RULE 86

1. G.R. No. 120880 June 5, 1997

FERDINAND R. MARCOS II, petitioner, vs. COURT OF APPEALS, THE COMMISSIONER OF THE BUREAU OF INTERNAL
REVENUE and HERMINIA D. DE GUZMAN, respondents. TORRES, JR., J.:

In this Petition for Review on Certiorari, Government action is once again assailed as precipitate and unfair, suffering the basic
and oftly implored requisites of due process of law. Specifically, the petition assails the Decision 1 of the Court of Appeals dated
November 29, 1994 in CA-G.R. SP No. 31363, where the said court held:

In view of all the foregoing, we rule that the deficiency income tax assessments and estate tax assessment, are already final
and (u)nappealable-and-the subsequent levy of real properties is a tax remedy resorted to by the government, sanctioned by
Section 213 and 218 of the National Internal Revenue Code. This summary tax remedy is distinct and separate from the other
tax remedies (such as Judicial Civil actions and Criminal actions), and is not affected or precluded by the pendency of any other
tax remedies instituted by the government.

WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the petition for certiorari with prayer for
Restraining Order and Injunction.

No pronouncements as to costs. SO ORDERED.

More than seven years since the demise of the late Ferdinand E. Marcos, the former President of the Republic of the
Philippines, the matter of the settlement of his estate, and its dues to the government in estate taxes, are still unresolved, the
latter issue being now before this Court for resolution. Specifically, petitioner Ferdinand R. Marcos II, the eldest son of the
decedent, questions the actuations of the respondent Commissioner of Internal Revenue in assessing, and collecting through
the summary remedy of Levy on Real Properties, estate and income tax delinquencies upon the estate and properties of his
father, despite the pendency of the proceedings on probate of the will of the late president, which is docketed as Sp. Proc. No.
10279 in the Regional Trial Court of Pasig, Branch 156.

Petitioner had filed with the respondent Court of Appeals a Petition for Certiorari and Prohibition with an application for writ of
preliminary injunction and/or temporary restraining order on June 28, 1993, seeking to —

I. Annul and set aside the Notices of Levy on real property dated February 22, 1993 and May 20, 1993, issued by respondent
Commissioner of Internal Revenue;

II. Annul and set aside the Notices of Sale dated May 26, 1993;

III. Enjoin the Head Revenue Executive Assistant Director II (Collection Service), from proceeding with the Auction of the real
properties covered by Notices of Sale.

After the parties had pleaded their case, the Court of Appeals rendered its Decision 2 on November 29, 1994, ruling that the
deficiency assessments for estate and income tax made upon the petitioner and the estate of the deceased President Marcos
have already become final and unappealable, and may thus be enforced by the summary remedy of levying upon the properties
of the late President, as was done by the respondent Commissioner of Internal Revenue.

WHEREFORE, premises considered judgment is hereby rendered DISMISSING the petition for Certiorari with prayer for
Restraining Order and Injunction. No pronouncements as to cost. SO ORDERED.

Unperturbed, petitioner is now before us assailing the validity of the appellate court's decision, assigning the following as errors:

A. RESPONDENT COURT MANIFESTLY ERRED IN RULING THAT THE SUMMARY TAX REMEDIES RESORTED TO BY
THE GOVERNMENT ARE NOT AFFECTED AND PRECLUDED BY THE PENDENCY OF THE SPECIAL PROCEEDING FOR
THE ALLOWANCE OF THE LATE PRESIDENT'S ALLEGED WILL. TO THE CONTRARY, THIS PROBATE PROCEEDING
PRECISELY PLACED ALL PROPERTIES WHICH FORM PART OF THE LATE PRESIDENT'S ESTATE IN CUSTODIA LEGIS
OF THE PROBATE COURT TO THE EXCLUSION OF ALL OTHER COURTS AND ADMINISTRATIVE AGENCIES.

B. RESPONDENT COURT ARBITRARILY ERRED IN SWEEPINGLY DECIDING THAT SINCE THE TAX ASSESSMENTS OF
PETITIONER AND HIS PARENTS HAD ALREADY BECOME FINAL AND UNAPPEALABLE, THERE WAS NO NEED TO GO
INTO THE MERITS OF THE GROUNDS CITED IN THE PETITION. INDEPENDENT OF WHETHER THE TAX
ASSESSMENTS HAD ALREADY BECOME FINAL, HOWEVER, PETITIONER HAS THE RIGHT TO QUESTION THE
UNLAWFUL MANNER AND METHOD IN WHICH TAX COLLECTION IS SOUGHT TO BE ENFORCED BY RESPONDENTS
COMMISSIONER AND DE GUZMAN. THUS, RESPONDENT COURT SHOULD HAVE FAVORABLY CONSIDERED THE
MERITS OF THE FOLLOWING GROUNDS IN THE PETITION:

(1) The Notices of Levy on Real Property were issued beyond the period provided in the Revenue Memorandum Circular No.
38-68.

(2) [a] The numerous pending court cases questioning the late President's ownership or interests in several properties (both
personal and real) make the total value of his estate, and the consequent estate tax due, incapable of exact pecuniary
determination at this time. Thus, respondents' assessment of the estate tax and their issuance of the Notices of Levy and Sale
are premature, confiscatory and oppressive.
[b] Petitioner, as one of the late President's compulsory heirs, was never notified, much less served with copies of the Notices of
Levy, contrary to the mandate of Section 213 of the NIRC. As such, petitioner was never given an opportunity to contest the
Notices in violation of his right to due process of law.

C. ON ACCOUNT OF THE CLEAR MERIT OF THE PETITION, RESPONDENT COURT MANIFESTLY ERRED IN RULING
THAT IT HAD NO POWER TO GRANT INJUNCTIVE RELIEF TO PETITIONER. SECTION 219 OF THE NIRC
NOTWITHSTANDING, COURTS POSSESS THE POWER TO ISSUE A WRIT OF PRELIMINARY INJUNCTION TO
RESTRAIN RESPONDENTS COMMISSIONER'S AND DE GUZMAN'S ARBITRARY METHOD OF COLLECTING THE
ALLEGED DEFICIENCY ESTATE AND INCOME TAXES BY MEANS OF LEVY.

The facts as found by the appellate court are undisputed, and are hereby adopted:

On September 29, 1989, former President Ferdinand Marcos died in Honolulu, Hawaii, USA.

On June 27, 1990, a Special Tax Audit Team was created to conduct investigations and examinations of the tax liabilities and
obligations of the late president, as well as that of his family, associates and "cronies". Said audit team concluded its
investigation with a Memorandum dated July 26, 1991. The investigation disclosed that the Marcoses failed to file a written
notice of the death of the decedent, an estate tax returns [sic], as well as several income tax returns covering the years 1982 to
1986, — all in violation of the National Internal Revenue Code (NIRC).

Subsequently, criminal charges were filed against Mrs. Imelda R. Marcos before the Regional Trial of Quezon City for violations
of Sections 82, 83 and 84 (has penalized under Sections 253 and 254 in relation to Section 252 — a & b) of the National
Internal Revenue Code (NIRC).

The Commissioner of Internal Revenue thereby caused the preparation and filing of the Estate Tax Return for the estate of the
late president, the Income Tax Returns of the Spouses Marcos for the years 1985 to 1986, and the Income Tax Returns of
petitioner Ferdinand "Bongbong" Marcos II for the years 1982 to 1985.

On July 26, 1991, the BIR issued the following: (1) Deficiency estate tax assessment no. FAC-2-89-91-002464 (against the
estate of the late president Ferdinand Marcos in the amount of P23,293,607,638.00 Pesos); (2) Deficiency income tax
assessment no. FAC-1-85-91-002452 and Deficiency income tax assessment no. FAC-1-86-91-002451 (against the Spouses
Ferdinand and Imelda Marcos in the amounts of P149,551.70 and P184,009,737.40 representing deficiency income tax for the
years 1985 and 1986); (3) Deficiency income tax assessment nos. FAC-1-82-91-002460 to FAC-1-85-91-002463 (against
petitioner Ferdinand "Bongbong" Marcos II in the amounts of P258.70 pesos; P9,386.40 Pesos; P4,388.30 Pesos; and
P6,376.60 Pesos representing his deficiency income taxes for the years 1982 to 1985).

The Commissioner of Internal Revenue avers that copies of the deficiency estate and income tax assessments were all
personally and constructively served on August 26, 1991 and September 12, 1991 upon Mrs. Imelda Marcos (through her
caretaker Mr. Martinez) at her last known address at No. 204 Ortega St., San Juan, M.M. (Annexes "D" and "E" of the Petition).
Likewise, copies of the deficiency tax assessments issued against petitioner Ferdinand "Bongbong" Marcos II were also
personally and constructively served upon him (through his caretaker) on September 12, 1991, at his last known address at Don
Mariano Marcos St. corner P. Guevarra St., San Juan, M.M. (Annexes "J" and "J-1" of the Petition). Thereafter, Formal
Assessment notices were served on October 20, 1992, upon Mrs. Marcos c/o petitioner, at his office, House of Representatives,
Batasan Pambansa, Quezon City. Moreover, a notice to Taxpayer inviting Mrs. Marcos (or her duly authorized representative or
counsel), to a conference, was furnished the counsel of Mrs. Marcos, Dean Antonio Coronel — but to no avail.

The deficiency tax assessments were not protested administratively, by Mrs. Marcos and the other heirs of the late president,
within 30 days from service of said assessments.

On February 22, 1993, the BIR Commissioner issued twenty-two notices of levy on real property against certain parcels of land
owned by the Marcoses — to satisfy the alleged estate tax and deficiency income taxes of Spouses Marcos.

On May 20, 1993, four more Notices of Levy on real property were issued for the purpose of satisfying the deficiency income
taxes.

On May 26, 1993, additional four (4) notices of Levy on real property were again issued. The foregoing tax remedies were
resorted to pursuant to Sections 205 and 213 of the National Internal Revenue Code (NIRC).

In response to a letter dated March 12, 1993 sent by Atty. Loreto Ata (counsel of herein petitioner) calling the attention of the
BIR and requesting that they be duly notified of any action taken by the BIR affecting the interest of their client Ferdinand
"Bongbong" Marcos II, as well as the interest of the late president — copies of the aforesaid notices were, served on April 7,
1993 and on June 10, 1993, upon Mrs. Imelda Marcos, the petitioner, and their counsel of record, "De Borja, Medialdea, Ata,
Bello, Guevarra and Serapio Law Office".

Notices of sale at public auction were posted on May 26, 1993, at the lobby of the City Hall of Tacloban City. The public auction
for the sale of the eleven (11) parcels of land took place on July 5, 1993. There being no bidder, the lots were declared forfeited
in favor of the government.

On June 25, 1993, petitioner Ferdinand "Bongbong" Marcos II filed the instant petition for certiorari and prohibition under Rule
65 of the Rules of Court, with prayer for temporary restraining order and/or writ of preliminary injunction.

It has been repeatedly observed, and not without merit, that the enforcement of tax laws and the collection of taxes, is of
paramount importance for the sustenance of government. Taxes are the lifeblood of the government and should be collected
without unnecessary hindrance. However, such collection should be made in accordance with law as any arbitrariness will
negate the very reason for government itself. It is therefore necessary to reconcile the apparently conflicting interests of the
authorities and the taxpayers so that the real purpose of taxation, which is the promotion of the common good, may be
achieved. 3

Whether or not the proper avenues of assessment and collection of the said tax obligations were taken by the respondent
Bureau is now the subject of the Court's inquiry.

Petitioner posits that notices of levy, notices of sale, and subsequent sale of properties of the late President Marcos effected by
the BIR are null and void for disregarding the established procedure for the enforcement of taxes due upon the estate of the
deceased. The case of Domingo vs. Garlitos4 is specifically cited to bolster the argument that "the ordinary procedure by which
to settle claims of indebtedness against the estate of a deceased, person, as in an inheritance (estate) tax, is for the claimant to
present a claim before the probate court so that said court may order the administrator to pay the amount therefor." This remedy
is allegedly, exclusive, and cannot be effected through any other means.

Petitioner goes further, submitting that the probate court is not precluded from denying a request by the government for the
immediate payment of taxes, and should order the payment of the same only within the period fixed by the probate court for the
payment of all the debts of the decedent. In this regard, petitioner cites the case of Collector of Internal Revenue vs. The
Administratrix of the Estate of Echarri (67 Phil 502), where it was held that:

The case of Pineda vs. Court of First Instance of Tayabas and Collector of Internal Revenue (52 Phil 803), relied upon by the
petitioner-appellant is good authority on the proposition that the court having control over the administration proceedings has
jurisdiction to entertain the claim presented by the government for taxes due and to order the administrator to pay the tax should
it find that the assessment was proper, and that the tax was legal, due and collectible. And the rule laid down in that case must
be understood in relation to the case of Collector of Customs vs. Haygood, supra., as to the procedure to be followed in a given
case by the government to effectuate the collection of the tax. Categorically stated, where during the pendency of judicial
administration over the estate of a deceased person a claim for taxes is presented by the government, the court has the
authority to order payment by the administrator; but, in the same way that it has authority to order payment or satisfaction, it also
has the negative authority to deny the same. While there are cases where courts are required to perform certain duties
mandatory and ministerial in character, the function of the court in a case of the present character is not one of them; and here,
the court cannot be an organism endowed with latitude of judgment in one direction, and converted into a mere mechanical
contrivance in another direction.

On the other hand, it is argued by the BIR, that the state's authority to collect internal revenue taxes is paramount. Thus, the
pendency of probate proceedings over the estate of the deceased does not preclude the assessment and collection, through
summary remedies, of estate taxes over the same. According to the respondent, claims for payment of estate and income taxes
due and assessed after the death of the decedent need not be presented in the form of a claim against the estate. These can
and should be paid immediately. The probate court is not the government agency to decide whether an estate is liable for
payment of estate of income taxes. Well-settled is the rule that the probate court is a court with special and limited jurisdiction.

Concededly, the authority of the Regional Trial Court, sitting, albeit with limited jurisdiction, as a probate court over estate of
deceased individual, is not a trifling thing. The court's jurisdiction, once invoked, and made effective, cannot be treated with
indifference nor should it be ignored with impunity by the very parties invoking its authority.

In testament to this, it has been held that it is within the jurisdiction of the probate court to approve the sale of properties of a
deceased person by his prospective heirs before final adjudication; 5 to determine who are the heirs of the decedent; 6 the
recognition of a natural child; 7 the status of a woman claiming to be the legal wife of the decedent; 8 the legality of
disinheritance of an heir by the testator; 9 and to pass upon the validity of a waiver of hereditary rights. 10

The pivotal question the court is tasked to resolve refers to the authority of the Bureau of Internal Revenue to collect by the
summary remedy of levying upon, and sale of real properties of the decedent, estate tax deficiencies, without the cognition and
authority of the court sitting in probate over the supposed will of the deceased.

The nature of the process of estate tax collection has been described as follows:

Strictly speaking, the assessment of an inheritance tax does not directly involve the administration of a decedent's estate,
although it may be viewed as an incident to the complete settlement of an estate, and, under some statutes, it is made the duty
of the probate court to make the amount of the inheritance tax a part of the final decree of distribution of the estate. It is not
against the property of decedent, nor is it a claim against the estate as such, but it is against the interest or property right which
the heir, legatee, devisee, etc., has in the property formerly held by decedent. Further, under some statutes, it has been held
that it is not a suit or controversy between the parties, nor is it an adversary proceeding between the state and the person who
owes the tax on the inheritance. However, under other statutes it has been held that the hearing and determination of the cash
value of the assets and the determination of the tax are adversary proceedings. The proceeding has been held to be necessarily
a proceeding in rem. 11

In the Philippine experience, the enforcement and collection of estate tax, is executive in character, as the legislature has seen it
fit to ascribe this task to the Bureau of Internal Revenue. Section 3 of the National Internal Revenue Code attests to this:

Sec. 3. Powers and duties of the Bureau. — The powers and duties of the Bureau of Internal Revenue shall comprehend the
assessment and collection of all national internal revenue taxes, fees, and charges, and the enforcement of all forfeitures,
penalties, and fines connected therewith, including the execution of judgments in all cases decided in its favor by the Court of
Tax Appeals and the ordinary courts. Said Bureau shall also give effect to and administer the supervisory and police power
conferred to it by this Code or other laws.
Thus, it was in Vera vs. Fernandez12 that the court recognized the liberal treatment of claims for taxes charged against the
estate of the decedent. Such taxes, we said, were exempted from the application of the statute of non-claims, and this is
justified by the necessity of government funding, immortalized in the maxim that taxes are the lifeblood of the government.
Vectigalia nervi sunt rei publicae — taxes are the sinews of the state.

Taxes assessed against the estate of a deceased person, after administration is opened, need not be submitted to the
committee on claims in the ordinary course of administration. In the exercise of its control over the administrator, the court may
direct the payment of such taxes upon motion showing that the taxes have been assessed against the estate.

Such liberal treatment of internal revenue taxes in the probate proceedings extends so far, even to allowing the enforcement of
tax obligations against the heirs of the decedent, even after distribution of the estate's properties.

Claims for taxes, whether assessed before or after the death of the deceased, can be collected from the heirs even after the
distribution of the properties of the decedent. They are exempted from the application of the statute of non-claims. The heirs
shall be liable therefor, in proportion to their share in the inheritance. 13

Thus, the Government has two ways of collecting the taxes in question. One, by going after all the heirs and collecting from
each one of them the amount of the tax proportionate to the inheritance received. Another remedy, pursuant to the lien created
by Section 315 of the Tax Code upon all property and rights to property belong to the taxpayer for unpaid income tax, is by
subjecting said property of the estate which is in the hands of an heir or transferee to the payment of the tax due the estate.
(Commissioner of Internal Revenue vs. Pineda, 21 SCRA 105, September 15, 1967.)

From the foregoing, it is discernible that the approval of the court, sitting in probate, or as a settlement tribunal over the
deceased is not a mandatory requirement in the collection of estate taxes. It cannot therefore be argued that the Tax Bureau
erred in proceeding with the levying and sale of the properties allegedly owned by the late President, on the ground that it was
required to seek first the probate court's sanction. There is nothing in the Tax Code, and in the pertinent remedial laws that
implies the necessity of the probate or estate settlement court's approval of the state's claim for estate taxes, before the same
can be enforced and collected.

On the contrary, under Section 87 of the NIRC, it is the probate or settlement court which is bidden not to authorize the executor
or judicial administrator of the decedent's estate to deliver any distributive share to any party interested in the estate, unless it is
shown a Certification by the Commissioner of Internal Revenue that the estate taxes have been paid. This provision disproves
the petitioner's contention that it is the probate court which approves the assessment and collection of the estate tax.

If there is any issue as to the validity of the BIR's decision to assess the estate taxes, this should have been pursued through
the proper administrative and judicial avenues provided for by law.

Section 229 of the NIRC tells us how:

Sec. 229. Protesting of assessment. — When the Commissioner of Internal Revenue or his duly authorized representative finds
that proper taxes should be assessed, he shall first notify the taxpayer of his findings. Within a period to be prescribed by
implementing regulations, the taxpayer shall be required to respond to said notice. If the taxpayer fails to respond, the
Commissioner shall issue an assessment based on his findings.

Such assessment may be protested administratively by filing a request for reconsideration or reinvestigation in such form and
manner as may be prescribed by implementing regulations within (30) days from receipt of the assessment; otherwise, the
assessment shall become final and unappealable.

If the protest is denied in whole or in part, the individual, association or corporation adversely affected by the decision on the
protest may appeal to the Court of Tax Appeals within thirty (30) days from receipt of said decision; otherwise, the decision shall
become final, executory and demandable. (As inserted by P.D. 1773)

Apart from failing to file the required estate tax return within the time required for the filing of the same, petitioner, and the other
heirs never questioned the assessments served upon them, allowing the same to lapse into finality, and prompting the BIR to
collect the said taxes by levying upon the properties left by President Marcos.

Petitioner submits, however, that "while the assessment of taxes may have been validly undertaken by the Government,
collection thereof may have been done in violation of the law. Thus, the manner and method in which the latter is enforced may
be questioned separately, and irrespective of the finality of the former, because the Government does not have the unbridled
discretion to enforce collection without regard to the clear provision of law." 14

Petitioner specifically points out that applying Memorandum Circular No. 38-68, implementing Sections 318 and 324 of the old
tax code (Republic Act 5203), the BIR's Notices of Levy on the Marcos properties, were issued beyond the allowed period, and
are therefore null and void:

. . . the Notices of Levy on Real Property (Annexes O to NN of Annex C of this Petition) in satisfaction of said assessments were
still issued by respondents well beyond the period mandated in Revenue Memorandum Circular No. 38-68. These Notices of
Levy were issued only on 22 February 1993 and 20 May 1993 when at least seventeen (17) months had already lapsed from
the last service of tax assessment on 12 September 1991. As no notices of distraint of personal property were first issued by
respondents, the latter should have complied with Revenue Memorandum Circular No. 38-68 and issued these Notices of Levy
not earlier than three (3) months nor later than six (6) months from 12 September 1991. In accordance with the Circular,
respondents only had until 12 March 1992 (the last day of the sixth month) within which to issue these Notices of Levy. The
Notices of Levy, having been issued beyond the period allowed by law, are thus void and of no effect. 15
We hold otherwise. The Notices of Levy upon real property were issued within the prescriptive period and in accordance with
the provisions of the present Tax Code. The deficiency tax assessment, having already become final, executory, and
demandable, the same can now be collected through the summary remedy of distraint or levy pursuant to Section 205 of the
NIRC.

The applicable provision in regard to the prescriptive period for the assessment and collection of tax deficiency in this instance is
Article 223 of the NIRC, which pertinently provides:

Sec. 223. Exceptions as to a period of limitation of assessment and collection of taxes. — (a) In the case of a false or fraudulent
return with intent to evade tax or of a failure to file a return, the tax may be assessed, or a proceeding in court for the collection
of such tax may be begun without assessment, at any time within ten (10) years after the discovery of the falsity, fraud, or
omission: Provided, That, in a fraud assessment which has become final and executory, the fact of fraud shall be judicially taken
cognizance of in the civil or criminal action for the collection thereof.

(c) Any internal revenue tax which has been assessed within the period of limitation above prescribed, may be collected by
distraint or levy or by a proceeding in court within three years following the assessment of the tax.

The omission to file an estate tax return, and the subsequent failure to contest or appeal the assessment made by the BIR is
fatal to the petitioner's cause, as under the above-cited provision, in case of failure to file a return, the tax may be assessed at
any time within ten years after the omission, and any tax so assessed may be collected by levy upon real property within three
years following the assessment of the tax. Since the estate tax assessment had become final and unappealable by the
petitioner's default as regards protesting the validity of the said assessment, there is now no reason why the BIR cannot
continue with the collection of the said tax. Any objection against the assessment should have been pursued following the
avenue paved in Section 229 of the NIRC on protests on assessments of internal revenue taxes.

Petitioner further argues that "the numerous pending court cases questioning the late president's ownership or interests in
several properties (both real and personal) make the total value of his estate, and the consequent estate tax due, incapable of
exact pecuniary determination at this time. Thus, respondents' assessment of the estate tax and their issuance of the Notices of
Levy and sale are premature and oppressive." He points out the pendency of Sandiganbayan Civil Case Nos. 0001-0034 and
0141, which were filed by the government to question the ownership and interests of the late President in real and personal
properties located within and outside the Philippines. Petitioner, however, omits to allege whether the properties levied upon by
the BIR in the collection of estate taxes upon the decedent's estate were among those involved in the said cases pending in the
Sandiganbayan. Indeed, the court is at a loss as to how these cases are relevant to the matter at issue. The mere fact that the
decedent has pending cases involving ill-gotten wealth does not affect the enforcement of tax assessments over the properties
indubitably included in his estate.

Petitioner also expresses his reservation as to the propriety of the BIR's total assessment of P23,292,607,638.00, stating that
this amount deviates from the findings of the Department of Justice's Panel of Prosecutors as per its resolution of 20 September
1991. Allegedly, this is clear evidence of the uncertainty on the part of the Government as to the total value of the estate of the
late President.

This is, to our mind, the petitioner's last ditch effort to assail the assessment of estate tax which had already become final and
unappealable.

It is not the Department of Justice which is the government agency tasked to determine the amount of taxes due upon the
subject estate, but the Bureau of Internal Revenue, 16 whose determinations and assessments are presumed correct and made
in good faith. 17 The taxpayer has the duty of proving otherwise. In the absence of proof of any irregularities in the performance
of official duties, an assessment will not be disturbed. Even an assessment based on estimates is prima facie valid and lawful
where it does not appear to have been arrived at arbitrarily or capriciously. The burden of proof is upon the complaining party to
show clearly that the assessment is erroneous. Failure to present proof of error in the assessment will justify the judicial
affirmance of said assessment. 18 In this instance, petitioner has not pointed out one single provision in the Memorandum of the
Special Audit Team which gave rise to the questioned assessment, which bears a trace of falsity. Indeed, the petitioner's attack
on the assessment bears mainly on the alleged improbable and unconscionable amount of the taxes charged. But mere rhetoric
cannot supply the basis for the charge of impropriety of the assessments made.

Moreover, these objections to the assessments should have been raised, considering the ample remedies afforded the taxpayer
by the Tax Code, with the Bureau of Internal Revenue and the Court of Tax Appeals, as described earlier, and cannot be raised
now via Petition for Certiorari, under the pretext of grave abuse of discretion. The course of action taken by the petitioner
reflects his disregard or even repugnance of the established institutions for governance in the scheme of a well-ordered society.
The subject tax assessments having become final, executory and enforceable, the same can no longer be contested by means
of a disguised protest. In the main, Certiorari may not be used as a substitute for a lost appeal or remedy. 19 This judicial policy
becomes more pronounced in view of the absence of sufficient attack against the actuations of government.

On the matter of sufficiency of service of Notices of Assessment to the petitioner, we find the respondent appellate court's
pronouncements sound and resilient to petitioner's attacks.

Anent grounds 3(b) and (B) — both alleging/claiming lack of notice — We find, after considering the facts and circumstances, as
well as evidences, that there was sufficient, constructive and/or actual notice of assessments, levy and sale, sent to herein
petitioner Ferdinand "Bongbong" Marcos as well as to his mother Mrs. Imelda Marcos.

Even if we are to rule out the notices of assessments personally given to the caretaker of Mrs. Marcos at the latter's last known
address, on August 26, 1991 and September 12, 1991, as well as the notices of assessment personally given to the caretaker
of petitioner also at his last known address on September 12, 1991 — the subsequent notices given thereafter could no longer
be ignored as they were sent at a time when petitioner was already here in the Philippines, and at a place where said notices
would surely be called to petitioner's attention, and received by responsible persons of sufficient age and discretion.

Thus, on October 20, 1992, formal assessment notices were served upon Mrs. Marcos c/o the petitioner, at his office, House of
Representatives, Batasan Pambansa, Q.C. (Annexes "A", "A-1", "A-2", "A-3"; pp. 207-210, Comment/Memorandum of OSG).
Moreover, a notice to taxpayer dated October 8, 1992 inviting Mrs. Marcos to a conference relative to her tax liabilities, was
furnished the counsel of Mrs. Marcos — Dean Antonio Coronel (Annex "B", p. 211, ibid). Thereafter, copies of Notices were also
served upon Mrs. Imelda Marcos, the petitioner and their counsel "De Borja, Medialdea, Ata, Bello, Guevarra and Serapio Law
Office", on April 7, 1993 and June 10, 1993. Despite all of these Notices, petitioner never lifted a finger to protest the
assessments, (upon which the Levy and sale of properties were based), nor appealed the same to the Court of Tax Appeals.

There being sufficient service of Notices to herein petitioner (and his mother) and it appearing that petitioner continuously
ignored said Notices despite several opportunities given him to file a protest and to thereafter appeal to the Court of Tax
Appeals, — the tax assessments subject of this case, upon which the levy and sale of properties were based, could no longer
be contested (directly or indirectly) via this instant petition for certiorari. 20

Petitioner argues that all the questioned Notices of Levy, however, must be nullified for having been issued without validly
serving copies thereof to the petitioner. As a mandatory heir of the decedent, petitioner avers that he has an interest in the
subject estate, and notices of levy upon its properties should have been served upon him.

We do not agree. In the case of notices of levy issued to satisfy the delinquent estate tax, the delinquent taxpayer is the Estate
of the decedent, and not necessarily, and exclusively, the petitioner as heir of the deceased. In the same vein, in the matter of
income tax delinquency of the late president and his spouse, petitioner is not the taxpayer liable. Thus, it follows that service of
notices of levy in satisfaction of these tax delinquencies upon the petitioner is not required by law, as under Section 213 of the
NIRC, which pertinently states:

. . . Levy shall be effected by writing upon said certificate a description of the property upon which levy is made. At the same
time, written notice of the levy shall be mailed to or served upon the Register of Deeds of the province or city where the property
is located and upon the delinquent taxpayer, or if he be absent from the Philippines, to his agent or the manager of the business
in respect to which the liability arose, or if there be none, to the occupant of the property in question.

The foregoing notwithstanding, the record shows that notices of warrants of distraint and levy of sale were furnished the counsel
of petitioner on April 7, 1993, and June 10, 1993, and the petitioner himself on April 12, 1993 at his office at the Batasang
Pambansa. 21 We cannot therefore, countenance petitioner's insistence that he was denied due process. Where there was an
opportunity to raise objections to government action, and such opportunity was disregarded, for no justifiable reason, the party
claiming oppression then becomes the oppressor of the orderly functions of government. He who comes to court must come
with clean hands. Otherwise, he not only taints his name, but ridicules the very structure of established authority.

IN VIEW WHEREOF, the Court RESOLVED to DENY the present petition. The Decision of the Court of Appeals dated
November 29, 1994 is hereby AFFIRMED in all respects. SO ORDERED.

2. G.R. No. 134100 September 29, 2000

PURITA ALIPIO, petitioner, vs.COURT OF APPEALS and ROMEO G. JARING, represented by his Attorney-In-Fact
RAMON G. JARING, respondents. MENDOZA, J.:

The question for decision in this case is whether a creditor can sue the surviving spouse for the collection of a debt which is
owed by the conjugal partnership of gains, or whether such claim must be filed in proceedings for the settlement of the estate of
the decedent. The trial court and the Court of Appeals ruled in the affirmative. We reverse.

The facts are as follows: Respondent Romeo Jaring1 was the lessee of a 14.5 hectare fishpond in Barito, Mabuco, Hermosa,
Bataan. The lease was for a period of five years ending on September 12, 1990. On June 19, 1987, he subleased the fishpond,
for the remaining period of his lease, to the spouses Placido and Purita Alipio and the spouses Bienvenido and Remedios
Manuel. The stipulated amount of rent was ₱485,600.00, payable in two installments of ₱300,000.00 and ₱185,600.00, with the
second installment falling due on June 30, 1989. Each of the four sublessees signed the contract.

The first installment was duly paid, but of the second installment, the sublessees only satisfied a portion thereof, leaving an
unpaid balance of ₱50,600.00. Despite due demand, the sublessees failed to comply with their obligation, so that, on October
13, 1989, private respondent sued the Alipio and Manuel spouses for the collection of the said amount before the Regional Trial
Court, Branch 5, Dinalupihan, Bataan. In the alternative, he prayed for the rescission of the sublease contract should the
defendants fail to pay the balance.

Petitioner Purita Alipio moved to dismiss the case on the ground that her husband, Placido Alipio, had passed away on
December 1, 1988.2 She based her action on Rule 3, §21 of the 1964 Rules of Court which then provided that "when the action
is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court of First Instance, it
shall be dismissed to be prosecuted in the manner especially provided in these rules." This provision has been amended so that
now Rule 3, §20 of the 1997 Rules of Civil Procedure provides:

When the action is for the recovery of money arising from contract, express or implied, and the defendant dies before entry of
final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead
be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in
the manner especially provided in these Rules for prosecuting claims against the estate of a deceased person.

The trial court denied petitioner's motion on the ground that since petitioner was herself a party to the sublease contract, she
could be independently impleaded in the suit together with the Manuel spouses and that the death of her husband merely
resulted in his exclusion from the case.3 The Manuel spouses failed to file their answer. For this reason, they were declared in
default.

On February 26, 1991, the lower court rendered judgment after trial, ordering petitioner and the Manuel spouses to pay private
respondent the unpaid balance of ₱50,600.00 plus attorney's fees in the amount of ₱10,000.00 and the costs of the suit.

Petitioner appealed to the Court of Appeals on the ground that the trial court erred in denying her motion to dismiss. In its
decision4 rendered on July 10, 1997, the appellate court dismissed her appeal. It held:

The rule that an action for recovery of money, debt or interest thereon must be dismissed when the defendant dies before final
judgment in the regional trial court, does not apply where there are other defendants against whom the action should be
maintained. This is the teaching of Climaco v. Siy Uy, wherein the Supreme Court held:

Upon the facts alleged in the complaint, it is clear that Climaco had a cause of action against the persons named as defendants
therein. It was, however, a cause of action for the recovery of damages, that is, a sum of money, and the corresponding action
is, unfortunately, one that does not survive upon the death of the defendant, in accordance with the provisions of Section 21,
Rule 3 of the Rules of Court.

However, the deceased Siy Uy was not the only defendant, Manuel Co was also named defendant in the complaint. Obviously,
therefore, the order appealed from is erroneous insofar as it dismissed the case against Co. (Underlining added)

Moreover, it is noted that all the defendants, including the deceased, were signatories to the contract of sub-lease. The
remaining defendants cannot avoid the action by claiming that the death of one of the parties to the contract has totally
extinguished their obligation as held in Imperial Insurance, Inc. v. David:

We find no merit in this appeal. Under the law and well settled jurisprudence, when the obligation is a solidary one, the creditor
may bring his action in toto against any of the debtors obligated in solidum. Thus, if husband and wife bound themselves jointly
and severally, in case of his death, her liability is independent of and separate from her husband's; she may be sued for the
whole debt and it would be error to hold that the claim against her as well as the claim against her husband should be made in
the decedent's estate. (Agcaoili vs. Vda. de Agcaoili, 90 Phil. 97).5

Petitioner filed a motion for reconsideration, but it was denied on June 4, 1998.6 Hence this petition based on the following
assignment of errors:

A. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING CLIMACO v. SIY UY, 19 SCRA 858, IN
SPITE OF THE FACT THAT THE PETITIONER WAS NOT SEEKING THE DISMISSAL OF THE CASE AGAINST REMAINING
DEFENDANTS BUT ONLY WITH RESPECT TO THE CLAIM FOR PAYMENT AGAINST HER AND HER HUSBAND WHICH
SHOULD BE PROSECUTED AS A MONEY CLAIM.

B. THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN APPLYING IMPERIAL INSURANCE INC. v. DAVID,
133 SCRA 317, WHICH IS NOT APPLICABLE BECAUSE THE SPOUSES IN THIS CASE DID NOT BIND THEMSELVES
JOINTLY AND SEVERALLY IN FAVOR OF RESPONDENT JARING.7

The petition is meritorious. We hold that a creditor cannot sue the surviving spouse of a decedent in an ordinary proceeding for
the collection of a sum of money chargeable against the conjugal partnership and that the proper remedy is for him to file a
claim in the settlement of estate of the decedent.

First. Petitioner's husband died on December 1, 1988, more than ten months before private respondent filed the collection suit in
the trial court on October 13, 1989. This case thus falls outside of the ambit of Rule 3, §21 which deals with dismissals of
collection suits because of the death of the defendant during the pendency of the case and the subsequent procedure to be
undertaken by the plaintiff, i.e., the filing of claim in the proceeding for the settlement of the decedent's estate. As already noted,
Rule 3, §20 of the 1997 Rules of Civil Procedure now provides that the case will be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff therein will then be enforced in the manner especially provided in the
Rules for prosecuting claims against the estate of a deceased person. The issue to be resolved is whether private respondent
can, in the first place, file this case against petitioner.

Petitioner and her late husband, together with the Manuel spouses, signed the sublease contract binding themselves to pay the
amount of stipulated rent. Under the law, the Alipios' obligation (and also that of the Manuels) is one which is chargeable against
their conjugal partnership. Under Art. 161(1) of the Civil Code, the conjugal partnership is liable for ¾

All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by the wife,
also for the same purpose, in the cases where she may legally bind the partnership.8

When petitioner's husband died, their conjugal partnership was automatically dissolved9 and debts chargeable against it are to
be paid in the settlement of estate proceedings in accordance with Rule 73, §2 which states:

Where estate settled upon dissolution of marriage. ¾ When the marriage is dissolved by the death of the husband or wife, the
community property shall be inventoried, administered, and liquidated, and the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or
intestate proceedings of either.

As held in Calma v. Tañedo,10 after the death of either of the spouses, no complaint for the collection of indebtedness
chargeable against the conjugal partnership can be brought against the surviving spouse. Instead, the claim must be made in
the proceedings for the liquidation and settlement of the conjugal property. The reason for this is that upon the death of one
spouse, the powers of administration of the surviving spouse ceases and is passed to the administrator appointed by the court
having jurisdiction over the settlement of estate proceedings.11 Indeed, the surviving spouse is not even a de facto
administrator such that conveyances made by him of any property belonging to the partnership prior to the liquidation of the
mass of conjugal partnership property is void.12

The ruling in Calma v. Tañedo was reaffirmed in the recent case of Ventura v. Militante.13 In that case, the surviving wife was
sued in an amended complaint for a sum of money based on an obligation allegedly contracted by her and her late husband.
The defendant, who had earlier moved to dismiss the case, opposed the admission of the amended complaint on the ground
that the death of her husband terminated their conjugal partnership and that the plaintiff's claim, which was chargeable against
the partnership, should be made in the proceedings for the settlement of his estate. The trial court nevertheless admitted the
complaint and ruled, as the Court of Appeals did in this case, that since the defendant was also a party to the obligation, the
death of her husband did not preclude the plaintiff from filing an ordinary collection suit against her. On appeal, the Court
reversed, holding that ¾

as correctly argued by petitioner, the conjugal partnership terminates upon the death of either spouse. . . . Where a complaint is
brought against the surviving spouse for the recovery of an indebtedness chargeable against said conjugal [partnership], any
judgment obtained thereby is void. The proper action should be in the form of a claim to be filed in the testate or intestate
proceedings of the deceased spouse.

In many cases as in the instant one, even after the death of one of the spouses, there is no liquidation of the conjugal
partnership. This does not mean, however, that the conjugal partnership continues. And private respondent cannot be said to
have no remedy. Under Sec. 6, Rule 78 of the Revised Rules of Court, he may apply in court for letters of administration in his
capacity as a principal creditor of the deceased . . . if after thirty (30) days from his death, petitioner failed to apply for
administration or request that administration be granted to some other person.14

The cases relied upon by the Court of Appeals in support of its ruling, namely, Climaco v. Siy Uy15 and Imperial Insurance, Inc.
v. David,16 are based on different sets of facts. In Climaco, the defendants, Carlos Siy Uy and Manuel Co, were sued for
damages for malicious prosecution. Thus, apart from the fact the claim was not against any conjugal partnership, it was one
which does not survive the death of defendant Uy, which merely resulted in the dismissal of the case as to him but not as to the
remaining defendant Manuel Co.

With regard to the case of Imperial, the spouses therein jointly and severally executed an indemnity agreement which became
the basis of a collection suit filed against the wife after her husband had died. For this reason, the Court ruled that since the
spouses' liability was solidary, the surviving spouse could be independently sued in an ordinary action for the enforcement of the
entire obligation.

It must be noted that for marriages governed by the rules of conjugal partnership of gains, an obligation entered into by the
husband and wife is chargeable against their conjugal partnership and it is the partnership which is primarily bound for its
repayment.17 Thus, when the spouses are sued for the enforcement of an obligation entered into by them, they are being
impleaded in their capacity as representatives of the conjugal partnership and not as independent debtors such that the concept
of joint or solidary liability, as between them, does not apply. But even assuming the contrary to be true, the nature of the
obligation involved in this case, as will be discussed later, is not solidary but rather merely joint, making Imperial still inapplicable
to this case.

From the foregoing, it is clear that private respondent cannot maintain the present suit against petitioner.1âwphi1 Rather, his
remedy is to file a claim against the Alipios in the proceeding for the settlement of the estate of petitioner's husband or, if none
has been commenced, he can file a petition either for the issuance of letters of administration18 or for the allowance of will,19
depending on whether petitioner's husband died intestate or testate. Private respondent cannot short-circuit this procedure by
lumping his claim against the Alipios with those against the Manuels considering that, aside from petitioner's lack of authority to
represent their conjugal estate, the inventory of the Alipios' conjugal property is necessary before any claim chargeable against
it can be paid. Needless to say, such power exclusively pertains to the court having jurisdiction over the settlement of the
decedent's estate and not to any other court.

Second. The trial court ordered petitioner and the Manuel spouses to pay private respondent the unpaid balance of the agreed
rent in the amount of ₱50,600.00 without specifying whether the amount is to be paid by them jointly or solidarily. In connection
with this, Art. 1207 of the Civil Code provides:

The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not imply that each one
of the former has a right to demand, or that each one of the latter is bound to render, entire compliance with the prestations.
There is a solidary liability only when the obligation expressly so estates, or when the law or the nature of the obligation requires
solidarity.

Indeed, if from the law or the nature or the wording of the obligation the contrary does not appear, an obligation is presumed to
be only joint, i.e., the debt is divided into as many equal shares as there are debtors, each debt being considered distinct from
one another.

Private respondent does not cite any provision of law which provides that when there are two or more lessees, or in this case,
sublessees, the latter's obligation to pay the rent is solidary. To be sure, should the lessees or sublessees refuse to vacate the
leased property after the expiration of the lease period and despite due demands by the lessor, they can be held jointly and
severally liable to pay for the use of the property. The basis of their solidary liability is not the contract of lease or sublease but
the fact that they have become joint tortfeasors.21 In the case at bar, there is no allegation that the sublessees refused to
vacate the fishpond after the expiration of the term of the sublease. Indeed, the unpaid balance sought to be collected by private
respondent in his collection suit became due on June 30, 1989, long before the sublease expired on September 12, 1990.
Neither does petitioner contend that it is the nature of lease that when there are more than two lessees or sublessees their
liability is solidary. On the other hand, the pertinent portion of the contract involved in this case reads:22

2. That the total lease rental for the sub-leased fishpond for the entire period of three (3) years and two (2) months is FOUR
HUNDRED EIGHT-FIVE THOUSAND SIX HUNDRED (₱485,600.00) PESOS, including all the improvements, prawns,
milkfishes, crabs and related species thereon as well all fishing equipment, paraphernalia and accessories. The said amount
shall be paid to the Sub-Lessor by the Sub-Lessees in the following manner, to wit:

A. Three hundred thousand (₱300,000.00) Pesos upon signing this contract; and B. One Hundred Eight-Five Thousand Six-
Hundred (₱185,6000.00) Pesos to be paid on June 30, 1989.

Clearly, the liability of the sublessees is merely joint. Since the obligation of the Manuel and Alipio spouses is chargeable
against their respective conjugal partnerships, the unpaid balance of ₱50,600.00 should be divided into two so that each couple
is liable to pay the amount of ₱25,300.00.

WHEREFORE, the petition is GRANTED. Bienvenido Manuel and Remedios Manuel are ordered to pay the amount of
₱25,300.00, the attorney's fees in the amount of ₱10,000.00 and the costs of the suit. The complaint against petitioner is
dismissed without prejudice to the filing of a claim by private respondent in the proceedings for the settlement of estate of
Placido Alipio for the collection of the share of the Alipio spouses in the unpaid balance of the rent in the amount of ₱25,300.00.
SO ORDERED.

3. G.R. No. L-51278 May 9, 1988

HEIRS OF RAMON PIZARRO, SR., petitioners, vs.HON. FRANCISCO Z. CONSOLACION, CFI of Davao and LUIS TAN
alias CHEN YEH-AN, respondents. GANCAYCO, J.:

This is a petition for review on certiorari seeking the reversal of the Order of June 1, 1979, of the then Court of First Instance of
Davao * dismissing petitioners' claim against the estate of the late Dominga Garcia, and questioning the legality of the Order of
the same court dated July 17, 1979 which denied due course to the petitioners' notice of appeal to the Court of Appeals and
directed them to file instead a petition for review before this Tribunal.

Petitioners are the oppositors in Special Proceeding No. 2116 in the then Court of First Instance (CFI) of Davao City Branch II,
for settlement of the estate of the deceased Dominga Garcia, filed by private respondent herein, Luis Tan alias Chen Yeh-An.

The records disclose that on August 12,1977, Luis Tan filed a verified petition with the CFI of Davao for the issuance of letters of
administration in favor of a certain Alfonso Atilano. The petition alleged, among others that private respondent is the only
surviving son of the deceased Dominga Garcia who died intestate sometime in 1930 in Canton, China; that the deceased left a
parcel of land 1 located at C.M. Recto Avenue, Davao City; and that the said lot is in the possession of the heirs of Ramon
Pizarro, 2 petitioners herein.

On October 4, 1977, petitioners filed an opposition to the said petition claiming that they are the heirs of Ramon Pizarro who
died intestate on June 16, 1974; and that the deceased was the vendee of one-half (1/2) of the aforementioned lot by virtue of
an extrajudicial settlement of estate and deed of absolute sale executed by Vicente Tan in Hongkong on May 27, 1966.
Petitioners prayed that letters of administration of Dominga Garcia's estate be issued in favor of anyone of them.

The respondent court set the petition for hearing. Said order and the petition were duly published in the Mindanao Times. ** The
City of Davao 3 was likewise served with a copy of said petition. On December 6, 1977, after private respondent had begun
presentation of evidence in support of his petition, the parties herein entered into a compromise whereby petitioners agreed,
among others, to withdraw their opposition to the appointment of private respondent's recommendee and for the intestate
proceedings to proceed in due course. Said agreement was approved in the order of respondent court dated December 6,1977.

Accordingly, on March 27, 1978, after the judicial administrator had qualified and his inventory of the assets of the late Dominga
Garcia was approved, respondent court issued an order requiring the filing of creditors' claim against the said estate within the
period of six (6) months from the date of the first publication. 5 Copy of said order was received by petitioners through counsel
on March 28, 1979. 6

Meanwhile, on January 23,1979, private respondent and the City of Davao filed a joint motion asking respondent court to take
notice of their agreement which in substance provides for an agreement to file a joint motion in the CFI of Davao to proceed with
the determination of the heirs of the deceased Domingao Garcia which shall be determinative of their respective claims against
the estate. On February 19, 1979, petitioners filed their opposition to the said joint motion on the sole ground that it is without
procedural basis. Private respondent filed his reply thereto on February 21, 1979. On February 22, 1979, respondent court
issued an order taking note of the agreement between private respondent and the City of Davao.

On February 28, 1979, private respondent filed a motion to drop and exclude the petitioners on the ground that they do not even
claim to be the heirs of the deceased Dominga Garcia and that the extrajudicial deed of partition and deed of absolute sale
allegedly executed in Hongkong in favor of the petitioners' deceased father is spurious and simulated. On March 5, 1979,
petitioners filed their opposition to said motion. They likewise filed a claim against the estate of the deceased Garcia in the
amount of P350,000.00 representing services allegedly rendered by their deceased father in favor of Vicente Tan. On March 8,
1979, private respondent filed a reply to petitioners' opposition and a motion to strike out or dismiss the claim on the ground that
it is spurious and barred for having been filed beyond the six (6) month period set in the notice for the filing of creditors' claim.
On March 29, 1979, petitioners filed another claim against the estate for P200,000.00 allegedly advanced by their deceased
father for the payment of realty and income taxes of the said lot sometime in 1936, to which claim private respondent filed an
opposition on the ground that it is barred for having been filed beyond the six (6) month period and that it was merely intended
to delay the proceedings.
In the Order of June 1, 1979, respondent court dismissed both claims of the petitioners on the ground that they are barred for
having been filed out of time. 7 On June 26, 1979, petitioners filed a notice of appeal stating that they are appealing the order of
June 1, 1979 to the Court of Appeals in so far as it declared their claims barred. 8 On July 5, 1979, private respondent filed an
opposition to the projected appeal on the ground that the appeal involves a pure question of law and thus, the same should be
directed to the Supreme Court. 9 On July 17, 1979, respondent court issued an order dismissing petitioners' appeal and directed
petitioners to file instead a petition for review on certiorari before this Court.10

Hence, the present petition. ***

It is the position of the petitioners that the order of June 1, 1979 of the respondent court, which directed that the filing of claims
against the estate of the late Dominga Garcia be filed within six (6) months after the first publication of the notice thereof, is null
and void in that it is violative of Section 2, Rule 86 of the Revised Rules of Court. They contend that said provision mandates
that the filing of such claims should be for a period of six (6) months starting from the sixth month after the date of the first
publication of the notice down to the twelfth month. 11 They argue that to require filing of claims within the sixth month from
publication of notice will shorten the period in violation of the mandatory provisions of Section 2, Rule 86, which provides:

Sec. 2. Time within which claims shall be filed. — In the notice provided in the preceding section, the court shall state the time
for the filing of claims against the estate, which shall not be more than twelve (12) nor less than six (6) months after the date of
the first publication of the notice. However, at anytime before an order of distribution is entered, on application of a creditor who
has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are equitable,
allow such claim to be filed within a time not exceeding one (1) months.

We agree. The range of the period specified in the rule is intended to give the probate court the discretion to fix the period for
the filing of claims. The probate court is permitted by the rule to set the period provided it is not less than six (6) months nor
more than twelve (12) months from the date of the first publication of the notice thereof. Such period once fixed by the court is
mandatory.

The purpose of the law, in fixing a period within which claims against an estate must be presented, is to insure a speedy
settlement of the affairs of the deceased person and the early delivery of the property to the person entitled to the same. 12

In Sikat vs. Vda. Mafincode Villanueva, 13 this Court ruled that the speedy settlement of the estate of deceased persons for the
benefit of creditors and those entitled to the residue by way of inheritance or legacy after the debts and expenses of
administration have been paid is the ruling spirit of our probate law.

However, in this case the trial court set the period for the filing of the claims within six (6) months from the date of the first
publication of the notice. It was obviously short of the minimum limit of six (6) months provided for by the law. Petitioner correctly
observed that the trial court thereby shortened the period set by the law.

Since the notice issued and the period set by the trial court was not in accordance with the requirements of Section 2, Rule 86 of
the Rules of Court, what should then apply is the period as provided for by the rules which is not less than six months nor more
than twelve (12) months from the date of first publication of notice. The first publication of the notice in the Mindanao Times was
on March 30, 1978. Thus the two claims of petitioners against the estate which were filed on March 5, 1979 and March 29, 1979
respectively were filed on time.

The other issue raised in the petition is the authority of the trial court to determine whether the appeal involves a question of law
or both questions of law and facts. The petitioners cite Section 3, Rule 50 of the Rules of Court, which provides as follows:

Sec. 3. Where appealed case erroneously brought. — Where the appealed case has been erroneously brought to the Court of
Appeals, it shall not dismiss the appeal, but shall certify the case to the proper court, with a specific and clear statement of the
grounds therefor.

Petitioners contend that it is the Court of Appeals which has the authority to determine whether the issue in the appeal is purely
a question of law in which case it shall certify the same to the proper court, which in this case is this Tribunal.

In the present case, when the lower court found that the order sought to be appealed was its order of June 1, 1979, wherein it
held that the claims filed by petitioners against the estates were barred having been filed beyond the period fixed by the trial
court in the notice, which appeal involves an interpretation of Section 2, Rule 86 of the Rules of Court, instead of giving due
course to the notice of appeal to the Court of Appeals filed by petitioners, the petitioners were instructed to file a petition for
review with this Court as the issue is a pure question of law.

We find the action taken by the trial court to be well-taken. Certainly, it is within the competence and jurisdiction of the trial court
to determine whether the appeal interposed was based on pure questions of law or involves both questions of law and facts in
considering the appeal.14 The provision of Section 3, Rule 50 of the Rules of Court applies only when the appeal is already
brought to the Court of Appeals at which time it may, instead of dismissing the appeal, upon determination that it involves a pure
question of law, order that the case be certified to this Court.

It must be noted that in the notice of appeal it is not even required that the appellant indicate the court to which its appeal is
being interposed. The requirement is merely directory and failure to comply with it or error in the court indicated is not fatal to the
appeal. WHEREFORE, the petition is GRANTED and the orders of the respondent court of June 1, 1979 and July 17, 1979 are
reversed and set aside in so far as the claims filed by petitioners were found to be barred, the same having been timely filed,
without pronouncement as to costs. SO ORDERED.

4. G.R. No. L-18935 February 26, 1965

IN RE: INTESTATE ESTATE OF BEATRIZ C. DE RAMA, deceased. ANGELO O. DE RAMA, petitioner-appellant, vs.
CHERIE PALILEO, claimant-appellee. BARRERA, J.:

The facts of this case are not disputed: In connection with the proceeding for the settlement of the intestate estate of the
deceased Beatriz Cosio de Rama, and pursuant to the order of the Court of First Instance of Rizal before which the proceeding
is pending, a notice to all persons with money claims against the deceased to file their said claims within six months, was duly
published, the first notice appearing in the August 13, 1958 issue of the Manila Chronicle. On January 27, 1959, the
administrator filed an inventory of the estate, showing assets amounting to P139.596.77 and liabilities in the sum of P33,012.95.
The period provided in the published notice having expired without anybody filing any claim against the deceased, the
administrator, upon order of the court, submitted a final account of the estate and a project of partition, which were approved on
May 12, 1960. Under date of June 7, 1961, however, Cherie Palileo petitioned the court for permission to file a claim in the
proceeding, alleging that on the decision of the Court of Appeals in CA-G.R. No. 2256-R, promulgated on May 6, 1961, she
obtained a money judgment against the deceased Beatriz C de Rama; that although the lower court decided in her favor the
question of ownership and possession of a real property involved in the case, it was only the Court of Appeals that granted
money judgment, when the case was decided on appeal. The administrator opposed this petition on the ground that the claim
was filed beyond the period provided in the notice to creditors.

By order of August 8, 1961, the lower court sustained the claimant and allowed her to file her claim within one month from
receipt of said order, it appearing that no final decree of distribution has as yet been entered in the case. This appeal from the
aforesaid order, brought by the administrator, raises the issue of when money claims against a deceased person may be filed in
the proceeding for the settlement of the estate of such deceased person.

Section 2 of Rule 87 of the old Rules of Court (now Rule 86) provides:

Sec. 2. Time within which claims shall be filed. — In the notice provided in section 1, the court shall state the time for the filing of
claims against the estate, which shall not be more than twelve nor less than six months after the date of the first publication of
the notice. However, at any time before an order of distribution is entered, on application of a creditor who has failed to file his
claim within the time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to
be filed within a time not exceeding one month.1äwphï1.ñët

It is clear from the foregoing that the period prescribed in the notice to creditors is not exclusive; that money claims against the
estate may be allowed any time before an order of distribution is entered, at the discretion of the court, for cause and upon such
terms as are equitable. 1 This extension of the period shall not exceed one month, from the issuance of the order authorizing
such extension.2

It is not controverted in the instant case that no order of distribution of the estate has as yet been made. Appellant, however,
charges that the lower court committed an abuse of discretion in issuing the disputed order without sufficient ground or cause
therefor. The petition of claimant-appellee, for permission to file a claim in the proceeding, was based on the fact that the award
of damages in her favor, against the deceased Beatriz C. de Rama, was contained in the decision of the Court of Appeals in
CA-G.R. No. 22556-R which was promulgated on May 6, 1961 or after the 6-month period provided in the notice to creditors had
already elapsed. It is her contention that she could not have filed a money claim against the estate before the promulgation of
said decision because although the lower court in that case upheld her right to the ownership and possession of the building
subject thereof, no damages were adjudged in her favor. Considering this argument, the lower court found it sufficient to justify
the relaxation of the rule and extension of the period within which to file her claim. In the circumstances, the action taken by the
lower court cannot be considered an abuse of discretion amounting to lack or excess of jurisdiction to justify its reversal by this
court.

WHEREFORE, finding no reversible error in the order appealed from, the same is hereby affirmed, with costs against the
appellant. So ordered.

5. G. R. No. L-57205 December 14, 1981

THE INTESTATE ESTATE OF DOMINADOR DANAN, represented by its Administratrix, ADORACION F. VDA. DE
DANAN, and the HEIRS of the late DOMINADOR DANAN, et al., petitioners, vs.
HON. FELIPE V. BUENCAMINO, in his capacity as Presiding Judge of the Court of First Instance of Pampanga, Branch
II, Guagua, Pampanga, BENITO MANALANSAN, et al., respondents. ABAD SANTOS, J.:

The proceedings in the lower court which are narrated below were culled mostly from the expediente of the case because the
annexes to the petition are not well organized.

Dominador Danan died on November 7, 1970, in Lubao, Pampanga. He did not leave a will. Service Engineers, Inc. which
claimed to be a creditor of the deceased filed a petition dated November 12, 1971, in the Court of First Instance of Pampanga
praying that letters of administrative of the intestate estate of Dominador Danan be issued in favor of Engineer Carlos B.
Navarro. The petition was docketed as Special Proceeding No. G-22. It was, however, Adoracion F. Vda. de Danan, widow of
the deceased, who was appointed administratrix of the estate.

On November 13, 1973, the court issued an order directing all persons having money claims against the estate to file them
within six (6) months after the date of the first publication of the order which was December 10, 1973. On June 12, 1974, Benito
Manalansan and Ines Vitug Manalansan filed a contingent claim in the amount of P98,411.17 plus interest in anticipation of a
deficiency after the spouses shall have foreclosed a real estate mortgage which the deceased and his wife had executed in their
favor. On July 11, 1974, the administratrix filed an answer to the contingent claim wherein she admitted the existence of the
debt which was secured by a mortgage; however, she prayed that the contingent claim be denied because it had no basis for
the mortgage had not yet been foreclosed and ergo there was no deficiency.
Notice was given by the Clerk of Court on July 26, 1974, that the hearing on the contingent claim would be held on September
2, 1974, and in fact there was such a hearing on that day wherein only the claimants in the person of Ines Vitug Manalansan
appeared. Atty. Juanito I. Vitug, counsel for the administratrix, did not appear because according to the interpreter he was sick
or attending to his fishpond which had overflowed according to a son of the administratrix. At the request of Atty. Lorenzo P.
Navarro who represented the Manalansans, the court allowed the claim to be heard without prejudice to the right of the
administratrix to present rebuttal evidence. In that hearing, Mrs. Manalansan testified that she and her husband had a final
judgment against the Danans for P62,574.80 with 12% interest compounded annually, 10% of the amount due and unpaid for
attorney's fees and moral damages in the amount of P5,000; that on June 6, 1974, the debt had grown to P264,121.17; and that
if the market value of the properties mortgaged and the P5,000 award for moral damages be deducted from P264,121.17, the
net amount due would be P98,411.17. The following exhibits were marked during the hearing: The Record on Appeal in CA
G.R. No. 49109-R, Exhibit A — Contingent Claim; the decision in said case, Exhibit B — Contingent Claim; Notice of Judgment
attached thereto, Exhibit B-1- Contingent Claim; Motion for Reconsideration, Exhibit C — Contingent Claim; and Denial of
Motion for Reconsideration, Exhibit D — Contingent Claim. Atty. Navarro, however, asked that the presentation of the exhibits
be made during the next hearing wherein the administratrix shall be given the opportunity to present rebuttal evidence.
Accordingly, the court set the next hearing to October 3, 1974, but was re-set to November 18, 1974, at the request of the
administratrix who said that her lawyer had an urgent personal engagement in Baguio City on the first setting. On November 18,
1974, the following order was given in open court: "Counsel for the administratrix is given ten (10) days upon receipt hereof
within which to interpose objection, if any, to the exhibits offered by Atty. Navarro." From the tenor of the order which gave Atty.
Vitug ten days "upon receipt hereof" to interpose objection, he did not appear on November 18, 1974. The record does not show
that an objection was ever interposed.

On February 28, 1979, the court held in abeyance the claim of the Manalansans pending the resolution by this Court of a motion
for reconsideration in Manalansan vs. Castaneda, G.R. No. L-43607 which was decided on June 27, 1978, 83 SCRA 777, on an
ancillary question.

On November 12, 1979, the court set the hearing of the contingent claim of the Manalansans on January 28, 1980, but the
record does not show that a hearing was actually held on that date.

On October 28, 1980, the Manalansans filed a Motion to Resolve Claim Against the Estate, dated October 24, 1980. Attached to
the motion is a Statement of Account stating that the amount of the deficiency judgment which the administratrix should be
ordered to pay as of November 2, 1980, is the sum of P 294,298.26. The motion contained a notice that it would be submitted
for the consideration and approval of the court on November 5, 1980, but the record does not show that it was so considered on
that day. In an order dated November 18, 1980, the court gave the administratrix ten (10) days from receipt to file her comment
on the aforesaid motion. The same order stipulated that, "After the submission of the same [comment], the instant motion is
deemed submitted for resolution." The record does not show that the administratrix submitted a comment as required. On
January 3, 1981, the court issued the following order:

Acting upon the Motion to Resolve claim against the estate filed by the claimnants Benito Manalansan and Ines V. Manalansan
dated October 24, 1980, based on the grounds therein stated which the Court finds to be well-taken, the said claim of P
294,298.26 as of November 2, 1980 is hereby approved and ordered to be paid, pursuant to Section 5 and 1 1, Rule 86 of the
Rules of Court and for failure of the administratrix to comply with the order of this Court dated November 18, 1980.

It was only on January 8, 1981, that the administratrix filed an Opposition to Contingent Claim against Estate. There the
administratrix questioned the jurisdiction of the court to entertain the claim "for being exorbitant and shocking to the senses and
that the same was filed out of time or beyond the reglementary period provided by law."

In the meantime, Ines Vitug Manalansan died in a vehicular accident on December 22, 1980, so she was substituted by her co-
claimant Benito Manalansan and their children, namely: Elsa, Gil, Anita, Jesus, Luz and Martin.

On January 27, 1981, the administratrix filed a Motion for Reconsideration of the Order of January 3, 1981 (which ordered
payment of the claim of P 294,298.26) on the ground that the claim was "exorbitant, shocking to the senses and that the same
was filed out of time or beyond the reglementary period provided by law."

After an exhange of comments and reply to the Motion for Reconsideration, the Court issued an order, dated May 30, 1981, as
follows: "For lack of merits, the Motion for Reconsideration is hereby denied."

The administratrix now wants Us to review the actuations of the lower court by raising the following issues:

I. Can a trial Judge legally and validly consider, take cognizance of and render judgment on a claim filed against the Estate in an
Intestacy Proceeding when said claim was filed outside the period prescribed by Section 2, Rule 86 of the Revised Rules of
Court?

II. Can a trial Judge adjudicate and render judgment on a contingent claim against the Estate in an Intestacy Proceeding on the
basis merely of the direct testimony of a claimant, such direct testimony not subjected to the rigid test of cross examination by
the adverse party, the documentary evidence or exhibits presented by the claim in the course of such direct testimony not
having been formally offered nor formally admitted by the Court and such claimant not having formally rested his/her case; and
that the adverse party against whom the claim is being asserted not having had the opportunity to adduce controverting or
rebutting evidence?

III. Can a claim against the Estate in an Intestacy Proceeding that is not supported by the evidence on record be awarded?

On the first issue, there is no question that the contingent claim was filed two (2) days beyond the six-month period stipulated in
the order which directed all persons having money claims against the estate to file them. However, it is to be noted that the
claim was filed on June 12, 1974, whereas the timeliness of its filing was raised only on January 8, 1981, in the Opposition to
the Contingent Claim against Estate. In the interregnum the administratrix had acquiesced to the entertainment of the claim by
filing an answer thereto on July 11, 1974, and again by asking for postponement of the October 3, 1974, hearing wherein she
was to present her rebuttal evidence. She is not only estopped by her conduct but laches also bar her claim. (See Tijam vs.
Sibonghanoy, L-21450, April 15, 1968, 23 SCRA 29; Rodriguez vs. Court of Appeals, L-29264, August 29, 1969, 29 SCRA 419.)
Moreover, Rule 86, Sec. 2 of the Rules of Court gives the probate court discretion to allow claims presented beyond the period
previously fixed provided that they are filed within one month from the expiration of such period but in no case beyond the date
of entry of the order of distribution. The contingent claim of the Manalansans was filed within both periods.

The second and third issues are impressed with merit. True it is that the probate court gave opportunities to the administratrix to
contest the contingent claim. Thus she filed an answer thereto on July 11, 1974; a hearing was held on September 2, 1974, but
she did not appear; the hearing on October 3, 1974 was re-set to November 18, 1974 at her request but she failed to appear on
the latter date; she did not interpose objection to the exhibits offered by the Manalansans as stipulated in the order of November
18, 1974; and lastly the administratrix was given ten days within which to file her comment to the Motion to Resolve Claim
Against the Estate. These notwithstanding, We believe that the opportunities given to the administratrix were not ample enough
and do not meet the minimum requirements for due process. On June 12, 1974, when the claim was filed it amounted to only
P98,411.17. However, on January 3, 1981, when the probate court approved the claim it had ballooned to the enormous
amount of P294.298.26. Noteworthy by is the fact that the order approving the claim does not explain how it reached that
amount. The probate court should not have been satisfied with merely asking for objections or comments from the administratrix
but it should have conducted a full dress hearing on the claim by using its coercive powers if necessary.

WHEREFORE, the orders of the court a quo dated January 3, 1981 and May 30, 1981, are hereby set aside and it is directed to
conduct a thorough and full dress hearing on the claim of the private respondents. No special pronouncement as to costs.

6. G.R. No. 147561 June 22, 2006

STRONGHOLD INSURANCE COMPANY, INC., Petitioner, vs.REPUBLIC-ASAHI GLASS CORPORATION, Respondent.

PANGANIBAN, CJ:

Asurety company’s liability under the performance bond it issues is solidary. The death of the principal obligor does not, as a
rule, extinguish the obligation and the solidary nature of that liability.

Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to reverse the March 13, 2001 Decision2 of the
Court of Appeals (CA) in CA-GR CV No. 41630. The assailed Decision disposed as follows:

"WHEREFORE, the Order dated January 28, 1993 issued by the lower court is REVERSED and SET ASIDE. Let the records of
the instant case be REMANDED to the lower court for the reception of evidence of all parties."3

The facts of the case are narrated by the CA in this wise:

"On May 24, 1989, [respondent] Republic-Asahi Glass Corporation (Republic-Asahi) entered into a contract with x x x Jose D.
Santos, Jr., the proprietor of JDS Construction (JDS), for the construction of roadways and a drainage system in Republic-
Asahi’s compound in Barrio Pinagbuhatan, Pasig City, where [respondent] was to pay x x x JDS five million three hundred
thousand pesos (P5,300,000.00) inclusive of value added tax for said construction, which was supposed to be completed within
a period of two hundred forty (240) days beginning May 8, 1989. In order ‘to guarantee the faithful and satisfactory performance
of its undertakings’ x x x JDS, shall post a performance bond of seven hundred ninety five thousand pesos (P795,000.00). x x x
JDS executed, jointly and severally with [petitioner] Stronghold Insurance Co., Inc. (SICI) Performance Bond No. SICI-
25849/g(13)9769.

"On May 23, 1989, [respondent] paid to x x x JDS seven hundred ninety five thousand pesos (P795,000.00) by way of
downpayment.

"Two progress billings dated August 14, 1989 and September 15, 1989, for the total amount of two hundred seventy four
thousand six hundred twenty one pesos and one centavo (P274,621.01) were submitted by x x x JDS to [respondent], which the
latter paid. According to [respondent], these two progress billings accounted for only 7.301% of the work supposed to be
undertaken by x x x JDS under the terms of the contract.

"Several times prior to November of 1989, [respondent’s] engineers called the attention of x x x JDS to the alleged alarmingly
slow pace of the construction, which resulted in the fear that the construction will not be finished within the stipulated 240-day
period. However, said reminders went unheeded by x x x JDS.

"On November 24, 1989, dissatisfied with the progress of the work undertaken by x x x JDS, [respondent] Republic-Asahi
extrajudicially rescinded the contract pursuant to Article XIII of said contract, and wrote a letter to x x x JDS informing the latter
of such rescission. Such rescission, according to Article XV of the contract shall not be construed as a waiver of [respondent’s]
right to recover damages from x x x JDS and the latter’s sureties.

"[Respondent] alleged that, as a result of x x x JDS’s failure to comply with the provisions of the contract, which resulted in the
said contract’s rescission, it had to hire another contractor to finish the project, for which it incurred an additional expense of
three million two hundred fifty six thousand, eight hundred seventy four pesos (P3,256,874.00).

"On January 6, 1990, [respondent] sent a letter to [petitioner] SICI filing its claim under the bond for not less than P795,000.00.
On March 22, 1991, [respondent] again sent another letter reiterating its demand for payment under the aforementioned bond.
Both letters allegedly went unheeded.
"[Respondent] then filed [a] complaint against x x x JDS and SICI. It sought from x x x JDS payment of P3,256,874.00
representing the additional expenses incurred by [respondent] for the completion of the project using another contractor, and
from x x x JDS and SICI, jointly and severally, payment of P750,000.00 as damages in accordance with the performance bond;
exemplary damages in the amount of P100,000.00 and attorney’s fees in the amount of at least P100,000.00.

"According to the Sheriff’s Return dated June 14, 1991, submitted to the lower court by Deputy Sheriff Rene R. Salvador,
summons were duly served on defendant-appellee SICI. However, x x x Jose D. Santos, Jr. died the previous year (1990), and
x x x JDS Construction was no longer at its address at 2nd Floor, Room 208-A, San Buena Bldg. Cor. Pioneer St., Pasig, Metro
Manila, and its whereabouts were unknown.

"On July 10, 1991, [petitioner] SICI filed its answer, alleging that the [respondent’s] money claims against [petitioner and JDS]
have been extinguished by the death of Jose D. Santos, Jr. Even if this were not the case, [petitioner] SICI had been released
from its liability under the performance bond because there was no liquidation, with the active participation and/or involvement,
pursuant to procedural due process, of herein surety and contractor Jose D. Santos, Jr., hence, there was no ascertainment of
the corresponding liabilities of Santos and SICI under the performance bond. At this point in time, said liquidation was
impossible because of the death of Santos, who as such can no longer participate in any liquidation. The unilateral liquidation
on the party (sic) of [respondent] of the work accomplishments did not bind SICI for being violative of procedural due process.
The claim of [respondent] for the forfeiture of the performance bond in the amount of P795,000.00 had no factual and legal
basis, as payment of said bond was conditioned on the payment of damages which [respondent] may sustain in the event x x x
JDS failed to complete the contracted works. [Respondent] can no longer prove its claim for damages in view of the death of
Santos. SICI was not informed by [respondent] of the death of Santos. SICI was not informed by [respondent] of the unilateral
rescission of its contract with JDS, thus SICI was deprived of its right to protect its interests as surety under the performance
bond, and therefore it was released from all liability. SICI was likewise denied due process when it was not notified of plaintiff-
appellant’s process of determining and fixing the amount to be spent in the completion of the unfinished project. The procedure
contained in Article XV of the contract is against public policy in that it denies SICI the right to procedural due process. Finally,
SICI alleged that [respondent] deviated from the terms and conditions of the contract without the written consent of SICI, thus
the latter was released from all liability. SICI also prayed for the award of P59,750.00 as attorney’s fees, and P5,000.00 as
litigation expenses.

"On August 16, 1991, the lower court issued an order dismissing the complaint of [respondent] against x x x JDS and SICI, on
the ground that the claim against JDS did not survive the death of its sole proprietor, Jose D. Santos, Jr. The dispositive portion
of the [O]rder reads as follows:

‘ACCORDINGLY, the complaint against the defendants Jose D. Santos, Jr., doing business under trade and style, ‘JDS
Construction’ and Stronghold Insurance Company, Inc. is ordered DISMISSED.‘SO ORDERED.’

"On September 4, 1991, [respondent] filed a Motion for Reconsideration seeking reconsideration of the lower court’s August 16,
1991 order dismissing its complaint. [Petitioner] SICI field its ‘Comment and/or Opposition to the Motion for Reconsideration.’ On
October 15, 1991, the lower court issued an Order, the dispositive portion of which reads as follows:

‘WHEREFORE, premises considered, the Motion for Reconsideration is hereby given due course. The Order dated 16 August
1991 for the dismissal of the case against Stronghold Insurance Company, Inc., is reconsidered and hereby reinstated (sic).
However, the case against defendant Jose D. Santos, Jr. (deceased) remains undisturbed.

‘Motion for Preliminary hearing and Manifestation with Motion filed by [Stronghold] Insurance Company Inc., are set for hearing
on November 7, 1991 at 2:00 o’clock in the afternoon.‘SO ORDERED.’

"On June 4, 1992, [petitioner] SICI filed its ‘Memorandum for Bondsman/Defendant SICI (Re: Effect of Death of defendant Jose
D. Santos, Jr.)’ reiterating its prayer for the dismissal of [respondent’s] complaint.

"On January 28, 1993, the lower court issued the assailed Order reconsidering its Order dated October 15, 1991, and ordered
the case, insofar as SICI is concerned, dismissed. [Respondent] filed its motion for reconsideration which was opposed by
[petitioner] SICI. On April 16, 1993, the lower court denied [respondent’s] motion for reconsideration. x x x."4

Ruling of the Court of Appeals

The CA ruled that SICI’s obligation under the surety agreement was not extinguished by the death of Jose D. Santos, Jr.
Consequently, Republic-Asahi could still go after SICI for the bond.

The appellate court also found that the lower court had erred in pronouncing that the performance of the Contract in question
had become impossible by respondent’s act of rescission. The Contract was rescinded because of the dissatisfaction of
respondent with the slow pace of work and pursuant to Article XIII of its Contract with JDS.

The CA ruled that "[p]erformance of the [C]ontract was impossible, not because of [respondent’s] fault, but because of the fault
of JDS Construction and Jose D. Santos, Jr. for failure on their part to make satisfactory progress on the project, which
amounted to non-performance of the same. x x x [P]ursuant to the [S]urety [C]ontract, SICI is liable for the non-performance of
said [C]ontract on the part of JDS Construction." Hence, this Petition.

Issue
Petitioner states the issue for the Court’s consideration in the following manner:
"Death is a defense of Santos’ heirs which Stronghold could also adopt as its defense against obligee’s claim."7
More precisely, the issue is whether petitioner’s liability under the performance bond was automatically extinguished by the
death of Santos, the principal.
The Court’s Ruling
The Petition has no merit.

Sole Issue:

Effect of Death on the Surety’s Liability

Petitioner contends that the death of Santos, the bond principal, extinguished his liability under the surety bond. Consequently, it
says, it is automatically released from any liability under the bond.

As a general rule, the death of either the creditor or the debtor does not extinguish the obligation.8 Obligations are transmissible
to the heirs, except when the transmission is prevented by the law, the stipulations of the parties, or the nature of the
obligation.9 Only obligations that are personal10 or are identified with the persons themselves are extinguished by death.11

Section 5 of Rule 8612 of the Rules of Court expressly allows the prosecution of money claims arising from a contract against
the estate of a deceased debtor. Evidently, those claims are not actually extinguished.13 What is extinguished is only the
obligee’s action or suit filed before the court, which is not then acting as a probate court.14

In the present case, whatever monetary liabilities or obligations Santos had under his contracts with respondent were not
intransmissible by their nature, by stipulation, or by provision of law. Hence, his death did not result in the extinguishment of
those obligations or liabilities, which merely passed on to his estate.15 Death is not a defense that he or his estate can set up to
wipe out the obligations under the performance bond. Consequently, petitioner as surety cannot use his death to escape its
monetary obligation under its performance bond.

The liability of petitioner is contractual in nature, because it executed a performance bond worded as follows:

"KNOW ALL MEN BY THESE PRESENTS:

"That we, JDS CONSTRUCTION of 208-A San Buena Building, contractor, of Shaw Blvd., Pasig, MM Philippines, as principal
and the STRONGHOLD INSURANCE COMPANY, INC. a corporation duly organized and existing under and by virtue of the
laws of the Philippines with head office at Makati, as Surety, are held and firmly bound unto the REPUBLIC ASAHI GLASS
CORPORATION and to any individual, firm, partnership, corporation or association supplying the principal with labor or
materials in the penal sum of SEVEN HUNDRED NINETY FIVE THOUSAND (P795,000.00), Philippine Currency, for the
payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and
assigns, jointly and severally, firmly by these presents.

"The CONDITIONS OF THIS OBLIGATION are as follows;

"WHEREAS the above bounden principal on the ___ day of __________, 19__ entered into a contract with the REPUBLIC
ASAHI GLASS CORPORATION represented by _________________, to fully and faithfully. Comply with the site preparation
works road and drainage system of Philippine Float Plant at Pinagbuhatan, Pasig, Metro Manila.

"WHEREAS, the liability of the Surety Company under this bond shall in no case exceed the sum of PESOS SEVEN HUNDRED
NINETY FIVE THOUSAND (P795,000.00) Philippine Currency, inclusive of interest, attorney’s fee, and other damages, and
shall not be liable for any advances of the obligee to the principal.

"WHEREAS, said contract requires the said principal to give a good and sufficient bond in the above-stated sum to secure the
full and faithfull performance on its part of said contract, and the satisfaction of obligations for materials used and labor
employed upon the work;

"NOW THEREFORE, if the principal shall perform well and truly and fulfill all the undertakings, covenants, terms, conditions,
and agreements of said contract during the original term of said contract and any extension thereof that may be granted by the
obligee, with notice to the surety and during the life of any guaranty required under the contract, and shall also perform well and
truly and fulfill all the undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of
said contract that may hereinafter be made, without notice to the surety except when such modifications increase the contract
price; and such principal contractor or his or its sub-contractors shall promptly make payment to any individual, firm, partnership,
corporation or association supplying the principal of its sub-contractors with labor and materials in the prosecution of the work
provided for in the said contract, then, this obligation shall be null and void; otherwise it shall remain in full force and effect. Any
extension of the period of time which may be granted by the obligee to the contractor shall be considered as given, and any
modifications of said contract shall be considered as authorized, with the express consent of the Surety.

"The right of any individual, firm, partnership, corporation or association supplying the contractor with labor or materials for the
prosecution of the work hereinbefore stated, to institute action on the penal bond, pursuant to the provision of Act No. 3688, is
hereby acknowledge and confirmed."16

As a surety, petitioner is solidarily liable with Santos in accordance with the Civil Code, which provides as follows:

"Art. 2047. By guaranty a person, called the guarantor, binds himself to the creditor to fulfill the obligation of the principal debtor
in case the latter should fail to do so.

"If a person binds himself solidarily with the principal debtor, the provisions of Section 4,17 Chapter 3, Title I of this Book shall
be observed. In such case the contract is called a suretyship."
"Art. 1216. The creditor may proceed against any one of the solidary debtors or some or all of them simultaneously. The
demand made against one of them shall not be an obstacle to those which may subsequently be directed against the others, so
long as the debt has not been fully collected."

Elucidating on these provisions, the Court in Garcia v. Court of Appeals18 stated thus:

"x x x. The surety’s obligation is not an original and direct one for the performance of his own act, but merely accessory or
collateral to the obligation contracted by the principal. Nevertheless, although the contract of a surety is in essence secondary
only to a valid principal obligation, his liability to the creditor or promisee of the principal is said to be direct, primary and
absolute; in other words, he is directly and equally bound with the principal. x x x."19

Under the law and jurisprudence, respondent may sue, separately or together, the principal debtor and the petitioner herein, in
view of the solidary nature of their liability. The death of the principal debtor will not work to convert, decrease or nullify the
substantive right of the solidary creditor. Evidently, despite the death of the principal debtor, respondent may still sue petitioner
alone, in accordance with the solidary nature of the latter’s liability under the performance bond.

WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals AFFIRMED. Costs against petitioner.

7. G.R. No. L-33006 December 8, 1982

NICANOR NACAR, petitioner, vs.CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Agusan del Sur, PROVINCIAL
SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and ANTONIO DOLORICON, respondents. GUTIERREZ, JR., J.:

Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with preliminary injunction to annul an order of the
respondent judge of the municipal court of Esperanza, Agusan del Sur directing the attachment of seven (7) carabaos, to effect
the return of four (4) carabaos seized under the questioned order, and to stop the respondent judge from further proceeding in
Civil Case No. 65.

Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it "Claim Against the Estate of the Late
Isabelo Nacar With Preliminary Attachment:" On the basis of this complaint, including an allegation "that defendant are (sic)
about to remove and dispose the above-named property (seven carabaos) with intent to defraud plaintiff herein", and
considering that Mr. Japitana had given security according to the Rules of Court, Judge Nistal issued the order commanding the
provincial sheriff to attach the seven (7) heads of cattle in the possession of petitioner Nicanor Nacar. Actually only four (4)
carabaos were attached because three (3) carabaos had earlier been slaughtered during the rites preceding the burial of the
late Isabelo Nacar.

Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment, and to order the return of the carabaos.
Private respondent Japitana filed an opposition to this motion while intervenor Antonio Doloricon filed a complaint in intervention
asserting that he was the owner of the attached carabaos and that the certificates of ownership of large cattle were in his name.

The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to the Supreme Court.

In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the amount of P1,000.00, directed the issuance
of a preliminary mandatory injunction. The respondents were enjoined from further enforcing the writ of attachment and to return
the seized carabaos. The judge was restrained from further proceeding with Civil Case No. 65.

We find the petition meritorious.

The pertinent portions of the complaint filed by Mr. Japitana with the municipal court read as follows:

ILDEFONSO JAPITANA Civil Case No. 65 Plaintiff,

FOR:
— Versus —
CLAIM AGAINST THE ESTATE NICANOR NACAR THE LATE ISABELO NACAR WITH Defendant. PRELIMINARY
ATTACHMENT x ---------------------------------x
COMPLAINT
COMES NOW the undersigned plaintiff and before this Honorable Court, respectfully avers:

That at various dates since the year 1968, the defendant have (sic) incurred indebtedness to the plaintiff in the total sum of
TWO THOUSAND SEVEN HUNDRED NINETY ONE (P2,791.00) PESOS, which said amount had long been overdue for
payment, and which the defendant up to this date have (sic) not been able to pay, despite repeated demands from the plaintiff;

That the defendant Isabelo Nacar died last April, 1970 leaving among other things personal property consisting seven (7) heads
of carabaos now in the possession of the defendant Nicanor Nacar;

That plaintiff herein file a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.99;
That defendant are (sic) about to remove and dispose the above mentioned property with intent to defraud plaintiff herein;

That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an amount to be fixed by the Court, not
exceeding the sum of P 2,791.00 which is the plaintiff's claim herein;

WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of preliminary attachment be issued against
the properties of the defendant to serve as security for the payment or satisfaction of any judgment that may be recovered
herein; and that after due hearing on the principal against the defendant for the sum of P 2,791,00 with legal interest from
September 15, 1970 plus costs of this suit. (Annex "A", p. 7 rollo).

In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of action. Mr. Nacar
averred that the indebtedness mentioned in the complaint was alleged to have been incurred by the late Isabelo Nacar and not
by Nicanor Nacar. There was, therefore, no cause of action against him. The petitioner also stated that a municipal court has no
jurisdiction to entertain an action involving a claim filed against the estate of a deceased person.

The same grounds have been raised in this petition. Mr. Nacar contends:

9. That the respondent judge acted without jurisdiction.The municipal courts or inferior courts have NO jurisdiction to settle the
estate of deceased persons. The proper remedy is for the creditor to file the proper proceedings in the court of first instance and
file the corresponding claim. But assuming without admitting that the respondent judge had jurisdiction, it is very patent that he
committed a very grave abuse of discretion and totally disregarded the provisions of the Rules of Court and decisions of this
honorable Court when he issued an ex-parte writ of preliminary attachment, when there is no showing that the plaintiff therein
has a sufficient cause of action, that there is no other security for the claim sought to be enforced by the plaintiff; or that the
amount claimed in the action is as much as the sum for which the order is prayed for above all legal counterclaims; There was
no bond to answer for whatever damages that herein petitioner may suffer; (Rollo, pp. 3- 4).

The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by stating that although the
title of the complaint styled it a claim against the estate of the late Isabelo Nacar, the allegations showed that the nature of the
action was really for the recovery of an indebtedness in the amount of P2,791.99.

The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed by Mr. Japitana.

It is patent from the portions of the complaint earlier cited that the allegations are not only vague and ambiguous but downright
misleading. The second paragraph of the body of the complaint states that the defendant (herein petitioner Nicanor Nacar) at
various dates since the year 1968 incurred debts to the plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs,
one clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who died several months before the filing of
the complaint. The complaint which the respondent judge reads as one for the collection of a sum of money and all the
paragraphs of which are incidentally unnumbered, expressly states as a material averment:

That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of
P2,791.00;

Under the circumstances of this case, respondent Japitana has no cause of action against petitioner Nacar. Mathay v.
Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of a valid cause of action:

A cause of action is an act or omission of one party in violation of the legal right of the other. Its essential elements are, namely:
(1) the existence of a legal right in the plaintiff, (2) a correlative legal duty in the defendant, and (3) an act or omission of the
defendant in violation of plaintiff's right with consequential injury or damage to the plaintiff for which he may maintain an action
for the recovery of damages or other appropriate relief. ( Ma-ao Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667;
Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 251, 255). On the other hand, Section
3 of Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts constituting the plaintiff's cause of
action. Hence, where the complaint states ultimate facts that constitute the three essential elements of a cause of action, the
complaint states a cause of action; (Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218) otherwise, the
complaint must succumb to a motion to dismiss on that ground.

Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner Nicanor Nacar has
no correlative legal duty to pay the debt for the simple reason that there is nothing in the complaint to show that he incurred the
debt or had anything to do with the creation of the liability. As far as the debt is concerned, there is no allegation or showing that
the petitioner had acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as would create a
cause of action against the former.

It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to recover seven (7) heads
of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover from the possession of the petitioner to
answer for the outstanding debt of the late Isabelo Nacar. This matter, however, is only ancillary to the main action. The
ancillary matter does not cure a fatal defect in the complaint for the main action is for the recovery of an outstanding debt of the
late lsabelo Nacar due respondent Japitana, a cause of action about which petitioner Nacar has nothing to do.

In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent Japitana to amend his
complaint to conform with his evidence and from the court's admission that it was inclined to dismiss the case were it not for the
complaint in intervention of respondent Doloricon. Respondent Doloricon filed his complaint for intervention on the ground that
the four carabaos, subject of the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order denying
the petitioner's motion to dismiss, to dissolve writ of preliminary attachment and in order the return of the carabaos said:

... Antonio Doloricon manifested before this Court that he is filing a third-party complaint alleging that he is the true and lawful
owner of the carabaos in questions.

IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for the meantime dismiss this case.
Antonio Doloricon is hereby given 10 days from receipt hereof within which to file his third-party complaint. The plaintiff who in
his opposition to defendant's motion to dismiss pray (sic) for the custody of the carabaos. This Court further requires plaintiff to
put up the additional bond of P I,000.00 after which the latter may be entitled of (sic) the custody of the carabaos subject of
litigation pending final termination of this case. (Rollo, pp. 18-19)
The respondent court's reason for not dismissing the case is contrary to applicable precedents on the matter. We ruled in
Mathay v. Consolidated Bank and Trust Company, supra:

Section I, Rule 16 of the Rules of Court, providing in part that:

Within the time for pleading a motion to dismiss may be made on any of the following grounds; ...

(g) That the complaint states no cause of action. ...

explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the complaint itself and no
other should be considered when the ground for motion to dismiss is that the complaint states no cause of action. Pursuant
thereto this Court has ruled that:

As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined exclusively on the basis
of the facts alleged therein' (Uy Chao vs. De La Rama Steamship Co., Inc., L-14495, September 29, 1962, 6 SCRA 69, 72. See
also De Jesus, et al. vs. Belarmino et al., 95 Phil. 365, 371; Dalandan, et at. vs. Julio, et al., L- 19101, February 29, 1964, 10
SCRA 400; Ramitere et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac
Producers Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531)

Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint for
intervention alleging that he owned the carabaos.

Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the possession of petitioner
Nacar, the proper procedure would not be to file an action for the recovery of the outstanding debts of the late Isabelo Nacar
against his stepfather, the petitioner Nacar as defendant. As we said in Maspil v. Romero (61 SCRA 197):

Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural rules and cannot be
left to the whims or caprices of litigants. It cannot even be left to the untrammeled discretion of the courts of justice without
sacrificing uniformity and equality in the application and effectivity thereof.

Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its issuance of a writ of
attachment based on the allegations of the complaint are improper. With this conclusion, we find no need to discuss the other
issue on whether or not the procedural rules on the issuance of a writ of attachment were followed by the respondent court in
issuing the subject writ of attachment.

WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13, 1971 is made
permanent and the cash bond filed by the petitioner in connection therewith is ordered returned to him. SO ORDERED.

8. G.R. No. L-30453 December 4, 1989

ANGELINA PUENTEVELLA ECHAUS, in her own behalf and as Administratrix of the Estate of Luis Puentevella,
assisted by her husband, RENE ECHAUS, petitioner, vs. HON. RAMON BLANCO, as Judge of the Court of First
Instance of Iloilo, and PHILIPPINE COMMERCIAL & INDUSTRIAL BANK, as Administrator of the Testate Estate of the
late Charles Newton Hodges, AVELINA A. MAGNO, as Administratrix of the Testate Estate of the late Linnie Jane
Hodges, respondents. MEDIALDEA, J.:

This is a petition for mandamus seeking to compel respondent presiding judge of the then Court of First Instance of Iloilo (now
Regional Trial Court) in Special Proceedings No. 1672 to issue an order directing respondent Philippine Commercial and
Industrial Bank (PICB) as administrator of the estate of the late Charles Newton Hodges (C.N. Hodges) to pay herein petitioner
the amount of eight hundred fifty-one thousand four hundred seventy- two pesos and eighty-three centavos (P851,472.83) with
legal interest, adjudged in Civil Case No. 6628.

The antecedent facts of the instant case are as follows:

Herein petitioner Angelina Puentevella Echaus, in her own behalf and as Administratrix of the intestate estate of her deceased
father Luis Puentevella, assisted by her husband, Rene Echaus filed a complaint on May 30, 1962 against Charles Newton
Hodges (C.N. Hodges) praying for an accounting of the business covering the Ba-Ta Subdivision, the recovery of her share in
the profits and remaining assets of their business and the payment of expenses and moral and exemplary damages (p. 10,
Rollo). The complaint was docketed as Civil Case No. 6628 of the Court of First Instance of Negros Occidental.

On July 20, 1962, C. N. Hodges, through counsel, filed his Answer (p. 10, Rollo).

Trial on the merits commenced on December 7, 1962, with the testimony of Angelina Echaus (p. 12, Rollo). Sometime
thereafter, counsel for C. N. Hodges manifested that defendant C. N. Hodges died on December 25, 1962. No motion to dismiss
was filed by C. N. Hodges' counsel. On February 14, 1964, the trial court ordered the substitution of the Philippine Commercial
and Industrial Bank (PCIB), as administrator of the estate of deceased C. N. Hodges, as party defendant. No objection to the
order was interposed by PCIB.

A petition for the settlement of the estate of C. N. Hodges was instituted before the Court of First Instance of Iloilo, the date of
which does not appear in the records, and docketed as Special Proceedings No. 1672. A notice to creditors was published in
"Yuhum" a newspaper of general circulation in its issues of March 13, 20 and 27, 1963 (p. 190, Rollo).
On November 12, 1966, the parties in Civil Case No. 6628 submitted a stipulation of facts and submitted the case for decision
on the basis of said stipulation of facts (p. 12, Rollo). The parties also agreed in the stipulation of facts that:

1. The parties, being duly represented in the panel of Commissioners constituted by this Honorable Court, shall be bound by the
Commissioners' findings on the questions of facts presented to them for determination, if such findings are accepted by this
Honorable Court in its Decision.

2. With a view to the, speedy settlement and termination not only of the Estate of C. N. Hodges (Special Proceedings 1672 of
the Court of First Instance of Iloilo pending since 1962) but also of the estate of Luis Puentevella (Special Proceedings 1968 of
the Court of First Instance of Negros Occidental pending since 1951), in accordance with the letter and spirit of the Rules of
Court, and relying upon the wisdom and impartiality of the Presiding Judge of this Honorable Court who is now on the point of
closing a brilliant and exemplary career on the Bench, the parties shall accept its Decision herein as final.

(p. 20, Rollo)

On December 5, 1966, judgment was rendered by the trial court in favor of plaintiff Angelina F. Echaus, the dispositive portion of
which states:

IN VIEW OF ALL THE FOREGOING, the defendant, in its capacity as Administrator of the Estate of Charles Newton Hodges is
hereby ordered to pay the plaintiffs the sum of EIGHT(Y) HUNDRED FIFTY-ONE THOUSAND FOUR HUNDRED SEVENTY-
TWO PESOS and EIGHTY THREE CENTAVOS (P851,472.83) with legal interest thereon from date of judgment until paid. All
other claims arising from the counterclaim, and third-party complaint, not otherwise adjudicated, are hereby dismissed, with
costs against the defendant,

IT IS SO ORDERED.
Bacolod City, Philippines, December 5, 1966.
(SGD) EDUARDO D. ENRIQUEZ Judge
(p. 41, Rollo)

On January 21, 1967, the same trial court issued an order granting plaintiff's motion for the issuance of a writ of execution (p.
43, Rollo) against PCIB. However, the writ was not enforced as plaintiff opted to file a motion dated February 20, 1967 (pp. 44-
46, Rollo) in Special Proceedings No. 1672 (estate proceedings of deceased C. N. Hodges) for the payment of the judgment.
Herein respondent Avelina A. Magno, as administratrix of the estate of the deceased Linnie Jane Hodges (wife of C. N. Hodges)
opposed the motion (p. 3, Rollo). Meanwhile, in Civil Case No. 6628, Avelina Magno, filed a petition for relief from judgment on
March 27, 1967 and a motion to intervene dated April 24, 1967 (p. 57, Rollo). On June 6, 1967, the heirs of C. N. Hodges filed a
motion to intervene in the same Civil Case No. 6628. On July 20, 1967, respondent Judge Ramon Blanco, presiding judge of
the Court of First Instance of Iloilo City, Branch V, taking cognizance of Special Proceedings No. 1672, issued on Order (pp. 52-
56, Rollo) holding in abeyance the resolution of the motion of Angelina Echaus for payment of the judgment rendered in her
favor in Civil Case No. 6628, until after the resolution of the "Petition for Relief from Judgment" filed by Administratrix Magno
before the Court of First Instance of Negros Occidental in Civil Case No. 6628.

On November 23, 1967, the petition for relief from judgment was denied on the ground that Magno, as administratrix of the
estate of Linnie Jane Hodges was not a party to the case (p. 58, Rollo). The twin motions to intervene filed by the heirs of C. N.
Hodges and Avelina Magno, as administratrix of the estate of Linnie Jane Hodges were likewise denied on the ground that
pleadings in intervention are allowed only before or during the trial and not when a final and executory judgment had already
been rendered (p. 61, Rollo).

In a motion (pp. 66-68, Rollo) dated November 25, 1968, Angelina P. Echaus prayed for the resolution of her previous motion to
direct payment of the judgment credit which was held in abeyance, stating that the petition for relief from judgment filed in Civil
Case No. 6628 was dismissed by the trial court which dismissal has become final and executory in view of the failure of Avelina
Magno to file a record on appeal on time.

On February 26, 1969, respondent Judge Ramon Blanco issued an Order (pp. 72-74, Rollo) reiterating his position that the
motion to direct payment of the judgment credit cannot yet be resolved and holding in abeyance the resolution thereof in view of
the writ of preliminary injunction issued by the Supreme Court in G.R. Nos. L-27860 and L-27896, (PCIB v. Blanco), enjoining
respondent judge from hearing Special Proceedings Nos. 1307 and 1672, entitled "Testate Estate of the late Linnie Jane
Hodges" and "Testate Estate of Charles N. Hodges," respectively. It is noted that in the same Order, respondent judge
mentioned that the writ of preliminary injunction issued by the Supreme Court was clarified in another resolution dated October
4, 1967 to the effect that he (respondent judge) is not restrained from approving final deeds of sale executed by the
Administrator PCIB covering properties of the respective estates and that he can act on such other routinary administrative
matters necessary for the gathering and preservation of the estate (pp. 73-74, Rollo).

The pertinent portion of said Order states:

In G.R. Nos. L-27860 and L-27896, PCIB vs. Blanco, the Supreme Court on August 12, 1967 issued a writ of preliminary
injunction restraining the presiding judge of this Branch V from hearing Sp. Proc. 1307 and 1672 of the Court of First Instance of
Iloilo entitled 'Testate Estate of the late Linnie Jane Hodges and Testate Estate of C. N. Hodges' which writ of preliminary
injunction was clarified by the Supreme Court in its resolution of October 4, 1967 to the effect that the presiding judge of this
Branch V is not restrained from approving final deeds of sale executed by the administrator PCIB covering properties of the said
estate and that the presiding judge of this Branch can act on such other routinary administration matters necessary for the
gathering and preservation of the estate.

In view therefore of the said writ of preliminary injunction, it is the considered opinion of the undersigned presiding judge that he
cannot act, meanwhile, on the motion or motions and the oppositions thereto taking into account that the said motions involve
substantive and mandatory procedural, requirements considering that the decision of the Court of First Instance of Negros
Occidental of Civil Case 6628 is being questioned by the oppositors as a money claim and as such should have been
prosecuted in the probate court.

WHEREFORE, unless allowed by the Supreme Court to resolve the instant motions and oppositions thereto thus further
clarifying the writ of preliminary injunction which was issued on August 12, 1967, the resolution on the said motions and
oppositions thereto is thereby held in abeyance. SO ORDERED.

In a manifestation (pp. 69-71, Rollo, Annex "H" of Petition) dated February 28, 1969, petitioner manifested that private
respondent Avelina Magno's petition for certiorari and mandamus (G.R. L- 30013) filed before this Court questioning the validity
of the decision in Civil Case No. 6628 was dismissed for lack of merit on January 15, 1969 (p. 109, Rollo). Still, petitioner failed
to obtain an affirmative response to their motion.

Petitioner then filed the instant petition for mandamus dated April 21, 1969 seeking: a) to set aside respondent judge's order of
February 26, 1969; and b) to order PCIB to pay the judgment credit in Civil Case No. 6628.

It is the contention of petitioner that the judgment in Civil Case No. 6628 is now final and executory and the execution thereof
becomes a matter of right under Rule 39, Section 1 of the Rules of Court. The duty to order the execution of a final and
executory judgment is ministerial and the failure of respondent judge to issue such order is a proper case for mandamus.

On the other hand, private respondents contend that the judgment rendered in Civil Case No. 6628 is null and void for having
been rendered without jurisdiction. Money claims against a defendant who dies without a judgment having been rendered in the
Regional Trial Court shall be dismissed and prosecuted as a claim in the estate proceedings as laid down under Section 21,
Rule 3 of the Rules of Court. This procedure was not followed in Civil Case No. 6628. Also, even, if it is assumed that the
judgment in the said civil case is valid, the claim presented in the estate proceedings is already barred by the statute of non-
claims.

It must be noted that Civil Case No. 6628 which is a money claim, was Instituted during the lifetime of C. N. Hodges. During its
pendency and before a decision could be rendered by the Regional Trial Court hearing the case, C. N. Hodges died. Upon his
death, he was substituted by PCIB as administrator of his estate. Being a money claim, said civil case should have been
dismissed and instituted as a money claim in the intestate estate of C. N. Hodges (Sp. Proc. No. 1627) in accordance with
Section 21 of Rule 3 of the Revised Rules of Court, which provides:

Sec. 21. Where claim does not survive.-When the action is for recovery of money, debt or interest thereon, and the defendant
dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided
in these rules.

However, this is not to suggest that because the claim of petitioner was pursued to its conclusion in Civil Case No. 6682 instead
of being dismissed and filed as a money claim in Special Proceedings No. 1672, the judgment rendered therein is null and void.
The case of Ignacio v. Pampanga Bus Co., Inc., L-18936, May 23, 1967, 20 SCRA 126, is in point. In the said case, Pampanga
Bus Co., Inc., (Pambusco) filed a suit to collect P105,000.00 against defendants Valentin Fernando and Encarnacion Elchico
Vda. de Fernando. The latter died during the pendency of the case. On Pambusco's motion, the court ordered Jose Nicolas,
then Administrator, to substitute for deceased Encarnacion Elchico Vda. de Fernando as one of the defendants. No objection to
the order was registered. A judgment was rendered therein which became final. Pambusco then moved in 'the intestate
proceedings of the deceased for the payment of the judgment credit. The administratrices opposed. Pambusco's motion was
granted. This order admitting Pambusco's claim was brought to us. We ruled therein that:

The philosophy behind the rule which provides for the dismissal of the civil case is that, upon the death of a defendant, all
money claims should be filed in the testate or intestate proceedings 'to avoid useless duplicity of procedure.' Obviously, the legal
precept just quoted is procedural in nature. It outlines the method by which an action for recovery of money, debt or interest may
continue, upon the terms therein prescribed. whether the original suit for the recovery of money as here-proceeds to its
conclusion, or is dismissed and the claim covered thereby filed with the probate court, one thing is certain: no substantial rights
of the parties are prejudiced.

2. ... . Now that the judgment has become final, the estate cannot be heard to say that said judgment-reached after a full dress
trial on the merits-will now go for naught. The estate has thus waived its right to have Pambusco's claim re-litigated in the estate
proceedings. For, though presentment of probate claims is imperative, it is generally understood that it may be waived by the
estate's representative. And, waiver is to be determined from the administrator's 'acts and conduct.' Certainly, the
administrator's failure to plead the statute of non-claims, his active participation, and resistance to plaintiff's claim, in the civil
suit, amount to such waiver.

3. Courts are loathe to overturn a final judgment. Judicial proceedings are entitled to respect. Non quieta movere. Plaintiff's
claim has passed the test in three courts of justice: the Court of First Instance, the Court of Appeals and this Court. The
judgment in plaintiff's favor should be enforced. Appellant's technical objection-after judgment had become final in the civil case
that plaintiff's claim should have been litigated in the probate court does not impair the validity of said judgment. For, such
objection does not go into the court's Jurisdiction over the subject matter.

Moreover, when PCIB as administrator of the estate of C. N. Hodges was ordered to be substituted as defendant, it registered
no objection to the order. Thus, even if We admit for the sake of argument that the trial court, after the death of C. N. Hodges
has no jurisdiction to render a judgment therein, the argument must fail. PCIB, participated actively in the said case. It did not
appeal the decision rendered therein, neither did it raise the issue of jurisdiction ion at any stage. It has been consistently held
by this court that while lack of jurisdiction may be assailed at any stage, a party's active participation in the proceedings before
the court without jurisdiction will estop such party from assailing such lack of jurisdiction (Tajonera v. Lamaroza, (1981), 110
SCRA 438; Nieta v. Manila Banking Corp., (1983), 124 SCRA 455, cited in Sps. Antonio Martinez and Benedicta Balatbat v. The
Hon. Judge de la Merced, et al., G.R. No. 82039. June 20, 1989).

Of more importance is the fact that the validity of the decision in Civil Case No. 6628 had been passed upon by us with finality in
G.R. No. L-30013 (PCIB v. Blanco). In that case, the estate of C. N. Hodges and Linnie Jane Hodges questioned the decision of
the trial court dismissing the petition for relief from judgment. We dismissed the petition for lack of merit on January 15, 1969 (p.
109, Rollo).

Private respondent Avelina Magno, in her memorandum in lieu of oral argument. alleged that the Judgment sought to be
enforced is barred under the Rules of Court (p. 180, Rollo,). The proceedings for the settlement of the estate of C. N. Hodges
was opened in 1962 and the notice to creditors was published in "Yuhum" a newspaper of general circulation in its issues of
March 12, 10, and 27, 1963. Under Section 2, Rule 27 of the Rules of Court, the time provided for filing claims against the estate
shall be stated by the court in the notice, which shall not be more than twelve (12) months nor less than six (6) months after the
date of its first publication. Since petitioner filed her motion to direct payment only on February 20, 1967, which is more than four
years from the publication of the notice then, it is already barred.

The above argument of private respondent is not correct. The Rules of Court allows a creditor to file his claim after the period
set by the court in the notice to creditors, provided the conditions stated in the rules are present. The rule provides:

Sec. 2. Time within which claims shall be filed.-... . However, at any time before an order of distribution is entered, on application
of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms
as are equitable, allow such claim to be filed within a time not exceeding one (1) month. (Rule 86)

It is clear from the foregoing (Section 2 of Rule 87 [now Rule 86]) that the period prescribed in the notice to creditors is not
exclusive; that money claims against the estate may be allowed any time before an order of distribution is entered, at the
discretion of the court for cause and upon such terms as are equitable (Quisumbing v. Guison, 76 Phil. 730; Edmands v. Phil.
Trust Co., G.R. No. L-2670, September 29, 1950, 48 O.G. 139; Paulin v. Aquino, G.R. No. L-11267, March 20.1958: Afan v. de
Guzman, G.R. No. L-14715, April 28, 1960). At the time petitioner's motion to direct payment of the judgement credit was filed,
no order of distribution was issued yet. Also, it is worthy to cite herein a situation, similar to the case at bar. which was
considered by this court as a good excuse for the late filing of a claim against the decedent:

Here the claim filed in the probate court on February 25,1959, while the defendants in the civil case were still perfecting their
appeal therein. The record does not show that the administrator objected thereto upon the ground that it was filed out of time.
The pendency of that case, we are persuaded, to say is a good excuse for tardiness in the filing of the claim. (In pari materia: De
Rama v. Palileo, L-18935, Feb. 26, 1965). An the order of the final distribution is still to be given. (Ignacio v. Pambusco, supra.)

It is also petitioner's contention that properties under custodia legis may be reached for the satisfaction of a judgment, citing the
case of Reganon v. Imperial, G.R. No. 24434, January 17, 1968; Fores v. Santos, G.R. No. L-24538, May 4, 1968 and De Borja,
et al. v. De Borja, et al., L-14951, August 31, 1961. A cursory reading of the text of the above-cited cases will reveal that what is
involved therein is the attachment for purposes of execution of the interest of an heir (to answer for claims against such heir) in
the estate of the decedent which is allowed by the Rules; and not the attachment of the estate itself nor any property therein for
the satisfaction of a claim against the decedent:

Sec. 7. Attachment of real and personal property; recording thereof. -Properties shall be attached by the officer executing the
order in the following manner:

(f) The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as
heir, legatee or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of
the order and notice that said interest is attached, ... . (Rule 57, Rules of Court)

While the judgment in Civil Case No. 6628 has become final and executory, execution is not the proper remedy to enforce
payment thereof. The ordinary procedure by which to settle claims of indebtedness against the estate of a deceased person, ...,
is for the claimant to present a claim before the probate court so that said court may order the administrator to pay the amount
thereof (Domingo v. Garlitos, L-18994, June 29, 1963). This was the procedure correctly chosen by petitioner. In Aldamiz v.
Judge of the Court of First Instance of Mindoro, L-2360, December 29, 1949, We held:

... a writ of execution is not the proper procedure allowed by the Rules of Court for the payment of debts and expenses of
administration. The proper procedure is for the court to order the sale of personal estate or the sale or mortgage of real property
of the deceased and all debts or expenses of administration should be paid out of the proceeds of the sale or mortgage. The
order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs,
legatees and devisees residing in the Philippines, according to Rule 89, Section 3, and Rule 90, Section 2. And when sale or
mortgage of real estate is to be made, the regulations contained in Rule 90, Section 7, should be complied with.

And in the case of Domingo v. Garlitos, p. 446, supra:

The legal basis for such a procedure is the fact that in the testate or intestate proceedings to settle the estate of a deceased
person, the properties belonging to the estate are under the jurisdiction of the Court and such jurisdiction continues until said
properties have been distributed among the heirs entitled thereto. During the pendency of the proceedings all the estate is in
custodia legis and the proper procedure is not to allow the sheriff, in case of a court judgment, to seize the properties but to ask
the court for an order to require the administrator to pay the amount due from the estate and required to be paid.

Nevertheless, while We hold that the judgment credit should be admitted as a claim against the estate of C. N. Hodges, the
question of whether an order to direct payment thereof is compellable by mandamus is doubtful. At the time the second motion
for payment was filed by petitioner, respondent judge's hands were "tied" by an existing writ of preliminary injunction issued by
Us in G.R. Nos. L-27860 and L-27896 (PCIB v. Blanco) restraining him from hearing Special Proceedings Nos. 1307 (Testate
Estate of Linnie Jane Hodges) and No. 1672 (Testate Estate of C. N. Hodges where the motion to direct payment was filed).
While this writ was clarified by a subsequent resolution issued on October 4,1967 to the effect that respondent judge is not
restrained from approving final deeds of sale executed by the administrator PCIB covering properties of the estate and from
acting on such other routinary administration matters for the gathering and preservation of the estate, it is clear that an order to
direct payment is not embraced under the clarificatory resolution. Even if petitioners' judgment credit allowed as a claim against
the estate. immediate payment thereof by the administrator of the estate, is not a matter of right. A judgment against the
executor or administrator shall be that he pay, in due course of administrator, the amount ascertained to be due, and it shall not
create a lien upon the property of the estate, or give the judgment creditor any priority in payment (Sec. 13, Rule 86, Revised
Rules). The time for paying debts (and legacies) is to be fixed by the probate court having jurisdiction over the estate of the
deceased (Sec. 15, Rule 18). In the absence of any showing that respondent judge who is taking cognizance of the estate
proceedings had already allowed the administrator to dispose of the estate and to pay the debts and legacies of the deceased,
a writ of mandamus will not issue to compel him to order payment of petitioner's claim.

It is essential to the issuance of the writ of mandamus that the (plaintiffs) should have a clear legal right to the thing demanded
and it must be the imperative duty of the defendant to perform the act required (Province of Pangasinan v. Reparations
Commission, 80 SCRA 376).

ACCORDINGLY, the petition for the writ of mandamus is DISMISSED for lack of merit. SO ORDERED.

RULE 91 - ESCHEATS

1. G.R. No. L-44347 September 29, 1988

VICENTE TAN, petitioner, vs. CITY OF DAVAO, respondent. GRIÑO-AQUINO, J.:

This 26-year old case involves what is probably now a valuable lot in the City of Davao whose owner left for China with her
entire family in 1923 and never returned. Like all such estates facing escheat proceedings, it is fair game for poseurs and
fakers claiming to be the missing heir of the deceased owner.

The spouses Cornelia Pizarro and Baltazar Garcia, during their lifetime, were residents of Davao City. As they were childless,
they adopted a three-year old girl whom they named Dominga Garcia and brought up as their own. At the age of nineteen
years, Dominga Garcia married a Chinaman, Tan Seng alias Seng Yap, with whom she had three children, named Vicente,
who was born in 1916, Mariano who was born in 1918, and Luis who was born in 1921. In 1923, Dominga Garcia and her
three children emigrated to Canton, China. In less than a year, Tan Seng followed his family to his country of origin.

According to the petitioner, Dominga Garcia died intestate in 1955 (Extra-judicial Settlement of the Estate of Dominga Garcia
dated May 27, 1966, p. 8, Rollo). She left in the Philippines a 1,966-square-meter lot on Claveria Street, Townsite of Davao,
District of Davao, registered in her name under T.C.T. No. 296 (T-2774) of the Registry of Deeds of Davao City. Since her
departure for China with her family, neither she, nor her husband, nor any of their children has returned to the Philippines to
claim the lot.

Dominga's adoptive parent, Cornelia Pizarro, died in May 1936. In 1948, her nephew, Ramon Pizarro, occupied a part of
Dominga's property and collected the rentals from the owners of other houses occupying the land. Another nephew of
Cornelia, Segundo Reyes, in a burst of civic spirit, informed the Solicitor General about the property. The City Fiscal and NBI
agents, Antonio Gonzaga and Felix Valencia, investigated Segundo Reyes, Ramon Pizarro and Aurelio Pizarro regarding the
whereabouts of Dominga Garcia, Tan Seng, and their children.

During the investigation, Ramon Pizarro alleged that Vicenta Tan, daughter of Dominga, was married and living in Bacolod
City, but he did not know her exact address. Aurelio Pizarro, on the other hand, controverted that statement because as far
as he knew, Vicenta Tan left for China with her mother and brothers in 1923.

On September 12,1962, the City of Davao filed a petition in the Court of First Instance of Davao, Branch I (Special Civil Case
No. 1220) to declare Dominga Garcia's land escheated in its favor. It alleged that Dominga Garcia and her children are
presumed to be dead and since Dominga Garcia left no heir person by law entitled to inherit her estate, the same should be
escheated pursuant to Rule 92 of the Rules of Court (pp. 1-5, Record on Appeal).

The court set the petition for hearing and directed the City to cause (as it did ) the publication of its petition in the 'Mindanao
Times," a newspaper of general circulation in the city and province of Davao, and in the Official Gazette, once a week for six
(6) consecutive weeks (pp. 6-8, Record on Appeal).

Ramon Pizarro opposed the escheat petition on the ground that courts are not authorized to declare that a person is
presumed to be dead and that Dominga Garcia's being in Red China is not a sufficient ground to deprive her of her property
by escheat proceedings (pp. 8-9, Record on Appeal). On June 15, 1966, Pizarro filed a motion to dismiss the escheat
petition (pp. 13-15, Record on Appeal), but he withdrew his motion three days later (p. 15, Record on Appeal).

Numerous incidents delayed the trial of the case, among them: (1) the court's order denying the oppositor's motion to dismiss
the escheat petition, which reached the Court of Appeals and the Supreme Court (L-38423); (2) the court's order requiring
Pizarro to render an accounting which also reached the Court of Appeals and Supreme Court (L-38642); and (3) the court's
order for receivership which reached the Court of Appeals and the Supreme Court (L-39224). At the trial, the petitioner's
evidence on the Identity of the land; the fact that the registered owner, Dominga Garcia, and her children and husband had
left for China in 1923; that she died intestate in 1955; and that none of her heirs is found in the Philippines, were not seriously
disputed.
The controversy centers on whether Dominga's daughter, Vicenta Tan, is alive in China or in Hongkong, as alleged by
Pizarro who tried to prove it through: (1) supposed pictures of the missing heir (Exhs. 1, 2, and 3); (2) an Extrajudicial
Settlement and Adjudication of Dominga's Estate (Exh. 19, pp. 8-9, Rollo) allegedly executed by Vicenta in Hongkong on
May 27, 1966; and (3) a Special Power of Attorney (Exh. 20) that she supposedly signed (thumbmarked) in favor of Pizarro
on the same date also in Hongkong (pp. 53-56, Rollo).

Pizarro testified that his aunt Cornelia Pizarro gave him the papers pertaining to the land and told him to take care of it before
she died in 1936.

On cross-examination, he alleged that in 1960 he met Vicenta on Claveria Street, that she told him to take care of her
property because she would come again later; that they met again in Hongkong in 1966; and he recognized her from her
pictures (Exhs. 1, 2, and 3). On still another occasion, Pizarro testified that the title of the land was given to him by Dominga
Garcia when she and her husband returned to Davao before the war and borrowed money from him for their trip to China.

Pizarro's witness, a septuagenarian Arsenio Suazo, who claimed to be a distant relative of Cornelia Pizarro and Dominga
Garcia, testified that the last time he saw Vicenta was when she was 5 years old. He Identified her as the woman with buck
teeth in the pictures (Exhs. 1, 2 and 3) because he remembered that, even as a 5-year-old, "her teeth were not in good form
and were somewhat protruding."

Another witness, Ramon Regino, a nephew of Pizarro, calculated that Vicenta was 7 years old when he last saw her. He
testified that the pictures (Exhs. 1, 2, and 3) bore a similarity to Vicenta whose face, he recalled, was "somewhat long."

The trial court found Suazos testimony "not credible" or "improbable" for it was impossible for him to Identify the woman in
the picture as Vicenta on the basis only of his recollection that she had protruding teeth as a child, because, the court
argued, "it is a matter of common knowledge ... that the teeth of children of five years of age are temporary, and are replaced
by permanent teeth at the age of seven or eight years."
(p. 185, Record on Appeal.)

The court also found Regino's testimony "Incredible, patently incredible" (p. 185, Record on Appeal).

Neither did the trial court believe Pizarro's allegation that the pictures, Exhibits 1, 2, and 3, were those of Vicenta Tan. The
court observed that the woman in the picture, who supposedly made the Extrajudicial Settlement and Special Power of
Attorney (Exhs. 19 and 20) did not know how to sign her name, thus contradicting Pizarro's statement that Vicente, at age 7,
already knew how to write and that when they met in Hongkong, they conversed in Chavacano and in English. On the other
hand, the court pointed out, since Vicenta left for China in 1923 when she was only 7 years old, and as she grew up in China,
it could not be true that she spoke Chavacano and could write in the Roman alphabet
(p. 194, Record on Appeal).

The Court did not believe that Pizarro and Vicenta met in Davao in 1960, for if that were true, he did not need to be shown
the scar on Vicenta's thigh in order for him to recognize her. Furthermore, it is improbable that a woman whom he had not
seen for 43 years would bare her thigh to him. The trial court pointed out in its decision that:

... There is no proof that Vicenta Tan, daughter of Dominga Garcia, was the one who in fact sent the picture other than the
claim of Pizarro that he received the same from her. Likewise, there is no proof that the woman in Exhibit I is Vicenta Tan,
daughter of Dominga Garcia, except the testimony of Pizarro that he received the picture from her. An impostor might have
sent her picture to Pizarro foist herself upon him as the daughter of Dominga Garcia. And this is the woman whom Pizarro
met in Hongkong (p. 196, Record on Appeal.)

The trial court found that Pizarro's testimonies "ring with untruthfulness; they are replete with inconsistencies" (p. 17, Record
on Appeal) and the witnesses who corroborated him were "unworthy of belief" (p. 198, Record on Appeal).

On March 23, 1972, the trial court rendered judgment whose dispositive portion is quoted below:

WHEREFORE, the land in the name of Dominga Garcia covered by Transfer Certificate of Title No. 296 (T-2774) of the
Register of Deeds of Davao City, as well as the rentals thereon, shall escheat and the same are hereby assigned to the City
of Davao for the benefit of public schools and public charitable institutions and centers in the said city.

Ramon Pizarro shall make an accounting of the income he collected from himself and those who are occupying the land from
the time he took possession of it in 1936 when his aunt Cornelia Pizarro died until the City of Davao takes possession of the
property and shall deliver the same to the city.

Ramon Pizarro shall likewise deliver to the City of Davao the owner's duplicate of Transfer Certificate of Title No. 296 (T-
2774) which is in his possession, without costs. (p. 198, Record on Appeal.) Pizarro appealed to the Court of Appeals (CA-
G.R. No. L-51786-R). He passed away on June 16, 1975 during the pendency of the appeal.

On August 19,1975, a certain Luis Tan, alias Chen Yek An claiming to be the long missing son of Dominga Garcia, filed a
motion for intervention in the Court of Appeals. He alleged that he had been living in mainland China; that he failed to come
to the trial because of a government prohibition barring his entry to the Philippines; that after diplomatic relations with China
were restored, he returned to this country to oppose the escheat proceedings on the properties of his mother, Dominga
Garcia. The City of Davao opposed the motion for intervention for tardiness. The Court of Appeals disallowed it because the
trial had long been terminated, and the intervention, if allowed, would unduly delay the adjudication of the rights of the
original parties
(p. 26, Rollo).
On April 2, 1976, the Court of Appeals affirmed the appealed decision of the trial court. Vicenta Tan and/or her attorney-in-
fact, Ramon Pizarro, appealed by petition for certiorari to this Court, alleging that the Court of Appeals erred:

1. in ruling that the city of Davao had personality to file the escheat petition; and
2. in declaring that petitioner Vicenta Tan may be presumed dead.
We find no merit in the petition for review.

With respect to the argument that only the Republic of the Philippines, represented by the Solicitor-General, may file the
escheat petition under Section 1, Rule 91 of the Revised (1964) Rules of Court, the Appellate Court correctly ruled that the
case did not come under Rule 91 because the petition was filed on September 12,1962, when the applicable rule was still
Rule 92 of the 1940 Rules of Court which provided:

Sec. 1. When and by whom,petition filed.—When a person dies intestate, seized of real or personal property in the
Philippines, leaving no heirs or person by law entitled to the same, the municipality or city where the deceased last resided, if
he resided in the Philippines, or the municipality or city in which he had estate if he resided out of the Philippines, may file a
petition in the court of first instance of the province setting forth the facts, and praying that the estate of the deceased be
declared escheated. (Emphasis supplied.)

Rule 91 of the Revised rules of Court, which provides that only the Republic of the Philippines, through the Solicitor General,
may commence escheat proceedings, did not take effect until January 1, 1964. Although the escheat proceedings were still
pending then, the Revised Rules of Court could not be applied to the petition because to do so would work injustice to the
City of Davao. Rule 144 of the 1964 Rules of Court contains this "saving" clause:

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take effect, and also all
further proceedings in cases pending, except to the extent that in the opinion of the court, their application would not be
feasible or would work injustice, in which event the former procedure shall apply.

The Court of Appeals should have dismissed the appeal of Vicenta Tan and Ramon Pizarro earlier because the records
show that Vicenta was never a party in the escheat proceedings. The trial court's order dated February 4, 1972 ordering that
she be substituted for Ramon Pizarro as oppositor (p. 16, Record on Appeal) was set aside by the same court in its Order of
March 23, 1972 (p. 178, Record on Appeal) which was not appealed.

Vicenta Tan, if she still exists, was never served with summons extra-territorially under Section 17, Rule 14 of the Rules of
Court. She never appeared in the trial court by herself, or counsel and never filed a pleading therein, hence, she never
submitted to the court's jurisdiction.

Every action must be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule 3, Rules of Court;
Ferrer vs. Villamor, 60 SCRA 106; Filipinas Industrial Corp. vs. San Diego, 23 SCRA 706; 1 Moran 144). Ramon Pizarro, the
alleged administrator of Dominga Garcia's property, was not a real party in interest. He had no personality to oppose the
escheat petition.

The Court of Appeals did not err in affirming the trial court's ruling that Dominga Garcia and her heirs may be presumed dead
in the escheat proceedings as they are, in effect, proceedings to settle her estate. Indeed, while a petition instituted for the
sole purpose of securing a judicial declaration that a person is presumptively dead cannot be entertained if that were the only
question or matter involved in the case, the courts are not barred from declaring an absentee presumptively dead as an
incident of, or in connection with, an action or proceeding for the settlement of the intestate estate of such absentee. Thus
ruled this Court in In re Szatraw 81 Phil 461:

... This presumption ... may arise and be invoked and trade in a case, either in an action or in a special proceeding, which is
tried or heard by, and submitted for-decision to, competent court. Independently of such an action or special proceeding, the
presumption of death cannot be invoked, nor can it be made the subject of an action or special proceeding. (Emphasis
added.)

Direct evidence proving that Dominga Garcia, her husband and her children are in fact dead, is not necessary. It may be
presumed under Article 390 of the New Civil Code which provides:

ART. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed
dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years ... The
Court of Appeals found that the City of Davao was able to prove the facts from which the presumption arises. It said:

... Its evidence preponderantly shows that in 1923 Dominga Garcia and her family left the Philippines bound for China. Since
then until the instant petition was filed on September 12, 1962, a period covering about 39 years, nothing had been heard
about them. It is not known whether all or any of them is still alive at present. No heir, devisee or any other person entitled to
the estate of Dominga Garcia has appeared and claimed the same up to this time except Luis Tan whose status as alleged
heir has still to be proven in the proper court.

The assertion of appellant Pizarro that in 1960 he met and talked with Vicenta Tan in Claveria, Davao City, before she went
to China, and again in 1966, when he went to Hongkong, was not believed by the court below. After assessing and
evaluating the evidence, we find no sufficient cause to disturb the conclusion of the trial court made on a finding of fact based
on conflicting testimony and depending largely upon the credibility of witnesses who testified before it. In our review of the
evidence, we have not come across any material fact or circumstance which the court a quo has overlooked and failed to
consider, or has misunderstood and misapplied, and which if properly appreciated and accurately were held would change
the result of this litigation.

For one thing, if it is true that Vicenta Tan left the Philippines only in 1960, as oppositor Pizarro would like the court to
believe, it has not been explained why he omitted to secure copies of her departure papers from either the Department of
Foreign Affairs, the Bureau of Immigration or the former Chinese Embassy, and present them to the court to establish her
existence as late as 1960.

For another, if it is also true that he met her in Hongkong in 1966, we are at a loss why he failed to arrange for her return to
the Philippines. We do not believe it would have been difficult to do so, considering that she had been a resident of this
country for more than 40 years and had been absent for only about six years and that her return was imperative on account
of a court action against her property which required her personal presence. But even if this were impossible, oppositor
Pizarro would not be left without any other remedy. He could have arranged for the taking of her deposition in Hongkong by
means of letters rogatory under Sections 11 and 12, Rule 24 of the Revised Rules of Court, in the same manner that,
according to him, he arranged their meeting in the Crown Colony sometime in 1966.

The unexplained failure of oppositor Pizarro to take advantage of any of these remedies available to him heavily tilts the
scale against the credibility of his claim.
(pp. 30-31, Rollo.)

These factual findings of the Court of Appeals are binding on Us. They may not be disturbed in this petition for review where
only legal questions may be raised (Sec. 2, Rule 45).WHEREFORE, finding no reversible error in the decision of the Court of
Appeals in CA-G.R. No. 51786-R, the petition for review is denied for lack of merit.

2. G.R. No. L-14157 October 26, 1960

In the matter of escheat proceedings of the estate of the deceased Anne Fallon Murphy and Tomas Fallon married to
Julia Fallon. MUNICIPALITIES OF MAGALLON, ISABELA and LA CASTELLANA, NEGROS OCCIDENTAL, petitioners-
appellees,
vs.IGNATIUS HENRY BEZORE, ET AL., oppositors-heirs appellants. LABRADOR, J.:

These are escheat proceedings instituted by the Municipalities of Magallon, La Castellana and Isabela, Province of Negros
Occidental, in the Court of First Instance of that province, praying that the estates of the deceased Anne Fallon Murphy and
Thomas Fallon the latter married to Julia Fallon, consisting of agricultural lands and residential lots, as well as accrued
rentals deposited with the Warner, Barnes and Co., Ltd., be escheated in favor of the above-named municipalities,
respectively, wherever the real estates are situated. Finding that the petition was in order, the judge of the court ordered the
publication of the petition and set the same for hearing before itself on October 9, 1957.

The evidence shows that the properties sought to be escheated originally to Charles J. Fallon, an American citizen, married
to Rosario Santaromana. Fallon died in Manila on March 25, 1935, so his wife acquired by inheritance one-half of the said
properties as owner, and the other half as usufructuary. The value of the properties of Charles J. Fallon in 1936 is estimated
at P46l,105.41 (Exhibit "H"). His wife Rosario Santaromana died in 1943, and thereupon the properties which she held in
usufruct were transmitted to the brother and sister of her deceased husband, namely, Thomas Fallon and Anne Fallon
Murphy. The value of the estate belonging to both Thomas Fallon and Anne Fallon Murphy were residents of the United
States and as nothing was known about them from their relatives in the United States, the petitioning municipalities believed
that they had died without heirs. Hence the petition for escheat.

At the hearing of the petition, evidence was submitted that Anne Fallon Murphy died on March 12, 1936 in San Francisco,
California (ROA p. 21), while Thomas Fallon, died on May 26, 1936, also in San Francisco, California (ROA p. 25). Julia
Fallon, on the other hand, died in San Francisco, California on December 2, 1944 (ROA p. 26).

Opposition to the petition for escheat was filed by Ignatius Bezore. Elwood Knickerbocker and Mary Irene Fallon McCormick
Henry Bezore claims that he is the a nephew of the decedents because his mother was their sister. Elwood Knickerbocker
also claims to be the sole legatee of his wife Loreta Knickerbocker, who in turn, was the residuary legatee of Anne Fallon
Murphy. Mary Irene Murphy McCormick likewise claims that she is the niece of the decedents as her father was a brother of
said decedents. Conformably to their petitions, all the oppositors pray that the petition for escheat be dismissed and that the
properties of the decedents be disturbed among them.

The court, after hearing, found that Anne Fallon Murphy died in San Francisco on March 12, 1936 and Thomas Fallon, also
in the same city on May 26, 1936; that Thomas Fallon was survived by his wife Julia Fallon, who in turn, died in San
Francisco on December 22, 1944; that Ane Fallon Murphy executed a will on February 7, 1935, which was admitted to
probate on May 7, 1937. Considering these facts the court denied the petition for escheat of the properties of the deceased
Anne Fallon Murphy and Thomas Fallon, for the reason that Thomas Fallon died with an heir his wife Julia Fallon, and Anne
Fallon Murphy, for her part, died leaving a will, in which she disposed of all her properties.

As to prayers contained in the opposition asking that the oppositors be declared heirs of the deceased Thomas Fallon and
Anne Fallon Murphy, the court declared that the evidence submitted was not competent or sufficient to sustain the claim of
the oppositors and, therefore denied said prayers.

The petitioning municipalities presented no appeal, but the oppositors did appeal, claiming that the lower court erred in not
rendering judgment in their favor and in not declaring them heirs of the decedents Anne Fallon Murphy and Thomas Fallon.

This appeal can not be entertained. While it is possible for the estates of the deceased Anne Fallon Murphy and Thomas
Fallon, who at the time of their death were residents of San Francisco, California, to be settled here, or more especially in
Negros Occidental where they had properties, these proceedings were instituted as escheat proceedings and not for the
settlement of the estate of deceased persons. The court acquired jurisdiction to hear the petition for escheat by virtue of the
publication of the petition for escheat. The jurisdiction acquired can not be converted into one for the distribution of the
properties of the said decedents. For such proceedings (for the distribution of the estate of the decedents) to be instituted,
the proper parties must be presented and the proceedings should comply with the requirements of the Rule. Hence, the court
of First Instance did not have the power to order, or to proceed with, the distribution of the estates of the decedents in these
escheat proceedings, and adjudicate the properties to the oppositors.

WHEREFORE, the decision appealed from should be, as it hereby is, affirmed, without costs.

3. G.R. No. L-45460 February 25, 1938

THE MUNICIPAL COUNCIL OF SAN PEDRO, LAGUNA, ET AL., applicants-appellants, vs.COLEGIO DE SAN JOSE,
INC., ET AL., oppositors-appellees. IMPERIAL, J.:

This is an appeal from the order of the Court of First Instance of Laguna of October 29, 1936, which denied the applicants
motion questioning the appearance and intervention in the case of the oppositors Colegio de San Jose and Carlos Young,
and from the resolution of the 30th of the same month which denied the petition for escheat filed by the said petitioners, with
the costs against the latter.

This case was commenced in the said by a petition filed by the petitioners in behalf of the municipality of San Pedro,
Province of Laguna, wherein they claim the Hacienda de San Pedro Tunasa by the right of escheat. The Colegio de San
Jose, Inc., appeared specially and assailed the petition upon the grounds that the court has no jurisdiction to take cognizance
and decide the case and that the petition does not allege sufficient facts to entitle the applicants to the remedy prayed for;
and asked that the petition be finally dismissed. Carlos Young intervened and filed a motion asking for the dismissal or the
petition upon the ground that the Code of Civil Procedure, under which the same was filed, is not applicable because it was
not yet in force when the original owner of the hacienda died, which was in April, 1596, and that the petition was irregularly
docketed as the applicants had paid at the docket fees which the clerk of court should collect. Subsequently the attorneys for
both parties filed another motions of minor importance, almost all of which contains the arguments advanced in support of
their contentions. On October 29, 1936, the court overruled the objection to the appearance and intervention in the case by
the Colegio de San Jose and Carlos Young, entering the order which is one of those appealed from. And on the 30th of the
same moth the court entered the resolution, also appealed from, dismissing the petition for escheat, with the costs to the
petitioners.

The petitioners attribute to the court the following errors: "(1) In overruling the objection of the appellant of September 2,
1936, and in not excluding the appellees Carlos Young and Colegio de San Jose, Inc., from these proceedings. (2) In
sustaining definitely the appellees' petitions to dismiss, without previous hearing and in derogation of the right to amend in
any case. (3) In improperly and unseasonably taking judicial notice of certain facts in other judicial records to reinforce the
appealed resolutions, and in erroneously distorting those facts judicially taken notice of. (4) In holding that the municipality of
San Jose has neither right standing to file a petition for escheat; that the petition does not state facts sufficient a cause of
action and that the same does not lie, and that the Court of First Instance of Laguna is without jurisdiction to take cognizance
of and decide said petition. (5) In finally dismissing the petition upon the dilatory exceptions thereto, and the ordering the
payment of costs when no hearing has yet taken place."

1. The sworn petition which gave rise to the proceeding is based upon the provisions of section 750 and 751 of the Code of
Civil Procedure, the English text of which reads:1ªvvphïl.nët

SEC. 750. Procedure when person dies intestate without heirs. — When a person dies intestate, seized of real or personal
property in the Philippines Islands, leaving no heir or person by law entitled to the same, the president and municipal council
of the municipality where the deceased last resided, if he was an inhabitant of these Islands, or of the municipality in which
he had estate, if he resided out of the Islands, may, on behalf of the municipality, the file a petition with the Court of First
Instance of the province for an inquisition in the premises; the court shall there upon appoint a time and place of hearing, and
deciding on such petition, and cause a notice thereof to be published in some newspaper of general circulation in the
province of which the deceased was last an inhabitant, if within the Philippines Island, and if not, some newspaper of general
circulation in the province in which he had estate. The notice shall recite the substance of the facts and request set forth in
the petition, the time and place at which persons claiming the estate may appear and be heard before the court, and shall be
published at least six weeks successively, the last of which publication shall be at least six weeks before the time appointed
by the court to make inquisition.

SEC. 751. Decree of the court in such case. — If, at the time appointed for the that purpose, the court that the person died
intestate, seized of real or personal property in the Islands, leaving no heirs or person entitled to the same and no sufficient
cause is shown to the contrary, the court shall order and decree that the estate of the deceased in these Islands, after the
payment of just debts and charges, shall escheat; and shall assign the personal estate to the municipality where he was last
an inhabitant in the Islands, and the real estate to the municipality in which the same is situated. If he never was a inhabitant
of the Islands, the whole estate may be assigned to the several municipalities where the same is located. Such estate shall
be for the use of schools in the municipalities, respectively, and shall be managed and disposed or by the municipal council
like other property appropriated to the use of schools.

Accordingly to the first of the said sections, the essential facts which should be alleged in the petition, which are jurisdiction
because they confer jurisdiction upon the Court of First Instance, are: That a person has died intestate or without leaving any
will; that he has left real or personal property; that he was the owner thereof; that he has not left any heir or person who is by
law entitled to the property; and that the one who applies for the escheat is the municipality where deceased had his last
residence, or in case should have no residence in the country, the municipality where the property is situated.

The following section provides that after the publications and trial, if the court finds that the deceased is in fact the owner of
real and personal property situated in the country and has not left any heirs or other person entitled thereto, it may order,
after the payments of debts and other legal expenses, the escheat, and in such case it shall adjudicate the personal property
to the municipality where the deceased had his last place of residence and the real property to the municipality or
municipalities where they are situated.

Escheat, under sections 750 and 751, is a proceeding whereby the real and personal property of a deceased person become
the property of the State upon his death without leaving any will or legal heirs (21 C.J., sec. 1, p. 848; American L. & T. Co.
vs. Grand River Co., 159 Fed., 775; In re Miner, 143 Cal., 194; Johnston vs. Spicer 107 N.Y., 185; Wright vs. Methodist
Episcopal Church, Hoffm. [N.Y.], 201; In re Linton's, 198 Pa., 438; State vs. Goldberg, 113 Tenn., 298). It is not an ordinary
action contemplated by section 1 of the Code of Civil Procedure, but a special proceeding in accordance with the said
section and Chapter XXXIX, Part II, of the same Code. The proceeding, as provided by section 750, should be commenced
by petition and not by complaint.

In a special proceeding for escheat under section 750 and 751 the petitioner is not the sole and exclusive interested party.
Any person alleging to have a direct right or interest in the property sought to be escheated is likewise and interest and
necessary party and may appear and oppose the petition for escheat. In the present case the Colegio de San Jose, Inc., and
Carlos Young appeared alleging to have a material interest in the Hacienda de San Pedro Tunasa; and the former because it
claims to be the exclusive owner of the hacienda, and the latter because he claim to be the lessee thereof under a contract
legality entered with the former. In view of these allegations it is erroneous to hold that the said parties are without right either
to appear in case or to substantiate their respective alleged right. This unfavorably resolves the petitioners' first assignment
of error.

2. The final dismissal of the petition for escheat decreed by the court is assigned by the petitioners as the second error
committed by it upon the contention that the demurrer, to which amount the motions for dismissal, is not a pleading
authorized by law in this kind of proceeding and because, in any event, the court should have given them an opportunity to
amend the petition.

Chapter XXXIX of the Code of Civil Procedure, relative to the escheat of properties, does not in fact authorize the filing of a
demurrer to the petition presented for that purpose, and section 91 and 99 permitting the interposition of demurrers to the
complaint and answer, respectively, are not applicable to special proceedings. But is no reason of a procedure nature which
prevents the filing of a motion to dismiss based upon any of the grounds provided by law for a demurrer to a complaint. In
such case, the motion to dismiss pays the role of a demurrer and the court should resolve the legal question raised therein.
When, for instance, a petition for escheat does not state facts which entitle the petitioner to the remedy prayed from and
even admitting them hypothetically it is clear that there are nor grounds for the court to proceed to the inquisition provided by
law, we see no reason to disallow an interest party from filing a motion to dismiss the petition which is untenable from all
standpoints. And when the motion to dismiss is entertained upon this ground, the petition may be dismissed unconditionally
and the petitioner is not entitled, as in the case of a demurrer, to be afforded an opportunity to amend his petition.

3. The petitioners assign as third error the judicial notice which the court took of the complaint filed in civil case No. 6790,
docketed and pending in the same court, wherein the petitioner recognized the personality Colegio de San Jose, Inc., and
Carlos Young and the latters' interest in said action of interpleader and in the Hacienda de San Pedro Tunasan which is the
same subject matter of the instant proceedings.

In general, courts are not authorized to take judicial notice, in the adjudication of cases pending before them, of the contents
of the records of the other cases, even when such cases have been tried or are pending in the same court, and
notwithstanding the fact that both cases may have been heard or are actually pending before the same judge. (U.S. vs.
Claveria, 29 Phil., 527.) The rule is squarely applicable to the present case, wherefore, we hold that the assignment of error
is tenable.

4. In the appealed resolution the court held that the municipality of San Pedro, represented by the petitioners, has no
personality to institute the petition for escheat that the latter does not state sufficient facts, and that the court is without
jurisdiction either to take cognizance of the proceeding or to grant the remedy sought. These legal conclusions are the
subject matter of the fourth assignment of error.

According to the allegations of the petition, the petitioners base their right to the escheat upon the fact that the temporal
properties of the Father of the Society of Jesus, among them, the Hacienda de San Pedro Tunasan, were confiscated by
order of the King of Spain and passed from then on the Crown of Spain. The following allegations of the petition are
important and specific and clearly the theory maintained by the petitioners: "11. As a result of the perpetual expulsion of the
Jesuits in their dominions, the King also decreed the confiscation of all their properties, estate, rents, foundation, etc., in favor
of the Crown of Spain, and the order of the King was thus complied with here in the Philippines. The Hacienda de San Pedro
Tunasa from then on passed to the Crown of Spain under the administration and management on its respective here, the
Governor-General of the Philippines Islands. 12. As a result of the war between Spain and the United States, the latter
acquired by way of transfer, all the properties of the Crown of Spain in the Philippines, under articles III and VIII of the Treaty
of Peace entered into in Paris on December 10, 1989, and among which properties was included the Hacienda de San Pedro
Tunasan. 13. That the said hacienda thereafter passed to the Government of the Philippines Islands by virtue of the Act of
the United States Congress of July 1, 1992 (Philippine Bill), by mere administration for the benefit of the inhabitant of the
Philippines; and there after, under the Tydings-McDuffie law approved by the same Congress on March 24, 1934, section 5,
the United States, in turn, have ceded to the Commonwealth of the Philippines, upon its inauguration, all the properties,
estate, etc., ceded by Spain to the United States as above stated, among them being the Hacienda de San Pedro Tunasan.
Said Commonwealth was inaugurated on November 15, 1935."

If the hacienda de San Pedro Tunasan,, which is the only property sought to be escheated and adjudicated to the
municipality of San Pedro, has already passed to the ownership of the Commonwealth of the Philippines, it is evident that the
petitioners cannot claim that the same be escheated to the said municipality, because it is no longer the case of real property
owned by a deceased person who has not left any heirs or person who may legality claim it, these being the conditions
required by section 750 and without which a petition for escheat should not lie from the moment the hacienda was
confiscated by the Kingdom of Spain, the same ceased to be the property of the children of Esteban Rodriguez de Figueroa,
the Colegio de San Jose or the Jesuit Father, and became the property of the Commonwealth of the Philippines by virtue of
the transfer under the Treaty of Paris, alleged in the petition. If the municipality of San Pedro believes that it has some other
right to the hacienda, distinct from the escheat relied upon in its petition which gave rise to this proceeding, it should bring the
proper action, but it cannot avail itself successfully of the remedy provided by section 750 of the Code of Civil Procedure.
We, therefore, hold that the court did not commit the error assigned in ruling that the petition does not allege sufficient facts
justifying the escheat of the hacienda in favor of the municipality of San Pedro and in finally dismissing the same. Having
reached this conclusion we do not believe it necessary to go into further considerations regarding the personality of the
municipality of San Pedro and the court's lack of jurisdiction.

5. The last assignment of error does not require any further consideration. The questions raised therein have already been
passed upon in the preceding considerations, with the exception of the order to pay costs. With respect thereto, there is no
reason why they should not be taxed against the petitioners, they being defeated party (section 487, Code of Civil
Procedure). That no trial was had is not a bar to the imposition of costs under the provisions of section 492.

For the foregoing reasons, the appealed order and resolution are affirmed, with the costs of this instance against the
petitioners and appellants. So ordered.

ADOPTION

1. G.R. Nos. 168992-93 May 21, 2009

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM, Petitioner. CARPIO, J.:

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision1 dated 15
September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258
and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P.
Lim.

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim
(Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban
(Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they
were the children’s parents. The children2 were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael).
Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.3 Michael was
11 days old when Ayuban brought him to petitioner’s clinic. His date of birth is 1 August 1983.4

The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They
used the surname "Lim" in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27
December 2000, petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty5 given under Republic Act No. 85526 (RA
8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the
adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At
the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years
and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.7 Michael also gave
his consent to his adoption as shown in his Affidavit of Consent.8 Petitioner’s husband Olario likewise executed an Affidavit
of Consent9 for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an
abandoned child and the whereabouts of her natural parents were unknown.10 The DSWD issued a similar Certification for
Michael.11

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner
had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption
by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In
denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of
RA 8552. Petitioner’s argument that mere consent of her husband would suffice was untenable because, under the law,
there are additional requirements, such as residency and certification of his qualification, which the husband, who was not
even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental
authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an
emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities.

Hence, the present petition.

Issue : Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can
singly adopt.
The Court’s Ruling: Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and
the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim
"dura lex sed lex" is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case
since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years
of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions
by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial court’s decision
denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been
convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least
sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the
means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be
waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has
diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is
entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that
he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her
country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the alien’s
qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th)
degree of consanguinity or affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial
accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses. (Emphasis supplied)

The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is
mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the
child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The
rule also insures harmony between the spouses.12

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed,
must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario,
the trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are
not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of
petitioner. And third, petitioner and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain
requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA
8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must
have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he
must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and
(5) the adoptee is allowed to enter the adopter’s country as the latter’s adopted child. None of these qualifications were
shown and proved during the trial.

These requirements on residency and certification of the alien’s qualification to adopt cannot likewise be waived pursuant to
Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of
Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having
reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of
their moral, mental and physical character and well-being.13 The father and the mother shall jointly exercise parental
authority over the persons of their common children.14 Even the remarriage of the surviving parent shall not affect the
parental authority over the children, unless the court appoints another person to be the guardian of the person or property of
the children.15

It is true that when the child reaches the age of emancipation — that is, when he attains the age of majority or 18 years of
age16 — emancipation terminates parental authority over the person and property of the child, who shall then be qualified
and responsible for all acts of civil life.17 However, parental authority is merely just one of the effects of legal adoption.
Article V of RA 8552 enumerates the effects of adoption, thus:

ARTICLE V
EFFECTS OF ADOPTION

SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between
the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).

SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them
without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the
means of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of
succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will,
the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except
when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3)
give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not
limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee
to be legal and compulsory heirs of each other.18 Therefore, even if emancipation terminates parental authority, the adoptee
is still considered a legitimate child of the adopter with all the rights19 of a legitimate child such as: (1) to bear the surname of
the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other
successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which
biological parents are entitled20 such as support21 and successional rights.22

We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be
of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or
orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to
experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.23 But, as we have ruled in Republic v. Vergara:24

We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children.
Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law
must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide
homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial court’s
decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription
against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the
respondent-spouses’ petition for adoption. (Emphasis supplied)1avvphi1.zw+

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her
husband. We cannot make our own legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible
because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not
equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage
between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is
required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to
Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court,
General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner. SO ORDERED.

2. G.R. No. 188801, October 15, 2014

ROSARIO MATA CASTRO AND JOANNE BENEDICTA CHARISSIMA M. CASTRO, A.K.A. "MARIA SOCORRO M.
CASTRO" AND "JAYROSE M. CASTRO," Petitioners, v. JOSE MARIA JED LEMUEL GREGORIO AND ANA MARIA
REGINA GREGORIO, Respondents. LEONEN, J.:

The policy of the law is clear. In order to maintain harmony, there must be a showing of notice and consent. This cannot be
defeated by mere procedural devices. In all instances where it appears that a spouse attempts to adopt a child out of
wedlock, the other spouse and other legitimate children must be personally notified through personal service of summons. It
is not enough that they be deemed notified through constructive service.

This is a petition for review on certiorari1 assailing the decision2 of the Court of Appeals in CA-G.R. SP No. 101021, which
denied the petition for annulment of judgment filed by petitioners. The petition before the appellate court sought to annul the
judgment of the trial court that granted respondents' decree of adoption.3chanrobleslaw

The case originally stemmed from the adoption of Jose Maria Jed Lemuel Gregorio (Jéd) and Ana Maria Regina Gregorio
(Regina) by Atty. Jose G. Castro (Jose). Jose is the estranged husband of Rosario Mata Castro (Rosario) and the father of
Joanne Benedicta Charissima M. Castro (Joanne), also known by her baptismal name, "Maria Socorro M. Castro" and her
nickname, "Jayrose."

Rosario alleged that she and Jose were married on August 5, 1962 in Laoag City. Their marriage had allegedly been
troubled. They had a child, Rose Marie, who was born in 1963, but succumbed to congenital heart disease and only lived for
nine days. Rosario allegedly left Jose after a couple of months because of the incompatibilities between
them.4chanrobleslaw

Rosario and Jose, however, briefly reconciled in 1969. Rosario gave birth to Joanne a year later. She and Jose allegedly
lived as husband and wife for about a year even if she lived in Manila and Jose stayed in Laoag City. Jose would visit her in
Manila during weekends. Afterwards, they separated permanently because Rosario alleged that Jose had homosexual
tendencies.5 She insisted, however, that they "remained friends for fifteen (15) years despite their
separation(.)"6chanrobleslaw

On August 1, 2000, Jose filed a petition7 for adoption before the Regional Trial Court of Batac, Ilocos Norte. In the petition,
he alleged that Jed and Regina were his illegitimate children with Lilibeth Fernandez Gregorio (Lilibeth),8 whom Rosario
alleged was his erstwhile housekeeper.9 At the time of the filing of the petition, Jose was 70 years old.10chanrobleslaw

According to the Home Study Report11 conducted by the Social Welfare Officer of the trial court, Jose belongs to a
prominent and respected family, being one of the three children of former Governor Mauricio Castro.

He was also a well-known lawyer in Manila and Ilocos Norte.12 The report mentioned that he was once married to Rosario,
but the marriage did not produce any children.13 It also stated that he met and fell in love with Lilibeth in 1985, and Lilibeth
was able to bear him two children, Jed on August 1987, and Regina on March 1989.14 Under "Motivation for Adoption," the
social welfare officer noted:

Since, he has no child with his marriaged [sic] to Rosario Mata, he was not able to fulfill his dreams to parent a child.
However, with the presence of his 2 illegitimate children will fulfill his dreams [sic] and it is his intention to legalize their
relationship and surname. . . . At the time of the report, Jose was said to be living with Jed and Regina temporarily in Batac,
Ilocos Norte.16 The children have allegedly been in his custody since Lilibeth's death in July 1995.17chanrobleslaw

On October 16, 2000, the trial court approved the adoption,18 having ruled that "[n]o opposition had been received by this
Court from any person including the government which was represented by the Office of the Solicitor General."19 A
certificate of finality20 was issued on February 9, 2006.

Meanwhile, on July 3, 2006, Rosario, through her lawyer, Atty. Rene V. Saguisag, filed a complaint for disbarment against
Jose with the Integrated Bar of the Philippines.21 In her complaint, she alleged that Jose had been remiss in providing
support for their daughter, Joanne, for the past 36 years.22 She alleged that she single-handedly raised and provided
financial support to Joanne while Jose had been showering gifts to his driver and alleged lover, Larry R. Rentegrado (Larry),
and even went to the extent of adopting Larry's two children, Jed and Regina, without her and Joanne's knowledge and
consent.23 She also alleged that Jose made blatant lies to the trial court by alleging that Jed and Regina were his illegitimate
children with Larry's wife, Lilibeth, to cover up for his homosexual relationship with Larry.24chanrobleslaw

In his answer before the Integrated Bar of the Philippines, Jose denies being remiss in his fatherly duties to Joanne during
her minority. He alleged that he always offered help, but it was often declined.25 He also alleged that he adopted Jed and
Regina because they are his illegitimate children. He denied having committed any of the falsification alluded to by Rosario.
He also stated that he had suffered a stroke in 1998 that left him paralyzed. He alleged that his income had been diminished
because several properties had to be sold to pay for medical treatments.26 He then implored the Integrated Bar of the
Philippines to weigh on the case with "justice and equity."27chanrobleslaw

On October 8, 2006, Jose died in Laoag City, Ilocos Norte.28chanrobleslaw

On October 18, 2007, Rosario and Joanne filed a petition for annulment of judgment under Rule 47 of the Rules of Civil
Procedure with the Court of Appeals, seeking to annul the October 16, 2000 decision of the trial court approving Jed and
Regina's adoption.29chanrobleslaw

In their petition, Rosario and Joanne allege that they learned of the adoption sometime in 2005.30 They allege that Rosario's
affidavit of consent, marked by the trial court as "Exh. K,"31 was fraudulent.32 They also allege that Jed and Regina's birth
certificates showed different sets of information, such as the age of their mother, Lilibeth, at the time she gave birth. They
argue that one set of birth certificates states the father to be Jose and in another set of National Statistic Office certificates
shows the father to be Larry, Jose's driver and alleged lover.33 It was further alleged that Jed and Regina are not actually
Jose's illegitimate children but the legitimate children of Lilibeth and Larry who were married at the time of their
birth.34chanrobleslaw

On May 26, 2009, the Court of Appeals denied the petition.

While admittedly, no notice was given by the trial court to Rosario and Joanne of the adoption, the appellate court ruled that
there is "no explicit provision in the rules that the spouse and legitimate child of the adopter . . . should be personally notified
of the hearing."35chanrobleslaw
The appellate court "abhor[red] the mind baffling scheme employed by [Jose] in obtaining an adoption decree in favor of [his
illegitimate children] to the prejudice of the interests of his legitimate heirs"36 but stated that its hands were bound by the trial
court decision that had already attained "finality and immutability."37chanrobleslaw

The appellate court also ruled that the alleged fraudulent information contained in the different sets of birth certificates
required the determination of the identities of the persons stated therein and was, therefore, beyond the scope of the action
for annulment of judgment. The alleged fraud was also perpetrated during the trial and could not be classified as extrinsic
fraud, which is required in an action for annulment of judgment.38chanrobleslaw

When Rosario and Joanne's motion for reconsideration was denied on July 10, 2009,39 they filed this petition.

The issue before this court is whether the Court of Appeals erred in denying the petition for annulment for failure of
petitioners to (1) show that the trial court lacked jurisdiction and (2) show the existence of extrinsic fraud.

In their petition, petitioners argue that the appellate court erred in its application of the law on extrinsic fraud as ground to
annul a judgment.40 They argue that because of the fabricated consent obtained by Jose and the alleged false information
shown in the birth certificates presented as evidence before the trial court,41 they were not given the opportunity to oppose
the petition since the entire proceedings were concealed from them.42chanrobleslaw

Petitioners also argue that the appellate court misunderstood and misapplied the law on jurisdiction despite the denial of due
process, notice, and non-inclusion of indispensable parties.43 They argue that the adoption of illegitimate children requires
the consent, not only of the spouse, but also the legitimate children 10 years or over of the adopter, and such consent was
never secured from Joanne.44chanrobleslaw

Respondents, however, argue in their comment that petitioners could not have been deprived of their day in court since their
interest was "amply protected by the participation and representation of the Solicitor General through the deputized public
prosecutor."45chanrobleslaw

Respondents also argue that there was constructive notice through publication for three consecutive weeks in a newspaper
of general circulation, which constitutes not only notice to them but also notice to the world of the adoption proceedings.46
They argue that since the alleged fraud was perpetrated during the trial, it cannot be said to be extrinsic fraud but intrinsic
fraud, which is not a ground for annulment of judgment.47 They also argue that petitioners were not indispensable parties
because adoption is an action in rem and, as such, the only indispensable party is the state.48chanrobleslaw

The petition is granted.

Annulment of judgment under Rule 47 of the Rules of Civil Procedure

Under Rule 47, Section 1 of the Rules of Civil Procedure, a party may file an action with the Court of Appeals to annul
judgments or final orders and resolutions in civil actions of Regional Trial Courts. This remedy will only be available if "the
ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no
fault of the petitioner."49chanrobleslaw

In Dare Adventure Farm Corporation v. Court of Appeals:50chanrobleslaw

A petition for annulment of judgment is a remedy in equity so exceptional in nature that it may be availed of only when other
remedies are wanting, and only if the judgment, final order or final resolution sought, to be annulled was rendered by a court
lacking jurisdiction or through extrinsic fraud. Yet, the remedy, being exceptional in character, is not allowed to be so easily
and readily abused by parties aggrieved by the final judgments, orders or resolutions. The Court has thus instituted
safeguards by limiting the grounds for the annulment to lack of jurisdiction and extrinsic fraud, and by prescribing in Section 1
of Rule 47 of the Rules of Court that the petitioner should show that the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of the petitioner. A petition for annulment that
ignores or disregards any of the safeguards cannot prosper.

The attitude of judicial reluctance towards the annulment of a judgment, final order or final resolution is understandable, for
the remedy disregards the time-honored doctrine of immutability and unalterability of final judgments, a solid corner stone in
the dispensation of justice by the courts. The doctrine of immutability and unalterability serves a two-fold purpose, namely:
(a) to avoid delay in the administration of justice and thus, procedurally, to make orderly the discharge of judicial business;
and (b) to put an end to judicial controversies, at the risk of occasional errors, which is precisely why the courts exist. As to
the first, a judgment that has acquired finality becomes immutable and unalterable and is no longer to be modified in any
respect even if the modification is meant to correct an erroneous conclusion of fact or of law, and whether the modification is
made by the court that rendered the decision or by the highest court of the land. As to the latter, controversies cannot drag
on indefinitely because fundamental considerations of public policy and sound practice demand that the rights and
obligations of every litigant must not hang in suspense for an indefinite period of time.51 (Emphasis supplied)

Because of the exceptional nature of the remedy, there are only two grounds by which annulment of judgment may be
availed of: extrinsic fraud, which must be brought four years from discovery, and lack of jurisdiction, which must be brought
before it is barred by estoppel or laches.52chanrobleslaw

Lack of jurisdiction under this rule means lack of jurisdiction over the nature of the action or subject matter, or lack of
jurisdiction over the parties.53 Extrinsic fraud, on the other hand, is "[that which] prevents a party from having a trial or from
presenting his entire case to the court, or [that which] operates upon matters pertaining not to the judgment itself but to the
manner in which it is procured."54chanrobleslaw

The grant of adoption over respondents should be annulled as the trial court did not validly acquire jurisdiction over the
proceedings, and the favorable decision was obtained through extrinsic fraud.
Jurisdiction over adoption proceedings
vis-a-vis the law on adoption

Petitioners argue that they should have been given notice by the trial court of the adoption, as adoption laws require their
consent as a requisite in the proceedings.

Petitioners are correct. It is settled that "the jurisdiction of the court is determined by the statute in force at the time of the
commencement of the action."55 As Jose filed the petition for adoption on August 1, 2000, it is Republic Act No. 8552 which
applies over the proceedings. The law on adoption requires that the adoption by the father of a child born out of wedlock
obtain not only the consent of his wife but also the consent of his legitimate children.

Under Article III, Section 7 of Republic Act No. 8552, the husband must first obtain the consent of his wife if he seeks to
adopt his own children born out of wedlock:

ARTICLE III
ELIGIBILITY
SEC. 7. Who May Adopt. — The following may adopt:

Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has
signified, his/her consent thereto; or
(iii) if the spouses are legally separated from each other. . . (Emphasis supplied)

The provision is mandatory. As a general rule, the husband and wife must file a joint petition for adoption. The rationale for
this is stated in In Re: Petition for Adoption of Michelle P. Lim:57chanrobleslaw

The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and the wife is
mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the
child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The
rule also insures harmony between the spouses. The law provides for several exceptions to the general rule, as in a situation
where a spouse seeks to adopt his or her own children born out of wedlock. In this instance, joint adoption is not necessary.
However, the spouse seeking to adopt must first obtain the consent of his or her spouse.

In the absence of any decree of legal separation or annulment, Jose and Rosario remained legally married despite their de
facto separation. For Jose to be eligible to adopt Jed and Regina, Rosario must first signify her consent to the adoption.
Jose, however, did not validly obtain Rosario's consent. His submission of a fraudulent affidavit of consent in her name
cannot be considered compliance of the requisites of the law. Had Rosario been given notice by the trial court of the
proceedings, she would have had a reasonable opportunity to contest the validity of the affidavit. Since her consent was not
obtained, Jose was ineligible to adopt.

The law also requires the written consent of the adopter's children if they are 10 years old or older. In Article III, Section 9 of
Republic Act No. 8552:chanRoblesvirtualLawlibrary

SEC. 9. Whose Consent is Necessary to the Adoption. — After being properly counseled and informed of his/her right to give
or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
(Emphasis supplied)

The consent of the adopter's other children is necessary as it ensures harmony among the prospective siblings. It also
sufficiently puts the other children on notice that they will have to share their parent's love and care, as well as their future
legitimes, with another person. It is undisputed that Joanne was Jose and Rosario's legitimate child and that she was over 10
years old at the time of the adoption proceedings. Her written consent, therefore, was necessary for the adoption to be valid.

To circumvent this requirement, however, Jose manifested to the trial court that he and Rosario were childless, thereby
preventing Joanne from being notified of the proceedings. As her written consent was never obtained, the adoption was not
valid. For the adoption to be valid, petitioners' consent was required by Republic Act No. 8552. Personal service of summons
should have been effected on the spouse and all legitimate children to ensure that their substantive rights are protected. It is
not enough to rely on constructive notice as in this case. Surreptitious use of procedural technicalities cannot be privileged
over substantive statutory rights.

Since the trial court failed to personally serve notice on Rosario and Joanne of the proceedings, it never validly acquired
jurisdiction.

There was extrinsic fraud

The appellate court, in denying the petition, ruled that while fraud may have been committed in this case, it was only intrinsic
fraud, rather than extrinsic fraud. This is erroneous.

In People v. Court of Appeals and Socorro Florece:59chanrobleslaw

Extrinsic fraud refers to any fraudulent act of the prevailing party in litigation committed outside of the trial of the case,
whereby the defeated party is prevented from fully exhibiting his side of the case by fraud or deception practiced on him by
his opponent, such as by keeping him away from court, by giving him a false promise of a compromise, or where the
defendant never had the knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney
fraudulently or without authority connives at his defeat.60 (Emphasis supplied)

An action for annulment based on extrinsic fraud must be brought within four years from discovery.61 Petitioners alleged that
they were made aware of the adoption only in 2005. The filing of this petition on October 18, 2007 is within the period
allowed by the rules.

The badges of fraud are present in this case. First, the petition for adoption was filed in a place that had no relation to any of
the parties. Jose was a resident of Laoag City, llocos Norte.62 Larry and Lilibeth were residents of Barangay 6, Laoag
City.63 Jed and Regina were born in San Nicolas, Ilocos Norte.64 Rosario and Joanne were residents of Parañaque City,
Manila.65 The petition for adoption, however, was filed in the Regional Trial Court of Batac, Ilocos Norte.66 The trial court
gave due course to the petition on Jose's bare allegation in his petition that he was a resident of Batac,67 even though it is
admitted in the Home Study Report that he was a practicing lawyer in Laoag City.68chanrobleslaw

Second, using the process of delayed registration,69 Jose was able to secure birth certificates for Jed and Regina showing
him to be the father and Larry as merely the informant.70 Worse still is that two different sets of fraudulent certificates were
procured: one showing that Jose and Lilibeth were married on December 4, 1986 in Manila,71 and another wherein the
portion for the mother's name was not filled in at all.72 The birth certificates of Jed and Regina from the National Statistics
Office, however, show that their father was Larry R. Rentegrado.73 These certificates are in clear contradiction to the birth
certificates submitted by Jose to the trial court in support of his petition for adoption.

Third, Jose blatantly lied to the trial court when he declared that his motivation for adoption was because he and his wife,
Rosario, were childless,74 to the prejudice of their daughter, Joanne. The consent of Rosario to the adoption was also
disputed by Rosario and alleged to be fraudulent.75chanrobleslaw

All these tactics were employed by Jose, not only to induce the trial court in approving his petition, but also to prevent
Rosario and Joanne from participating in the proceedings or opposing the petition.

The appellate court erroneously classified the fraud employed by Jose as intrinsic on the basis that they were "forged
instruments or perjured testimonies"76 presented during the trial. It failed to understand, however, that fraud is considered
intrinsic when the other party was either present at the trial or was a participant in the proceedings when such instrument or
testimony was presented in court, thus:

[I]ntrinsic fraud refers to the acts of a party at a trial that prevented a fair and just determination of the case, but the difference
is that the acts or things, like falsification and false testimony, could have been litigated and determined at the trial or
adjudication of the case. In other words, intrinsic fraud does not deprive the petitioner of his day in court because he can
guard against that kind of fraud through so many means, including a thorough trial preparation, a skillful, cross-examination,
resorting to the modes of discovery, and proper scientific or forensic applications. Indeed, forgery of documents and
evidence for use at the trial and perjury in court testimony have been regarded as not preventing the participation of any
party in the proceedings, and are not, therefore, constitutive of extrinsic fraud.77 (Emphasis supplied)

When fraud is employed by a party precisely to prevent the participation of any other interested party, as in this case, then
the fraud is extrinsic, regardless of whether the fraud was committed through the use of forged documents or perjured
testimony during the trial.

Jose's actions prevented Rosario and Joanne from having a reasonable opportunity to contest the adoption. Had Rosario
and Joanne been allowed to participate, the trial court would have hesitated to grant Jose's petition since he failed to fulfill
the necessary requirements under the law. There can be no other conclusion than that because of Jose's acts, the trial court
granted the decree of adoption under fraudulent circumstances.

The law itself provides for penal sanctions for those who violate its provisions. Under Article VII, Section 21 of Republic Act
No. 8552:chanRoblesvirtualLawlibrary

ARTICLE VII
VIOLATIONS AND PENALTIES
SEC. 21. Violations and Penalties. —

(a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine not
less than Fifty thousand pesos (P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at
the discretion of the court shall be imposed on any person who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or
other similar acts;
(ii) non-compliance with the procedures and safeguards provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who
is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prision mayor in
its medium period and a fine not exceeding Fifty thousand pesos (P50.000.00). (Emphasis supplied)

Unfortunately, Jose's death carried with it the extinguishment of any of his criminal liabilities.78 Republic Act No. 8552 also
fails to provide any provision on the status of adoption decrees if the adoption is found to have been obtained fraudulently.
Petitioners also cannot invoke Article VI, Section 19 of Republic Act No. 855279 since rescission of adoption can only be
availed of by the adoptee. Petitioners, therefore, are left with no other remedy in law other than the annulment of the
judgment.

The fraud employed in this case has been to Joanne's prejudice. There is reason to believe that Joanne has grown up having
never experienced the love and care of a father, her parents having separated a year after her birth. She has never even
benefited from any monetary support from her father. Despite all these adversities, Joanne was able to obtain a medical
degree from the University of the Philippines College of Medicine80 and is now working as a doctor in Canada.81 These
accomplishments, however, are poor substitutes if the injustice done upon her is allowed to continue.

WHEREFORE, the petition is GRANTED. The decision dated October 16, 2000 of the Regional Trial Court of Batac, Ilocos
Norte, Branch 17 in SP. Proc. No. 3445-17 is rendered NULL and VOID. SO ORDERED.

3. G.R. No. 148311. March 31, 2005

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG,
petitioner. SANDOVAL-GUTIERREZ, J.:

May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name?
This is the issue raised in the instant case.

The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor
illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26,
1994;2 that her mother is Gemma Astorga Garcia; that Stephanie has been using her mother’s middle name and surname;
and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanie’s middle name Astorga be
changed to "Garcia," her mother’s surname, and that her surname "Garcia" be changed to "Catindig," his surname.

On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus:

"After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the
petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law
as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the
grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court
further holds that the petitioner’s care and custody of the child since her birth up to the present constitute more than enough
compliance with the requirement of Article 35 of Presidential Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is
hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes,
shall henceforth be the petitioner’s legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the
Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules
of Court.

Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED."4 On April 20, 2001,
petitioner filed a motion for clarification and/or reconsideration5 praying that Stephanie should be allowed to use the surname
of her natural mother (GARCIA) as her middle name. On May 28, 2001,6 the trial court denied petitioner’s motion for
reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological
mother as his middle name.

Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her
middle name when she is subsequently adopted by her natural father.

Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because:
(1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is
customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the
name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper
name should not be violated; (5) permitting Stephanie to use the middle name "Garcia" (her mother’s surname) avoids the
stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by either the Catindig or
Garcia families.

The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to
use, as her middle name, the surname of her natural mother for the following reasons:

First, it is necessary to preserve and maintain Stephanie’s filiation with her natural mother because under Article 189 of the
Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the
future, her relationship or proof of that relationship with her natural mother should be maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What
the law does not prohibit, it allows.

Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has
been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that "the initial or surname
of the mother should immediately precede the surname of the father so that the second name, if any, will be before the
surname of the mother."7
We find merit in the petition.

Use Of Surname Is Fixed By Law –

For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in
which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from
other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing
him, or in speaking of or dealing with him.8 It is both of personal as well as public interest that every person must have a
name.

The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or
proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The
surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The
given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.9

Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname10 of an
individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married
woman or a previously married woman, or a widow, thus:

"Art. 364. Legitimate and legitimated children shall principally use the surname of the father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx
Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as ‘Mrs.’
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname.
If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue
employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the
legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or
surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and descendants, the word ‘Junior’ can be used
only by a son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
x x x"
Law Is Silent As To The Use Of
Middle Name –

As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 17611 of the Family
Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing Illegitimate Children To Use The
Surname Of Their Father," is silent as to what middle name a child may use.

The middle name or the mother’s surname is only considered in Article 375(1), quoted above, in case there is identity of
names and surnames between ascendants and descendants, in which case, the middle name or the mother’s surname shall
be added.

Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides
that "an adopted child shall bear the surname of the adopter." Also, Article 189 of the Family Code, enumerating the legal
effects of adoption, is likewise silent on the matter, thus:

"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the
surname of the adopters;

However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the
Family Code recognized the Filipino custom of adding the surname of the child’s mother as his middle name. In the Minutes
of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or
surname of the mother should immediately precede the surname of the father, thus

"Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child
because the father’s surname indicates the family to which he belongs, for which reason he would insist on the use of the
father’s surname by the child but that, if he wants to, the child may also use the surname of the mother.

Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written?
Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of
the father and permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article 364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person himself precisely because of this
misunderstanding. He then cited the following example: Alfonso Ponce Enrile’s correct surname is Ponce since the mother’s
surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez David’s family name is Gutierrez and his
mother’s surname is David but they all call him Justice David.

Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to
use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane
stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are
just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter.

Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father
should always be last because there are so many traditions like the American tradition where they like to use their second
given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name.

Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial
or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be
before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the
suggestion."12 (Emphasis supplied)

In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters."13 Again, it is
silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee
to bear the surname of the adopter, upon issuance of the decree of adoption.14

The Underlying Intent of

Adoption Is In Favor of the

Adopted Child – Adoption is defined as the process of making a child, whether related or not to the adopter, possess in
general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates between two
persons a relationship similar to that which results from legitimate paternity and filiation.16 The modern trend is to consider
adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child
with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of
the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral
responsibility, and that its underlying intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise known
as the "Domestic Adoption Act of 1998,"19 secures these rights and privileges for the adopted.20

One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and
purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23

Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a
legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as
discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as
earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the
surname of the father.

Additionally, as aptly stated by both parties, Stephanie’s continued use of her mother’s surname (Garcia) as her middle name
will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 1824, Article V of RA
8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can
well assert or claim her hereditary rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390
Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother
and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use
her mother’s surname as her middle name will not only sustain her continued loving relationship with her mother but will also
eliminate the stigma of her illegitimacy.

Liberal Construction of
Adoption Statutes In Favor Of
Adoption –

It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent
purposes of adoption.25 The interests and welfare of the adopted child are of primary and paramount consideration,26
hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of
the law.27

Lastly, Art. 10 of the New Civil Code provides that: "In case of doubt in the interpretation or application of laws, it is presumed
that the lawmaking body intended right and justice to prevail."
This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and justice
when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may
apparently be authorized by some way of interpreting the law."28

Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle
name her mother’s surname, we find no reason why she should not be allowed to do so.

WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be
allowed to use her mother’s surname "GARCIA" as her middle name.

Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED.

[G.R. No. 143989. July 14, 2003]

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO (previously referred to as DR. MELVIN S. LAHOM),
respondent.

DECISION

VITUG, J.:

The bliss of marriage and family would be to most less than complete without children. The realization could have likely
prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care Isabelitas nephew Jose Melvin Sibulo
and to bring him up as their own. At the tender age of two, Jose Melvin enjoyed the warmth, love and support of the couple
who treated the child like their own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in
1971, the couple decided to file a petition for adoption. On 05 May 1972, an order granting the petition was issued that made
all the more intense than before the feeling of affection of the spouses for Melvin. In keeping with the court order, the Civil
Registrar of Naga City changed the name Jose Melvin Sibulo to Jose Melvin Lahom.

A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom commenced a petition to rescind
the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred -

7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change his surname from Sibulo to
Lahom, to the frustrations of petitioner particularly her husband until the latter died, and even before his death he had made
known his desire to revoke respondents adoption, but was prevented by petitioners supplication, however with his further
request upon petitioner to give to charity whatever properties or interest may pertain to respondent in the future.

10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of herein petitioner, and his
records with the Professional Regulation Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978
until the present, and in all his dealings and activities in connection with his practice of his profession, he is Jose Melvin M.
Sibulo.

xxxxxxxxx

13. That herein petitioner being a widow, and living alone in this city with only her household helps to attend to her, has
yearned for the care and show of concern from a son, but respondent remained indifferent and would only come to Naga to
see her once a year.

14. That for the last three or four years, the medical check-up of petitioner in Manila became more frequent in view of a leg
ailment, and those were the times when petitioner would need most the care and support from a love one, but respondent all
the more remained callous and utterly indifferent towards petitioner which is not expected of a son.

15. That herein respondent has recently been jealous of petitioners nephews and nieces whenever they would find time to
visit her, respondent alleging that they were only motivated by their desire for some material benefits from petitioner.

16. That in view of respondents insensible attitude resulting in a strained and uncomfortable relationship between him and
petitioner, the latter has suffered wounded feelings, knowing that after all respondents only motive to his adoption is his
expectancy of his alleged rights over the properties of herein petitioner and her late husband, clearly shown by his recent
filing of Civil Case No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection towards
respondent, rendering the decree of adoption, considering respondent to be the child of petitioner, for all legal purposes, has
been negated for which reason there is no more basis for its existence, hence this petition for revocation.[1]
Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also known as the Domestic
Adoption Act, went into effect. The new statute deleted from the law the right of adopters to rescind a decree of adoption.

Section 19 of Article VI of R.A. No. 8552 now reads:

SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department if a minor
or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the
following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite
having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and
failure to comply with parental obligations.

Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s)
may disinherit the adoptee for causes provided in Article 919 of the Civil Code. (emphasis supplied)

Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had no jurisdiction over the
case and (b) that the petitioner had no cause of action in view of the aforequoted provisions of R.A. No. 8552. Petitioner
asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not retroactively apply, i.e., to cases where
the ground for rescission of the adoption vested under the regime of then Article 348[2] of the Civil Code and Article 192[3] of
the Family Code.

In an order, dated 28 April 2000, the trial court held thusly:

On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court,
having been designated Family Court in A.M. No. 99-11-07 SC.

On the matter of no cause of action, the test on the sufficiency of the facts alleged in the complaint, is whether or not,
admitting the facts alleged, the Court could render a valid judgment in accordance with the prayer of said complaint (De
Jesus, et al. vs. Belarmino, et al., 95 Phil. 365).

Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an adoption earlier granted
under the Family Code. Conformably, on the face of the petition, indeed there is lack of cause of action.

Petitioner however, insists that her right to rescind long acquired under the provisions of the Family Code should be
respected. Assuming for the sake of argument, that petitioner is entitled to rescind the adoption of respondent granted on
May 5, 1972, said right should have been exercised within the period allowed by the Rules. From the averments in the
petition, it appears clear that the legal grounds for the petition have been discovered and known to petitioner for more than
five (5) years, prior to the filing of the instant petition on December 1, 1999, hence, the action if any, had already prescribed.
(Sec. 5, Rule 100 Revised Rules of Court)

WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed.[4]

Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the following questions; viz:

1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter after the effectivity of R.A.
No. 8552?

2. In the affirmative, has the adopters action prescribed?

A brief background on the law and its origins could provide some insights on the subject. In ancient times, the Romans
undertook adoption to assure male heirs in the family.[5] The continuity of the adopters family was the primary purpose of
adoption and all matters relating to it basically focused on the rights of the adopter. There was hardly any mention about the
rights of the adopted.[6] Countries, like Greece, France, Spain and England, in an effort to preserve inheritance within the
family, neither allowed nor recognized adoption.[7] It was only much later when adoption was given an impetus in law and
still later when the welfare of the child became a paramount concern.[8] Spain itself which previously disfavored adoption
ultimately relented and accepted the Roman law concept of adoption which, subsequently, was to find its way to the
archipelago. The Americans came and introduced their own ideas on adoption which, unlike most countries in Europe, made
the interests of the child an overriding consideration.[9] In the early part of the century just passed, the rights of children
invited universal attention; the Geneva Declaration of Rights of the Child of 1924 and the Universal Declaration of Human
Rights of 1948,[10] followed by the United Nations Declarations of the Rights of the Child,[11] were written instruments that
would also protect and safeguard the rights of adopted children. The Civil Code of the Philippines[12] of 1950 on adoption,
later modified by the Child and Youth Welfare Code[13] and then by the Family Code of the Philippines,[14] gave immediate
statutory acknowledgment to the rights of the adopted. In 1989, the United Nations initiated the Convention of the Rights of
the Child. The Philippines, a State Party to the Convention, accepted the principle that adoption was impressed with social
and moral responsibility, and that its underlying intent was geared to favor the adopted child. R.A. No. 8552 secured these
rights and privileges for the adopted. Most importantly, it affirmed the legitimate status of the adopted child, not only in his
new family but also in the society as well. The new law withdrew the right of an adopter to rescind the adoption decree and
gave to the adopted child the sole right to sever the legal ties created by adoption.

Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the adoption decree, nor
deprive the trial court of its jurisdiction to hear the case, both being vested under the Civil Code and the Family Code, the
laws then in force.

The concept of vested right is a consequence of the constitutional guaranty of due process[15] that expresses a present fixed
interest which in right reason and natural justice is protected against arbitrary state action;[16] it includes not only legal or
equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become
vested.[17] Rights are considered vested when the right to enjoyment is a present interest,[18] absolute, unconditional, and
perfect[19] or fixed and irrefutable.

In Republic vs. Court of Appeals,[20] a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on 02 February 1988
when the Child and Youth Welfare Code (Presidential Decree No. 603) allowed an adoption to be sought by either spouse or
both of them. After the trial court had rendered its decision and while the case was still pending on appeal, the Family Code
of the Philippines (Executive Order No. 209), mandating joint adoption by the husband and wife, took effect. Petitioner
Republic argued that the case should be dismissed for having been filed by Mrs. Bobiles alone and without being joined by
the husband. The Court concluded that the jurisdiction of the court is determined by the statute in force at the time of the
commencement of the action. The petition to adopt Jason, having been filed with the court at the time when P.D. No. 603
was still in effect, the right of Mrs. Bobiles to file the petition, without being joined by her husband, according to the Court had
become vested. In Republic vs. Miller,[21] spouses Claude and Jumrus Miller, both aliens, sought to adopt Michael
Madayag. On 29 July 1988, the couple filed a petition to formalize Michaels adoption having theretofore been taken into their
care. At the time the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree of adoption and while on
appeal before the Court of Appeals, the Family Code was enacted into law on 08 August 1988 disqualifying aliens from
adopting Filipino children. The Republic then prayed for the withdrawal of the adoption decree. In discarding the argument
posed by the Republic, the Supreme Court ruled that the controversy should be resolved in the light of the law governing at
the time the petition was filed.

It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the decree of adoption
granted in 1975. By then, the new law,[22] had already abrogated and repealed the right of an adopter under the Civil Code
and the Family Code to rescind a decree of adoption. Consistently with its earlier pronouncements, the Court should now
hold that the action for rescission of the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come
into force, no longer could be pursued.

Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the fiveyear bar rule
under Rule 100[23] of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the
lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements
of a vested right entitled to protection. It must also be acknowledged that a person has no vested right in statutory
privileges.[24] While adoption has often been referred to in the context of a right, the privilege to adopt is itself not naturally
innate or fundamental but rather a right merely created by statute.[25] It is a privilege that is governed by the states
determination on what it may deem to be for the best interest and welfare of the child.[26] Matters relating to adoption,
including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to regulation by the State.[27]
Concomitantly, a right of action given by statute may be taken away at anytime before it has been exercised.[28]

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption decree even
in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court
to apply the law. Dura lex sed lex would be the hackneyed truism that those caught in the law have to live with. It is still
noteworthy, however, that an adopter, while barred from severing the legal ties of adoption, can always for valid reasons
cause the forfeiture of certain benefits otherwise accruing to an undeserving child. For instance, upon the grounds
recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may freely exclude
him from having a share in the disposable portion of his estate.

WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs.

SO ORDERED.

RULE 102 HABEAS CORPUS

1. G.R. No. 182497 June 29, 2010

NURHIDA JUHURI AMPATUAN, Petitioner, vs. JUDGE VIRGILIO V. MACARAIG, REGIONAL TRIAL COURT, MANILA,
BRANCH 37, DIRECTOR GENERAL AVELINO RAZON, JR., DIRECTOR GEARY BARIAS, PSSUPT. CO YEE M. CO, JR.
and POLICE CHIEF INSPECTOR AGAPITO QUIMSON, Respondents. PEREZ, J.:

Before this Court is a Petition for Certiorari under Rule 651 of the Rules of Court assailing the Order dated 25 April 2008 of
the Regional Trial Court (RTC) of Manila, Branch 37, in Special Proceeding No. 08-119132 which denied the petition for
Habeas Corpus filed by herein Petitioner Nurhida Juhuri Ampatuan in behalf of her husband Police Officer 1 Basser B.
Ampatuan2 (PO1 Ampatuan).
Petitioner alleged in her petition that her husband PO1 Ampatuan was assigned at Sultan Kudarat Municipal Police Station.
On 14 April 2008, he was asked by his Chief of Police to report to the Provincial Director of Shariff Kabunsuan,
Superintendent Esmael Pua Ali (Supt. Ali). The latter brought PO1 Ampatuan to Superintendent Piang Adam, Provincial
Director of the Philippine National Police (PNP) Maguindanao. PO1 Ampatuan was directed to stay at the Police Provincial
Office of Maguindanao without being informed of the cause of his restraint. The next day, 15 April 2008, PO1 Ampatuan was
brought to the General Santos City Airport and was made to board a Philippine Airlines plane bound for Manila. Upon landing
at the Manila Domestic Airport, PO1 Ampatuan was turned over to policemen of Manila and brought to Manila Mayor Alfredo
Lim by Police Director Geary Barias and General Roberto Rosales. A press briefing was then conducted where it was
announced that PO1 Ampatuan was arrested for the killing of two Commission on Elections (COMELEC) Officials. He was
then detained at the Police Jail in United Nations Avenue, Manila. Thereafter, PO1 Ampatuan was brought to inquest
Prosecutor Renato Gonzaga of the Office of the City Prosecutor of Manila due to the alleged murder of Atty. Alioden D.
Dalaig, head of the Law Department of the COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over to the Regional
Headquarters Support Group in Camp Bagong Diwa, Taguig City.3

Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor Nelson Salva ordered the release for further
investigation of PO1 Ampatuan.4 The Order was approved by the City Prosecutor of Manila. But Police Senior
Superintendent Co Yee Co, Jr., and Police Chief Inspector Agapito Quimson refused to release PO1 Ampatuan.

This prompted Petitioner to file the petition for writ of habeas corpus in the RTC of Manila, Branch 37.5

Private respondents had another version of the antecedent facts. They narrated that at around 7:08 o’clock in the evening of
10 November 2007, a sixty-four-year-old man, later identified as Atty. Alioden D. Dalaig, Head of the COMELEC Legal
Department, was killed at the corner of M. H. Del Pilar and Pedro Gil Streets, Ermita, Manila. Investigation conducted by the
Manila Police District (MPD) Homicide Section yielded the identity of the male perpetrator as PO1 Ampatuan. Consequently,
PO1 Ampatuan was commanded to the MPD District Director for proper disposition. Likewise, inquest proceedings were
conducted by the Manila Prosecutor’s Office.

On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto, rendered his Pre-Charge Evaluation Report against
PO1 Ampatuan, finding probable cause to charge PO1 Ampatuan with Grave Misconduct (Murder) and recommending that
said PO1 Ampatuan be subjected to summary hearing.

On even date, a charge sheet for Grave Misconduct was executed against PO1 Ampatuan, the accusatory portion of which
reads:

CHARGE SHEET

THE UNDERSIGNED NOMINAL COMPLAINANT hereby charges above-named respondent of the administrative offense of
Grave Misconduct (murder) pursuant to Section 52 of R.A. 85516 in relation to NAPOLCOM Memorandum Circular 93-024,
committed as follows:

That on or about 7:08 in the evening of November 10, 2007, in M.H. Del Pilar and Pedro Gil St., Ermita, Manila, above-
named respondent while being an active member of the PNP and within the jurisdiction of this office, armed with a cal .45
pistol, with intent to kill, did then and there willfully, unlawfully and feloniously, shot Atty. Alioden D. Dalaig, Jr., COMELEC
official on the different parts of his body, thereby inflicting upon the latter mortal gunshot wounds which directly cause (sic)
his death.

Acts contrary to the existing PNP Laws rules and Regulations.7

Also, through a Memorandum dated 18 April 2008, Police Director General Avelino I. Razon, Jr. directed the Regional
Director of the National Capital Regional Police Office (NCRPO) to place PO1 Ampatuan under restrictive custody, thus:

1. Reference: Memo from that Office dated April 15, 2008 re Arrest of PO1 Busser Ampatuan, suspect in the killing of Atty.
Alioden Dalaig and Atty. Wynee Asdala, both COMELEC Legal Officers.

2. This pertains to the power of the Chief, PNP embodied in Section 52 of RA 8551, to place police personnel under
restrictive custody during the pendency of a grave administrative case filed against him or even after the filing of a criminal
complaint, grave in nature, against such police personnel.

3. In this connection, you are hereby directed to place PO1 Busser Ampatuan, suspect in the killing of Atty. Alioden Dalaig
and Atty. Wynee Asdala, both COMELEC Legal Officers, under your restrictive custody.

4. For strict compliance.8

On 19 April 2008, through a Memorandum Request dated 18 April 2008, respondent Police Director Geary L. Barias
requested for the creation of the Summary Hearing Board to hear the case of PO1 Ampatuan.9

On 20 April 2008, Special Order No. 921 was issued by Police Director Edgardo E. Acuña, placing PO1 Ampatuan under
restrictive custody of the Regional Director, NCRPO, effective 19 April 2008. Said Special Order No. 921, reads:

Restrictive Custody

PO1 Basser B. Ampatuan 128677, is placed under restrictive custody of the Regional Director, NCRPO effective April 19,
2008. (Reference: Memorandum from CPNP dated 18 April 2008).
BY COMMAND OF POLICE DIRECTOR GENERAL RAZON:10

Meanwhile, on 21 April 2008, the City Prosecutor of Manila recommended that the case against PO1 Ampatuan be set for
further investigation and that the latter be released from custody unless he is being held for other charges/legal grounds.11

Armed with the 21 April 2008 recommendation of the Manila City’s Prosecution Office, petitioner, who is the wife of PO1
Ampatuan, filed a Petition for the Issuance of a Writ of Habeas Corpus before the RTC of Manila on 22 April 2008. The
petition was docketed as Special Proceeding No. 08-119132 and was raffled to Branch 37.

On 24 April 2008, finding the petition to be sufficient in form and substance, respondent Judge Virgilio V. Macaraig ordered
the issuance of a writ of habeas corpus commanding therein respondents to produce the body of PO1 Ampatuan and
directing said respondents to show cause why they are withholding or restraining the liberty of PO1 Ampatuan.12

On 25 April 2008, the RTC resolved the Petition in its Order which reads:

Essentially, counsels for petitioner insists that PO1 Basser Ampatuan is being illegally detained by the respondents despite
the order of release of Chief Inquest Prosecutor Nelson Salva dated April 21, 2008. They further claim that as of April 23,
2008, no administrative case was filed against PO1 Ampatuan.

Respondents, while admitting that to date no criminal case was filed against PO1 Ampatuan, assert that the latter is under
restrictive custody since he is facing an administrative case for grave misconduct. They submitted to this Court the Pre-
charge Evaluation Report and Charge Sheet. Further, in support of their position, respondents cited the case of SPO2
Manalo, et al. v. Hon. Calderon, G.R. No. 178920 claiming that habeas corpus will not lie for a PNP personnel under
restrictive custody. They claim that this is authorized under Section 52, Par. 4 of R.A. 8551 authorizing the Chief of PNP to
place the PNP personnel under restrictive custody during the pendency of administrative case for grave misconduct.

Petitioner countered that the administrative case filed against PO1 Ampatuan was ante-dated to make it appear that there
was such a case filed before April 23, 2008.

The function of habeas corpus is to determine the legality of one’s detention, meaning, if there is sufficient cause for
deprivation or confinement and if there is none to discharge him at once. For habeas corpus to issue, the restraint of liberty
must be in the nature of illegal and involuntary deprivation of freedom which must be actual and effective, not nominal or
moral.

Granting arguendo that the administrative case was ante-dated, the Court cannot simply ignore the filing of an administrative
case filed against PO1 Ampatuan. It cannot be denied that the PNP has its own administrative disciplinary mechanism and
as clearly pointed out by the respondents, the Chief PNP is authorized to place PO1 Ampatuan under restrictive custody
pursuant to Section 52, Par. 4 of R.A. 8551.

The filing of the administrative case against PO1 Ampatuan is a process done by the PNP and this Court has no authority to
order the release of the subject police officer.

Lastly, anent the contention of the petitioner that the letter resignation of PO1 Ampatuan has rendered the administrative
case moot and academic, the same could not be accepted by this Court.1avvph!1 It must be stressed that the resignation
has not been acted (sic) by the appropriate police officials of the PNP, and that the administrative case was filed while PO1
Ampatuan is still in the active status of the PNP.

WHEREFORE, premises considered, the petition for habeas corpus is hereby DISMISSED.13

Distressed, petitioner is now before this Court via a Petition for Certiorari under Rule 65 of the Rules of Court to question the
validity of the RTC Order dated 25 April 2008. The issues are:

I. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT FAILED TO CONSIDER THAT THE
ARREST AND DETENTION OF PO1 BASSER B. AMPATUAN WAS MADE WITHOUT ANY WARRANT AND THEREFORE,
ILLEGAL;

II. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT CONCEDED THE AUTHORITY OF
RESPONDENT AVELINO RAZON, JR. UNDER SEC. 52, PAR. 4, R.A. 8551 TO PLACE AMPATUAN UNDER
RESTRICTIVE CUSTODY FOR ADMINISTRATIVE PROCEEDINGS;

III. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT SHIRKED FROM ITS JUDICIAL DUTY
TO ORDER THE RELEASE OF PO1 AMPATUAN FROM THE CUSTODY OF RESPONDENTS MAMANG PULIS.14

Essentially, a writ of habeas corpus applies to all cases of illegal confinement or detention by which any person is deprived of
his liberty.15

Rule 102 of the 1997 Rules of Court sets forth the procedure to be followed in the issuance of the writ. The Rule provides:

RULE 102 - HABEAS CORPUS

SECTION 1. To what habeas corpus extends. – Except as otherwise expressly provided by law, the writ of habeas corpus
shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto.
SEC 2. Who may grant the writ. – The writ of habeas corpus may be granted by the Supreme Court, or any member thereof,
on any day and at any time, or by the Court of Appeals or any member thereof in the instances authorized by law, and if so
granted it shall be enforceable anywhere in the Philippines, and may be made returnable before the court or any member
thereof, or before a Court of First Instance, or any judge thereof for hearing and decision on the merits. It may also be
granted by a Court of First Instance, or a judge thereof, on any day and at any time, and returnable before himself,
enforceable only within his judicial district.

SEC. 4. When writ not allowed or discharge authorized. – If it appears that the person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality
or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person
charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

The objective of the writ is to determine whether the confinement or detention is valid or lawful. If it is, the writ cannot be
issued. What is to be inquired into is the legality of a person's detention as of, at the earliest, the filing of the application for
the writ of habeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events,
such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application.16

Plainly stated, the writ obtains immediate relief for those who have been illegally confined or imprisoned without sufficient
cause. The writ, however, should not be issued when the custody over the person is by virtue of a judicial process or a valid
judgment. The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such relief is illegally
deprived of his freedom of movement or placed under some form of illegal restraint. If an individual’s liberty is restrained via
some legal process, the writ of habeas corpus is unavailing.18 Fundamentally, in order to justify the grant of the writ of
habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action.19

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime
specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral,
illegal restraint of liberty. The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is
to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient.20

In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the petitioner is being restrained
of his liberty. If he is not, the writ will be refused. Inquiry into the cause of detention will proceed only where such restraint
exists. If the alleged cause is thereafter found to be unlawful, then the writ should be granted and the petitioner discharged.
Needless to state, if otherwise, again the writ will be refused.21

While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation on the filing of
the petition. Judicial discretion is called for in its issuance and it must be clear to the judge to whom the petition is presented
that, prima facie, the petitioner is entitled to the writ. It is only if the court is satisfied that a person is being unlawfully
restrained of his liberty will the petition for habeas corpus be granted. If the respondents are not detaining or restraining the
applicant or the person in whose behalf the petition is filed, the petition should be dismissed.22

Petitioner contends that when PO1 Ampatuan was placed under the custody of respondents on 20 April 2008, there was yet
no administrative case filed against him. When the release order of Chief Inquest Prosecutor Nelson Salva was served upon
respondents on 21 April 2008, there was still no administrative case filed against PO1 Ampatuan. She also argues that the
arrest on 14 April 2008 of PO1 Ampatuan in Shariff Kabunsuan was illegal because there was no warrant of arrest issued by
any judicial authority against him.

On the other hand, respondents, in their Comment23 filed by the Office of the Solicitor General, argue that the trial court
correctly denied the subject petition. Respondents maintain that while the Office of the City Prosecutor of Manila had
recommended that PO1 Ampatuan be released from custody, said recommendation was made only insofar as the criminal
action for murder that was filed with the prosecution office is concerned and is without prejudice to other legal grounds for
which he may be held under custody. In the instant case, PO1 Ampatuan is also facing administrative charges for Grave
Misconduct. They cited the case of Manalo v. Calderon,24 where this Court held that a petition for habeas corpus will be
given due course only if it shows that petitioner is being detained or restrained of his liberty unlawfully, but a restrictive
custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of
illegal detention or restraint of liberty.25

The Solicitor General is correct.

In this case, PO1 Ampatuan has been placed under Restrictive Custody. Republic Act No. 6975 (also known as the
Department of Interior and Local Government Act of 1990), as amended by Republic Act No. 8551 (also known as the
Philippine National Police Reform and Reorganization Act of 1998), clearly provides that members of the police force are
subject to the administrative disciplinary machinery of the PNP. Section 41(b) of the said law enumerates the disciplinary
actions, including restrictive custody that may be imposed by duly designated supervisors and equivalent officers of the PNP
as a matter of internal discipline. The pertinent provision of Republic Act No. 8551 reads:

Sec. 52 – x x x.

4. The Chief of the PNP shall have the power to impose the disciplinary punishment of dismissal from the service;
suspension or forfeiture of salary; or any combination thereof for a period not exceeding one hundred eighty (180) days.
Provided, further, That the Chief of the PNP shall have the authority to place police personnel under restrictive custody
during the pendency of a grave administrative case filed against him or even after the filing of a criminal complaint, grave in
nature, against such police personnel. [Emphasis ours].

Given that PO1 Ampatuan has been placed under restrictive custody, such constitutes a valid argument for his continued
detention. This Court has held that a restrictive custody and monitoring of movements or whereabouts of police officers
under investigation by their superiors is not a form of illegal detention or restraint of liberty.26

Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective
restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP
authorities that the police officers concerned are always accounted for.27

Since the basis of PO1 Ampatuan’s restrictive custody is the administrative case filed against him, his remedy is within such
administrative process.

We likewise note that PO1 Ampatuan has been under restrictive custody since 19 April 2008. To date, the administrative
case against him should have already been resolved and the issue of his restrictive custody should have been rendered
moot and academic, in accordance with Section 55 of Republic Act No. 8551, which provides:

SEC. 55. Section 47 of Republic Act No. 6975 is hereby amended to read as follows:

Sec. 47. Preventive Suspension Pending Criminal Case. – Upon the filing of a complaint or information sufficient in form and
substance against a member of the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day
or more, the court shall immediately suspend the accused from office for a period not exceeding ninety (90) days from
arraignment: Provided, however, That if it can be shown by evidence that the accused is harassing the complainant and/or
witnesses, the court may order the preventive suspension of the accused PNP member even if the charge is punishable by a
penalty lower than six (6) years and one (1) day: Provided, further, That the preventive suspension shall not be more than
ninety (90) days except if the delay in the disposition of the case is due to the fault, negligence or petitions of the respondent:
Provided, finally, That such preventive suspension may be sooner lifted by the court in the exigency of the service upon
recommendation of the Chief, PNP. Such case shall be subject to continuous trial and shall be terminated within ninety (90)
days from arraignment of the accused. (Emphasis supplied.)

Having conceded that there is no grave abuse of discretion on the part of the trial court, we have to dismiss the petition. In
sum, petitioner is unable to discharge the burden of showing that she is entitled to the issuance of the writ prayed for in
behalf of her husband, PO1 Ampatuan. The petition fails to show on its face that the latter is unlawfully deprived of his liberty
guaranteed and enshrined in the Constitution.

WHEREFORE, premises considered, the instant petition is DISMISSED for lack of merit. Costs against petitioner. SO
ORDERED.

2. G.R. No. 168728 August 2, 2007

SAMUEL BARREDO y GOLANI, Petitioner, vs. HON. VICENTE VINARAO, Director, Bureau of Corrections,
Respondent. CORONA, J.:

This is a petition for the issuance of a writ of habeas corpus. Petitioner Samuel Barredo y Golani prays for his release from
the maximum security compound of the New Bilibid Prison in Muntinlupa City on the ground that he has already served the
sentence imposed on him in Criminal Case Nos. Q-92-38559 and Q-92-38560.

Criminal Case No. Q-92-385591 was for carnapping2 while Criminal Case No. Q-92-38560 was for illegal possession of
firearms.3 Both cases were filed in the Regional Trial Court (RTC) of Quezon City, Branch 103.4

The cases were tried jointly. After trial, the court rendered a joint decision finding petitioner guilty of both charges. Relevant
parts of the dispositive portion read:

ACCORDINGLY, judgment is hereby rendered in Q-92-38559 finding Samuel Barredo,5 xxx GUILTY beyond reasonable
doubt xxx of the crime of Carnapping aggravated and qualified by the frustrated killing of Ciriaco Rosales and [he is] hereby
sentenced to undergo an imprisonment term of THIRTY (30) YEARS;

In Q-92-38560, Samuel Barredo is hereby found GUILTY as principal beyond reasonable doubt of the crime of violation of
P.D. 1866 and he is hereby sentenced to an imprisonment term of EIGHTEEN (18) YEARS and ONE (1) DAY of Reclusion
Temporal.SO ORDERED.6

No appeal was made, hence, the decision became final and executory. Petitioner was committed to the custody of the
Quezon City Jail (as detention prisoner) on March 15, 1993.7 After conviction, he was transferred to and confined at the
maximum security compound of the New Bilibid Prison in Muntinlupa City on July 23, 19948 where he is now still detained.

According to petitioner, as of August 2, 2004, he already served a total of 18 years. He claims that, on October 9, 2001, the
Board of Pardons and Parole passed a resolution recommending the commutation of his sentence to a period of from 15 to
20 years. He further points out that, based on the Bureau of Corrections’ revised computation table for determining the time
to be credited prisoners for good conduct while serving sentence, he should only serve 14 years, 9 months and 18 days.
Thus, this petition.

Is petitioner entitled to the writ of habeas corpus? No.

Writ of Habeas Corpus Will Not Issue If Detention Is By Virtue Of Valid Judgment

The writ of habeas corpus applies to all cases of illegal confinement, detention or deprivation of liberty.9 It was devised as a
speedy and effective remedy to relieve persons from unlawful restraint.10 More specifically, it is a remedy to obtain
immediate relief for those who may have been illegally confined or imprisoned without sufficient cause and thus deliver them
from unlawful custody.11 It is therefore a writ of inquiry intended to test the circumstances under which a person is
detained.12

The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.13
However, the writ may be allowed as a post-conviction remedy when the proceedings leading to the conviction were
attended by any of the following exceptional circumstances:

(1) there was a deprivation of a constitutional right resulting in the restraint of a person;
(2) the court had no jurisdiction to impose the sentence or
(3) the imposed penalty was excessive, thus voiding the sentence as to such excess.14

The rule is that if a person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record the writ of habeas corpus will not be allowed.15 Thus, Section 4,
Rule 102 of the Rules of Court provides:

Sec. 4. When writ not allowed or discharge authorized. – If it appears that the person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality
or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person
charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.
(emphasis supplied)

Petitioner was detained pursuant to a final judgment of the Quezon City RTC convicting him for the crimes of carnapping and
illegal possession of firearms. He is therefore not entitled to the writ of habeas corpus.

Sentence is Void Insofar As It Failed to Impose an Indeterminate Sentence

As correctly pointed out by the Solicitor General, however, the trial court erred in imposing a straight penalty of imprisonment
for 30 years in the carnapping case. The sentence imposed by the trial court deprived petitioner of the benefits of the
Indeterminate Sentence Law.16 Hence, it was void insofar as it failed to impose an indeterminate sentence.

Since the crime was committed by means of violence against or intimidation of persons, the imposable penalty under the
Anti-Carnapping Act of 1972 was imprisonment for not less than 17 years and 4 months and not more than 30 years.17
Furthermore, pursuant to the Indeterminate Sentence Law, the court should have imposed an indeterminate sentence with a
maximum term not exceeding the maximum fixed by the special penal law and a minimum term not less than the minimum
term prescribed by the same law.18 Therefore, the proper imposable penalty is imprisonment not for 30 years but for an
indeterminate sentence of 17 years and 4 months as minimum to 30 years as maximum.19

Reduction of Penalty Under Amendatory Law Should be Applied Retroactively

Petitioner is likewise entitled to a reduction of the penalty imposed upon him in the illegal possession of firearms case in view
of the passage of RA 8294. The law reduced the penalty for simple illegal possession of firearms to prision correccional in its
maximum period and a fine of not less than ₱15,000. Being favorable to petitioner, RA 8294 should be applied retroactively
to benefit him.20 Further applying the Indeterminate Sentence Law, the proper imposable penalty is imprisonment for 4
years, 2 months and 1 day as minimum to 6 years as maximum.21

Petitioner Has Not Yet Served The Penalties Imposed on Him

Petitioner has to serve the penalties imposed on him successively in the order of their severity.22 Hence, he has to first
serve the more severe penalty, i.e., that imposed in the carnapping case: imprisonment for 17 years and 4 months as
minimum to 30 years as maximum. Only after he has served this will he commence serving the less severe penalty imposed
in the illegal possession of firearms case: imprisonment for 4 years, 2 months and 1 day as minimum to 6 years as
maximum.23

Per the certification issued by the Bureau of Corrections,24 as of April 3, 2007, petitioner has served a total of 18 years, 4
months and 26 days, inclusive of his good conduct time allowance and preventive imprisonment. Thus, while he has already
served the minimum penalty in the carnapping case, he has not yet served the minimum penalty in the illegal possession of
firearms case. Consequently, petitioner is not entitled to the issuance of a writ of habeas corpus. Neither is he eligible for
parole because only prisoners who have served the minimum penalty imposed on them may be released on parole on such
terms and conditions as may be prescribed by the Board of Pardons and Parole.25

Petitioner’s claim that the Board of Pardons and Parole passed a resolution recommending the commutation of his sentence
does not justify the issuance of the writ of habeas corpus. Commutation of sentence is a prerogative of the Chief
Executive.26 Hence, even if petitioner’s claim were true, the recommendation of the Bureau of Pardons and Parole was just
that, a mere recommendation. Until and unless approved by the President, there is no commutation to speak of. Accordingly,
the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

3. G.R. No. 160922 February 27, 2006

JEANY-VI G. KIANI, Petitioner, vs.THE BUREAU OF IMMIGRATION and DEPORTATION (BID); EDGARDO CABRERA,
ELISEO EXCONDE and JOSE VALE, JR., Respondents. CALLEJO, SR., J.:

This is a Petition for Review on Certiorari for the nullification of the decision1 of the Court of Appeals (CA) in CA-G.R. No.
74484, dismissing the appeal of Jeany-Vi G. Kiani, which assailed the Order of the Regional Trial Court (RTC) of Manila,
Branch 8, in Special Proceedings (Sp. Proc.) No. 02-103935, dismissing her Petition for Habeas Corpus.

On June 19, 2002, Javed Kiani, a British national but a Pakistani by birth2 reported to the Rodriguez, Rizal Police Station that
his friends, Iqbal Singh and Balbir Singh, had been forcibly taken by four (4) armed men from their residence at Balita,
Rodriguez, Rizal.3 A couple of days later, then Commissioner Andrea D. Domingo of the Bureau of Immigration and
Deportation (BID) issued Mission Order No. ADD-02-203 based on Executive Order No. 287 of former President Joseph
Estrada. In said Order, appropriate officers of the Bureau were directed to conduct verification/validation of the admission
status and activities of Javed Kiani, and, if found to have violated the Philippine Immigration Act of 1940, as amended, to
immediately place him under arrest.4 Per records of the BID, Javed Kiani was married to a Filipina, Jeany-Vi Kiani, on July
27, 1988. He was admitted as an immigrant and was issued a permanent resident visa on March 17, 1993.5

A week later, on June 27, 2002, Javed Kiani was arrested at Felicidad Village, Montalban, Rizal. The arresting officers,
Eduardo Cabrera, Eliseo Exconde and Jose Vale, Jr., operatives of the Bureau of Intelligence of the BID, relied on
information from Iqbal and Balbir Singh, who pointed to Javed Kiani as the one who had furnished them with fake Alien
Certificate Registration (ACR) and Immigrant Certificate Registration (ICR). Apparently, the forms used were not official BID
forms.6

On July 1, 2002, the BID Prosecutor filed a Charge Sheet7 against "Javed Kiani alias Ahmad Singh" before the Board of
Special Inquiry (BSI) for violation of the Philippine Immigration Act of 1940, as amended, particularly Section 37(a)(7) and
Section 45 thereof. The case was docketed as D.C. No. ADD-02-080. The Charge Sheet reads:

Records show that the above-named subject was arrested on June 27, 2002 by Bureau’s Intelligence operatives at Felicidad
Village, Montalban, Rizal, pursuant to Mission Order No. ADD-02-203, dated June 20, 2002.

Records also show that subject national was positively identified by Indian nationals Balbir Singh and Iqbal Singh when they
were arrested by the same operatives on June 18, 2002 as the person who gave them spurious immigration documents and
as their protector evidenced by copies of the ACRs and ICRs of Balbir and Iqbal Singh, which were certified by Mr. Reynaldo
Joson as "fake." Additionally, Mr. Joson certified that the forms used in the forgery/falsification are not official forms of this
Bureau.

Contrary to law. On the same day, July 1, 2002, the Board of Commissioners (BOC) conducted a summary proceeding and
issued a Summary Deportation Order revoking the visa issued to Javed Kiani. The Order reads in part:

Considering the seriousness of the charge/s and the evidence in support thereof, respondent, whose Temporary Residence
Visa is hereby ordered cancelled and revoked, is hereby ordered summarily deported to his country of origin, subject to PNP,
Court and NBI clearances and payment of an administrative fine in the amount of ₱50,000.00.9

The next day, July 2, 2002, Javed Kiani’s wife, Jeany-Vi, filed a Petition for a Writ of Habeas Corpus10 for and in behalf of
her husband before the RTC of Manila, naming the BID and its intelligence officers as Respondents. She prayed that the
court issue a writ of habeas corpus directing respondents to produce the person of Javed Kiani before it "in the soonest time
possible and to show the cause or legal justification for the latter’s detention and imprisonment, if any; and for such other or
further reliefs as may be deemed just and equitable under the premises." She further alleged that her husband had
intervened in the arrest of Iqbal and Balbir Singh, and that the arresting officers resented such intervention. She insisted that
the arrest and detention of her husband were bereft of factual and legal basis, since at the time, no deportation order had yet
been issued against him. Citing the ruling of this Court in Board of Commissioners v. Dela Rosa,11 she alleged that the
Mission Order issued by the Immigration Commissioner was void. The case was docketed as Sp. Proc. No. 02-103935.12
Javed Kiani had been detained at the BID Detention Center, Camp Bagong Diwa, Taguig, Metro Manila since July 3,
2002.13

On July 18, 2002, the RTC issued an Order14 granting bail for Javed Kiani on a bond of ₱50,000.00, and ordered
respondent BID Intelligence Officers to file their return on the writ. The respondents complied, and alleged in their return that
Javed Kiani had already been charged before the BOC and ordered deported; hence, the petition had become moot and
academic. They refused to release Kiani although the bond had already been posted.15 Instead, the respondents, through
the Office of the Solicitor General (OSG), filed an Omnibus Motion16 for the reconsideration of the Order on the following
grounds: (1) under Section 37(9)(e) of Commonwealth Act 613, as amended, it is the Commissioner of Immigration, and not
the court, who has authority to grant bail in a deportation proceeding; (2) the court has no authority to grant the petition
considering that Javed Kiani was lawfully charged with violation of the Philippine Immigration Act of 1940, as amended,
before the BSI; and (3) the BOC has subsequently issued a Summary Deportation Order.

On October 28, 2002, the RTC issued an Order17 granting the motion and setting aside its July 18, 2002 Order. In
dismissing the petition, it ruled that Jeany-Vi was barred from questioning the legality of the arrest and detention of her
husband, following the filing of the Charge Sheet with the BSI; as such, there was no justification for the issuance of a writ of
habeas corpus. It declared that, as gleaned from the return of the writ filed by the respondents, Javed Kiani was lawfully
charged with violation of the Philippine Immigration Act of 1940, as amended; hence, the Summary Deportation Order issued
by the BOC was valid.

The RTC also ruled that the proper remedy of Javed Kiani from the Summary Deportation Order of the BOC was to file a
petition for review with the CA under Rule 43 of the Rules of Court (and not a petition for a writ of habeas corpus before it),
as it had no jurisdiction to take cognizance of and reverse the Summary Deportation Order issued by the BOC.
Jeany-Vi appealed the RTC’s Order of July 18, 2002 to the CA, in which she raised the following issues:

A. WHETHER OR NOT THE ARREST OF JAVED KIANI ON 27 JUNE 2002 AND HIS SUBSEQUENT DETENTION BY THE
RESPONDENTS-APPELLEES WERE VALID AND/OR LEGAL.

B. WHETHER OR NOT THE SUPPOSED ISSUANCE OF A SUMMARY DEPORTATION ORDER AGAINST JAVED KIANI
HAS THE EFFECT OF LEGALIZING AND/OR VALIDATING HIS CONTINUED DETENTION, THEREBY RENDERING THE
HABEAS CORPUS PETITION DISMISSIBLE.18

On May 8, 2003 the CA rendered judgment dismissing the appeal.19 The CA declared that a Petition for a Writ of Habeas
Corpus can no longer be allowed since the party sought to be released had been charged before the BSI. Assuming that
Javed Kiani’s detention or his arrest was illegal, any incipient infirmity thereon was cured by the filing of the Charge Sheet
against him. The appellate court cited the ruling of this Court in Velasco v. Court of Appeals.20 It likewise affirmed the ruling
of the RTC that it had no jurisdiction to take cognizance of and reverse the Summary Deportation Order of the BOC, that the
remedy of petitioner from the Summary Deportation Order of the BOC was to file a petition for review with the CA under Rule
43 of the 1997 Rules of Civil Procedure, and that her failure to do so rendered said Order final and executory.

Jeany-Vi received a copy of the CA Decision on May 22, 2003, and filed a Motion for Reconsideration thereof on June 6,
2003. She alleged that since the Summary Deportation Order of the BOC had not yet been promulgated by the BSI, the
period to appeal was yet to commence, and as such, said order could not become final and executory. Even assuming that
such order had become final and executory, her husband was entitled to a writ of habeas corpus since he was deprived of
his right to due process.

On November 21, 2003, the appellate court resolved to deny the motion.21 Jeany-Vi received a copy of the Resolution on
December 1, 2003.

On January 15, 2004, petitioner filed the instant petition for review on certiorari under Rule 45 of the Revised Rules of Court,
alleging that:

A. THE COURT OF APPEALS ERRED IN FAILING TO NULLIFY AND TO DECLARE AS ILLEGAL THE ACTUAL ARREST
AND SUBSEQUENT DETENTION OF JAVED KIANI.

B. THE COURT OF APPEALS ERRED IN FAILING TO DECLARE AS NULL AND VOID AB INITIO THE PUTATIVE
SUMMARY DEPORTATION ORDER AGAINST JAVED KIANI.

C. THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE SUMMARY DEPORTATION ORDER AGAINST
JAVED KIANI HAS ALREADY BECOME FINAL AND EXECUTORY.

D. THE COURT OF APPEALS ERRED IN CONCLUDING THAT HABEAS CORPUS IS NOT THE CORRECT OR PROPER
REMEDY AVAILABLE TO THE HEREIN PETITIONER.22

Petitioner avers that the Mission Order issued by the Immigration Commissioner for the investigation and arrest of her
husband, Javed Kiani, is null and void. She points out that when said Order was issued, the BOC had not yet made a
determination as to the existence of a lawful ground for his deportation. She further avers that the Immigration Commissioner
has no power to issue a Mission Order or Warrant of Arrest solely for the purpose of investigation, and before a final order for
deportation is issued by the BOC. She insists that an order of arrest is proper only if the BOC has already issued an Order of
deportation. She cites the rulings of this Court in Qua Chee Gan v. Deportation Board,23 Ang Ngo Chiong v. Galang,24 and
Board of Commissioners v. Dela Rosa.25

Petitioner further maintains that the filing of the Charge Sheet against Javed Kiani by the BOC did not render the issue of the
illegality of arrest and detention moot and academic. She asserts that there is no factual and legal basis for the deportation of
her husband because he had been issued a permanent visa and his passport is yet to expire. She avers that a warrant for
the arrest of her husband may be issued only after a Summary Deportation Order shall have become final and executory.
Considering that there was no showing in the records that said Order had already been promulgated by the BSI, it could not
have become final and executory. She avers that the ruling of this Court in Velasco v. Court of Appeals26 is not applicable in
this case.

In its Comment on the petition filed on December 10, 2004, the Office of the Solicitor General (OSG) avers that it agrees with
the ruling of the CA and prays that it be affirmed. Citing the ruling of this Court in Dwikarna v. Domingo,27 the OSG posits
that the remedy of petitioner from the Summary Deportation Order of the BOC was to appeal to the CA via a petition for
review under Rule 43 of the Revised Rules of Court. It maintains that it was inappropriate for petitioner to assail the arrest
and detention of her husband after the filing of the Charge Sheet with the BSI.

The OSG also alleges that Javed Kiani had filed an Omnibus Motion Ad Cautelam28 dated March 19, 2004 in the BID,
presumably with the BOC, wherein he prayed that the Summary Deportation Order issued by the BOC against him be set
aside, and that he be released in the meantime. The OSG also asserts that in said motion, Javed Kiani alleged that his arrest
and detention was illegal because there had been as yet no determination by the BOC of any ground for his deportation; in
effect, he pursued the same reliefs he seeks from this Court in his motion with the BOC, that is, to declare as illegal his
continued detention and order his release. The OSG avers that this is a classic example of forum shopping which is
prohibited under the Rules.

In reply, petitioner asserts that during the pendency of this case, Immigration Commissioner Alipio F. Fernandez, Jr. granted
her husband’s Omnibus Motion Ad Cautelam in an Order29 dated June 22, 2004, and ordered his provisional release on a
cash bond of ₱50,000.00. The Commissioner also declared that the Summary Deportation Order against her husband had
been improvidently issued, and ruled that there was no factual and legal basis for his summary deportation. Moreover, Javed
Kiani was deprived of his right to due process when the Order was issued on the same day the Charge Sheet was filed with
the BSI.

The Court is posed to resolve the following issues: (1) whether petitioner engaged in forum shopping; and (2) whether the CA
erred in (a) holding that the Petition for a Writ of Habeas Corpus before the RTC was not the proper remedy of petitioner; (b)
upholding the validity of the Summary Deportation Order issued by the BOC; and (c) declaring that such Order had become
final and executory.

On the first issue, we agree with the contention of the OSG that the petitioner indulged in forum shopping. Forum shopping is
the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other
court would make a favorable disposition. Section 6, Rule 43 of the Revised Rules of Court provides that a petition for review
on certiorari must contain a sworn certification against forum shopping as provided in the last paragraph of Section 2, Rule
42 of said Rules, to wit:

The petitioner shall also submit together with the petition a certification under oath that he has not theretofore commenced
any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should
thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom.lawphil.net

Under Section 5, Rule 45 of said Rules, the failure of the petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition.

In Balite v. Court of Appeals,30 the Court held that there is forum shopping when a party seeks to obtain remedies in an
action in one court, which had already been solicited, and in other courts and other proceedings in other tribunals. While a
party may avail of the remedies prescribed by the Rules of Court, such party is not free to resort to them simultaneously or at
his/her pleasure or caprice. A party should not be allowed to present simultaneous remedies in two different forums, for it
degrades and wreaks havoc to the rule on orderly procedure. A party must follow the sequence and hierarchical order in
availing such remedies and not resort to shortcuts in procedure or playing fast and loose with the said rules. Forum
shopping, an act of malpractice, is considered as trifling with the courts and abusing their processes. It is improper conduct
and degrades the administration of justice.

In this case, petitioner seeks not only the reversal of the Order of the RTC dismissing her Petition for a Writ of Habeas
Corpus filed in behalf of her husband (where it was also declared that he had been legally deported), as well as the decision
of the CA affirming the RTC’s Order; she also prays that the Court render judgment nullifying the Summary Deportation
Order of the BOC and order her husband’s release from detention. However, Javed Kiani himself, during the pendency of
this case, filed an Omnibus Motion Ad Cautelam with the BID, seeking the same reliefs, which his wife prayed for in this
case. By filing said motion, Javed Kiani sought to preempt the decision of this Court. Petitioner and her husband even failed
to inform the Court of the filing of such motion, and did so only after the OSG had already informed the Court of such petition,
and after petitioner had been ordered to reply to the Comment of the OSG.

Petitioner and her husband were represented by the same law firm, the Cruz Cruz and Neria Law Offices. The instant
petition and said motion were signed by the same lawyer, Atty. Marlon Alexandre C. Cruz. That the instant petition was filed
by Jeany-Vi Kiani while the Omnibus Motion was filed by Javed Kiani himself is of no moment; after all, the petition was filed
for and in behalf of the latter, who is the real party-in-interest.31 In effect, the Petition for Writ of Habeas Corpus was filed by
him, as the beneficiary, through his wife as his representative. Worse, the Immigration Commissioner took cognizance of and
granted the same, despite the pendency of the instant petition, thereby preempting the ruling of this Court.

The Immigration Commissioner and Atty. Marlon Alexandre C. Cruz ought to be reprimanded for their acts.

On the merits of the petition, we find and so rule that the CA acted in accord with jurisprudence when it affirmed the assailed
Order of the RTC dismissing the Petition for Habeas Corpus. As the Court held in Caballes v. Court of Appeals,32

Habeas corpus is not in the nature of a writ of error; nor intended as substitute for the trial court’s function. It cannot take the
place of appeal, certiorari or writ of error. The writ cannot be used to investigate and consider questions of error that might be
raised relating to procedure or on the merits. The inquiry in a habeas corpus proceeding is addressed to the question of
whether the proceedings and the assailed order are, for any reason, null and void. The writ is not ordinarily granted where
the law

provides for other remedies in the regular course, and in the absence of exceptional circumstances. Moreover, habeas
corpus should not be granted in advance of trial. The orderly course of trial must be pursued and the usual remedies
exhausted before resorting to the writ where exceptional circumstances are extant. In another case, it was held that habeas
corpus cannot be issued as a writ of error or as a means of reviewing errors of law and irregularities not involving the
questions of jurisdiction occurring during the course of the trial, subject to the caveat that constitutional safeguards of human
life and liberty must be preserved, and not destroyed. It has also been held that where restraint is under legal process, mere
errors and irregularities, which do not render the proceedings void, are not grounds for relief by habeas corpus because in
such cases, the restraint is not illegal.33

In this case, when petitioner filed her Petition for Habeas Corpus with the RTC in behalf of her husband, a Charge Sheet had
already been filed against him for violation of Section 37(a)(7) and Section 45 of the Philippine Immigration Act of 1940, as
amended. The filing of the Charge Sheet before the BSI cured whatever irregularities or infirmities were attendant to his
arrest. The remedy of petitioner was to file a motion for the dismissal of the Charge Sheet and the Mission Order of the
Immigration Commissioner, not a petition for a writ of habeas corpus before the RTC. The RTC had no authority to nullify the
Mission Order issued by the Immigration Commissioner, much less set aside the arrest of Javed Kiani. As held by this Court
in Commissioner Rodriguez v. Judge Bonifacio:34

Be that as it may, there was a valid judicial process justifying Ma Jing’s detention even before respondent judge rendered his
decision as shown by the Return of the Writ which averred, among others, that a Charge Sheet was filed against Ma Jing.
Even granting that the arrest of Ma Jing was initially illegal, the filing of the Charge Sheet cured whatever incipient infirmity
there was in her arrest. Respondent judge therefore had no authority to release the party who was thus committed. Section
4, Rule 102 of the Rules of Court provides:

SEC. 4. When writ not allowed or discharge authorized. — If it appears that the person to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge; or by virtue of a judgment or order of a court of record, and
that court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed;
or if the

jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the
process, judgment or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or
convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment.

Once a person detained is duly charged in court, he may no longer question his detention through a petition for issuance of a
writ of habeas corpus. His remedy would be to quash the information and/or the warrant of arrest duly issued. The writ of
habeas corpus should not be allowed after the party sought to be released had been charged before any court. The term
"court" includes quasi-judicial bodies like the Deportation Board of the Bureau of Immigration.35

The CA acted in accord with jurisprudence when it affirmed the ruling of the RTC declaring that it had no jurisdiction over
petitioner’s plea to set aside the Summary Deportation Order issued by the BOC against her husband Javed Kiani. Under
Section 8, Chapter 3, Title I, Book III of Executive Order No. 292, the power to deport aliens is vested on the President of the
Philippines, subject to the requirements of due process. The Immigration Commissioner is vested with authority to deport
aliens under Section 37 of the Philippine Immigration Act of 1940, as amended. Thus, a party aggrieved by a Deportation
Order issued by the BOC is proscribed from assailing said Order in the RTC even via a petition for a writ of habeas corpus.
Conformably with ruling of the Court in Domingo v. Scheer,36 such party may file a motion for the reconsideration thereof
before the BOC. The Court ruled therein that "there is no law or rule which provides that a Summary Deportation Order
issued by the BOC in the exercise of its authority becomes final after one year from its issuance, or that the aggrieved party
is barred from filing a motion for a reconsideration of any order or decision of the BOC." The Court, likewise, declared that in
deportation proceedings, the Rules of Court may be applied in a suppletory manner and that the aggrieved party may file a
motion for reconsideration of a decision or final order under Rule 37 of said Rules.37

In case such motion for reconsideration is denied by the BOC, the aggrieved party may appeal to the Secretary of Justice38
and, if the latter denies the appeal, to the Office of the President of the Philippines. The party may also choose to file a
petition for certiorari with the CA under Rule 65 of the Rules of Court, on the ground that the Secretary of Justice acted with
grave abuse of discretion amounting to excess or lack of jurisdiction in dismissing the appeal, the remedy of appeal not being
adequate and speedy remedy.39 In case the Secretary of Justice dismisses the appeal, the aggrieved party may resort to
filing a petition for review under Rule 43 of the Rules of Court, as amended.40

In this case, the petitioner did not file any motion with the BOC for reconsideration of the Summary Deportation Order or
appeal therefrom; neither did she appeal to the Secretary of Justice or to the Office of the President or file a petition for
certiorari under Rule 65.

We note that under Section 3, Rule XIII41 of the Rules of Procedure to Govern Deportation Proceedings, the decision of the
BOC shall be returned to the BSI for promulgation, and shall become final and executory after thirty (30) days from
promulgation unless within such period, the President of the Philippines shall order the contrary.

This rule, however, is not applicable in this case. What the petitioner assailed before the RTC was a Summary Deportation
Order of the BOC, not a BOC decision based on the recommendation of the BSI after due hearing as mandated by Rule IX of
the said Rules of Procedure.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioner. SO ORDERED.

4. G.R. No. 169482 January 29, 2008

IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF EUFEMIA E. RODRIGUEZ, filed by EDGARDO E.
VELUZ, petitioner, vs.LUISA R. VILLANUEVA and TERESITA R. PABELLO, respondents. CORONA, J.:

This is a petition for review1 of the resolutions2 dated February 2, 2005 and September 2, 2005 of the Court of Appeals3 in
CA-G.R. SP No. 88180 denying the petition for habeas corpus of Eufemia E. Rodriguez, filed by petitioner Edgardo Veluz, as
well as his motion for reconsideration, respectively.

Eufemia E. Rodriguez was a 94-year old widow, allegedly suffering from a poor state of mental health and deteriorating
cognitive abilities.4 She was living with petitioner, her nephew, since 2000. He acted as her guardian.

In the morning of January 11, 2005, respondents Luisa R. Villanueva and Teresita R. Pabello took Eufemia from petitioner
Veluz’ house. He made repeated demands for the return of Eufemia but these proved futile. Claiming that respondents were
restraining Eufemia of her liberty, he filed a petition for habeas corpus5 in the Court of Appeals on January 13, 2005.
The Court of Appeals ruled that petitioner failed to present any convincing proof that respondents (the legally adopted
children of Eufemia) were unlawfully restraining their mother of her liberty. He also failed to establish his legal right to the
custody of Eufemia as he was not her legal guardian. Thus, in a resolution dated February 2, 2005,6 the Court of Appeals
denied his petition.

Petitioner moved for reconsideration but it was also denied.7 Hence, this petition.

Petitioner claims that, in determining whether or not a writ of habeas corpus should issue, a court should limit itself to
determining whether or not a person is unlawfully being deprived of liberty. There is no need to consider legal custody or
custodial rights. The writ of habeas corpus is available not only if the rightful custody of a person is being withheld from the
person entitled thereto but also if the person who disappears or is illegally being detained is of legal age and is not under
guardianship. Thus, a writ of habeas corpus can cover persons who are not under the legal custody of another. According to
petitioner, as long as it is alleged that a person is being illegally deprived of liberty, the writ of habeas corpus may issue so
that his physical body may be brought before the court that will determine whether or not there is in fact an unlawful
deprivation of liberty.

In their comment, respondents state that they are the legally adopted daughters of Eufemia and her deceased spouse,
Maximo Rodriguez. Prior to their adoption, respondent Luisa was Eufemia’s half-sister8 while respondent Teresita was
Eufemia’s niece and petitioner’s sister.9

Respondents point out that it was petitioner and his family who were staying with Eufemia, not the other way around as
petitioner claimed. Eufemia paid for the rent of the house, the utilities and other household needs.

Sometime in the 1980s, petitioner was appointed as the "encargado" or administrator of the properties of Eufemia as well as
those left by the deceased Maximo. As such, he took charge of collecting payments from tenants and transacted business
with third persons for and in behalf of Eufemia and the respondents who were the only compulsory heirs of the late Maximo.

In the latter part of 2002, Eufemia and the respondents demanded an inventory and return of the properties entrusted to
petitioner. These demands were unheeded. Hence, Eufemia and the respondents were compelled to file a complaint for
estafa against petitioner in the Regional Trial Court of Quezon City. Consequently, and by reason of their mother’s
deteriorating health, respondents decided to take custody of Eufemia on January 11, 2005. The latter willingly went with
them. In view of all this, petitioner failed to prove either his right to the custody of Eufemia or the illegality of respondents’
action.

We rule for the respondents.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his
liberty or by which the rightful custody of a person is being withheld from the one entitled thereto.10 It is issued when one is
either deprived of liberty or is wrongfully being prevented from exercising legal custody over another person.11 Thus, it
contemplates two instances: (1) deprivation of a person’s liberty either through illegal confinement or through detention and
(2) withholding of the custody of any person from someone entitled to such custody.

In this case, the issue is not whether the custody of Eufemia is being rightfully withheld from petitioner but whether Eufemia
is being restrained of her liberty. Significantly, although petitioner admits that he did not have legal custody of Eufemia, he
nonetheless insists that respondents themselves have no right to her custody. Thus, for him, the issue of legal custody is
irrelevant. What is important is Eufemia’s personal freedom.

Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an
illegal and involuntary deprivation of freedom of action.12

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime
specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral,
illegal restraint of liberty. "The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is
to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient."13 (emphasis supplied)

In passing upon a petition for habeas corpus, a court or judge must first inquire into whether the petitioner is being restrained
of his liberty.14 If he is not, the writ will be refused. Inquiry into the cause of detention will proceed only where such restraint
exists.15 If the alleged cause is thereafter found to be unlawful, then the writ should be granted and the petitioner
discharged.16 Needless to state, if otherwise, again the writ will be refused.

While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere perfunctory operation on the filing of
the petition.17 Judicial discretion is called for in its issuance and it must be clear to the judge to whom the petition is
presented that, prima facie, the petitioner is entitled to the writ.18 It is only if the court is satisfied that a person is being
unlawfully restrained of his liberty will the petition for habeas corpus be granted.19 If the respondents are not detaining or
restraining the applicant or the person in whose behalf the petition is filed, the petition should be dismissed.20

In this case, the Court of Appeals made an inquiry into whether Eufemia was being restrained of her liberty. It found that she
was not:
There is no proof that Eufemia is being detained and restrained of her liberty by respondents. Nothing on record reveals that
she was forcibly taken by respondents. On the contrary, respondents, being Eufemia’s adopted children, are taking care of
her.21 (emphasis supplied)

The Court finds no cogent or compelling reason to disturb this finding. WHEREFORE, the petition is hereby DENIED.

5. G.R. No. 154598 August 16, 2004

IN THE MATTER OF APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS
RICHARD BRIAN THORNTON for and in behalf of the minor child SEQUEIRA JENNIFER DELLE FRANCISCO
THORNTON, petitioner, vs.ADELFA FRANCISCO THORNTON, respondent. CORONA, J.:

This is a petition to review, under Rule 45 of the Rules of Court, the July 5, 2002 resolution1 of the Court of Appeals,
Sixteenth Division, in CA G.R. SP No. 70501 dismissing the petition for habeas corpus on the grounds of lack of jurisdiction
and lack of substance. The dispositive portion2 read:

WHEREFORE, the Court DISMISSES the petition for habeas corpus on the grounds that: a) this Court has no jurisdiction
over the subject matter of the petition; and b) the petition is not sufficient in substance.

Petitioner, an American, and respondent, a Filipino, were married on August 28, 1998 in the Catholic Evangelical Church at
United Nations Avenue, Manila. A year later, respondent gave birth to a baby girl whom they named Sequeira Jennifer Delle
Francisco Thornton.

However, after three years, respondent grew restless and bored as a plain housewife. She wanted to return to her old job as
a "guest relations officer" in a nightclub, with the freedom to go out with her friends. In fact, whenever petitioner was out of
the country, respondent was also often out with her friends, leaving her daughter in the care of the househelp.

Petitioner admonished respondent about her irresponsibility but she continued her carefree ways. On December 7, 2001,
respondent left the family home with her daughter Sequiera without notifying her husband. She told the servants that she
was bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan, Basilan Province.

Petitioner filed a petition for habeas corpus in the designated Family Court in Makati City but this was dismissed, presumably
because of the allegation that the child was in Basilan. Petitioner then went to Basilan to ascertain the whereabouts of
respondent and their daughter. However, he did not find them there and the barangay office of Sta. Clara, Lamitan, Basilan,
issued a certification3 that respondent was no longer residing there.

Petitioner gave up his search when he got hold of respondent’s cellular phone bills showing calls from different places such
as Cavite, Nueva Ecija, Metro Manila and other provinces. Petitioner then filed another petition for habeas corpus, this time
in the Court of Appeals which could issue a writ of habeas corpus enforceable in the entire country.

However, the petition was denied by the Court of Appeals on the ground that it did not have jurisdiction over the case. It ruled
that since RA 8369 (The Family Courts Act of 1997) gave family courts exclusive original jurisdiction over petitions for habeas
corpus, it impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of Appeals) and Batas Pambansa 129
(The Judiciary Reorganization Act of 1980):

Under Sec. 9 (1), BP 129 (1981) the Intermediate Appellate Court (now Court of Appeals) has jurisdiction to issue a writ of
habeas corpus whether or not in aid of its appellate jurisdiction. This conferment of jurisdiction was re-stated in Sec. 1, RA
7902 (1995), an act expanding the jurisdiction of this Court. This jurisdiction finds its procedural expression in Sec. 1, Rule
102 of the Rules of Court.

In 1997, RA 8369 otherwise known as Family Courts Act was enacted. It provides:

Sec. 5. Jurisdiction of Family Court. – The Family Courts shall have exclusive original jurisdiction to hear and decide the
following cases:

b. Petition for guardianship, custody of children, habeas corpus in relation to the latter.

The vital question is, did RA 8369 impliedly repeal BP 129 and RA 7902 insofar as the jurisdiction of this Court to issue writ
of habeas corpus in custody of minor cases is concerned? The simple answer is, yes, it did, because there is no other
meaning of the word "exclusive" than to constitute the Family Court as the sole court which can issue said writ. If a court
other than the Family Court also possesses the same competence, then the jurisdiction of the former is not exclusive but
concurrent – and such an interpretation is contrary to the simple and clear wording of RA 8369.

Petitioner argues that unless this Court assumes jurisdiction over a petition for habeas corpus involving custody of minors, a
respondent can easily evade the service of a writ of habeas corpus on him or her by just moving out of the region over which
the Regional Trial Court issuing the writ has territorial jurisdiction. That may be so but then jurisdiction is conferred by law. In
the absence of a law conferring such jurisdiction in this Court, it cannot exercise it even if it is demanded by expediency or
necessity.

Whether RA 8369 is a good or unwise law is not within the authority of this Court – or any court for that matter – to
determine. The enactment of a law on jurisdiction is within the exclusive domain of the legislature. When there is a perceived
defect in the law, the remedy is not to be sought form the courts but only from the legislature.
The only issue before us therefore is whether the Court of Appeals has jurisdiction to issue writs of habeas corpus in cases
involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive original jurisdiction over
such petitions.

In his comment, the Solicitor General points out that Section 20 of the Rule on Custody of Minors and Writ of Habeas Corpus
in Relation to Custody of Minors (A.M. No. 03-04-04-SC, effective May 15, 2003) has rendered the issue moot. Section 20 of
the rule provides that a petition for habeas corpus may be filed in the Supreme Court,4 Court of Appeals, or with any of its
members and, if so granted, the writ shall be enforceable anywhere in the Philippines.5

The petition is granted.

The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to
issue writs of habeas corpus involving the custody of minors.

The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129 since, by giving family courts exclusive
jurisdiction over habeas corpus cases, the lawmakers intended it to be the sole court which can issue writs of habeas corpus.
To the court a quo, the word "exclusive" apparently cannot be construed any other way.

We disagree with the CA’s reasoning because it will result in an iniquitous situation, leaving individuals like petitioner without
legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of minors they are looking
for would be helpless since they cannot seek redress from family courts whose writs are enforceable only in their respective
territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to be the case here, the
petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not have been the intention of
the lawmakers when they passed the Family Courts Act of 1997. As observed by the Solicitor General:

Under the Family Courts Act of 1997, the avowed policy of the State is to "protect the rights and promote the welfare of
children." The creation of the Family Court is geared towards addressing three major issues regarding children’s welfare
cases, as expressed by the legislators during the deliberations for the law. The legislative intent behind giving Family Courts
exclusive and original jurisdiction over such cases was to avoid further clogging of regular court dockets, ensure greater
sensitivity and specialization in view of the nature of the case and the parties, as well as to guarantee that the privacy of the
children party to the case remains protected.

The primordial consideration is the welfare and best interests of the child. We rule therefore that RA 8369 did not divest the
Court of Appeals and the Supreme Court of their jurisdiction over habeas corpus cases involving the custody of minors.
Again, to quote the Solicitor General:

To allow the Court of Appeals to exercise jurisdiction over the petition for habeas corpus involving a minor child whose
whereabouts are uncertain and transient will not result in one of the situations that the legislature seeks to avoid. First, the
welfare of the child is paramount. Second, the ex parte nature of habeas corpus proceedings will not result in disruption of
the child’s privacy and emotional well-being; whereas to deprive the appellate court of jurisdiction will result in the evil sought
to be avoided by the legislature: the child’s welfare and well being will be prejudiced.

This is not the first time that this Court construed the word "exclusive" as not foreclosing resort to another jurisdiction. As
correctly cited by the Solicitor General, in Floresca vs. Philex Mining Corporation,6 the heirs of miners killed in a work-related
accident were allowed to file suit in the regular courts even if, under the Workmen’s Compensation Act, the Workmen’s
Compensation Commissioner had exclusive jurisdiction over such cases.

We agree with the observations of the Solicitor General that:

While Floresca involved a cause of action different from the case at bar. it supports petitioner’s submission that the word
"exclusive" in the Family Courts Act of 1997 may not connote automatic foreclosure of the jurisdiction of other courts over
habeas corpus cases involving minors. In the same manner that the remedies in the Floresca case were selective, the
jurisdiction of the Court of Appeals and Family Court in the case at bar is concurrent. The Family Court can issue writs of
habeas corpus enforceable only within its territorial jurisdiction. On the other hand, in cases where the territorial jurisdiction
for the enforcement of the writ cannot be determined with certainty, the Court of Appeals can issue the same writ enforceable
throughout the Philippines, as provided in Sec. 2, Rule 102 of the Revised Rules of Court, thus:

The Writ of Habeas Corpus may be granted by the Supreme Court, or any member thereof, on any day and at any time, or
by the Court of Appeals or any member thereof in the instances authorized by law, and if so granted it shall be enforceable
anywhere in the Philippines, and may be made returnable before the court or any member thereof, or before a Court of First
Instance, or any judge thereof for hearing and decision on the merits. It may also be granted by a Court of First Instance, or a
judge thereof, on any day and at any time, and returnable before himself, enforceable only within his judicial district.
(Emphasis supplied)

In ruling that the Commissioner’s "exclusive" jurisdiction did not foreclose resort to the regular courts for damages, this Court,
in the same Floresca case, said that it was merely applying and giving effect to the constitutional guarantees of social justice
in the 1935 and 1973 Constitutions and implemented by the Civil Code. It also applied the well-established rule that what is
controlling is the spirit and intent, not the letter, of the law:

"Idolatrous reverence" for the law sacrifices the human being. The spirit of the law insures man’s survival and ennobles him.
In the words of Shakespeare, "the letter of the law killeth; its spirit giveth life."
It is therefore patent that giving effect to the social justice guarantees of the Constitution, as implemented by the provisions of
the New Civil Code, is not an exercise of the power of law-making, but is rendering obedience to the mandates of the
fundamental law and the implementing legislation aforementioned.

Language is rarely so free from ambiguity as to be incapable of being used in more than one sense. Sometimes, what the
legislature actually had in mind is not accurately reflected in the language of a statute, and its literal interpretation may render
it meaningless, lead to absurdity, injustice or contradiction.7 In the case at bar, a literal interpretation of the word "exclusive"
will result in grave injustice and negate the policy "to protect the rights and promote the welfare of children"8 under the
Constitution and the United Nations Convention on the Rights of the Child. This mandate must prevail over legal
technicalities and serve as the guiding principle in construing the provisions of RA 8369.

Moreover, settled is the rule in statutory construction that implied repeals are not favored:

The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e.,
every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence.
The fundament is that the legislature should be presumed to have known the existing laws on the subject and not have
enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted
in order to harmonize and give effect to all laws on the subject."9

The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the Court of Appeals and Supreme Court to
issue writs of habeas corpus relating to the custody of minors. Further, it cannot be said that the provisions of RA 8369, RA
7092 and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of Appeals and the Supreme Court
from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the provisions of RA 8369 must be read
in harmony with RA 7029 and BP 129 ― that family courts have concurrent jurisdiction with the Court of Appeals and the
Supreme Court in petitions for habeas corpus where the custody of minors is at issue.

In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on
Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that:

Section 20. Petition for writ of habeas corpus.- A verified petition for a writ of habeas corpus involving custody of minors shall
be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted,
the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any
regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the
merits. (Emphasis Ours)

From the foregoing, there is no doubt that the Court of Appeals and Supreme Court have concurrent jurisdiction with family
courts in habeas corpus cases where the custody of minors is involved.

One final note. Requiring the serving officer to search for the child all over the country is not an unreasonable availment of a
remedy which the Court of Appeals cited as a ground for dismissing the petition. As explained by the Solicitor General:10

That the serving officer will have to "search for the child all over the country" does not represent an insurmountable or
unreasonable obstacle, since such a task is no more different from or difficult than the duty of the peace officer in effecting a
warrant of arrest, since the latter is likewise enforceable anywhere within the Philippines.

WHEREFORE, the petition is hereby GRANTED. The petition for habeas corpus in CA-G.R.-SP-No. 70501 is hereby
REINSTATED and REMANDED to the Court of Appeals, Sixteenth Division. SO ORDERED.

6. G.R. No. 159374 July 12, 2007

FELIPE N. MADRIÑAN, Petitioner, vs. FRANCISCA R. MADRIÑAN, Respondent.
CORONA, J.:

When a family breaks up, the children are always the victims. The ensuing battle for custody of the minor children is not only
a thorny issue but also a highly sensitive and heart-rending affair. Such is the case here. Even the usually technical subject
of jurisdiction became emotionally charged.

Petitioner Felipe N. Madriñan and respondent Francisca R. Madriñan were married on July 7, 1993 in Parañaque City. They
resided in San Agustin Village, Brgy. Moonwalk, Parañaque City.

Their union was blessed with three sons and a daughter: Ronnick, born on January 30, 1994; Phillip, born on November 19,
1996; Francis Angelo, born on May 12, 1998 and Krizia Ann, born on December 12, 2000.

After a bitter quarrel on May 18, 2002, petitioner allegedly left their conjugal abode and took their three sons with him to
Ligao City, Albay and subsequently to Sta. Rosa, Laguna. Respondent sought the help of her parents and parents-in-law to
patch things up between her and petitioner to no avail. She then brought the matter to the Lupong Tagapamayapa in their
barangay but this too proved futile.

Thus respondent filed a petition for habeas corpus of Ronnick, Phillip and Francis Angelo in the Court of Appeals, alleging
that petitioner’s act of leaving the conjugal dwelling and going to Albay and then to Laguna disrupted the education of their
children and deprived them of their mother’s care. She prayed that petitioner be ordered to appear and produce their sons
before the court and to explain why they should not be returned to her custody.

Petitioner and respondent appeared at the hearing on September 17, 2002. They initially agreed that petitioner would return
the custody of their three sons to respondent. Petitioner, however, had a change of heart1 and decided to file a
memorandum. On September 3, 2002, petitioner filed his memorandum2 alleging that respondent was unfit to take custody
of their three sons because she was habitually drunk, frequently went home late at night or in the wee hours of the morning,
spent much of her time at a beer house and neglected her duties as a mother. He claimed that, after their squabble on May
18, 2002, it was respondent who left, taking their daughter with her. It was only then that he went to Sta. Rosa, Laguna
where he worked as a tricycle driver. He submitted a certification from the principal of the Dila Elementary School in Sta.
Rosa, Laguna that Ronnick and Phillip were enrolled there. He also questioned the jurisdiction of the Court of Appeals
claiming that under Section 5(b) of RA 8369 (otherwise known as the "Family Courts Act of 1997") family courts have
exclusive original jurisdiction to hear and decide the petition for habeas corpus filed by respondent.3

For her part, respondent averred that she did not leave their home on May 18, 2002 but was driven out by petitioner. She
alleged that it was petitioner who was an alcoholic, gambler and drug addict. Petitioner’s alcoholism and drug addiction
impaired his mental faculties, causing him to commit acts of violence against her and their children. The situation was
aggravated by the fact that their home was adjacent to that of her in-laws who frequently meddled in their personal
problems.4

On October 21, 2002, the Court of Appeals5 rendered a decision6 asserting its authority to take cognizance of the petition
and ruling that, under Article 213 of the Family Code, respondent was entitled to the custody of Phillip and Francis Angelo
who were at that time aged six and four, respectively, subject to the visitation rights of petitioner. With respect to Ronnick
who was then eight years old, the court ruled that his custody should be determined by the proper family court in a special
proceeding on custody of minors under Rule 99 of the Rules of Court.

Petitioner moved for reconsideration of the Court of Appeals decision but it was denied. Hence, this recourse.

Petitioner challenges the jurisdiction of the Court of Appeals over the petition for habeas corpus and insists that jurisdiction
over the case is lodged in the family courts under RA 8369. He invokes Section 5(b) of RA 8369:

Section 5. Jurisdiction of Family Courts. – The Family Courts shall have exclusive original jurisdiction to hear and decide the
following cases:

b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;

Petitioner is wrong. In Thornton v. Thornton,7 this Court resolved the issue of the Court of Appeals’ jurisdiction to issue writs
of habeas corpus in cases involving custody of minors in the light of the provision in RA 8369 giving family courts exclusive
original jurisdiction over such petitions:

The Court of Appeals should take cognizance of the case since there is nothing in RA 8369 that revoked its jurisdiction to
issue writs of habeas corpus involving the custody of minors.

We rule therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of their jurisdiction over habeas
corpus cases involving the custody of minors. The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction
of the Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the custody of minors. Further, it
cannot be said that the provisions of RA 8369, RA 7092 [An Act Expanding the Jurisdiction of the Court of Appeals] and BP
129 [The Judiciary Reorganization Act of 1980] are absolutely incompatible since RA 8369 does not prohibit the Court of
Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving the custody of minors. Thus, the
provisions of RA 8369 must be read in harmony with RA 7029 and BP 129 – that family courts have concurrent jurisdiction
with the Court of Appeals and the Supreme Court in petitions for habeas corpus where the custody of minors is at issue.8
(emphases supplied)

The jurisdiction of the Court of Appeals over petitions for habeas corpus was further affirmed by A.M. No. 03-03-04-SC (April
22, 2004) in Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors:

In any case, whatever uncertainty there was has been settled with the adoption of A.M. No. 03-03-04-SC Re: Rule on
Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. Section 20 of the rule provides that:

Section 20. Petition for writ of habeas corpus. – A verified petition for a writ of habeas corpus involving custody of minors
shall be filed with the Family Court. The writ shall be enforceable within its judicial region to which the Family Court belongs.

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any of its members and, if so granted,
the writ shall be enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to any
regular court within the region where the petitioner resides or where the minor may be found for hearing and decision on the
merits.

From the foregoing, there is no doubt that the Court of Appeals and Supreme Court have concurrent jurisdiction with family
courts in habeas corpus cases where the custody of minors is involved.9 (emphases supplied)1avvphi1

We note that after petitioner moved out of their Parañaque residence on May 18, 2002, he twice transferred his sons to
provinces covered by different judicial regions. This situation is what the Thornton interpretation of RA 8369’s provision on
jurisdiction precisely addressed:
[The reasoning that by giving family courts exclusive jurisdiction over habeas corpus cases, the lawmakers intended them to
be the sole courts which can issue writs of habeas corpus] will result in an iniquitous situation, leaving individuals like
[respondent] without legal recourse in obtaining custody of their children. Individuals who do not know the whereabouts of
minors they are looking for would be helpless since they cannot seek redress from family courts whose writs are enforceable
only in their respective territorial jurisdictions. Thus, if a minor is being transferred from one place to another, which seems to
be the case here, the petitioner in a habeas corpus case will be left without legal remedy. This lack of recourse could not
have been the intention of the lawmakers when they passed [RA 8369].10

Moreover, a careful reading of Section 5(b) of RA 8369 reveals that family courts are vested with original exclusive
jurisdiction in custody cases, not in habeas corpus cases. Writs of habeas corpus which may be issued exclusively by family
courts under Section 5(b) of RA 8369 pertain to the ancillary remedy that may be availed of in conjunction with a petition for
custody of minors under Rule 99 of the Rules of Court. In other words, the issuance of the writ is merely ancillary to the
custody case pending before the family court. The writ must be issued by the same court to avoid splitting of jurisdiction,
conflicting decisions, interference by a co-equal court and judicial instability.

The rule therefore is: when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other
means necessary to carry it into effect may be employed by such court or officer.11 Once a court acquires jurisdiction over
the subject matter of a case, it does so to the exclusion of all other courts, including related incidents and ancillary matters.

Accordingly, the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

RULE 103 & 108

1. G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs.REPUBLIC OF THE PHILIPPINES, respondent. CORONA, J.:
When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North
Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo
cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man
"Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a
physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition for a change
of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in
his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207,
impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita
Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth
(birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that
he had always identified himself with girls since childhood.1 Feeling trapped in a man’s body, he consulted several doctors in
the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to
transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok,
Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his
birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of general circulation
in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and
the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During
trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as
witnesses. On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but
solely for the purpose of making his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and
equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be in any
way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the
petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her
[fiancé] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and
publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the
entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s first name from "Rommel Jacinto" to
MELY and petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of
Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial court’s
decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground
of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition, set aside the decision of
the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9
Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of
the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial
court:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but
solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry
changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is
a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil
Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. – No entry in a civil
register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first
name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for
change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not
judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or nickname may be
allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or
pronounce;
(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name
compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter
one’s legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment.
Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave
complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason
justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In
this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that court’s
primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally
done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth
certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all.
For all these reasons, the Court of Appeals correctly dismissed petitioner’s petition in so far as the change of his first name
was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the
statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical
errors are involved. The correction or change of such matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil
register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying,
transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled
place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only
by reference to other existing record or records: Provided, however, That no correction must involve the change of
nationality, age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is
a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages
void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of
a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after
birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the
ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace
something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of
petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No
correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments
of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees
(such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and
judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their
effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in
Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a
person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term
status… include such matters as the beginning and end of legal personality, capacity to have rights in general, family
relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even
succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status.
In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.
But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s
cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in
default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil
register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d)
civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to
be issued.

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus,
the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the
genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s
sex made at the time of his or her birth, if not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a
contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the
civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no
legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that
distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male"
and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore,
"words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that
sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in
the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through
surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal
basis for his petition for the correction or change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that
allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the
trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé.
However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38
To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor
Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in
case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation
to women which could be substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty
of the courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern
the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this
case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the
civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures
shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to
change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The
Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of
government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their
dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit
neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by
the courts.

WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

REPUBLIC OF THE PHILIPPINES, G.R. No. 166676

Petitioner,
Present:

QUISUMBING, J., Chairperson,

- versus - CARPIO MORALES,
TINGA,
VELASCO, JR.,and
BRION, JJ.

JENNIFER B. CAGANDAHAN, Promulgated:

Respondent.
September 12, 2008

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a reversal of the
Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the
Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of
entries in Cagandahan’s birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender
from "female" to "male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate2 before
the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live
Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal
Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. She
further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an
ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests
and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate
be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in
conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant
Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of
Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that
respondent’s condition is known as CAH. He explained that genetically respondent is female but because her body secretes
male hormones, her female organs did not develop normally and she has two sex organs – female and male. He testified
that this condition is very rare, that respondent’s uterus is not fully developed because of lack of female hormones, and that
she has no monthly period. He further testified that respondent’s condition is permanent and recommended the change of
gender because respondent has made up her mind, adjusted to her chosen role as male, and the gender change would be
advantageous to her.

The RTC granted respondent’s petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for]. Petitioner has
adequately presented to the Court very clear and convincing proofs for the granting of his petition. It was medically proven
that petitioner’s body produces male hormones, and first his body as well as his action and feelings are that of a male. He
has chosen to be male. He is a normal person and wants to be acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the following corrections
in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.
 It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate, and other pertinent records are
hereby amended to conform with the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED WITH;
AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE BIRTH
CERTIFICATE, WHILE RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES
NOT MAKE HER A "MALE."4

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of
respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CAH, and
her name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of
Court because while the local civil registrar is an indispensable party in a petition for cancellation or correction of entries
under Section 3, Rule 108 of the Rules of Court, respondent’s petition before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondent’s petition is fatally defective since it failed to state that respondent is a
bona fide resident of the province where the petition was filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court.6 The OSG argues that Rule 108 does not allow change of sex
or gender in the birth certificate and respondent’s claimed medical condition known as CAH does not make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally named a
party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy of the
Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in the course of the
proceedings,8 respondent is actually a male person and hence his birth certificate has to be corrected to reflect his true
sex/gender,9 change of sex or gender is allowed under Rule 108,10 and respondent substantially complied with the
requirements of Rules 103 and 108 of the Rules of Court.11

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
Section 1. Venue. – A person desiring to change his name shall present the petition to the Regional Trial Court of the
province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic Relations Court].
Sec. 2. Contents of petition. – A petition for change of name shall be signed and verified by the person desiring his name
changed, or some other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is sought;
(c) The name asked for.

Sec. 3. Order for hearing. – If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose
of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before
the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the
province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor
within four (4) months after the last publication of the notice.

Sec. 4. Hearing. – Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the
proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

Sec. 5. Judgment. – Upon satisfactory proof in open court on the date fixed in the order that such order has been published
as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for
changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

Sec. 6. Service of judgment. – Judgments or orders rendered in connection with this rule shall be furnished the civil registrar
of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

Rule 108

CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

Section 1. Who may file petition. – Any person interested in any act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry
relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located.

Sec. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the following entries in the civil register
may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of
marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and (o) changes of name.
Sec. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons
who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

Sec. 4. Notice and publication. – Upon the filing of the petition, the court shall, by an order, fix the time and place for the
hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in
the province.

Sec. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice,
file his opposition thereto.

Sec. 6. Expediting proceedings. – The court in which the proceedings is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such
proceedings.

Sec. 7. Order. – After hearing, the court may either dismiss the petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who
shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court
because respondent’s petition did not implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and
all persons who have or claim any interest which would be affected thereby shall be made parties to the proceedings.
Likewise, the local civil registrar is required to be made a party in a proceeding for the correction of name in the civil registry.
He is an indispensable party without whom no final determination of the case can be had.[12] Unless all possible
indispensable parties were duly notified of the proceedings, the same shall be considered as falling much too short of the
requirements of the rules.13 The corresponding petition should also implead as respondents the civil registrar and all other
persons who may have or may claim to have any interest that would be affected thereby.14 Respondent, however, invokes
Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their
objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We agree
that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar.

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the statutes.
In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048[17] in so far as clerical
or typographical errors are involved. The correction or change of such matters can now be made through administrative
proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in
the civil register.18

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical
error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.19

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages
void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11)
loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after
birth.20

Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of male characteristics. A
person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX
chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous
genitalia often appearing more male than female; (2) normal internal structures of the female reproductive tract such as the
ovaries, uterus and fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the
voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine adopted the term
"intersexuality" to apply to human beings who cannot be classified as either male or female.[22] The term is now of
widespread use. According to Wikipedia, intersexuality "is the state of a living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An
organism with intersex may have biological characteristics of both male and female sexes."

Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been
expected to conform to either a male or female gender role.[23] Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble
either male or female genitals.[24] More commonly, an intersex individual is considered as suffering from a "disorder" which
is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the
individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations
which should not be subject to outright denial. "It has been suggested that there is some middle ground between the sexes, a
‘no-man’s land’ for those individuals who are neither truly ‘male’ nor truly ‘female’."[25] The current state of Philippine statutes
apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere
appearances when nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry
for gender. But if we determine, based on medical testimony and scientific development showing the respondent to be other
than female, then a change in the

subject’s birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and
categorically male) composition. Respondent has female (XX) chromosomes. However, respondent’s body system naturally
produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic
features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of
his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male
hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in
cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he
was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone
treatment and taken steps, like taking lifelong medication,[26] to force his body into the categorical mold of a female but he
did not. He chose not to do so. Nature has instead taken its due course in respondent’s development to reveal more fully his
male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as
one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male
tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order
to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in
order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the
one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health.
Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development
and maturation. In the absence of evidence that respondent is an "incompetent"[27] and in the absence of evidence to show
that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law,
the Court affirms as valid and justified the respondent’s position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature
has handed out. In other words, we respect respondent’s congenital condition and his mature decision to be a male. Life is
already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help
make his life easier, considering the unique circumstances in this case.

As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of
judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.[28] The trial
court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine
name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find
merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from
female to male.

WHEREFORE, the Republic’s petition is DENIED. The Decision dated January 12, 2005 of the Regional Trial Court, Branch
33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs. SO ORDERED.

2. G.R. No. 186027 December 8, 2010

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. MERLYN MERCADERA through her Attorney-in-Fact, EVELYN M.
OGA, Respondent. MENDOZA, J.:

This petition for review on certiorari assails the December 9, 2008 Decision1 of the Court of Appeals (CA), in CA G.R. CV
No. 00568-MIN, which affirmed the September 28, 2005 Order of the Regional Trial Court of Dipolog City, Branch 8 (RTC), in
a petition for correction of entries, docketed as Special Proceedings No. R-3427 (SP No. R-3427), filed by respondent Merlyn
Mercadera (Mercadera) under Rule 108 of the Rules of Court.

The Factual and Procedural Antecedents

On June 6, 2005, Merlyn Mercadera (Mercadera), represented by her sister and duly constituted Attorney-in-Fact, Evelyn M.
Oga (Oga), sought the correction of her given name as it appeared in her Certificate of Live Birth - from Marilyn L. Mercadera
to Merlyn L. Mercadera before the Office of the Local Civil Registrar of Dipolog City pursuant to Republic Act No. 9048 (R.A.
No. 9048).2

Under R.A. No. 9048, the city or municipal civil registrar or consul general, as the case may be, is now authorized to effect
the change of first name or nickname and the correction of clerical or typographical errors in civil registry entries. "Under said
law, jurisdiction over applications for change of first name is now primarily lodged with administrative officers. The law now
excludes the change of first name from the coverage of Rules 103 until and unless an administrative petition for change of
name is first filed and subsequently denied"3 and removes "correction or changing of clerical errors in entries of the civil
register from the ambit of Rule 108." Hence, what is left for the scope of operation of the rules are substantial changes and
corrections in entries of the civil register.4

The Office of the Local Civil Registrar of Dipolog City, however, refused to effect the correction unless a court order was
obtained "because the Civil Registrar therein is not yet equipped with a permanent appointment before he can validly act on
petitions for corrections filed before their office as mandated by Republic Act 9048."5

Mercadera was then constrained to file a Petition For Correction of Some Entries as Appearing in the Certificate of Live Birth
under Rule 108 before the Regional Trial Court of Dipolog City (RTC). The petition was docketed as Special Proceedings No.
R-3427 (SP No. R-3427). Section 2 of Rule 108 reads:

SEC. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the following entries in the civil register
may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of
marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and (o) changes of name. [Underscoring supplied]

Upon receipt of the petition for correction of entry, the RTC issued an order, dated June 10, 2005, which reads:

Finding the petition sufficient in form and substance, notice is hereby given that the hearing of said petition is set on JULY
26, 2005 at 8:30 o’clock in the morning, at the Session Hall of Branch 8, this Court, Bulwagan ng Katarungan, Dipolog City,
on which date, time and place, anyone appearing to contest the petition shall state in writing his grounds there[for], serving a
copy thereof to the petitioner and likewise file copies with this Court on or before the said date of hearing.

Let this order be published at the expense of petitioner once a week for three (3) consecutive weeks in a newspaper edited
and published in Dipolog City and of general circulation therein, the City of Dapitan and the province of Zamboanga del
Norte, and copies hereof be furnished to the Office of the Solicitor General of (sic) 134 Amorsolo St., Legaspi Village, Makati,
Metro Manila, the City Civil Registrar of Dipolog, and posted on the bulletin boards of the City Hall of Dipolog, the Provincial
Capitol Building, and of this Court.

IT IS SO ORDERED.

The Office of the Solicitor General (OSG) entered its appearance for the Republic of the Philippines and deputized the Office
of the City Prosecutor to assist in the case only on the very day of the hearing. This prompted the court to reset the hearing
on September 5, 2005. On said day, there being no opposition, counsel for Mercadera moved for leave of court to present
evidence ex parte. Without any objection from the City Prosecutor, the trial court designated the branch clerk of court to
receive evidence for Mercadera.

On September 15, 2005, the testimony of Oga and several photocopies of documents were formally offered and marked as
evidence to prove that Mercadera never used the name "Marilyn" in any of her public or private transactions. On September
26, 2005, the RTC issued an order6 admitting Exhibits "A" to "I"7 and their submarkings, as relevant to the resolution of the
case.

The following facts were gathered from documentary evidence and the oral testimony of Oga, as reported by the lower court:

Petitioner Merlyn M. Mercadera was born on August 19, 1970 at Dipolog City. She is the daughter of spouses Tirso U.
Mercadera and Norma C. Lacquiao. The fact of her birth was reported to the Office of the City Civil Registrar of Dipolog City
on September 8, 1970. It was recorded on page 68, book no. 9, in the Registry of Births of said civil registry. In the
certification of birth dated May 9, 2005 issued by the same registry, her given name appears as Marilyn and not Merlyn
(Exhibit "C").

On September 29, 1979, petitioner was baptized according to the rites and ceremonies of the United Church of Christ in the
Philippines. As reflected in her certificate of baptism issued by said church, she was baptized by the name Merlyn L.
Mercadera (Exhibit "D"). In her elementary diploma issued by the Paaralang Sentral ng Estaka, Dipolog City; her high school
diploma issued by the Zamboanga del Norte School of Arts and Trades, Dipolog City; and college diploma issued by the
Silliman University, Dumaguete City, where she earned the degree of Bachelor of Secondary Education, uniformly show her
name as Merlyn L. Mercadera (Exhibits "E", "F", and "G").

Presently, she is working in U.P. Mindanao, Buhangin, Davao City. Her certificate of membership issued by the Government
Service Insurance System also bears his [sic] complete name as Merlyn Lacquiao Mercadera (Exhibit "H"). When she
secured an authenticated copy of her certificate of live birth from the National Statistics Office, she discovered that her given
name as registered is Marilyn and not Merlyn; hence, this petition.

In its September 28, 2005 Decision,8 the RTC granted Mercadera’s petition and directed the Office of the City Civil Registrar
of Dipolog City to correct her name appearing in her certificate of live birth, Marilyn Lacquiao Mercadera, to MERLYN
Lacquiao Mercadera. Specifically, the dispositive portion of the RTC Decision reads:
WHEREFORE, the petition is GRANTED. Accordingly, the Office of the City Civil Registrar of Dipolog City is hereby directed
to correct the given name of petitioner appearing in her certificate of live birth, from Marilyn Lacquiao Mercadera to MERLYN
Lacquiao Mercadera. In a four-page decision, the RTC ruled that the documentary evidence presented by Mercadera
sufficiently supported the circumstances alleged in her petition. Considering that she had used "Merlyn" as her given name
since childhood until she discovered the discrepancy in her Certificate of Live Birth, the RTC was convinced that the
correction was justified.

The OSG timely interposed an appeal praying for the reversal and setting aside of the RTC decision. It mainly anchored its
appeal on the availment of Mercadera of the remedy and procedure under Rule 108. In its Brief9 filed with the CA, the OSG
argued that the lower court erred (1) in granting the prayer for change of name in a petition for correction of entries; and (2) in
admitting the photocopies of documentary evidence and hearsay testimony of Oga.

For the OSG, the correction in the spelling of Mercadera’s given name might seem innocuous enough to grant but "it is in
truth a material correction as it would modify or increase substantive rights."10 What the lower court actually allowed was a
change of Mercadera’s given name, which would have been proper had she filed a petition under Rule 103 and proved any
of the grounds therefor. The lower court, "may not substitute one for the other for purposes of expediency."11 Further,
because Mercadera failed to invoke a specific ground recognized by the Rules, the lower court’s order in effect allowed the
change of one’s name in the civil registry without basis.

The CA was not persuaded. In its December 9, 2008 Decision, 12 the appellate court affirmed the questioned RTC Order in
CA-G.R. CV No. 00568-MIN. The CA assessed the controversy in this wise:

Appellant’s insistence that the petition should have been filed under Rule 103 and not Rule 108 of the Rules of Court is off
the mark. This Court does not entertain any doubt that the petition before the trial court was one for the correction on an
entry in petitioner’s Certificate of Live Birth and not one in which she sought to change her name. In Co v. Civil Register of
Manila, G.R. No. 138496, February 23, 2004, the High Court reiterated the distinction between the phrases "to correct" and
"to change." Said the High Court:

To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something
with something else of the same kind or with something that serves as a substitute. Article 412 of the New Civil Code does
not qualify as to the kind of entry to be changed or corrected or distinguished on the basis of the effect that the correction or
change may be. Such entries include not only those clerical in nature but also substantial errors. After all, the role of the
Court under Rule 108 of the Rules of Court is to ascertain the truths about the facts recorded therein.

That appellee sought to correct an entry and not to change her name is patent to the Court from the allegations in her
petition, specifically, paragraphs 7 and 8 thereof—

Anent the RTC’s error in admitting the photocopies of Mercadera’s documentary evidence and in vesting probative value to
Oga’s testimony, the CA cited the well-established rule that "evidence not objected to may be admitted and may be validly
considered by the court in arriving at its judgment."13

On March 6, 2009, the OSG filed the present petition. On behalf of Mercadera, the Public Attorney’s Office (PAO) filed its
Comment14 on July 3, 2009. The OSG declined to file a reply claiming that its petition already contained an exhaustive
discussion on the following assigned errors:15

I.THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE CHANGE IN RESPONDENT’S NAME
UNDER RULE 103.

II.THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN CONSIDERING SECONDARY EVIDENCE.

Rule 103 procedurally governs judicial petitions for change of given name or surname, or both, pursuant to Article 376 of the
Civil Code.16 This rule provides the procedure for an independent special proceeding in court to establish the status of a
person involving his relations with others, that is, his legal position in, or with regard to, the rest of the community.17 In
petitions for change of name, a person avails of a remedy to alter the "designation by which he is known and called in the
community in which he lives and is best known."18 When granted, a person’s identity and interactions are affected as he
bears a new "label or appellation for the convenience of the world at large in addressing him, or in speaking of, or dealing
with him."19 Judicial permission for a change of name aims to prevent fraud and to ensure a record of the change by virtue
of a court decree.

The proceeding under Rule 103 is also an action in rem which requires publication of the order issued by the court to afford
the State and all other interested parties to oppose the petition. When complied with, the decision binds not only the parties
impleaded but the whole world. As notice to all, publication serves to indefinitely bar all who might make an objection. "It is
the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear
and decide it."20

Essentially, a change of name does not define or effect a change of one’s existing family relations or in the rights and duties
flowing therefrom. It does not alter one’s legal capacity or civil status.21 However, "there could be instances where the
change applied for may be open to objection by parties who already bear the surname desired by the applicant, not because
he would thereby acquire certain family ties with them but because the existence of such ties might be erroneously
impressed on the public mind."22 Hence, in requests for a change of name, "what is involved is not a mere matter of
allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications
advanced x x x mindful of the consequent results in the event of its grant x x x."23
Rule 108, on the other hand, implements judicial proceedings for the correction or cancellation of entries in the civil registry
pursuant to Article 412 of the Civil Code.24 Entries in the civil register refer to "acts, events and judicial decrees concerning
the civil status of persons,"25 also as enumerated in Article 408 of the same law.26 Before, only mistakes or errors of a
harmless and innocuous nature in the entries in the civil registry may be corrected under Rule 108 and substantial errors
affecting the civil status, citizenship or nationality of a party are beyond the ambit of the rule. In the abandoned case of Chua
Wee v. Republic,27 this Court declared that,

x x x if Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the
eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship,
legitimacy of paternity or filiation, or legitimacy of marriage, said Rule 108 would thereby become unconstitutional for it would
be increasing or modifying substantive rights, which changes are not authorized under Article 412 of the new Civil Code."

In the latter case of Wong v. Republic,28 however, Justice Vicente Abad Santos, in a separate concurrence, opined that
Article 412, which Rule 108 implements, contemplates all kinds of issues and all types of procedures because "the provision
does not say that it applies only to non-controversial issues and that the procedure to be used is summary in nature." In
Republic v. Judge De la Cruz,29 the dissenting opinion penned by Justice Pacifico De Castro echoed the same view:

It is not accurate to say that Rule 108 would be rendered unconstitutional if it would allow the correction of more than mere
harmless clerical error, as it would thereby increase or modify substantive rights which the Constitution expressly forbids
because Article 412 of the Civil Code, the substantive law sought to be implemented by Rule 108, allows only the correction
of innocuous clerical errors not those affecting the status of persons. As was stressed in the dissent on the aforesaid Wong
Case, Article 412 does not limit in its express terms nor by mere implication, the correction authorized by it to that of mere
clerical errors. x x x it would be reasonable and justified to rule that Article 412 contemplates of correction of erroneous entry
of whatever nature, procedural safeguards having only to be provided for, as was the manifest purpose of Rule 108.

x x x proceedings for the correction of erroneous entry should not be considered as establishing one's status in a legal
manner conclusively beyond dispute or controversion, x x x the books making up the civil register and all documents relating
thereto x x x shall be prima facie evidence of the facts therein contained. Hence, the status as corrected would not have a
superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification
of error to make the matter corrected speak for the truth. x x x

Finally in Republic v. Valencia,30 the above stated views were adopted by this Court insofar as even substantial errors or
matters in a civil registry may be corrected and the true facts established, provided the parties aggrieved avail themselves of
the appropriate adversary proceeding. "If the purpose of the petition is merely to correct the clerical errors which are visible to
the eye or obvious to the understanding, the court may, under a summary procedure, issue an order for the correction of a
mistake. However, as repeatedly construed, changes which may affect the civil status from legitimate to illegitimate, as well
as sex, are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings
depending upon the nature of the issues involved. Changes which affect the civil status or citizenship of a party are
substantial in character and should be threshed out in a proper action depending upon the nature of the issues in
controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is
submitted to prove the allegations of the complaint, and proof to the contrary admitted x x x."31 "Where such a change is
ordered, the Court will not be establishing a substantive right but only correcting or rectifying an erroneous entry in the civil
registry as authorized by law. In short, Rule 108 of the Rules of Court provides only the procedure or mechanism for the
proper enforcement of the substantive law embodied in Article 412 of the Civil Code and so does not violate the
Constitution."32

In the case at bench, the OSG posits that the conversion from "MARILYN" to "MERLYN" is not a correction of an innocuous
error but a material correction tantamount to a change of name which entails a modification or increase in substantive rights.
For the OSG, this is a substantial error that requires compliance with the procedure under Rule 103, and not Rule 108.

It appears from these arguments that there is, to some extent, confusion over the scope and application of Rules 103 and
Rule 108. Where a "change of name" will necessarily be reflected by the corresponding correction in an entry, as in this case,
the functions of both rules are often muddled. While there is no clear-cut rule to categorize petitions under either rule, this
Court is of the opinion that a resort to the basic distinctions between the two rules with respect to alterations in a person’s
registered name can effectively clear the seeming perplexity of the issue. Further, a careful evaluation of circumstances
alleged in the petition itself will serve as a constructive guide to determine the propriety of the relief prayed for.

The "change of name" contemplated under Article 376 and Rule 103 must not be confused with Article 412 and Rule 108. A
change of one’s name under Rule 103 can be granted, only on grounds provided by law. In order to justify a request for
change of name, there must be a proper and compelling reason for the change and proof that the person requesting will be
prejudiced by the use of his official name. To assess the sufficiency of the grounds invoked therefor, there must be
adversarial proceedings.33

In petitions for correction, only clerical, spelling, typographical and other innocuous errors in the civil registry may be raised.
Considering that the enumeration in Section 2, Rule 10834 also includes "changes of name," the correction of a patently
misspelled name is covered by Rule 108. Suffice it to say, not all alterations allowed in one’s name are confined under Rule
103. Corrections for clerical errors may be set right under Rule 108.

This rule in "names," however, does not operate to entirely limit Rule 108 to the correction of clerical errors in civil registry
entries by way of a summary proceeding. As explained above, Republic v. Valencia is the authority for allowing substantial
errors in other entries like citizenship, civil status, and paternity, to be corrected using Rule 108 provided there is an
adversary proceeding. "After all, the role of the Court under Rule 108 is to ascertain the truths about the facts recorded
therein."35
A serious scrutiny of this petition reveals a glaring lack of support to the OSG’s assumption that Mercadera intended to
change her name under Rule 103. All that the petition propounded are swift arguments on the alleged procedural flaws of
Mercadera’s petition before the RTC. In the same vein, no concrete contention was brought up to convince this Court that the
dangers sought to be prevented by the adversarial proceedings prescribed in Rule 103 are attendant in this case. Instead,
the RTC found the documents presented by Mercadera to have satisfactorily shown that she had been known as MERLYN
ever since, discounting the possibility that confusion, or a modification of substantive rights might arise. Truth be told, not a
single oppositor appeared to contest the petition despite full compliance with the publication requirement.

Thus, the petition filed by Mercadera before the RTC correctly falls under Rule 108 as it simply sought a correction of a
misspelled given name. To correct simply means "to make or set aright; to remove the faults or error from." To change
means "to replace something with something else of the same kind or with something that serves as a substitute."36 From
the allegations in her petition, Mercadera clearly prayed for the lower court "to remove the faults or error" from her registered
given name "MARILYN," and "to make or set aright" the same to conform to the one she grew up to, "MERLYN." It does not
take a complex assessment of said petition to learn of its intention to simply correct the clerical error in spelling. Mercadera
even attempted to avail of the remedy allowed by R.A. No. 9048 but she unfortunately failed to enjoy the expediency which
the law provides and was constrained to take court action to obtain relief. Thus, the petition was clear in stating:

7. That as such, there is a need to correct her given name as appearing in her Certificate of Live Birth from MARILYN to
MERLYN to conform to her true and correct given name that she had been using and had been known within the community
x x x.

8. That herein petitioner went to the Office of the Local Civil Registrar of Dipolog City and requested them to effect such
correction in her Certificate of Live Birth, however, the Local Civil Registrar of Dipolog City will not effect such correction
unless an order is obtained by herein petitioner from this Honorable Court because the Local Civil Registrar therein is not yet
equipped with permanent appointment before he can validly act on petitions for corrections filed before their office as
mandated by Republic Act 9048, hence the filing of this petition. [Emphases supplied]

Indeed, there are decided cases involving mistakes similar to Mercadera’s case which recognize the same a harmless error.
In Yu v. Republic37 it was held that "to change ‘Sincio’ to ‘Sencio’ which merely involves the substitution of the first vowel ‘i’
in the first name into the vowel ‘e’ amounts merely to the righting of a clerical error." In Labayo-Rowe v. Republic,38 it was
held that the change of petitioner’s name from "Beatriz Labayo/Beatriz Labayu" to "Emperatriz Labayo" was a mere
innocuous alteration wherein a summary proceeding was appropriate. In Republic v. Court of Appeals, Jaime B. Caranto and
Zenaida P. Caranto, the correction involved the substitution of the letters "ch" for the letter "d," so that what appears as
"Midael" as given name would read "Michael." In the latter case, this Court, with the agreement of the Solicitor General, ruled
that the error was plainly clerical, such that, "changing the name of the child from ‘Midael C. Mazon’ to ‘Michael C. Mazon’
cannot possibly cause any confusion, because both names can be read and pronounced with the same rhyme (tugma) and
tone (tono, tunog, himig)."39

In this case, the use of the letter "a" for the letter "e," and the deletion of the letter "i," so that what appears as "Marilyn" would
read as "Merlyn" is patently a rectification of a name that is clearly misspelled. The similarity between "Marilyn" and "Merlyn"
may well be the object of a mix- up that blemished Mercadera’s Certificate of Live Birth until her adulthood, thus, her interest
to correct the same.

The CA did not allow Mercadera the change of her name. What it did allow was the correction of her misspelled given name
which she had been using ever since she could remember.

It is worthy to note that the OSG’s reliance on Republic vs. Hernandez40 is flawed. In that case, this Court said that "a
change in a given name is a substantial matter" and that it "cannot be granted by means of any other proceeding that would
in effect render it a mere incident or an offshoot of another special proceeding." While this Court stands true to the ruling in
Hernandez, the said pronouncement therein was stated in a different tenor and, thus, inapplicable to this case. Hernandez
was decided against an entirely different factual milieu. There was a petition for adoption that must not have led to a
corresponding change in the adoptee’s given name because "it would be procedurally erroneous to employ a petition for
adoption to effect a change of name in the absence of a corresponding petition for the latter relief at law." In the present
case, the issue is the applicability of either Rule 103 or Rule 108 and the relief sought by Mercadera can in fact be granted
under the latter. This Court finds no attempt on the part of Mercadera to render the requirements under Rule 103 illusory as
in Hernandez.

Besides, granting that Rule 103 applies to this case and that compliance with the procedural requirements under Rule 108
falls short of what is mandated, it still cannot be denied that Mercadera complied with the requirement for an adversarial
proceeding before the lower court. The publication and posting of the notice of hearing in a newspaper of general circulation
and the notices sent to the OSG and the Local Civil Registry are sufficient indicia of an adverse proceeding. The fact that no
one opposed the petition, including the OSG, did not deprive the court of its jurisdiction to hear the same and did not make
the proceeding less adversarial in nature. Considering that the OSG did not oppose the petition and the motion to present its
evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court were
procedurally defective. Indeed, it has become unnecessary to further discuss the reasons why the CA correctly affirmed the
findings of the lower court especially in admitting and according probative value to the evidence presented by Mercadera.

WHEREFORE, the December 9, 2008 Decision of the Court of Appeals in CA-G.R. CV No. 00568-MIN is AFFIRMED. SO
ORDERED.

G.R. No. L-53417 December 8, 1988

EMPERATRIZ LABAYO-ROWE, petitioners, vs. REPUBLIC OF THE PHILIPPINES, respondents. GANCAYCO, J.:
At issue in this petition is the nature of the proceedings required in order to effect correction of entries in the civil registry
involving the correct spelling of the surname as well as the civil status of the mother at the time of the birth of her child.

On November 18, 1970, Emperatriz Labayo-Rowe, petitioner below, filed through counsel 1 a petition for the correction of
entries in the civil registry with the then Court of First Instance of Pampanga. 2 She asked the court to order the Local Civil
Registrar of San Fernando, Pampanga to correct the entries in the birth certificates of her children Vicente L. Miclat, Jr. and
Victoria Miclat especially with regard to petitioner's name which appears in both certificates as "Beatriz Labayo-Labayu and
as regards her civil status and date of marriage which appears in the birth certificate of Victoria Miclat as "married" with the
year appearing "1953 Bulan." 3

In the order dated December 3, 1970, Judge Malcolm Sarmiento, finding the petition to be sufficient in form and substance,
granted the petition and set the case for hearing on January 20, 1971. 4 As directed by the court, the said order was
published in Voice, a local newspaper of general circulation in Pampanga for three (3) consecutive weeks, particularly in its
issues of December 6, 13, and 20, 1970. 5 The Republic was represented by Assistant Provincial Fiscal Jose R. Paras who
appeared for the Solicitor General.

At the hearing, petitioner testified that her nickname is Beatriz and Emperatriz J. Labayo is her real name; that the entry in
Victoria Miclat's birth certificate stating her civil status as "married" is not correct because she was never married to Vicente
Miclat, the father of her child; that the date and place of marriage appearing in the said birth certificate as 1953-Bulan is not
true as they were never married; that the questioned entries were reported by Vicente Miclat; and that she is at present
married to an American by the name of William Rowe.

Finding merit in the petition, the presiding judge issued an order dated January 25, 1971 directing the local civil registrar of
San Fernando, Pampanga to correct the entries under Register No. 2083, Series of 1961, and to change the name of the
mother appearing as Beatriz Labayo to Emperatriz Labayo. The court also directed the civil registrar to correct the name of
the mother appearing as Beatriz V. Labayu/Beatriz to Emperatriz Labayo, her civil status from "married" to "single" and the
date and place of marriage from "1953-Bulan" to "No marriage."

On February 19, 1971, the Assistant Provincial Fiscal of Pampanga filed a notice of appeal together with the record on
appeal, praying that the same be approved and forwarded to the Court of Appeals. There being no objection interposed and
since the record on appeal was filed within the reglementary period, the same was approved and directed to be forwarded to
the Court of Appeals in an Order dated March 22, 1971.6

In its appeal, the Republic questions the propriety of the lower court's order to correct the civil status and the date and place
of marriage of the petitioner below as appearing in the birth certificate of Victoria Miclat. Anchoring its argument in the ruling
of this Court in Chua Wee vs. Republic,7 and Go vs. Civil Registrar of the Municipality of Malabon,8 the Republic prays for
the reversal of the order of the lower court dated January 25, 1971. It likewise prayed that the appeal be elevated to this
Court as it involves a pure question of law. 9

The Court of Appeals was of the view that the question on appeal pertains only to the propriety of the lower court's order
dated January 25, 1971 directing the changes in the entries of the birth certificate of Victoria Miclat. In its Resolution dated
December 28, 1979, 10 the appellate court ordered the certification and elevation of the case to this Court inasmuch as the
appeal involves a pure question of law.

Article 412 of the Civil Code provides that "(n)o entry in a civil register shall be changed or corrected without judicial order." It
has been held that the corrections contemplated in Article 412 include only corrections of mistakes that are clerical in nature.
In Go vs. Civil Registrar of the Municipality of Malabon, 11 this Court ruled that the clerical errors which might be corrected
through judicial sanction under the said article should be those harmless and innocuous changes such as the correction of
names clearly misspelled, 12 occupation of parents, errors that are visible to the eye or obvious to the understanding, errors
made by a clerk or transcriber, or a mistake in copying or writing.13

If the purpose of the petition is merely to correct the clerical errors which are visible to the eye or obvious to the
understanding, 14 the court may, under a summary procedure, issue an order for the correction of the mistake.15 However,
as repeatedly construed, changes which may affect the civil status from legitimate to illegitimate, as well as sex, are
substantial and controversial alterations which can only be allowed after appropriate adversary proceedings 16 depending
upon the nature of the issues involved.17 This opinion is predicated upon the theory that the procedure contemplated in
Article 412 is summary in nature which does not cover cases involving controversial issues.18 Changes which affect the civil
status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the
nature of the issues in controversy, 19 and wherein all the parties who may be affected by the entries are notified or
represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted. 20 The
philosophy behind this requirement lies in the fact that the books making up the civil register and all documents relating
thereto shall be prima facie evidence of the facts therein contained. 21 If the entries in the civil register could be corrected or
changed through mere summary proceedings and not through appropriate action wherein all parties who may be affected by
the entries are notified or represented, the door to fraud or other mischief would be set open, the consequence of which
might be detrimental and far reaching. 22 For these reasons, the law has placed the necessary safeguards to forestall such
an eventuality so that even on matters which call for a correction of clerical mistakes, the intervention of the courts was found
necessary.

As earlier noted, the petition for correction of entries in the civil registry which is now before Us on appeal by the Republic
does not only involve the correction of petitioner Labayo's name and surname registered as "Beatriz Labayo/Beatriz Labayo
in the birth certificates of her children. The petition also seeks the change of her status from "married" to "not married" at the
time of her daughter's birth, thereby changing the status of her child Victoria Miclat from "legitimate" to "illegitimate." The
change of petitioner's name from Beatriz Labayo/Beatriz Labayo to Emperatriz Labayo is a mere innocuous alteration
wherein a summary proceeding is appropriate. The Republic, however, is appealing the part of the questioned Order which
directed as well the change of the petitioner's status from "married" to "not married" and Victoria Miclat's filiation from
"legitimate" to "illegitimate."

In David vs. Republic, 23 this Court held' that where the petition for correction of entries in the civil registry, if granted, will
have the effect of changing not only the civil status of the petitioner but as well as her child's filiation from "legitimate" to
"illegitimate," the same cannot be granted except in an adversary proceeding. The matter should be threshed out in an
appropriate action as the corrections involve substantial alterations, and not mere clerical errors. 24 An appropriate
proceeding is required wherein all the indispensable parties should be made parties to the case as required under Section 3,
Rule 108 of the Revised Rules of Court.

In the case before Us, since only the Office of the Solicitor General was notified through the Office of the Provincial Fiscal,
representing the Republic of the Philippines as the only respondent, the proceedings taken, which is summary in nature, is
short of what is required in cases where substantial alterations are sought. Aside from the Office of the Solicitor General, all
other indispensable parties should have been made respondents. They include not only the declared father of the child but
the child as well, together with the paternal grandparents, if any, as their hereditary rights would be adversely affected
thereby 25 All other persons who may be affected by the change should be notified or represented. 26 The truth is best
ascertained under an adversary system of justice. 27

The right of the child Victoria to inherit from her parents would be substantially impaired if her status would be changed from
"legitimate" to "illegitimate." Moreover, she would be exposed to humiliation and embarassment resulting from the stigma of
an illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the petition was published in a
newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings
taken. Rule 108, like all the other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its
rule-making authority under Section 13, Article VIII of the 1973 Constitution 28 which directs that such rules "shall not
diminish, increase or modify substantive rights." If Rule 108 were to be extended beyond innocuous or harmless changes or
corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, without observing
the proper proceedings as earlier mentioned, said rule would thereby become an unconstitutional exercise which would tend
to increase or modify substantive rights. This situation is not contemplated under Article 412 of the Civil Code.

WHEREFORE, premises considered, the Order appealed from is hereby MODIFIED by nullifying the portion which directs
the change of petitioner's civil status as well as the filiation of the child Victoria Miclat. Let a copy of this decision be served
upon the Local Civil Registrar of San Fernando, Pampanga for proper implementation. No costs. This decision is immediately
executory. SO ORDERED.

G.R. No. 189476 February 2, 2011

REPUBLIC OF THE PHILIPPINES, Petitioner, vs.

JULIAN EDWARD EMERSON COSETENG-MAGPAYO (A.K.A. JULIAN EDWARD EMERSON MARQUEZ-LIM
COSETENG), Respondent. CARPIO MORALES, J.:

Born in Makati on September 9, 1972, Julian Edward Emerson Coseteng Magpayo (respondent) is the son of Fulvio M.
Magpayo Jr. and Anna Dominique Marquez-Lim Coseteng who, as respondent’s certificate of live birth1 shows, contracted
marriage on March 26, 1972.

Claiming, however, that his parents were never legally married, respondent filed on July 22, 2008 at the Regional Trial Court
(RTC) of Quezon City a Petition to change his name to Julian Edward Emerson Marquez Lim Coseteng. The petition,
docketed as SPP No. Q-0863058, was entitled "IN RE PETITION FOR CHANGE OF NAME OF JULIAN EDWARD
EMERSON COSETENG MAGPAYO TO JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG."

In support of his petition, respondent submitted a certification from the National Statistics Office stating that his mother Anna
Dominique "does not appear in [its] National Indices of Marriage."2 Respondent also submitted his academic records from
elementary up to college3 showing that he carried the surname "Coseteng," and the birth certificate of his child where
"Coseteng" appears as his surname.4 In the 1998, 2001 and 2004 Elections, respondent ran and was elected as Councilor of
Quezon City’s 3rd District using the name "JULIAN M.L. COSETENG."5

On order of Branch 77 of the Quezon City RTC,6 respondent amended his petition by alleging therein compliance with the 3-
year residency requirement under Section 2, Rule 103] of the Rules of Court.7

The notice setting the petition for hearing on November 20, 2008 was published in the newspaper Broadside in its issues of
October 31-November 6, 2008, November 7-13, 2008, and November 14-20, 2008.8 And a copy of the notice was furnished
the Office of the Solicitor General (OSG).

No opposition to the petition having been filed, an order of general default was entered by the trial court which then allowed
respondent to present evidence ex parte.9

By Decision of January 8, 2009,10 the trial court granted respondent’s petition and directed the Civil Registrar of Makati
City to:
1. Delete the entry "March 26, 1972" in Item 24 for "DATE AND PLACE OF MARRIAGE OF PARTIES" [in herein
respondent’s Certificate of live Birth];
2. Correct the entry "MAGPAYO" in the space for the Last Name of the [respondent] to "COSETENG";
3. Delete the entry "COSETENG" in the space for Middle Name of the [respondent]; and
4. Delete the entry "Fulvio Miranda Magpayo, Jr." in the space for FATHER of the [respondent]… (emphasis and
underscoring supplied; capitalization in the original)
 The Republic of the Philippines (Republic) filed a motion for reconsideration but it was denied by the trial court by Order of
July 2, 2009,11 hence, it, thru the OSG, lodged the present petition for review to the Court on pure question of law.
The Republic assails the decision in this wise:

I. . . . THE PETITION FOR CHANGE OF NAME…INVOLVES THE CHANGE OF [RESPONDENT’S] CIVIL STATUS FROM
LEGITIMATE TO ILLEGITIMATE AND, THEREFORE, SHOULD BE MADE THROUGH APPROPRIATE ADVERSARIAL
PROCEEDINGS…

II. THE TRIAL COURT EXCEEDED ITS JURISDICTION WHEN IT DIRECTED THE DELETION OF THE NAME OF
RESPONDENT’S FATHER FROM HIS BIRTH CERTIFICATE.12 (emphasis and underscoring supplied)

The Republic contends that the deletion of the entry on the date and place of marriage of respondent’s parents from his birth
certificate has the effect of changing his civil status from legitimate to illegitimate, hence, any change in civil status of a
person must be effected through an appropriate adversary proceeding.13

The Republic adds that by ordering the deletion of respondent’s parents’ date of marriage and the name of respondent’s
father from the entries in respondent’s birth certificate,14 the trial court exceeded its jurisdiction, such order not being in
accord with respondent’s prayer reading:

WHEREFORE, premises considered, it is most respectfully prayed that the Honorable Court issue an order allowing the
change of name of petitioner from JULIAN EDWARD EMERSON COSETENG MAGPAYO to JULIAN EDWARD EMERSON
MARQUEZ-LIM COSETENG, and that the Honorable Court order the Local Civil Registrar and all other relevant government
agencies to reflect the said change of name in their records.

Petitioner prays for other reliefs deemed proper under the premises.15 (underscoring supplied)

Respondent counters that the proceeding before the trial court was adversarial in nature. He cites the serving of copies of the
petition and its annexes upon the Civil Registrar of Makati, the Civil Registrar General, and the OSG; the posting of copies of
the notice of hearing in at least four public places at least ten days before the hearing; the delegation to the OSG by the City
Prosecutor of Quezon City to appear on behalf of the Republic; the publication of the notice of hearing in a newspaper of
general circulation for three consecutive weeks; and the fact that no oppositors appeared on the scheduled hearing.16

The petition is impressed with merit.

A person can effect a change of name under Rule 103 (CHANGE OF NAME) using valid and meritorious grounds including
(a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a
legal consequence such as legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and
been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino
name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of
name would prejudice public interest.17 Respondent’s reason for changing his name cannot be considered as one of, or
analogous to, recognized grounds, however.

The present petition must be differentiated from Alfon v. Republic of the Philippines.18 In Alfon, the Court allowed the therein
petitioner, Estrella Alfon, to use the name that she had been known since childhood in order to avoid confusion. Alfon did not
deny her legitimacy, however. She merely sought to use the surname of her mother which she had been using since
childhood. Ruling in her favor, the Court held that she was lawfully entitled to use her mother’s surname, adding that the
avoidance of confusion was justification enough to allow her to do so. In the present case, however, respondent denies his
legitimacy.

The change being sought in respondent’s petition goes so far as to affect his legal status in relation to his parents. It seeks to
change his legitimacy to that of illegitimacy. Rule 103 then would not suffice to grant respondent’s supplication.

Labayo-Rowe v. Republic19 categorically holds that "changes which may affect the civil status from legitimate to illegitimate .
. . are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings . . ."

Since respondent’s desired change affects his civil status from legitimate to illegitimate, Rule 108 applies. It reads:

SECTION 1. Who may file petition.—Any person interested in any act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry
relating thereto, with the [RTC] of the province where the corresponding civil registry is located.
SEC. 3. Parties.—When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons
who have or claim any interest which would be affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. –Upon the filing of the petition, the court shall, by an order, fix the time and place for the
hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in
the province. (emphasis, italics and underscoring supplied)
Rule 108 clearly directs that a petition which concerns one’s civil status should be filed in the civil registry in which the entry
is sought to be cancelled or corrected – that of Makati in the present case, and "all persons who have or claim any interest
which would be affected thereby" should be made parties to the proceeding.
As earlier stated, however, the petition of respondent was filed not in Makati where his birth certificate was registered but in
Quezon City. And as the above-mentioned title of the petition filed by respondent before the RTC shows, neither the civil
registrar of Makati nor his father and mother were made parties thereto.
Respondent nevertheless cites Republic v. Capote20 in support of his claim that his change of name was effected through
an appropriate adversary proceeding.

Republic v. Belmonte,21 illuminates, however:

The procedure recited in Rule 103] regarding change of name and in Rule 108 concerning the cancellation or correction of
entries in the civil registry are separate and distinct. They may not be substituted one for the other for the sole purpose of
expediency. To hold otherwise would render nugatory the provisions of the Rules of Court allowing the change of one’s name
or the correction of entries in the civil registry only upon meritorious grounds. . . . (emphasis, capitalization and underscoring
supplied) Even assuming arguendo that respondent had simultaneously availed of these two statutory remedies, respondent
cannot be said to have sufficiently complied with Rule 108. For, as reflected above, aside from improper venue, he failed to
implead the civil registrar of Makati and all affected parties as respondents in the case.

Republic v. Labrador22 mandates that "a petition for a substantial correction or change of entries in the civil registry should
have as respondents the civil registrar, as well as all other persons who have or claim to have any interest that would be
affected thereby." It cannot be gainsaid that change of status of a child in relation to his parents is a substantial correction or
change of entry in the civil registry.

Labayo-Rowe23 highlights the necessity of impleading indispensable parties in a petition which involves substantial and
controversial alterations. In that case, the therein petitioner Emperatriz Labayo-Rowe (Emperatriz) filed a petition for the
correction of entries in the birth certificates of her children, Vicente Miclat, Jr. and Victoria Miclat, in the Civil Registry of San
Fernando, Pampanga. Emperatriz alleged that her name appearing in the birth certificates is Beatriz, which is her nickname,
but her full name is Emperatriz; and her civil status appearing in the birth certificate of her daughter Victoria as "married" on
"1953 Bulan" are erroneous because she was not married to Vicente Miclat who was the one who furnished the data in said
birth certificate.

The trial court found merit in Emperatriz’s petition and accordingly directed the local civil registrar to change her name
appearing in her children’s birth certificates from Beatriz to Emperatriz; and to correct her civil status in Victoria’s birth
certificate from "married" to "single" and the date and place of marriage to "no marriage."

On petition before this Court after the Court of Appeals found that the order of the trial court involved a question of law, the
Court nullified the trial court’s order directing the change of Emperatriz’ civil status and the filiation of her child Victoria in light
of the following observations:

x x x x Aside from the Office of the Solicitor General, all other indispensable parties should have been made respondents.
They include not only the declared father of the child but the child as well, together with the paternal grandparents, if any, as
their hereditary rights would be adversely affected thereby. All other persons who may be affected by the change should be
notified or represented. The truth is best ascertained under an adversary system of justice.

The right of the child Victoria to inherit from her parents would be substantially impaired if her status would be changed from
"legitimate" to "illegitimate." Moreover, she would be exposed to humiliation and embarrassment resulting from the stigma of
an illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the petition was published in a
newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings
taken. Rule 108, like all the other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its
rule-making authority under Section 13, Article VIII of the 1973 Constitution, which directs that such rules "shall not diminish,
increase or modify substantive rights." If Rule 108 were to be extended beyond innocuous or harmless changes or
corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, without observing
the proper proceedings as earlier mentioned, said rule would thereby become an unconstitutional exercise which would tend
to increase or modify substantive rights. This situation is not contemplated under Article 412 of the Civil Code.24 (emphasis,
italics and underscoring supplied)

As for the requirement of notice and publication, Rule 108 provides:

SEC. 4. Notice and publication.—Upon the filing of the petition, the court shall, by an order, fix the time and place for the
hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in
the province.

SEC. 5. Opposition.—The civil registrar and any person having or claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice,
file his opposition thereto. (emphasis and underscoring supplied)

A reading of these related provisions readily shows that Rule 108 clearly mandates two sets of notices to different "potential
oppositors." The first notice is that given to the "persons named in the petition" and the second (which is through publication)
is that given to other persons who are not named in the petition but nonetheless may be considered interested or affected
parties, such as creditors. That two sets of notices are mandated under the above-quoted Section 4 is validated by the
subsequent Section 5, also above-quoted, which provides for two periods (for the two types of "potential oppositors") within
which to file an opposition (15 days from notice or from the last date of publication).

This is the overriding principle laid down in Barco v. Court of Appeals.25 In that case, Nadina Maravilla (Nadina) filed a
petition for correction of entries in the birth certificate of her daughter June from June Salvacion Maravilla to June Salvacion
"Gustilo," Armando Gustilo being, according to Nadina, her daughter’s real father. Gustilo in fact filed before the trial court a
"CONSTANCIA" wherein he acknowledged June as his daughter. The trial court granted the petition.
After Gustilo died, his son Jose Vicente Gustilo filed with the Court of Appeals a petition for annulment of the Order of the
trial court granting the change of June’s family name to Gustilo.

Milagros Barco (Barco), natural guardian of her minor daughter Mary Joy Ann Gustilo, filed before the appellate court a
motion for intervention, alleging that Mary Joy had a legal interest in the annulment of the trial court’s Order as Mary Joy was,
by Barco’s claim, also fathered by Gustilo.

The appellate court dismissed the petition for annulment and complaint-in-intervention. On appeal by Barco, this Court ruled
that she should have been impleaded in Nadina’s petition for correction of entries of the birth certificate of Mary Joy. But
since a petitioner, like Nadina, is not expected to exhaustively identify all the affected parties, the subsequent publication of
the notice cured the omission of Barco as a party to the case. Thus the Court explained:

Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108.1awphi1 Her interest was affected by the
petition for correction, as any judicial determination that June was the daughter of Armando would affect her ward’s share in
the estate of her father. It cannot be established whether Nadina knew of Mary Joy’s existence at the time she filed the
petition for correction. Indeed, doubt may always be cast as to whether a petitioner under Rule 108 would know of all the
parties whose interests may be affected by the granting of a petition. For example, a petitioner cannot be presumed to be
aware of all the legitimate or illegitimate offsprings of his/her spouse or paramour. x x x x.

The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent judgment on the petition. The
sweep of the decision would cover even parties who should have been impleaded under Section 3, Rule 108 but were
inadvertently left out. x x x x.26 (emphasis, italics and underscoring supplied)

Meanwhile, in Republic v. Kho,27 Carlito Kho (Carlito) and his siblings named the civil registrar as the sole respondent in the
petition they filed for the correction of entries in their respective birth certificates in the civil registry of Butuan City, and
correction of entries in the birth certificates of Carlito’s minor children. Carlito and his siblings requested the correction in their
birth certificates of the citizenship of their mother Epifania to "Filipino," instead of "Chinese," and the deletion of the word
"married" opposite the phrase "Date of marriage of parents" because their parents ─ Juan and Epifania ─ were not married.
And Carlito requested the correction in the birth certificates of their children of his and his wife’s date of marriage to reflect
the actual date of their marriage as appearing in their marriage certificate. In the course of the hearing of the petition, Carlito
also sought the correction of the name of his wife from Maribel to "Marivel."

The Khos’ mother Epifania took the witness stand where she declared that she was not married to Juan who died before the
filing of the Khos’ petition.

The trial court granted the petition. On the issue of whether the failure to implead Marivel and the Khos’ parents rendered the
trial of the petition short of the required adversary proceedings and the trial court’s judgment void, this Court held that when
all the procedural requirements under Rule 108 are followed, the publication of the notice of hearing cures the failure to
implead an indispensable party. In so ruling, the Court noted that the affected parties were already notified of the
proceedings in the case since the petitioner-siblings Khos were the ones who initiated the petition respecting their prayer for
correction of their citizenship, and Carlito respecting the actual date of his marriage to his wife; and, with respect to the Khos’
petition for change of their civil status from legitimate to illegitimate, their mother Epifania herself took the witness stand
declaring that she was not married to their father.

What is clear then in Barco and Kho is the mandatory directive under Section 3 of Rule 108 to implead the civil registrar and
the parties who would naturally and legally be affected by the grant of a petition for correction or cancellation of entries. Non-
impleading, however, as party-respondent of one who is inadvertently left out or is not established to be known by the
petitioner to be affected by the grant of the petition or actually participates in the proceeding is notified through publication.

IN FINE, when a petition for cancellation or correction of an entry in the civil register involves substantial and controversial
alterations including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with
the requirements of Rule 108 of the Rules of Court is mandated.

WHEREFORE, the petition is, in light of the foregoing discussions, GRANTED. The January 8, 2009 Decision of Branch 77
of the Regional Trial Court of Quezon City in SP Proc. No. Q-0863058 is NULLIFIED. SO ORDERED.

G.R. No. 140305 December 9, 2005

PLATON AND LIBRADA CERUILA, Petitioners, vs. ROSILYN DELANTAR, represented by her guardian,
DEPARTMENT OF SOCIAL WELFARE and DEVELOPMENT, Respondent. AUSTRIA-MARTINEZ, J.:

Petitioners-spouses Platon Ceruila and Librada D. Ceruila (Ceruilas) filed an action with the Regional Trial Court (RTC) of
Manila, docketed as Spec. Proc. No. 97-818932, for the annulment and cancellation of the birth certificate of Maria Rosilyn
Telin Delantar (Rosilyn), the child-victim in the rape case involving Romeo Jaloslos.1 The RTC granted the Ceruilas’ petition
in its decision dated April 11, 19972 which was nullified, however, by the Court of Appeals (CA) on June 10, 1999.3 The CA
denied petitioners’ motion for reconsideration.4 Hence the present petition.

The antecedents are as follows: Sometime in 1996, Rosilyn complained against her father, Simplicio Delantar (Simplicio) for
child abuse, particularly prostitution. Simplicio was incarcerated at the Pasay City Jail starting August 22, 1996 which
prompted the filing of a petition for involuntary commitment of Rosilyn in favor of the Department of Social Welfare and
Development (DSWD), as the whereabouts of the mother, Librada Ceruila, was unknown. The petition was granted by the
RTC of Pasay City, Branch 119 on November 9, 1996 and Simplicio’s motion to vacate said judgment was denied by said
court on January 20, 1997.5
On February 3, 1997, the Ceruilas filed a petition before the RTC of Manila, entitled "IN THE MATTER OF CANCELLATION
AND ANNULMENT OF THE BIRTH CERTIFICATE OF MARIA ROSILYN TELIN DELANTAR," praying that the birth
certificate of Rosilyn be canceled and declared null and void for the reasons that said birth certificate was made an
instrument of the crime of simulation of birth and therefore invalid and spurious, and it falsified all material entries therein, as
follows:

a. The name of her mother which should not be petitioner Librada A. Telin;
b. The signature of informant referring to ‘Librada T. Delantar’ being a forgery;
c. The name of Simplicio Delantar as the biological father, considering that, as already mentioned, he is merely the foster
father and co-guardian in fact of Maria Rosilyn and the name of the natural father in (sic) unknown;
d. The date of marriage of the supposed parents, since the parents reflected in said certificate were (sic) actually full blood
brother and sister and therefore marriage between the two is virtually impossible;
e. The status of Maria Rosilyn as a legitimate child as the same (sic) is actually not legitimate;
f. The date of actual birth of Marial (sic) Rosilyn, since the known father merely made it appear that she was born at the
time the informations for the birth certificate were supplied by him to the civil registrar or (sic) proper recording;
g. The name of the physician who allegedly attended at the time of birth of Maria Rosilyn, being a fictitious ‘Dr. Santos’.6

On February 7, 1997, the RTC issued an Order setting the case for hearing on March 19, 1997 and directed the publication
of said order once a week for three consecutive weeks in a newspaper of general circulation. The Order also stated that any
person who is interested in the petition may interpose his/her comment or opposition thereto on or before the scheduled
hearing.7

Summons was sent to the Civil Register of Manila.8 However, no representative appeared during the scheduled hearing.9
On April 11, 1997, the RTC rendered its decision granting the petition of the Ceruilas as follows:
WHEREFORE, judgment is hereby rendered:
1. DECLARING the certificate of live birth of the Minor Maria Rosilyn Telin Delantar as registered under the Local Civil
Registry No. 85-27325 of the office of the City Civil Registrar of Manila as null and void ab initio: and
2. ORDERING the City Civil Registrar of Manila and the National Statistics Office, Manila, to expunge from their respective
marriage registers the entry of the birth of said minor and such other documents pertaining thereto, if any.
Let a copy of this Decision be served on the Office of the City Civil Registrar of Manila and the National Statistics Office for
record purposes.SO ORDERED.
The RTC explained in its Decision thus:
During the initial trial, the petition was read aloud in open court to find out if there is any opposition thereto. There being
none, the petitioner’s counsel, Atty. Goering G.C. Paderanga, then established the jurisdictional requirements (Exhibits "A" to
"E").11 Thereafter, petitioner husband Platon Ceruila was placed on the stand as the lone witness for the petitioner and after
he completed his testimony, Atty. Paderanga formally offered his evidence and rested his case.
The evidence on record reveals the following:

On May 11, 1985, a child was born at the Dr. Jose Fabella Memorial Hospital in Sta. Cruz, Manila. The name of the child was
entered in her birth certificate as Maria Rosilyn Telin Delantar (Exhibit "I"). In the said birth certificate the name of the child’s
mother appear as Librada A. Telin (Entry No. 6) while that of her father as Simplicio R. Delantar (Entry No. 9). The birth
certificate likewise shows that the parents of the child, Simplicio R. Delantar and Librada A. Telin, were married on February
14, 1977 in Manila (Entry No. 12). Likewise, in Entry No. 21 of the same document, it is made to appear that the mother of
the child was 27 years old when the child was born and that she was attended in her delivery thereof by Dr. Santos (Entry
No. 13). The birth certificate was signed by one Librada T. delos Santos as the informant and mother of the child with her
given address as 2165 P. Burgos St., Pasay City (Entry No. 14). This is the very certificate of live birth that is being seriously
impugned by the herein petitioners.

In support of their petition, the petitioners submitted the baptismal certificates of Simplicio Delantar (Exhibit "J") and Librada
Delantar (Exhibit "K") to prove that they are full blood brother and sister and could not have been possible for them to have
sired Rosilyn (sic). In the said baptismal certificates, the names of the parents of Simplicio and Librada are similarly entered
as Juan Delantar and Carila Telen (Exhibit "J-1" and "K-1"). The Court is inclined to concur with the observation of the
petitioner that it is highly unlikely that the alleged parents of Rosilyn would commit an incestuous act and proclaim to the
whole world that they are the parents of the herein minor. The court has also observed that in the baptismal certificate of
Librada Delantar, it is entered therein that she was born on January 8, 1940 in Tubod, Manglanilla, Cebu (Exhibit "K-2").
Such being the case, then Librada must have been 45 years of age at the time of the birth of Rosilyn in stark contrast to her
age appearing in Entry No. 27 (sic) of the birth certificate of the latter which shows that Librada was 27 years old at the time
of her delivery. The presentation of the baptismal certificate of Librada Delantar as secondary evidence of her birth certificate
was resorted to after the Office of the Local Civil Registrar of Minglanilla, Cebu gave a certification to the effect that the
records of birth on file with the office for the period January, 1940 to April, 1945 were all destroyed by WORLD WAR II
(Exhibit "L"). And going for the jugular, so to speak, the signature of the person named Librada T. delos Santos in the birth
certificate (Exhibit "I") purporting to be that of the petitioner wife and the signature of the latter appearing in the verification of
the petitioner (sic) (Exhibit "A-6") are so strikingly dissimilar that they could not have but proceeded from two different hands.
For it does not require the trained eye of an expert calligrapher to discern such discrepancy in the writing style.

In fine, there being an abundance of evidence to support the petitioner’s claim that the birth certificate is indeed a falsified
document, the Court is left with no other alternative but to grant the relief prayed for in the petition. To let the birth certificate
reamin (sic) as it is would adversely affect the rights and interests of the herein petitioners.12

On July 15, 1997, Rosilyn, represented by her legal guardian, the DSWD, filed, with the CA, a petition for the annulment of
judgment in the petition for cancellation of entry of her birth certificate.13 She claimed that she and her guardian were not
notified of the petition and the subsequent judgment and learned about the same only from the news on May 16, 1997.14
She argued that the RTC decision was issued without jurisdiction and in violation of her right to due process; that the Judge
did not have authority to declare her to be illegitimate; and that mere correction of entries, not cancellation of the entire
certificate, is the appropriate remedy.15
Rosilyn further argued that: granting, without admitting that Librada is not her mother, still it was erroneous to cancel or annul
her entire birth certificate; Librada is not an interested party concerning the issue of whether Simplicio is the father, the date
of actual birth, and the name of the physician who attended to the birth;16 Librada’s allegations are also contradicted by (a)
the "Records Based on Cord Dressing Room Book … dated April 13-May 29, 1985," issued by Emelita H. Avinante, Head of
the Medical Records Section and Admitting Unit of the Fabella Hospital, which is attached to the petition for annulment as
Annex "E" and which states that Maria Rosilyn Delantar was born on May 11, 1985 at the Fabella Hospital and that her
parents are Librada Telin and Simplicio Delantar;17 and (b) the admission of Simplicio in his Motion to Vacate Judgment18 in
Sp. Proc. No. 96-41919 regarding the custody of Rosilyn, which is attached to the petition to annul as Annex "F," where he
stated that he, as the rightful parent of Rosilyn, should not be deprived of his parental authority.20

On June 10, 1999, the CA rendered the herein assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the instant Petition is GRANTED.
Judgment is hereby rendered DECLARING NULL and VOID the decision of the respondent Regional Trial Court dated April
11, 1997 in Special Proceedings No. 97-81893.
With costs against private respondents.
SO ORDERED.21
The CA reasoned that:
As shown in the caption of the petition in Special Proceedings No. 97-81893 entitled "In the Matter of Cancellation and
Annulment of the Birth Certificate of Maria Rosilyn Telin Delantar", herein petitioner Rosilyn Delantar represented by her
legal guardian, DSWD, was not made a party-respondent therein,…contrary to the mandatory provision of Section 3 of Rule
108 of the Rules of Court …
In the said Special Proceeding No. 97-81893, petitioners therein, Platon Ceruila and Librada D. Ceruila, sought not only a
cancellation or correction of an entry in the birth certificate of Rosilyn Telin Delantar but in effect sought to annul, cancel or
expunge from the Civil Register the subject birth certificate. With more reasons, therefore, that all parties, particularly Rosilyn
Telin Delantar, or thru her legal guardian, the DSWD, whose birth certificate was sought to be annulled or cancelled from the
Civil Register must not only be notified but must be made a party in the said petition.
…
Petitioner and her guardian are undoubtedly persons who have interest which would be affected by the petition for the
obvious reason that it is the entry of her birth which is being sought to be annulled and cancelled.
…
In a similar case, the Supreme Court ruled that corrections of substantial entries in the certificate other than mere clerical
errors, should be passed upon in an appropriate adversary proceedings with all the persons interested are made parties
therein… Republic vs. Valencia (141 SCRA 462; 468-469; 470-474).
The proceedings undertaken in said Special Proceedings No. 97-81893 is indeed wanting of the required notice to all the
parties having claim or interest which would be affected thereby, and of the adversarial proceedings, as disclosed in the
decision dated April 11, 1997…
…
With the foregoing disquisitions, We find that the decision dated April 11, 1997 null and void for want of jurisdiction over the
person of herein petitioner Rosilyn Delantar and the DSWD as her legal guardian and all persons who have or claim any
interest which would be affected by the said decision. Also, the said decision dated April 11, 1997 is considered null and void
for lack of due process there being no adversarial proceedings (was) conducted by the public respondent Regional Trial
Court.
…
And, even if the same judgment had already become final and executory, and had in fact been executed, as in the instant
case, still the execution thereof produces no legal effects. 22
The CA denied the motion for reconsideration of petitioners.23 Hence, the present petition raising the following issues:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION IN DECLARING NULL AND VOID THE DECISION RENDERED BY THE
REGIONAL TRIAL COURT OF MANILA BRANCH 38 DATED APRIL 11, 1997 IN SPEC. PROCEEDING NO. 97-81893
ENTITLED: IN THE MATTER OF CANCELLATION AND ANNULMENT OF THE BIRTH CERTIFICATE OF MARIA
ROSILYN TELIN DELANTAR
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SHOULD HAVE EXERCISED ITS PEREMPTORY POWER
TO DECLARE THE SUBJECT BIRTH CERTIFICATE NULL AND VOID AB INITIO.24

As to the first issue, petitioners argue that: since the falsification of the entries in the birth certificate of Rosilyn renders the
same void ab initio, the case should be liberally construed as an ordinary civil action for declaration of nullity of falsified
documents based on Article 5 of the Civil Code25 and Section 15, Rule 6 of the Rules of Court26 and not as a special
proceeding; petitioners were only constrained to utilize the provisions of Rule 108 of the Rules of Court on the Cancellation
or Correction of Entries in the Civil Registry since Article 5 of the Civil Code provides no procedure for the nullification of void
documents which happens to be a birth certificate in this case; since the present case involves an ordinary civil action, the
cases relied upon by the CA which are applicable only to special proceedings should not be applied herein; the civil registrar,
which is an indispensable party, was duly served summons by mail; respondent, meanwhile, is not an indispensable party
and granting that she is, she was deemed duly impleaded as her name was clearly stated in the caption of the case;
respondent’s location could not be determined as she was reported to have ran away from the custody of Simplicio, thus the
publication of the petition and the order of the RTC setting the case for hearing once a week for three consecutive weeks in a
newspaper of general circulation should be considered substantial notice and the requirements of due process deemed
substantially complied with; there was no adversarial proceeding in court because the parties were declared in general
default thus, just like an ordinary civil case, the court should receive evidence ex parte.27

As to the second issue, petitioners claim that: the CA should have exercised its peremptory power to declare the birth
certificate of Rosilyn as null and void ab initio following the doctrine that where an instrument is void ab initio for being
contrary to law, no amount of technicalities could correct its inherent nullity; otherwise, there will be multiplicity of actions as
the parties will have to file cases anew to annul respondent’s birth certificate.28
They then pray that the CA decision dated June 10, 1999 be reversed and that the RTC judgment dated April 11, 1997 be
reinstated.29

Anent the first issue, the Solicitor General, for the respondent, contends that: since the petitioners chose to file a petition
under Rule 108 they cannot in the present action turn around and claim that their case is not a special proceeding; in any
case, due process was not complied with rendering the proceedings a quo annullable; petitioners sought to establish Librada
Ceruila’s status, i.e., whether or not she is the mother of respondent, thus, the action falls within the ambit of Sec. 3(c), Rule
1 of the Rules of Court;30 petitioners did not allege that they are bringing the suit to enforce or protect their right or to prevent
or redress a wrong, for their case to be categorized as an ordinary civil action; Art. 5 of the Civil Code which is being invoked
by petitioners is a general provision, while entries of record of birth in the civil register are governed by Republic Act No.
3753 (Civil Registry Law) as amended, and Presidential Decree No. 651; since the law provides for a remedy when an entry
in a record found in the civil registry is erroneous or falsified, petitioners cannot, by their mere allegation, transport their case
from the realm of the rules on special proceedings for the correction of entry to that of an ordinary civil case for annulment of
a falsified document; in Republic vs. Valencia,31 it was held that the parties who must be made parties to a proceeding
concerning the cancellation or correction of an entry in the civil register are the civil registrar and all persons who have or
who are claiming interests who would be affected thereby; respondent, being a person whose interests would be adversely
affected by the petition, is an indispensable party to the case; publication cannot be substituted for notice; respondent cannot
be declared in default since she was not properly notified.32

Anent the second issue, respondent contends that the CA has no authority to rule on the merits of the case since in a petition
for annulment of judgment on the ground of lack of jurisdiction, its authority is limited to ruling on whether or not the petitioner
was denied due process of law; that if the CA were to rule on the merits of the case, it would have deprived respondent of
due process; and that in any case, respondent’s record of birth is not void as Librada was only able to prove that she is not
the mother of respondent.33

Preliminarily, this Court notes that while the petition states that it is one for review on certiorari, it claimed at the same time
that the CA committed grave abuse of discretion amounting to lack of jurisdiction, which is properly a ground for a petition for
certiorari under Rule 65 and not for a petition for review on certiorari under Rule 45. Considering however the substance of
the issues raised herein, we shall treat the present petition, as it claims, to be a petition for review on certiorari.34

Is the petition for annulment and cancellation of the birth certificate of Rosilyn an ordinary civil action or a special
proceeding? Considering that the petition, based on its allegations, does not question the fact of birth of Rosilyn, all matters
assailing the truthfulness of any entry in the birth certificate properly, including the date of birth, fall under Rule 108 of the
Rules of Court which governs cancellation or correction of entries in the Civil Registry. Thus, the petition filed by the Ceruilas,
alleging material entries in the certificate as having been falsified, is properly considered as a special proceeding pursuant to
Section 3(c), Rule 1 and Rule 108 of the Rules of Court.

Did the Ceruilas comply with the requirements of Rule 108? We answer in the negative.
Sec. 3, Rule 108 of the Rules of Court, expressly states that:
SEC. 3. Parties. --- When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons
who have or claim any interest which would be affected thereby shall be made parties to the proceeding.
Indeed, not only the civil registrar but also all persons who have or claim any interest which would be affected by a
proceeding concerning the cancellation or correction of an entry in the civil register must be made parties thereto.35 As
enunciated in Republic vs. Benemerito,36 unless all possible indispensable parties were duly notified of the proceedings, the
same shall be considered as falling much too short of the requirements of the rules.37
Here, it is clear that no party could be more interested in the cancellation of Rosilyn’s birth certificate than Rosilyn herself.
Her filiation, legitimacy, and date of birth are at stake.
Petitioners claim that even though Rosilyn was never made a party to the proceeding, it is enough that her name was
included in the caption of the petition. Such reasoning is without merit.
As we pronounced in Labayo-Rowe vs. Republic38 where the mother sought changes in the entries of her two children’s
birth certificates:
…since only the Office of the Solicitor General was notified through the Office of the Provincial Fiscal, representing the
Republic of the Philippines as the only respondent, the proceedings taken, which is summary in nature, is short of what is
required in cases where substantial alterations are sought. Aside from the Office of the Solicitor General, all other
indispensable parties should have been made respondents. They include not only the declared father of the child but the
child as well, together with the paternal grandparents, if any, as their hereditary rights would be adversely affected thereby.
All other persons who may be affected by the change should be notified or represented . . ..39 (Emphasis supplied)
In the present case, only the Civil Registrar of Manila was served summons, who, however, did not participate in the
proceedings. This alone is clearly not sufficient to comply with the requirements laid down by the rules.
Petitioners further claim that the lack of summons on Rosilyn was cured by the publication of the order of the trial court
setting the case for hearing for three consecutive weeks in a newspaper of general circulation.

We do not agree. Summons must still be served, not for the purpose of vesting the courts with jurisdiction, but to comply with
the requirements of fair play and due process.40 This is but proper, to afford the person concerned the opportunity to protect
her interest if she so chooses.

Indeed, there were instances when we ruled that even though an interested party was not impleaded in the petition, such
defect was cured by compliance with Sec. 4, Rule 108 on publication. In said cases, however, earnest efforts were made by
the petitioners in bringing to court all possible interested parties.41

Such is not the case at bar. Rosilyn was never made a party at all to the proceedings seeking the cancellation of her birth
certificate. Neither did petitioners make any effort to summon the Solicitor General. It does not take much to deduce the real
motive of petitioners in seeking the cancellation of Rosilyn’s birth certificate and in not making her, her guardian, the DSWD,
and the Republic of the Philippines, through the Solicitor General, parties to the petition. Rosilyn was involved in the rape
case against Romeo Jalosjos, where her father, as appearing in the birth certificate, was said to have pimped her into
prostitution. In the criminal case, the defense contended that the birth certificate of Rosilyn should not have been considered
by the trial court to prove Rosilyn’s age and thus find basis for statutory rape, as said birth certificate has been cancelled by
the RTC of Manila, Branch 38, in the special proceeding antecedent to this petition. Their efforts in this regard, however,
were thwarted when the CA overturned Branch 38’s decision, and the Court, in G.R. Nos. 132875-7642 considered other
evidence as proof of Rosilyn’s age at the time of the commission of the crime.

There is also no merit in the contention of petitioners that because of the false entries in the birth certificate of Rosilyn, the
same is void ab initio, hence should be nullified under Art. 5 of the Civil Code, or should be nullified by the CA in exercise of
its peremptory power to declare null and void the said certificate.

The function of a petition for annulment of judgment, under Rule 47 of the Rules of Court, is not to replace the trial court’s
decision sought to be annulled. The action under Sections 1, 2 and 7 of said Rule, to wit:

Section. 1. Coverage. --- This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in
civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the petitioner.
Sec. 2. Grounds for annulment. --- The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for
relief.

Sec. 7. Effect of judgment. --- A judgment of annulment shall set aside the questioned judgment or final order or resolution
and render the same null and void, without prejudice to the original action being refiled in the proper court. However, where
the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial
court to try the case as if a timely motion for new trial had been granted therein.

is merely for the annulment of the RTC Decision on grounds of extrinsic fraud and lack of jurisdiction, nothing more. The
Rules do not allow the CA to resolve the merits of the petition for the amendment and cancellation of the birth certificate of
Rosilyn or to substitute its own findings thereon. WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED.