1

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office,
and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in
Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be
valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders, letter of implementation
and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566,
573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246,
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-
1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150,
153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-
283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346,
349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445,
473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610,
611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882,
939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526,
1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-
1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723,
1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-
1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829,
1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858,
1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963,
1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-
2244.
 e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-
507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560,
563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703,
705-707, 712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-
81, 92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The
view is submitted that in the absence of any showing that petitioners are personally and directly
affected or prejudiced by the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of
the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or

person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use a rd enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition in the
proper court alleging the facts with certainty and praying that judgment be
rendered commanding the defendant, immediately or at some other specified
time, to do the act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful acts of
the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any
specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs.
Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would
be granted to a private individual only in those cases where he has some private or particular
interest to be subserved, or some particular right to be protected, independent of that which he
holds with the public at large," and "it is for the public officers exclusively to apply for the writ
when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless,
"when the question is one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in interest and the relator
at whose instigation the proceedings are instituted need not show that he has any legal or
special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a
proper party to the mandamus proceedings brought to compel the Governor General to call a
special election for the position of municipal president in the town of Silay, Negros Occidental.
Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this character when
a public right is sought to be enforced. If the general rule in America were
otherwise, we think that it would not be applicable to the case at bar for the
reason 'that it is always dangerous to apply a general rule to a particular case
 without keeping in mind the reason for the rule, because, if under the particular
circumstances the reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are
different from those in the United States, inasmuch as if the relator is not a proper
party to these proceedings no other person could be, as we have seen that it is
not the duty of the law officer of the Government to appear and represent the
people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be
enforced by petitioners herein is a public right recognized by no less than the fundamental law of
the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to
conceive of any other person to initiate the same, considering that the Solicitor General, the
government officer generally empowered to represent the people, has entered his appearance
for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special
provisions as to the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article.
In a long line of decisions,4 this Court has ruled that publication in the Official Gazette is
necessary in those cases where the legislation itself does not provide for its effectivity date-for
then the date of publication is material for determining its date of effectivity, which is the fifteenth
day following its publication-but not when the law itself provides for the date when it goes into
effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of
laws with the fact of publication. Considered in the light of other statutes applicable to the issue
at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations, except
such as have no general applicability; [3] decisions or abstracts of decisions of
the Supreme Court and the Court of Appeals as may be deemed by said courts
of sufficient importance to be so published; [4] such documents or classes of
documents as may be required so to be published by law; and [5] such
documents or classes of documents as the President of the Philippines shall
determine from time to time to have general applicability and legal effect, or
which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of
the various laws which are to regulate their actions and conduct as citizens. Without such notice
and publication, there would be no basis for the application of the maxim "ignorantia legis non
excusat." It would be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the
mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent
ones, ready access to the legislative records—no such publicity accompanies the law-making
process of the President. Thus, without publication, the people have no means of knowing what
presidential decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain
ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos,
Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las
mismas por el Gobierno en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in
the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and reality. The law itself makes
a list of what should be published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be included or excluded from such
publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties
for their violation or otherwise impose a burden or. the people, such as tax and revenue
measures, fall within this category. Other presidential issuances which apply only to particular
persons or class of persons such as administrative and executive orders need not be published
on the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of
general applicability" is a requirement of due process. It is a rule of law that before a person may
be bound by law, he must first be officially and specifically informed of its contents. As Justice
Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form
part of the law of the land, the requirement of due process and the Rule of Law
demand that the Official Gazette as the official government repository promulgate
and publish the texts of all such decrees, orders and instructions so that the
people may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not
been published, shall have no force and effect. Some members of the Court, quite apprehensive
about the possible unsettling effect this decision might have on acts done in reliance of the
validity of those presidential decrees which were published only during the pendency of this
petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s
which had been enforced or implemented prior to their publication. The answer is all too familiar.
In similar situations in the past this Court had taken the pragmatic and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L.
Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality must be taken
 with qualifications. The actual existence of a statute, prior to such a
determination, is an operative fact and may have consequences which cannot
justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular conduct, private and
official. Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon accordingly, of public
policy in the light of the nature both of the statute and of its previous application,
demand examination. These questions are among the most difficult of those
which have engaged the attention of courts, state and federal and it is manifest
from numerous decisions that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a
party under the Moratorium Law, albeit said right had accrued in his favor before said law was
declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly
ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees
Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so
published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is undisputed that none
of these unpublished PDs has ever been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is
necessary to apprise the public of the contents of [penal] regulations and make the said penalties
binding on the persons affected thereby. " The cogency of this holding is apparently recognized
by respondent officials considering the manifestation in their comment that "the government, as a
matter of policy, refrains from prosecuting violations of criminal laws until the same shall have
been published in the Official Gazette or in some other publication, even though some criminal
laws provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published,
they shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

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

There is on the whole acceptance on my part of the views expressed in the ably written opinion
of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need
not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute, presidential
decree or any other executive act of the same category being bereft of any binding force and
effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would
lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such requirement in the
Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only
to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid
any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due
process requires notice of laws to affected Parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette. The due process clause is not that
precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority
decision to the extent that it requires notice before laws become effective, for no person should
be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar
as it holds that such notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it
to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is
the doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not
dispose of the question of what is the jural effect of past presidential decrees or executive acts
not so published. For prior thereto, it could be that parties aware of their existence could have
conducted themselves in accordance with their provisions. If no legal consequences could attach
due to lack of publication in the Official Gazette, then serious problems could arise. Previous
transactions based on such "Presidential Issuances" could be open to question. Matters deemed
settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing
of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued
under the police power, the non-impairment clause of the Constitution may not always be
successfully invoked. There must still be that process of balancing to determine whether or not it
could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a
question of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I
am not in agreement with the view that such publication must be in the Official Gazette. The Civil
Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is subject to this
exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative
enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and effect of law
can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette
would be devoid of any legal character. That would be, in my opinion, to go too far. It may be
fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield
assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in
this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

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

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and
the Revised Administrative Code, there would be no basis nor justification for the corollary rule of
Article 3 of the Civil Code (based on constructive notice that the provisions of the law are
ascertainable from the public and official repository where they are duly published) that
"Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws
which are silent as to their effectivity [date] need be published in the Official Gazette for their
effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws
shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law
itself. This proviso perforce refers to a law that has been duly published pursuant to the basic
constitutional requirements of due process. The best example of this is the Civil Code itself: the
same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such
publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of
their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days
following its publication which is the period generally fixed by the Civil Code for its proper
dissemination.
MELENCIO-HERRERA, J., concurring:

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

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision
as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law
may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to
Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably
therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides
for its sale and distribution, and defines the authority of the Director of Printing in relation thereto.
It also enumerates what shall be published in the Official Gazette, among them, "important
legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all
executive and administrative orders and proclamations, except such as have no general
applicability." It is noteworthy that not all legislative acts are required to be published in the
Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on the same footing. A law, especially an earlier
one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the
operation of a subsequent statute that has a provision of its own as to when and how it will take
effect. Only a higher law, which is the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

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

DE LA FUENTE, J., concurring:

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

Separate Opinions

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

There is on the whole acceptance on my part of the views expressed in the ably written opinion
of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need
not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that
failure to do so would in all cases and under all circumstances result in a statute, presidential
decree or any other executive act of the same category being bereft of any binding force and
effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would
lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such requirement in the
Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only
to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid
any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due
process requires notice of laws to affected Parties before they can be bound thereby; but such
notice is not necessarily by publication in the Official Gazette. The due process clause is not that
precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority
decision to the extent that it requires notice before laws become effective, for no person should
be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar
as it holds that such notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it
to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is
the doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not
dispose of the question of what is the jural effect of past presidential decrees or executive acts
not so published. For prior thereto, it could be that parties aware of their existence could have
conducted themselves in accordance with their provisions. If no legal consequences could attach
due to lack of publication in the Official Gazette, then serious problems could arise. Previous
transactions based on such "Presidential Issuances" could be open to question. Matters deemed
settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing
of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued
under the police power, the non-impairment clause of the Constitution may not always be
successfully invoked. There must still be that process of balancing to determine whether or not it
could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a
question of unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I
am not in agreement with the view that such publication must be in the Official Gazette. The Civil
Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen
days following the completion of their publication in the Official Gazette is subject to this
exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative
enactment, Republic Act No. 386. It does not and cannot have the juridical force of a
constitutional command. A later legislative or executive act which has the force and effect of law
can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette
would be devoid of any legal character. That would be, in my opinion, to go too far. It may be
fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield
assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in
this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

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

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and
the Revised Administrative Code, there would be no basis nor justification for the corollary rule of
Article 3 of the Civil Code (based on constructive notice that the provisions of the law are
ascertainable from the public and official repository where they are duly published) that
"Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws
which are silent as to their effectivity [date] need be published in the Official Gazette for their
effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws
shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law
itself. This proviso perforce refers to a law that has been duly published pursuant to the basic
constitutional requirements of due process. The best example of this is the Civil Code itself: the
same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such
publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of
their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential
requirement of prior publication in the Official Gazette by the simple expedient of providing for
immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days
following its publication which is the period generally fixed by the Civil Code for its proper
dissemination.

MELENCIO-HERRERA, J., concurring:

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

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official
Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision
as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law
may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to
Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably
therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides
for its sale and distribution, and defines the authority of the Director of Printing in relation thereto.
It also enumerates what shall be published in the Official Gazette, among them, "important
legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all
executive and administrative orders and proclamations, except such as have no general
applicability." It is noteworthy that not all legislative acts are required to be published in the
Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on the same footing. A law, especially an earlier
one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the
operation of a subsequent statute that has a provision of its own as to when and how it will take
effect. Only a higher law, which is the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

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

DE LA FUENTE, J., concurring:

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

Footnotes

1 Section 6. The right of the people to information on matters of public concern

shag be recognized, access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shag be afforded the citizens
subject to such limitation as may be provided by law.

2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil.
345; Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18
SCRA 924; Dumlao vs. Comelec, 95 SCRA 392.

3 16 Phil. 366, 378.

4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81
Phil. 486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine
Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs.
Cosalan, 46 Phil. 179.

5 1 Manresa, Codigo Civil 7th Ed., p. 146.

6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of
Education, et al., 110 Phil. 150.

7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.

9 93 Phil.. 68,.

10 The report was prepared by the Clerk of Court after Acting Director Florendo
S. Pablo Jr. of the Government Printing Office, failed to respond to her letter-
request regarding the respective dates of publication in the Official Gazette of the
presidential issuances listed therein. No report has been submitted by the Clerk
of Court as to the publication or non-publication of other presidential issuances.

11 129 SCRA 174.

Fernando, CJ.:

1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills

connection Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel.
White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana,
U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111
SCRA 433.

6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA
172.

Teehankee, J.:

1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice
Paras.

2 Notes in brackets supplied.

3 Respondents: comment, pp. 14-15.

Plana, J.:

* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide
publication of all statute laws ... and no general law shall be in force until
published." See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354,
citing Constitution of Indiana, U.S.A.
 2
G.R. No. L-14406 June 30, 1961

MARCELINO BUYCO, petitioner-appellee,

vs.
PHILIPPINE NATIONAL BANK, ILOILO BRANCH, Iloilo City, respondent-appellant.

Efrain B. Treñas for petitioner-appellee.

Ramon B. de los Reyes and Nemesio C. Vargas for respondent-appellant.

PAREDES, J.:

Mandamus case filed by petitioner Marcelino Buyco praying that the respondent Philippine
National Bank be compelled to accept his Backpay Acknowledgment Certificate No. 4801, as
payment of his obligation with said respondent.

The case was submitted on an agreed stipulation of facts, with the pertinent documents as
annexes.

On April 24, 1956, petitioner Marcelino Buyco was indebted to respondent in the amount of
P5,102.90 plus interest thereon, which represented petitioner's deficit on his 1952-53 crop loan
with respondent bank. The said loan was secured by a mortgage of real property. Petitioner is a
holder of Backpay Acknowledgment Certificate No. 4801, dated July 9, 1955, under Rep. Act No.
897 in the amount of P22,227.69 payable in thirty (30) years. On April 24, 1956, petitioner offered
to pay respondent bank the deficit of his crop loan for the abovementioned crop year 1952-53
with his said backpay acknowledgment certificate, but on July 18, 1956, respondent answered
petitioner that since respondent's motion for reconsideration in the case of Marcelino B.
Florentino v. Philippine National Bank, L-8782, (52 O.G. 2522) was still under consideration by
this Court (S.C.) respondent "cannot yet grant" petitioner's request (Annex A, amended petition).
On February 15, 1957, and after this Court had denied respondent's motion for reconsideration in
said case No. L-8782, petitioner, again wrote respondent, reiterating his request to pay the
obligation with said certificate (Annex B). On February 19, 1957, respondent answered petitioner
that in view of the amendment of its charter on June 16, 1956 by R.A. No. 1576, it could not
accept petitioner's certificate (Annex C). Petitioner requested respondent to reconsider its
decision, in a letter dated March 26, 1957 (Annex D), which was referred to the respondent's
Legal Department. In an opinion rendered on April 23, 1957, said department expressed the view
that notwithstanding the decision of this Court, the respondent could not accept the certificate
because of the amendment of its Charter heretofore mentioned.

The Court of First Instance of Iloilo, on July 24, 1958, granted the petition and ordered the
respondent bank "to give due course on the vested right of the petitioner acquired previous to the
enactment of Republic Act No. 1576 by accepting his backpay acknowledgment certificate as
payment of the obligation of the petitioner with respondent Bank with costs of the proceedings
against respondent." Hence, this appeal by the respondent Bank.

In spousing the cause of the petitioner-appellee, the trial court made the following findings and
conclusions:

(1) That in the letter Annex A, dated July 18, 1956, the respondent has impliedly
admitted the right of petitioner to apply or offer his certificate in payment of his obligation
to respondent.

(2) That the pendency of the motion for reconsideration of the Florentino case filed by
respondent-appellant, did not affect the petitioner's vested right already created and
 acquired at the time he offered to pay his obligation with his certificate on April 24, 1956,
and before the passage of Rep. Act No. 1576.

(3) That Rep. Act No. 1576 does not nullify the right of the petitioner to pay his obligation
with his backpay certificate.

(4) That the writ of mandamus would lie against the appellant.

The above findings and conclusions are assigned as errors, alleged to have been committed by
the trial court.

In the light of the Supreme Court's decision in the Florentino case, the respondent Philippine
National Bank therein was declared authorized to accept backpay acknowledgment certificate as
payment of the obligation of any holder thereof. Although the Florentino case was promulgated
on April 28, 1956, four (4) days after April 24, 1956, the date the appellee offered to pay with his
backpay acknowledgment certificate, it is nevertheless obvious that on or before said April 24,
1956, the right to have his certificate applied for the payment of his obligation with the appellant
already existed by virtue of Republic Act No. 897, which was merely construed and clarified by
this Court in the said Florentino case. So that when the appellant in its letter of July 18, 1956.
replied that "in the meantime that our motion for reconsideration of the said decision is still
pending the resolution of the Supreme Court, we regret to advise that we cannot yet grant your
request", the said appellant already knew or should have known that a right was vested, only that
its enforcement had to wait the resolution of this Court which it handed on February 15, 1957, by
maintaining its decision. A vested right or a vested interest may be held to mean some right or
interest in property that has become fixed or established, and is no longer open to doubt or
controversy (Graham v. Great Falls Water Power & Town Site Co. [Mont] 76 Pac. 808, 810, citing
Evans-Snider-Buel Co. v. McFadden, 10 Fed. 293, 44 CCA 464 L.R.A. 900). Considering the
facts and circumstances obtaining in the case, we agree with the lower court that the appellant
herein had impliedly admitted the right of the petitioner to apply his backpay certificate in
payment of his obligation. This notwithstanding, whether implied or expressed the admission by
the appellant of appellee's right, has already lost momentum or importance because the law on
the matter on April 25, 1956, when the offer to pay the obligation with the certificate was made,
or the law before the amendatory Act of June 16, 1956, was that the PNB was compelled to
receive petitioner's backpay certificate..

Section 9-A of Republic Act No. 1576, passed on June 17, 1956, amending the Charter of the
respondent-appellant bank, provides:

The Board of Directors shall have the power and authority:.

. . . (d) In its discretion, to accept assignment of payments certificate of indebtedness of

the government or other such similar securities: Provided, however, that the authority
herein granted shall not be used as regards backpay certificates.

What would be the effect of this law upon the case at bar? "Laws shall have no retroactive effect,
unless the contrary is provided" (Art. 4, New Civil Code). It is said that the law looks to the future
only and has no retroactive effect unless the legislator may have formally given that effect to
some legal provisions (Lopez, et al. v. Crow, 40 Phil. 997, 1007); that all statutes are to be
construed as having only prospective operation, unless the purpose and intention of the
Legislature to give them a retrospective effect is expressly declared or is necessarily implied from
the language used; and that every case of doubt must be resolved against retrospective effect
(Montilla v. Agustinian Corp., 24 Phil. 220). These principles also apply to amendments of
statutes. Republic Act No. 1576 does not contain any provision regarding its retroactivity, nor
such may be implied from its language. It simply states its effectivity upon approval. The
amendment, therefore, has no retroactive effect, and the present case should be governed by
the law at the time the offer in question was made. The rule is familiar that after an act is
amended, the original act continues to be in force with regard to all rights that had accrued prior
to such amendment (Fairchild v. U.S., 91 Fed. 297; Hathaway v. Mutual Life Ins. Co. of N.Y., 99
F. 534).

It is true that "acts executed against the provisions of mandatory or prohibitory laws shall be void,
except when the law itself authorizes their validity" (Art. 5, New Civil Code). It should be recalled,
however, that since the prohibitive amendment of the appellant's charter should not be given
retroactive effect; and that the law, at the time appellee made his offer, allowed, in fact
compelled, the respondent bank to accept the appellee's certificate, the above provision finds no
application herein.

IN VIEW HEREOF, mandamus is the proper remedy (Florentino case, supra), and the judgment
appealed from is hereby affirmed with costs against the respondent-appellant.

Bengzon, C.J., Labrador, Reyes, J.B.L., Dizon, De Leon and Natividad, JJ., concur.
Padilla, Bautista Angelo, Concepcion and Barrera, JJ., took no part.
 3
G.R. No. 153510 February 13, 2008

R.B. MICHAEL PRESS and ANNALENE REYES ESCOBIA, petitioners,

vs.
NICASIO C. GALIT, respondent.

DECISION

VELASCO, JR., J.:

The Case

Year in, year out, a copious number of illegal dismissal cases reach the Court of Appeals (CA)
and eventually end up with this Court. This petition for review under Rule 45 registered by
petitioners R.B. Michael Press and Annalene Reyes Escobia against their former machine
operator, respondent Nicasio C. Galit, is among them. It assails the November 14, 2001 Decision
of the CA in CA-G.R. SP No. 62959, finding the dismissal of respondent illegal. Likewise
challenged is the May 7, 2002 Resolution denying reconsideration.

The Facts

On May 1, 1997, respondent was employed by petitioner R.B. Michael Press as an offset
machine operator, whose work schedule was from 8:00 a.m. to 5:00 p.m., Mondays to
Saturdays, and he was paid PhP 230 a day. During his employment, Galit was tardy for a total of
190 times, totaling to 6,117 minutes, and was absent without leave for a total of nine and a half
days.

On February 22, 1999, respondent was ordered to render overtime service in order to comply
with a job order deadline, but he refused to do so. The following day, February 23, 1999,
respondent reported for work but petitioner Escobia told him not to work, and to return later in the
afternoon for a hearing. When he returned, a copy of an Office Memorandum was served on him,
as follows:

To : Mr. Nicasio Galit

From : ANNALENE REYES-ESCOBIA
Re : WARNING FOR DISMISSAL; NOTICE OF HEARING

This warning for dismissal is being issued for the following offenses:

(1) habitual and excessive tardiness

(2) committing acts of discourtesy, disrespect in addressing superiors

(3) failure to work overtime after having been instructed to do so

(4) Insubordination - willfully disobeying, defying or disregarding company authority

The offenses you’ve committed are just causes for termination of employment as
provided by the Labor Code. You were given verbal warnings before, but there had been
no improvement on your conduct.
 Further investigation of this matter is required, therefore, you are summoned to a hearing
at 4:00 p.m. today. The hearing wills determine your employment status with this
company.

(SGD) ANNALENE REYES-ESCOBIA

Manager1

On February 24, 1999, respondent was terminated from employment. The employer, through
petitioner Escobia, gave him his two-day salary and a termination letter, which reads:

February 24, 1999

Dear Mr. Nicasio Galit,

I am sorry to inform you that your employment with this company has been terminated
effective today, February 24, 1999. This decision was not made without a thorough and
complete investigation.

You were given an office memo dated February 23, 1999 warning you of a possible
dismissal. You were given a chance to defend yourself on a hearing that was held in the
afternoon of the said date.

During the hearing, Mrs. Rebecca Velasquez and Mr. Dennis Reyes, were present in
their capacity as Production Manager and Supervisor, respectively.

Your admission to your offenses against the company and the testimonies from Mrs.
Velasquez and Mr. Reyes justified your dismissal from this company,

Please contact Ms. Marly Buita to discuss 13th-Month Pay disbursements.

Cordially,

(SGD) Mrs. Annalene Reyes-Escobia2

Respondent subsequently filed a complaint for illegal dismissal and money claims before the
National Labor Relations Commission (NLRC) Regional Arbitration Branch No. IV, which was
docketed as NLRC Case No. RAB IV-2-10806-99-C. On October 29, 1999, the labor arbiter
rendered a Decision,

WHEREFORE, premises considered, there being a finding that complainant was illegally
dismissed, respondent RB MICHAEL PRESS/Annalene Reyes-Escobia is hereby
ordered to reinstate complainant to his former position without loss of seniority rights and
other benefits, and be paid his full backwages computed from the time he was illegally
dismissed up to the time of his actual reimbursement.

All other claims are DISMISSED for lack of evidence.

SO ORDERED.3

On January 3, 2000, petitioners elevated the case to the NLRC and their appeal was docketed
as NLRC NCR CA No. 022433-00. In the April 28, 2000 Decision, the NLRC dismissed the
appeal for lack of merit.
Not satisfied with the ruling of the NLRC, petitioners filed a Petition for Certiorari with the CA. On
November 14, 2001, the CA rendered its judgment affirming with modification the NLRC’s
Decision, thus:

WHEREFORE, the petition is DISMISSED for lack of merit. The Decision of public
respondent is accordingly modified in that the basis of the computation of the backwages,
13th month pay and incentive pay should be respondent’s daily wage of P230.00;
however, backwages should be computed from February 22, 1999 up to the finality of
this decision, plus the 13th month and service incentive leave pay.4

The CA found that it was not the tardiness and absences committed by respondent, but his
refusal to render overtime work on February 22, 1999 which caused the termination of his
employment. It ruled that the time frame in which respondent was afforded procedural due
process is dubitable; he could not have been afforded ample opportunity to explain his side and
to adduce evidence on his behalf. It further ruled that the basis for computing his backwages
should be his daily salary at the time of his dismissal which was PhP 230, and that his
backwages should be computed from the time of his dismissal up to the finality of the CA’s
decision.

On December 3, 2001, petitioners asked for reconsideration5 but was denied in the CA’s May 7,
2002 Resolution.

Persistent, petitioners instituted the instant petition raising numerous issues which can be
summarized, as follows: first, whether there was just cause to terminate the employment of
respondent, and whether due process was observed in the dismissal process; and second,
whether respondent is entitled to backwages and other benefits despite his refusal to be
reinstated.

The Court’s Ruling

It is well settled that findings of fact of quasi-judicial agencies, like the NLRC, are accorded not
only respect but even finality if the findings are supported by substantial evidence. This is
especially so when such findings of the labor arbiter were affirmed by the CA.6 However, this is
not an iron-clad rule. Though the findings of fact by the labor arbiter may have been affirmed and
adopted by the NLRC and the CA as in this case, it cannot divest the Court of its authority to
review the findings of fact of the lower courts or quasi-judicial agencies when it sees that justice
has not been served, more so when the lower courts or quasi-judicial agencies’ findings are
contrary to the evidence on record or fail to appreciate relevant and substantial evidence
presented before it.7

Petitioners aver that Galit was dismissed due to the following offenses: (1) habitual and
excessive tardiness; (2) commission of discourteous acts and disrespectful conduct when
addressing superiors; (3) failure to render overtime work despite instruction to do so; and (4)
insubordination, that is, willful disobedience of, defiance to, or disregard of company
authority.8 The foregoing charges may be condensed into: (1) tardiness constituting neglect of
duty; (2) serious misconduct; and (3) insubordination or willful disobedience.

Respondent’s tardiness cannot be considered condoned by petitioners

Habitual tardiness is a form of neglect of duty. Lack of initiative, diligence, and discipline to come
to work on time everyday exhibit the employee’s deportment towards work. Habitual and
excessive tardiness is inimical to the general productivity and business of the employer. This is
especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within
an extensive period of time.
In resolving the issue on tardiness, the labor arbiter ruled that petitioners cannot use
respondent’s habitual tardiness and unauthorized absences to justify his dismissal since they
had already deducted the corresponding amounts from his salary. Furthermore, the labor arbiter
explained that since respondent was not subjected to any admonition or penalty for tardiness,
petitioners then had condoned the offense or that the infraction is not serious enough to merit
any penalty. The CA then supported the labor arbiter’s ruling by ratiocinating that petitioners
cannot draw on respondent’s habitual tardiness in order to dismiss him since there is no
evidence which shows that he had been warned or reprimanded for his excessive and habitual
tardiness.

We find the ruling incorrect.

The mere fact that the numerous infractions of respondent have not been immediately subjected
to sanctions cannot be interpreted as condonation of the offenses or waiver of the company to
enforce company rules. A waiver is a voluntary and intentional relinquishment or abandonment of
a known legal right or privilege.9 It has been ruled that "a waiver to be valid and effective must be
couched in clear and unequivocal terms which leave no doubt as to the intention of a party to
give up a right or benefit which legally pertains to him."10 Hence, the management prerogative to
discipline employees and impose punishment is a legal right which cannot, as a general rule, be
impliedly waived.

In Cando v. NLRC,11 the employee did not report for work for almost five months when he was
charged for absenteeism. The employee claimed that such absences due to his handling of
union matters were condoned. The Court held that the employee did not adduce proof to show
condonation coupled with the fact that the company eventually instituted the administrative
complaint relating to his company violations.

Thus it is incumbent upon the employee to adduce substantial evidence to demonstrate

condonation or waiver on the part of management to forego the exercise of its right to impose
sanctions for breach of company rules.

In the case at bar, respondent did not adduce any evidence to show waiver or condonation on
the part of petitioners. Thus the finding of the CA that petitioners cannot use the previous
absences and tardiness because respondent was not subjected to any penalty is bereft of legal
basis. In the case of Filipio v. The Honorable Minister Blas F. Ople,12 the Court, quoting then
Labor Minister Ople, ruled that past infractions for which the employee has suffered the
corresponding penalty for each violation cannot be used as a justification for the employee’s
dismissal for that would penalize him twice for the same offense. At most, it was explained,
"these collective infractions could be used as supporting justification to a subsequent similar
offense." In contrast, the petitioners in the case at bar did not impose any punishment for the
numerous absences and tardiness of respondent. Thus, said infractions can be used collectively
by petitioners as a ground for dismissal.

The CA however reasoned out that for respondent’s absences, deductions from his salary were
made and hence to allow petitioners to use said absences as ground for dismissal would amount
to "double jeopardy."

This postulation is incorrect.

Respondent is admittedly a daily wage earner and hence is paid based on such arrangement.
For said daily paid workers, the principle of "a day’s pay for a day’s work" is squarely applicable.
Hence it cannot be construed in any wise that such nonpayment of the daily wage on the days he
was absent constitutes a penalty.

Insubordination or willful disobedience

While the CA is correct that the charge of serious misconduct was not substantiated, the charge
of insubordination however is meritorious.

For willful disobedience to be a valid cause for dismissal, these two elements must concur: (1)
the employee’s assailed conduct must have been willful, that is, characterized by a wrongful and
perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to
the employee, and must pertain to the duties which he had been engaged to discharge.13

In the present case, there is no question that petitioners’ order for respondent to render overtime
service to meet a production deadline complies with the second requisite. Art. 89 of the Labor
Code empowers the employer to legally compel his employees to perform overtime work against
their will to prevent serious loss or damage:

Art. 89. EMERGENCY OVERTIME WORK

Any employee may be required by the employer to perform overtime work in any of the
following cases:

xxxx

(c) When there is urgent work to be performed on machines, installations, or equipment,

in order to avoid serious loss or damage to the employer or some other cause of similar
nature;

xxxx

In the present case, petitioners’ business is a printing press whose production schedule is
sometimes flexible and varying. It is only reasonable that workers are sometimes asked to render
overtime work in order to meet production deadlines.

Dennis Reyes, in his Affidavit dated May 3, 1999, stated that in the morning of February 22,
1999, he approached and asked respondent to render overtime work so as to meet a production
deadline on a printing job order, but respondent refused to do so for no apparent reason.
Respondent, on the other hand, claims that the reason why he refused to render overtime work
was because he was not feeling well that day.

The issue now is, whether respondent’s refusal or failure to render overtime work was willful; that
is, whether such refusal or failure was characterized by a wrongful and perverse attitude.
In Lakpue Drug Inc. v. Belga, willfulness was described as "characterized by a wrongful and
perverse mental attitude rendering the employee’s act inconsistent with proper
subordination."14 The fact that respondent refused to provide overtime work despite his
knowledge that there is a production deadline that needs to be met, and that without him, the
offset machine operator, no further printing can be had, shows his wrongful and perverse mental
attitude; thus, there is willfulness.

Respondent’s excuse that he was not feeling well that day is unbelievable and obviously an
afterthought. He failed to present any evidence other than his own assertion that he was sick.
Also, if it was true that he was then not feeling well, he would have taken the day off, or had gone
home earlier, on the contrary, he stayed and continued to work all day, and even tried to go to
work the next day, thus belying his excuse, which is, at most, a self-serving statement.

After a re-examination of the facts, we rule that respondent unjustifiably refused to render
overtime work despite a valid order to do so. The totality of his offenses against petitioner R.B.
Michael Press shows that he was a difficult employee. His refusal to render overtime work was
the final straw that broke the camel’s back, and, with his gross and habitual tardiness and
absences, would merit dismissal from service.

Due process: twin notice and hearing requirement

On the issue of due process, petitioners claim that they had afforded respondent due process.
Petitioners maintain that they had observed due process when they gave respondent two notices
and that they had even scheduled a hearing where he could have had explained his side and
defended himself.

We are not persuaded.

We held in Agabon v. NLRC:

Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer
must give the employee two written notices and a hearing or opportunity to be heard if
requested by the employee before terminating the employment: a notice specifying the
grounds for which dismissal is sought a hearing or an opportunity to be heard and after
hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the
dismissal is based on authorized causes under Articles 283 and 284, the employer must
give the employee and the Department of Labor and Employment written notices 30 days
prior to the effectivity of his separation.15

Under the twin notice requirement, the employees must be given two (2) notices before his
employment could be terminated: (1) a first notice to apprise the employees of their fault, and (2)
a second notice to communicate to the employees that their employment is being terminated. Not
to be taken lightly of course is the hearing or opportunity for the employee to defend himself
personally or by counsel of his choice.

In King of Kings Transport v. Mamac,16 we had the occasion to further elucidate on the procedure
relating to the twin notice and hearing requirement, thus:

(1) The first written notice to be served on the employees should contain the specific
causes or grounds for termination against them, and a directive that the employees are
given the opportunity to submit their written explanation within a reasonable period.
"Reasonable opportunity" under the Omnibus Rules means every kind of assistance that
management must accord to the employees to enable them to prepare adequately for
their defense. This should be construed as a period of at least five (5) calendar days from
receipt of the notice to give the employees an opportunity to study the accusation against
them, consult a union official or lawyer, gather data and evidence, and decide on the
defenses they will raise against the complaint. Moreover, in order to enable the
employees to intelligently prepare their explanation and defenses, the notice should
contain a detailed narration of the facts and circumstances that will serve as basis for the
charge against the employees. A general description of the charge will not suffice. Lastly,
the notice should specifically mention which company rules, if any, are violated and/or
which among the grounds under Art. 282 is being charged against the employees.

(2) After serving the first notice, the employers should schedule and conduct
a hearing or conference wherein the employees will be given the opportunity to: (1)
explain and clarify their defenses to the charge against them; (2) present evidence in
support of their defenses; and (3) rebut the evidence presented against them by the
management. During the hearing or conference, the employees are given the chance to
defend themselves personally, with the assistance of a representative or counsel of their
choice. Moreover, this conference or hearing could be used by the parties as an
opportunity to come to an amicable settlement.
 (3) After determining that termination of employment is justified, the employers shall
serve the employees a written notice of termination indicating that: (1) all
circumstances involving the charge against the employees have been considered; and
(2) grounds have been established to justify the severance of their employment.

In addition, if the continued employment poses a serious and imminent threat to the life or
property of the employers or of other employees like theft or physical injuries, and there is a need
for preventive suspension,17 the employers can immediately suspend the erring employees for a
period of not more than 30 days. Notwithstanding the suspension, the employers are tasked to
comply with the twin notice requirement under the law. The preventive suspension cannot
replace the required notices.18 Thus, there is still a need to comply with the twin notice
requirement and the requisite hearing or conference to ensure that the employees are afforded
due process even though they may have been caught in flagrante or when the evidence of the
commission of the offense is strong.

On the surface, it would seem that petitioners observed due process (twin notice and hearing
requirement): On February 23, 1999 petitioner notified respondent of the hearing to be conducted
later that day. On the same day before the hearing, respondent was furnished a copy of an office
memorandum which contained a list of his offenses, and a notice of a scheduled hearing in the
afternoon of the same day. The next day, February 24, 1999, he was notified that his
employment with petitioner R.B. Michael Press had been terminated.

A scrutiny of the disciplinary process undertaken by petitioners leads us to conclude that they
only paid lip service to the due process requirements.

The undue haste in effecting respondent’s termination shows that the termination process was a
mere simulation—the required notices were given, a hearing was even scheduled and held, but
respondent was not really given a real opportunity to defend himself; and it seems that
petitioners had already decided to dismiss respondent from service, even before the first notice
had been given.

Anent the written notice of charges and hearing, it is plain to see that there was merely a general
description of the claimed offenses of respondent. The hearing was immediately set in the
afternoon of February 23, 1999—the day respondent received the first notice. Therefore, he was
not given any opportunity at all to consult a union official or lawyer, and, worse, to prepare for his
defense.

Regarding the February 23, 1999 afternoon hearing, it can be inferred that respondent, without
any lawyer or friend to counsel him, was not given any chance at all to adduce evidence in his
defense. At most, he was asked if he did not agree to render overtime work on February 22,
1999 and if he was late for work for 197 days. He was never given any real opportunity to justify
his inability to perform work on those days. This is the only explanation why petitioners assert
that respondent admitted all the charges.

In the February 24, 1999 notice of dismissal, petitioners simply justified respondent’s dismissal
by citing his admission of the offenses charged. It did not specify the details surrounding the
offenses and the specific company rule or Labor Code provision upon which the dismissal was
grounded.

In view of the infirmities in the proceedings, we conclude that termination of respondent was
railroaded in serious breach of his right to due process. And as a consequence of the violation of
his statutory right to due process and following Agabon, petitioners are liable jointly and solidarily
to pay nominal damages to the respondent in the amount of PhP 30,000.19

WHEREFORE, premises considered, the November 14, 2001 CA Decision in CA-G.R. SP No.
62959, the April 28, 2000 Decision of the NLRC in NLRC NCR CA No. 022433-00, and the
October 29, 1999 Decision of the Labor Arbiter in NLRC Case No. RAB IV-2-10806-99-C are
hereby REVERSED and SET ASIDE. The Court declares respondent’s dismissal from
employment VALID and LEGAL. Petitioners are, however, ordered jointly and solidarily to pay
respondent nominal damages in the amount of PhP 30,000 for violation of respondent’s right to
due process.

No costs.

SO ORDERED.
 4
G.R. No. 138210 June 6, 2002

SPOUSES SINFRONIO PUERTO and ESPERANZA PUERTO, petitioners,

vs.
HON. COURT OF APPEALS, HON. BR. 83 OF THE REGIONAL TRIAL COURT OF QUEZON
CITY and SPS. INOCENCIO and ELEUTERIA CORTES, respondents.

QUISUMBING, J.:

This is a petition for review on certiorari seeking the reversal of the amended decision1 dated
February 4, 1999, of the Court of Appeals in CA-G.R. CV No. 32197, as well as its
resolution2 dated April 5, 1999 denying the motion for reconsideration. The appellate court
affirmed the decision3 dated January 18, 1991, of the Regional Trial Court of Quezon City,
Branch 83, dismissing the amended complaint of petitioners (plaintiffs below) in Civil Case No.
Q-21883.

From the conflicting versions of the parties, the Court of Appeals found the following facts which
are culled from and duly supported by the records.

Petitioners spouses Sinfronio and Esperanza Puerto were the former registered owners of a
house and lot located at 89 Kapiligan, Araneta Subdivision, Quezon City, subject of the present
controversy. They bought this property from one Mrs. Luna but did not have the title immediately
transferred to their names until they mortgaged the same to private respondents spouses
Inocencio and Eleuteria Cortes.4 It appears that on May 8, 1972, petitioners executed, in favor of
private respondents, a Deed of Real Estate Mortgage5 covering the said house and lot. This
deed provides, among others, that petitioner spouses, obtained from private respondents a loan
in the amount of P200,000, payable within one year from the date of the execution thereof.
Ostensibly, the mortgage contract did not provide for any stipulated interest. It however provided
that should petitioners fail to pay the principal loan, private respondents were authorized to
immediately foreclose the mortgaged property, judicially or extrajudicially, under the provisions of
Act No. 3135. Furthermore, private respondents would be appointed receiver in case of
foreclosure.

According to petitioner Esperanza Puerto, the Deed of Mortgage did not reflect the true intent of
the parties, as in fact, the consideration of the mortgage was only P150,000. She claims that the
one year interest was added to the P150,000, the additional P50,000 as advance payment,
hence, the amount of P200,000 was stated in the deed. She further testified that the P150,000
constituted the advance of P8,000, with the corresponding receipt; another P2,000, without any
receipt, received by petitioner Esperanza on May 8, 1972, for payment of taxes and to register
the deed of sale when the property was first bought by petitioners from Mrs. Luna, and to register
the mortgage in favor of private respondents; a Monte de Piedad cashier’s check in the amount
of P70,000 received by Esperanza on May 10, 1972;6 and several pieces of jewelry valued
at P70,000 she received on May 9, 1972. She added that for the last transaction, she made out a
receipt to the effect that she received the amount of P30,000 in cash and pieces of diamond
jewelry worth P170,000.7 All the receipts presented by Esperanza were written and duly signed
by her.

Esperanza testified that she reached a verbal agreement with private respondents on the
following:8

1. that petitioners would not pay an interest for one year from date of mortgage until
maturity because of the prepaid interest of P50,000;
 2. that after the maturity of the loan, private respondents would still allow the petitioners
to redeem the property even after foreclosure as long as the latter would return the
amount of P200,000 in lump sum;

3. that in the event that petitioners could not return the loan in lump sum, they would
pay P4,000 monthly interest; and

4. that petitioners would cooperate with the private respondents to conceal the usurious
character of the loan by not demanding receipts for payments of interest.

Private respondent Eleuteria Cortes, on the other hand, testified that sometime in 1972,
petitioners asked them for a loan of P200,000 and gave the house and lot as security. According
to Eleuteria, she loaned Esperanza the money because of their long friendship. She claims that
the mortgage deed as well as all the receipts presented by Esperanza reflect all their
agreements.9

When the loan matured on May 8, 1973, petitioners failed to pay the P200,000. On August 3,
1973, private respondents made a formal demand for petitioners to pay the loan under threat of
foreclosure of the mortgaged property. As petitioners failed to pay, private respondents
foreclosed the property, which was sold at a public auction on October 4, 1973. Private
respondents were the highest bidders. 1âwphi1.nêt

On May 7, 1975, even after title to the property was transferred to private respondents,
petitioners were allowed to stay on the property until they could find a new residence. However,
after repeated extensions to stay, petitioners did not transfer. They then entered into a lease
contract where petitioners would pay the respondents, as new owners, P3,000 by way of rentals,
effective January 1, 1975. On September 16, 1976, when petitioners failed and refused to pay
monthly rentals beginning February 1976, private respondents filed an ejectment case against
them in the City Court of Quezon City.10

Petitioners, for their part, alleged that when they failed to pay the loan, private respondents
demanded a monthly interest of P4,000. When they failed to pay said interest for four months,
private respondents foreclosed the mortgage. On October 5, 1974, after the expiration of the
redemption period, private respondents acquired full title to the property and were issued
Transfer Certificate of Title No. 207527. Petitioners claim that from October 1973 until December
1975, they continued to pay the monthly interest of P4,000, but without receipts because of their
verbal agreement to conceal the usurious nature of the transaction. Sometime in January 1976,
according to petitioners, they appealed to private respondents to reduce the interest rate
to P3,000 per month. Private respondents agreed on the condition that they sign a lease
contract, whereby private respondents would appear as lessors and petitioners as lessees,
and P3,000 interest would be denominated as "rent".

On January 1, 1976, petitioner Esperanza and private respondent Eleuteria executed a contract
of lease. Petitioners paid the "rent" on the first month but could not pay for the succeeding
months allegedly because of the usurious demands of private respondents.

On August 20, 1976, petitioners filed an action against private respondents for the declaration of
nullity of the Deed of Real Estate Mortgage, before the Court of First Instance of Rizal, Branch
XVII. The complaint was amended on February 23, 1978 to include additional causes of action.11

The trial court dismissed the complaint as follows:

WHEREFORE, premises considered, judgment is hereby rendered:

1. Dismissing the complaint;

 2. As to defendants’ counterclaim, ordering plaintiffs to pay defendants the sum of
P3,000.00 per month beginning February, 1976 until plaintiffs vacate the property;

3. And to pay the costs.

SO ORDERED.12

On appeal, the appellate court reversed the decision of the trial court, to wit:

WHEREFORE, the decision appealed from is hereby SET ASIDE and a NEW ONE
ENTERED:

1. Declaring the mortgage contract of the parties null and void;

2. Declaring the foreclosure of said property of no force and effect;

3. Ordering the plaintiff-appellants to pay the defendants-appellees P150,000.00 with the

legal rate of interest thereon from the time of demand until fully paid; and

4. Ordering the cancellation of the Transfer Certificate of Title in defendants-appellees’

name.13

However, private respondents filed motion for reconsideration that was granted by the appellate
court. In its amended decision dated February 4, 1999, the Court of Appeals rendered judgment
as follows:

WHEREFORE, appellees’ motion for reconsideration is hereby GRANTED. The decision

herein promulgated on September 30, 1998 is hereby RECONSIDERED and SET
ASIDE. The Decision dated January 18, 1991 in Civil Case No. Q-21883 is
hereby AFFIRMED.

SO ORDERED.14

Thereafter, petitioners filed a motion for reconsideration of the aforestated amended decision. On
April 5, 1999, the Court of Appeals rendered its resolution denying petitioners’ motion for
reconsideration and their motion to set for oral argument, for lack of merit.15

Hence, the present petition, wherein petitioners aver the following "grounds" for review:

I. THE HONORABLE RESPONDENT COURT OF APPEALS HAVE CLEARLY

OVERLOOKED AND FAILED TO CONSIDER THE SIGNIFICANT FACTS AND
CIRCUMSTANCES OF THIS CASE WHICH IF PROPERLY CONSIDERED SHOULD
HAVE DRAWN A DIFFERENT CONCLUSION WHICH WILL AFFECT THE RESULT OF
THIS CASE.

II. CONTRARY TO THE DECISIONS AND PRONOUNCEMENTS OF THIS

HONORABLE SUPREME COURT.

III. TAINTED WITH GRAVE ABUSE OF DISCRETION.16

Principally, the issue for our resolution now is whether the contract between the parties, which is
a loan secured by the deed of real estate mortgage, violated the Usury Law (P.D. 116). In the
affirmative, we must also inquire into its effect upon the real estate mortgage that secured the
loan and its subsequent foreclosure.
At the time of the questioned transaction, Act No. 2655, as amended by P.D. 116, known as the
Usury Law, was in full force and effect. It is elementary that the laws in force at the time the
contract was made generally govern the effectivity of its provision. Usury may be defined as
contracting for or receiving something in excess of the amount allowed by law for the
forbearance of money, goods or things in action.17 The Usury Law prescribed that the legal rate
of interest for the loan or forbearance of any money, goods or credits, where such loan or
renewal or forbearance is secured in whole or in part by a mortgage upon real estate the title to
which is duly registered, in the absence of express contract as to such rate of interest, shall be
12% per annum.18 Any amount of interest paid or stipulated to be paid in excess of that fixed by
law is considered usurious, therefore unlawful.

Petitioners contend that the Court of Appeals committed reversible error in upholding the lower
court and declaring that the loan was not usurious, based on the following circumstances:

a) The fact that Mrs. Puerto herself was a jeweler of long standing and the fact that she
admitted that she had a hand in the valuation of the pieces of jewelry loaned her have
created doubts on the Court’s mind as regards the allegation of a usurious transaction x x
x;

b) The mortgage contract itself executed by the parties did not provide for any interest on
the principal loan of P200,000.00 x x x;

c) Mrs. Puerto continued to do business with appellees even after the alleged usurious
mortgage transaction x x x;

d) Mrs Puerto even asked for another loan from appellees in the amount of P150,000.00
xxx.19

Petitioners further argue that the appellate court erred in not considering the fact that the subject
property was purchased by the Puertos for only P150,000. Petitioners add that if the agreement
was for a mortgage loan of P200,000 without interest, as claimed by respondents, how then
could the property have been mortgaged at a higher price when the standard money lending
practice was to grant a loan of only up to 80 percent of the value of the property
mortgaged?20 According to petitioners, the appellate court should have considered that a creditor
would not grant a loan the amount of which is much higher than the value of the property
securing the loan. It should not have relied on Esperanza’s knowledge of jewelry valuation to
conclude that the transaction was not usurious. Such conclusion, according to them was an error
in law that justifies a review of the amended decision.21

Private respondents, for their part, insist that petitioners (the Puertos) borrowed P200,000 as a
loan secured by the mortgage of their house and lot. Further, they claim that it was petitioners
who prepared the deed of real estate mortgage, the receipt covering the amount of P30,000 in
cash, and the receipt for the P170,000 worth of jewelry, written entirely in the handwriting of
Esperanza. They also point out that petitioners did not present any proof of their claim that the
terms of the loan was usurious. At any rate, according to private respondents, the instant petition
raises questions of facts not reviewable in a petition under Rule 45 of the Rules of Court.22

We have held in several cases that the rule that a petition raising a purely question of fact is
dismissible, is not absolute. The rule admits of exceptions, one of which is when the Court of
Appeals manifestly overlooked certain relevant facts or circumstances of sufficient weight or
significance, which if considered, would justify a different conclusion.23 In our view, the instant
case falls under this exception.

In its amended decision, the appellate court mainly based the re-evaluation of the evidence on
record upon the finding that Esperanza admitted to having a hand in the valuation of the jewelry,
which formed part of the total amount of the loan. It said that "the fact that Mrs. Puerto herself
was a jeweler of long standing and the fact that she admitted that she had a hand in the valuation
of the pieces of jewelry loaned her have created doubts on the court’s mind as regards her
allegation of a usurious transaction."24 However, we note that this premise is not accurate.

Eleuteria, in her direct examination, testified,

Q: Now, who fixed the value of the jewelr[y] to be at P170,000.00?

A: At first I want it higher but Mrs. Puerto bargained because she said she cannot
sell it at that price. So, I agreed with her.

Q: So, who fixed the valuation?

A: Mrs. Puerto, sir.25

Patently, Esperanza bargained for a lower valuation of the jewelry and the price quoted was the
lowest that Eleuteria could give. Said bargaining makes Esperanza’s allegation that the interest
of P50,000 was tucked into the P200,000 loan, believable. As aptly observed by the appellate
court in its original decision, considering that respondents are in the jewelry business, it is more
likely that there is a built-in profit or interest on capital in the valuation of the jewelry given to
appellants (petitioners) as part of their loan.26

Respondents want to impress upon us that pawnshop owners like them would grant a sizeable
loan without requiring any interest and that after their generous offer to petitioner Esperanza who
is in dire need of money, the latter would ask that she be charged 12 percent interest per
annum.27 However, what is more plausible is that, after finding themselves in dire financial straits,
petitioners were amenable to any stipulation in the loan agreement, even to tucking a P50,000
interest in the P200,000 stated principal amount.

Moreover, we find it unlikely that respondent Eleuteria gave a loan in an amount much higher
than the value of the security. She is after all a successful pawnshop businesswoman. We are
unconvinced by her when she says that the value of the properties valued at P150,000 in May
1971 had sufficiently increased in May 1972, the time of the execution of the mortgage. We take
note of the fact that in the pawnshop business, properties are pawned at a much lower price than
their original value.

Indeed, the mortgage contract did not stipulate for payment of any interest. However, to conceal
usury various devices have been adopted whereby the substance of the true agreement is
withheld from what may be viewed on the written document. The cupidity of lenders and the
willingness of borrowers to concede whatever may be demanded or to promise whatever may be
exacted in order to obtain temporary relief from financial embarrassment, as would naturally be
expected, have resulted in a great variety of devices to evade the usury law. To frustrate such
evasions the courts are compelled to look beyond the form of a transaction and consider its
substance instead.28 It is worth pointing out that respondent Eleuteria testified that she had her
own lawyer correct some errors found in the mortgage contract, which she claims was prepared
by the Puertos.29 The mortgage contract states that the P200,000 loan was given to the Puertos
in cash and yet, in reality, as per respondent Eleuteria’s own testimony, the loan was partly in
cash and partly in the form of jewelry. Under these circumstances, it would be easy to pad the
value of the jewelry, way beyond the actual amount. 1âwphi1.nêt

The natural inclination of parties to an illegal act is to conceal such illegality, making it extremely
difficult to prove its existence by documentary evidence. It is precisely for this reason that we are
constrained to look at collateral matters, even circumstantial evidence, to find the truth.
Otherwise, a document apparently legal on its face could not be proved to be illegal and intended
to evade the statute of usury.30 The real intention of the parties at the time the written instrument
was made must be ascertained from the circumstances surrounding the transaction and from the
language of the document itself.31 It will be noted that the usury law was in effect at the time
Esperanza obtained the loan from Eleuteria. Petitioners needed financial assistance badly. The
two women had known each other for a long time. The language of the contract leaves no doubt
that the P200,000 was a loan secured by a mortgage on a house and lot owned by the Puertos.
There was no interest stipulated on the loan and there was a provision to appoint the mortgagees
as receiver of the property in case of foreclosure.

Ordinary human experience tells us that as between the debtor and the creditor, the former
stands on more perilous ground than the latter, and the two do not stand on equal footing.32 It is
this inequality that deprives the debtor of any bargaining leverage. Eleuteria claims that it was out
of pure generosity that she granted the loan without interest and it was petitioner who offered to
pay an interest of 12 percent per annum.33 She points to their long friendship as the
consideration for this arrangement. We are unconvinced. The records reveal that the women had
for a long time done business with each other. Esperanza frequents Eleuteria’s pawnshop for
jewelry transactions. However, there is nothing to show that they were close friends. What
appears from the records is that Eleuteria knew Esperanza long enough to entrust her with a
substantial amount of money but without any special consideration. In fact, respondents wanted
to protect their investment such that they first required petitioners to have the title to the
mortgaged property transferred to petitioners’ name before concluding the loan
transaction.34 This would not appear to be the conduct of a trusting old friend. Private
respondents even appointed themselves as receiver of the property in case of foreclosure.
Evidently, theirs was a purely business deal.

In fine, we find that indeed the contract of loan secured by the deed of real estate mortgage is
usurious. Under Section 2 of the Usury Law,35 the maximum rate of interest on a loan or
forbearance of money secured by a mortgage upon real estate the title to which is duly
registered, shall be 12 percent per annum. In the instant case, the P50,000 interest is clearly in
excess of that which the law allows. Thus, the agreement for the payment of interest is void.
Section 7 of the same law further provides that:

All covenants and stipulations contained in conveyances, mortgages x x x and other

contracts or evidences of debts x x x whereupon or whereby there shall be stipulated,
charged, demanded, reserved, secured, taken or received, directly or indirectly, a higher
rate or greater sum or value for the loan x x x than is hereinbefore allowed, shall be
void.36

The primordial question to be resolved now is, what happens to the obligation of petitioner to pay
the principal loan? We held in Briones vs. Cammayo:37

…[A] contract of loan with usurious interest consists of principal and accessory
stipulations; the principal one is to pay the debt; the accessory stipulation is to pay
interest thereon.

And said two stipulations are divisible in the sense that the former can still stand without
the latter….

In a simple loan with a stipulation of usurious interest, the prestation of the debtor to pay the
principal debt, which is the cause of the contract, is not illegal. The illegality lies only in the
stipulated interest. Being separable, only the latter should be deemed void. To discourage
stipulations on usurious interest, said stipulations are treated as wholly void, so that the loan
becomes one without a stipulation as to payment of interest. It should not, however, be
interpreted to mean forfeiture even of the principal, for this would unjustly enrich the borrower at
the expense of the lender.

In addition, we award, by way of compensatory damages for the breach of the obligation of
petitioners to pay the sum of money loaned, an interest in the amount of 12 percent per annum,
to be computed from default, i.e., from judicial or extrajudicial demand in accordance with Article
1169.38 Such interest is not due to stipulation, for there was none, the same being void. Rather it
is due to the general provision of law that in obligations to pay money, where the debtor incurs in
delay, he has to pay interest by way of damages, in conformity to our ruling in Eastern Shipping
Lines, Inc. vs. Court of Appeals.39

Going into the matter of the validity of the foreclosure, we find the foreclosure invalid as it
stemmed from the enforcement of a usurious mortgage contract. This is in line with our ruling
in Delgado vs. Alonso Duque Valgona.40In said case, the trial court found usurious payment for
parcels of land secured by a deed of mortgage and declared the mortgage deed void. Affirming
the decision of the trial court, we held that the trial judge committed no error in declaring that
instrument void, notwithstanding that the petitioners did not ask that the whole contract be
annulled. We declared that it was not erroneous for the court to eradicate the evil root and
branch, more particularly since the defendant therein had also asked that the mortgage be
annulled.41

Thus, conformably to Delgado, since the mortgage contract is void, the foreclosure of the
property provided for in said deed is ineffectual as well. Contracts and stipulations, under any
cloak or device whatever, intended to circumvent the laws against usury shall be void.42 The
parties then must restore what each had received from the other. Petitioners must pay the
principal loan of P150,000 with legal interest at 12 percent per annum from the date of demand
by way of damages. Respondents must return petitioners’ property that had been invalidly
foreclosed. The transfer certificate of title to the subject property is cancelled and a new one duly
ordered issued in favor of petitioners. This is without prejudice to the right of respondents to
proceed against petitioners in the event the latter fail to satisfy their original obligation including
payment of twelve percent interest by way of damages. 1âw phi 1.nêt

WHEREFORE, the petition is hereby GRANTED. The amended decision dated February 4, 1999
of the Court of Appeals and its resolution of April 5, 1999 are REVERSED and its decision dated
September 30, 1998 is REINSTATED. No pronouncements as to costs.

SO ORDERED.
 5
G.R. No. 168785 February 5, 2010

HERALD BLACK DACASIN, Petitioner,

vs.
SHARON DEL MUNDO DACASIN, Respondent.

DECISION

CARPIO, J.:

The Case

For review1 is a dismissal2 of a suit to enforce a post-foreign divorce child custody agreement for
lack of jurisdiction.

The Facts

Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin
(respondent), Filipino, were married in Manila in April 1994. They have one daughter, Stephanie,
born on 21 September 1995. In June 1999, respondent sought and obtained from the Circuit
Court, 19th Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against
petitioner.3 In its ruling, the Illinois court dissolved the marriage of petitioner and respondent,
awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for
enforcement purposes.

On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement4 ) for
the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to
adjudicate disputes arising from the Agreement. Respondent undertook to obtain from the Illinois
court an order "relinquishing" jurisdiction to Philippine courts.

In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial
court) to enforce the Agreement. Petitioner alleged that in violation of the Agreement, respondent
exercised sole custody over Stephanie.

Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because
of the Illinois court’s retention of jurisdiction to enforce the divorce decree.

The Ruling of the Trial Court

In its Order dated 1 March 2005, the trial court sustained respondent’s motion and dismissed the
case for lack of jurisdiction. The trial court held that: (1) it is precluded from taking cognizance
over the suit considering the Illinois court’s retention of jurisdiction to enforce its divorce decree,
including its order awarding sole custody of Stephanie to respondent; (2) the divorce decree is
binding on petitioner following the "nationality rule" prevailing in this jurisdiction;5 and (3) the
Agreement is void for contravening Article 2035, paragraph 5 of the Civil Code6 prohibiting
compromise agreements on jurisdiction.7

Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by
respondent is void. Thus, the divorce decree is no bar to the trial court’s exercise of jurisdiction
over the case.
In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the
case of respondent, the divorce decree is binding on petitioner under the laws of his nationality.

Hence, this petition.

Petitioner submits the following alternative theories for the validity of the Agreement to justify its
enforcement by the trial court: (1) the Agreement novated the valid divorce decree, modifying the
terms of child custody from sole (maternal) to joint;8 or (2) the Agreement is independent of the
divorce decree obtained by respondent.

The Issue

The question is whether the trial court has jurisdiction to take cognizance of petitioner’s suit and
enforce the Agreement on the joint custody of the parties’ child.

The Ruling of the Court

The trial court has jurisdiction to entertain petitioner’s suit but not to enforce the Agreement which
is void. However, factual and equity considerations militate against the dismissal of petitioner’s
suit and call for the remand of the case to settle the question of Stephanie’s custody.

Regional Trial Courts Vested With Jurisdiction

to Enforce Contracts

Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court,
statutory law vests on Regional Trial Courts exclusive original jurisdiction over civil actions
incapable of pecuniary estimation.9 An action for specific performance, such as petitioner’s suit to
enforce the Agreement on joint child custody, belongs to this species of actions.10 Thus,
jurisdiction-wise, petitioner went to the right court.

Indeed, the trial court’s refusal to entertain petitioner’s suit was grounded not on its lack of power
to do so but on its thinking that the Illinois court’s divorce decree stripped it of jurisdiction. This
conclusion is unfounded. What the Illinois court retained was "jurisdiction x x x for the purpose of
enforcing all and sundry the various provisions of [its] Judgment for Dissolution."11 Petitioner’s
suit seeks the enforcement not of the "various provisions" of the divorce decree but of the post-
divorce Agreement on joint child custody. Thus, the action lies beyond the zone of the Illinois
court’s so-called "retained jurisdiction."

Petitioner’s Suit Lacks Cause of Action

The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to
law.

In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the
minimum ban on stipulations contrary to law, morals, good customs, public order, or public
policy.12 Otherwise, the contract is denied legal existence, deemed "inexistent and void from the
beginning."13 For lack of relevant stipulation in the Agreement, these and other ancillary
Philippine substantive law serve as default parameters to test the validity of the Agreement’s joint
child custody stipulations.14

At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed:
(1) Stephanie was under seven years old (having been born on 21 September 1995); and (2)
petitioner and respondent were no longer married under the laws of the United States because of
the divorce decree. The relevant Philippine law on child custody for spouses separated in fact or
in law15 (under the second paragraph of Article 213 of the Family Code) is also undisputed: "no
child under seven years of age shall be separated from the mother x x x."16 (This statutory
awarding of sole parental custody17 to the mother is mandatory,18 grounded on sound policy
consideration,19subject only to a narrow exception not alleged to obtain here.20 ) Clearly then, the
Agreement’s object to establish a post-divorce joint custody regime between respondent and
petitioner over their child under seven years old contravenes Philippine law.

The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by
the mother when she refused to allow joint custody by the father. The Agreement would be valid
if the spouses have not divorced or separated because the law provides for joint parental
authority when spouses live together.21 However, upon separation of the spouses, the mother
takes sole custody under the law if the child is below seven years old and any agreement to the
contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of
(2) separated or divorced spouses. Simply put, for a child within this age bracket (and for
commonsensical reasons), the law decides for the separated or divorced parents how best to
take care of the child and that is to give custody to the separated mother. Indeed, the separated
parents cannot contract away the provision in the Family Code on the maternal custody of
children below seven years anymore than they can privately agree that a mother who is
unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable
disease will have sole custody of a child under seven as these are reasons deemed compelling
to preclude the application of the exclusive maternal custody regime under the second paragraph
of Article 213.22

It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to
judicial custodial agreements based on its text that "No child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order otherwise." To
limit this provision’s enforceability to court sanctioned agreements while placing private
agreements beyond its reach is to sanction a double standard in custody regulation of children
under seven years old of separated parents. This effectively empowers separated parents, by the
simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated
mother sole custody of her children under seven years of age "to avoid a tragedy where a mother
has seen her baby torn away from her."23 This ignores the legislative basis that "[n]o man can
sound the deep sorrows of a mother who is deprived of her child of tender age."24

It could very well be that Article 213’s bias favoring one separated parent (mother) over the other
(father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the
parents of custodial options, or hijacks decision-making between the separated
parents.25 However, these are objections which question the law’s wisdom not its validity or
uniform enforceability. The forum to air and remedy these grievances is the legislature, not this
Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary
agreements the separated parents may wish to enter such as granting the father visitation and
other privileges. These arrangements are not inconsistent with the regime of sole maternal
custody under the second paragraph of Article 213 which merely grants to the
mother final authority on the care and custody of the minor under seven years of age, in case of
disagreements. 1avv phi 1

Further, the imposed custodial regime under the second paragraph of Article 213 is limited in
duration, lasting only until the child’s seventh year. From the eighth year until the child’s
emancipation, the law gives the separated parents freedom, subject to the usual contractual
limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that
petitioner and respondent are not barred from entering into the Agreement for the joint custody of
Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie.
Respondent’s act effectively brought the parties back to ambit of the default custodial regime in
the second paragraph of Article 213 of the Family Code vesting on respondent sole custody of
Stephanie.

Nor can petitioner rely on the divorce decree’s alleged invalidity - not because the Illinois court
lacked jurisdiction or that the divorce decree violated Illinois law, but because the divorce was
obtained by his Filipino spouse26 - to support the Agreement’s enforceability. The argument that
foreigners in this jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dorn
v. Romillo27 settled the matter by holding that an alien spouse of a Filipino is bound by a divorce
decree obtained abroad.28 There, we dismissed the alien divorcee’s Philippine suit for accounting
of alleged post-divorce conjugal property and rejected his submission that the foreign divorce
(obtained by the Filipino spouse) is not valid in this jurisdiction in this wise:

There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is
contending in this case is that the divorce is not valid and binding in this jurisdiction, the same
being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public policy and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid according
to their national law. In this case, the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce dissolves the marriage.

xxxx

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner’s husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his own country’s Court, which
validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped
by his own representation before said Court from asserting his right over the alleged conjugal
property. (Emphasis supplied)

We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to dismiss criminal complaints for adultery
filed by the alien divorcee (who obtained the foreign divorce decree) against his former Filipino
spouse because he no longer qualified as "offended spouse" entitled to file the complaints under
Philippine procedural rules. Thus, it should be clear by now that a foreign divorce decree carries
as much validity against the alien divorcee in this jurisdiction as it does in the jurisdiction of the
alien’s nationality, irrespective of who obtained the divorce.

The Facts of the Case and Nature of Proceeding

Justify Remand

Instead of ordering the dismissal of petitioner’s suit, the logical end to its lack of cause of action,
we remand the case for the trial court to settle the question of Stephanie’s custody. Stephanie is
now nearly 15 years old, thus removing the case outside of the ambit of the mandatory maternal
custody regime under Article 213 and bringing it within coverage of the default standard on child
custody proceedings – the best interest of the child.30 As the question of custody is already
before the trial court and the child’s parents, by executing the Agreement, initially showed
inclination to share custody, it is in the interest of swift and efficient rendition of justice to allow
the parties to take advantage of the court’s jurisdiction, submit evidence on the custodial
arrangement best serving Stephanie’s interest, and let the trial court render judgment. This
disposition is consistent with the settled doctrine that in child custody proceedings, equity may be
invoked to serve the child’s best interest.31

WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional
Trial Court of Makati City, Branch 60. The case is REMANDED for further proceedings consistent
with this ruling.

SO ORDERED.
 6
G.R. No. 139868 June 8, 2006

ALONZO Q. ANCHETA, Petitioner,

vs.
CANDELARIA GUERSEY-DALAYGON, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Spouses Audrey O’Neill (Audrey) and W. Richard Guersey (Richard) were American citizens who
have resided in the Philippines for 30 years. They have an adopted daughter, Kyle Guersey Hill
(Kyle). On July 29, 1979, Audrey died, leaving a will. In it, she bequeathed her entire estate to
Richard, who was also designated as executor.1 The will was admitted to probate before the
Orphan’s Court of Baltimore, Maryland, U.S.A, which named James N. Phillips as executor due
to Richard’s renunciation of his appointment.2 The court also named Atty. Alonzo Q. Ancheta
(petitioner) of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices as ancillary
administrator.3

In 1981, Richard married Candelaria Guersey-Dalaygon (respondent) with whom he has two
children, namely, Kimberly and Kevin.

On October 12, 1982, Audrey’s will was also admitted to probate by the then Court of First
Instance of Rizal, Branch 25, Seventh Judicial District, Pasig, in Special Proceeding No.
9625.4 As administrator of Audrey’s estate in the Philippines, petitioner filed an inventory and
appraisal of the following properties: (1) Audrey’s conjugal share in real estate with
improvements located at 28 Pili Avenue, Forbes Park, Makati, Metro Manila, valued
at P764,865.00 (Makati property); (2) a current account in Audrey’s name with a cash balance
of P12,417.97; and (3) 64,444 shares of stock in A/G Interiors, Inc. worth P64,444.00.5

On July 20, 1984, Richard died, leaving a will, wherein he bequeathed his entire estate to
respondent, save for his rights and interests over the A/G Interiors, Inc. shares, which he left to
Kyle.6 The will was also admitted to probate by the Orphan’s Court of Ann Arundel, Maryland,
U.S.A, and James N. Phillips was likewise appointed as executor, who in turn, designated Atty.
William Quasha or any member of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices,
as ancillary administrator.

Richard’s will was then submitted for probate before the Regional Trial Court of Makati, Branch
138, docketed as Special Proceeding No. M-888.7 Atty. Quasha was appointed as ancillary
administrator on July 24, 1986.8

On October 19, 1987, petitioner filed in Special Proceeding No. 9625, a motion to declare
Richard and Kyle as heirs of Audrey.9 Petitioner also filed on October 23, 1987, a project of
partition of Audrey’s estate, with Richard being apportioned the ¾ undivided interest in the
Makati property, 48.333 shares in A/G Interiors, Inc., and P9,313.48 from the Citibank current
account; and Kyle, the ¼ undivided interest in the Makati property, 16,111 shares in A/G
Interiors, Inc., and P3,104.49 in cash.10

The motion and project of partition was granted and approved by the trial court in its Order dated
February 12, 1988.11 The trial court also issued an Order on April 7, 1988, directing the Register
of Deeds of Makati to cancel TCT No. 69792 in the name of Richard and to issue a new title in
the joint names of the Estate of W. Richard Guersey (¾ undivided interest) and Kyle (¼
undivided interest); directing the Secretary of A/G Interiors, Inc. to transfer 48.333 shares to the
Estate of W. Richard Guersey and 16.111 shares to Kyle; and directing the Citibank to release
the amount of P12,417.97 to the ancillary administrator for distribution to the heirs.12

Consequently, the Register of Deeds of Makati issued on June 23, 1988, TCT No. 155823 in the
names of the Estate of W. Richard Guersey and Kyle.13

Meanwhile, the ancillary administrator in Special Proceeding No. M-888 also filed a project of
partition wherein 2/5 of Richard’s ¾ undivided interest in the Makati property was allocated to
respondent, while 3/5 thereof were allocated to Richard’s three children. This was opposed by
respondent on the ground that under the law of the State of Maryland, "a legacy passes to the
legatee the entire interest of the testator in the property subject of the legacy."14 Since
Richard left his entire estate to respondent, except for his rights and interests over the A/G
Interiors, Inc, shares, then his entire ¾ undivided interest in the Makati property should be given
to respondent.

The trial court found merit in respondent’s opposition, and in its Order dated December 6, 1991,
disapproved the project of partition insofar as it affects the Makati property. The trial court also
adjudicated Richard’s entire ¾ undivided interest in the Makati property to respondent.15

On October 20, 1993, respondent filed with the Court of Appeals (CA) an amended complaint for
the annulment of the trial court’s Orders dated February 12, 1988 and April 7, 1988, issued in
Special Proceeding No. 9625.16Respondent contended that petitioner willfully breached his
fiduciary duty when he disregarded the laws of the State of Maryland on the distribution of
Audrey’s estate in accordance with her will. Respondent argued that since Audrey devised her
entire estate to Richard, then the Makati property should be wholly adjudicated to him, and not
merely ¾ thereof, and since Richard left his entire estate, except for his rights and interests over
the A/G Interiors, Inc., to respondent, then the entire Makati property should now pertain to
respondent.

Petitioner filed his Answer denying respondent’s allegations. Petitioner contended that he acted
in good faith in submitting the project of partition before the trial court in Special Proceeding No.
9625, as he had no knowledge of the State of Maryland’s laws on testate and intestate
succession. Petitioner alleged that he believed that it is to the "best interests of the surviving
children that Philippine law be applied as they would receive their just shares." Petitioner also
alleged that the orders sought to be annulled are already final and executory, and cannot be set
aside.

On March 18, 1999, the CA rendered the assailed Decision annulling the trial court’s Orders
dated February 12, 1988 and April 7, 1988, in Special Proceeding No. 9625.17 The dispositive
portion of the assailed Decision provides:

WHEREFORE, the assailed Orders of February 12, 1998 and April 7, 1988 are hereby
ANNULLED and, in lieu thereof, a new one is entered ordering:

(a) The adjudication of the entire estate of Audrey O’Neill Guersey in favor of the estate
of W. Richard Guersey; and

(b) The cancellation of Transfer Certificate of Title No. 15583 of the Makati City Registry
and the issuance of a new title in the name of the estate of W. Richard Guersey.

SO ORDERED.18

Petitioner filed a motion for reconsideration, but this was denied by the CA per Resolution dated
August 27, 1999.19
Hence, the herein petition for review on certiorari under Rule 45 of the Rules of Court alleging
that the CA gravely erred in not holding that:

A) THE ORDERS OF 12 FEBRUARY 1988 AND 07 APRIL 1988 IN SPECIAL

PROCEEDINGS NO. 9625 "IN THE MATTER OF THE PETITION FOR PROBATE OF
THE WILL OF THE DECEASED AUDREY GUERSEY, ALONZO Q. ANCHETA,
ANCILLARY ADMINISTRATOR", ARE VALID AND BINDING AND HAVE LONG
BECOME FINAL AND HAVE BEEN FULLY IMPLEMENTED AND EXECUTED AND
CAN NO LONGER BE ANNULLED.

B) THE ANCILLARY ADMINISTRATOR HAVING ACTED IN GOOD FAITH, DID NOT

COMMIT FRAUD, EITHER EXTRINSIC OR INTRINSIC, IN THE PERFORMANCE OF
HIS DUTIES AS ANCILLARY ADMINISTRATOR OF AUDREY O’NEIL GUERSEY’S
ESTATE IN THE PHILIPPINES, AND THAT NO FRAUD, EITHER EXTRINSIC OR
INTRINSIC, WAS EMPLOYED BY [HIM] IN PROCURING SAID ORDERS.20

Petitioner reiterates his arguments before the CA that the Orders dated February 12, 1988 and
April 7, 1988 can no longer be annulled because it is a final judgment, which is "conclusive upon
the administration as to all matters involved in such judgment or order, and will determine for all
time and in all courts, as far as the parties to the proceedings are concerned, all matters therein
determined," and the same has already been executed.21

Petitioner also contends that that he acted in good faith in performing his duties as an ancillary
administrator. He maintains that at the time of the filing of the project of partition, he was not
aware of the relevant laws of the State of Maryland, such that the partition was made in
accordance with Philippine laws. Petitioner also imputes knowledge on the part of respondent
with regard to the terms of Aubrey’s will, stating that as early as 1984, he already apprised
respondent of the contents of the will and how the estate will be divided.22

Respondent argues that petitioner’s breach of his fiduciary duty as ancillary administrator of
Aubrey’s estate amounted to extrinsic fraud. According to respondent, petitioner was duty-bound
to follow the express terms of Aubrey’s will, and his denial of knowledge of the laws of Maryland
cannot stand because petitioner is a senior partner in a prestigious law firm and it was his duty to
know the relevant laws.

Respondent also states that she was not able to file any opposition to the project of partition
because she was not a party thereto and she learned of the provision of Aubrey’s will
bequeathing entirely her estate to Richard only after Atty. Ancheta filed a project of partition in
Special Proceeding No. M-888 for the settlement of Richard’s estate.

A decree of distribution of the estate of a deceased person vests the title to the land of the estate
in the distributees, which, if erroneous may be corrected by a timely appeal. Once it becomes
final, its binding effect is like any other judgment in rem.23 However, in exceptional cases, a final
decree of distribution of the estate may be set aside for lack of jurisdiction or fraud.24 Further, in
Ramon v. Ortuzar,25 the Court ruled that a party interested in a probate proceeding may have a
final liquidation set aside when he is left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to negligence.26

The petition for annulment was filed before the CA on October 20, 1993, before the issuance of
the 1997 Rules of Civil Procedure; hence, the applicable law is Batas Pambansa Blg. 129 (B.P.
129) or the Judiciary Reorganization Act of 1980. An annulment of judgment filed under B.P. 129
may be based on the ground that a judgment is void for want of jurisdiction or that the judgment
was obtained by extrinsic fraud.27 For fraud to become a basis for annulment of judgment, it has
to be extrinsic or actual,28 and must be brought within four years from the discovery of the fraud.29
In the present case, respondent alleged extrinsic fraud as basis for the annulment of the RTC
Orders dated February 12, 1988 and April 7, 1988. The CA found merit in respondent’s cause
and found that petitioner’s failure to follow the terms of Audrey’s will, despite the latter’s
declaration of good faith, amounted to extrinsic fraud. The CA ruled that under Article 16 of the
Civil Code, it is the national law of the decedent that is applicable, hence, petitioner should have
distributed Aubrey’s estate in accordance with the terms of her will. The CA also found that
petitioner was prompted to distribute Audrey’s estate in accordance with Philippine laws in order
to equally benefit Audrey and Richard Guersey’s adopted daughter, Kyle Guersey Hill.

Petitioner contends that respondent’s cause of action had already prescribed because as early
as 1984, respondent was already well aware of the terms of Audrey’s will,30 and the complaint
was filed only in 1993. Respondent, on the other hand, justified her lack of immediate action by
saying that she had no opportunity to question petitioner’s acts since she was not a party to
Special Proceeding No. 9625, and it was only after Atty. Ancheta filed the project of partition in
Special Proceeding No. M-888, reducing her inheritance in the estate of Richard that she was
prompted to seek another counsel to protect her interest.31

It should be pointed out that the prescriptive period for annulment of judgment based on extrinsic
fraud commences to run from the discovery of the fraud or fraudulent act/s. Respondent’s
knowledge of the terms of Audrey’s will is immaterial in this case since it is not the fraud
complained of. Rather, it is petitioner’s failure to introduce in evidence the pertinent law of the
State of Maryland that is the fraudulent act, or in this case, omission, alleged to have been
committed against respondent, and therefore, the four-year period should be counted from the
time of respondent’s discovery thereof.

Records bear the fact that the filing of the project of partition of Richard’s estate, the opposition
thereto, and the order of the trial court disallowing the project of partition in Special Proceeding
No. M-888 were all done in 1991.32Respondent cannot be faulted for letting the assailed orders to
lapse into finality since it was only through Special Proceeding No. M-888 that she came to
comprehend the ramifications of petitioner’s acts. Obviously, respondent had no other recourse
under the circumstances but to file the annulment case. Since the action for annulment was filed
in 1993, clearly, the same has not yet prescribed.

Fraud takes on different shapes and faces. In Cosmic Lumber Corporation v. Court of
Appeals,33 the Court stated that "man in his ingenuity and fertile imagination will always contrive
new schemes to fool the unwary."

There is extrinsic fraud within the meaning of Sec. 9 par. (2), of B.P. Blg. 129, where it is one the
effect of which prevents a party from hearing a trial, or real contest, or from presenting all of his
case to the court, or where it operates upon matters, not pertaining to the judgment itself, but to
the manner in which it was procured so that there is not a fair submission of the controversy. In
other words, extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation
which is committed outside of the trial of the case, whereby the defeated party has been
prevented from exhibiting fully his side of the case by fraud or deception practiced on him by his
opponent. Fraud is extrinsic where the unsuccessful party has been prevented from exhibiting
fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away
from court, a false promise of a compromise; or where the defendant never had any 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; these and similar cases which show that there has never
been a real contest in the trial or hearing of the case are reasons for which a new suit may be
sustained to set aside and annul the former judgment and open the case for a new and fair
hearing.34

The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the
prevailing litigant prevented a party from having his day in court.35
Petitioner is the ancillary administrator of Audrey’s estate. As such, he occupies a position of the
highest trust and confidence, and he is required to exercise reasonable diligence and act in
entire good faith in the performance of that trust. Although he is not a guarantor or insurer of the
safety of the estate nor is he expected to be infallible, yet the same degree of prudence, care and
judgment which a person of a fair average capacity and ability exercises in similar transactions of
his own, serves as the standard by which his conduct is to be judged.36

Petitioner’s failure to proficiently manage the distribution of Audrey’s estate according to the
terms of her will and as dictated by the applicable law amounted to extrinsic fraud. Hence the CA
Decision annulling the RTC Orders dated February 12, 1988 and April 7, 1988, must be upheld.

It is undisputed that Audrey Guersey was an American citizen domiciled in Maryland, U.S.A.
During the reprobate of her will in Special Proceeding No. 9625, it was shown, among others,
that at the time of Audrey’s death, she was residing in the Philippines but is domiciled in
Maryland, U.S.A.; her Last Will and Testament dated August 18, 1972 was executed and
probated before the Orphan’s Court in Baltimore, Maryland, U.S.A., which was duly
authenticated and certified by the Register of Wills of Baltimore City and attested by the Chief
Judge of said court; the will was admitted by the Orphan’s Court of Baltimore City on September
7, 1979; and the will was authenticated by the Secretary of State of Maryland and the Vice
Consul of the Philippine Embassy.

Being a foreign national, the intrinsic validity of Audrey’s will, especially with regard as to who are
her heirs, is governed by her national law, i.e., the law of the State of Maryland, as provided in
Article 16 of the Civil Code, to wit:

Art. 16. Real property as well as personal property is subject to the law of the country where it is
situated.

However, intestate and testamentary succession, both with respect to the order of succession
and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is
under consideration, whatever may be the nature of the property and regardless of the
country wherein said property may be found. (Emphasis supplied)

Article 1039 of the Civil Code further provides that "capacity to succeed is governed by the law of
the nation of the decedent."

As a corollary rule, Section 4, Rule 77 of the Rules of Court on Allowance of Will Proved Outside
the Philippines and Administration of Estate Thereunder, states:

SEC. 4. Estate, how administered.—When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters testamentary or
of administration, shall extend to all the estate of the testator in the Philippines. Such estate,
after the payment of just debts and expenses of administration, shall be disposed of
according to such will, so far as such will may operate upon it; and the residue, if any, shall
be disposed of as is provided by law in cases of estates in the Philippines belonging to persons
who are inhabitants of another state or country. (Emphasis supplied)

While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized
to take judicial notice of them;37 however, petitioner, as ancillary administrator of Audrey’s estate,
was duty-bound to introduce in evidence the pertinent law of the State of Maryland.38

Petitioner admitted that he failed to introduce in evidence the law of the State of Maryland on
Estates and Trusts, and merely relied on the presumption that such law is the same as the
Philippine law on wills and succession. Thus, the trial court peremptorily applied Philippine laws
and totally disregarded the terms of Audrey’s will. The obvious result was that there was no fair
submission of the case before the trial court or a judicious appreciation of the evidence
presented.

Petitioner insists that his application of Philippine laws was made in good faith. The Court cannot
accept petitioner’s protestation. How can petitioner honestly presume that Philippine laws apply
when as early as the reprobate of Audrey’s will before the trial court in 1982, it was already
brought to fore that Audrey was a U.S. citizen, domiciled in the State of Maryland. As asserted by
respondent, petitioner is a senior partner in a prestigious law firm, with a "big legal staff and a
large library."39 He had all the legal resources to determine the applicable law. It was incumbent
upon him to exercise his functions as ancillary administrator with reasonable diligence, and to
discharge the trust reposed on him faithfully. Unfortunately, petitioner failed to perform his
fiduciary duties.

Moreover, whether his omission was intentional or not, the fact remains that the trial court failed
to consider said law when it issued the assailed RTC Orders dated February 12, 1988 and April
7, 1988, declaring Richard and Kyle as Audrey’s heirs, and distributing Audrey’s estate according
to the project of partition submitted by petitioner. This eventually prejudiced respondent and
deprived her of her full successional right to the Makati property.

In GSIS v. Bengson Commercial Bldgs., Inc.,40 the Court held that when the rule that the
negligence or mistake of counsel binds the client deserts its proper office as an aid to justice and
becomes a great hindrance and chief enemy, its rigors must be relaxed to admit exceptions
thereto and to prevent a miscarriage of justice, and the court has the power to except a particular
case from the operation of the rule whenever the purposes of justice require it.

The CA aptly noted that petitioner was remiss in his responsibilities as ancillary administrator of
Audrey’s estate. The CA likewise observed that the distribution made by petitioner was prompted
by his concern over Kyle, whom petitioner believed should equally benefit from the Makati
property. The CA correctly stated, which the Court adopts, thus:

In claiming good faith in the performance of his duties and responsibilities, defendant Alonzo H.
Ancheta invokes the principle which presumes the law of the forum to be the same as the foreign
law (Beam vs. Yatco, 82 Phil. 30, 38) in the absence of evidence adduced to prove the latter law
(Slade Perkins vs. Perkins, 57 Phil. 205, 210). In defending his actions in the light of the
foregoing principle, however, it appears that the defendant lost sight of the fact that his primary
responsibility as ancillary administrator was to distribute the subject estate in accordance with the
will of Audrey O’Neill Guersey. Considering the principle established under Article 16 of the Civil
Code of the Philippines, as well as the citizenship and the avowed domicile of the decedent, it
goes without saying that the defendant was also duty-bound to prove the pertinent laws of
Maryland on the matter.

The record reveals, however, that no clear effort was made to prove the national law of Audrey
O’Neill Guersey during the proceedings before the court a quo. While there is claim of good faith
in distributing the subject estate in accordance with the Philippine laws, the defendant appears to
put his actuations in a different light as indicated in a portion of his direct examination, to wit:

xxx

It would seem, therefore, that the eventual distribution of the estate of Audrey O’Neill Guersey
was prompted by defendant Alonzo H. Ancheta’s concern that the subject realty equally benefit
the plaintiff’s adopted daughter Kyle Guersey.

Well-intentioned though it may be, defendant Alonzo H. Ancheta’s action appears to have
breached his duties and responsibilities as ancillary administrator of the subject estate. While
such breach of duty admittedly cannot be considered extrinsic fraud under ordinary
circumstances, the fiduciary nature of the said defendant’s position, as well as the
resultant frustration of the decedent’s last will, combine to create a circumstance that is
tantamount to extrinsic fraud. Defendant Alonzo H. Ancheta’s omission to prove the national
laws of the decedent and to follow the latter’s last will, in sum, resulted in the procurement of the
subject orders without a fair submission of the real issues involved in the case.41 (Emphasis
supplied)

This is not a simple case of error of judgment or grave abuse of discretion, but a total disregard
of the law as a result of petitioner’s abject failure to discharge his fiduciary duties. It does not rest
upon petitioner’s pleasure as to which law should be made applicable under the circumstances.
His onus is clear. Respondent was thus excluded from enjoying full rights to the Makati property
through no fault or negligence of her own, as petitioner’s omission was beyond her control. She
was in no position to analyze the legal implications of petitioner’s omission and it was belatedly
that she realized the adverse consequence of the same. The end result was a miscarriage of
justice. In cases like this, the courts have the legal and moral duty to provide judicial aid to
parties who are deprived of their rights.42

The trial court in its Order dated December 6, 1991 in Special Proceeding No. M-888 noted the
law of the State of Maryland on Estates and Trusts, as follows:

Under Section 1-301, Title 3, Sub-Title 3 of the Annotated Code of the Public General Laws of
Maryland on Estates and Trusts, "all property of a decedent shall be subject to the estate of
decedents law, and upon his death shall pass directly to the personal representative, who shall
hold the legal title for administration and distribution," while Section 4-408 expressly provides that
"unless a contrary intent is expressly indicated in the will, a legacy passes to the legatee the
entire interest of the testator in the property which is the subject of the legacy". Section 7-101,
Title 7, Sub-Title 1, on the other hand, declares that "a personal representative is a fiduciary" and
as such he is "under the general duty to settle and distribute the estate of the decedent in
accordance with the terms of the will and the estate of decedents law as expeditiously and with
as little sacrifice of value as is reasonable under the circumstances".43

In her will, Audrey devised to Richard her entire estate, consisting of the following: (1) Audrey’s
conjugal share in the Makati property; (2) the cash amount of P12,417.97; and (3) 64,444 shares
of stock in A/G Interiors, Inc. worth P64,444.00. All these properties passed on to Richard upon
Audrey’s death. Meanwhile, Richard, in his will, bequeathed his entire estate to respondent,
except for his rights and interests over the A/G Interiors, Inc. shares, which he left to Kyle. When
Richard subsequently died, the entire Makati property should have then passed on to
respondent. This, of course, assumes the proposition that the law of the State of Maryland which
allows "a legacy to pass to the legatee the entire estate of the testator in the property which is
the subject of the legacy," was sufficiently proven in Special Proceeding No. 9625. Nevertheless,
the Court may take judicial notice thereof in view of the ruling in Bohanan v. Bohanan.44 Therein,
the Court took judicial notice of the law of Nevada despite failure to prove the same. The Court
held, viz.:

We have, however, consulted the records of the case in the court below and we have found that
during the hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of
P20,000 as her share, the foreign law, especially Section 9905, Compiled Nevada Laws, was
introduced in evidence by appellants' (herein) counsel as Exhibit "2" (See pp. 77-79, Vol. II, and
t.s.n. pp. 24-44, Records, Court of First Instance). Again said law was presented by the counsel
for the executor and admitted by the Court as Exhibit "B" during the hearing of the case on
January 23, 1950 before Judge Rafael Amparo (see Records, Court of First Instance, Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the above-quoted
provision of the laws of the State of Nevada. Under all the above circumstances, we are
constrained to hold that the pertinent law of Nevada, especially Section 9905 of the Compiled
Nevada Laws of 1925, can be taken judicial notice of by us, without proof of such law having
been offered at the hearing of the project of partition.
In this case, given that the pertinent law of the State of Maryland has been brought to record
before the CA, and the trial court in Special Proceeding No. M-888 appropriately took note of the
same in disapproving the proposed project of partition of Richard’s estate, not to mention that
petitioner or any other interested person for that matter, does not dispute the existence or validity
of said law, then Audrey’s and Richard’s estate should be distributed according to their
respective wills, and not according to the project of partition submitted by petitioner.
Consequently, the entire Makati property belongs to respondent.

Decades ago, Justice Moreland, in his dissenting opinion in Santos v. Manarang,45 wrote:

A will is the testator speaking after death. Its provisions have substantially the same force and
effect in the probate court as if the testator stood before the court in full life making the
declarations by word of mouth as they appear in the will. That was the special purpose of the law
in the creation of the instrument known as the last will and testament. Men wished to speak after
they were dead and the law, by the creation of that instrument, permitted them to do so x x x All
doubts must be resolved in favor of the testator's having meant just what he said.

Honorable as it seems, petitioner’s motive in equitably distributing Audrey’s estate cannot prevail
over Audrey’s and Richard’s wishes. As stated in Bellis v. Bellis:46

x x x whatever public policy or good customs may be involved in our system of legitimes,
Congress has not intended to extend the same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's
national Law. Specific provisions must prevail over general ones.47

Before concluding, the Court notes the fact that Audrey and Richard Guersey were American
citizens who owned real property in the Philippines, although records do not show when and how
the Guerseys acquired the Makati property.

Under Article XIII, Sections 1 and 4 of the 1935 Constitution, the privilege to acquire and exploit
lands of the public domain, and other natural resources of the Philippines, and to operate public
utilities, were reserved to Filipinos and entities owned or controlled by them. In Republic v.
Quasha,48 the Court clarified that the Parity Rights Amendment of 1946, which re-opened to
American citizens and business enterprises the right in the acquisition of lands of the public
domain, the disposition, exploitation, development and utilization of natural resources of the
Philippines, does not include the acquisition or exploitation of private agricultural lands. The
prohibition against acquisition of private lands by aliens was carried on to the 1973 Constitution
under Article XIV, Section 14, with the exception of private lands acquired by hereditary
succession and when the transfer was made to a former natural-born citizen, as provided in
Section 15, Article XIV. As it now stands, Article XII, Sections 7 and 8 of the 1986 Constitution
explicitly prohibits non-Filipinos from acquiring or holding title to private lands or to lands of the
public domain, except only by way of legal succession or if the acquisition was made by a former
natural-born citizen.

In any case, the Court has also ruled that if land is invalidly transferred to an alien who
subsequently becomes a citizen or transfers it to a citizen, the flaw in the original transaction is
considered cured and the title of the transferee is rendered valid.49 In this case, since the Makati
property had already passed on to respondent who is a Filipino, then whatever flaw, if any, that
attended the acquisition by the Guerseys of the Makati property is now inconsequential, as the
objective of the constitutional provision to keep our lands in Filipino hands has been achieved.

WHEREFORE, the petition is denied. The Decision dated March 18, 1999 and the Resolution
dated August 27, 1999 of the Court of Appeals are AFFIRMED.

Petitioner is ADMONISHED to be more circumspect in the performance of his duties as an

official of the court. No pronouncement as to costs. SO ORDERED.
 7
G.R. No. L-16439 July 20, 1961

ANTONIO GELUZ, petitioner,

vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.

A.P. Salvador for respondents.

REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo,
the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of
the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff
Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00
attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five,
sustained the award by a majority vote of three justices as against two, who rendered a separate
dissenting opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 —
through her aunt Paula Yambot. In 1950 she became pregnant by her present husband
before they were legally married. Desiring to conceal her pregnancy from her parent, and
acting on the advice of her aunt, she had herself aborted by the defendant. After her
marriage with the plaintiff, she again became pregnant. As she was then employed in the
Commission on Elections and her pregnancy proved to be inconvenient, she had herself
aborted again by the defendant in October 1953. Less than two years later, she again
became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the
latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P.
Gomez streets in Manila, where the three met the defendant and his wife. Nita was again
aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine
currency. The plaintiff was at this time in the province of Cagayan, campaigning for his
election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of
damages. Upon application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of
P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the
Philippines. This we believe to be error, for the said article, in fixing a minimum award of
P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not
endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la
categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho"
(Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having
rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily
to the one injured, it is easy to see that if no action for such damages could be instituted on
behalf of the unborn child on account of the injuries it received, no such right of action could
derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of
the unborn child, the same was extinguished by its pre-natal death, since no transmission to
anyone can take place from on that lacked juridical personality (or juridical capacity as
distinguished from capacity to act). It is no answer to invoke the provisional personality of a
conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that
same article expressly limits such provisional personality by imposing the condition that the child
should be subsequently born alive: "provided it be born later with the condition specified in the
following article". In the present case, there is no dispute that the child was dead when separated
from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery
can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555;
Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note,
10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such
damages must be those inflicted directly upon them, as distinguished from the injury or violation
of the rights of the deceased, his right to life and physical integrity. Because the parents can not
expect either help, support or services from an unborn child, they would normally be limited to
moral damages for the illegal arrest of the normal development of the spes hominis that was the
foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of
their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the
circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and
the Court of Appeals have not found any basis for an award of moral damages, evidently
because the appellee's indifference to the previous abortions of his wife, also caused by the
appellant herein, clearly indicates that he was unconcerned with the frustration of his parental
hopes and affections. The lower court expressly found, and the majority opinion of the Court of
Appeals did not contradict it, that the appellee was aware of the second abortion; and the
probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of
the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and
secure the punishment of the responsible practitioner. Even after learning of the third abortion,
the appellee does not seem to have taken interest in the administrative and criminal cases
against the appellant. His only concern appears to have been directed at obtaining from the
doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's
fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by
the abortion which his wife has deliberately sought at the hands of a physician would be
highminded rather than mercenary; and that his primary concern would be to see to it
that the medical profession was purged of an unworthy member rather than turn his
wife's indiscretion to personal profit, and with that idea in mind to press either the
administrative or the criminal cases he had filed, or both, instead of abandoning them in
favor of a civil action for damages of which not only he, but also his wife, would be the
beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without
medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too
severely condemned; and the consent of the woman or that of her husband does not excuse it.
But the immorality or illegality of the act does not justify an award of damage that, under the
circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.
Let a copy of this decision be furnished to the Department of Justice and the Board of Medical
Examiners for their information and such investigation and action against the appellee Antonio
Geluz as the facts may warrant.

Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.
 8
G.R. No. L-30538 January 31, 1981

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BONIFACIO TIROL and CIRIACO BALDESCO, defendants-appellants.

PER CURIAM:

Review of the decision of the Court of First Instance of Cotabato, Branch III, in Criminal Case No.
360, dated March 31, 1969, imposing on Bonifacio Tirol and Ciriaco Baldesco the death penalty
for each of the seven (7) murders and an indeterminate sentence for each of the two (2)
frustrated murders.

The following facts appear uncontroverted.

In the evening of December 4, 1965, while Kosain Manibpol was sleeping with his family in their
house at Kabalangasan Matalam, Cotabato, he was awakened by the barking of their dogs.
When he got up to investigate, he saw two persons outside their house who had already come
up. They were Beatingco, Jr. and Julian Casian He asked them what they came for, and they
answered that they wanted to borrow part of his land, to which he consented. After he gave his
consent, Kulas Bati suddenly arrived, flashed his flashlight on his face and boxed him. When he
fell to the floor, the rest of his assailant's companions, numbering more than ten, who were afl
armed with bladed weapons and firearms, also came and hacked or boloed him, his wife and his
seven children, resulting in the death of his wife, Kadidia Kalangtongan and his six children,
namely, Daduman Malaguianon Locaydal Pinangcong, Baingkong and Abdul Rakman all
surnamed Kusain He and one of his daughters, Undang Kosain who was about six years old,
survived although wounded. They were able to run to the houses of their neighbors, and were
later brought to the municipal building where they reported to the police and were given medical
attention.

For the death of Kosains wife and his six children, as well as for the wounding of himself and his
daughter Undang, fourteen (14) persons were charged (p. 3, Vol. II, rec with multiple murder and
double frustrated murder by the Matalam Chief of Police, and these were: Nicolas Bate,
Beatingco Junior, Ruperto Diosma Pablo Diosma Lorenzo Canio Durico Sugang Teofilo
Baldesco, Ciriaco Baldesco, Julian Casiag Nick Bunque a certain Miestizo Sofring Romualdo,
and Bonifacio Bautista [later amended to Bonifacio Tirol p. 29, Vol. 11, record of the fourteen,
only Ciriaco Baldesco and Bonifacio Tirol were apprehended, while the rest remain at large.

On February 17, 1966, after the second stage of prehn iinary investigation was waived by
accused Ciriaco Baldesco and Bonifacio Tirol, the acting Provincial Fiscal of Cotabato filed the
following information (p. 37, Vol. II, rec.) against the two:

INFORMATION

The undersigned Acting Provincial Fiscal accuses Bonifacio Tirol and Ciriaco
Baldisco of the crime of multiple murder with double frustrated murder, committed
as follows:

That on or about December 4, 1965, in Kobalangasan Barrio Lampayan,

Matalam, Province of Cotabato, Philippines, and within the jurisdiction of this
 Honorable Court, the said accused, in company with Nicolas Bate, Beatingco
Junior, Ruperto Diosma Pablo Diosma Lorenzo Canio Durico Sugang Teofilo
Baldesco, Julian Casiag Nick Bunque Miestizo Sopring Romualdo and Bonifacio
Bautista who are still at large, conspiring and confederating together and mutually
helping one another, armed with bladed weapons and firearms did then and there
wilfully, unlawfully and feloniously, with treachery and evident premeditation and
with intent to kilt taking advantage of the cover of the night, attack, stab and shoot
Kadidia Kalangtogan Duaduman Kosain Malaguianon Kosain Locayda Kosain
Penangcong Ko Biacong Kosain and Abdul Rakman Kosain who as a result
thereof, sustained mortal wounds which directly caused their death and Kosain
Manibpol and Undang Kosain sustained serious wounds which ordinarily would
have caused their death, thus performing all acts of execution which should have
produced the crime of double murder as a consequence thereof, but nevertheless
did not produce it by reason of causes independent of the will of the accused,
that is by the timely and able medical assistance rendered to said Kosain
Manibpol and Undang Kosain which prevented their death.

Contrary to law, especially Articles 248 and 6 of the Revised Penal Code.

The prosecution relied mainly on the testimonies of the two survivors, Kosain Manibpol and his
daughter Undang Kosain to prove the guilt of the accused. The only other witness presented by
the prosecution was the municipal health officer who issued the death certificates of the
deceased and the medical certificate of Kosain.

Kosain Manibpol 33 years old, widower and resident of Kabalangasan Matalam, Cotabato,
declared on direct examination that at about 8:00 P.M. on December 4, 1965, more than ten (10)
persons, all armed, entered his house in Kabalangasan Matalam, Cotabato. Two persons,
Beatingco Junior and Julian Casian came ahead, immediately after he got up from his sleep to
check what was causing the barking of their dogs which awakened him. When he asked why
they were there, the two answered that they wanted to borrow his land, to which he consented.
Suddenly, Kulas Bate arrived, flashed his flashlight on his face and boxed him. When he fell to
the floor, the rest of the armed men came and hacked or boloed not only him but also Ws wife
and seven children. Among the assailants he recognized aside from the three above-named,
were Bonifacio Tirol, Ciriaco Baldesco, Ruperto Diosma Florencio Cafio Dorico whose family
name he forgot, Teofilo Baldesco, a certain mestizo and Sopring Romualdo. He actually saw
Ciriaco Baldesco hacking his wife with a bolo, and the "bungi" harelipped Bonifacio Tirol hacking
his eldest daughter. He had known Bonifacio Tirol for two years before the incident and Ciriaco
Baldesco for a longer period. His wife and six of his children died as a result of the sudden
attack. He himself was wounded at the outer part of his right arm, at the back of his right wrist
and on his forehead, and his chest was badly beaten; but he survived because he was able to
run to the house of a neighbor named Angcogan (t.s.n., pp. 1-10, Vol. III, rec.).

On cross-examination, Kosain testified that when he was investigated by the police, he was not
sure of the surname of accused Bonifacio, so he stated that it may be Bautista. He learned later
that the surname was Tirol He admitted that he was confused when he stated earlier that he had
known Bonifacio Bautista for one year and Bonifacio Tirol for two years. Bonifacio Bautista and
Bonifacio Tirol are one and the same person. He further declared that after he had fallen down
as a result of the blow by Kulas Bate, Sopring immediately hacked him. It was after he fell that he
was able to observe the stabbing and slashing of his family, because his assailants must have
thought him dead. He later fled to the house of Angcogan who ran away because of fear, but
returned afterwards with companions and went to their house to verify what happened (pp. 10-
24, t.s.n., Vol. III, rec.).

On questioning by the court, Kosain testified that on the night of December 4, 1965 he slept with
a petroleum fight burning in their house as in fact they always slept with their house righted
because their youngest child would cry if there was no light. When he was attacked he was not
able to shout for help because he was caught unaware. His eldest daughter, Danonan
(Daduman) was the one who pleaded with their assailants not to hack them as they had no fault,
but she was also hacked and hit at the abdomen. At this stage he interchanged the assailants of
his wife and children by saying that Bonifacio Tirol hacked his wife and Ciriaco Baldesco hacked
his eldest child (p. 29, t s. n Vol. III, rec.).

Undang Kosain about 6 years old, resident of Kabalangasan Matalam, Cotabato, corroborated
the testimony of her father, Kosain Manibpol that she and her father are the only two in the family
now, after her mother, sisters and brother had been killed by more than ten armed men who
entered their house and attacked their family. Among their more than ten assailants, she knows
only three, namely, Kulas Bati, Ciriaco Baldesco and another person whom she remembers only
as "bungi" (harelipped). Of the three she knows only two were in court, namely Ciriaco Baldesco
and the "bungi" Bonifacio Tirol She Identified them by touching the shoulders of Baldesco and
Tirol (p. 65, t.s.n., Vol. III, rec.). She remembers Tirol distinctly because of his appearance as
"bungi." She did not see who hacked her mother, but she saw "bungi" hack his younger brother
and sister. Her elder sisters were hacked by Baldesco. She herself was hacked at her back by
Kulas Bati She showed in court her scar at the back of her left shoulder going diagonally to the
spinal column and measuring about 6 inches long and 3/4 of an inch wide, which appear to have
scars of stiches. Afterwards, she went to the house of a neighbor named Antalig.

In answer to the court's questions, Undang declared that she had three older sisters, two
younger sisters and one younger brother. Her elder sisters were Danonang (Daduman),
Maguianon (Malaguianan) and Lakaida (Locayda). Her younger sisters were Inangkong
(Penangkong) and Bayangkong (Benangkong), and her younger brother was Abdul Rakman
They all died when more than ten men went inside their house wle they were lying down on the
mat. She did not see who hacked their father, but she saw Bonifacio Tirol hacking her three elder
sisters, and Ciriaco Baldesco hacking his younger brother. They used kalsido or bolo. The other
men were also armed with boloes, and one of them, Kulas Bati was with a firearm. There was
light inside their house at that time. Besides, it was moonlight night. Before the night of the
hacking incident, she used to see Bonifacio Tirol passing by their house in going to the house of
Kulas Bati which is near their house. She has not seen Ciriaco Baldesco before (t.s.n., pp. 69-75,
Vol. III, rec.).

On cross-examination, Undang testified that she used to see Ciriaco Baldesco at their store
where her family buys things. The house of Baldesco is near the schools of her elder sisters. She
sometimes went with them to school. Her oldest sister was hacked by Baldesco at the abdomen.
Her two other elder sisters were likewise hacked by Baldesco at the abdomen. Her younger
brother was hacked by Bonifacio Tirol Their house was lighted at that time, aside from the fact
that it was bright because of the round moon. The accused Baldesco and Tirol were dressed in
white and dark clothes. The color of the dark clothes was black, She does not know of any
trouble between Ciriaco Baldesco or Bonifacio Tirol and her father (t.s.n., PP79-85, Vol. III, rec.).

The defense of both accused is alibi, and neither of them disputed the facts established by the
prosecution except to deny involvement in the crimes alluded to them.

Accused Ciriaco Baldesco, 48 years old, married and residing at Kabalangasan Matalam,
Cotabato, testifying on his own behalf, declared that on December 4, 1965, he went home at
about 6:00 P.M. after pasturing his carabao. He took his supper at 6:00 P.M. and listened to the
radio up to 9:00 P.M.. Thereafter, he went to sleep (t.s.n., pp. 125- 130, Vol. Ill, rec.).

To bolster his alibi, Baldesco presented Demetrio Riparip 25 years old, single, a former teacher
at Kabalangasan Elementary School and boarder in the house of Baldesco, who declared that he
took his supper with the latter at his house at about 6:00 P.M. on December 4, 1965. Then he
went to sleep at 7:00 P.M.. He did not wake up till the following morning (t.s.n., pp. 96-112, Vol.
III, rec.).
A daughter of Baldesco, Teofista Baldesco, 21 years old, married, housekeeper and residing at
Lampayan, Matalam, Cotabato, likewise corroborated Baldesco's testimony that family,
consisting of her father, mother, brother, and sister took supper in their house after 6.00 P.M.,
then listened to the radio up to 9:00 P.M.. They went to sleep at 9:00 P.M. (t.s.n., pp. 115-117,
Vol. III, rec.).

Accused Bonifacio Tirol, 31 years old, married and residing at Kabalangasan Matalam, Cotabato,
likewise testified on his own behalf. He declared that he was in Salat, a part of Kabacan
Cotabato, from December 2 to 7, 1965, seeking employment as a laborer in the logging firm of
Felipe Tan. He left Kabalangasan at 10:00 A.M., took a motorboat and arrived in Salat at 5:00
P.M. He did not see the manager, Felipe Tan, of the logging firm until December 6, 1965, and so
he was able to return to Kabalangasan only on December 7, 1965. While in Salat, he stayed in
the camp where his friend Rufino Duan was staying. When he returned to Kabalangasan his
family had already evacuated out of fear for revenge, because of the massacre of the fimily of
Kosain He went to Malamaing another barrio of Matalam, where he found his family. In
Malamaing they stayed in the house of a Cebuano named Kulas. They never went back to
Kabalangasan because they were afraid that Kosains family might take revenge on them (t.s.n.,
pp. 131-142, Vol. III, rec.).

His wife Nicolasa Tirol, 30 years old and residing at Paco, Kidapawan, Cotabato, confirmed
Tirol's absence from Matalam from December 2 to 7, 1965 while he was looking for a job in
Salat. She also stated that she evacuated her family because she was warned that the family of
Kosain might take revenge on them (t.s.n., pp. 145-151, Vol. III, rec.).

A friend from the logging company, Rufino Duan 23 years old, single and residing at Paco,
Kidapawan, Cotabato, likewise corroborated Tirol's testimony that he was in Salat from
December 2 to 7. 1965. The said accused stayed with him in the camp he is occupying while he
was at Salat for seven (7) days, looking for work. In order to go to Salat froni Kabalangasan one
has to take a ride on a truck (t.s.n., pp. 1 18122, Vol. III, rec.).

After trial, the trial court rendered its decision (pp. 6-28, Vol. I, rec.) dated March 31, 1969, the
dispositive portion of which reads as follows:

WHEREFORE, the court hereby finds the herein accused, Bonifacio Tirol and
Ciriaco Baldesco, guilty beyond reasonable doubt, of the crime of murder of
seven (,7) persons, namely: Daduman Klantongan Kosain [also written in the
transcript of steno-type notes as Danonan and Dananong Baingkong Kosain
[also written in the transcript as Bai Ingkong]; Abdul Kalatogan Kosain [also
written in the transcript as Abdul Rakman Kadidia Kalantongan Malaguianon
Kosain Locayda Kosain [also written Lokaidal Pinangkong Kosain [also written
Maningdongi and Binangkong and of the crime of Frustrated Murder of Kosain
Manibpol [also written as Kusain Manedpoll and Undang Kosain and hereby
sentences each of them to suffer the supreme penalty of death for each of the
seven murders of the seven deceased, and to an imprisonment of TEN (10)
YEARS to SEVENTEEN (17) YEARS and FOUR (4) MONTHS for each of the
two Frustra Murders of the two wounded persons and to indenuiify jointly and
severally the heirs of each of the seven deceased with the sum of SIX
THOUSAND PESOS (P6,000.00) for each of the seven deceased, or FORTY-
TWO THOUSAND PESOS (P42,000.00) in all, and pay the costs, fifty-fifty.

It appearing that the accused have been detained, they each should be credited
one-half (1/2) of their preventive imprisonment in the cases of two frustrated
murders.
 The penalty herein imposed for each of the seven murders being the maximum
— death — the records of this case are hereby automatically elevated to the
Supreme Court.

Let copy of this Judgment be furnished the Philippine Constabulary and the NBI
at Cotabato City, and the Police Department of Matalam, Cotabato, so that they
may exert efforts to apprehend the other culprits who committed the crimes
herein dealt with.

SO ORDERED.

On appeal, accused Baldesco and Tirol, contend in their joint brief:

FIRST ASSIGNED ERROR:

The lower court erred in admitting in the death certificates issued by the doctor
who did not personally view and examine the victims, but whose findings therein
were based upon the sketch prepared by the police.

SECOND ASSIGNED ERROR:

The lower court erred in disregarding the testimony of both accused despite the
convincingly strong evidence showing that they were not at the scene of the
crime on 4 December 1965, and therefore their non-participation in the crime
charged.

THIRD ASSIGNED ERROR:

The lower court erred in not granting new trial even as the complaining witness
himself made a voluntary extra-judicial admission by means of a sworn statement
(affidavit) that he merely involved accused Baldesco for a consideration.

FOURTH ASSIGNED ERROR:

The evidence failed to establish conspiracy among the accused.

FIFTH ASSIGNED ERROR:

The decision is contrary to law. (p. 98, Vol. I, rec.)

During the pendency of this appeal, or on October 23, 1977, appellant Baldesco died in the New
Bilibid Prison Hospital (p. 192, Vol. I, rec.) so that on January 28, 1978, We resolved to dismiss
this case insofar as the criminal liability of the said appellant is concerned. Following the doctrine
in People vs. Sendaydiego (81 SCRA 124, 134), this appeal will bd resolved insofar as Baldesco
is concerned only for the purpose of determining his criminal liability which is the basis of the civil
liability for which his estate may be liable.

Appellants would like the court to reject the death certificates of the victims on the ground that
they are hearsay evidence, since the doctor who issued them did so on the strength of the sketch
furnished by the police, without personally examining the bodies of the victims.

WE find no error in the admission of said exhibits "as part of the testimony of the witnesses" (p.
9, Vol. I and p. 95, Vol. III, rec.). The fact of death of the victims is not in issue. The testimonies
of the prosecution witnesses that the victims died because of stab wounds inflicted by the armed
men who entered their residence on the night of December 4, 1965 remain uncontroverted. That
death came to the deceased by foul means is a moral and legal certainty. Their death certificates
therefore are only corroborative of the testimonies of the prosecution witnesses.

Appellants would likewise have the Court give credence to their defense of alibi, alleging that
they have presented convincingly strong evidence showing that they were not at the scene of the
crime on December 4, 1965. This contention is devoid of merit. The rule is well settled, to the
point of being trite that the defense of alibi, which is easy to concoct, must be received with
utmost caution, for it is one of the weakest defenses that can be resorted to by an accused
(People vs. Castafieda, 93 SCRA 58, 69; People vs. Cortez, 57 SCRA 208).

Moreover, the alibi of both appellants cannot prevail over the positive Identification of the
prosecution witnesses Identifying and pointing to the accused as among the group of armed men
which massacred the victims (People vs. Tabion, 93 SCRA 566, 570; People vs. Angeles, 92
SCRA 433). The two survivors, Kosain and his 6-year old daughter positively Identified both
accused as two of the more than ten persons who entered their house on December 4, 1965 and
participated in the hacking and boloing of their family. Accused Tirol was even more distinctly
and positively recognized as the "bungi" harelipped who hacked some of the victims. The
credibility of these two prosecution witnesses was never successfully assailed. The
inconsistencies attributed to Kosain Manibpol refer to minor details (i.e., about the length of time
he had had known one of the two persons who first came up to his residence on the pretext of
borrowing his lot — pp. 15-16, Vol. III, rec., in relation to Exhibits "I" and "2", pp. 5 & 17, Vol. II,
rec.), which do not affect his credibility. The apparent inconsistency in his testimony as well as
that of 6-year old Undang Kosain whose credibility was never questioned, as to who among the
armed men hacked or attacked which victim is likewise insufficient to destroy their credibility,
considering that the presence of a number of armed men simultaneously participating in the
unlawful aggression could really be confusing. As noted by the trial court, it would be unnatural if
the witnesses who were themselves victims of the horrible deed were not confused during that
terrifying massacre committed together by more than ten persons (p. 27, Vol. I, rec.). What is
important is the positive Identification of the two accused appellants as having been in that group
and who participated in the concerted attack on the hapless victims. "Alibi is unavailing once the
accused is positively Identified by one without motive to charge falsely said accused, specially
with a grave offense that could bring death by execution on the culprit" (People vs. Estante, 92
SCRA 122).

The weakness of appellant Baldesco's defense lies in the fact that his house where he
purportedly stayed from 6:00 P.M. of December 4, 1965 to the following day — is only about one
kilometer from the house of the victims, the scene of the crime, according to his own daughter
and witness, Teofista Baldesco (p. 116, Vol. III, rec.). And although Baldesco himself testified
that the victims' house is more than three (3) kilometers from his, it still does not belie the fact
that he could easily go there if he wanted to, considering that both residences are within the
same barrio of Kabalangasan.

So also is the house of Tirol located in the same barrio. According to him, his house is about 11/2
kilometers from that of the victim. He wants to impress upon this Court, however, that he was not
in his house when the incident occurred but in another town looking for a job in a logging
company. The trial court correctly rejected this theory because of the inconsistencies noted in
Tirol's evidence. Said the trial court:

The alibi of Bonifacio Tirol is unbelievable. His witness Rufino Duan testified that
from Kabalangasan where Bonifacio Tirol lived to Salat where Bonifacio was
supposed to be on December 4, 1965, people would take a truck ride of the PTC
but Bonifacio Tirol declared that he went to Salat by speedboat, and went home
to Kabalangasan by banca. Duan testified that Salat is very far from
Kabalangasan because it takes one day to reach it from there; but Bonifacio Tirol
declared that he started at Kabalangasan by motorboat at 10:00 A.M., and
arrived at Salat at 5:00 P.M. or seven hours only. He modified this afterwards, in
the cross-examination, by testifying that from his house in Kabalangasan to the
 log pond where he took the speedboat, he had to walk from 6:00 A.M. to 10:00
A.M. or for 3 hours; fixing the time from his home to Salat at 10 hours, But this
testimony about the log pond cannot be believed. He testified he did not know
where the log pond was located; that was the first time he went there. How he
located a long pond at a place he did not know is certainly beyond belief. Of
course, he said, Rufino told him where to pass, but that was a long time ago.
Bonifacio Tirol further testified that when he went home to Kabalangasan he took
a banca at Salat at 3:00 dawn and arrived in his house at Kabalangasan at 9:00
in the morning, or 6 hours. He changed the time of arrival to 10:00 A.M. when
questioned by the Court about it. When asked by the Court why the difference in
the period of time of travel he reasoned out that the motorboat in going to Salat
was going upstream, and the paddled banca in going to Kabalangasan was going
downstream. Even, if that were so, the difference cannot be three or four hours.

xxx xxx xxx

But even granting that Bonifacio really went to Salat on the 2nd to look for work,
there was no physical impossibility for him to be in Kabalangasan on the evening
of the 4th which was a Saturday. The testimony of Duan that he saw Bonifacio of
the 4th in the evening cannot be believed because of his interest and its
improbability. Why should Bonifacio wait for the manager on a Saturday evening
when the next day was a Sunday, therefore not a work day? (pp. 2425, Vol. I,
rec.).

It is a well-settled doctrine that for alibi to be acceptable, it must be shown that the place where
the accused was alleged to when the offense was committed must be located at such a distance
that it is well nigh impossible for him to be at the scene of the crime (People vs. dela Cruz, G.R.
No. L-30912, April 30, 1980; People vs. Mercado, et al., L- 39511-13, April 28,1980; People vs.
Malibay, 63 SCRA 421).

As to appellant Baldesco, the testimonies of his witnesses do not at all bolster his alibi. Demetrio
Riparip stated that he took supper with Baldesco at 6:00 P.M. on December 4, 1965, after which
he slept at 7:00 P.M. and did not wake up until the next morning (p. 109, t.s.n., Vol. III, rec.).
Baldesco's daughter, Teofista, on the other hand, testified that she took supper at 6:00 P.M. with
her father, mother, brother and sister (p. 116, t.s.n., Vol. III, rec.), without mentioning the
presence of Riparip in their house; then she listended to the radio with her father, mother, brother
and sister up to 9:00 P.M. and went to sleep afterwards. These testimonies do not rule out the
possibility that he could have left the house that same evening while the rest of his family were
sound asleep and returned late that night or early the following morning.

The third assigned error is likewise bereft of merit. Counsel for appellants contends that the trial
court erred in not granting a new trial even as the complaining witness himself made a voluntary
extrajudicial admission by means of sworn statement (affidavit) that he merely involved accused
Baldesco for a consideration. The trial court rejected the motion for new trial on the -round that it
was filed out of time (p. 97, Vol. II rec.).

Section 9, Rule 122 of the Rules of Court requires that in all cases in which the death penalty is
impo the records should be forwarded to this Court within twenty (20) days but not less than
fifteen (15) days from rendition of judgment. This 20-day period is not rigid or absolute nor
jurisdictional, and may be shortened or extended (People vs. Bocar, 97 Phil. 398). However, the
extension of period is for the purpose of enabling the lower court to comply with the mandatory
requirement of elevating the records for review, and not to lengthen the minimum period within
which trial courts may modify or alter their decision. As enunciated in People vs. Bocar, supra,
the reason for the 15-day minimum requirement is such that within that period, the trial court may
on its own motion with the consent of the defendant, grant a new trial. Within that period the trial
court may modify its judgment by reducing the penalty or fine, or even set it aside altogether and
acquit the accused.

In the case at bar, the motion for new trial was filed on April 28,1969 (pp. 92-94, Vol. II, rec.) or
twenty-eight days after rendition of the judgment on March 31, 1969 (p. 90, Vol. II, rec.). Although
a 15-day extension from April 21, 1969 was granted to the lower court within which to forward the
record of this case (p. 30, Vol. I, rec.), that extension did not affect the 15-day period for filing a
motion for new trial.

But even granting that the said motion were filed on time, the -game does not merit a favorable
action. The ground relied on is an alleged newly-discovered evidence, referring to a sworn
statement (p. 94, Vol. II, rec.) executed on April 17, 1969 by a certain Romualdo Diosma barrio
captain of barrio Lampayan, Matalam, Cotabato. In the said affidavit, the affiant declared that he
was shocked to learn that the accused were sentenced to death; that Kosain Manibpol the
principal witness, had confided to him that he was only interested in commercializing or making
money out of his case, which is why he implicated the accused Baldesco; that Kosain Manibpol
had persuaded him to convince Feliciano Codoy, a son-in-law of Baldesco, to give him Kosain
one carabao so that he wili drop the case; that Kosain Manibpol also personally demanded from
Codoy one carabao so that he Will not testify against Baldesco; that he (affiant) even went with
Kosain to see Codoy in November, 1967 to persuade him to give a carabao to Kosain but Codoy
refused; and that Kosain realizing the wrong he had done, was willing to tell the truth regarding
the non-involvement and non-participation of Baldesco in the crime charged, but it was too late to
tell the court because the case was already submitted for decision; and that it was a common
knowledge in their barrio that Baldesco was not among the band that killed Kosains family.

This so-called "extra-judicial admission," referring to Diosmas sworn statement is not the kind of
newly-discovered evidence contemplated in Section 2, Rule 121 of the Rules of Court. Well-
settled is the rule that before a new trial may be granted on the ground of newly- discovered
evidence, it must be shown that: (a) the evidence was discovered after trial; (b) such evidence
could not have been discovered and produced at the trial even with the exercise of reasonable
diligence; (c) the evidence is material, not merely cumulative, corroborative or impeaching, and
(d) it must be to the merits as ought to produce a different result, if admitted [Jose vs. CA, 70
SCRA 258].

The very affidavit of Diosma indicates that the so-called extra-judicial admission of Kosain was
already available during the trial, otherwise, he would not have demanded from Feliciano Codoy
personally one carabao so that he will not testify against accused Baldesco.

For how could he have offered not to testify against Baldesco if the trial was already concluded?
Codoy should have been presented as a defense witness if such was the fact, together with
some other barrio residents who had knowledge, as was allegedly "public knowledge in our
barrio," that Baldesco was not involved in the crime. The purported extrajudicial admission is a
last-minute concoction.

Appellants also point out as error that the evidence failed to establish conspiracy. While it has
been held that conspiracy must be established by positive evidence, direct proof is not essential
to show it, since by its very nature it is planned in utmost secrecy (People vs. Peralta, 25 SCRA
760).

In the rase of People vs. Madai Santalani (93 SCRA 316, 330), We held: "Conspiracy implies
concert of design and not participation in every detail of the execution. If it is proved that two or
more persons aimed, by their acts, at the accomplishment of some unlawful object each doing a
part so that their acts, though apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiments, conspiracy may
be inferred although no actual meeting between them to conspire is proved, for the prosecution
need not establish that all the parties thereto agreed to every detail in the execution of the crime
or that they were actually together at all stages of the conspiracy" (see also People vs. Cabiling,
74 SCRA 285).

In this case under review, it has been clearly established that the appellants and their cohorts
acted in unison when they went up the house of Kosain Manibpol and attacked their victims in a
manner showing singleness of purpose — the massacre of the entire family of Kosain The fact
that two survived is of no moment. The intention to kill all of them was most patent.

Thus, the fifth assigned error, i.e., that the decision is contrary to law, need not be considered
separately. The prosecution evidence has clearly established the guilt of the accused appellants.
In addition, there are more incriminating evidence that emanate from the appellants themselves.
The trial court had taken judicial notice of the escape of accused Baldesco from police custody
on December 15, 1965, (p. 27, Vol. II, rec.), and his subsequent re-arrest while en route to
Davao (p. 28, Vol. II, rec.). On the other hand, accused Tirol himself had testified that after
coming from Salat, he left his house and never returned, for the reason that the members of his
family were afraid of some vendetta because of the massacre of Ko Manibpols family (pp. 141-
142, Vol. II, rec.). The trial court noted that this fear was entertained even before the chief of
police could ffle a complaint and before a warrant of arrest could be issued. These actuations
could only indicate a sense of guilt. As the trial court pointed out, fear of reprisal or retaliation
could only haunt one who is aware of his wrong doing (p. 26, Vol. I, rec.).

The trial court did not err in finding the accused guilty of murder of seven (7) persons, qualified
by treachery, and of two frustrated murders. There was treachery because the accused and their
companions made a deliberate surprise attack on the victims. They perpetrated the killings in
such a manner that there was no risk to themselves. Treachery has absorbed the circumstance
of nighttime, taking advantage of superior strength, employing means to weaken the defense,
and that the crime was committed by a band.

The aggravating circumstance of evident premeditation was not proven, hence it may not be
appreciated.

The aggravating circumstance of dwelling, the crime having been committed in the dwelling place
of the victims who had not given any provocation, likewise can be appreciated.

Considering that there is no mitigating circumstance, the trial court did not err in imposing the
maximum penalty provided for in Article 248.

Since the penal liability of appellant Ciriaco Baldesco had been extinguished by his death on
October 23, 1977, only his civil liability remains to be determined which can be recovered from
his estate.

The civil liability of both appellants for each of the seven victims of the seven murders is hereby
raised to P12,000.00 and their civil liability for each of the two victims of the two frustrated
murders is hereby increased to P8,000.00. The civil liability arising from the crime of 2 or more
accused is solidary.

WHEREFORE APPELLANTS BONIFACIO TIROL AND CIRIACO BALDESCO ARE HEREBY

SENTENCED TO (1) INDEMNIFY JOINTLY AND SEVERALLY KOSAIN MANIBPOL AND
UNDANG KOSAIN AS THE ONLY SURVIVING HEIRS OF THE SEVEN MURDER VICTIMS IN
THE SUM OF TWELVE THOUSAND (P12,000.00) PESOS FOR EACH OF THE SEVEN
MURDER VICTIMS; AND (2) INDEMNIFY JOINTLY AND SEVERALLY KOSAIN MANIBPOL IN
THE SUM OF EIGHT THOUSAND (P8,000.00) PESOS AND UNDANG KOSAIN ALSO IN THE
SUM OF EIGHT THOUSAND (P8,000.00) PESOS AS THE TWO VICTIMS OF THE TWO
FRUSTRATED MURDERS. THUS MODIFIED, THE JUDGMENT IS HEREBY AFFIRMED IN
ALL OTHER RESPECTS. SO ORDERED.
 9
G.R. No. L-5426 May 29, 1953

RAMON JOAQUIN, petitioner,

vs.
ANTONIO C. NAVARRO, respondent.

Agrava, Peralta & Agrava for petitioner.

Leonardo Abola for respondent.

TUASON, J.:

This three proceedings was instituted in the Court of First Instance of Manila in the summary
settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin
Navarro, Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael
Amparo handed down a single decision which was appealed to the Court of Appeals, whose
decision, modifying that the Court of First Instance, in turn was elevated to the Supreme Court for
review.

The main question represented in the first two courts related to the sequence of the deaths of
Joaquin Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of
civilians by Japanese troops in Manila in February 1945. The trial court found the deaths of this
persons to have accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and
Natividad; 2nd. Joaquin Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro,
Sr. The Court of Appeals concurred with the trial court except that, with regard to Angela Joaquin
de Navarro and Joaquin Navarro, Jr., the latter was declared to have survived his mother.

It is this modification of the lower court's finding which is now being contested by the petitioner.
The importance of the question whether Angela Joaquin de Navarro died before Joaquin
Navarro, Jr., or vice versa, lies in the fact that it radically affects the rights of succession of
Ramon Joaquin, the present petitioner who was an acknowledged natural child of Angela
Joaquin and adopted child of the deceased spouses, and Antonio C. Navarro, respondent, son of
Joaquin Navarro, Sr. by first marriage.

The facts, which is not disputed, are outlined in the statement in the decision of the Court of
Appeals as follows:

"On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses
Joaquin Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion,
and Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela Conde, sought
refuge in the ground floor of the building known as the German Club, at the corner of San
Marcelino and San Luis Streets of this City. During their stay, the building was packed with
refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the
Japanese started shooting at the people inside the building, especially those who were trying to
escape. The three daughters were hit and fell of the ground near the entrance; and Joaquin
Navarro, Sr., and his son decided to abandon the premises to seek a safer heaven. They could
not convince Angela Joaquin who refused to join them; and son Joaquin Navarro, Sr., his son,
Joaquin Navarro, Jr., and the latter's wife, Angela Conde, and a friend and former neighbor,
Francisco Lopez, dashed out of the burning edifice. As they came out, Joaquin Navarro, Jr. was
shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the
ground in front of the Club premises to avoid the bullets. Minutes later, the German Club, already
on fire, collapsed, trapping many people inside, presumably including Angela Joaquin.
"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air
raid shelter nearby, the stayed there about three days, until February 10, 1915, when they were
forced to leave the shelter be- cause the shelling tore it open. They flied toward the St. Theresa
Academy in San Marcelino Street, but unfortunately met Japanese Patrols, who fired at the
refugees, killing Joaquin Navarro, Sr., and his daughter-in-law.

"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was
about 67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older
than her brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were
between 23 and 25."

The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who
miraculously survived the holocaust, and upon them the Court of Appeals opined that, "as
between the mother Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the
survivorship is uncertain and insufficient" and the statutory presumption must be applied. The
appellate Court's reasoning for its conclusion is thus stated:

"It does not require argument to show that survivorship cannot be established by proof of the
death of only one of the parties; but that there must be adequate proof that one was alive when
the other had already died. Now in this case before us, the testimony of the sole witness Lopez is
to the effect that Joaquin Navarro, Jr. was shot and died shortly after the living the German Club
in the company of his father and the witness, and that the burning edified entirely collapsed
minutes after the shooting of the son; but there is not a scintilla of evidence, direct or
circumstantial, from which we may infer the condition of the mother, Angela Joaquin, during the
appreciable interval from the instant his son turned his back to her, to dash out to the Club, until
he died. All we can glean from the evidence is that Angela Joaquin was unhurt when her son left
her to escape from the German Club; but she could have died almost immediately after, from a
variety of causes. She might have been shot by the Japanese, like her daughters, killed by falling
beams from the burning edifice, overcome by the fumes, or fatally struck by splinters from the
exploding shells. We cannot say for certain. No evidence is available on the point. All we can
decide is that no one saw her alive after her son left her aside, and that there is no proof when
she died. Clearly, this circumstance alone cannot support a finding that she died latter than her
son, and we are thus compelled to fall back upon the statutory presumption. In deed, it could be
said that the purpose of the presumption of survivorship would be precisely to afford a solution to
uncertainties like these. Hence the son Joaquin Navarro, Jr. aged 30, must be deemed to have
survived his mother, Angela Joaquin, who was admittedly above 60 years of age (Rule 123, sec.
69, subsec. (ii), Rules of Court).

"The total lack of evidence on how Angela Joaquin died likewise disposes of the question
whether she and her deceased children perished in the same calamity. There being no evidence
to the contrary, the only guide is the occasion of the deaths, which is identical for all of them; that
battle for the liberation of Manila. A second reason is that the law, in declaring that those fallen in
the same battle are to be regarded as perishing in the same calamity, could not overlooked that a
variety of cause of death can ( and usually do) operate in the source of combats. During the
same battle, some may die from wounds, other from gages, fire, or drowning. It is clear that the
law disregards episodic details, and treats the battle as an overall cause of death in applying the
presumption of survivorship.

"We are thus led the conclusion that the order in which the members of the Navarro-Joaquin
family met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad;
then the mother Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which
there is no doubt), the father Joaquin Navarro, Sr."

Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now
section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of 1889,
now article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that
on the assumption that there is total lack of evidence, as the Court of Appeals said, then Angela
Joaquin and Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time.

The point is not of much if any relevancy and will be left open for the consideration when
obsolute necessity there for arises. We say irrelevant because our opinion is that neither of the
two provisions is applicable for the reasons to be presently set forth.

Rule 123, section 69 (ii) of the Revised Rules of Court, reads:

When two person perish in the same calamity, such as wreck, battle or conflagration, and
it is not (1) shown who died first, and there are no (2) particular circumstances from when
it can be inferred, the survivorship is presumed from the probabilities resulting from the
strength and ages of the sexes, according to the following rules:

xxx xxx xxx

Article 33 of the Civil Code of 1889 of the following tenor:

Whenever a doubt arises as to which was the first to die to the two or more persons who
would inherent one from the other, the persons who alleges the prior death of either must
prove the allegation; in the absence of proof the presumption shall be that they died at
the same time, and no transmission of rights from one to the other shall take place.

Most provisions, as their language plainly implies, are intended as a substitute for lacks and so
are not to be available when there are facts. With particular reference to section 69 (ii) of Rule
123, "the situation which it present is one in which the facts are not only unknown but
unknowable. By hypothesis, there is no specific evidence as to the time of death . . . ." . . . it is
assumed that no evidence can be produced. . . . Since the facts are unknown and unknowable,
the law may apply the law of fairness appropriate to the different legal situation that arises." (IX
Wigmore on Evidence, 1940 ed., 483.)

In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the
respect to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth
Division of sec. 1936 of the California Code of Civil Procedure," the Supreme Court of California
said:

When the statue speaks of "particular circumstances from which it can be inferred" that
one died before the other it means that there are circumstances from which the fact of
death by one before the other may be inferred as a relation conclusion from the facts
proven. The statue does not mean circumstances which would shown, or which would
tend to show, probably that one died before the other. Grand Lodge A.O.W.W. vs. Miller,
8 Cal. App. 28, 96 Pac. 22. When by circumstantial evidence alone, a party seeks to
prove a survivorship contrary to the statutory presumption, the circumstances by which it
is sought to prove the survivorship must be such as are competent and sufficient when
tested by the general rules of evidence in civil cases. The inference of survivorship
cannot rest upon mere surmise, speculation, or conjecture. As was said in Grand
Lodge vs. Miller, supra, "if the matter is left to probably, then the statue of the
presumption."

It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision
that the evidence of the survivorship need not be direct; it may be indirect, circumstantial, or
inferential. Where there are facts, known or knowable, from which a rational conclusion can be
made, the presumption does not step in, and the rule of preponderance of evidence controls.

Are there particular circumstances on record from which reasonable inference of survivorship
between Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent
and sufficient for this purpose? For a better appreciation of this issue, it is convenient and
necessary to detail the testimony, which was described by the trial court as "disinterested and
trustworthy" and by the Court of Appeals as "entitled to credence."

Lopez testified:

Q. You said you were also heat at that time as you leave the German Club with Joaquin
Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir.

Q. Did you fall? — A. I fell down.

Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

Q. When the German Club collapsed where were you? — A. We were out 15 meters
away from the building but I could see what was going on.

xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is
the shooting of Joaquin Navarro, Jr. and the collapse of the German Club? — A. Yes, sir,
I could not say exactly, Occasions like that, you know, you are confused.

Q. Could there (have) been an interval of an hour instead of fifteen minutes? — A.

Possible, but not probable.

Q. Could it have been 40 minutes? — A. Yes, sir, about 40 minutes.

xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? — A. Yes, sir.

Q. Can you tell the Honorable Court when did Angela Joaquin die? — A. Well, a few
minutes after we have dashed out, the German Club, which was burning, collapsed over
them, including Mrs. Joaquin Navarro, Sr.

xxx xxx xxx

Q. From your testimony it would appear that while you can give positive evidence to the
fact that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you
can not give the same positive evidence to the fact that Angela Joaquin also died? — A.
Yes, sir, in the sense that I did not see her actually die, but when the building collapsed
over her I saw and I am positive and I did not see her come out of that building so I
presumed she died there.

xxx xxx xxx

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and
Mr. Joaquin Navarro Jr. and the latter's wife? — A. Because the Japanese had set fire to
the Club and they were shooting people outside, so we thought of running away rather
than be roasted.

xxx xxx xxx

 Q. You mean to say that before you jumped out of the German Club all the Navarro girls,
Pilar, Concepcion, and Natividad, were already wounded? — A. to my knowledge, yes.

Q. They were wounded? — A. Yes, sir.

Q. Were they lying on the ground or not? — A. On the ground near the entrance,
because most of the people who were shot by the Japanese were those who were trying
to escape, and as far as I can remember they were among those killed.

xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you
left the place? — A. That is what I think, because those Japanese soldiers were shooting
the people inside especially those trying to escape.

xxx xxx xxx

Q. And none of them was not except the girls, is that what you mean? A — . There were
many people shot because they were trying to escape.

xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you
explain that? — A. They were trying to escape probably.

It is our opinion that the preceding testimony contains facts quite adequate to solve the problem
of survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory
presumption out of the case. It is believed that in the light of the conditions painted by Lopez, a
fair and reasonable inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his
mother.

While the possibility that the mother died before the son can not be ruled out, it must be noted
that this possibility is entirely speculative and must yield to the more rational deduction from
proven facts that it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed,
while running, in front of, and 15 meters from, the German Club. Still in the prime of life, 30, he
must have negotiated that distance in five seconds or less, and so died within that interval from
the time he dashed out of the building. Now, when Joaquin Navarro, Jr. with his father and wife
started to flee from the clubhouse, the old lady was alive and unhurt, so much so that the
Navarro father and son tried hard to have her come along. She could have perished within those
five or fewer seconds, as stated, but the probabilities that she did seem very remote. True,
people in the building were also killed but these, according to Lopez, were mostly refugees who
had tried to slip away from it and were shot by Japanese troops. It was not very likely that Mrs.
Joaquin Navarro, Sr. made an attempt to escape. She even made frantic efforts to dissuade her
husband and son from leaving the place and exposing themselves to gun fire.

This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the
same time, of a condition of relative safety in the clubhouse at the moment her husband, son,
and daughter-in-law left her. It strongly tends to prove that, as the situation looked to her, the
perils of death from staying were not so imminent. And it lends credence to Mr. Lopez' statement
that the collapse of the clubhouse occurred about 40 minutes after Joaquin Navarro the son was
shot in the head and dropped dead, and that it was the collapse that killed Mrs. Angela Navarro.
The Court of Appeals said the interval between Joaquin Navarro's death and the breaking down
of the edifice was "minutes". Even so, it was much longer than five seconds, long enough to
warrant the inference that Mrs. Angela Joaquin was sill alive when her son expired
The Court of Appeals mentioned several causes, besides the collapse of the building, by which
Mrs. Navarro could have been killed. All these are speculative , and the probabilities, in the light
of the known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by
her refusal to follow the only remaining living members of her family, she could not have kept
away form protective walls. Besides, the building had been set on fire trap the refugees inside,
and there was no necessity for the Japanese to was their ammunition except upon those who
tried to leave the premises. Nor was Angela Joaquin likely to have been killed by falling beams
because the building was made of concrete and its collapse, more likely than not, was sudden.
As to fumes, these do not cause instantaneous death; certainly not within the brief space of five
seconds between her son's departure and his death.

It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule
123 does not require that the inference necessary to exclude the presumption therein provided
be certain. It is the "particular circumstances from which it (survivorship) can be inferred" that are
required to be certain as tested by the rules of evidence. In speaking of inference the rule can not
mean beyond doubt, for "inference is never certainty, but if may be plain enough to justify a
finding of fact." (In re Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York,
269 N.Y. 199 N.E. 44; Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts
have said, it is enough that "the circumstances by which it is sought to prove the survivorship
must be such as are competent and sufficient when tested by the general rules of evidence in
civil cases." (In re Wallace's Estate, supra.) "Juries must often reason," says one author,
"according to probabilities, drawing an inference that the main fact in issue existed from collateral
facts not directly proving, but strongly tending to prove, its existence. The vital question in such
cases is the cogency of the proof afforded by the secondary facts. How likely, according to
experience, is the existence of the primary fact if certain secondary facts exist?" (1 Moore on
Facts, Sec. 596.) The same author tells us of a case where "a jury was justified in drawing the
inference that the person who was caught firing a shot at an animal trespassing on his land was
the person who fired a shot about an hour before at the same animal also trespassing." That
conclusion was not airtight, but rational. In fact, the circumstances in the illustration leave greater
room for another possibility than do the facts of the case at hand.

In conclusion the presumption that Angela Joaquin de Navarro died before her son is based
purely on surmises, speculations, or conjectures without any sure foundation in the evidence. the
opposite theory — that the mother outlived her son — is deduced from established facts which,
weighed by common experience, engender the inference as a very strong probability. Gauged by
the doctrine of preponderance of evidence by, which civil cases are decided, this inference ought
to prevail. It can not be defeated as in an instance, cited by Lord Chief Justice Kenyon,
"bordering on the ridiculous, where in an action on the game laws it was suggested that the gun
with which the defendant fired was not charged with shot, but that the bird might have died in
consequence of the fright." (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.)

It is said that part of the decision of the Court of Appeals which the appellant impugns, and which
has been discussed, involves findings of fact which can not be disturbed. The point is not, in our
judgment, well considered. The particular circumstances from which the parties and the Court of
Appeals drew conclusions are, as above seen, undisputed, and this being the case, the
correctness or incorrectness of those conclusions raises a question of law, not of fact, which the
Supreme Court has jurisdiction to look into. As was said in 1 Moran Commentaries on the Rules
of ?Court, 3rd Ed. 856, 857, "Undisputed evidence is one thing, and contradicted evidence is
another. An incredible witness does not cease to be such because he is not impeached or
contradicted. But when the evidence is purely documentary, the authenticity of which is not
questioned and the only issue is the construction to be placed thereon, or where a case is
submitted upon an agreement of facts, or where all the facts are stated in the judgment and the
issue is the correctness of the conclusions drawn therefrom, the question is one of law which
may be reviewed by the Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be
invoked is a question of law.
The prohibition against intermeddling with decisions on questions of evidence refers to decisions
supported by substantial evidence. By substantial evidence is meant real evidence or at least
evidence about which reasonable men may disagree. Findings grounded entirely on
speculations, surmises, or conjectures come within the exception to the general rule.

We are constrained to reverse the decision under review, and hold that the distribution of the
decedents' estates should be made in accordance with the decision of the trial court. This result
precludes the necessity of passing upon the question of "reserva troncal" which was put forward
on the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son. Without
costs.

Feria, Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.