." (Borlasa vs. Polistico, 47 Phil. 345, at p. 347.) It is precisely " when an indispensable party is
not before the court (that) the action should be dismissed." (People v. Rodriguez, 106 Phil. 325, at p. 327.) The absence of an
indispensable party renders all subsequent actuations of the court null and void, for want of authority to act, not only as to the absent
parties but even as to those present. In short, what respondent court did here was exactly the reverse of what the law ordains — it
eliminated those who by law should precisely be joined.

As may he noted from the order of respondent court quoted earlier, which resolved the motions for reconsideration of the dismissal
order filed by the non-defaulted defendants, His Honor rationalized his position thus:

It is the rule that it is the absolute prerogative of the plaintiff to choose, the theory upon which he predicates his right
of action, or the parties he desires to sue, without dictation or imposition by the court or the adverse party. If he
makes a mistake in the choice of his right of action, or in that of the parties against whom he seeks to enforce it, that
is his own concern as he alone suffers therefrom. The plaintiff cannot be compelled to choose his defendants, He
may not, at his own expense, be forced to implead anyone who, under the adverse party's theory, is to answer for
defendant's liability. Neither may the Court compel him to furnish the means by which defendant may avoid or
mitigate their liability. (Vaño vs. Alo, 95 Phil. 495-496.)

This being the rule this court cannot compel the plaintiff to continue prosecuting her cause of action against the
defendants-movants if in the course of the trial she believes she can enforce it against the remaining defendants
subject only to the limitation provided in Section 2, Rule 17 of the Rules of Court. ... (Pages 6263, Record.)

Noticeably, His Honor has employed the same equivocal terminology as in plaintiff's motion of October 18, 1974 by referring to the
action he had taken as being "dismissal of the complaint against them or their being dropped therefrom", without perceiving that the
reason for the evidently intentional ambiguity is transparent. The apparent idea is to rely on the theory that under Section 11 of Rule 3,
parties may be dropped by the court upon motion of any party at any stage of the action, hence "it is the absolute right prerogative of
the plaintiff to choose—the parties he desires to sue, without dictation or imposition by the court or the adverse party." In other words,
the ambivalent pose is suggested that plaintiff's motion of October 18, 1974 was not predicated on Section 2 of Rule 17 but more on
Section 11 of Rule 3. But the truth is that nothing can be more incorrect. To start with, the latter rule does not comprehend whimsical
and irrational dropping or adding of parties in a complaint. What it really contemplates is erroneous or mistaken non-joinder and
misjoinder of parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously later at the pleasure of the
plaintiff. The rule presupposes that the original inclusion had been made in the honest conviction that it was proper and the subsequent
dropping is requested because it has turned out that such inclusion was a mistake. And this is the reason why the rule ordains that the
dropping be "on such terms as are just" — just to all the other parties. In the case at bar, there is nothing in the record to legally justify
the dropping of the non-defaulted defendants, Lim and Leonardo. The motion of October 18, 1974 cites none. From all appearances,
plaintiff just decided to ask for it, without any relevant explanation at all. Usually, the court in granting such a motion inquires for the
reasons and in the appropriate instances directs the granting of some form of compensation for the trouble undergone by the defendant
in answering the complaint, preparing for or proceeding partially to trial, hiring counsel and making corresponding expenses in the
premises. Nothing of these, appears in the order in question. Most importantly, His Honor ought to have considered that the outright
dropping of the non-defaulted defendants Lim and Leonardo, over their objection at that, would certainly be unjust not only to the
petitioners, their own parents, who would in consequence be entirely defenseless, but also to Lim and Leonardo themselves who would
naturally correspondingly suffer from the eventual judgment against their parents. Respondent court paid no heed at all to the mandate
that such dropping must be on such terms as are just" — meaning to all concerned with its legal and factual effects.

Thus, it is quite plain that respondent court erred in issuing its order of dismissal of October 21, 1974 as well as its order of December
6, 1974 denying reconsideration of such dismissal. As We make this ruling, We are not oblivious of the circumstance that defendants
Lim and Leonardo are not parties herein. But such consideration is inconsequential. The fate of the case of petitioners is inseparably
tied up with said order of dismissal, if only because the order of ex-parte hearing of October 21, 1974 which directly affects and
prejudices said petitioners is predicated thereon. Necessarily, therefore, We have to pass on the legality of said order, if We are to
decide the case of herein petitioners properly and fairly.

The attitude of the non-defaulted defendants of no longer pursuing further their questioning of the dismissal is from another point of
view understandable. On the one hand, why should they insist on being defendants when plaintiff herself has already release from her
claims? On the other hand, as far as their respective parents-co-defendants are concerned, they must have realized that they (their
parents) could even be benefited by such dismissal because they could question whether or not plaintiff can still prosecute her case
against them after she had secured the order of dismissal in question. And it is in connection with this last point that the true and correct
concept of default becomes relevant.

At this juncture, it may also be stated that the decision of the Court of Appeals of January 24, 1975 in G. R. No. SP-03066 dismissing
the petition for certiorari of non-defaulted defendants Lim and Leonardo impugning the order of dismissal of October 21, 1974, has no
bearing at all in this case, not only because that dismissal was premised by the appellate court on its holding that the said petition was
premature inasmuch as the trial court had not yet resolved the motion of the defendants of October 28, 1974 praying that said disputed
order be quashed, but principally because herein petitioners were not parties in that proceeding and cannot, therefore, be bound by its
result. In particular, We deem it warranted to draw the attention of private respondent's counsel to his allegations in paragraphs XI to
XIV of his answer, which relate to said decision of the Court of Appeals and which have the clear tendency to make it appear to the
Court that the appeals court had upheld the legality and validity of the actuations of the trial court being questioned, when as a matter of
indisputable fact, the dismissal of the petition was based solely and exclusively on its being premature without in any manner delving
into its merits. The Court must and does admonish counsel that such manner of pleading, being deceptive and lacking in candor, has
no place in any court, much less in the Supreme Court, and if We are adopting a passive attitude in the premises, it is due only to the
fact that this is counsel's first offense. But similar conduct on his part in the future will definitely be dealt with more severely. Parties and
counsel would be well advised to avoid such attempts to befuddle the issues as invariably then will be exposed for what they are,
certainly unethical and degrading to the dignity of the law profession. Moreover, almost always they only betray the inherent weakness
of the cause of the party resorting to them.

–2–

Coming now to the matter itself of default, it is quite apparent that the impugned orders must have proceeded from inadequate
apprehension of the fundamental precepts governing such procedure under the Rules of Court. It is time indeed that the concept of this
procedural device were fully understood by the bench and bar, instead of being merely taken for granted as being that of a simple
expedient of not allowing the offending party to take part in the proceedings, so that after his adversary shall have presented his
evidence, judgment may be rendered in favor of such opponent, with hardly any chance of said judgment being reversed or modified.

The Rules of Court contain a separate rule on the subject of default, Rule 18. But said rule is concerned solely with default resulting
from failure of the defendant or defendants to answer within the reglementary period. Referring to the simplest form of default, that is,
where there is only one defendant in the action and he fails to answer on time, Section 1 of the rule provides that upon "proof of such
failure, (the court shall) declare the defendant in default. Thereupon the court shall proceed to receive the plaintiff's evidence and
render judgment granting him such relief as the complaint and the facts proven may warrant." This last clause is clarified by Section 5
which says that "a judgment entered against a party in default shall not exceed the amount or be different in kind from that prayed for."

Unequivocal, in the literal sense, as these provisions are, they do not readily convey the full import of what they contemplate. To begin
with, contrary to the immediate notion that can be drawn from their language, these provisions are not to be understood as meaning
that default or the failure of the defendant to answer should be "interpreted as an admission by the said defendant that the plaintiff's
cause of action find support in the law or that plaintiff is entitled to the relief prayed for." (Moran, supra, p. 535 citing Macondary & Co. v.
Eustaquio, 64 Phil. 466, citing with approval Chaffin v. McFadden, 41 Ark. 42; Johnson v. Pierce, 12 Ark. 599; Mayden v. Johnson, 59
Ga. 105; People v. Rust, 292 111. 328; Ken v. Leopold 21 111. A. 163; Chicago, etc. Electric R. Co. v. Krempel 116 111. A. 253.)

Being declared in default does not constitute a waiver of rights except that of being heard and of presenting evidence in the trial court.
According to Section 2, "except as provided in Section 9 of Rule 13, a party declared in default shall not be entitled to notice of
subsequent proceedings, nor to take part in the trial." That provision referred to reads: "No service of papers other than substantially
amended pleadings and final orders or judgments shall be necessary on a party in default unless he files a motion to set aside the order
of default, in which event he shall be entitled to notice of all further proceedings regardless of whether the order of default is set aside or
not." And pursuant to Section 2 of Rule 41, "a party who has been declared in default may likewise appeal from the judgment rendered
against him as contrary to the evidence or to the law, even if no petition for relief to set aside the order of default has been presented by
him in accordance with Rule 38.".

In other words, a defaulted defendant is not actually thrown out of court. While in a sense it may be said that by defaulting he leaves
himself at the mercy of the court, the rules see to it that any judgment against him must be in accordance with law. The evidence to
support the plaintiff's cause is, of course, presented in his absence, but the court is not supposed to admit that which is basically
incompetent. Although the defendant would not be in a position to object, elementary justice requires that, only legal evidence should
be considered against him. If the evidence presented should not be sufficient to justify a judgment for the plaintiff, the complaint must
be dismissed. And if an unfavorable judgment should be justifiable, it cannot exceed in amount or be different in kind from what is
prayed for in the complaint.

Incidentally, these considerations argue against the present widespread practice of trial judges, as was done by His Honor in this case,
of delegating to their clerks of court the reception of the plaintiff's evidence when the defendant is in default. Such a Practice is wrong in
principle and orientation. It has no basis in any rule. When a defendant allows himself to be declared in default, he relies on the faith
that the court would take care that his rights are not unduly prejudiced. He has a right to presume that the law and the rules will still be
observed. The proceedings are held in his forced absence, and it is but fair that the plaintiff should not be allowed to take advantage of
the situation to win by foul or illegal means or with inherently incompetent evidence. Thus, in such instances, there is need for more
attention from the court, which only the judge himself can provide. The clerk of court would not be in a position much less have the
authority to act in the premises in the manner demanded by the rules of fair play and as contemplated in the law, considering his
comparably limited area of discretion and his presumably inferior preparation for the functions of a judge. Besides, the default of the
defendant is no excuse for the court to renounce the opportunity to closely observe the demeanor and conduct of the witnesses of the
plaintiff, the better to appreciate their truthfulness and credibility. We therefore declare as a matter of judicial policy that there being no
imperative reason for judges to do otherwise, the practice should be discontinued.

Another matter of practice worthy of mention at this point is that it is preferable to leave enough opportunity open for possible lifting of
the order of default before proceeding with the reception of the plaintiff's evidence and the rendition of the decision. "A judgment by
default may amount to a positive and considerable injustice to the defendant; and the possibility of such serious consequences
necessitates a careful and liberal examination of the grounds upon which the defendant may seek to set it aside." (Moran, supra p. 534,
citing Coombs vs. Santos, 24 Phil. 446; 449-450.) The expression, therefore, in Section 1 of Rule 18 aforequoted which says that
"thereupon the court shall proceed to receive the plaintiff's evidence etc." is not to be taken literally. The gain in time and dispatch
should the court immediately try the case on the very day of or shortly after the declaration of default is far outweighed by the
inconvenience and complications involved in having to undo everything already done in the event the defendant should justify his
omission to answer on time.

The foregoing observations, as may be noted, refer to instances where the only defendant or all the defendants, there being several,
are declared in default. There are additional rules embodying more considerations of justice and equity in cases where there are
several defendants against whom a common cause of action is averred and not all of them answer opportunely or are in default,
particularly in reference to the power of the court to render judgment in such situations. Thus, in addition to the limitation of Section 5
that the judgment by default should not be more in amount nor different in kind from the reliefs specifically sought by plaintiff in his
complaint, Section 4 restricts the authority of the court in rendering judgment in the situations just mentioned as follows:

Sec. 4. Judgment when some defendants answer, and other make difficult. — When a complaint states a common
cause of action against several defendant some of whom answer, and the others fail to do so, the court shall try the
case against all upon the answer thus filed and render judgment upon the evidence presented. The same proceeding
applies when a common cause of action is pleaded in a counterclaim, cross-claim and third-party claim.

Very aptly does Chief Justice Moran elucidate on this provision and the controlling jurisprudence explanatory thereof this wise:

Where a complaint states a common cause of action against several defendants and some appear to defend the
case on the merits while others make default, the defense interposed by those who appear to litigate the case inures
to the benefit of those who fail to appear, and if the court finds that a good defense has been made, all of the
defendants must be absolved. In other words, the answer filed by one or some of the defendants inures to the benefit
of all the others, even those who have not seasonably filed their answer. (Bueno v. Ortiz, L-22978, June 27, 1968, 23
SCRA 1151.) The proper mode of proceeding where a complaint states a common cause of action against several
defendants, and one of them makes default, is simply to enter a formal default order against him, and proceed with
the cause upon the answers of the others. The defaulting defendant merely loses his standing in court, he not being
entitled to the service of notice in the cause, nor to appear in the suit in any way. He cannot adduce evidence; nor
 can he be heard at the final hearing, (Lim Toco v. Go Fay, 80 Phil. 166.) although he may appeal the judgment
rendered against him on the merits. (Rule 41, sec. 2.) If the case is finally decided in the plaintiff's favor, a final
decree is then entered against all the defendants; but if the suit should be decided against the plaintiff, the action will
be dismissed as to all the defendants alike. (Velez v. Ramas, 40 Phil. 787-792; Frow v. de la Vega, 15 Wal. 552,21 L.
Ed. 60.) In other words the judgment will affect the defaulting defendants either favorably or adversely. (Castro v.
Peña, 80 Phil. 488.)

Defaulting defendant may ask execution if judgment is in his favor. (Castro v. Peña, supra.) (Moran, Rules of Court,
Vol. 1, pp. 538-539.)

In Castro vs. Peña, 80 Phil. 488, one of the numerous cases cited by Moran, this Court elaborated on the
construction of the same rule when it sanctioned the execution, upon motion and for the benefit of the defendant in
default, of a judgment which was adverse to the plaintiff. The Court held:

As above stated, Emilia Matanguihan, by her counsel, also was a movant in the petition for execution Annex 1. Did
she have a right to be such, having been declared in default? In Frow vs. De la Vega, supra, cited as authority
in Velez vs. Ramas, supra, the Supreme Court of the United States adopted as ground for its own decision the
following ruling of the New York Court of Errors in Clason vs. Morris, 10 Jons., 524:

It would be unreasonable to hold that because one defendant had made default, the plaintiff should have a decree
even against him, where the court is satisfied from the proofs offered by the other, that in fact the plaintiff is not
entitled to a decree. (21 Law, ed., 61.)

The reason is simple: justice has to be consistent. The complaint stating a common cause of action against several
defendants, the complainant's rights — or lack of them — in the controversy have to be the same, and not different,
as against all the defendant's although one or some make default and the other or others appear, join issue, and
enter into trial. For instance, in the case of Clason vs. Morris above cited, the New York Court of Errors in effect held
that in such a case if the plaintiff is not entitled to a decree, he will not be entitled to it, not only as against the
defendant appearing and resisting his action but also as against the one who made default. In the case at bar, the
cause of action in the plaintiff's complaint was common against the Mayor of Manila, Emilia Matanguihan, and the
other defendants in Civil Case No. 1318 of the lower court. The Court of First Instance in its judgment found and held
upon the evidence adduced by the plaintiff and the defendant mayor that as between said plaintiff and defendant
Matanguihan the latter was the one legally entitled to occupy the stalls; and it decreed, among other things, that said
plaintiff immediately vacate them. Paraphrasing the New York Court of Errors, it would be unreasonable to hold now
that because Matanguihan had made default, the said plaintiff should be declared, as against her, legally entitled to
the occupancy of the stalls, or to remain therein, although the Court of First Instance was so firmly satisfied, from the
proofs offered by the other defendant, that the same plaintiff was not entitled to such occupancy that it peremptorily
ordered her to vacate the stalls. If in the cases of Clason vs. Morris, supra, Frow vs. De la Vega, supra, and Velez vs.
Ramas, supra the decrees entered inured to the benefit of the defaulting defendants, there is no reason why that
entered in said case No. 1318 should not be held also to have inured to the benefit of the defaulting defendant
Matanguihan and the doctrine in said three cases plainly implies that there is nothing in the law governing default
which would prohibit the court from rendering judgment favorable to the defaulting defendant in such cases. If it
inured to her benefit, it stands to reason that she had a right to claim that benefit, for it would not be a benefit if the
supposed beneficiary were barred from claiming it; and if the benefit necessitated the execution of the decree, she
must be possessed of the right to ask for the execution thereof as she did when she, by counsel, participated in the
petition for execution Annex 1.

Section 7 of Rule 35 would seem to afford a solid support to the above considerations. It provides that when a
complaint states a common cause of action against several defendants, some of whom answer, and the others make
default, 'the court shall try the case against all upon the answer thus filed and render judgment upon the evidence
presented by the parties in court'. It is obvious that under this provision the case is tried jointly not only against the
defendants answering but also against those defaulting, and the trial is held upon the answer filed by the former; and
the judgment, if adverse, will prejudice the defaulting defendants no less than those who answer. In other words, the
defaulting defendants are held bound by the answer filed by their co-defendants and by the judgment which the court
may render against all of them. By the same token, and by all rules of equity and fair play, if the judgment should
happen to be favorable, totally or partially, to the answering defendants, it must correspondingly benefit the defaulting
ones, for it would not be just to let the judgment produce effects as to the defaulting defendants only when adverse to
them and not when favorable.

In Bueno vs. Ortiz, 23 SCRA 1151, the Court applied the provision under discussion in the following words:

In answer to the charge that respondent Judge had committed a grave abuse of discretion in rendering a default
judgment against the PC, respondents allege that, not having filed its answer within the reglementary period, the PC
was in default, so that it was proper for Patanao to forthwith present his evidence and for respondent Judge to render
said judgment. It should be noted, however, that in entering the area in question and seeking to prevent Patanao from
continuing his logging operations therein, the PC was merely executing an order of the Director of Forestry and acting
 as his agent. Patanao's cause of action against the other respondents in Case No. 190, namely, the Director of
Forestry, the District Forester of Agusan, the Forest Officer of Bayugan, Agusan, and the Secretary of Agriculture and
Natural Resources. Pursuant to Rule 18, Section 4, of the Rules of Court, 'when a complaint states a common cause
of action against several defendants some of whom answer and the others fail to do so, the court shall try the case
against all upon the answer thus filed (by some) and render judgment upon the evidence presented.' In other words,
the answer filed by one or some of the defendants inures to the benefit of all the others, even those who have not
seasonably filed their answer.

Indeed, since the petition in Case No. 190 sets forth a common cause of action against all of the respondents therein,
a decision in favor of one of them would necessarily favor the others. In fact, the main issue, in said case, is whether
Patanao has a timber license to undertake logging operations in the disputed area. It is not possible to decide such
issue in the negative, insofar as the Director of Forestry, and to settle it otherwise, as regards the PC, which is merely
acting as agent of the Director of Forestry, and is, therefore, his alter ego, with respect to the disputed forest area.

Stated differently, in all instances where a common cause of action is alleged against several defendants, some of whom answer and
the others do not, the latter or those in default acquire a vested right not only to own the defense interposed in the answer of their co-
defendant or co-defendants not in default but also to expect a result of the litigation totally common with them in kind and in amount
whether favorable or unfavorable. The substantive unity of the plaintiff's cause against all the defendants is carried through to its
adjective phase as ineluctably demanded by the homogeneity and indivisibility of justice itself. Indeed, since the singleness of the cause
of action also inevitably implies that all the defendants are indispensable parties, the court's power to act is integral and cannot be split
such that it cannot relieve any of them and at the same time render judgment against the rest. Considering the tenor of the section in
question, it is to be assumed that when any defendant allows himself to be declared in default knowing that his defendant has already
answered, he does so trusting in the assurance implicit in the rule that his default is in essence a mere formality that deprives him of no
more than the right to take part in the trial and that the court would deem anything done by or for the answering defendant as done by
or for him. The presumption is that otherwise he would not -have seen to that he would not be in default. Of course, he has to suffer the
consequences of whatever the answering defendant may do or fail to do, regardless of possible adverse consequences, but if the
complaint has to be dismissed in so far as the answering defendant is concerned it becomes his inalienable right that the same be
dismissed also as to him. It does not matter that the dismissal is upon the evidence presented by the plaintiff or upon the latter's mere
desistance, for in both contingencies, the lack of sufficient legal basis must be the cause. The integrity of the common cause of action
against all the defendants and the indispensability of all of them in the proceedings do not permit any possibility of waiver of the
plaintiff's right only as to one or some of them, without including all of them, and so, as a rule, withdrawal must be deemed to be a
confession of weakness as to all. This is not only elementary justice; it also precludes the concomitant hazard that plaintiff might resort
to the kind of procedural strategem practiced by private respondent herein that resulted in totally depriving petitioners of every
opportunity to defend themselves against her claims which, after all, as will be seen later in this opinion, the record does not show to be
invulnerable, both in their factual and legal aspects, taking into consideration the tenor of the pleadings and the probative value of the
competent evidence which were before the trial court when it rendered its assailed decision where all the defendants are indispensable
parties, for which reason the absence of any of them in the case would result in the court losing its competency to act validly, any
compromise that the plaintiff might wish to make with any of them must, as a matter of correct procedure, have to await until after the
rendition of the judgment, at which stage the plaintiff may then treat the matter of its execution and the satisfaction of his claim as
variably as he might please. Accordingly, in the case now before Us together with the dismissal of the complaint against the non-
defaulted defendants, the court should have ordered also the dismissal thereof as to petitioners.

Indeed, there is more reason to apply here the principle of unity and indivisibility of the action just discussed because all the defendants
here have already joined genuine issues with plaintiff. Their default was only at the pre-trial. And as to such absence of petitioners at
the pre-trial, the same could be attributed to the fact that they might not have considered it necessary anymore to be present, since
their respective children Lim and Leonardo, with whom they have common defenses, could take care of their defenses as well.
Anything that might have had to be done by them at such pre-trial could have been done for them by their children, at least initially,
specially because in the light of the pleadings before the court, the prospects of a compromise must have appeared to be rather
remote. Such attitude of petitioners is neither uncommon nor totally unjustified. Under the circumstances, to declare them immediately
and irrevocably in default was not an absolute necessity. Practical considerations and reasons of equity should have moved respondent
court to be more understanding in dealing with the situation. After all, declaring them in default as respondent court did not impair their
right to a common fate with their children.

–3–

Another issue to be resolved in this case is the question of whether or not herein petitioners were entitled to notice of plaintiff's motion
to drop their co-defendants Lim and Leonardo, considering that petitioners had been previously declared in default. In this connection,
the decisive consideration is that according to the applicable rule, Section 9, Rule 13, already quoted above, (1) even after a defendant
has been declared in default, provided he "files a motion to set aside the order of default, — he shall be entitled to notice of all further
proceedings regardless of whether the order of default is set aside or not" and (2) a party in default who has not filed such a motion to
set aside must still be served with all "substantially amended or supplemented pleadings." In the instant case, it cannot be denied that
petitioners had all filed their motion for reconsideration of the order declaring them in default. Respondents' own answer to the petition
therein makes reference to the order of April 3, 1973, Annex 8 of said answer, which denied said motion for reconsideration. On page 3
of petitioners' memorandum herein this motion is referred to as "a motion to set aside the order of default." But as We have not been
favored by the parties with a copy of the said motion, We do not even know the excuse given for petitioners' failure to appear at the pre-
trial, and We cannot, therefore, determine whether or not the motion complied with the requirements of Section 3 of Rule 18 which We
have held to be controlling in cases of default for failure to answer on time. (The Philippine-British Co. Inc. etc. et al. vs. The Hon.
Walfrido de los Angeles etc. et al., 63 SCRA 50.)

We do not, however, have here, as earlier noted, a case of default for failure to answer but one for failure to appear at the pre-trial. We
reiterate, in the situation now before Us, issues have already been joined. In fact, evidence had been partially offered already at the
pre-trial and more of it at the actual trial which had already begun with the first witness of the plaintiff undergoing re-cross-examination.
With these facts in mind and considering that issues had already been joined even as regards the defaulted defendants, it would be
requiring the obvious to pretend that there was still need for an oath or a verification as to the merits of the defense of the defaulted
defendants in their motion to reconsider their default. Inasmuch as none of the parties had asked for a summary judgment there can be
no question that the issues joined were genuine, and consequently, the reason for requiring such oath or verification no longer holds.
Besides, it may also be reiterated that being the parents of the non-defaulted defendants, petitioners must have assumed that their
presence was superfluous, particularly because the cause of action against them as well as their own defenses are common. Under
these circumstances, the form of the motion by which the default was sought to be lifted is secondary and the requirements of Section 3
of Rule 18 need not be strictly complied with, unlike in cases of default for failure to answer. We can thus hold as We do hold for the
purposes of the revival of their right to notice under Section 9 of Rule 13, that petitioner's motion for reconsideration was in substance
legally adequate regardless of whether or not it was under oath.

In any event, the dropping of the defendants Lim and Leonardo from plaintiff's amended complaint was virtually a second amendment
of plaintiffs complaint. And there can be no doubt that such amendment was substantial, for with the elimination thereby of two
defendants allegedly solidarily liable with their co-defendants, herein petitioners, it had the effect of increasing proportionally what each
of the remaining defendants, the said petitioners, would have to answer for jointly and severally. Accordingly, notice to petitioners of the
plaintiff's motion of October 18, 1974 was legally indispensable under the rule above-quoted. Consequently, respondent court had no
authority to act on the motion, to dismiss, pursuant to Section 6 of Rule 15, for according to Senator Francisco, "(t) he Rules of Court
clearly provide that no motion shall be acted upon by the Court without the proof of service of notice thereof, together with a copy of the
motion and other papers accompanying it, to all parties concerned at least three days before the hearing thereof, stating the time and
place for the hearing of the motion. (Rule 26, section 4, 5 and 6, Rules of Court (now Sec. 15, new Rules). When the motion does not
comply with this requirement, it is not a motion. It presents no question which the court could decide. And the Court acquires no
jurisdiction to consider it. (Roman Catholic Bishop of Lipa vs. Municipality of Unisan 44 Phil., 866; Manakil vs. Revilla, 42 Phil., 81.)
(Laserna vs. Javier, et al., CA-G.R. No. 7885, April 22, 1955; 21 L.J. 36, citing Roman Catholic Bishop of Lipa vs. Municipality of Unisan
44 Phil., 866; Manakil vs. Revilla, 42 Phil., 81.) (Francisco. The Revised Rules of Court in the Philippines, pp. 861-862.) Thus, We see
again, from a different angle, why respondent court's order of dismissal of October 21, 1974 is fatally ineffective.

–4–

The foregoing considerations notwithstanding, it is respondents' position that certiorari is not the proper remedy of petitioners. It is
contended that inasmuch as said petitioners have in fact made their appeal already by filing the required notice of appeal and appeal
bond and a motion for extension to file their record on appeal, which motion was granted by respondent court, their only recourse is to
prosecute that appeal. Additionally, it is also maintained that since petitioners have expressly withdrawn their motion to quash of
January 4, 1975 impugning the order of October 28, 1974, they have lost their right to assail by certiorari the actuations of respondent
court now being questioned, respondent court not having been given the opportunity to correct any possible error it might have
committed.

We do not agree. As already shown in the foregoing discussion, the proceedings in the court below have gone so far out of hand that
prompt action is needed to restore order in the entangled situation created by the series of plainly illegal orders it had issued. The
essential purpose of certiorari is to keep the proceedings in lower judicial courts and tribunals within legal bounds, so that due process
and the rule of law may prevail at all times and arbitrariness, whimsicality and unfairness which justice abhors may immediately be
stamped out before graver injury, juridical and otherwise, ensues. While generally these objectives may well be attained in an ordinary
appeal, it is undoubtedly the better rule to allow the special remedy of certiorari at the option of the party adversely affected, when the
irregularity committed by the trial court is so grave and so far reaching in its consequences that the long and cumbersome procedure of
appeal will only further aggravate the situation of the aggrieved party because other untoward actuations are likely to materialize as
natural consequences of those already perpetrated. If the law were otherwise, certiorari would have no reason at all for being.

No elaborate discussion is needed to show the urgent need for corrective measures in the case at bar. Verily, this is one case that calls
for the exercise of the Supreme Court's inherent power of supervision over all kinds of judicial actions of lower courts. Private
respondent's procedural technique designed to disable petitioners to defend themselves against her claim which appears on the face of
the record itself to be at least highly controversial seems to have so fascinated respondent court that none would be surprised should
her pending motion for immediate execution of the impugned judgment receive similar ready sanction as her previous motions which
turned the proceedings into a one-sided affair. The stakes here are high. Not only is the subject matter considerably substantial; there is
the more important aspect that not only the spirit and intent of the rules but even the basic rudiments of fair play have been
disregarded. For the Court to leave unrestrained the obvious tendency of the proceedings below would be nothing short of wittingly
condoning inequity and injustice resulting from erroneous construction and unwarranted application of procedural rules.

–5–

The sum and total of all the foregoing disquisitions is that the decision here in question is legally anomalous. It is predicated on two fatal
malactuations of respondent court namely (1) the dismissal of the complaint against the non-defaulted defendants Lim and Leonardo
and (2) the ex-parte reception of the evidence of the plaintiff by the clerk of court, the subsequent using of the same as basis for its
judgment and the rendition of such judgment.

For at least three reasons which We have already fully discussed above, the order of dismissal of October 21, 1974 is unworthy of Our
sanction: (1) there was no timely notice of the motion therefor to the non-defaulted defendants, aside from there being no notice at all to
herein petitioners; (2) the common answer of the defendants, including the non-defaulted, contained a compulsory counterclaim
incapable of being determined in an independent action; and (3) the immediate effect of such dismissal was the removal of the two non-
defaulted defendants as parties, and inasmuch as they are both indispensable parties in the case, the court consequently lost the" sine
qua non of the exercise of judicial power", per Borlasa vs. Polistico, supra. This is not to mention anymore the irregular delegation to the
clerk of court of the function of receiving plaintiff's evidence. And as regards the ex-parte reception of plaintiff's evidence and
subsequent rendition of the judgment by default based thereon, We have seen that it was violative of the right of the petitioners, under
the applicable rules and principles on default, to a common and single fate with their non-defaulted co-defendants. And We are not yet
referring, as We shall do this anon to the numerous reversible errors in the decision itself.

It is to be noted, however, that the above-indicated two fundamental flaws in respondent court's actuations do not call for a common
corrective remedy. We cannot simply rule that all the impugned proceedings are null and void and should be set aside, without being
faced with the insurmountable obstacle that by so doing We would be reviewing the case as against the two non-defaulted defendants
who are not before Us not being parties hereto. Upon the other hand, for Us to hold that the order of dismissal should be allowed to
stand, as contended by respondents themselves who insist that the same is already final, not only because the period for its finality has
long passed but also because allegedly, albeit not very accurately, said 'non-defaulted defendants unsuccessfully tried to have it set
aside by the Court of Appeals whose decision on their petition is also already final, We would have to disregard whatever evidence had
been presented by the plaintiff against them and, of course, the findings of respondent court based thereon which, as the assailed
decision shows, are adverse to them. In other words, whichever of the two apparent remedies the Court chooses, it would necessarily
entail some kind of possible juridical imperfection. Speaking of their respective practical or pragmatic effects, to annul the dismissal
would inevitably prejudice the rights of the non-defaulted defendants whom We have not heard and who even respondents would not
wish to have anything anymore to do with the case. On the other hand, to include petitioners in the dismissal would naturally set at
naught every effort private respondent has made to establish or prove her case thru means sanctioned by respondent court. In short,
We are confronted with a legal para-dilemma. But one thing is certain — this difficult situations has been brought about by none other
than private respondent who has quite cynically resorted to procedural maneuvers without realizing that the technicalities of the
adjective law, even when apparently accurate from the literal point of view, cannot prevail over the imperatives of the substantive law
and of equity that always underlie them and which have to be inevitably considered in the construction of the pertinent procedural rules.

All things considered, after careful and mature deliberation, the Court has arrived at the conclusion that as between the two possible
alternatives just stated, it would only be fair, equitable and proper to uphold the position of petitioners. In other words, We rule that the
order of dismissal of October 21, 1974 is in law a dismissal of the whole case of the plaintiff, including as to petitioners herein.
Consequently, all proceedings held by respondent court subsequent thereto including and principally its decision of December 20, 1974
are illegal and should be set aside.

This conclusion is fully justified by the following considerations of equity:

1. It is very clear to Us that the procedural maneuver resorted to by private respondent in securing the decision in her favor was ill-
conceived. It was characterized by that which every principle of law and equity disdains — taking unfair advantage of the rules of
procedure in order to unduly deprive the other party of full opportunity to defend his cause. The idea of "dropping" the non-defaulted
defendants with the end in view of completely incapacitating their co-defendants from making any defense, without considering that all
of them are indispensable parties to a common cause of action to which they have countered with a common defense readily connotes
an intent to secure a one-sided decision, even improperly. And when, in this connection, the obvious weakness of plaintiff's evidence is
taken into account, one easily understands why such tactics had to be availed of. We cannot directly or indirectly give Our assent to the
commission of unfairness and inequity in the application of the rules of procedure, particularly when the propriety of reliance thereon is
not beyond controversy.

2. The theories of remedial law pursued by private respondents, although approved by His Honor, run counter to such basic principles
in the rules on default and such elementary rules on dismissal of actions and notice of motions that no trial court should be unaware of
or should be mistaken in applying. We are at a loss as to why His Honor failed to see through counsel's inequitous strategy, when the
provisions (1) on the three-day rule on notice of motions, Section 4 of Rule 15, (2) against dismissal of actions on motion of plaintiff
when there is a compulsory counterclaim, Section 2, Rule 17, (3) against permitting the absence of indispensable parties, Section 7,
Rule 3, (4) on service of papers upon defendants in default when there are substantial amendments to pleadings, Section 9, Rule 13,
and (5) on the unity and integrity of the fate of defendants in default with those not in default where the cause of action against them
and their own defenses are common, Section 4, Rule 18, are so plain and the jurisprudence declaratory of their intent and proper
construction are so readily comprehensible that any error as to their application would be unusual in any competent trial court.

3. After all, all the malactuations of respondent court are traceable to the initiative of private respondent and/or her counsel. She cannot,
therefore, complain that she is being made to unjustifiably suffer the consequences of what We have found to be erroneous orders of
respondent court. It is only fair that she should not be allowed to benefit from her own frustrated objective of securing a one-sided
decision.
4. More importantly, We do not hesitate to hold that on the basis of its own recitals, the decision in question cannot stand close scrutiny.
What is more, the very considerations contained therein reveal convincingly the inherent weakness of the cause of the plaintiff. To be
sure, We have been giving serious thought to the idea of merely returning this case for a resumption of trial by setting aside the order of
dismissal of October 21, 1974, with all its attendant difficulties on account of its adverse effects on parties who have not been heard,
but upon closer study of the pleadings and the decision and other circumstances extant in the record before Us, We are now persuaded
that such a course of action would only lead to more legal complications incident to attempts on the part of the parties concerned to
desperately squeeze themselves out of a bad situation. Anyway, We feel confident that by and large, there is enough basis here and
now for Us to rule out the claim of the plaintiff.

Even a mere superficial reading of the decision would immediately reveal that it is littered on its face with deficiencies and imperfections
which would have had no reason for being were there less haste and more circumspection in rendering the same. Recklessness in
jumping to unwarranted conclusions, both factual and legal, is at once evident in its findings relative precisely to the main bases
themselves of the reliefs granted. It is apparent therein that no effort has been made to avoid glaring inconsistencies. Where references
are made to codal provisions and jurisprudence, inaccuracy and inapplicability are at once manifest. It hardly commends itself as a
deliberate and consciencious adjudication of a litigation which, considering the substantial value of the subject matter it involves and the
unprecedented procedure that was followed by respondent's counsel, calls for greater attention and skill than the general run of cases
would.

Inter alia, the following features of the decision make it highly improbable that if We took another course of action, private respondent
would still be able to make out any case against petitioners, not to speak of their co-defendants who have already been exonerated by
respondent herself thru her motion to dismiss:

1. According to His Honor's own statement of plaintiff's case, "she is the widow of the late Tee Hoon Po Chuan (Po Chuan, for short)
who was then one of the partners in the commercial partnership, Glory Commercial Co. with defendants Antonio Lim Tanhu (Lim
Tanhu, for short) and Alfonso Leonardo Ng Sua (Ng Sua, for short) as co-partners; that after the death of her husband on March 11,
1966 she is entitled to share not only in the capital and profits of the partnership but also in the other assets, both real and personal,
acquired by the partnership with funds of the latter during its lifetime."

Relatedly, in the latter part of the decision, the findings are to the following effect: .

That the herein plaintiff Tan Put and her late husband Po Chuan married at the Philippine Independent Church of
Cebu City on December, 20, 1949; that Po Chuan died on March 11, 1966; that the plaintiff and the late Po Chuan
were childless but the former has a foster son Antonio Nuñez whom she has reared since his birth with whom she
lives up to the present; that prior to the marriage of the plaintiff to Po Chuan the latter was already managing the
partnership Glory Commercial Co. then engaged in a little business in hardware at Manalili St., Cebu City; that prior
to and just after the marriage of the plaintiff to Po Chuan she was engaged in the drugstore business; that not long
after her marriage, upon the suggestion of Po Chuan the plaintiff sold her drugstore for P125,000.00 which amount
she gave to her husband in the presence of defendant Lim Tanhu and was invested in the partnership Glory
Commercial Co. sometime in 1950; that after the investment of the above-stated amount in the partnership its
business flourished and it embarked in the import business and also engaged in the wholesale and retail trade of
cement and GI sheets and under huge profits;

xxx xxx xxx

That the late Po Chuan was the one who actively managed the business of the partnership Glory Commercial Co. he
was the one who made the final decisions and approved the appointments of new personnel who were taken in by
the partnership; that the late Po Chuan and defendants Lim Tanhu and Ng Sua are brothers, the latter two (2) being
the elder brothers of the former; that defendants Lim Tanhu and Ng Sua are both naturalized Filipino citizens
whereas the late Po Chuan until the time of his death was a Chinese citizen; that the three (3) brothers were partners
in the Glory Commercial Co. but Po Chuan was practically the owner of the partnership having the controlling
interest; that defendants Lim Tanhu and Ng Sua were partners in name but they were mere employees of Po Chuan
.... (Pp. 89-91, Record.)

How did His Honor arrive at these conclusions? To start with, it is not clear in the decision whether or not in making its findings of fact
the court took into account the allegations in the pleadings of the parties and whatever might have transpired at the pre-trial. All that We
can gather in this respect is that references are made therein to pre-trial exhibits and to Annex A of the answer of the defendants to
plaintiff's amended complaint. Indeed, it was incumbent upon the court to consider not only the evidence formally offered at the trial but
also the admissions, expressed or implied, in the pleadings, as well as whatever might have been placed before it or brought to its
attention during the pre-trial. In this connection, it is to be regretted that none of the parties has thought it proper to give Us an idea of
what took place at the pre-trial of the present case and what are contained in the pre-trial order, if any was issued pursuant to Section 4
of Rule 20.

The fundamental purpose of pre-trial, aside from affording the parties every opportunity to compromise or settle their differences, is for
the court to be apprised of the unsettled issues between the parties and of their respective evidence relative thereto, to the end that it
may take corresponding measures that would abbreviate the trial as much as possible and the judge may be able to ascertain the facts
with the least observance of technical rules. In other words whatever is said or done by the parties or their counsel at the pre- trial
serves to put the judge on notice of their respective basic positions, in order that in appropriate cases he may, if necessary in the
interest of justice and a more accurate determination of the facts, make inquiries about or require clarifications of matters taken up at
the pre-trial, before finally resolving any issue of fact or of law. In brief, the pre-trial constitutes part and parcel of the proceedings, and
hence, matters dealt with therein may not be disregarded in the process of decision making. Otherwise, the real essence of compulsory
pre-trial would be insignificant and worthless.

Now, applying these postulates to the findings of respondent court just quoted, it will be observed that the court's conclusion about the
supposed marriage of plaintiff to the deceased Tee Hoon Lim Po Chuan is contrary to the weight of the evidence brought before it
during the trial and the pre-trial.

Under Article 55 of the Civil Code, the declaration of the contracting parties that they take each other as husband and wife "shall be set
forth in an instrument" signed by the parties as well as by their witnesses and the person solemnizing the marriage. Accordingly, the
primary evidence of a marriage must be an authentic copy of the marriage contract. While a marriage may also be proved by other
competent evidence, the absence of the contract must first be satisfactorily explained. Surely, the certification of the person who
allegedly solemnized a marriage is not admissible evidence of such marriage unless proof of loss of the contract or of any other
satisfactory reason for its non-production is first presented to the court. In the case at bar, the purported certification issued by a Mons.
Jose M. Recoleto, Bishop, Philippine Independent Church, Cebu City, is not, therefore, competent evidence, there being absolutely no
showing as to unavailability of the marriage contract and, indeed, as to the authenticity of the signature of said certifier, the jurat
allegedly signed by a second assistant provincial fiscal not being authorized by law, since it is not part of the functions of his office.
Besides, inasmuch as the bishop did not testify, the same is hearsay.

As regards the testimony of plaintiff herself on the same point and that of her witness Antonio Nuñez, there can be no question that they
are both self-serving and of very little evidentiary value, it having been disclosed at the trial that plaintiff has already assigned all her
rights in this case to said Nuñez, thereby making him the real party in interest here and, therefore, naturally as biased as herself.
Besides, in the portion of the testimony of Nuñez copied in Annex C of petitioner's memorandum, it appears admitted that he was born
only on March 25, 1942, which means that he was less than eight years old at the supposed time of the alleged marriage. If for this
reason alone, it is extremely doubtful if he could have been sufficiently aware of such event as to be competent to testify about it.

Incidentally, another Annex C of the same memorandum purports to be the certificate of birth of one Antonio T. Uy supposed to have
been born on March 23, 1937 at Centro Misamis, Misamis Occidental, the son of one Uy Bien, father, and Tan Put, mother.
Significantly, respondents have not made any adverse comment on this document. It is more likely, therefore, that the witness is really
the son of plaintiff by her husband Uy Kim Beng. But she testified she was childless. So which is which? In any event, if on the strength
of this document, Nuñez is actually the legitimate son of Tan Put and not her adopted son, he would have been but 13 years old in
1949, the year of her alleged marriage to Po Chuan, and even then, considering such age, his testimony in regard thereto would still be
suspect.

Now, as against such flimsy evidence of plaintiff, the court had before it, two documents of great weight belying the pretended marriage.
We refer to (1) Exhibit LL, the income tax return of the deceased Tee Hoon Lim Po Chuan indicating that the name of his wife was Ang
Sick Tin and (2) the quitclaim, Annex A of the answer, wherein plaintiff Tan Put stated that she had been living with the deceased
without benefit of marriage and that she was his "common-law wife". Surely, these two documents are far more reliable than all the
evidence of the plaintiff put together.

Of course, Exhibit LL is what might be termed as pre-trial evidence. But it is evidence offered to the judge himself, not to the clerk of
court, and should have at least moved him to ask plaintiff to explain if not rebut it before jumping to the conclusion regarding her alleged
marriage to the deceased, Po Chuan. And in regard to the quitclaim containing the admission of a common-law relationship only, it is to
be observed that His Honor found that "defendants Lim Tanhu and Ng Sua had the plaintiff execute a quitclaim on November 29, 1967
(Annex "A", Answer) where they gave plaintiff the amount of P25,000 as her share in the capital and profits of the business of Glory
Commercial Co. which was engaged in the hardware business", without making mention of any evidence of fraud and
misrepresentation in its execution, thereby indicating either that no evidence to prove that allegation of the plaintiff had been presented
by her or that whatever evidence was actually offered did not produce persuasion upon the court. Stated differently, since the existence
of the quitclaim has been duly established without any circumstance to detract from its legal import, the court should have held that
plaintiff was bound by her admission therein that she was the common-law wife only of Po Chuan and what is more, that she had
already renounced for valuable consideration whatever claim she might have relative to the partnership Glory Commercial Co.

And when it is borne in mind that in addition to all these considerations, there are mentioned and discussed in the memorandum of
petitioners (1) the certification of the Local Civil Registrar of Cebu City and (2) a similar certification of the Apostolic Prefect of the
Philippine Independent Church, Parish of Sto. Niño, Cebu City, that their respective official records corresponding to December 1949 to
December 1950 do not show any marriage between Tee Hoon Lim Po Chuan and Tan Put, neither of which certifications have been
impugned by respondent until now, it stands to reason that plaintiff's claim of marriage is really unfounded. Withal, there is still another
document, also mentioned and discussed in the same memorandum and unimpugned by respondents, a written agreement executed in
Chinese, but purportedly translated into English by the Chinese Consul of Cebu, between Tan Put and Tee Hoon Lim Po Chuan to the
following effect:

CONSULATE OF THE REPUBLIC OF CHINA Cebu City, Philippines

TRANSLATION
 This is to certify that 1, Miss Tan Ki Eng Alias Tan Put, have lived with Mr. Lim Po Chuan alias TeeHoon since 1949
but it recently occurs that we are incompatible with each other and are not in the position to keep living together
permanently. With the mutual concurrence, we decided to terminate the existing relationship of common law-marriage
and promised not to interfere each other's affairs from now on. The Forty Thousand Pesos (P40,000.00) has been
given to me by Mr. Lim Po Chuan for my subsistence.

Witnesses:

Mr. Lim Beng Guan Mr. Huang Sing Se

Signed on the 10 day of the 7th month of the 54th year of the Republic of China (corresponding to the year 1965).

(SGD) TAN KI ENG

Verified from the records. JORGE TABAR (Pp. 283-284, Record.)

Indeed, not only does this document prove that plaintiff's relation to the deceased was that of a common-law wife but that they had
settled their property interests with the payment to her of P40,000.

In the light of all these circumstances, We find no alternative but to hold that plaintiff Tan Put's allegation that she is the widow of Tee
Hoon Lim Po Chuan has not been satisfactorily established and that, on the contrary, the evidence on record convincingly shows that
her relation with said deceased was that of a common-law wife and furthermore, that all her claims against the company and its
surviving partners as well as those against the estate of the deceased have already been settled and paid. We take judicial notice of the
fact that the respective counsel who assisted the parties in the quitclaim, Attys. H. Hermosisima and Natalio Castillo, are members in
good standing of the Philippine Bar, with the particularity that the latter has been a member of the Cabinet and of the House of
Representatives of the Philippines, hence, absent any credible proof that they had allowed themselves to be parties to a fraudulent
document His Honor did right in recognizing its existence, albeit erring in not giving due legal significance to its contents.

2. If, as We have seen, plaintiff's evidence of her alleged status as legitimate wife of Po Chuan is not only unconvincing but has been
actually overcome by the more competent and weighty evidence in favor of the defendants, her attempt to substantiate her main cause
of action that defendants Lim Tanhu and Ng Sua have defrauded the partnership Glory Commercial Co. and converted its properties to
themselves is even more dismal. From the very evidence summarized by His Honor in the decision in question, it is clear that not an
iota of reliable proof exists of such alleged misdeeds.

Of course, the existence of the partnership has not been denied, it is actually admitted impliedly in defendants' affirmative defense that
Po Chuan's share had already been duly settled with and paid to both the plaintiff and his legitimate family. But the evidence as to the
actual participation of the defendants Lim Tanhu and Ng Sua in the operation of the business that could have enabled them to make the
extractions of funds alleged by plaintiff is at best confusing and at certain points manifestly inconsistent.

3
In her amended complaint, plaintiff repeatedly alleged that as widow of Po Chuan she is entitled to ¹/ share of the assets and
3
properties of the partnership. In fact, her prayer in said complaint is, among others, for the delivery to her of such ¹/ share. His Honor's
statement of the case as well as his findings and judgment are all to that same effect. But what did she actually try to prove at the ex-
parte hearing?

According to the decision, plaintiff had shown that she had money of her own when she "married" Po Chuan and "that prior to and just
after the marriage of the plaintiff to Po Chuan, she was engaged in the drugstore business; that not long after her marriage, upon the
suggestion of Po Chuan, the plaintiff sold her drugstore for P125,000 which amount she gave to her husband in the presence of Tanhu
and was invested in the partnership Glory Commercial Co. sometime in 1950; that after the investment of the above-stated amount in
the partnership, its business flourished and it embarked in the import business and also engaged in the wholesale and retail trade of
cement and GI sheets and under (sic) huge profits." (pp. 25-26, Annex L, petition.)

To begin with, this theory of her having contributed of P125,000 to the capital of the partnership by reason of which the business
flourished and amassed all the millions referred to in the decision has not been alleged in the complaint, and inasmuch as what was
being rendered was a judgment by default, such theory should not have been allowed to be the subject of any evidence. But inasmuch
as it was the clerk of court who received the evidence, it is understandable that he failed to observe the rule. Then, on the other hand, if
3
it was her capital that made the partnership flourish, why would she claim to be entitled to only to ¹/ of its assets and profits? Under her
theory found proven by respondent court, she was actually the owner of everything, particularly because His Honor also found "that
defendants Lim Tanhu and Ng Sua were partners in the name but they were employees of Po Chuan that defendants Lim Tanhu and
Ng Sua had no means of livelihood at the time of their employment with the Glory Commercial Co. under the management of the late
3
Po Chuan except their salaries therefrom; ..." (p. 27, id.) Why then does she claim only ¹/ share? Is this an indication of her generosity
towards defendants or of a concocted cause of action existing only in her confused imagination engendered by the death of her
common-law husband with whom she had settled her common-law claim for recompense of her services as common law wife for less
than what she must have known would go to his legitimate wife and children?
Actually, as may be noted from the decision itself, the trial court was confused as to the participation of defendants Lim Tanhu and Ng
Sua in Glory Commercial Co. At one point, they were deemed partners, at another point mere employees and then elsewhere as
partners-employees, a newly found concept, to be sure, in the law on partnership. And the confusion is worse comfounded in the
judgment which allows these "partners in name" and "partners-employees" or employees who had no means of livelihood and who
must not have contributed any capital in the business, "as Po Chuan was practically the owner of the partnership having the controlling
3
interest", ¹/ each of the huge assets and profits of the partnership. Incidentally, it may be observed at this juncture that the decision has
made Po Chuan play the inconsistent role of being "practically the owner" but at the same time getting his capital from the P125,000
given to him by plaintiff and from which capital the business allegedly "flourished."

Anent the allegation of plaintiff that the properties shown by her exhibits to be in the names of defendants Lim Tanhu and Ng Sua were
bought by them with partnership funds, His Honor confirmed the same by finding and holding that "it is likewise clear that real properties
together with the improvements in the names of defendants Lim Tanhu and Ng Sua were acquired with partnership funds as these
defendants were only partners-employees of deceased Po Chuan in the Glory Commercial Co. until the time of his death on March 11,
1966." (p. 30, id.) It Is Our considered view, however, that this conclusion of His Honor is based on nothing but pure unwarranted
conjecture. Nowhere is it shown in the decision how said defendants could have extracted money from the partnership in the fraudulent
and illegal manner pretended by plaintiff. Neither in the testimony of Nuñez nor in that of plaintiff, as these are summarized in the
decision, can there be found any single act of extraction of partnership funds committed by any of said defendants. That the partnership
might have grown into a multi-million enterprise and that the properties described in the exhibits enumerated in the decision are not in
the names of Po Chuan, who was Chinese, but of the defendants who are Filipinos, do not necessarily prove that Po Chuan had not
gotten his share of the profits of the business or that the properties in the names of the defendants were bought with money of the
partnership. In this connection, it is decisively important to consider that on the basis of the concordant and mutually cumulative
testimonies of plaintiff and Nuñez, respondent court found very explicitly that, and We reiterate:

xxx xxx xxx

That the late Po Chuan was the one who actively managed the business of the partnership Glory Commercial Co. he
was the one who made the final decisions and approved the appointments of new Personnel who were taken in by
the partnership; that the late Po Chuan and defendants Lim Tanhu and Ng Sua are brothers, the latter to (2) being
the elder brothers of the former; that defendants Lim Tanhu and Ng Sua are both naturalized Filipino citizens
whereas the late Po Chuan until the time of his death was a Chinese citizen; that the three (3) brothers were partners
in the Glory Commercial Co. but Po Chuan was practically the owner of the partnership having the controlling
interest; that defendants Lim Tanhu and Ng Sua were partners in name but they were mere employees of Po Chuan;
.... (Pp. 90-91, Record.)

If Po Chuan was in control of the affairs and the running of the partnership, how could the defendants have defrauded him of such huge
amounts as plaintiff had made his Honor believe? Upon the other hand, since Po Chuan was in control of the affairs of the partnership,
the more logical inference is that if defendants had obtained any portion of the funds of the partnership for themselves, it must have
been with the knowledge and consent of Po Chuan, for which reason no accounting could be demanded from them therefor,
considering that Article 1807 of the Civil Code refers only to what is taken by a partner without the consent of the other partner or
partners. Incidentally again, this theory about Po Chuan having been actively managing the partnership up to his death is a substantial
deviation from the allegation in the amended complaint to the effect that "defendants Antonio Lim Tanhu, Alfonso Leonardo Ng Sua,
Lim Teck Chuan and Eng Chong Leonardo, through fraud and machination, took actual and active management of the partnership and
although Tee Hoon Lim Po Chuan was the manager of Glory Commercial Co., defendants managed to use the funds of the partnership
to purchase lands and buildings etc. (Par. 4, p. 2 of amended complaint, Annex B of petition) and should not have been permitted to be
proven by the hearing officer, who naturally did not know any better.

Moreover, it is very significant that according to the very tax declarations and land titles listed in the decision, most if not all of the
properties supposed to have been acquired by the defendants Lim Tanhu and Ng Sua with funds of the partnership appear to have
been transferred to their names only in 1969 or later, that is, long after the partnership had been automatically dissolved as a result of
the death of Po Chuan. Accordingly, defendants have no obligation to account to anyone for such acquisitions in the absence of clear
proof that they had violated the trust of Po Chuan during the existence of the partnership. (See Hanlon vs. Hansserman and. Beam, 40
Phil. 796.)

There are other particulars which should have caused His Honor to readily disbelieve plaintiffs' pretensions. Nuñez testified that "for
about 18 years he was in charge of the GI sheets and sometimes attended to the imported items of the business of Glory Commercial
Co." Counting 18 years back from 1965 or 1966 would take Us to 1947 or 1948. Since according to Exhibit LL, the baptismal certificate
produced by the same witness as his birth certificate, shows he was born in March, 1942, how could he have started managing Glory
Commercial Co. in 1949 when he must have been barely six or seven years old? It should not have escaped His Honor's attention that
the photographs showing the premises of Philippine Metal Industries after its organization "a year or two after the establishment of
Cebu Can Factory in 1957 or 1958" must have been taken after 1959. How could Nuñez have been only 13 years old then as claimed
by him to have been his age in those photographs when according to his "birth certificate", he was born in 1942? His Honor should not
have overlooked that according to the same witness, defendant Ng Sua was living in Bantayan until he was directed to return to Cebu
after the fishing business thereat floundered, whereas all that the witness knew about defendant Lim Teck Chuan's arrival from
Hongkong and the expenditure of partnership money for him were only told to him allegedly by Po Chuan, which testimonies are
veritably exculpatory as to Ng Sua and hearsay as to Lim Teck Chuan. Neither should His Honor have failed to note that according to
plaintiff herself, "Lim Tanhu was employed by her husband although he did not go there always being a mere employee of Glory
Commercial Co." (p. 22, Annex the decision.)
The decision is rather emphatic in that Lim Tanhu and Ng Sua had no known income except their salaries. Actually, it is not stated,
however, from what evidence such conclusion was derived in so far as Ng Sua is concerned. On the other hand, with respect to Lim
Tanhu, the decision itself states that according to Exhibit NN-Pre trial, in the supposed income tax return of Lim Tanhu for 1964, he had
an income of P4,800 as salary from Philippine Metal Industries alone and had a total assess sable net income of P23,920.77 that year
for which he paid a tax of P4,656.00. (p. 14. Annex L, id.) And per Exhibit GG-Pretrial in the year, he had a net income of P32,000 for
which be paid a tax of P3,512.40. (id.) As early as 1962, "his fishing business in Madridejos Cebu was making money, and he reported
"a net gain from operation (in) the amount of P865.64" (id., per Exhibit VV-Pre-trial.) From what then did his Honor gather the
conclusion that all the properties registered in his name have come from funds malversed from the partnership?

It is rather unusual that His Honor delved into financial statements and books of Glory Commercial Co. without the aid of any
accountant or without the same being explained by any witness who had prepared them or who has knowledge of the entries therein.
This must be the reason why there are apparent inconsistencies and inaccuracies in the conclusions His Honor made out of them. In
Exhibit SS-Pre-trial, the reported total assets of the company amounted to P2,328,460.27 as of December, 1965, and yet, Exhibit TT-
Pre-trial, according to His Honor, showed that the total value of goods available as of the same date was P11,166,327.62. On the other
hand, per Exhibit XX-Pre-trial, the supposed balance sheet of the company for 1966, "the value of inventoried merchandise, both local
and imported", as found by His Honor, was P584,034.38. Again, as of December 31, 1966, the value of the company's goods available
for sale was P5,524,050.87, per Exhibit YY and YY-Pre-trial. Then, per Exhibit II-3-Pre-trial, the supposed Book of Account, whatever
that is, of the company showed its "cash analysis" was P12,223,182.55. We do not hesitate to make the observation that His Honor,
unless he is a certified public accountant, was hardly qualified to read such exhibits and draw any definite conclusions therefrom,
without risk of erring and committing an injustice. In any event, there is no comprehensible explanation in the decision of the conclusion
of His Honor that there were P12,223,182.55 cash money defendants have to account for, particularly when it can be very clearly seen
in Exhibits 11-4, 11-4- A, 11-5 and 11-6-Pre-trial, Glory Commercial Co. had accounts payable as of December 31, 1965 in the amount
of P4,801,321.17. (p. 15, id.) Under the circumstances, We are not prepared to permit anyone to predicate any claim or right from
respondent court's unaided exercise of accounting knowledge.

Additionally, We note that the decision has not made any finding regarding the allegation in the amended complaint that a corporation
denominated Glory Commercial Co., Inc. was organized after the death of Po Chuan with capital from the funds of the partnership. We
note also that there is absolutely no finding made as to how the defendants Dy Ochay and Co Oyo could in any way be accountable to
plaintiff, just because they happen to be the wives of Lim Tanhu and Ng Sua, respectively. We further note that while His Honor has
3
ordered defendants to deliver or pay jointly and severally to the plaintiff P4,074,394.18 or ¹/ of the P12,223,182.55, the supposed cash
belonging to the partnership as of December 31, 1965, in the same breath, they have also been sentenced to partition and give
3
¹/ share of the properties enumerated in the dispositive portion of the decision, which seemingly are the very properties allegedly
purchased from the funds of the partnership which would naturally include the P12,223,182.55 defendants have to account for.
Besides, assuming there has not yet been any liquidation of the partnership, contrary to the allegation of the defendants, then Glory
Commercial Co. would have the status of a partnership in liquidation and the only right plaintiff could have would be to what might result
after such liquidation to belong to the deceased partner, and before this is finished, it is impossible to determine, what rights or
interests, if any, the deceased had (Bearneza vs. Dequilla 43 Phil. 237). In other words, no specific amounts or properties may be
adjudicated to the heir or legal representative of the deceased partner without the liquidation being first terminated.

Indeed, only time and the fear that this decision would be much more extended than it is already prevent us from further pointing out the
inexplicable deficiencies and imperfections of the decision in question. After all, what have been discussed should be more than
sufficient to support Our conclusion that not only must said decision be set aside but also that the action of the plaintiff must be totally
dismissed, and, were it not seemingly futile and productive of other legal complications, that plaintiff is liable on defendants'
counterclaims. Resolution of the other issues raised by the parties albeit important and perhaps pivotal has likewise become
superfluous.

IN VIEW OF ALL THE FOREGOING, the petition is granted. All proceedings held in respondent court in its Civil Case No. 12328
subsequent to the order of dismissal of October 21, 1974 are hereby annulled and set aside, particularly the ex-parte proceedings
against petitioners and the decision on December 20, 1974. Respondent court is hereby ordered to enter an order extending the effects
of its order of dismissal of the action dated October 21, 1974 to herein petitioners Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng
Sua and Co Oyo. And respondent court is hereby permanently enjoined from taking any further action in said civil case gave and
except as herein indicated. Costs against private respondent. Makalintal, C.J., Fernando, Aquino and Concepcion Jr., JJ., concur.

G.R. No. 112019 January 4, 1995 LEOUEL SANTOS, petitioner,

vs.
THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIA-SANTOS, respondents.

Concededly a highly, if not indeed the most likely, controversial provision introduced by the Family Code is Article 36 (as amended by
E.O. No. 227 dated 17 July 1987), which declares:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.
 The present petition for review on certiorari, at the instance of Leouel Santos ("Leouel"), brings into fore the above provision
1 2
which is now invoked by him. Undaunted by the decisions of the court a quo and the Court of Appeal, Leouel persists in
beseeching its application in his attempt to have his marriage with herein private respondent, Julia Rosario Bedia-Santos
("Julia"), declared a nullity.

It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the Philippine Army, first met Julia. The meeting later
proved to be an eventful day for Leouel and Julia. On 20 September 1986, the two exchanged vows before Municipal Trial Court Judge
Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a church wedding. Leouel and Julia lived with the latter's parents at the
J. Bedia Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a baby boy, and he was christened Leouel Santos, Jr. The
ecstasy, however, did not last long. It was bound to happen, Leouel averred, because of the frequent interference by Julia's parents into
the young spouses family affairs. Occasionally, the couple would also start a "quarrel" over a number of other things, like when and
where the couple should start living independently from Julia's parents or whenever Julia would express resentment on Leouel's
spending a few days with his own parents.

On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse despite Leouel's pleas to so dissuade her. Seven
months after her departure, or on 01 January 1989, Julia called up Leouel for the first time by long distance telephone. She promised to
return home upon the expiration of her contract in July 1989. She never did. When Leouel got a chance to visit the United States, where
he underwent a training program under the auspices of the Armed Forces of the Philippines from 01 April up to 25 August 1990, he
desperately tried to locate, or to somehow get in touch with, Julia but all his efforts were of no avail.

Having failed to get Julia to somehow come home, Leouel filed with the regional trial Court of Negros Oriental, Branch 30, a complaint
for "Voiding of marriage Under Article 36 of the Family Code" (docketed, Civil Case No. 9814). Summons was served by publication in
a newspaper of general circulation in Negros Oriental.

On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the complaint and denied its allegations, claiming, in
main, that it was the petitioner who had, in fact, been irresponsible and incompetent.

A possible collusion between the parties to obtain a decree of nullity of their marriage was ruled out by the Office of the Provincial
Prosecutor (in its report to the court).

On 25 October 1991, after pre-trial conferences had repeatedly been set, albeit unsuccessfully, by the court, Julia ultimately filed a
manifestation, stating that she would neither appear nor submit evidence.

3
On 06 November 1991, the court a quo finally dismissed the complaint for lack of merit.

4
Leouel appealed to the Court of Appeal. The latter affirmed the decision of the trial court.

The petition should be denied not only because of its non-compliance with Circular 28-91, which requires a certification of non-
shopping, but also for its lack of merit.

Leouel argues that the failure of Julia to return home, or at the very least to communicate with him, for more than five years are
circumstances that clearly show her being psychologically incapacitated to enter into married life. In his own words, Leouel asserts:

. . . (T)here is no leave, there is no affection for (him) because respondent Julia Rosario Bedia-Santos failed all these
years to communicate with the petitioner. A wife who does not care to inform her husband about her whereabouts for
a period of five years, more or less, is psychologically incapacitated.

The family Code did not define the term "psychological incapacity." The deliberations during the sessions of the Family Code Revision
Committee, which has drafted the Code, can, however, provide an insight on the import of the provision.

Art. 35. The following marriages shall be void from the beginning:

xxx xxx xxx

Art. 36. . . .

(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of
reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated
to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration.

On subparagraph (7), which as lifted from the Canon Law, Justice (Jose B.L.) Reyes suggested that they say
"wanting in sufficient use," but Justice (Eduardo) Caguioa preferred to say "wanting in the sufficient use." On the
other hand, Justice Reyes proposed that they say "wanting in sufficient reason." Justice Caguioa, however, pointed
out that the idea is that one is not lacking in judgment but that he is lacking in the exercise of judgment. He added
that lack of judgment would make the marriage voidable. Judge (Alicia Sempio-) Diy remarked that lack of judgment
is more serious than insufficient use of judgment and yet the latter would make the marriage null and void and the
former only voidable. Justice Caguioa suggested that subparagraph (7) be modified to read:

"That contracted by any party who, at the time of the celebration, was psychologically incapacitated
to discharge the essential marital obligations, even if such lack of incapacity is made manifest after
the celebration."

Justice Caguioa explained that the phrase "was wanting in sufficient use of reason of judgment to understand the
essential nature of marriage" refers to defects in the mental faculties vitiating consent, which is not the idea in
subparagraph (7), but lack of appreciation of one's marital obligations.

Judge Diy raised the question: Since "insanity" is also a psychological or mental incapacity, why is "insanity" only a
ground for annulment and not for declaration or nullity? In reply, Justice Caguioa explained that in insanity, there is
the appearance of consent, which is the reason why it is a ground for voidable marriages, while subparagraph (7)
does not refer to consent but to the very essence of marital obligations.

Prof. (Araceli) Baviera suggested that, in subparagraph (7), the word "mentally" be deleted, with which Justice
Caguioa concurred. Judge Diy, however, prefers to retain the word "mentally."

Justice Caguioa remarked that subparagraph (7) refers to psychological impotence. Justice (Ricardo) Puno stated
that sometimes a person may be psychologically impotent with one but not with another. Justice (Leonor Ines-)
Luciano said that it is called selective impotency.

Dean (Fortunato) Gupit stated that the confusion lies in the fact that in inserting the Canon Law annulment in the
Family Code, the Committee used a language which describes a ground for voidable marriages under the Civil Code.
Justice Caguioa added that in Canon Law, there are voidable marriages under the Canon Law, there are no voidable
marriages Dean Gupit said that this is precisely the reason why they should make a distinction.

Justice Puno remarked that in Canon Law, the defects in marriage cannot be cured.

Justice Reyes pointed out that the problem is: Why is "insanity" a ground for void ab initio marriages? In reply, Justice
Caguioa explained that insanity is curable and there are lucid intervals, while psychological incapacity is not.

On another point, Justice Puno suggested that the phrase "even if such lack or incapacity is made manifest" be
modified to read "even if such lack or incapacity becomes manifest."

Justice Reyes remarked that in insanity, at the time of the marriage, it is not apparent.

Justice Caguioa stated that there are two interpretations of the phrase "psychological or mentally incapacitated" — in
the first one, there is vitiation of consent because one does not know all the consequences of the marriages, and if he
had known these completely, he might not have consented to the marriage.

xxx xxx xxx

Prof. Bautista stated that he is in favor of making psychological incapacity a ground for voidable marriages since
otherwise it will encourage one who really understood the consequences of marriage to claim that he did not and to
make excuses for invalidating the marriage by acting as if he did not understand the obligations of marriage. Dean
Gupit added that it is a loose way of providing for divorce.

xxx xxx xxx

Justice Caguioa explained that his point is that in the case of incapacity by reason of defects in the mental faculties,
which is less than insanity, there is a defect in consent and, therefore, it is clear that it should be a ground for
voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple
reason that there are lucid intervals and there are cases when the insanity is curable. He emphasized that
psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations
attendant to marriage.

xxx xxx xxx

On psychological incapacity, Prof. (Flerida Ruth P.) Romero inquired if they do not consider it as going to the very
essence of consent. She asked if they are really removing it from consent. In reply, Justice Caguioa explained that,
ultimately, consent in general is effected but he stressed that his point is that it is not principally a vitiation of consent
since there is a valid consent. He objected to the lumping together of the validity of the marriage celebration and the
obligations attendant to marriage, which are completely different from each other, because they require a different
capacity, which is eighteen years of age, for marriage but in contract, it is different. Justice Puno, however, felt that
psychological incapacity is still a kind of vice of consent and that it should not be classified as a voidable marriage
which is incapable of convalidation; it should be convalidated but there should be no prescription. In other words, as
long as the defect has not been cured, there is always a right to annul the marriage and if the defect has been really
cured, it should be a defense in the action for annulment so that when the action for annulment is instituted, the issue
can be raised that actually, although one might have been psychologically incapacitated, at the time the action is
brought, it is no longer true that he has no concept of the consequence of marriage.

Prof. (Esteban) Bautista raised the question: Will not cohabitation be a defense? In response, Justice Puno stated
that even the bearing of children and cohabitation should not be a sign that psychological incapacity has been cured.

Prof. Romero opined that psychological incapacity is still insanity of a lesser degree. Justice Luciano suggested that
they invite a psychiatrist, who is the expert on this matter. Justice Caguioa, however, reiterated that psychological
incapacity is not a defect in the mind but in the understanding of the consequences of marriage, and therefore, a
psychiatrist will not be a help.

Prof. Bautista stated that, in the same manner that there is a lucid interval in insanity, there are also momentary
periods when there is an understanding of the consequences of marriage. Justice Reyes and Dean Gupit remarked
that the ground of psychological incapacity will not apply if the marriage was contracted at the time when there is
5
understanding of the consequences of marriage.

xxx xxx xxx

Judge Diy proposed that they include physical incapacity to copulate among the grounds for void marriages. Justice
Reyes commented that in some instances the impotence that in some instances the impotence is only temporary and
only with respect to a particular person. Judge Diy stated that they can specify that it is incurable. Justice Caguioa
remarked that the term "incurable" has a different meaning in law and in medicine. Judge Diy stated that
"psychological incapacity" can also be cured. Justice Caguioa, however, pointed out that "psychological incapacity" is
incurable.

Justice Puno observed that under the present draft provision, it is enough to show that at the time of the celebration
of the marriage, one was psychologically incapacitated so that later on if already he can comply with the essential
marital obligations, the marriage is still void ab initio. Justice Caguioa explained that since in divorce, the
psychological incapacity may occur after the marriage, in void marriages, it has to be at the time of the celebration of
marriage. He, however, stressed that the idea in the provision is that at the time of the celebration of the marriage,
one is psychologically incapacitated to comply with the essential marital obligations, which incapacity continues and
later becomes manifest.

Justice Puno and Judge Diy, however, pointed out that it is possible that after the marriage, one's psychological
incapacity become manifest but later on he is cured. Justice Reyes and Justice Caguioa opined that the remedy in
6
this case is to allow him to remarry.

xxx xxx xxx

Justice Puno formulated the next Article as follows:

Art. 37. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated, to comply with the essential obligations of marriage shall likewise be void from the
beginning even if such incapacity becomes manifest after its solemnization.

Justice Caguioa suggested that "even if" be substituted with "although." On the other hand, Prof. Bautista proposed
that the clause "although such incapacity becomes manifest after its solemnization" be deleted since it may
encourage one to create the manifestation of psychological incapacity. Justice Caguioa pointed out that, as in other
provisions, they cannot argue on the basis of abuse.

Judge Diy suggested that they also include mental and physical incapacities, which are lesser in degree than
psychological incapacity. Justice Caguioa explained that mental and physical incapacities are vices of consent while
psychological incapacity is not a species of vice or consent.
 Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9, 1984 meeting:

"On the third ground, Bishop Cruz indicated that the phrase "psychological or mental impotence" is
an invention of some churchmen who are moralists but not canonists, that is why it is considered a
weak phrase. He said that the Code of Canon Law would rather express it as "psychological or
mental incapacity to discharge . . ."

Justice Caguioa remarked that they deleted the word "mental" precisely to distinguish it from vice of consent. He
explained that "psychological incapacity" refers to lack of understanding of the essential obligations of marriage.

Justice Puno reminded the members that, at the last meeting, they have decided not to go into the classification of
"psychological incapacity" because there was a lot of debate on it and that this is precisely the reason why they
classified it as a special case.

At this point, Justice Puno, remarked that, since there having been annulments of marriages arising from
psychological incapacity, Civil Law should not reconcile with Canon Law because it is a new ground even under
Canon Law.

Prof. Romero raised the question: With this common provision in Civil Law and in Canon Law, are they going to have
a provision in the Family Code to the effect that marriages annulled or declared void by the church on the ground of
psychological incapacity is automatically annulled in Civil Law? The other members replied negatively.

Justice Puno and Prof. Romero inquired if Article 37 should be retroactive or prospective in application.

Justice Diy opined that she was for its retroactivity because it is their answer to the problem of church annulments of
marriages, which are still valid under the Civil Law. On the other hand, Justice Reyes and Justice Puno were
concerned about the avalanche of cases.

Dean Gupit suggested that they put the issue to a vote, which the Committee approved.

The members voted as follows:

(1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity.

(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director Eufemio were for retroactivity.

(3) Prof. Baviera abstained.

Justice Caguioa suggested that they put in the prescriptive period of ten years within which the action for declaration
7
of nullity of the marriage should be filed in court. The Committee approved the suggestion.

It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to adopt the provision with less specificity than
expected, has in fact, so designed the law as to allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a member
of the Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita vs. Hon. Magtolis (G.R. No. 106429, 13 June
8
1994); thus:

The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit
the applicability of the provision under the principle of ejusdem generis. Rather, the Committee would like the judge to
interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be
given persuasive effect since the provision was taken from Canon Law.

9
A part of the provision is similar to Canon 1095 of the New Code of Canon Law, which reads:

Canon 1095. They are incapable of contracting marriage:

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essentila matrimonial rights and duties, to be
given and accepted mutually;
 3. who for causes of psychological nature are unable to assume the essential obligations of marriage. (Emphasis
supplied.)

Accordingly, although neither decisive nor even perhaps all that persuasive for having no juridical or secular effect, the jurisprudence
under Canon Law prevailing at the time of the code's enactment, nevertheless, cannot be dismissed as impertinent for its value as an
aid, at least, to the interpretation or construction of the codal provision.

10
One author, Ladislas Orsy, S.J., in his treaties, giving an account on how the third paragraph of Canon 1095 has been framed,
states:

The history of the drafting of this canon does not leave any doubt that the legislator intended, indeed, to broaden the
rule. A strict and narrow norm was proposed first:

Those who cannot assume the essential obligations of marriage because of a grave psycho-sexual
anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf. SCH/1975,
canon 297, a new canon, novus);

then a broader one followed:

. . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . . (cf. SCH/1980, canon 1049);

then the same wording was retained in the text submitted to the pope (cf. SCH/1982, canon 1095, 3);

finally, a new version was promulgated:

because of causes of a psychological nature (ob causas naturae psychiae).

So the progress was from psycho-sexual to psychological anomaly, then the term anomaly was altogether eliminated.
it would be, however, incorrect to draw the conclusion that the cause of the incapacity need not be some kind of
psychological disorder; after all, normal and healthy person should be able to assume the ordinary obligations of
marriage.

Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition since psychological causes can be of an infinite
variety.

In a book, entitled "Canons and Commentaries on Marriage," written by Ignatius Gramunt, Javier Hervada and LeRoy Wauck, the
following explanation appears:

This incapacity consists of the following: (a) a true inability to commit oneself to the essentials of marriage. Some
psychosexual disorders and other disorders of personality can be the psychic cause of this defect, which is here
described in legal terms. This particular type of incapacity consists of a real inability to render what is due by the
contract. This could be compared to the incapacity of a farmer to enter a binding contract to deliver the crops which
he cannot possibly reap; (b) this inability to commit oneself must refer to the essential obligations of marriage: the
conjugal act, the community of life and love, the rendering of mutual help, the procreation and education of offspring;
(c) the inability must be tantamount to a psychological abnormality. The mere difficulty of assuming these obligations,
which could be overcome by normal effort, obviously does not constitute incapacity. The canon contemplates a true
psychological disorder which incapacitates a person from giving what is due (cf. John Paul II, Address to R. Rota,
Feb. 5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must be proved not only that
the person is afflicted by a psychological defect, but that the defect did in fact deprive the person, at the moment of
giving consent, of the ability to assume the essential duties of marriage and consequently of the possibility of being
bound by these duties.

11
Justice Sempio-Diy cites with approval the work of Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch 1), who opines that psychological incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of
carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the
overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be
beyond the means of the party involved.

It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code
Revision Committee itself, that the use of the phrase "psychological incapacity" under Article 36 of the Code has not been meant to
comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence,
immaturity, and like circumstances (cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the Family Code and their Parallels
in Canon Law," quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric Association; Edward
Hudson's "Handbook II for Marriage Nullity Cases"). Article 36 of the Family Code cannot be taken and construed independently of, but
must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, "psychological incapacity" should refer to no
less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly
must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the
intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders
clearly demonstrative of an utter intensitivity or inability to give meaning and significance to the marriage. This pschologic condition
must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to
have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived
prior to the judicial declaration of nullity of the void marriage to be "legitimate."

The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of
drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46,
Family Code. If drug addiction, habitual alcholism, lesbianism or homosexuality should occur only during the marriage, they become
mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily
preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the
disorder, indicia of psychological incapacity.

Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree,
extent, and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and
indiscriminate nullity is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise
in psychological disciplines might be helpful or even desirable.

Marriage is not an adventure but a lifetime commitment. We should continue to be reminded that innate in our society, then enshrined
in our Civil Code, and even now still indelible in Article 1 of the Family Code, is that —

Art. 1. Marriage is a special contract of permanent union between a man a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that
marriage settlements may fix the property relations during the marriage within the limits provided by this Code.
(Emphasis supplied.)

Our Constitution is no less emphatic:

Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
(Article XV, 1987 Constitution).

The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the family, and they are doubt the
tenets we still hold on to.

The factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage.
Undeniably and understandably, Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor society
itself can always provide all the specific answers to every individual problem.

WHEREFORE, the petition is DENIED. SO ORDERED.

G.R. No. 137110 August 1, 2000 VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner,
vs.
CONSUELO TAN, respondent.

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters
into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier
union is characterized by statute as "void."

The Case

1
Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of Appeals (CA) in CA-GR CR No.
19830 and its January 4, 1999 Resolution denying reconsideration. The assailed Decision affirmed the ruling of the Regional Trial Court
(RTC) of Bacolod City in Criminal Case No. 13848, which convicted herein petitioner of bigamy as follows:
"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the crime of Bigamy
punishable under Article 349 of the Revised Penal Code to have been proven beyond reasonable doubt, [the court hereby renders]
judgment imposing upon him a prison term of three (3) years, four (4) months and fifteen (15) days of prision correccional, as minimum
of his indeterminate sentence, to eight (8) years and twenty-one (21) days of prision mayor, as maximum, plus accessory penalties
provided by law.

2
Costs against accused."

The Facts

The facts are quoted by Court of Appeals (CA) from the trial court’s judgment, as follows: "From the evidence adduced by the parties,
there is no dispute that accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991 before MTCC-
Bacolod City Br. 7 Judge Gorgonio J. Ibañez [by reason of] which a Marriage Contract was duly executed and signed by the parties. As
entered in said document, the status of accused was ‘single’. There is no dispute either that at the time of the celebration of the
wedding with complainant, accused was actually a married man, having been in lawful wedlock with Ma. Thelma Oliva in a marriage
ceremony solemnized on April 10, 1976 by Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in
connection therewith, which matrimony was further blessed by Rev. Father Arthur Baur on October 10, 1976 in religious rites at the
Sacred Heart Church, Cebu City. In the same manner, the civil marriage between accused and complainant was confirmed in a church
ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were
consummated when out of the first consortium, Ma. Thelma Oliva bore accused two children, while a child, Vincent Paul, Jr. was sired
by accused with complainant Ma. Consuelo Tan.

"On October 5, 1992, a letter-complaint for bigamy was filed by complainant through counsel with the City Prosecutor of Bacolod City,
which eventually resulted [in] the institution of the present case before this Court against said accused, Dr. Vincent G. Mercado, on
March 1, 1993 in an Information dated January 22, 1993.

"On November 13, 1992, or more than a month after the bigamy case was lodged in the Prosecutor’s Office, accused filed an action for
Declaration of Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the
marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and void.

"Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for having contracted a second marriage with herein
complainant Ma. Consuelo Tan on June 27, 1991 when at that time he was previously united in lawful marriage with Ma. Thelma V.
Oliva on April 10, 1976 at Cebu City, without said first marriage having been legally dissolved. As shown by the evidence and admitted
by accused, all the essential elements of the crime are present, namely: (a) that the offender has been previously legally married; (2)
that the first marriage has not been legally dissolved or in case the spouse is absent, the absent spouse could not yet be presumed
dead according to the Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the second or subsequent
marriage ha[d] all the essential requisites for validity. x x x

"While acknowledging the existence of the two marriage[s], accused posited the defense that his previous marriage ha[d] been judicially
declared null and void and that the private complainant had knowledge of the first marriage of accused.

"It is an admitted fact that when the second marriage was entered into with Ma. Consuelo Tan on June 27, 1991, accused’s prior
marriage with Ma. Thelma V. Oliva was subsisting, no judicial action having yet been initiated or any judicial declaration obtained as to
the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no declaration of the nullity of his first marriage ha[d] yet been made
at the time of his second marriage, it is clear that accused was a married man when he contracted such second marriage with
3
complainant on June 27, 1991. He was still at the time validly married to his first wife."

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

"Under Article 40 of the Family Code, ‘the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void.’ But here, the final judgment declaring null and void accused’s
previous marriage came not before the celebration of the second marriage, but after, when the case for bigamy against accused was
already tried in court. And what constitutes the crime of bigamy is the act of any person who shall contract a second subsequent
4
marriage ‘before’ the former marriage has been legally dissolved."

5
Hence, this Petition.

The Issues

In his Memorandum, petitioner raises the following issues:

"A
 Whether or not the element of previous legal marriage is present in order to convict petitioner.

"B

Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised Penal Code punishing bigamy, in
relation to Articles 36 and 40 of the Family Code, negates the guilt of petitioner.

"C

6
Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt."

The Court’s Ruling

The Petition is not meritorious.

Main Issue:Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides:

"The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former
marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings."

The elements of this crime are as follows:

"1. That the offender has been legally married;

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be
presumed dead according to the Civil Code;

3. That he contracts a second or subsequent marriage;

7
4. That the second or subsequent marriage has all the essential requisites for validity."

When the Information was filed on January 22, 1993, all the elements of bigamy were present. It is undisputed that petitioner married
Thelma G. Oliva on April 10, 1976 in Cebu City. While that marriage was still subsisting, he contracted a second marriage, this time
with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for bigamy.

Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage under Article 36 of the Family Code,
thereby rendering it void ab initio. Unlike voidable marriages which are considered valid until set aside by a competent court, he argues
8
that a void marriage is deemed never to have taken place at all. Thus, he concludes that there is no first marriage to speak of.
9
Petitioner also quotes the commentaries of former Justice Luis Reyes that "it is now settled that if the first marriage is void from the
beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense."

Respondent, on the other hand, admits that the first marriage was declared null and void under Article 36 of the Family Code, but she
points out that that declaration came only after the Information had been filed. Hence, by then, the crime had already been
consummated. She argues that a judicial declaration of nullity of a void previous marriage must be obtained before a person can marry
for a subsequent time.

We agree with the respondent.

To be sure, jurisprudence regarding the need for a judicial declaration of nullity of the previous marriage has been characterized as
10 11
"conflicting." In People v. Mendoza, a bigamy case involving an accused who married three times, the Court ruled that there was no
need for such declaration. In that case, the accused contracted a second marriage during the subsistence of the first. When the first
wife died, he married for the third time. The second wife then charged him with bigamy. Acquitting him, the Court held that the second
marriage was void ab initio because it had been contracted while the first marriage was still in effect. Since the second marriage was
obviously void and illegal, the Court ruled that there was no need for a judicial declaration of its nullity. Hence, the accused did not
12
commit bigamy when he married for the third time. This ruling was affirmed by the Court in People v. Aragon, which involved
substantially the same facts.

13
But in subsequent cases, the Court impressed the need for a judicial declaration of nullity. In Vda de Consuegra v. GSIS, Jose
Consuegra married for the second time while the first marriage was still subsisting. Upon his death, the Court awarded one half of the
proceeds of his retirement benefits to the first wife and the other half to the second wife and her children, notwithstanding the manifest
nullity of the second marriage. It held: "And with respect to the right of the second wife, this Court observes that although the second
marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for
judicial declaration of such nullity."

14
In Tolentino v. Paras, however, the Court again held that judicial declaration of nullity of a void marriage was not necessary. In that
case, a man married twice. In his Death Certificate, his second wife was named as his surviving spouse. The first wife then filed a
Petition to correct the said entry in the Death Certificate. The Court ruled in favor of the first wife, holding that "the second marriage that
he contracted with private respondent during the lifetime of the first spouse is null and void from the beginning and of no force and
effect. No judicial decree is necessary to establish the invalidity of a void marriage."

15
In Wiegel v. Sempio-Diy, the Court stressed the need for such declaration. In that case, Karl Heinz Wiegel filed an action for the
declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia
asked that she be allowed to present evidence to prove, among others, that her first husband had previously been married to another
woman. In holding that there was no need for such evidence, the Court ruled: "x x x There is likewise no need of introducing evidence
about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still
needs, according to this Court, a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a
married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; x x x."

16
Subsequently, in Yap v. CA, the Court reverted to the ruling in People v. Mendoza, holding that there was no need for such
declaration of nullity.

17
In Domingo v. CA, the issue raised was whether a judicial declaration of nullity was still necessary for the recovery and the separation
of properties of erstwhile spouses. Ruling in the affirmative, the Court declared: "The Family Code has settled once and for all the
conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of
action or a ground for defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the
spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her
18
first marriage, the person who marries again cannot be charged with bigamy."

Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was not a criminal prosecution for bigamy.
Nonetheless, Domingo underscored the need for a judicial declaration of nullity of a void marriage on the basis of a new provision of the
Family Code, which came into effect several years after the promulgation of Mendoza and Aragon.

In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided:

"Illegal marriages. — Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and
void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse
present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so
by the spouse present at the time of contracting such subsequent marriage, the marriage as contracted being valid in either
case until declared null and void by a competent court."

The Court held in those two cases that the said provision "plainly makes a subsequent marriage contracted by any person during the
lifetime of his first spouse illegal and void from its performance, and no judicial decree is necessary to establish its invalidity, as
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distinguished from mere annulable marriages."

The provision appeared in substantially the same form under Article 83 of the 1950 Civil Code and Article 41 of the Family Code.
However, Article 40 of the Family Code, a new provision, expressly requires a judicial declaration of nullity of the previous marriage, as
follows:

"ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment
declaring such marriage void."

In view of this provision, Domingo stressed that a final judgment declaring such marriage void was necessary. Verily, the Family Code
and Domingo affirm the earlier ruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Commitee has
observed:

"[Article 40] is also in line with the recent decisions of the Supreme Court that the marriage of a person may be null and void but there is
need of a judicial declaration of such fact before that person can marry again; otherwise, the second marriage will also be void (Wiegel
v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA 315). This provision changes the old rule that where
a marriage is illegal and void from its performance, no judicial decree is necessary to establish its validity (People v. Mendoza, 95 Phil.
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843; People v. Aragon, 100 Phil. 1033)."

In this light, the statutory mooring of the ruling in Mendoza and Aragon – that there is no need for a judicial declaration of nullity of a
void marriage -- has been cast aside by Article 40 of the Family Code. Such declaration is now necessary before one can contract a
second marriage. Absent that declaration, we hold that one may be charged with and convicted of bigamy.

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The present ruling is consistent with our pronouncement in Terre v. Terre, which involved an administrative Complaint against a
lawyer for marrying twice. In rejecting the lawyer’s argument that he was free to enter into a second marriage because the first one was
void ab initio, the Court ruled: "for purposes of determining whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential." The Court further noted that the said rule was "cast into
statutory form by Article 40 of the Family Code." Significantly, it observed that the second marriage, contracted without a judicial
declaration that the first marriage was void, was "bigamous and criminal in character."

Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited by petitioner, changed his view on the subject in
view of Article 40 of the Family Code and wrote in 1993 that a person must first obtain a judicial declaration of the nullity of a void
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marriage before contracting a subsequent marriage:

"It is now settled that the fact that the first marriage is void from the beginning is not a defense in a bigamy charge. As with a voidable
marriage, there must be a judicial declaration of the nullity of a marriage before contracting the second marriage. Article 40 of the
Family Code states that x x x. The Code Commission believes that the parties to a marriage should not be allowed to assume that their
marriage is void, even if such is the fact, but must first secure a judicial declaration of nullity of their marriage before they should be
allowed to marry again. x x x."

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage.
In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him
with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of
the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already
been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could
simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the
criminal case. We cannot allow that.

Under the circumstances of the present case, he is guilty of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set aside the ruling of the Court of Appeals insofar as it denied her claim of
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damages and attorney’s fees.

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative relief from this
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Court. In any event, we find no reason to reverse or set aside the pertinent ruling of the CA on this point, which we quote hereunder:

"We are convinced from the totality of the evidence presented in this case that Consuelo Tan is not the innocent victim that she claims
to be; she was well aware of the existence of the previous marriage when she contracted matrimony with Dr. Mercado. The testimonies
of the defense witnesses prove this, and we find no reason to doubt said testimonies.

xxx xxx xxx

"Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage does not inspire belief, especially as she had seen
that Dr. Mercado had two (2) children with him. We are convinced that she took the plunge anyway, relying on the fact that the first wife
would no longer return to Dr. Mercado, she being by then already living with another man.

"Consuelo Tan can therefore not claim damages in this case where she was fully conscious of the consequences of her act. She should
have known that she would suffer humiliation in the event the truth [would] come out, as it did in this case, ironically because of her
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personal instigation. If there are indeed damages caused to her reputation, they are of her own willful making."

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner.

SO ORDERED.