NOW, THEREFORE, I, CORAZON C.

AQUINO, President of the

Philippines, by virtue of the powers vested in me by the
EXECUTIVE ORDER NO. 200 June 18, 1987 Constitution, do hereby order:

PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE Sec. 1. Laws shall take effect after fifteen days following the
OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL completion of their publication either in the Official Gazette or in
CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR a newspaper of general circulation in the Philippines, unless it is
THEIR EFFECTIVITY otherwise provided.

WHEREAS, Article 2 of the Civil Code partly provides that "laws Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the
shall take effect after fifteen days following the completion of "Civil Code of the Philippines," and all other laws inconsistent
their publication in the Official Gazette, unless it is otherwise with this Executive Order are hereby repealed or modified
provided . . .;" accordingly.

WHEREAS, the requirement that for laws to be effective only a Sec. 3. This Executive Order shall take effect immediately after its
publication thereof in the Official Gazette will suffice has entailed publication in the Official Gazette.
some problems, a point recognized by the Supreme Court in
Tañada. et al. vs. Tuvera, et al. (G.R. No. 63915, December 29, Done in the City of Manila, this 18th day of June, in the year of
1986) when it observed that "[t]here is much to be said of the Our Lord, nineteen hundred and eighty-seven.
view that the publication need not be made in the Official
Gazette, considering its erratic release and limited readership";

WHEREAS, it was likewise observed that "[u]ndoubtedly,

newspapers of general circulation could better perform the
function of communicating the laws to the people as such
periodicals are more easily available, have a wider readership,
and come out regularly"; and

WHEREAS, in view of the foregoing premises Article 2 of the Civil

Code should accordingly be amended so the laws to be effective
must be published either in the Official Gazette or in a newspaper
of general circulation in the country;
 proclamations, executive orders, letter of implementation and
administrativeorders.

G.R. No. L-63915 April 24, 1985 Specifically, the publication of the following presidential
issuances is sought:

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.
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,
ESCOLIN, J.:
1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,
1813-1817, 1819-1826, 1829-
Invoking the people's right to be informed on matters of public
1840, 1842-1847.
concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1as 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 b] Letter of Instructions Nos.: 10, 39, 49, 72, 107,
mandamus to compel respondent public officials to publish, 108, 116, 130, 136, 141, 150,
and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, 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 empowered to represent the people, has entered his appearance
supports the proposition that the relator is a proper party to for respondents in this case.
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
Respondents further contend that publication in the Official
'that it is always dangerous to apply a general rule to a particular
Gazette is not a sine qua non requirement for the effectivity of
case without keeping in mind the reason for the rule, because, if
laws where the laws themselves provide for their own
under the particular circumstances the reason for the rule does
effectivity dates. It is thus submitted that since the presidential
not exist, the rule itself is not applicable and reliance upon the
issuances in question contain special provisions as to the date they
rule may well lead to error'
are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on
Article2oftheCivilCode:
No reason exists in the case at bar for applying the
general rule insisted upon by counsel for the
respondent. The circumstances which surround
Art. 2. Laws shall take effect after fifteen days
this case are different from those in the United
following the completion of their publication in
States, inasmuch as if the relator is not a
the Official Gazette, unless it is otherwise
proper party to these proceedings no other
provided, ...
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 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
The reasons given by the Court in recognizing a private citizen's
effectivity date-for then the date of publication is material for
legal personality in the aforementioned case apply squarely to
determining its date of effectivity, which is the fifteenth day
the present petition. Clearly, the right sought to be enforced by
following its publication-but not when the law itself provides for
petitioners herein is a public right recognized by no less than the
the date when it goes into effect.
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 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 8to 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 9sustained 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.
implemented or enforced by the government. InPesigan 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.

Similarly, the implementation/enforcement of presidential

decrees prior to their publication in the Official Gazette is "an SO ORDERED.
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
 Justice Plana so aptly pointed out. It is true that what is decided
Separate Opinions 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.
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
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 Gazetterequired 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
DE LA FUENTE, J., concurring:
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 I concur insofar as the opinion declares the unpublished decrees
take effect. Only a higher law, which is the Constitution, can and issuances of a public nature or general applicability
assume that role. ineffective, until due publication thereof.

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.

Separate Opinions

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

I concur insofar as publication is necessary but reserve my vote as
to the necessity of such publication being in the Official Gazette.
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 I agree. There cannot be any question but that even if a decree
they are duly published) that "Ignorance of the law excuses no provides for a date of effectivity, it has to be published. What I
one from compliance therewith. 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
Respondents' contention based on a misreading of Article 2 of the
retroactive effect to the date of effectivity mentioned in the
Civil Code that "only laws which are silent as to their effectivity
decree itself. There should be no retroactivity if the retroactivity
[date] need be published in the Official Gazette for their
will run counter to constitutional rights or shall destroy vested
effectivity" is manifestly untenable. The plain text and meaning of
rights.
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
PLANA, J., concurring (with qualification):
"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 The Philippine Constitution does not require the publication of
effectivity 3 would be to nullify and render nugatory the Civil Code's laws as a prerequisite for their effectivity, unlike some
indispensable and essential requirement of prior publication in Constitutions elsewhere. * It may be said though that the
the Official Gazette by the simple expedient of providing for guarantee of due process requires notice of laws to affected
immediate effectivity or an earlier effectivity date in the law parties before they can be bound thereby; but such notice is not
itself before the completion of 15 days following its publication necessarily by publication in the Official Gazette. The due process
which is the period generally fixed by the Civil Code for its proper clause is not that precise. Neither is the publication of laws in the
dissemination. Official Gazetterequired by any statute as a prerequisite for their
effectivity, if said laws already provide for their effectivity date.

MELENCIO-HERRERA, J., concurring:

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.
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.

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 GUTIERREZ, Jr., J., concurring:
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 I concur insofar as publication is necessary but reserve my vote as
the Congress of the Philippines" and "all executive and to the necessity of such publication being in the Official Gazette.
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 DE LA FUENTE, J., concurring:
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 I concur insofar as the opinion declares the unpublished decrees
that role. and issuances of a public nature or general applicability
ineffective, until due publication thereof.
 TINGA, J.:

Petitioner Securities and Exchange Commission (SEC) assails the

Decision1 dated February 20, 2004 of the Court of Appeals in CA-
G.R. SP No. 68163, which directed that SEC Memorandum
Circular No. 1, Series of 1986 should be the basis for computing
the filing fee relative to GMA Network, Inc.’s (GMA’s) application
for the amendment of its articles of incorporation for purposes of
extending its corporate term.

The undisputed facts as narrated by the appellate court are as

follows:

On August 19, 1995, the petitioner, GMA NETWORK, INC., (GMA,

for brevity), a domestic corporation, filed an application for
collective approval of various amendments to its Articles of
Incorporation and By-Laws with the respondent Securities and
Exchange Commission, (SEC, for brevity). The amendments
applied for include, among others, the change in the corporate
name of petitioner from "Republic Broadcasting System, Inc." to
"GMA Network, Inc." as well as the extension of the corporate
term for another fifty (50) years from and after June 16, 2000.

Upon such filing, the petitioner had been assessed by the SEC’s
Corporate and Legal Department a separate filing fee for the
application for extension of corporate term equivalent to 1/10 of
G.R. No. 164026 December 23, 2008 1% of its authorized capital stock plus 20% thereof or an amount
of P1,212,200.00.
SECURITIES AND EXCHANGE COMMISSION, petitioner,
vs. On September 26, 1995, the petitioner informed the SEC of its
GMA NETWORK, INC., respondent. intention to contest the legality and propriety of the said
assessment. However, the petitioner requested the SEC to
DECISION approve the other amendments being requested by the
petitioner without being deemed to have withdrawn its
application for extension of corporate term.
On October 20, 1995, the petitioner formally protested the
assessment amounting to P1,212,200.00 for its application for
extension of corporate term.
On February 20, 1996, the SEC approved the other amendments
to the petitioner’s Articles of Incorporation, specifically Article 1
thereof referring to the corporate name of the petitioner as well
as Article 2 thereof referring to the principal purpose for which
the petitioner was formed.
On March 19, 1996, the petitioner requested for an official
opinion/ruling from the SEC on the validity and propriety of the
assessment for application for extension of its corporate term.
Consequently, the respondent SEC, through Associate
Commissioner Fe Eloisa C. Gloria, on April 18, 1996, issued its
ruling upholding the validity of the questioned assessment, the
dispositive portion of which states:
"In light of the foregoing, we believe that the questioned
assessment is in accordance with law. Accordingly, you are
hereby required to comply with the required filing fee."
An appeal from the aforequoted ruling of the respondent SEC was
subsequently taken by the petitioner on the ground that the
assessment of filing fees for the petitioner’s application for
extension of corporate term equivalent to 1/10 of 1% of the
authorized capital stock plus 20% thereof is not in accordance
with law.
On September 26, 2001, following three (3) motions for early
resolution filed by the petitioner, the respondent SEC En Banc
issued the assailed order dismissing the petitioner’s appeal, the
dispositive portion of which provides as follows:
WHEREFORE, for lack of merit, the instant Appeal is hereby
dismissed.
SO ORDERED.2
In its petition for review3 with the Court of Appeals, GMA argued
that its application for the extension of its corporate term is akin
to an amendment and not to a filing of new articles of
incorporation. It further averred that SEC Memorandum Circular
No. 2, Series of 1994, which the SEC used as basis for
assessing P1,212,200.00 as filing fee for the extension of GMA’s
corporate term, is not valid.
The appellate court agreed with the SEC’s submission that an
extension of the corporate term is a grant of a fresh license for a
corporation to act as a juridical being endowed with the powers
expressly bestowed by the State. As such, it is not an ordinary
amendment but is analogous to the filing of new articles of
incorporation.
However, the Court of Appeals ruled that Memorandum Circular
No. 2, Series of 1994 is legally invalid and ineffective for not
having been published in accordance with law. The challenged
memorandum circular, according to the appellate court, is not
merely an internal or interpretative rule, but affects the public in
general. Hence, its publication is required for its effectivity.
The appellate court denied reconsideration in a Resolution4 dated
June 9, 2004.
In its Memorandum5 dated September 6, 2005, the SEC argues
that it issued the questioned memorandum circular in the
exercise of its delegated legislative power to fix fees and charges.
The filing fees required by it are allegedly uniformly imposed on
the transacting public and are essential to its supervisory and
regulatory functions. The fees are not a form of penalty or
sanction and, therefore, require no publication.
For its part, GMA points out in its Memorandum,6 dated
September 23, 2005, that SEC Memorandum Circular No. 1, Series
of 1986 refers to the filing fees for amended articles of
incorporation where the amendment consists of extending the
term of corporate existence. The questioned circular, on the
other hand, refers only to filing fees for articles of incorporation.
Thus, GMA argues that the former circular, being the one that
specifically treats of applications for the extension of corporate
term, should apply to its case.
Assuming that Memorandum Circular No. 2, Series of 1994 is
applicable, GMA avers that the latter did not take effect and
cannot be the basis for the imposition of the fees stated therein
for the reasons that it was neither filed with the University of the
Philippines Law Center nor published either in the Official Gazette
or in a newspaper of general circulation as required under
existing laws.
It should be mentioned at the outset that the authority of the SEC
to collect and receive fees as authorized by law is not in
question.7 Its power to collect fees for examining and filing
articles of incorporation and by-laws and amendments thereto,
certificates of increase or decrease of the capital stock, among
others, is recognized. Likewise established is its power under Sec.
7 of P.D. No. 902-A to recommend to the President the revision,
alteration, amendment or adjustment of the charges which it is
authorized to collect.
The subject of the present inquiry is not the authority of the SEC
to collect and receive fees and charges, but rather the validity of
its imposition on the basis of a memorandum circular which, the
Court of Appeals held, is ineffective.
Republic Act No. 3531 (R.A. No. 3531) provides that where the
amendment consists in extending the term of corporate
existence, the SEC "shall be entitled to collect and receive for the
filing of the amended articles of incorporation the same fees
collectible under existing law as the filing of articles of
incorporation."8 As is clearly the import of this law, the SEC shall
be entitled to collect and receive the same fees it assesses and
collects both for the filing of articles of incorporation and the
filing of an amended articles of incorporation for purposes of
extending the term of corporate existence.
The SEC, effectuating its mandate under the aforequoted law and
other pertinent laws,9 issued SEC Memorandum Circular No. 1,
Series of 1986, imposing the filing fee of 1/10 of 1% of the
authorized capital stock but not less than P300.00 nor more
than P100,000.00 for stock corporations, and 1/10 of 1% of the
authorized capital stock but not less than P200.00 nor more
than P100,000.00 for stock corporations without par value, for
the filing of amended articles of incorporation where the
amendment consists of extending the term of corporate
existence.
Several years after, the SEC issued Memorandum Circular No. 2,
Series of 1994, imposing new fees and charges and deleting the
maximum filing fee set forth in SEC Circular No. 1, Series of 1986,
such that the fee for the filing of articles of incorporation became
1/10 of 1% of the authorized capital stock plus 20% thereof but
not less than P500.00.
A reading of the two circulars readily reveals that they indeed
pertain to different matters, as GMA points out. SEC
Memorandum Circular No. 1, Series of 1986 refers to the filing fee
for the amendment of articles of incorporation to extend
corporate life, while Memorandum Circular No. 2, Series of 1994
pertains to the filing fee for articles of incorporation. Thus, as
GMA argues, the former circular, being squarely applicable and,
more importantly, being more favorable to it, should be followed.
What this proposition fails to consider, however, is the clear
directive of R.A. No. 3531 to impose the same fees for the filing of
articles of incorporation and the filing of amended articles of
incorporation to reflect an extension of corporate term. R.A. No.
3531 provides an unmistakable standard which should guide the
SEC in fixing and imposing its rates and fees. If such mandate
were the only consideration, the Court would have been inclined
to rule that the SEC was correct in imposing the filing fees as
outlined in the questioned memorandum circular, GMA’s
argument notwithstanding.
However, we agree with the Court of Appeals that the questioned
memorandum circular is invalid as it does not appear from the
records that it has been published in the Official Gazette or in a
newspaper of general circulation. Executive Order No. 200, which
repealed Art. 2 of the Civil Code, provides that "laws shall take
effect after fifteen days following the completion of their
publication either in the Official Gazette or in a newspaper of
general circulation in the Philippines, unless it is otherwise
provided."
In Tañada v. Tuvera,10 the Court, expounding on the publication
requirement, held:
We hold therefore that all statutes, including those of local
application and private laws, shall be published as a condition for
their effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive
orders promulgated by the President in the exercise of legislative
powers whenever the same are validly delegated by the
legislature, or, at present, directly conferred by the Constitution.
Administrative rules and regulations must also be published if
their purpose is to enforce or implement existing law pursuant
also to a valid delegation.
Interpretative regulations and those merely internal in nature,
that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication
required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their
duties.11
The questioned memorandum circular, furthermore, has not
been filed with the Office of the National Administrative Register
of the University of the Philippines Law Center as required in the
Administrative Code of 1987.12
In Philsa International Placement and Services Corp. v. Secretary
of Labor and Employment,13 Memorandum Circular No. 2, Series
of 1983 of the Philippine Overseas Employment Administration,
which provided for the schedule of placement and
documentation fees for private employment agencies or
authority holders, was struck down as it was not published or Resolution, dated June 9, 2004, are AFFIRMED. No
filed with the National Administrative Register. pronouncement as to costs.

The questioned memorandum circular, it should be emphasized, SO ORDERED.

cannot be construed as simply interpretative of R.A. No. 3531.
This administrative issuance is an implementation of the mandate G.R. No. L-30771 May 28, 1984
of R.A.
LIAM LAW, plaintiff-appellee,
No. 3531 and indubitably regulates and affects the public at large. vs.
It cannot, therefore, be considered a mere internal rule or OLYMPIC SAWMILL CO. and ELINO LEE CHI, defendants-
regulation, nor an interpretation of the law, but a rule which must appellants.
be declared ineffective as it was neither published nor filed with
the Office of the National Administrative Register. Felizardo S.M. de Guzman for plaintiff-appellee.

A related factor which precludes consideration of the questioned
issuance as interpretative in nature merely is the fact the SEC’s
assessment amounting to P1,212,200.00 is exceedingly
unreasonable and amounts to an imposition. A filing fee, by legal
definition, is that charged by a public official to accept a
document for processing. The fee should be just, fair, and
proportionate to the service for which the fee is being collected,
in this case, the examination and verification of the documents
submitted by GMA to warrant an extension of its corporate term.
Rate-fixing is a legislative function which concededly has been
delegated to the SEC by R.A. No. 3531 and other pertinent laws.
The due process clause, however, permits the courts to
determine whether the regulation issued by the SEC is reasonable
and within the bounds of its rate-fixing authority and to strike it
down when it arbitrarily infringes on a person’s right to property.
WHEREFORE, the petition is DENIED. The Decision of the Court of
Appeals in CA-G.R. SP No. 68163, dated February 20, 2004, and its
Mariano M. de Joya for defendants-appellants.
MELENCIO-HERRERA, J.:
This is an appeal by defendants from a Decision rendered by the
then Court of First Instance of Bulacan. The appeal was originally
taken to the then Court of Appeals, which endorsed it to this
instance stating that the issue involved was one of law.
It appears that on or about September 7, 1957, plaintiff loaned
P10,000.00, without interest, to defendant partnership and
defendant Elino Lee Chi, as the managing partner. The loan
became ultimately due on January 31, 1960, but was not paid on
that date, with the debtors asking for an extension of three
months, or up to April 30, 1960.
On March 17, 1960, the parties executed another loan document.
Payment of the P10,000.00 was extended to April 30, 1960, but
the obligation was increased by P6,000.00 as follows:
That the sum of SIX THOUSAND PESOS (P6,000.00), Philippine
currency shall form part of the principal obligation to answer for
attorney's fees, legal interest, and other cost incident thereto to
be paid unto the creditor and his successors in interest upon the
termination of this agreement.
Defendants again failed to pay their obligation by April 30, 1960
and, on September 23, 1960, plaintiff instituted this collection
case. Defendants admitted the P10,000.00 principal obligation,
but claimed that the additional P6,000.00 constituted usurious
interest.
Upon application of plaintiff, the Trial Court issued, on the same
date of September 23, 1960, a writ of Attachment on real and
personal properties of defendants located at Karanglan, Nueva
Ecija. After the Writ of Attachment was implemented,
proceedings before the Trial Court versed principally in regards to
the attachment.
On January 18, 1961, an Order was issued by the Trial Court
stating that "after considering the manifestation of both counsel
in Chambers, the Court hereby allows both parties to
simultaneously submit a Motion for Summary Judgment. 1 The
plaintiff filed his Motion for Summary Judgment on January 31,
1961, while defendants filed theirs on February 2, 196l. 2
On June 26, 1961, the Trial Court rendered decision ordering
defendants to pay plaintiff "the amount of P10,000.00 plus the
further sum of P6,000.00 by way of liquidated damages . . . with
legal rate of interest on both amounts from April 30, 1960." It is
from this judgment that defendants have appealed.
We have decided to affirm.
Under Article 1354 of the Civil Code, in regards to the agreement
of the parties relative to the P6,000.00 obligation, "it is presumed
that it exists and is lawful, unless the debtor proves the contrary".
No evidentiary hearing having been held, it has to be concluded
that defendants had not proven that the P6,000.00 obligation
was illegal. Confirming the Trial Court's finding, we view the
P6,000.00 obligation as liquidated damages suffered by plaintiff,
as of March 17, 1960, representing loss of interest income,
attorney's fees and incidentals.
The main thrust of defendants' appeal is the allegation in their
Answer that the P6,000.00 constituted usurious interest. They
insist the claim of usury should have been deemed admitted by
plaintiff as it was "not denied specifically and under oath". 3
Section 9 of the Usury Law (Act 2655) provided:
SEC. 9. The person or corporation sued shall file its answer in
writing under oath to any complaint brought or filed against said
person or corporation before a competent court to recover the
money or other personal or real property, seeds or agricultural
products, charged or received in violation of the provisions of this
Act. The lack of taking an oath to an answer to a complaint will
mean the admission of the facts contained in the latter.
The foregoing provision envisages a complaint filed against an
entity which has committed usury, for the recovery of the
usurious interest paid. In that case, if the entity sued shall not file
its answer under oath denying the allegation of usury, the
defendant shall be deemed to have admitted the usury. The
provision does not apply to a case, as in the present, where it is
the defendant, not the plaintiff, who is alleging usury.
Moreover, for sometime now, usury has been legally non-
existent. Interest can now be charged as lender and borrower
may agree upon. 4 The Rules of Court in regards to allegations of
usury, procedural in nature, should be considered repealed with
retroactive effect.
Statutes regulating the procedure of the courts will be construed
as applicable to actions pending and undetermined at the time of
their passage. Procedural laws are retrospective in that sense and
to that extent. 5
... Section 24(d), Republic Act No. 876, known as the Arbitration
Law, which took effect on 19 December 1953, and may be
retroactively applied to the case at bar because it is procedural in
nature. ... 6
WHEREFORE, the appealed judgment is hereby affirmed, without
pronouncement as to costs.
SO ORDERED.
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS
BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA
DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.
RESOLUTION
CORTES, J.:
This special civil action for certiorari seeks to declare null and void
two (2) resolutions of the Special First Division of the Court of
Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De
Roy, et al., CA-G.R. CV No. 07286. The first resolution
promulgated on 30 September 1987 denied petitioners' motion
for extension of time to file a motion for reconsideration and
directed entry of judgment since the decision in said case had
become final; and the second Resolution dated 27 October 1987
denied petitioners' motion for reconsideration for having been
filed out of time.
At the outset, this Court could have denied the petition outright
for not being verified as required by Rule 65 section 1 of the Rules
of Court. However, even if the instant petition did not suffer from
this defect, this Court, on procedural and substantive grounds,
would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out
building owned by petitioners collapsed and destroyed the
tailoring shop occupied by the family of private respondents,
resulting in injuries to private respondents and the death of
Marissa Bernal, a daughter. Private respondents had been
warned by petitioners to vacate their shop in view of its proximity
to the weakened wall but the former failed to do so. On the basis
of the foregoing facts, the Regional Trial Court. First Judicial
Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen,
rendered judgment finding petitioners guilty of gross negligence
and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of
Appeals in a decision promulgated on August 17, 1987, a copy of
which was received by petitioners on August 25, 1987. On
September 9, 1987, the last day of the fifteen-day period to file
an appeal, petitioners filed a motion for extension of time to file a
motion for reconsideration, which was eventually denied by the
appellate court in the Resolution of September 30, 1987.
Petitioners filed their motion for reconsideration on September
24, 1987 but this was denied in the Resolution of October 27,
1987.
This Court finds that the Court of Appeals did not commit a grave
abuse of discretion when it denied petitioners' motion for
extension of time to file a motion for reconsideration, directed
entry of judgment and denied their motion for reconsideration. It
correctly applied the rule laid down in Habaluyas Enterprises, Inc.
v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the
fifteen-day period for appealing or for filing a motion for
reconsideration cannot be extended. In its Resolution denying the
motion for reconsideration, promulgated on July 30, 1986 (142
SCRA 208), this Court en banc restated and clarified the rule, to
wit:
Beginning one month after the promulgation of this Resolution,
the rule shall be strictly enforced that no motion for extension of
time to file a motion for reconsideration may be filed with the
Metropolitan or Municipal Trial Courts, the Regional Trial Courts,
and the Intermediate Appellate Court. Such a motion may be filed
only in cases pending with the Supreme Court as the court of last
resort, which may in its sound discretion either grant or deny the
extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate
Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA
643], reiterated the rule and went further to restate and clarify
the modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept.
15, 1986,144 SCRA 161],stressed the prospective application of
said rule, and explained the operation of the grace period, to wit:
In other words, there is a one-month grace period from the
promulgation on May 30, 1986 of the Court's Resolution in the
clarificatory Habaluyas case, or up to June 30, 1986, within which
the rule barring extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filed their motion for extension on
February 27, 1986, it is still within the grace period, which expired
on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate
Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA
306].]
In the instant case, however, petitioners' motion for extension of
time was filed on September 9, 1987, more than a year after the
expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the
length of time from the expiration of the grace period to the
promulgation of the decision of the Court of Appeals on August
25, 1987, petitioners cannot seek refuge in the ignorance of their
counsel regarding said rule for their failure to file a motion for
reconsideration within the reglementary period.
Petitioners contend that the rule enunciated in
the Habaluyas case should not be made to apply to the case at
bar owing to the non-publication of the Habaluyas decision in the
Official Gazette as of the time the subject decision of the Court of
Appeals was promulgated. Contrary to petitioners' view, there is
no law requiring the publication of Supreme Court decisions in
the Official Gazette before they can be binding and as a condition
to their becoming effective. It is the bounden duty of counsel as
lawyer in active law practice to keep abreast of decisions of the
Supreme Court particularly where issues have been clarified,
consistently reiterated, and published in the advance reports of
Supreme Court decisions (G. R. s) and in such publications as the
Supreme Court Reports Annotated (SCRA) and law journals.
This Court likewise finds that the Court of Appeals committed no
grave abuse of discretion in affirming the trial court's decision
holding petitioner liable under Article 2190 of the Civil Code,
which provides that "the proprietor of a building or structure is
responsible for the damage resulting from its total or partial
collapse, if it should be due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private
respondents had the "last clear chance" to avoid the accident if
only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded,
since the doctrine of "last clear chance," which has been applied
to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to
DENY the instant petition for lack of merit.
G.R. No. L-51841
REMIGIO QUIQUI, EMILIANA Q. ARELLANO, TURCUATA Q.
DIPUTADO, APOLONIA Q. SALCEDOR, LORETO QUIQUI, SUPLICIA
Q. CHAN, ELDEGUNDA Q. MONASTERIO, ELSA Q. ARBON and
ANTIPAS Q. YANG, petitioners
vs.
The Honorable Judge ALEJANDRO R. BONCAROS of Branch V,
Court of First Instance of Negros Oriental, ESTEFANIA G.
AMOLO, LOPE AMOLO, SOFIA G. ALBON, PASTOR GADINGAN,
ANGEL GADINGAN, ANTERO GADINGAN, TEOFILO GADINGAN
and FELICITAS GADINGAN, respondents.
GANCAYCO, J.:
This is a Petition for certiorari, prohibition and mandamus. It
concerns a parcel of agricultural land situated in Barangay
Cabangan, Siaton, Negros Oriental with an area of about 450
square meters. The said parcel of land is a portion of Lot No.
3217, Pls-659-D covered by Free Patent Title No. FV-13703. The
improvements on the parcel of land in question include several
fruit trees and a modest residential house.
The record of the case reveals that on May 22, 1973, the herein
private respondents Estefania G. Amolo, Lope Amolo, Sofia G.
Albon, Pastor Gadingan, Angel Gadingan, Antero Gadingan,
Teofilo Gadingan and Felicitas Gadingan were able to secure Free
Patent Title No. FV-13703 in their names. The 450-square meter
lot in question was included in the survey of the entire parcel of
land covered by the said Title.
On the other hand, it is the position of the herein petitioners
Remigio Quiqui, Emiliana Q. Arellano, Turcuata Q. Diputado,
Apolonia Q. Salcedor, Loreto Quiqui, Suplicia Q. Chan, Eldegunda
Q. Monasterio, Elsa Q. Arbon and Antipas Q. Yang that the 450-
square meter lot in question belongs to them and not to the
private respondents. They contend that the said lot was
purchased by their late father sometime in 1920 and that ever
since then, they have been in actual possession thereof,
peacefully, openly continuously and adversely, for a period of 56
years already. They also contend that the private respondents
succeeded in putting the said property in their name by
clandestinely including the said lot in the survey of the premises
undertaken by the Government sometime in the 1970s.
On November 9, 1976, the petitioners, assisted by the Citizens
Legal Assistance Office of the then Ministry of Justice, filed a
Complaint in the Court of First Instance of Negros Oriental for
"reconveyance and/or annulment of Title with damages" against
the private respondents. 1 The said Complaint was anchored on
the theory that the title to the lot in question obtained by the
private respondents in their name was secured through fraud.
The case was docketed as Civil Case No. 6606.
On December 5, 1976, the private respondents filed their Answer
to the Complaint, alleging, inter alia, that the petitioners have no
cause of action against them. By way of Counterclaim, the private
respondents sought the payment to them of moral damages and
attorney's fees. 2
Thereafter, a pre-trial conference was scheduled by the trial
court. Inasmuch as the parties could not reach an amicable
settlement of their case, the pre-trial conference was terminated
and the case was set for trial on the merits. In the course of the
proceedings, more particularly on May 10, 1979, the private
respondents filed a Motion to dismiss the case on the ground of
lack of jurisdiction on the part of the trial court. 3
On June 7, 1979, the petitioners submitted their Opposition to
the said Motion, stressing that the trial court has jurisdiction over
cases for reconveyance. 4 In its Order dated July 16, 1979, the
trial court, with respondent Judge Alejandro R. Boncaros
presiding, dismissed the Complaint for reconveyance on the
ground that it had no jurisdiction over the case. 5 Counsel for the
petitioners received a copy of the said Order on July 17, 1979. 6
On August 17, 1979, the petitioners filed a Motion for the
reconsideration of the Order of the trial court dismissing the
Complaint. 7 The said Motion for Reconsideration is dated August
16, 1979.
The private respondents opposed the Motion for
Reconsideration, stating that the same had been filed beyond the
30 day reglementary period under the Rules. The private
respondents maintain that inasmuch as the petitioners received
their copy of the Order of dismissal on July 17, 1979, they had up
to August 16, 1979 to file the Motion for reconsideration,
computed on the basis of the 30-day reglementary period. They
contend that since the said Motion was filed beyond the 30-day
period, the Order of dismissal has become final and executory
and could no longer be the subject of a Motion for
reconsideration. 8 In its Order dated August 21, 1979, the trial
court denied the Motion for Reconsideration on the ground
asserted by the private respondents.9
On August 23, 1979, the petitioners filed a Notice of Appeal,
seeking relief from the Court of Appeals. They sought the Appeal
on the ground that the Orders of the trial court dismissing their
Complaint and denying their Motion for Reconsideration are
contrary to law and the evidence submitted. 10 On August 24,
1979, the petitioners filed their Appeal Bond, together with their
Motion to approve the same.
In its Order dated August 28, 1979, the trial court denied the
Notice of Appeal, including the Motion to approve the Appeal
Bond. The pertinent portion of the said Order are as follows —
The order of dismissal of this Court which was dated July 16, 1979
was received by the plaintiffs (the herein petitioners) on July 17,
1979. Under Section 3, Rule 41 of the Revised Rules of Court, the
period to appeal is thirty (30) days, so with the motion for a
reconsideration so that (sic) under Art. 13 of the Civil Code that in
the computation of the period exclude the first (day), include the
last (sic), August 16, 1979 therefore was the last day to file the
motion for reconsideration but it was filed on August 17 or one
day late and this motion for reconsideration was denied by this
Court on August 21, 1979 (sic). The reason for the denial was the
motion for reconsideration was filed (sic) beyond the
reglementary period, in which case, the notice of appeal ... (was)
likewise filed beyond the reglementary period ....
xxx xxx xxx 11
Finding the action taken by the trial court unsatisfactory, the
petitioners brought their case directly to this Court by way of the
instant Petition for certiorari, prohibition and mandamus under
Rule 65 of the Rules of Court. They maintain that the Order of the
trial court dated July 16, 1979 is illegal and void for having been
"issued without jurisdiction or in excess of jurisdiction or with
grave abuse of discretion, for the so called "one day late"
(ground) upon which it is based does not actually exist. " 12 They
pray, inter alia, that the trial court be ordered to approve their
Notice of Appeal. 13
Complying with the instructions of this Court, the private
respondents submitted their Comment on the Petition. 14
In the Resolution of this Court dated January 14, 1980, We gave
due course to the instant Petition. 15 The parties submitted their
respective Memoranda after which the case was deemed
submitted for decision on June 11, 1980.
After a careful examination of the entire record of the case, We
find the instant Petition devoid of merit.
At the time this litigation was instituted in the trial court, Section
3, Rule 41 of the Rules of Court was the provision governing the
period within which an Appeal may be taken to the Court of
Appeals, to wit —
SEC. 3. How appeal is taken. — Appeal may be taken by serving
upon the adverse party and filing with the trial court within thirty
(30) days from notice of order or judgment, a notice of appeal, an
appeal bond, and a record on appeal. The time during which a
motion to set aside the judgment or order or for a new trial has
been pending shall be deducted, unless such motion fails to
satisfy the requirements of Rule 37.
But where such a motion has been filed during office hours of the
last day of the period herein provided, the appeal must be
perfected within the day following that in which the party
appealing received notice of the denial of said motion.
Under this cited provision, the Appeal may be taken within 30
days from notice of the judgment or order of the trial court. 16 In
the event that the party aggrieved by the judgment or order of
the trial court files a Motion to set aside the judgment or order, i.
e a Motion for Reconsideration, the time during which such
Motion is pending resolution shall, as a rule, be deducted from
the 30-day period. 17 In relation thereto, the New Civil Code
states that in computing a period, the first day shall be excluded
and the last day included. 18
The petitioners admit that they received their copy of the Order
of dismissal of their Complaint on July 17, 1979. Under Section 3,
Rule 41, they had 30 days within which to appeal their case or to
file a Motion for Reconsideration of the judgment or order of the
trial court. In computing the 30-day period, July 17, 1979 (the first
day) is excluded, pursuant to Article 13 of the New Civil Code.
Counting 30 days thereafter, beginning on July 18, 1979, the
petitioners had up to August 16, 1979 to file their Motion for
Reconsideration. Their Motion for Reconsideration, although
dated August 16, 1979, was filed with the trial court on August
17, 1979 or one day beyond the 30-day reglementary period
prescribed by Section 3 of Rule 41.
Under these circumstances, the order of the trial court dismissing
the Complaint has become final and executory. As such, it is
beyond the reach of a Motion for consideration. 19 The Notice of
Appeal, therefore, was properly denied. Perfection of an appeal
in the manner and within the period laid down by law is not only
mandatory but also jurisdictional and failure to perfect an appeal
as required by the rules has the effect of rendering the judgment
final and executory. A strict observance of the reglementary
period within which to exercise the statutory right of appeal has
been considered as absolutely indispensable to the prevention of
needless delays. 20
As a last recourse in support of their case, the petitioners invoke
the following observations made by this Court in De Las Alas v.
Court of Appeals, 21 to wit:
Regardless, however, of the above findings and even assuming
that respondents' position were correct, WE find that a one-day
delay does not justify the dismissal of the appeal under the
circumstances obtaining in this case. The real purpose behind the
limitation of the period of appeal is to forestall or avoid an
unreasonable delay in the administration of justice and to put an
end to controversies ... 22
Unfortunately for the petitioners, the observation made by this
Court in De Las Alas does not apply to their case.
In De Las Alas, the view expressed by this Court to the effect that
"a one-day delay does not justify the dismissal of the appeal" is
qualified by the phrase "under the circumstances obtaining in this
case". Unlike the situation faced by the herein petitioners, there
is no showing that the petitioners in the De Las Alas case failed to
file their Motion for Reconsideration as well as their Record on
Appeal within the reglementary period. On the contrary, this
Court noted therein the lack of delay on the part of the
petitioners in that case, viz —
Furthermore, WE note from the records the absence or lack of
the element of intent to delay the administration of justice on the
part of petitioners in this case. On the contrary, petitioners'
counsel have demonstrated cautiousness, concern and
punctuality in the prosecution of the appeal. They filed their
motion for reconsideration October 7, 1972, even if the
respondent lower court judge had given them an extension up to
October 24, 1972, within which to file the said motion. Petitioners
had up to December 25, 1972, within which to submit their
record on appeal, yet they filed their record on appeal on
December 8, 1972, or 17 days before the deadline. 23
Moreover, a doubtful and controversial question of law
confronted the parties in the De Las Alas case, i.e., the matter of
computing the reglementary period for filing an Appeal. The
respondent court found petitioner had only two (2) days left to
perfect the appeal after the denial of the motion for
reconsideration while this Court held petitioners had three (3)
days left deducting the period within which the motion for
reconsideration has been pending, excluding the first day in the
computation of the period, but since the last day falls on a
Sunday the period of appeal is ipso jure extended to the first
working day immediately following. 24 In the case at bar,
however, there is no such doubtful or controversial question of
law submitted for Our resolution.
For the petitioners to seek exception for their failure to comply
strictly with the requirements for perfecting their Appeal, strong
compelling reasons, like the prevention of a grave miscarriage of
justice, must be shown to exist in order to warrant this Court to
suspend the Rules. 25 No such reasons have been shown to exist
in this case. In fact, the petitioners did not even offer any
reasonable explanation for their delay.
On the basis of the foregoing discussion, We find no jurisdictional
infirmity, sufficient to call for the issuance of the corrective writ
of certiorari in the action taken by the trial court. As stated
earlier, the instant Petition is devoid of merit.
WHEREFORE, in view of the foregoing, the instant Petition
for certiorari prohibition and mandamus is hereby DISMISSED for
lack of merit. We make no pronouncement as to costs.
SO ORDERED.
G.R. No. 124371 November 23, 2000
PAULA T. LLORENTE, petitioner,
vs.
COURT OF APPEALS and ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of
Appeals1 modifying that of the Regional Trial Court, Camarines
Sur, Branch 35, Iriga City2 declaring respondent Alicia F. Llorente
(herinafter referred to as "Alicia"), as co-owners of whatever
property she and the deceased Lorenzo N. Llorente (hereinafter
referred to as "Lorenzo") may have acquired during the twenty-
five (25) years that they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of
the United States Navy from March 10, 1927 to September 30,
1957.3
On February 22, 1937, Lorenzo and petitioner Paula Llorente
(hereinafter referred to as "Paula") were married before a parish
priest, Roman Catholic Church, in Nabua, Camarines Sur.4
Before the outbreak of the Pacific War, Lorenzo departed for the
United States and Paula stayed in the conjugal home in barrio
Antipolo, Nabua, Camarines Sur.5
On November 30, 1943, Lorenzo was admitted to United States
citizenship and Certificate of Naturalization No. 5579816 was
issued in his favor by the United States District Court, Southern
District of New York.6
Upon the liberation of the Philippines by the American Forces in
1945, Lorenzo was granted an accrued leave by the U. S. Navy, to
visit his wife and he visited the Philippines.7 He discovered that
his wife Paula was pregnant and was "living in" and having an
adulterous relationship with his brother, Ceferino Llorente.8
On December 4, 1945, Paula gave birth to a boy registered in the
Office of the Registrar of Nabua as "Crisologo Llorente," with the
certificate stating that the child was not legitimate and the line
for the father’s name was left blank.9
Lorenzo refused to forgive Paula and live with her. In fact, on
February 2, 1946, the couple drew a written agreement to the
effect that (1) all the family allowances allotted by the United
States Navy as part of Lorenzo’s salary and all other obligations
for Paula’s daily maintenance and support would be suspended;
(2) they would dissolve their marital union in accordance with
judicial proceedings; (3) they would make a separate agreement
regarding their conjugal property acquired during their marital
life; and (4) Lorenzo would not prosecute Paula for her adulterous
act since she voluntarily admitted her fault and agreed to
separate from Lorenzo peacefully. The agreement was signed by
both Lorenzo and Paula and was witnessed by Paula’s father and
stepmother. The agreement was notarized by Notary Public
Pedro Osabel.10
Lorenzo returned to the United States and on November 16, 1951
filed for divorce with the Superior Court of the State of California
in and for the County of San Diego. Paula was represented by
counsel, John Riley, and actively participated in the proceedings.
On November 27, 1951, the Superior Court of the State of
California, for the County of San Diego found all factual
allegations to be true and issued an interlocutory judgment of
divorce.11
On December 4, 1952, the divorce decree became final.12
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in
Manila.13 Apparently, Alicia had no knowledge of the first
marriage even if they resided in the same town as Paula, who did
not oppose the marriage or cohabitation.14
From 1958 to 1985, Lorenzo and Alicia lived together as husband
and wife.15 Their twenty-five (25) year union produced three
children, Raul, Luz and Beverly, all surnamed Llorente.16
On March 13, 1981, Lorenzo executed a Last Will and Testament.
The will was notarized by Notary Public Salvador M. Occiano, duly
signed by Lorenzo with attesting witnesses Francisco Hugo,
Francisco Neibres and Tito Trajano. In the will, Lorenzo
bequeathed all his property to Alicia and their three children, to
wit:
"(1) I give and bequeath to my wife ALICIA R. FORTUNO
exclusively my residential house and lot, located at San Francisco,
Nabua, Camarines Sur, Philippines, including ALL the personal
properties and other movables or belongings that may be found
or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno
and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F.
Llorente, in equal shares, all my real properties whatsoever and
wheresoever located, specifically my real properties located at
Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon,
Nabua, Camarines Sur; Barangay Baras, Sitio Puga, Nabua,
Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua,
Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my wife Alicia R.
Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente
and Beverly F. Llorente, in equal shares, my real properties
located in Quezon City Philippines, and covered by Transfer
Certificate of Title No. 188652; and my lands in Antipolo, Rizal,
Philippines, covered by Transfer Certificate of Title Nos. 124196
and 165188, both of the Registry of Deeds of the province of
Rizal, Philippines;
"(4) That their respective shares in the above-mentioned
properties, whether real or personal properties, shall not be
disposed of, ceded, sold and conveyed to any other persons, but
could only be sold, ceded, conveyed and disposed of by and
among themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the sole
executor of this my Last Will and Testament, and in her default or
incapacity of the latter to act, any of my children in the order of
age, if of age;
"(6) I hereby direct that the executor named herein or her lawful
substitute should served (sic) without bond;
"(7) I hereby revoke any and all my other wills, codicils, or
testamentary dispositions heretofore executed, signed, or
published, by me;
"(8) It is my final wish and desire that if I die, no relatives of mine
in any degree in the Llorente’s Side should ever bother and
disturb in any manner whatsoever my wife Alicia R. Fortunato
and my children with respect to any real or personal properties I
gave and bequeathed respectively to each one of them by virtue
of this Last Will and Testament."17
On December 14, 1983, Lorenzo filed with the Regional Trial
Court, Iriga, Camarines Sur, a petition for the probate and
allowance of his last will and testament wherein Lorenzo moved
that Alicia be appointed Special Administratrix of his estate.18
On January 18, 1984, the trial court denied the motion for the
reason that the testator Lorenzo was still alive.19
On January 24, 1984, finding that the will was duly executed, the
trial court admitted the will to probate.20
On June 11, 1985, before the proceedings could be terminated,
Lorenzo died.21
On September 4, 1985, Paula filed with the same court a
petition22 for letters of administration over Lorenzo’s estate in
her favor. Paula contended (1) that she was Lorenzo’s surviving
spouse, (2) that the various property were acquired during their
marriage, (3) that Lorenzo’s will disposed of all his property in
favor of Alicia and her children, encroaching on her legitime and
1/2 share in the conjugal property.23
On December 13, 1985, Alicia filed in the testate proceeding (Sp.
Proc. No. IR-755), a petition for the issuance of letters
testamentary.24
On October 14, 1985, without terminating the testate
proceedings, the trial court gave due course to Paula’s petition in
Sp. Proc. No. IR-888.25
On November 6, 13 and 20, 1985, the order was published in the
newspaper "Bicol Star".26
On May 18, 1987, the Regional Trial Court issued a joint decision,
thus:
"Wherefore, considering that this court has so found that the
divorce decree granted to the late Lorenzo Llorente is void and
inapplicable in the Philippines, therefore the marriage he
contracted with Alicia Fortunato on January 16, 1958 at Manila is
likewise void. This being so the petition of Alicia F. Llorente for
the issuance of letters testamentary is denied. Likewise, she is not
entitled to receive any share from the estate even if the will
especially said so her relationship with Lorenzo having gained the
status of paramour which is under Art. 739 (1).
"On the other hand, the court finds the petition of Paula Titular
Llorente, meritorious, and so declares the intrinsic disposition of
the will of Lorenzo Llorente dated March 13, 1981 as void and
declares her entitled as conjugal partner and entitled to one-half
of their conjugal properties, and as primary compulsory heir,
Paula T. Llorente is also entitled to one-third of the estate and
then one-third should go to the illegitimate children, Raul, Luz
and Beverly, all surname (sic) Llorente, for them to partition in
equal shares and also entitled to the remaining free portion in
equal shares.
"Petitioner, Paula Llorente is appointed legal administrator of the
estate of the deceased, Lorenzo Llorente. As such let the
corresponding letters of administration issue in her favor upon
her filing a bond in the amount (sic) of P100,000.00 conditioned
for her to make a return to the court within three (3) months a
true and complete inventory of all goods, chattels, rights, and
credits, and estate which shall at any time come to her possession
or to the possession of any other person for her, and from the
proceeds to pay and discharge all debts, legacies and charges on
the same, or such dividends thereon as shall be decreed or
required by this court; to render a true and just account of her
administration to the court within one (1) year, and at any other
time when required by the court and to perform all orders of this
court by her to be performed.
"On the other matters prayed for in respective petitions for want
of evidence could not be granted.
"SO ORDERED."27
In time, Alicia filed with the trial court a motion for
reconsideration of the aforequoted decision.28
On September 14, 1987, the trial court denied Alicia’s motion for
reconsideration but modified its earlier decision, stating that Raul
and Luz Llorente are not children "legitimate or otherwise" of
Lorenzo since they were not legally adopted by him.29 Amending
its decision of May 18, 1987, the trial court declared Beverly
Llorente as the only illegitimate child of Lorenzo, entitling her to
one-third (1/3) of the estate and one-third (1/3) of the free
portion of the estate.30
On September 28, 1987, respondent appealed to the Court of
Appeals.31
On July 31, 1995, the Court of Appeals promulgated its decision,
affirming with modification the decision of the trial court in this
wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED
with the MODIFICATION that Alicia is declared as co-owner of
whatever properties she and the deceased may have acquired
during the twenty-five (25) years of cohabitation.
"SO ORDERED."32
On August 25, 1995, petitioner filed with the Court of Appeals a
motion for reconsideration of the decision.33
On March 21, 1996, the Court of Appeals,34 denied the motion for
lack of merit.
Hence, this petition.35
The Issue
Stripping the petition of its legalese and sorting through the
various arguments raised,36 the issue is simple. Who are entitled
to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We
remand the case to the trial court for ruling on the intrinsic
validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American
citizen long before and at the time of: (1) his divorce from Paula;
(2) marriage to Alicia; (3) execution of his will; and (4) death, is
duly established, admitted and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily
governed by foreign law.
The Civil Code clearly provides:
"Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
"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 ours)
True, foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to take judicial notice of them. Like
any other fact, they must be alleged and proved.37
While the substance of the foreign law was pleaded, the Court of
Appeals did not admit the foreign law. The Court of Appeals and
the trial court called to the fore the renvoi doctrine, where the
case was "referred back" to the law of the decedent’s domicile, in
this case, Philippine law.
We note that while the trial court stated that the law of New York
was not sufficiently proven, in the same breath it made the
categorical, albeit equally unproven statement that "American
law follows the ‘domiciliary theory’ hence, Philippine law applies
when determining the validity of Lorenzo’s will.38
First, there is no such thing as one American law.1ªwph!1 The
"national law" indicated in Article 16 of the Civil Code cannot
possibly apply to general American law. There is no such law
governing the validity of testamentary provisions in the United
States. Each State of the union has its own law applicable to its
citizens and in force only within the State. It can therefore refer
to no other than the law of the State of which the decedent was a
resident.39 Second, there is no showing that the application of
the renvoi doctrine is called for or required by New York State
law.
The trial court held that the will was intrinsically invalid since it
contained dispositions in favor of Alice, who in the trial court’s
opinion was a mere paramour. The trial court threw the will out,
leaving Alice, and her two children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice
entitled to one half (1/2) of whatever property she and Lorenzo
acquired during their cohabitation, applying Article 144 of the
Civil Code of the Philippines.
The hasty application of Philippine law and the complete
disregard of the will, already probated as duly executed in
accordance with the formalities of Philippine law, is
fatal, especially in light of the factual and legal circumstances
here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr.40 we held 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. In the same case, the Court ruled that aliens may
obtain divorces abroad, provided they are valid according to their
national law.
Citing this landmark case, the Court held in Quita v. Court of
Appeals,41 that once proven that respondent was no longer a
Filipino citizen when he obtained the divorce from petitioner, the
ruling in Van Dorn would become applicable and petitioner could
"very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera,42 we recognized the divorce obtained by
the respondent in his country, the Federal Republic of Germany.
There, we stated that divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned
in view of the nationality principle in our civil law on the status of
persons.
For failing to apply these doctrines, the decision of the Court of
Appeals must be reversed.43 We hold that the divorce obtained
by Lorenzo H. Llorente from his first wife Paula was valid and
recognized in this jurisdiction as a matter of comity. Now, the
effects of this divorce (as to the succession to the estate of the
decedent) are matters best left to the determination of the trial
court.
Validity of the Will
The Civil Code provides:
"Art. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country
in which they are executed.
"When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution." (underscoring ours)
The clear intent of Lorenzo to bequeath his property to his
second wife and children by her is glaringly shown in the will he
executed. We do not wish to frustrate his wishes, since he was a
foreigner, not covered by our laws on "family rights and duties,
status, condition and legal capacity."44
Whether the will is intrinsically valid and who shall inherit from
Lorenzo are issues best proved by foreign law which must be
pleaded and proved. Whether the will was executed in
accordance with the formalities required is answered by referring
to Philippine law. In fact, the will was duly probated.
As a guide however, the trial court should note that whatever
public policy or good customs may be involved in our system of
legitimes, Congress did not intend to extend the same to the
succession of foreign nationals. Congress specifically left the
amount of successional rights to the decedent's national law.45
Having thus ruled, we find it unnecessary to pass upon the other
issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court
of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995
is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional
Trial Court and RECOGNIZES as VALID the decree of divorce
granted in favor of the deceased Lorenzo N. Llorente by the
Superior Court of the State of California in and for the County of
San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for
determination of the intrinsic validity of Lorenzo N. Llorente’s will
and determination of the parties’ successional rights allowing
proof of foreign law with instructions that the trial court shall
proceed with all deliberate dispatch to settle the estate of the
deceased within the framework of the Rules of Court.
No costs.
SO ORDERED.
GR. No. L-48928 February 25, 1982
MITA PARDO DE TAVERA, plaintiff-appellant,
vs.
PHILIPPINE TUBERCULOSIS SOCIETY, INC., FRANCISCO ORTIGAS,
JR., MIGUEL CAÑIZARES, BERNARDO P. PARDO, RALPH NUBLA,
MIDPANTAO ADIL, ENRIQUE GARCIA, ALBERTO G. ROMULO and
THE PRESENT BOARD OF DIRECTORS, PHILIPPINE TUBERCULOSIS
SOCIETY, INC., defendants- appellees.
GUERRERO, J.:
On March 23, 1976, plaintiff-appellant Mita Pardo de Tavera filed
with the Court of First Instance of Rizal a complaint against the
Philippine Tuberculosis Society, Inc. (hereinafter referred to as
the Society), Miguel Canizares, Ralph Nubla, Bernardo Pardo,
Enrique Garcia, Midpantao Adil, Alberto Romulo, and the present
Board of Directors of the Philippine Tuberculosis Society, Inc.
On April 12, 1976, plaintiff-appellant filed an amended complaint
impleading Francisco Ortigas, Jr. as party defendant.
In substance, the complaint alleged that plaintiff is a doctor of
Medicine by profession and a recognized specialist in the
treatment of tuberculosis, having been in the continuous practice
of her profession since 1945; that she is a member of the Board
of Directors of the defendant Society, in representation of the
Philippine Charity Sweepstakes Office; that she was duly
appointed on April 27, 1973 as Executive Secretary of the Society;
that on May 29, 1974, the past Board of Directors removed her
summarily from her position, the lawful cause of which she was
not informed, through the simple expedient of declaring her
position vacant; that immediately thereafter, defendant Alberto
Romulo was appointed to the position by an affirmative vote of
seven directors, with two abstentions and one objection; and that
defendants Pardo, Nubla, Garcia and Adil, not being members of
defendant Society when they were elevated to the position of
members of the Board of Directors, are not qualified to be
elected as such and hence, all their acts in said meeting of May
29, 1974 are null and void.
The defendants filed their answer on May 12, 1976, specifically
denying that plaintiff was illegally removed from her position as
Executive Secretary and averring that under the Code of By-Laws
of the Society, said position is held at the pleasure of the Board of
Directors and when the pleasure is exercised, it only means that
the incumbent has to vacate the same because her term has
expired; that defendants Pardo, Nubla, Adil and Garcia were, at
the time of their election, members of the defendant Society and
qualified to be elected as members of the Board, that assuming
that said defendants were not members of defendant Society at
the time of their election, the question of qualification of the
members of the Board of Directors should have been raised at
the time of their election: that assuming that the qualification of
members of the Board of Directors can be questioned after their
assumption of their offices as directors, such contest cannot be
done in a collateral action; that an action to question the
qualifications of the Directors must be brought within one year
from their election; and that a Director elected without necessary
qualification becomes at least a de facto director, whose acts are
as valid and binding as a de juredirector. Further, defendant
disputed the timeliness of the filing of the action stating that an
action to question one's ouster from a corporate office must be
filed within one year from said ouster.
On the same date, defendant Adil filed a Motion to Dismiss on
the ground that the complaint states no cause of action, or if it
does, the same has prescribed. Inasmuch as plaintiff seeks
reinstatement, he argued that the complaint is an action for quo
warranto and hence, the same should be commenced within one
year from May 29, 1974 when the plaintiff was ousted from her
position.
Plaintiff filed an Opposition to Motion to Dismiss on May 28,
1976, stating that the complaint is a suit for damages filed under
the authority of Section 6, Article 11 of the present Constitution
in relation to Articles 12 and 32(6) of the New Civil Code, and her
constitutional right to equal protection of the law, as guaranteed
by Section 1, Article IV of the present Constitution.
On June 2, 1976, defendant Adil filed a Reply to Plaintiff's
Opposition to Motion to Dismiss arguing that since there is an
averment of plaintiff's right to office, and that defendant Romulo
is unlawfully in possession thereof, their it is indeed, a case
for quo warranto; and that assuming that it is merely a suit for
damages, then, the same is premature, pursuant to Section 16,
Rule 66 of the Rules of Court.
On September 3, 1976, the coturt a quo rendered a decision
holding that the present suit being one for quo warranto it
should be filed within one year from plaintiff's outer from office;
that nevertheless, plaintiff was not illegally rendered or used
from her position as Executive Secretary in The Society since
plaintiff as holding an appointment all the pleasure of the
appointing power and hence her appointment in essence was
temporary in nature, terminable at a moment's notice without
need to show that the termination was for cause; and Chat
plaintiff's ouster from office may not be challenged on the ground
that the acts of defendants Pardo, Adil, Nubla and Garcia are null
and void, they being not qualified to be elected members of the
Board of Directors because the qualifications of the members of
the Board of Directors which removed plaintiff from office may
not be the subject of a collateral attack in the present suit for quo
warranto affecting title to the office of Executive Secretary.
On October 13, 1976, plaintiff filed a Motion for Reconsideration
to which defendants filed an Opposition. On November 25, 1976,
the court a quo denied the motion for Reconsideration.
Dissatisfied with the decision and the order denying the motion
for reconsideration. plaintiff filed a Notice of Appeal and an
Urgent Motion for Extension of Time to File Record on Appeal,
which was granted in an order dated December 15, 1976.
However, on December 20, 1976, the court a quo issued an
amended order where it qualified the action as principally one
for quo warranto and hence, dispensed with the filing of a record
on appeal as the original records of the case are required to be
elevated to the Court of Appeals.
On August 8, 1978, the Court of Appeals issued a resolution
certifying this case to this Court considering that the appeal raises
no factual issues and involves only issues of law, as may be
gleaned from the following assignments of errors:
I. The lower court erred in holding that the present case is one for
quo warranto and not an action for damages.
II. In deciding the case, the lower court erred in not upholding the
Society's By-Laws, the applicable laws, and the pertinent
provisions of the Constitution.
III. The lower court erred in holding that the plaintiff-appellant is
not in the civil service, and therefore, not entitled to the guaranty
against removal from office except for cause and after due
process of law.
The nature of an action filed in court is determined by the facts
alleged in the complaint as constituting the cause of action, and
not those averred as a defense in the defendant's answer. The
theory adopted by the plaintiff in his complaint is one thing; that
by the defendant in his answer another. The purpose of an action
or suit and the law to govern it, including the period of
prescription, is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the
complaint itself, its allegations and prayer for relief. Rone et al.
vs. Claro, et al., L-4472, May 8, 1952, 91 Phil. 250). In Baguioro vs.
Barrios, et al., 77 Phil. 120, the Supreme Court held that if the
relief demanded is not the proper one which may be granted
under the law, it does not characterize or determine the nature of
plaintiff's action, and the relief to which plaintiff is entitled based
on the facts alleged by him in his complaint, although it is not the
relief demanded, is what determines the nature of the action.
While it is true that the complaint questions petitioner's removal
from the position of Executive Secretary and seeks her
reinstatement thereto, the nature of the suit is not necessarily
one of quo warranto. The nature of the instant suit is one
involving a violation of the rights of the plaintiff under the By-
Laws of the Society, the Civil Code and the Constitution, which
allegedly renders the individuals responsible therefore,
accountable for damages, as may be gleaned from the following
allegations in the complaint as constituting the plaintiff's causes
of action, to wit:
20. That, as a consequence of the unfair and malicious removal of
plaintiff from her office, which the plaintiff maintains to be
contrary to morals, good customs, public policy, the pertinent
provisions of said By-Laws of the Society, the laws, and the
guarranties of the Constitution, by defendants Canizares, Ortigas
Jr., Pardo, Adil, Nubla and Garcia, the plaintiff suffered not only
material damages, but serious damage to her priceless
properties, consisting of her honor and reputation, which were
maliciously and unlawfully besmirched, thereby entitling her to
compensation for material and moral damages, from said
defendants, jointly and severally, under Article 21, in relation to
Article 32(6) of the New Civil Code;
xxx xxx xxx
24. That as a consequence of the inordinate use and abuse of
power by defendants, Caares Ortigas Jr., Pardo, Adil, Nubla and
Garcia, in arbitrarily, illegally, and unjustly removing the plaintiff
from office, without due process of law, and in denying to her the
enjoyment of the guaranty of the Constitution to equal protection
of the law, the plaintiff suffered material and moral damages as a
result of the debasement of her dignity, both as an individual and
as a professional (physician) of good standing, therefore,
defendant Caares Ortigas Jr., Pardo, Adil, Nubla and Garcia should
be ordered to pay her moral damages, jointly and severally;
xxx xxx xxx
26. That the acts of the defendants Canizares, Ortigas Jr., Pardo,
Adil, Nubla and Garcia, in illegally removing the plaintiff from her
position as Executive Secretary of defendant Society, which
plaintiff was then holding under a valid appointment and
thereafter, immediately appointing defendant Alberto Romulo to
the position, is most unfair, unjust and malicious, because it is
contrary to good morals, good customs, public policy, the
pertinent provisions of the Code of By-Laws of the defendant
Society, the laws and the aforementioned guarranties of the
Constitution; that the plaintiff complaint that the said defendants
are legally obligated to compensate her, in concept of exemplary
damages, in order to restrain persons in authority from
committing similar file I and un constitutional acts which debase
human dignity and inflict injuries to their fellowmen;
xxx xxx xxx
31. That, as a consequence of the said unjustified refusal of the
defendant, present Board of Directors of the defendant Society,
to resolve the complaint of the plaintiff and extend to her the
reliefs to which she is entitled under the law and the Constitution,
it is respectfully submitted that said defendant Board is under
legal obligation to correct the illegal and unconstitutional act of
defendants Caares Ortigas Jr., Pardo, Nubla, Adil and Garcia, by
restoring the plaintiff to her position as Executive Secretary of the
defendant Society, payment of salaries and other benefits,
corresponding to the period of her illegal and unconstitutional
removal from office.
Further, it must be noted that the action is not only against
Alberto Romulo, the person appointed in her stead, but also
against the Society and the past and present members of the
Board. In fact, Romulo is sued as present occupant of the office
and not to hold him accountable for damages because he did not
participate in the alleged illegal and unconstitutional removal of
plaintiff- appellant. The action is primarily against the Society and
the past members of the Board who are responsible for her
removal. The present Board of Directors has been implead as
party defendant for the purpose merely of enabling it to act, "to
reinstate the plaintiff to her position as Executive Secretary of the
defendant Society" being one of the reliefs prayed for in the
prayer of the complaint.
Hence, We hold that where the respondents, except for one,
namely, Alberto Romulo, are not actually holding the office in
question, the suit could not be one for quo warranto.
Corollarily, the one-year period fixed in Section 16, Rule 66 of the
Revised Rules of Court within which a petition for quo
warranto should be filed, counted from the date of ouster, does
not apply to the case at bar. The action must be brought within
four (4) years, in accordance with Valencia vs. Cebu Portland
Cement Co., et al., L-13715, December 23, 1959, 106 Phil. 732,
case involving a plaintiff separated from his employment for
alleged unjustifiable causes, where this Court held that the action
n is one for "injury to the rights of the plaintiff, and must be
brought within 4 years murder Article 1146 of the New Civil Code
. The Executive secretary, the Auditor and all other office ers and
Nonetheless, although the action is not barred by the statute of
limitations, We rule that it will not prosper. Contrary to her claim,
petitioner was not illegally removed or from her position as
Executive Secretary in violation of Code of By-laws of the Society.
the New Civil Code and the pertinent provisions of the
Constitution.
Petitioner claims and the respondents do not dispute that the
Executive Secretary is an officer of the Society pursuant to
provision in the Code of By-laws Laws:
Section 7.01. Officers of the Society. — The executed officers f
the Society shag be the President a Vice-President, a Treasurer
who shall be elected by the Board of Directors, Executive
Secretary, and an Auditor, who shall be appointed by the Board of
Directors, all of whom shall exercise the functions. powers and
prerogatives generally vested upon skich officers, the functions
hereinafter set out for their respective offices and such other
duties is from time to time, may be prescribed by the Board of
Directors. On e person may hold more than one office except
when the functions thereof are incompatible with each other.
It is petitioner's contention that she is subject, to removal
pursuant to Section 7.04 of the Code of By-laws which
respondents correctly dispute citing Section 7.02 of the same
Cede. The aforementioned provisions state as follows:
Section 7.02. Tenure of Office. — All executive officers of the
Society except the Executive Secretary and the Auditor shall be
elected the Board of Directors, for a term of one rear ind shall
hold office until their successors are elected and have qualified.
employees of the Society shall hold office at the pleasure of the
Board of Directors, unless their term of employment shall have
been fixed in their contract of employment.
xxx xxx xxx
Section 7.04. Removal of Officers and Employees. — All officers
and employees shall be subject to suspension or removal for a
sufficient cause at any time by affirmative vote of a majority of an
the members of the Board of Directors, except that employees
appointed by the President alone or by the other officers alone at
the pleasure of the officer appointing him.
It appears from the records, specifically the minutes of the special
meeting of the Society on August 3, 1972, that petitioner was
designated as Acting Executive Secretary with an honorarium of
P200.00 monthly in view of the application of Dr. Jose Y. Buktaw
for leave effective September 1, 1972 for 300 working days. This
designation was formalized in Special Order No. 110, s. 1972
wherein it was indicated that: "This designation shall take effect
on September 1, 1972 and shall remain until further advice."
In the organizational meeting of the Society on April 25, 1973, the
minutes of the meeting reveal that the Chairman mentioned the
need of appointing a permanent Executive Secretary and stated
that the former Executive Secretary, Dr. Jose Y. Buktaw, tendered
his application for optional retirement, and while on terminal
leave, Dr. Mita Pardo de Tavera was appointed Acting Executive
Secretary. In view thereof, Don Francisco Ortigas, Jr. moved, duly
seconded, that Dr. Mita Pardo de Tavera be appointed Executive
Secretary of the Philippine Tuberculosis Society, Inc. The motion
was unanimously approved.
On April 27, 1973, petitioner was informed in writing of the said
appointment, to wit:
Dr. Mita Pardo de Tavera
Philippine Tuberculosis Society, Inc.
Manila
Madam:
I am pleased to inform you that at the meeting of the Board of
Directors held on April 25, 1973, you were appointed Executive
Secretary, Philippine Tuberculosis Society, Inc. with such
compensation ,petition and allowances as are provided for in the
Budget of the Society, effective immediately, vice Dr. Jose Y.
Buktaw, retired.
Congratulations.
Very truly yours,
For the Board of Directors:
(Sgd) Miguel Canizares,
M.D. MIGUEL CARIZARES, M.D.
President
Although the minutes of the organizational meeting show that
the Chairman mentioned the need of appointing a "permanent"
Executive Secretary, such statement alone cannot characterize
the appointment of petitioner without a contract of employment
definitely fixing her term because of the specific provision of
Section 7.02 of the Code of By-Laws that: "The Executive
Secretary, the Auditor, and all other officers and employees of
the Society shall hold office at the pleasure of the Board of
Directors, unless their term of employment shall have been fixed
in their contract of employment." Besides the word permanent"
could have been used to distinguish the appointment from acting
capacity".
The absence of a fixed term in the letter addressed to petitioner
informing her of her appointment as Executive Secretary is very
significant. This could have no other implication than that
petitioner held an appointment at the pleasure of the appointing
power.
An appointment held at the pleasure of the appointing power is
in essence temporary in nature. It is co-extensive with the desire
of the Board of Directors. Hence, when the Board opts to replace
the incumbent, technically there is no removal but only an
expiration of term and in an expiration of term, there is no need
of prior notice, due hearing or sufficient grounds before the
incumbent can be separated from office. The protection afforded
by Section 7.04 of the Code of By-Laws on Removal of Officers
and Employees, therefore, cannot be claimed by petitioner.
Thus, in the case of Moji vs. Mariño 13 SCRA 293, where the
appointment contains the following proviso: that it may be
terminated at anytime without any proceedings, at the pleasure
of the President of the Philippines, this Court held: "It may,
therefore, be said that, though not technically a temporary
appointment, as this term is used in Section 24(b) of the Civil
Service Act of 1959, petitioner's appointment in essence is
temporary because of its character that it is terminable at the
pleasure of the appointing power. Being temporary in nature, the
appointment can be terminated at a moment's notice without
need to show cause as required in appointments that belong to
the classified service."
In Paragas vs. Bernal 17 SCRA 150, this Court distinguished
between removal and expiration of term .
In the case at bar there has been, however, no removal from
office. Pursuant to the charter of Dagupan City, the Chief of Police
thereof holds office at the pleasure of the President.
Consequently, the term of office of the Chief of Police expires at
any time that the President may so declare. This is not removal,
inasmuch as the latter entails the ouster of an incumbent before
the expiration of his term. In the present case, petitioner's term
merely expired upon receipt by him of the communication of
respondent Assistant Executive Secretary of the President, dated
September 14, 1962.
Petitioner cannot likewise seek relief from the general provisions
of the New Civil Code on Human Relations nor from the
fundamental principles of the New Constitution on preservation
of human dignity. While these provisions present some basic
principles that are to be observed for the rightful relationship
between human beings and the stability of social order, these are
merely guides for human conduct in the absence of specific legal
provisions and definite contractual stipulations. In the case at bar,
the Code of By-Laws of the Society contains a specific provision
governing the term of office of petitioner. The same necessarily
limits her rights under the New Civil Code and the New
Constitution upon acceptance of the appointment.
Moreover, the act of the Board in declaring her position as vacant
is not only in accordance with the Code of By-Laws of the Society
but also meets the exacting standards of honesty and good faith.
The meeting of May 29, 1974, at which petitioner ,petitioner's
position was declared vacant, was caged specifically to take up
the unfinished business of the Reorganizational Meeting of the
Board of April 30, 1974. Hence, and act cannot be said to impart a
dishonest purpose or some moral obliquity and conscious doing
to wrong but rather emanates from the desire of the Board to
reorganize itself.
Finally, We find it unnecessary to resolve the third assignment of
error. The proscription against removal without just cause and
due process of law under the Civil Service Law does not have a
bearing on the case at bar for the reason, as We have explained,
that there was no removal in her case but merely an expiration of
term pursuant to Section 7.02 of the Code of By-Laws. Hence,
whether or not the petitioner falls within the protective mantle of
the Civil Service Law is immaterial and definitely unnecessary to
resolve this case.
WHEREFORE, premises considered, the decision of the lower
court holding that petitioner was not illegally removed or ousted
from her position as Executive Secretary of the Philippine
Tuberculosis Society, Inc., is hereby AFFIRMED.
SO ORDERED.
Liwayway Vinzons-Chato vs. Fortune Tobacco, Corp.
on 6:55 AM in Case Digests, Civil Law
0 who dismissed the case on the ground that under Article 32,
G.R. No. 141309, June 19, 2007
FACTS:
This is a case for damages under Article 32 of the Civil Code filed
by Fortune against Liwayway as CIR.
On June 10, 1993, the legislature enacted RA 7654, which o
provided that locally manufactured cigarettes which are currently
classified and taxed at 55% shall be charged an ad valorem tax of
“55% provided that the maximum tax shall not be less than Five o
Pesos per pack.” Prior to effectivity of RA 7654, Liwayway issued a
rule, reclassifying “Champion,” “Hope,” and “More” (all
manufactured by Fortune) as locally manufactured cigarettes
bearing foreign brand subject to the 55% ad valorem tax. Thus,
when RA 7654 was passed, these cigarette brands were already
covered.
In a case filed against Liwayway with the RTC, Fortune contended
that the issuance of the rule violated its constitutional right
against deprivation of property without due process of law and
the right to equal protection of the laws.
For her part, Liwayway contended in her motion to dismiss that
respondent has no cause of action against her because she issued
RMC 37-93 in the performance of her official function and within
the scope of her authority. She claimed that she acted merely as
an agent of the Republic and therefore the latter is the one
responsible for her acts. She also contended that the complaint
states no cause of action for lack of allegation of malice or bad
faith.
The order denying the motion to dismiss was elevated to the CA,
liability may arise even if the defendant did not act with malice or
bad faith.
Hence this appeal.
ISSUES:
Whether or not a public officer may be validly sued in his/her
private capacity for acts done in connection with the discharge
of the functions of his/her office
Whether or not Article 32, NCC, should be applied instead of
Sec. 38, Book I, Administrative Code
HELD:
On the first issue, the general rule is that a public officer is not
liable for damages which a person may suffer arising from the just
performance of his official duties and within the scope of his
assigned tasks. An officer who acts within his authority to
administer the affairs of the office which he/she heads is not
liable for damages that may have been caused to another, as it
would virtually be a charge against the Republic, which is not
amenable to judgment for monetary claims without its consent.
However, a public officer is by law not immune from damages in
his/her personal capacity for acts done in bad faith which, being
outside the scope of his authority, are no longer protected by the
mantle of immunity for official actions.
Specifically, under Sec. 38, Book I, Administrative Code, civil
liability may arise where there is bad faith, malice, or gross
negligence on the part of a superior public officer. And, under
Sec. 39 of the same Book, civil liability may arise where the
subordinate public officer’s act is characterized by willfulness or
negligence. In Cojuangco, Jr. V. CA, a public officer who directly or
indirectly violates the constitutional rights of another, may be
validly sued for damages under Article 32 of the Civil Code even if
his acts were not so tainted with malice or bad faith.
Thus, the rule in this jurisdiction is that a public officer may be
validly sued in his/her private capacity for acts done in the course
of the performance of the functions of the office, where said
public officer: (1) acted with malice, bad faith, or negligence; or
(2) where the public officer violated a constitutional right of the
plaintiff.
On the second issue, SC ruled that the decisive provision is Article
32, it being a special law, which prevails over a general law (the
Administrative Code).
Article 32 was patterned after the “tort” in American law. A tort is
a wrong, a tortious act which has been defined as the commission
or omission of an act by one, without right, whereby another
receives some injury, directly or indirectly, in person, property or
reputation. There are cases in which it has been stated that civil
liability in tort is determined by the conduct and not by the
mental state of the tortfeasor, and there are circumstances under
which the motive of the defendant has been rendered
immaterial. The reason sometimes given for the rule is that
otherwise, the mental attitude of the alleged wrongdoer, and not
the act itself, would determine whether the act was wrongful.
Presence of good motive, or rather, the absence of an evil motive,
does not render lawful an act which is otherwise an invasion of
another’s legal right; that is, liability in tort in not precluded by
the fact that defendant acted without evil intent.
[G.R. No. 122166. March 11, 1998
CRESENTE Y. LLORENTE, JR., Petitioner, v. SANDIGANBAYAN
and LETICIA G. FUERTES, Respondents.
DECISION
PANGANIBAN, J.:
In a prosecution for violation of Section 3[e] of the Anti-Graft
Law, that is, causing undue injury to any party, the government
prosecutors must prove actual injury to the offended party;
speculative or incidental injury is not sufficient.
The Case
Before us is a petition for review of the Decision promulgated on
June 23, 1995 and the Resolution promulgated on October 12,
1995 of the Sandiganbayan in Criminal Case No. 18343, finding
Cresente Y. Llorente, Jr. guilty as charged.
Llorente, then municipal mayor of Sindangan, Zamboanga del
Norte, was charged with violation of Sec. 3[e] of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, under an Information dated October 22, 1992, textually
reproduced as follows:[1]
That in or about and during the period of July, 1990 to
October, 1991, or for sometime subsequent thereto, in
the Municipality of Sindangan, Province of Zamboanga
del Norte, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused Cresente Y.
Llorente, Jr., a public officer, being then the Mayor of
Sindangan, Zamboanga del Norte, in the exercise of his
official and administrative functions, did then and there,
wilfully, unlawfully and criminally with evident bad faith
refuse to sign and approve the payrolls and vouchers
representing the payments of the salaries and other
emoluments of Leticia G. Fuertes, without just valid
cause and without due process of law, thereby causing
undue injury to the said Leticia G. Fuertes.
CONTRARY TO LAW.
Duly arraigned on March 29, 1993, Petitioner, with the assistance
of counsel, entered a plea of NOT GUILTY.[2] After trial in due
course, the Sandiganbayan[3] rendered the assailed Decision,
disposing as follows:[4]
WHEREFORE, judgment is hereby rendered finding
accused Mayor Cresente Y. Llorente, Jr. GUILTY beyond
reasonable doubt as principal of the crime of Violation of
Section 3(e) of Republic Act 3019, as amended, and he is
hereby sentenced to suffer imprisonment of SIX (6)
YEARS and ONE (1) MONTH, as minimum to SEVEN (7)
YEARS, as maximum; to further suffer perpetual
disqualification from public office; and to pay the costs.
Respondent Court denied the subsequent motion for
reconsideration in the assailed Resolution, thus:[5]
WHEREFORE, accuseds Motion for Reconsideration
and/or New Trial is hereby DENIED for lack of merit. His
Motion for Marking of Additional Exhibits Cum Offer of
Documentary Exhibits in Support of Motion for
Reconsideration and/or New Trial is now rendered moot
and academic.
Hence, this petition.[6]
The Facts
Version of the Prosecution
As found by Respondent Court, the prosecutions version of the
facts of this case is as follows:[7]
After appreciating all the evidence on both sides, the
following uncontroverted facts may be gleaned:
1. Accused Mayor Cresente Y. Llorente, Jr., at the time the alleged
act was committed, was the Municipal Mayor of Sindangan,
Zamboanga del Norte.
2. Private [C]omplainant, Leticia C. Fuertes, is the duly appointed
Assistant Municipal Treasurer in the same municipality since
October 18, 1985.
3. Starting 1986, private complainant was detailed to different
offices, as follows:
(a) Municipality of Katipunan, Zamboanga del Norte from April,
1986 to August, 1987 as OIC Municipal Treasurer.
(b) Municipality of Roxas, Zamboanga del Norte from September,
1987 to March, 1988 as OIC Municipal Treasurer.
(c) Office of the Provincial Treasurer of Zamboanga del Norte
from April, 1988 to May, 1988.
(d) Municipality of Pian, Zamboanga del Norte from June, 1988 to
June, 1990 as OIC Municipal Treasurer.
4. In July, 1990, she was returned to her post as Assistant
Municipal Treasurer in the town of Sindangan.
She was not provided with office table and chair nor
given any assignment; neither her daily time record and
application for leave acted upon by the municipal
treasurer per instruction of accused Mayor (Exh. G-2; G-
3).
5. On July 23, 1990, the Sangguniang Bayan of
Sindangan, Zamboanga del Norte, presided by accused
Mayor, passed Resolution No. SB 214 (Exh. 3),
vehemently objecting to the assignment of complainant
as Assistant Municipal Treasurer of Sindangan.
6. On March 12, 1991, accused Municipal Mayor
received a letter (SB Resolution No. 36) from the
Sangguniang Bayan of the Municipality of Pian,
demanding from the private complainant return of the
amount overpaid to her as salaries (par. 9, p. 2 of Exh. 4
counter-affidavit of accused Mayor).
7. On May 22, 1991, private complainant filed a Petition
for Mandamus with Damages (Exh. E) against the
accused Mayor and the Municipality of Sindangan before
Branch II, Regional Trial Court of Sindangan, Zamboanga
del Norte docketed as Special Proceedings No. 45, for
the alleged unjustified refusal of Mayor Llorente to sign
and/or approve her payrolls and/or vouchers
representing her salaries and other emoluments as
follows: (a) salary for the month of June, 1990 in the
amount of P5,452.00 under disbursement voucher dated
September 5, 1990 (Exh. H). Although complainant
rendered services at the municipality of Pian during this
period, she could not collect her salary there considering
that as of that month, Pian had already appointed an
Assistant Municipal Treasurer. When she referred the
matter to the Provincial Auditor, she was advised to
claim her salary for that month with her mother agency,
the Municipality of Sindangan, [(]p. 12, TSN of August 9,
1994; 10th paragraph of complainants Supplemental
Affidavit marked Exh. G); (b) salary differential for the
period from July 1, 1989 to April 30, 1990 in the total
amount of P19,480.00 under disbursement voucher
dated August, 1990 (Exh. I); (c) 13th month pay, cash gift
and clothing allowance under Supplemental Budget No.
5, CY 1990 in the total amount of P7,275 per
disbursement voucher dated December 4, 1990 (Exh. J);
(d) vacation leave commutation for the period from
October to December 31, 1990 in the total amount
of P16,356.00 per disbursement voucher dated
December 3, 1990 (Exh. K); (e) RATA for the months of
July, August and September, 1990, January and
February, 1991 in the total amount of P5,900.00 (par. 12
& 16 of Exh. E); and (f) salaries for January and February,
1991 in the total amount of P10,904.00 (par. 17 of Exh.
E).
 8. Accused Mayor did not file an answer; instead, he
negotiated for an amicable settlement of the case (p. 24,
TSN of August 10, 1994). Indeed, a Compromise
Agreement (Exh. A) dated August 27, 1991, between the
accused and private complainant was submitted to and
approved by the court, hereto quoted as follows:
COMPROMISE AGREEMENT
That the parties have agreed, as they hereby agree, to settle this
case amicably on the basis of the following terms and conditions,
to wit:
(a) That the respondent Mayor Cresente Y. Llorente, Jr. binds
himself to sign and/or approve all vouchers and/or payrolls for
unpaid salaries, RATA, Cash-gifts, 13th month pay, clothing
allowance, salary differentials and other emoluments which the
petitioner is entitled is Assistant Municipal Treasurer of
Sindangan, Zamboanga del Norte;
(b) That the parties herein hereby waive, renounce and relinquish
their other claims and counter-claims against each other;
(c) That the respondent Mayor Cresente Y. Llorente Jr. binds
himself to sign and/or approve all subsequent vouchers and
payrolls of the herein petitioner.
9. On August 27, 1991, a Decision (Exh. B) was rendered
by Judge Wilfredo Ochotorena on the basis of the
aforesaid compromise agreement.
10. For his failure to comply with the terms of the
compromise agreement, private complainant, thru
counsel, filed a Motion for Execution on September 12,
1991. A Writ of Execution (Exh. C) was issued by the
Court on September 17, 1991, and served [on] the
accused on September 23, 1991.
11. As shown in the Sheriffs Return dated November 19,
1991 (Exh. D), private complainant was paid her salaries
for the period from January, 1991 to August, 1991, while
the rest of her salaries including the RATA and other
emoluments were not paid considering the alleged need
of a supplemental budget to be enacted by the
Sangguniang Bayan of Sindangan per verbal allegation of
the municipal treasurer.
12. Complainant was not also paid her salaries from July
to December 1990; September and October, 1991; RATA
for the period from July 1990 to June 1994 (admission of
accused, pp. 8-9, TSN of June 27, 1994, a.m.; Exh. E; p.
17, TSN of June 27, 1994).
13. Sometime in 1993, accused municipal mayor
received from the Municipality of Pian, Bill No. 93-08
(Exh. 1), demanding from the Municipality of Sindangan
settlement of overpayment to complainant Fuertes in
the amount of P50,643.93 per SB Resolution No. 6 sent
on July 23, 1990. The bill was settled by the Municipality
of Sindangan in December, 1993 per Disbursement
Voucher No. 101-9312487 dated December 2, 1993 (Exh.
2).
14. Private complainant was able to receive complete
payment of her claims only on January 4, 1993 in the
form of checks all dated December 29, 1992 (as
appearing on Exhs. H, I, J, K of the prosecution, Exhs. 6,
7, 8, of the defense) except her RATA which was given to
her only on July 25, 1994, covering the period from July
1990 to December, 1993 amounting to P55,104.00, as
 evidenced by Disbursement Voucher dated July 25, 1994
(Exh. 5).
Version of the Defense
While admitting some delays in the payment of the complainants
claims, petitioner sought to prove the defense of good faith --
that the withholding of payment was due to her failure to submit
the required money and property clearance, and to the
Sangguniang Bayans delayed enactment of a supplemental
budget to cover the claims. He adds that such delays did not
result in undue injury to complainant. In his memorandum,
petitioner restates the facts as follows:[8]
1. Complainant xxx was appointed assistant municipal
treasurer of Sindangan, Zamboanga del Norte on
October 18, 1985. However, starting 1986 until July
1990, or for a period of about four (4) and one half (1/2)
years, she was detailed in other municipalities and in the
Office of the Provincial Treasurer of Zamboanga del
Norte. She returned as assistant treasurer of Sindangan
in July 1990. (Decision, pp. 5-6).
2. As complainant had been working in municipallities
and offices other than in Sindangan for more than four
(4) years, her name was removed from the regular
payroll of Sindangan, and payment of past salaries and
other emoluments had to be done by vouchers. When
complainant xxx presented her vouchers to petitioner,
the latter required her to submit clearances from the
different offices to which she was detailed, as well as a
certificate of last payment as required by COA
regulations (Tsn, p. 11, Aug. 10, 1994). Instead of
submitting the required documents, Mrs. Fuertes said
that what I did, I endorsed my voucher to the mayor
through the municipal treasurer (Tsn, p. 13, June 27,
1994). The municipal treasurer could not, however,
process the vouchers and certify as to the availability of
funds until after the Sangguniang Bayan had passed a
supplemental budget for the purpose (Exhs. D and 6-c
Motion), which came only in December 1992.
3. Petitioner, in the meanwhile, received on March 12,
1991 SB Resolution No. 36 from the Municipality of
Pinan, demanding from Mrs. xxx Fuertes the
reimbursement of P105,915.00, and because of this
demand, he needed time to verify the matter before
acting on Mrs. Fuertes claims (Exh. 4). Mrs. Fuertes
admitted that she had at the time problems of
accountability with the Municipality of Pinan. She
testified:
Q. Counsel now is asking you, when you went back to Sindangan
there was [sic] still problems of the claims either against you or
against the Municipality of Sindangan by the municipalities had,
[sic] in their minds, overpaid you?
A. Yes, your Honor, that was evidence[d] by the bill of the
Municipality of Pinan to the Municipality of Sindangan. (Tsn, p.
18, Aug. 3, 194).
4. Petitioner also stated that he could not act on
complainants claims because she had not submitted the
required money and property accountability clearance
from Pinan (Tsn, 11, Aug. 10, 1994) and that at the time
the Sangguniang Bayan had not appropriated funds for
the purpose. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994).
Nonetheless, petitioner included Mrs. Fuertes name in
the regular annual budget beginning 1991 (Exhs. 4-b, 4-
d, 4-f), as a result of which she had been since then
receiving her regular monthly salary.
5. On May 21, 1991, Mrs. Fuertes filed a complaint xxx.
Petitioner filed his answer to the complaint, alleging as a
defense, that plaintiff did not exhaust administrative
remedies. (Annex B, p. 3, Petition; Exh. 1-Motion). On
August 27, 1991, the parties entered into a compromise
agreement, which the trial court approved (Exh. B). x x x.
6. Upon motion of counsel for Mrs. Fuertes, the trial
court issued a writ of execution of the compromise
judgment. However, the writ of execution was addressed
only to petitioner; it was not served on the municipal
Sangguniang Bayan. x x x.
Thus, Mrs. Fuertes had been receiving her regular salary
from January, 1991 because petitioner had included her
name in the regular budget beginning 1991, which fact
complainant did not dispute. With respect to her other
claims for past services in other offices, Municipal
Treasurer, Mrs. Narcisa Caber, informed that a
supplemental budget for such purpose to be passed by
the Sangguniang Bayan was necessary before she could
be paid thereof. Being the municipal treasurer, Mrs.
Caber knew that without such supplemental budget,
payment of Mrs. Fuertes other claims could not be made
because the law requires that disbursements shall be
made in accordance with the ordinance authorizing the
annual or supplemental appropriations (Sec. 346, RA
7160) and that no money shall be disbursed unless xxx
the local treasurer certifies to the availability of funds for
the purpose. (Sec. 344, RA 7160).
7. Petitioner had instructed the municipal budget officer
to prepare the supplemental budget for payment of
complainants unpaid claims for submission to the
Sangguniang [Bayan] for enactment. (Tsn, pp. 32-33,
Aug. 10, 1994). The budget officer, Mr. Narciso Siasico
stated as follows:
1. I am the budget officer for the Municipality
of Sindangan, Zamboanga del Norte, a position I
have held since 1981.
xxx xxx xxx
3. Immediately after said mandamus case was
settled through a compromise agreement,
Mayor Llorente instructed me to prepare the
necessary budget proposals for the deliberation
and approval of the Sangguniang Bayan;
xxx xxx xxx.
8. Instead of waiting for the Sangguniang Bayan to enact
the budget or of securing an alias writ of execution to
compel the Sangguniang Bayan to pass the same, Mrs.
Fuertes filed a criminal complaint with the Office of the
Ombudsman under date of October 28, 1991, admitting
receipt of her salaries from January 1991 and saying she
had not been paid her other claims in violation of the
compromise judgment. (Exh. F). She had thus made the
Office of the Ombudsman a collecting agency to compel
payment of the judgment obligation.
9. While the budget proposal had been prepared and
submitted to the Sangguniang Bayan for action, it took
time for the Sangguniang Bayan to pass the
supplemental budget and for the Provincial Board to
approve the same. It was only on December 27, 1992
 that the municipal treasurer and the municipal
accountant issued a certification of availability of funds
for the purpose. Petitioner approved the vouchers
immediately, and in a period of one week, Mrs. Fuertes
was paid all claims, as evidenced by the prosecutions
Exhs. H, I, J and K, which were the four vouchers of Mrs.
Fuertes, xxxx.
xxx xxx xxx
11. Petitioner testified that he could not immediately
sign or approve the vouchers of Mrs. Fuertes for the
following reasons:
a) The Sangguniang Bayan had not appropriated
the amounts to pay Mrs. Fuertes. (Tsn, pp. 18,
30, 42-43, Aug. 10, 1994).
b) Municipal Treasurer Caber, to whom Mrs.
Fuertes endorsed her vouchers for processing,
and the Municipal Accountant issued the
certificate of availability of funds only on
December 27, 1992 (Tsn, p. 42, Aug. 10, 1994;
Exhs. H, I, J and K); and the delay in the issuance
of the certificate of availability of funds was due
to the delay by the Provincial Board to approve
the supplemental budget. (Tsn, p. 43, Aug. 10,
1994).
[c]) He received on March 12, 1991 a demand
from the Municipality of Pinan, Zamboanga del
Norte, where Mrs. Fuertes last worked, for the
reimbursement of P105,915.00, and the matter
had to be clarified first. (Exh. 4). Mrs. Fuertes
admitted that she had some problem of
accountability with the Municipality of Pinan.
(Tsn, p. 18, 1994). It took time before this
matter could be clarified by the Municipality of
Pinan reducing its claim to P50,647.093 and the
Municipality of Sindangan paying said claim.
(Exh. 2; Decision, p. 9).
[d]) Mrs. Fuertes had not submitted the
required clearance from the Municipality of
Pinan. (Tsn, p. 11, Aug. 10, 1994). He did not
insist on this requirement after the trial court
issued the writ of execution to implement the
compromise judgment. (Tsn, p. 23, Aug. 10,
1994). Nonetheless, in the post audit of Mrs.
Fuertes accountability, the Commission on
Audit issued a notice of suspension of the
amount of P5,452.00 from Mrs. Fuertes for her
failure to submit: 1. Clearance for money &
property accountability from former office. 2.
Certification as [sic] last day of service in former
office. 3. Certification of last salary received &
issued by the disbursing officer in former office,
certified by chief accountant and verified by
resident auditor. (Exh. 2-Motion).
12. The Information dated October 12, 1992 filed against
petitioner alleged that petitioner as mayor did not sign
and approve the vouchers of Mrs. Fuertes for payment
of her salaries and other emoluments from July 1, 1990
to October 1991, which caused her undue injury.
However, the prosecutions Exh. D, the sheriffs return
dated November 19, 1991, stated that Mrs. Fuertes had
received her salary from January 1, 1991 up to the
present, which meant that even before the information
was filed, she had been paid her regular salaries from
January 1, 1991 to October 1991. The supplemental
 budget to cover payment of her other claims for past
services was passed only in December 1992 and the
municipal treasurer and accountant issued the certificate
of availability of funds only on December 27, 1992, and
Mrs. Fuertes got paid of [sic] all her other claims,
including those not claimed in the Information, within
one week therefrom. (Exhs. H, I, J, and K).
xxx xxx xxx.
Ruling of the Sandiganbayan
Respondent Court held that the delay or withholding of
complainants salaries and emoluments was unreasonable and
caused complainant undue injury. Being then the sole
breadwinner in their family, the withholding of her salaries
caused her difficulties in meeting her familys financial obligations
like paying for the tuition fees of her four children. Petitioners
defense that complainant failed to attach the required money
and property clearance to her vouchers was held to be an
afterthought that was brought about, in the first place, by his
own failure to issue any memorandum requiring its submission.
That the voucher form listed the clearance as one of the
requirements for its approval had neither been brought to
complainants attention, nor raised by petitioner as defense in his
answer. In any event, the payment of complainants salary from
January to November 1991, confirmed by the sheriffs return,
showed that the clearance was not an indispensable
requirement, because petitioner could have acted upon or
approved the disbursement even without it. The alleged lack of a
supplemental budget was also rejected, because it was
petitioners duty as municipal mayor to prepare and submit the
executive and supplemental budgets under Sections 318, 320,
and 444 (3)(ii) of the Local Government Code,[9] and the
complainants claims as assistant municipal treasurer, a
permanent position included in the plantilla for calendar year
1990 and 1991, were classified as current operating expenditures
for the same calendar years, which were chargeable against the
general funds of the town of Sindangan. Except for the
representation and transportation allowance, Fuertes claims for
thirteenth month pay, cash gift and clothing allowance were
already covered by Supplemental Budget No. 5 for calendar year
1990. Petitioners contention that funds covering complainants
claims were made available only in December 1992 was
unbelievable, considering that an ordinance enacting a
supplemental budget takes effect upon its approval or on the
date fixed therein under Sec. 320 of the Local Government Code.
The Sandiganbayan also ruled that the petitioners evident bad
faith was the direct and proximate cause of Fuertes undue injury.
Complainants salaries and allowances were withheld for no valid
or justifiable reasons. Such delay was intended to harass
complainant, because petitioner wanted to replace her with his
political protege whom he eventually designated as municipal
treasurer, bypassing Fuertes who was next in seniority. Bad faith
was further evidenced by petitioners instructions to the outgoing
municipal treasurer not to give the complaining witness any work
assignment, not to provide her with office table and chair, not to
act on her daily time record and application for leave of absence,
instructions which were confirmed in the municipal treasurers
certification. (Exh. G-2).
The Issues
In his memorandum, petitioner submits the following issues:[10]
1. Could accused be held liable under Sec. 3(e) of R.A.
3019 in the discharge of his official administrative duties,
 a positive act, when what was imputed to him was failing The petition is meritorious. After careful review of the evidence
and refusing to sign and/or approve the vouchers of on record and thorough deliberation on the applicable provision
Mr[s]. Fuertes on time or by inaction on his obligation of the Anti-Graft Law, the Court agrees with the solicitor generals
under the compromise agreement (ibid., p. 19), a assessment that the prosecution failed to establish the elements
passive act? Did not the act come under Sec. 3(f) of R.A. of the crime charged.
3019, of [sic] which accused was not charged with?
First Issue: Undue Injury
2. Assuming, arguendo, that his failure and refusal to
immediately sign and approve the vouchers of Mrs.
Petitioner was charged with violation of Section 3[e] of R.A. 3019,
Fuertes comes [sic] under Sec. 3(e), the questions are:
which states:
(a) Did not the duty to sign and approve the same arise only after
SEC. 3. Corrupt practices of public officers.In addition to
the Sangguniang Bayan had passed an appropriations ordinance,
acts or omissions of public officers already penalized by
and not before? In other words, was the non-passage of the
existing law, the following shall constitute corrupt
appropriation ordinance a justifiable reason for not signing the
practices of any public officer and are hereby declared to
vouchers?
be unlawful:
(b) Did Mrs. Fuertes suffer undue injury, as the term is
xxx xxx xxx
understood in Sec. 3(e), she having been paid all her claims?
(e) Causing any undue injury to any party, including the
(c) Did petitioner not act in good faith in refusing to immediately
Government, or giving any private party any
sign the vouchers and implement the compromise agreement
unwarranted benefits, advantage or preference in the
until the Sangguniang Bayan had enacted the appropriation
discharge of his official, administrative or judicial
ordinance and until Mrs. Fuertes submitted the clearance from
functions through manifest partiality, evident bad faith
the Municipality of Pinan, Zamboanga del Norte?
or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or government
Restated, petitioner claims that the prosecution failed to
corporations charged with the grant of licenses or
establish the elements of undue injury and bad faith. Additionally,
permits or other concessions.
petitioner submits that a violation of Section 3[e] of RA 3019
cannot be committed through nonfeasance.
To hold a person liable under this section, the concurrence of the
The Courts Ruling following elements must be established beyond reasonable doubt
by the prosecution:
 (1) that the accused is a public officer or a private person Actual damage, in the context of these definitions, is akin to that
charged in conspiracy with the former; in civil law.[15]
(2) that said public officer commits the prohibited acts
In turn, actual or compensatory damages is defined by Article
during the performance of his or her official duties or in
2199 of the Civil Code as follows:
relation to his or her public positions;
(3) that he or she causes undue injury to any party, Art. 2199. Except as provided by law or by stipulation,
whether the government or a private party; and one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly
(4) that the public officer has acted with manifest
proved. Such compensation is referred to as actual or
partiality, evident bad faith or gross inexcusable
compensatory damages.
negligence.[11]
Fundamental in the law on damages is that one injured by a
The solicitor general, in his manifestation,[12] points out that
breach of a contract, or by a wrongful or negligent act or
undue injury requires proof of actual injury or damage, citing our
omission shall have a fair and just compensation commensurate
ruling in Alejandro vs. People[13] and Jacinto vs.
to the loss sustained as a consequence of the defendants act.
Sandiganbayan.[14] Inasmuch as complainant was actually paid
Actual pecuniary compensation is awarded as a general rule,
all her claims, there was thus no undue injury established.
except where the circumstances warrant the allowance of other
kinds of damages.[16] Actual damages are primarily intended to
This point is well-taken. Unlike in actions for torts, undue injury in
simply make good or replace the loss caused by the wrong.[17]
Sec. 3[e] cannot be presumed even after a wrong or a violation of
a right has been established. Its existence must be proven as one
Furthermore, damages must not only be capable of proof, but
of the elements of the crime. In fact, the causing of undue injury,
must be actually proven with a reasonable degree of certainty.
or the giving of any unwarranted benefits, advantage or
They cannot be based on flimsy and non-substantial evidence or
preference through manifest partiality, evident bad faith or gross
upon speculation, conjecture or guesswork.[18] They cannot
inexcusable negligence constitutes the very act punished under
include speculative damages which are too remote to be included
this section. Thus, it is required that the undue injury be
in an accurate estimate of the loss or injury.
specified, quantified and proven to the point of moral certainty.
In this case, the complainant testified that her salary and
In jurisprudence, undue injury is consistently interpreted as actual
allowance for the period beginning July 1990 were withheld, and
damage. Undue has been defined as more than necessary, not
that her family underwent financial difficulty which resulted from
proper, [or] illegal; and injury as any wrong or damage done to
the delay in the satisfaction of her claims.[19] As regards her
another, either in his person, rights, reputation or property[;]
money claim, payment of her salaries from January 1991 until
[that is, the] invasion of any legally protected interest of another.
November 19, 1991 was evidenced by the Sheriffs Return dated
November 19, 1991 (Exh. D). She also admitted having been
issued a check on January 4, 1994 to cover her salary from June 1
to June 30, 1990; her salary differential from July 1, 1989 to April
30, 1990; her thirteenth-month pay; her cash gift; and her
clothing allowances. Respondent Court found that all her
monetary claims were satisfied. After she fully received her
monetary claims, there is no longer any basis for compensatory
damages or undue injury, there being nothing more to
compensate.
Complainants testimony regarding her familys financial stress was
inadequate and largely speculative. Without giving specific
details, she made only vague references to the fact that her four
children were all going to school and that she was the
breadwinner in the family. She, however, did not say that she was
unable to pay their tuition fees and the specific damage brought
by such nonpayment. The fact that the injury to her family was
unspecified or unquantified does not satisfy the element of
undue injury, as akin to actual damages. As in civil cases, actual
damages, if not supported by evidence on record, cannot be
considered.[20]
Other than the amount of the withheld salaries and allowances
which were eventually received, the prosecution failed to specify
and to prove any other loss or damage sustained by the
complainant. Respondent Court insists that complainant suffered
by reason of the long period of time that her emoluments were
withheld.
This inconvenience, however, is not constitutive of undue injury.
In Jacinto, this Court held that the injury suffered by the
complaining witness, whose salary was eventually released and
whose position was restored in the plantilla, was negligible;
undue injury entails damages that are more than necessary or are
excessive, improper or illegal.[21]In Alejandro, the Court held
that the hospital employees were not caused undue injury, as
they were in fact paid their salaries.[22]
Second Issue: No Evident Bad Faith
In the challenged Decision, Respondent Court found evident bad
faith on the part of the petitioner, holding that, without any valid
or justifiable reason, accused withheld the payment of
complainants salaries and other benefits for almost two (2) years,
demonstrating a clear manifestation of bad faith.[23] It then
brushed aside the petitioners defenses that complainant failed to
submit money and property clearances for her vouchers, and that
an appropriation by the Sangguniang Bayan was required before
complainants vouchers could be approved. It said:[24]
Secondly, his reliance on the failure of complainant to
submit the clearances which were allegedly necessary
for the approval of vouchers is futile in the light of the
foregoing circumstances:
xxx xxx xxx
b. The evidence on record shows that complainants salaries for
the period from January to November 1991 (included as subject
matter in the mandamus case) were duly paid, as confirmed in
the Sheriffs Return dated November 19, 1991 (Exh. D). This
means that accused, even without the necessary clearance, could
have acted upon or approved complainants disbursement
vouchers if he wanted to.
c. It may be true that a clearance is an indispensable requirement
before complainant will be paid of her claims, but accused could
not just hide behind the cloak of the clearance requirement in
order to exculpate himself from liability. As the approving officer,
it was his duty to direct complainant to submit the same.
Moreover, accused could not just set aside the obligation he
voluntarily imposed upon himself when he entered into a
compromise agreement binding himself to sign complainants
vouchers without any qualification as to the clearance
requirement. Perforce, he could have seen to it that complainant
secured the same in order that he could comply with the said
obligation.
xxx xxx xxx
Fourthly, accuseds contention that the delay in the release of
complainants claim could not be attributed to him because the
vouchers were only submitted to him for his signature on
December 24-27, 1992; that the approval of the budget
appropriations/resolutions depends on the Sangguniang Bayan,
Budget Officer and the Sangguniang Panlalawigan, is unavailing.
As revealed in the alleged newly discovered evidence themselves,
particularly x x x SB Res. No. 202 and Appropriation Ordinance
No. 035, both dated May 21, 1990 (Exh. 5-a- Motion), the
Sangguniang Bayan appropriated a budget of P5M in the General
Fund for calendar year 1991 [the Budget Officer does not approve
the budget but assists the Municipal Mayor and the Sangguniang
Bayan in the preparation of the budget (Sec. 475, Local
Government Code of 1991)]. Complainants claims consisted of
her salaries and other benefits for 1990 and 1991 which were
classified as Current Operating Expenditures chargeable against
the General Fund. It is undisputed that she was holding her
position as Assistant Municipal Treasurer in a permanent capacity
(her position was also designated Assistant Department Head),
which was included in the plantilla for calender years 1990 and
1991 (Exhs. 4-a & '4-b', Motion). In Program Appropriation and
Obligation by Object (Exhs. 4-c & 4-c, Motion), appropriations
were made for current operating expenditures to which
complainants claims properly appertained. xxx. Verily,
complainants claims were covered by appropriations duly
approved by the officials concerned, signifying that adequate
funds were available for the purpose. In fact, even complainants
claims for her 13th month pay, cash gift and clothing allowance,
subject matter of Disbursement Voucher marked Exhibit J which
would need a supplemental budget was covered by Supplemental
Budget No. 5 for CY 1990 duly approved by the authorities
concerned as shown in the voucher itself. This means that the
said claim was already obligated (funds were already reserved for
it) as of calendar year 1990. xxxx. It is clear, then, that as regards
availability of funds, there was no obstacle for the release of all
the complainants claims.
The Court disagrees. Respondent Court cannot shift the blame on
the petitioner, when it was the complainant who failed to submit
the required clearance. This requirement, which the complainant
disregarded, was even printed at the back of the very vouchers
sought to be approved. As assistant municipal treasurer, she
ought to know that this is a condition for the payment of her
claims. This clearance is required by Article 443 of the
Implementing Rules and Regulations of the Local Government
Code of 1991:
Art. 443. Property Clearances When an employee
transfers to another government office, retires, resigns,
is dismissed, or is separated from the service, he shall be
required to secure supplies or property clearance from
the supply officer concerned, the provincial or city
general services officer concerned, the municipal mayor
and the municipal treasurer, or the punong barangay
and the barangay treasurer, as the case may be. The
 local chief executive shall prescribe the property
clearance form for this purpose.
For her own failure to submit the required clearance,
complainant is not entirely blameless for the delay in the
approval of her claims.
Also, given the lack of corresponding appropriation ordinance and
certification of availability of funds for such purpose, petitioner
had the duty not to sign the vouchers. As chief executive of the
municipality Llorente could not have approved the voucher for
the payment of complainants salaries under Sec. 344, Local
Government Code of 1991.[25] Also, Appropriation Ordinance
No. 020[26] adding a supplemental budget for calendar year
1990 was approved on April 10, 1989, or almost a year before
complainant was transferred back to Sindangan. Hence, she could
not have been included therein. SB Resolution No. 202 and
Appropriation Ordinance No. 035,[27] which fixed the municipal
budget for calendar year 1991, was passed only on May 21, 1990,
or almost another year after the transfer took effect. The
petitioners failure to approve the complainants vouchers was
therefore due to some legal obstacles,[28] and not entirely
without reason. Thus, evident bad faith cannot be completely
imputed to him.
Bad faith does not simply connote bad judgment or negligence; it
imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty through some
motive or intent or ill will; it partakes of the nature of fraud.
(Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It
contemplates a state of mind affirmatively operating with furtive
design or some motive of self interest or ill will for ulterior
purposes (Air France v. Carrascoso, 18 SCRA 155, 166-167).
Evident bad faith connotes a manifest deliberate intent on the
part of the accused to do wrong or cause damage. [29]
In Jacinto, evident bad faith was not appreciated because the
actions taken by the accused were not entirely without rhyme or
reason; he refused to release the complainants salary because
the latter failed to submit her daily time record; he refused to
approve her sick-leave application because he found out that she
did not suffer any illness; and he removed her name from the
plantilla because she was moonlighting during office hours. Such
actions were measures taken by a superior against an erring
employee who studiously ignored, if not defied, his authority.[30]
In Alejandro, evident bad faith was ruled out, because the
accused gave his approval to the questioned disbursement after
relying on the certification of the bookkeeper on the availability
of funds for such disbursement.[31]
Third Issue: Interpretation of Causing
The Court does not completely agree with petitioners assertion
that the imputed act does not fall under Sec. 3[e] which,
according to him, requires a positive act -- a malfeasance or
misfeasance. Causing means to be the cause or occasion of, to
effect as an agent, to bring into existence, to make or to induce,
to compel.[32] Causing is, therefore, not limited to positive acts
only. Even passive acts or inaction may cause undue injury. What
is essential is that undue injury, which is quantifiable and
demonstrable, results from the questioned official act or inaction.
In this case, the prosecution accused petitioner of failing or
refusing to pay complainants salaries on time, while Respondent
Court convicted him of unduly delaying the payment of
complainants claims. As already explained, both acts did not,
however, legally result in undue injury or in giving any in favor of an interested party, or discriminating against
unwarranted benefits, advantage or preference in the discharge another.[33]
of his official, [or] administrative x x x functions. Thus, these acts
are not punishable under Sec. 3[e]. However, petitioner is not charged with a violation of Sec. 3[f].
Hence, further disquisition is not proper. Neither may this Court
It would appear that petitioners failure or refusal to act on the convict petitioner under Sec. 3[f] without violating his
complainants vouchers, or the delay in his acting on them more constitutional right to due process.
properly falls under Sec. 3[f]:
WHEREFORE, the petition is hereby GRANTED. Petitioner is
(f) Neglecting or refusing, after due demand or request, ACQUITTED of violating Section 3[e] of R.A. 3019, as amended. No
without sufficient justification, to act within a reasonable costs.
time on any matter pending before him for the purpose
of obtaining, directly or indirectly, from any person SO ORDERED.
interested in the matter some pecuniary or material
benefit or advantage, or for purpose of favoring his own
interest or giving undue advantage in favor of or
discriminating against any other interested party.

Here, the neglect or refusal to act within a reasonable time is the

criminal act, not the causing of undue injury. Thus, its elements
are:

1) The offender is a public officer;

2) Said officer has neglected or has refused to act

without sufficient justification after due demand or
request has been made on him;
3) Reasonable time has elapsed from such demand or
request without the public officer having acted on the
matter pending before him; and
4) Such failure to so act is for the purpose of obtaining,
directly or indirectly, from any person interested in the
matter some pecuniary or material benefit or advantage
 11.
[G.R. No. L-20089. December 26, 1964.]

BEATRIZ P. WASSMER, Plaintiff-Appellee, v. FRANCISCO X. VELEZ, Defendant-Appellant.

Jalandoni & Jamir, for Defendant-Appellant.

Samson S. Alcantara for Plaintiff-Appellee.

SYLLABUS

1. DAMAGES; BREACH OF PROMISE TO MARRY; WHEN ACTIONABLE WRONG. — Ordinarily, a mere breach of promise to marry is not an actionable
wrong. But to formally set a wedding and go through all the necessary preparations and publicity, only to walk out of it when the matrimony is about
to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs, for which the erring promisor must be held
answerable in damages in accordance with Article 21 of the New Civil Code.

2. ID.; ID.; MORAL AND EXEMPLARY DAMAGES MAY BE AWARDED IN AN ACTIONABLE BREACH OF PROMISE SUIT. — When a breach of promise to
marry is actionable under Article 21 of the Civil Code, moral damages may be awarded under Article 2219 (10) of the said Code. Exemplary damages
may also be awarded under Article 2232 of said Code where it is proven that the defendant clearly acted in a wanton, reckless and oppressive
manner.

3. PLEADINGS AND PRACTICE; AFFIDAVIT OF MERITS IN PETITION FOR BELIEF MUST STATE FACTS CONSTITUTING DEFENSE. — An affidavit of merits
supporting a petition for relief from judgment must state facts constituting a valid defense. Where such an affidavit merely states conclusions or
opinions, it is not valid.

4. ID.; TRIAL BY COMMISSIONER; CLERK OF COURT MAY BE VALIDLY DESIGNATED. — The procedure of designating the clerk of court as commissioner
to receive evidence is sanctioned by Rule 34 (now Rule 33) of the Rules of Court.

5. ID.; ID.; ID.; DEFENDANT’S CONSENT TO DESIGNATION OF COMMISSIONER NOT NECESSARY WHERE HE IS IN DEFAULT. — The defendant’s consent
to the designation of the clerk of court as commissioner to receive evidence is not necessary where he was declared in default and thus had no
standing in court.

6. AFFIDAVITS OF MERIT; MUST CONTAIN FACTS AND NOT CONCLUSIONS OF FACT. — Affidavits of merit to be valid must contain facts and not mere
conclusions of facts.
7. ID.; ID.; WHEN CONCLUSION OF FACT, NOT A FACT, DEEMED CONTAINED IN AFFIDAVIT. — An affidavit of merit stating no facts, but merely an
inference that defendant’s failure was due to fortuitous events and/or circumstances beyond his control, is held to contain a conclusion of fact, not a
fact.

DECISION

BENGZON, J.P., J.:

The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated in
frustration and, what is worse, complete public humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day.
On September 2, 1954 Velez left this note for his bride-to-be:chanrob1es virtual 1aw library

Dear Bet —

"Will have to postpone wedding. My mother oppose it. Am leaving on the Convair today.

"Please do not ask too many people about the reason why — That would only create a scandal.

Paquing"

But the next day, September 3, he sent her the following telegram:jgc:chanrobles.com.ph

"NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE.

PAKING"

Thereafter Velez did not appear nor was he heard from again.

Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as commissioner,
and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.09 as moral and exemplary
damages; P2,500.00 as attorney’s fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration."
Plaintiff moved to strike it out. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955 "to
explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to appear "the
petition for relief and the opposition thereto will be deemed submitted for resolution."cralaw virtua1aw library

On August 23, 1955 defendant failed to appear before the court. Instead, on the following day his counsel filed a motion to defer for two weeks the
resolution on defendant’s petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City — the latter’s residence
— on the possibility of an amicable settlement. The court granted two weeks counted from August 25, 1955.

Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his counsel
had failed to appear.

Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on July 13,
1956. This time, however, defendant’s counsel informed the court that chances of settling the case amicably were nil.

On July 20, 1956 the court issued an order denying defendant’s aforesaid petition. Defendant has appealed to this Court.

In his petition of June 21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default.
Specifically, it was stated that defendant filed no answer in the belief that an amicable settlement was being negotiated.

A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of merit
stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant’s affidavit of merits attached to his petition of June 21, 1955
stated: "That he has a good and valid defense against plaintiff’s cause of action, his failure to marry the plaintiff as scheduled having been due to
fortuitous event and/or circumstances beyond his control." An affidavit of merits like this, stating mere conclusions or opinions instead of facts is not
valid. (Cortes v. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani v. P. Tarrachand Bros., L-15800, December 29, 1960.)

Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought to be
set aside was null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan v. Palisoc, L-16519,
October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is sanctioned by
Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant’s consent to said procedure, the same did not have to be obtained for he was
declared in default and thus had no standing in court (Velez v. Ramas, 40 Phil., 787; Alano v. Court of First Instance, L-14557, October 30, 1959).

In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that "there is
no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima v. Court of Appeals (L-14628,
Sept. 30, 1960) as reiterated in Estopa v. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not an actionable wrong.
We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would have it so.

It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for Article
21 of said Code provides that "Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage."cralaw virtua1aw library

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued. (Exhs.
A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances (Tsn., 5; Exh.
C). The bride-to- be’s trousseau, party dresses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the maid of
honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts received (Tsn., 6; Exh.
E). And then, with but two days before the wedding, defendant, who was then 28 years old, simply left a note for plaintiff stating: "Will have to
postpone wedding — My mother opposes it . . ." He enplaned to his home city in Mindanao, and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from again.

Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to formally
set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and unjustifiably contrary to good customs, for which defendant must be held answerable in damages
in accordance with Article 21 aforesaid.

Defendant urges in his aforestated petition that the damages awarded were excessive. No question is raised as to the award of actual damages.
What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00, should be totally
eliminated.

Per express provision of Article 2219(10) of the new Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said Code. As
to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the new Civil Code the
condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The argument is devoid of
merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton . . . reckless [and] oppressive manner." This
Court’s opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and exemplary damages is deemed to be
a reasonable award.

PREMISES CONSIDERED, with the above-indicated modification, the lower court’s judgment is hereby affirmed, with costs.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala, Makalintal and Zaldivar, JJ., concur.
12.

[G.R. No. 101749. July 10, 1992.]

CONRADO BUNAG, JR., Petitioner, v. HON. COURT OF APPEALS, First Division, and ZENAIDA B. CIRILO, Respondents.

Conrado G. Bunag for Petitioner.

 Ocampo, Dizon & Domingo Law Office for Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE COURT OF APPEALS ARE AS A RULE CONCLUSIVE UPON THIS COURT. — The issue raised
primarily and ineluctably involves questions of fact. We are, therefore, once again constrained to stress the well-entrenched statutory and
jurisprudential mandate that findings of fact of the Court of Appeals are, as a rule, conclusive upon this Court. Only questions of law, distinctly set
forth, may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court, subject to clearly settled exceptions in case law.

2. ID.; ID.; ID.; SUPREME COURT’S FUNCTION IS LIMITED TO REVIEWING ERRORS. — Our jurisdiction in cases brought to us from the Court of Appeals
is limited to reviewing and revising the errors of law imputed to the latter, its findings of fact being conclusive. This Court has emphatically declared
that it is not its function to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have
been committed by the lower court. Barring, therefore, a showing that the findings complained of are totally devoid of support in the record, or that
they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand, for this Court is not expected required to
examine or contrast the oral and documentary evidence submitted by the parties. 7 Neither does the instant case reveal any feature falling within
any of the exceptions which under our decisional rules may warrant a review of the factual findings of the Court of Appeals.

3. CIVIL LAW; DAMAGES; BREACH OF PROMISE TO MARRY; GENERALLY NOT ACTIONABLE; EXCEPTION. — It is true that in this jurisdiction, we adhere
to the time-honored rule that an action for breach of promise to marry has no standing in the civil law, apart from the right to recover money or
property advanced by the plaintiff upon the faith of such promise. Generally, therefore, a breach of promise to marry per se is not actionable, except
where the plaintiff has actually incurred expenses for the wedding and the necessary incidents thereof.

4. ID.; ID.; ID.; MORAL DAMAGES; RATIONALE. — However, the award of moral damages is allowed in cases specified in or analogous to those
provided in Article 2219 of the Civil Code. Correlatively, under Article 21 of said Code, in relation to paragraph 10 of said Article 2219, any person
who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for
moral damages. Article 21 was adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless even
though they have actually suffered material and moral injury, and is intended to vouchsafe adequate legal remedy for that untold number of moral
wrongs which is impossible for human foresight to specifically provide for in the statutes.

5. ID.; ID.; ID.; ID.; AWARDED WHERE PETITIONER FORCIBLY ABDUCTED RESPONDENT AND HAD CARNAL KNOWLEDGE WITH HER. — Under the
circumstances obtaining in the case at bar, the acts or petitioner in forcibly abducting private respondent and having carnal knowledge with her
against her will, and thereafter promising to marry her in order to escape criminal liability, only to thereafter renege on such promise after
cohabiting with her for twenty-one days, irremissibly constitutes acts contrary to morals and good customs. These are grossly insensate and
reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages, pursuant to Article 21,
in relation to paragraphs 3 and 10, Article 2219, and Articles 2229 and 2234 of the Civil Code.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; EXTINCTION OF PENAL ACTION DOES NOT CARRY WITH IT EXTINCTION OF CIVIL LIABILITY; EXCEPTION. —
Generally, the basis of civil liability from crime is the fundamental postulate of our law that every person criminally liable for a felony is also civilly
liable. In other words, criminal liability will give rise to civil liability ex delicto only if the same felonious act or omission results in damage or injury to
another and is the direct and proximate cause thereof. Hence, extinction of the penal action does not carry with it the extinction of civil liability
unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist.

7. ID.; ID.; ID.; CASE AT BAR. — In the instant case, the dismissal of the complaint for forcible abduction with rape was by mere resolution of the fiscal
at the preliminary investigation stage. There is no declaration in a final judgment that the fact from which the civil case might arise did not exist.
Consequently, the dismissal did not in any way affect the right of herein private respondent to institute a civil action arising from the offense because
such preliminary dismissal of the penal action did not carry with it the extinction of the civil action.

8. ID.; ID.; ID.; RATIONALE. — The reason most often given for this holding is that the two proceedings involved are not between the same parties.
Furthermore, it has long been emphasized, with continuing validity up to now, that there are different rules as to the competency of witnesses and
the quantum of evidence in criminal civil proceedings. In a criminal action, the State must prove its case by evidence which shows the guilt of the
accused beyond reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by preponderance of evidence only. Thus,
in Rillon, Et. Al. v. Rillon, we stressed that it is not now necessary that a criminal prosecution for rape be first instituted and prosecuted to final
judgment before a civil action based on said offense in favor of the offended woman can likewise be instituted and prosecuted to final judgment.

DECISION

REGALADO, J.:

Petitioner appeals for the reversal of the decision 1 of respondent Court of Appeals promulgated on May 17, 1991 in CA-G.R. CV No. 07054, entitled
"Zenaida B. Cirilo v. Conrado Bunag, Sr. and Conrado Bunag, Jr.," which affirmed in toto the decision of the Regional Trial Court, Branch XI at Bacoor,
Cavite, and, implicitly, respondent court’s resolution of September 3, 1992 2 denying petitioner’s motion for reconsideration.

Respondent court having assiduously discussed the salient antecedents of this case, vis-a-vis the factual findings of the court below, the evidence of
record and the contentions of the parties, it is appropriate that its findings, which we approve and adopt, be extensively reproduced
hereunder:jgc:chanrobles.com.ph

"Based on the evidence on record, the following facts are considered indisputable: On the afternoon of September 8, 1973, Defendant-
Appellant Bunag, Jr. brought plaintiff-appellant to a motel or hotel where they had sexual intercourse. Later that evening, said defendant-appellant
brought plaintiff-appellant to the house of his grandmother Juana de Leon in Pamplona, Las Piñas, Metro Manila, where they lived together as
husband and wife for 21 days, or until September 29, 1973. On September 10, 1973, Defendant-Appellant Bunag, Jr. and plaintiff-appellant filed their
respective applications for a marriage license with the Office of the Local Civil Registrar of Bacoor, Cavite. On October 1, 1973, after leaving plaintiff-
appellant, Defendant-Appellant Bunag, Jr. filed an affidavit withdrawing his application for a marriage license.

"Plaintiff-appellant contends that on the afternoon of September 8, 1973, Defendant-Appellant Bunag, Jr., together with an unidentified male
companion, abducted her in the vicinity of the San Juan de Dios Hospital in Pasay City and brought her to a motel where she was raped. The court a
quo, which adopted the evidence, summarized the same which we paraphrased as follows:chanrobles virtual lawlibrary

`Plaintiff was 26 years old on November 5, 1974 when she testified, single and had finished a college course in Commerce (t.s.n., p. 4, Nov. 5, 1974).
It appears that on September 8, 1973, at about 4:00 o’clock in the afternoon, while she was walking along Figueras Street, Pasay City on her way to
the San Juan de Dios Canteen to take her snack, defendant, Conrado Bunag, Jr., came riding in a car driven by a male companion. Plaintiff and
defendant Bunag, Jr. were sweethearts, but two weeks before September 8, 1973, they had a quarrel, and Bunag, Jr. wanted to talk matters over
with plaintiff, so that he invited her to take their merienda at the Aristocrat Restaurant in Manila instead of at San Juan de Dios Canteen, to which
plaintiff obliged, as she believed in his sincerity (t.s.n., pp. 8-10, Nov. 5, 1974).’

`Plaintiff rode in the case and took the front seat beside the driver while Bunag, Jr. seated himself by her right side. The car traveled north on its way
to the Aristocrat Restaurant but upon reaching San Juan Street in Pasay City, it turned abruptly to the right, to which plaintiff protested, but which
the duo ignored and instead threatened her not to make any noise as they were ready to die and would bump the car against the post if she
persisted. Frightened and silenced, the car traveled its course thru F.B. Harrison Boulevard until they reached a motel. Plaintiff was then pulled and
dragged from the car against her will, and amidst her cries and pleas. In spite of her struggle she was no match to the joint strength of the two male
combatants because of her natural weakness being a woman and her small stature. Eventually, she was brought inside the hotel where the
defendant Bunag, Jr. deflowered her against her will and consent. She could not fight back and repel the attack because after Bunag, Jr. had forced
her to lie down and embraced her, his companion held her two feet, removed her panty, after which he left. Bunag, Jr. threatened her that he would
ask his companion to come back and hold her feet if she did not surrender her womanhood to him, thus he succeeded in feasting on her virginity.
Plaintiff described the pains she felt and how blood came out of her private parts after her vagina was penetrated by the penis of the defendant
Bunag, Jr. (t.s.n., pp. 17-24, Nov. 5, 1974).

`After that outrage on her virginity, plaintiff asked Bunag, Jr. once more to allow her to go home but the latter would not consent and stated that he
would only let her go after they were married as he intended to marry her, so much so that she promised not to make any scandal and to marry him.
Thereafter, they took a taxi together after the car that they used had already gone, and proceeded to the house of Juana de Leon, Bunag, Jr.’s
grandmother in Pamplona, Las Piñas, Metro Manila where they arrived at 9:30 o’clock in the evening (t.s.n., p. 26, Nov. 5, 1974). At about ten (10)
o’clock that same evening, defendant Conrado Bunag, Sr., father of Bunag, Jr. arrived and assured plaintiff that the following day which was a
Monday, she and Bunag, Jr. would go to Bacoor, to apply for a marriage license, which they did. They filed their applications for marriage license
(Exhibits `A’ and `C’) and after that plaintiff and defendant Bunag, Jr. returned to the house of Juana de Leon and lived there as husband and wife
from September 8, 1973 to September 29, 1973.chanrobles law library

`On September 29, 1973 complaint Bunag, Jr. left and never returned, humiliating plaintiff and compelled her to go back to her parents on October 3,
1973. Plaintiff was ashamed when she went home and could not sleep and eat because of the deception done against her by defendant-appellants
(t.s.n., p. 35, Nov. 5, 1974).

`The testimony of plaintiff was corroborated in toto by her uncle, Vivencio Bansagan who declared that on September 8, 1973 when plaintiff failed to
arrive home at 9:00 o’clock in the evening, his sister who is the mother of plaintiff asked him to look for her but his efforts proved futile, and he told
his sister that plaintiff might have married (baka nag-asawa, t.s.n., pp. 5-6, March 18, 1976). However, in the afternoon of the next day (Sunday), his
sister told him that Francisco Cabrera, accompanied by barrio captain Jacinto Manalili of Ligas, Bacoor, Cavite, informed her that plaintiff and Bunag,
Jr. were in Cabrera’s house, so that her sister requested him to go and see the plaintiff, which he did, and at the house of Mrs. Juana de Leon in
Pamplona, Las Piñas, Metro Manila he met defendant Conrado Bunag, Sr., who told him, `Pare, the children are here already. Let us settle the matter
and have them married.’

`He conferred with plaintiff who told that as she had already lost her honor, she would bear her sufferings as Boy Bunag, Jr. and his father promised
they would be married.’

"Defendants-appellants, on the other hand, deny that defendant-appellant Conrado Bunag, Jr. abducted and raped plaintiff-appellant on September
8, 1973. On the contrary, plaintiff-appellant and defendant-appellant Bunag, Jr. eloped on that date because of the opposition of the latter’s father
to their relationship.

"Defendants-appellants claim that defendant-appellant Bunag, Jr. and plaintiff-appellant had earlier made plans to elope and get married, and this
fact was known to their friends, among them, Architect Chito Rodriguez. The couple made good their plans to elope on the afternoon of September
8, 1973, when defendant-appellant Bunag, Jr., accompanied by his friend Guillermo Ramos, Jr., met plaintiff-appellant and her officemate named
Lydia in the vicinity of the San Juan de Dios Hospital. The foursome then proceeded to (the) aforesaid hospital’s canteen where they had some
snacks. Later, Guillermo Ramos, Jr. took Lydia to Quirino Avenue where she could get a ride home, thereby leaving the defendant-appellant Bunag,
Jr. and plaintiff-appellant alone. According to defendant-appellant Bunag, Jr., after Guillermo Ramos, Jr. and Lydia left, he and plaintiff-appellant took
a taxi to the Golden Gate and Flamingo Hotels where they tried to get a room, but these were full. They finally got a room at the Holiday Hotel,
where defendant-appellant registered using his real name and residence certificate number. Three hours later, the couple checked out of the hotel
and proceeded to the house of Juana de Leon at Pamplona, Las Piñas, where they stayed until September 19, 1973. Defendant-appellant claims that
bitter disagreements with plaintiff-appellant over money and the threats made to his life prompted him to break off their plan to get
married.chanrobles lawlibrary : rednad
"During this period, Defendant-Appellant Bunag, Sr. denied having gone to the house of Juan de Leon and telling plaintiff-appellant that she would be
wed to defendant-appellant Bunag, Jr. In fact, he phoned Atty. Conrado Adreneda, member of the board of directors of Mandala
Corporation, Defendant-AppellantBunag, Jr.’s employer, three times between the evening of September 8, 1973 and September 9, 1973 inquiring as
to the whereabouts of his son. He came to know about his son’s whereabouts when he was told of the couple’s elopement late in the afternoon of
September 9, 1973 by his mother Candida Gawaran. He likewise denied having met relatives and emissaries of plaintiff-appellant and agreeing to her
marriage to his son. 3

A complaint for damages for alleged breach of promise to marry was filed by herein private respondent Zenaida B. Cirilo against petitioner Conrado
Bunag, Jr. and his father, Conrado Bunag, Sr., as Civil Case No. N-2028 of the Regional Trial Court, Branch XIX at Bacoor, Cavite. On August 20, 1983,
on a finding, inter alia, that petitioner had forcibly abducted and raped private respondent, the trial court rendered a decision 4 ordering petitioner
Bunag, Jr. to pay private respondent P80,000.00 as moral damages, P20,000.00 as exemplary damages, P20,000.00 by way of temperate damages,
and P10,000.00 for and as attorney’s fees, as well as the costs of suit. Defendant Conrado Bunag, Sr. was absolved from any and all liability.

Private respondent appealed that portion of the lower court’s decision disculpating Conrado Bunag, Sr. from civil liability in this case. On the other
hand, the Bunags, as defendants-appellants, assigned in their appeal several errors allegedly committed by the trial court, which were summarized
by respondent court as follows: (1) in finding that defendant-appellant Conrado Bunag, Jr. forcibly abducted and raped plaintiff-appellant; (2) in
finding that defendants-appellants promised plaintiff-appellant that she would be wed to defendant-appellant Conrado Bunag, Jr.; and (3) in
awarding plaintiff-appellant damages for the breach of defendants-appellants’ promise of marriage. 5

As stated at the outset, on May 17, 1991 respondent Court of Appeals rendered judgment dismissing both appeals and affirming in toto the decision
of the trial court. His motion for reconsideration having been denied, petitioner Bunag, Jr. is before us on a petition for review, contending that (1)
respondent court failed to consider vital exhibits, testimonies and incidents for petitioner’s defense, resulting in the misapprehensions of facts and
violative of the law on preparation of judgments; and (2) it erred in the application of the proper law and jurisprudence by holding that there was
forcible abduction with rape, not just a simple elopement and an agreement to marry, and in the award of excessive damages. 6

Petitioner Bunag, Jr. first contends that both the trial and appellate courts failed to take into consideration the alleged fact that he and private
respondent had agreed to marry, and that there was no case of forcible abduction with rape, but one of simple elopement and agreement to marry.
It is averred that the agreement to marry has been sufficiently proven by the testimonies of the witnesses for both parties and the exhibits presented
in court.

This submission, therefore, clearly hinges on the credibility of the witnesses and evidence presented by the parties and the weight accorded thereto
in the factual findings of the trial court and the Court of Appeals. In effect, what petitioner would want this Court to do is to evaluate and analyze
anew the evidence, both testimonial and documentary, presented before and calibrated by the trial court, and as further meticulously reviewed and
discussed by respondent court.

The issue raised primarily and ineluctably involves questions of fact. We are, therefore, once again constrained to stress the well-entrenched
statutory and jurisprudential mandate that findings of fact of the Court of Appeals are, as a rule, conclusive upon this Court. Only questions of law,
distinctly set forth, may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court, subject to clearly settled exceptions in
case law.

Our jurisdiction in cases brought to us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to the latter, its
findings of fact being conclusive. This Court has emphatically declared that it is not its function to analyze or weigh such evidence all over again, its
jurisdiction being limited to reviewing errors of law that might have been committed by the lower court. Barring, therefore, a showing that the
findings complained of are totally devoid of support in the record, or that they are so glaringly erroneous as to constitute serious abuse of discretion,
such findings must stand, for this Court is not expected required to examine or contrast the oral and documentary evidence submitted by the parties.
7 Neither does the instant case reveal any feature falling within any of the exceptions which under our decisional rules may warrant a review of the
factual findings of the Court of Appeals. On the foregoing considerations and our review of the records, we sustain the holding of respondent court in
favor of private Respondent.

Petitioner likewise asserts that since the action involves a breach of promise to marry, the trial court erred in awarding damages.chanrobles.com :
virtual law library

It is true that in this jurisdiction, we adhere to the time-honored rule that an action for breach of promise to marry has no standing in the civil law,
apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise. 8 Generally, therefore, a breach of
promise to marry per se is not actionable, except where the plaintiff has actually incurred expenses for the wedding and the necessary incidents
thereof.

However, the award of moral damages is allowed in cases specified in or analogous to those provided in Article 2219 of the Civil Code. Correlatively,
under Article 21 of said Code, in relation to paragraph 10 of said Article 2219, any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the latter for moral damages. 9 Article 21 was adopted to remedy the
countless gaps in the statutes which leave so many victims of moral wrongs helpless even though they have actually suffered material and moral
injury, and is intended to vouchsafe adequate legal remedy for that untold number of moral wrongs which is impossible for human foresight to
specifically provide for in the statutes. 10

Under the circumstances obtaining in the case at bar, the acts or petitioner in forcibly abducting private respondent and having carnal knowledge
with her against her will, and thereafter promising to marry her in order to escape criminal liability, only to thereafter renege on such promise after
cohabiting with her for twenty-one days, irremissibly constitutes acts contrary to morals and good customs. These are grossly insensate and
reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages, pursuant to Article 21,
in relation to paragraphs 3 and 10, Article 2219, and Articles 2229 and 2234 of the Civil Code.

Petitioner would, however, belabor the fact that said damages were awarded by the trial court on the basis of a finding that he is guilty of forcible
abduction with rape, despite the prior dismissal of the complaint therefor filed by private respondent with the Pasay City Fiscal’s Office.

Generally, the basis of civil liability from crime is the fundamental postulate of our law that every person criminally liable for a felony is also civilly
liable. In other words, criminal liability will give rise to civil liability ex delicto only if the same felonious act or omission results in damage or injury to
another and is the direct and proximate cause thereof. 11 Hence, extinction of the penal action does not carry with it the extinction of civil liability
unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. 12

In the instant case, the dismissal of the complaint for forcible abduction with rape was by mere resolution of the fiscal at the preliminary
investigation stage. There is no declaration in a final judgment that the fact from which the civil case might arise did not exist. Consequently, the
dismissal did not in any way affect the right of herein private respondent to institute a civil action arising from the offense because such preliminary
dismissal of the penal action did not carry with it the extinction of the civil action.

The reason most often given for this holding is that the two proceedings involved are not between the same parties. Furthermore, it has long been
emphasized, with continuing validity up to now, that there are different rules as to the competency of witnesses and the quantum of evidence in
criminal civil proceedings. In a criminal action, the State must prove its case by evidence which shows the guilt of the accused beyond reasonable
doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by preponderance of evidence only. 13 Thus, in Rillon, Et. Al. v. Rillon,
14 we stressed that it is not now necessary that a criminal prosecution for rape be first instituted and prosecuted to final judgment before a civil
action based on said offense in favor of the offended woman can likewise be instituted and prosecuted to final judgment.

WHEREFORE, the petition is hereby DENIED for lack of merit, and the assailed judgment and resolution are hereby AFFIRMED.

SO ORDERED.

13. G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,

vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.

Public Attorney's Office for petitioner.

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the Decision 1 of the respondent Court of Appeals in
CA-G.R. CV No. 24256 which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC) of Pangasinan in
Civil Case No. 16503. Presented is the issue of whether or not damages may be recovered for a breach of promise to marry on the basis of Article 21
of the Civil Code of the Philippines.

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a complaint 2 for damages against the
petitioner for the alleged violation of their agreement to get married. She alleges in said complaint that: she is twenty-two (22) years old, single,
Filipino and a pretty lass of good moral character and reputation duly respected in her community; petitioner, on the other hand, is an Iranian citizen
residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at the Lyceum Northwestern Colleges in
Dagupan City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love on the condition that they would get
married; they therefore agreed to get married after the end of the school semester, which was in October of that year; petitioner then visited the
private respondent's parents in Bañaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20 August 1987, the petitioner
forced her to live with him in the Lozano Apartments; she was a virgin before she began living with him; a week before the filing of the complaint,
petitioner's attitude towards her started to change; he maltreated and threatened to kill her; as a result of such maltreatment, she sustained injuries;
during a confrontation with a representative of the barangay captain of Guilig a day before the filing of the complaint, petitioner repudiated their
marriage agreement and asked her not to live with him anymore and; the petitioner is already married to someone living in Bacolod City. Private
respondent then prayed for judgment ordering the petitioner to pay her damages in the amount of not less than P45,000.00, reimbursement for
actual expenses amounting to P600.00, attorney's fees and costs, and granting her such other relief and remedies as may be just and equitable. The
complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim,3 petitioner admitted only the personal circumstances of the parties as averred in the complaint and denied the rest
of the allegations either for lack of knowledge or information sufficient to form a belief as to the truth thereof or because the true facts are those
alleged as his Special and Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed to be married with the private
respondent; he neither sought the consent and approval of her parents nor forced her to live in his apartment; he did not maltreat her, but only told
her to stop coming to his place because he discovered that she had deceived him by stealing his money and passport; and finally, no confrontation
took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint is baseless and unfounded and that as a
result thereof, he was unnecessarily dragged into court and compelled to incur expenses, and has suffered mental anxiety and a besmirched
reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order4 embodying the stipulated facts which the parties had agreed
upon, to wit:

1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan, while the defendant is single, Iranian citizen and
resident (sic) of Lozano Apartment, Guilig, Dagupan City since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College of Medicine, second year medicine
proper;

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue, Dagupan City since July, 1986 up to the
present and a (sic) high school graduate;

4. That the parties happened to know each other when the manager of the Mabuhay Luncheonette, Johhny Rabino introduced the
defendant to the plaintiff on August 3, 1986.

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a decision5 favoring the private
respondent. The petitioner was thus ordered to pay the latter damages and attorney's fees; the dispositive portion of the decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the plaintiff and against the defendant.

1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand (P20,000.00) pesos as moral damages.

2. Condemning further the defendant to play the plaintiff the sum of three thousand (P3,000.00) pesos as atty's fees and two
thousand (P2,000.00) pesos at (sic) litigation expenses and to pay the costs.

3. All other claims are denied.6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent were lovers, (b) private respondent is
not a woman of loose morals or questionable virtue who readily submits to sexual advances, (c) petitioner, through machinations, deceit and false
pretenses, promised to marry private respondent, d) because of his persuasive promise to marry her, she allowed herself to be deflowered by him,
(e) by reason of that deceitful promise, private respondent and her parents — in accordance with Filipino customs and traditions — made some
preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and chickens, inviting friends and relatives and
contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of the petitioner, who is a foreigner and who has abused
Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The trial court gave full credit to the private
respondent's testimony because, inter alia, she would not have had the temerity and courage to come to court and expose her honor and reputation
to public scrutiny and ridicule if her claim was false.7

The above findings and conclusions were culled from the detailed summary of the evidence for the private respondent in the foregoing decision,
digested by the respondent Court as follows:

According to plaintiff, who claimed that she was a virgin at the time and that she never had a boyfriend before, defendant started
courting her just a few days after they first met. He later proposed marriage to her several times and she accepted his love as well
as his proposal of marriage on August 20, 1987, on which same day he went with her to her hometown of Bañaga, Bugallon,
Pangasinan, as he wanted to meet her parents and inform them of their relationship and their intention to get married. The
photographs Exhs. "A" to "E" (and their submarkings) of defendant with members of plaintiff's family or with plaintiff, were taken
that day. Also on that occasion, defendant told plaintiffs parents and brothers and sisters that he intended to marry her during the
semestral break in October, 1987, and because plaintiff's parents thought he was good and trusted him, they agreed to his proposal
for him to marry their daughter, and they likewise allowed him to stay in their house and sleep with plaintiff during the few days
that they were in Bugallon. When plaintiff and defendant later returned to Dagupan City, they continued to live together in
defendant's apartment. However, in the early days of October, 1987, defendant would tie plaintiff's hands and feet while he went
to school, and he even gave her medicine at 4 o'clock in the morning that made her sleep the whole day and night until the
following day. As a result of this live-in relationship, plaintiff became pregnant, but defendant gave her some medicine to abort the
fetus. Still plaintiff continued to live with defendant and kept reminding him of his promise to marry her until he told her that he
could not do so because he was already married to a girl in Bacolod City. That was the time plaintiff left defendant, went home to
her parents, and thereafter consulted a lawyer who accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer,
her godmother, and a barangay tanod sent by the barangay captain went to talk to defendant to still convince him to marry
plaintiff, but defendant insisted that he could not do so because he was already married to a girl in Bacolod City, although the
truth, as stipulated by the parties at the pre-trial, is that defendant is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his desire to marry Marilou, he already
looked for sponsors for the wedding, started preparing for the reception by looking for pigs and chickens, and even already invited
many relatives and friends to the forthcoming wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case as CA-G.R. CV No. 24256. In his Brief,9 he
contended that the trial court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in ordering him to pay moral damages,
attorney's fees, litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the trial court's ruling of 16 October 1989. In
sustaining the trial court's findings of fact, respondent Court made the following analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years old at the time, does not appear to
be a girl of loose morals. It is uncontradicted that she was a virgin prior to her unfortunate experience with defendant and never
had boyfriend. She is, as described by the lower court, a barrio lass "not used and accustomed to trend of modern urban life", and
certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by the defendant to marry her." In fact, we
agree with the lower court that plaintiff and defendant must have been sweethearts or so the plaintiff must have thought because
of the deception of defendant, for otherwise, she would not have allowed herself to be photographed with defendant in public in
so (sic) loving and tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's
pretense that plaintiff was a nobody to him except a waitress at the restaurant where he usually ate. Defendant in fact admitted
that he went to plaintiff's hometown of Bañaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987
(p. 54, tsn May 18, 1988), at (sic) a beach party together with the manager and employees of the Mabuhay Luncheonette on March
3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's mother who told him to marry her daughter (pp.
55-56, tsn id.). Would defendant have left Dagupan City where he was involved in the serious study of medicine to go to plaintiff's
hometown in Bañaga, Bugallon, unless there was (sic) some kind of special relationship between them? And this special
relationship must indeed have led to defendant's insincere proposal of marriage to plaintiff, communicated not only to her but also
to her parents, and (sic) Marites Rabino, the owner of the restaurant where plaintiff was working and where defendant first
proposed marriage to her, also knew of this love affair and defendant's proposal of marriage to plaintiff, which she declared was
the reason why plaintiff resigned from her job at the restaurant after she had accepted defendant's proposal (pp. 6-7, tsn March 7,
1988).

Upon the other hand, appellant does not appear to be a man of good moral character and must think so low and have so little
respect and regard for Filipino women that he openly admitted that when he studied in Bacolod City for several years where he
finished his B.S. Biology before he came to Dagupan City to study medicine, he had a common-law wife in Bacolod City. In other
words, he also lived with another woman in Bacolod City but did not marry that woman, just like what he did to plaintiff. It is not
surprising, then, that he felt so little compunction or remorse in pretending to love and promising to marry plaintiff, a young,
innocent, trustful country girl, in order to satisfy his lust on her. 11

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent and deceptive protestations of love for
and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these (sic) fraud and deception on appellant's part that made
plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage. And as these acts of
appellant are palpably and undoubtedly against morals, good customs, and public policy, and are even gravely and deeply
derogatory and insulting to our women, coming as they do from a foreigner who has been enjoying the hospitality of our people
 and taking advantage of the opportunity to study in one of our institutions of learning, defendant-appellant should indeed be
made, under Art. 21 of the Civil Code of the Philippines, to compensate for the moral damages and injury that he had caused
plaintiff, as the lower court ordered him to do in its decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the single issue of whether or not Article 21 of
the Civil Code applies to the case at bar. 13

It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong or injury or violated any good custom or
public policy; he has not professed love or proposed marriage to the private respondent; and he has never maltreated her. He criticizes the trial court
for liberally invoking Filipino customs, traditions and culture, and ignoring the fact that since he is a foreigner, he is not conversant with such Filipino
customs, traditions and culture. As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then alludes to the
Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the basis thereof, the trial court erred in ruling that he
does not posses good moral character. Moreover, his controversial "common law life" is now his legal wife as their marriage had been solemnized in
civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the private respondent, petitioner claims that even if responsibility
could be pinned on him for the live-in relationship, the private respondent should also be faulted for consenting to an illicit arrangement. Finally,
petitioner asseverates that even if it was to be assumed arguendo that he had professed his love to the private respondent and had also promised to
marry her, such acts would not be actionable in view of the special circumstances of the case. The mere breach of promise is not actionable. 14

On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner had filed his Reply thereto, this Court gave
due course to the petition and required the parties to submit their respective Memoranda, which they subsequently complied with.

As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is clear that questions of fact, which boil
down to the issue of the credibility of witnesses, are also raised. It is the rule in this jurisdiction that appellate courts will not disturb the trial court's
findings as to the credibility of witnesses, the latter court having heard the witnesses and having had the opportunity to observe closely their
deportment and manner of testifying, unless the trial court had plainly overlooked facts of substance or value which, if considered, might affect the
result of the case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any fact of substance or values which could
alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. It is not
the function of this Court to analyze or weigh all over again the evidence introduced by the parties before the lower court. There are, however,
recognized exceptions to this rule. Thus, in Medina vs.Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions:

xxx xxx xxx

 (1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257
[1953]); (2) When the inference made is manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where
there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of
facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the
Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellate and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970];
Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are conclusions without citation of specific evidence
on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners main and reply briefs are
not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the supposed absence
of evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).

Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions in this case. Consequently, the factual findings
of the trial and appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17 Congress deliberately eliminated from the draft of the New
Civil Code the provisions that would have made it so. The reason therefor is set forth in the report of the Senate Committees on the Proposed Civil
Code, from which We quote:

The elimination of this chapter is proposed. That breach of promise to marry is not actionable has been definitely decided in the
case of De Jesus vs. Syquia. 18 The history of breach of promise suits in the United States and in England has shown that no other
action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the
abolition of rights of action in the so-called Heart Balm suits in many of the American states. . . . 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts or quasi-delict in this
jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically
enumerate and punish in the statute books. 20

As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of wrongs defined or determined by positive law. Fully sensible that
there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the
 proposed Civil Code the following rule:

Art. 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old daughter of "X". A promise of
marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime, as
the girl is above nineteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though
the grievous moral wrong has been committed, and though the girl and family have suffered incalculable moral damage, she and
her parents cannot bring action for damages. But under the proposed article, she and her parents would have such a right of
action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe adequate legal remedy for that untold number
of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.

is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in Spanish legal treatises
as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa
aquiliana because it includes not only negligence, but international criminal acts as well such as assault and battery, false imprisonment and
deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code,
intentional and malicious acts, with certain exceptions, are to be governed by the Revised Penal Code while negligent acts or omissions are
to be covered by Article 2176 of the Civil Code. 22 In between these opposite spectrums are injurious acts which, in the absence of Article 21,
would have been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil
Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and adaptable than the Anglo-
American law on torts. 23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to marry is in fact the
proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of
the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle
scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages
pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and
reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good
customs or public policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of love for and promise to marry
plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said
promise, and it was likewise these fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's living-in with him
preparatory to their supposed marriage." 24 In short, the private respondent surrendered her virginity, the cherished possession of every single
Filipina, not because of lust but because of moral seduction — the kind illustrated by the Code Commission in its example earlier adverted to. The
petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the Revised Penal Code because the
private respondent was above eighteen (18) years of age at the time of the seduction.

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry where the woman is a victim of moral
seduction. Thus, in Hermosisima vs. Court of Appeals,25 this Court denied recovery of damages to the woman because:

. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10)
years younger than the complainant — who was around thirty-six (36) years of age, and as highly enlightened as a former high
school teacher and a life insurance agent are supposed to be — when she became intimate with petitioner, then a mere apprentice
pilot, but, also, because the court of first instance found that, complainant "surrendered herself" to petitioner because,
"overwhelmed by her love" for him, she "wanted to bind" him by having a fruit of their engagement even before they had the
benefit of clergy.

In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had been moral seduction, recovery was eventually
denied because We were not convinced that such seduction existed. The following enlightening disquisition and conclusion were made in the said
case:

The Court of Appeals seem to have overlooked that the example set forth in the Code Commission's memorandum refers to a tort
upon a minor who had been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a
breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on
the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

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

To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must
yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is
from mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56) She must be induced to depart
from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have
and do have that effect, and which result in her person to ultimately submitting her person to the sexual
 embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the
injury; and a mere proof of intercourse is insufficient to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of sexual desire of curiosity of the female, and the
defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that
to allow a recovery in all such cases would tend to the demoralization of the female sex, and would be a reward
for unchastity by which a class of adventuresses would be swift to profit. (47 Am. Jur. 662)

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a
woman of adult age, maintain intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is
incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been
deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not have
again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of marriage, and
would have cut short all sexual relations upon finding that defendant did not intend to fulfill his defendant did not intend to fulfill
his promise. Hence, we conclude that no case is made under article 21 of the Civil Code, and no other cause of action being alleged,
no error was committed by the Court of First Instance in dismissing the complaint. 27

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from this Court, opined that in a breach of promise to
marry where there had been carnal knowledge, moral damages may be recovered:

. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court
of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the carnal
knowledge, there is a chance that there was criminal or moral seduction, hence recovery of moral damages will prosper. If it be the
other way around, there can be no recovery of moral damages, because here mutual lust has intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for the wedding presentations (See Domalagon v. Bolifer, 33
Phil. 471).
Senator Arturo M. Tolentino 29 is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the incorporation of the present article31 in the
Code. The example given by the Code Commission is correct, if there was seduction, not necessarily in the legal sense, but in the
vulgar sense of deception. But when the sexual act is accomplished without any deceit or qualifying circumstance of abuse of
authority or influence, but the woman, already of age, has knowingly given herself to a man, it cannot be said that there is an injury
which can be the basis for indemnity.

But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The court, however, must weigh the degree
of fraud, if it is sufficient to deceive the woman under the circumstances, because an act which would deceive a girl sixteen years of
age may not constitute deceit as to an experienced woman thirty years of age. But so long as there is a wrongful act and a resulting
injury, there should be civil liability, even if the act is not punishable under the criminal law and there should have been an acquittal
or dismissal of the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's sake, that he did promise to marry the
private respondent, the latter is nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to Article 1412(1) of the
Civil Code and the doctrine laid down in Batarra vs. Marcos, 32 the private respondent cannot recover damages from the petitioner. The latter even
goes as far as stating that if the private respondent had "sustained any injury or damage in their relationship, it is primarily because of her own
doing, 33 for:

. . . She is also interested in the petitioner as the latter will become a doctor sooner or later. Take notice that she is a plain high
school graduate and a mere employee . . . (Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without
doubt, is in need of a man who can give her economic security. Her family is in dire need of financial assistance. (TSN, pp. 51-53,
May 18, 1988). And this predicament prompted her to accept a proposition that may have been offered by the petitioner. 34

These statements reveal the true character and motive of the petitioner. It is clear that he harbors a condescending, if not sarcastic, regard for the
private respondent on account of the latter's ignoble birth, inferior educational background, poverty and, as perceived by him, dishonorable
employment. Obviously then, from the very beginning, he was not at all moved by good faith and an honest motive. Marrying with a woman so
circumstances could not have even remotely occurred to him. Thus, his profession of love and promise to marry were empty words directly intended
to fool, dupe, entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want her to be his life's partner. His
was nothing but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his proffer of love and proposal of
marriage, she would be able to enjoy a life of ease and security. Petitioner clearly violated the Filipino's concept of morality and brazenly defied the
traditional respect Filipinos have for their women. It can even be said that the petitioner committed such deplorable acts in blatant disregard of
Article 19 of the Civil Code which directs every person to act with justice, give everyone his due and observe honesty and good faith in the exercise of
his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled by the purest of intentions, she
eventually submitted to the petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent that she had qualms
of conscience about the entire episode for as soon as she found out that the petitioner was not going to marry her after all, she left him. She is not,
therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault." 35At most,
it could be conceded that she is merely in delicto.

Equity often interferes for the relief of the less guilty of the parties, where his transgression has been brought about by the
imposition of undue influence of the party on whom the burden of the original wrong principally rests, or where his consent to the
transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at fault, there should be no action by one against the other (Art. 1412, New Civil
Code). This rule, however, has been interpreted as applicable only where the fault on both sides is, more or less, equivalent. It does
not apply where one party is literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros, 40 Phil. 209).

We should stress, however, that while We find for the private respondent, let it not be said that this Court condones the deplorable behavior of her
parents in letting her and the petitioner stay together in the same room in their house after giving approval to their marriage. It is the solemn duty of
parents to protect the honor of their daughters and infuse upon them the higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED, with costs against the petitioner.

SO ORDERED.

14. G.R. No. 164856 August 29, 2007

JUANITO A. GARCIA and ALBERTO J. DUMAGO, Petitioners,

vs.
PHILIPPINE AIRLINES, INC., Respondent.

DECISION
QUISUMBING, J.:

This petition for review assails both the Decision1 dated December 5, 2003 and the Resolution2 dated April 16, 2004 of the Court of Appeals in CA-
G.R. SP No. 69540, which had annulled the Resolutions 3 dated November 26, 2001 and January 28, 2002 of the National Labor Relations Commission
(NLRC) in NLRC Injunction Case No. 0001038-01, and also denied the motion for reconsideration, respectively.

The antecedent facts of the case are as follows:

Petitioners Alberto J. Dumago and Juanito A. Garcia were employed by respondent Philippine Airlines, Inc. (PAL) as Aircraft Furnishers Master "C" and
Aircraft Inspector, respectively. They were assigned in the PAL Technical Center.

On July 24, 1995, a combined team of the PAL Security and National Bureau of Investigation (NBI) Narcotics Operatives raided the Toolroom Section
– Plant Equipment Maintenance Division (PEMD) of the PAL Technical Center. They found petitioners, with four others, near the said section at that
time. When the PAL Security searched the section, they found shabu paraphernalia inside the company-issued locker of Ronaldo Broas who was also
within the vicinity. The six employees were later brought to the NBI for booking and proper investigation.

On July 26, 1995, a Notice of Administrative Charge4 was served on petitioners. They were allegedly "caught in the act of sniffing shabu inside the
Toolroom Section," then placed under preventive suspension and required to submit their written explanation within ten days from receipt of the
notice.

Petitioners vehemently denied the allegations and challenged PAL to show proof that they were indeed "caught in the act of sniffing shabu." Dumago
claimed that he was in the Toolroom Section to request for an allen wrench to fix the needles of the sewing and zigzagger machines. Garcia averred
he was in the Toolroom Section to inquire where he could take the Trackster’s tire for vulcanizing.

On October 9, 1995, petitioners were dismissed for violation of Chapter II, Section 6, Article 46 (Violation of Law/Government Regulations) and
Chapter II, Section 6, Article 48 (Prohibited Drugs) of the PAL Code of Discipline. 5 Both simultaneously filed a case for illegal dismissal and damages.

In the meantime, the Securities and Exchange Commission (SEC) placed PAL under an Interim Rehabilitation Receiver due to severe financial losses.

On January 11, 1999, the Labor Arbiter rendered a decision 6 in petitioners’ favor:

WHEREFORE, conformably with the foregoing, judgment is hereby rendered finding the respondents guilty of illegal suspension and illegal dismissal
and ordering them to reinstate complainants to their former position without loss of seniority rights and other privileges. Respondents are hereby
further ordered to pay jointly and severally unto the complainants the following:

Alberto J. Dumago - P409,500.00 backwages as of 1/10/99

34,125.00 for 13th month pay

Juanito A. Garcia - P1,290,744.00 backwages as of 1/10/99

107,562.00 for 13th month pay

The amounts of P100,000.00 and P50,000.00 to each complainant as and by way of moral and exemplary damages; and

The sum equivalent to ten percent (10%) of the total award as and for attorneys fees.

Respondents are directed to immediately comply with the reinstatement aspect of this Decision. However, in the event that reinstatement is no
longer feasible, respondent[s] are hereby ordered, in lieu thereof, to pay unto the complainants their separation pay computed at one month for
[e]very year of service.

SO ORDERED.7

Meanwhile, the SEC replaced the Interim Rehabilitation Receiver with a Permanent Rehabilitation Receiver.

On appeal, the NLRC reversed the Labor Arbiter’s decision and dismissed the case for lack of merit. 8Reconsideration having been denied, an Entry of
Judgment9 was issued on July 13, 2000.

On October 5, 2000, the Labor Arbiter issued a Writ of Execution 10 commanding the sheriff to proceed:

xxxx

1. To the Office of respondent PAL Building I, Legaspi St., Legaspi Village, Makati City or to any of its Offices in the Philippines and cause
reinstatement of complainants to their former position and to cause the collection of the amount of [₱]549,309.60 from respondent PAL
representing the backwages of said complainants on the reinstatement aspect;
 2. In case you cannot collect from respondent PAL for any reason, you shall levy on the office equipment and other movables and garnish its
deposits with any bank in the Philippines, subject to the limitation that equivalent amount of such levied movables and/or the amount
garnished in your own judgment, shall be equivalent to [₱]549,309.60. If still insufficient, levy against immovable properties of PAL not
otherwise exempt from execution.

x x x x11

Although PAL filed an Urgent Motion to Quash Writ of Execution, the Labor Arbiter issued a Notice of Garnishment12 addressed to the
President/Manager of the Allied Bank Head Office in Makati City for the amount of ₱549,309.60.

PAL moved to lift the Notice of Garnishment while petitioners moved for the release of the garnished amount. PAL opposed petitioners’ motion. It
also filed an Urgent Petition for Injunction which the NLRC resolved as follows:

WHEREFORE, premises considered, the Petition is partially GRANTED. Accordingly, the Writ of Execution dated October 5, 2000 and related [N]otice
of Garnishment [dated October 25, 2000] are DECLARED valid. However, the instant action is SUSPENDED and REFERRED to the Receiver of Petitioner
PAL for appropriate action.

SO ORDERED.13

PAL appealed to the Court of Appeals on the grounds that: (1) by declaring the writ of execution and the notice of garnishment valid, the NLRC gave
petitioners undue advantage and preference over PAL’s other creditors and hampered the task of the Permanent Rehabilitation Receiver; and (2)
there was no longer any legal or factual basis to reinstate petitioners as a result of the reversal by the NLRC of the Labor Arbiter’s decision.

The appellate court ruled that the Labor Arbiter issued the writ of execution and the notice of garnishment without jurisdiction. Hence, the NLRC
erred in upholding its validity. Since PAL was under receivership, it could not have possibly reinstated petitioners due to retrenchment and cash-flow
constraints. The appellate court declared that a stay of execution may be warranted by the fact that PAL was under rehabilitation receivership. The
dispositive portion of the decision reads:

WHEREFORE, premises considered and in view of the foregoing, the instant petition is hereby GIVEN DUE COURSE. The assailed November 26, 2001
Resolution, as well as the January 28, 2002 Resolution of public respondent National Labor Relations Commission is hereby ANNULLED and SET
ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Consequently, the Writ of Execution and the
Notice of Garnishment issued by the Labor Arbiter are hereby likewise ANNULLED and SET ASIDE.
SO ORDERED.14

Hence, the instant petition raising a single issue as follows:

WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE PETITIONERS ARE ENTITLED TO THEIR ACCRUED WAGES DURING THE
PENDENCY OF PAL’S APPEAL.15

Simply put, however, there are really two issues for our consideration: (1) Are petitioners entitled to their wages during the pendency of PAL’s appeal
to the NLRC? and (2) In the light of new developments concerning PAL’s rehabilitation, are petitioners entitled to execution of the Labor Arbiter’s
order of reinstatement even if PAL is under receivership?

We shall first resolve the issue of whether the execution of the Labor Arbiter’s order is legally possible even if PAL is under receivership.

We note that during the pendency of this case, PAL was placed by the SEC first, under an Interim Rehabilitation Receiver and finally, under a
Permanent Rehabilitation Receiver. The pertinent law on this matter, Section 5(d) of Presidential Decree (P.D.) No. 902-A, as amended, provides that:

SECTION 5. In addition to the regulatory and adjudicative functions of the Securities and Exchange Commission over corporations, partnerships and
other forms of associations registered with it as expressly granted under existing laws and decrees, it shall have original and exclusive jurisdiction to
hear and decide cases involving:

xxxx

d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation,
partnership or association possesses property to cover all of its debts but foresees the impossibility of meeting them when they respectively fall due
or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under the [management of a
rehabilitation receiver or] Management Committee created pursuant to this Decree.

The same P.D., in Section 6(c) provides that:

SECTION 6. In order to effectively exercise such jurisdiction, the Commission shall possess the following powers:

xxxx
c) To appoint one or more receivers of the property, real or personal, which is the subject of the action pending before the Commission in
accordance with the pertinent provisions of the Rules of Court in such other cases whenever necessary in order to preserve the rights of the parties-
litigants and/or protect the interest of the investing public and creditors:…Provided, finally, That upon appointment of a management committee,
rehabilitation receiver, board or body, pursuant to this Decree, all actions for claims against corporations, partnerships or associations under
management or receivership pending before any court, tribunal, board or body shall be suspended accordingly.

xxxx

Worth stressing, upon appointment by the SEC of a rehabilitation receiver, all actions for claims against the corporation pending before any court,
tribunal or board shall ipso jure be suspended. The purpose of the automatic stay of all pending actions for claims is to enable the rehabilitation
receiver to effectively exercise its/his powers free from any judicial or extra-judicial interference that might unduly hinder or prevent the rescue of
the corporation.16

More importantly, the suspension of all actions for claims against the corporation embraces all phases of the suit, be it before the trial court or any
tribunal or before this Court.17 No other action may be taken, including the rendition of judgment during the state of suspension. It must be stressed
that what are automatically stayed or suspended are the proceedings of a suit and not just the payment of claims during the execution stage after
the case had become final and executory.18

Furthermore, the actions that are suspended cover all claims against the corporation whether for damages founded on a breach of contract of
carriage, labor cases, collection suits or any other claims of a pecuniary nature. 19 No exception in favor of labor claims is mentioned in the
law.201avvphi1

This Court’s adherence to the above-stated rule has been resolute and steadfast as evidenced by its oft-repeated application in a plethora of cases
involving PAL, the most recent of which is Philippine Airlines, Inc. v. Zamora. 21

Since petitioners’ claim against PAL is a money claim for their wages during the pendency of PAL’s appeal to the NLRC, the same should have been
suspended pending the rehabilitation proceedings. The Labor Arbiter, the NLRC, as well as the Court of Appeals should have abstained from resolving
petitioners’ case for illegal dismissal and should instead have directed them to lodge their claim before PAL’s receiver. 22

However, to still require petitioners at this time to re-file their labor claim against PAL under the peculiar circumstances of the case – that their
dismissal was eventually held valid with only the matter of reinstatement pending appeal being the issue – this Court deems it legally expedient to
suspend the proceedings in this case.
WHEREFORE, the instant petition is PARTIALLY GRANTED in that the instant proceedings herein are SUSPENDED until further notice from this Court.
Accordingly, respondent Philippine Airlines, Inc. is hereby DIRECTED to quarterly update the Court as to the status of its ongoing rehabilitation. No
costs.

SO ORDERED.

15. G.R. No. L-69866 April 15, 1988

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN,
ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA,
MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners,
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL.
PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL
BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

YAP, J.:

This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the question whether the suspension of the
privilege of the writ of habeas corpus bars a civil action for damages for illegal searches conducted by military personnel and other violations of rights
and liberties guaranteed under the Constitution. If such action for damages may be maintained, who can be held liable for such violations: only the
military personnel directly involved and/or their superiors as well.

This case stems from alleged illegal searches and seizures and other violations of the rights and liberties of plaintiffs by various intelligence units of
the Armed Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against
known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs
allege, among others, that complying with said order, elements of the TFM raided several places, employing in most cases defectively issued judicial
search warrants; that during these raids, certain members of the raiding party confiscated a number of purely personal items belonging to plaintiffs;
that plaintiffs were arrested without proper warrants issued by the courts; that for some period after their arrest, they were denied visits of relatives
and lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military men who interrogated them employed
threats, tortures and other forms of violence on them in order to obtain incriminatory information or confessions and in order to punish them; that
all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract information and incriminatory
statements from plaintiffs and to terrorize, harass and punish them, said plans being previously known to and sanctioned by defendants.
Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the amount of at least P150,000.00 each or a total of
P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less
than P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause
a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas
corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are immune from liability for acts done in the
performance of their official duties; and (3) the complaint states no cause of action against the defendants. Opposition to said motion to dismiss was
filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983, and by
plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen
Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated Reply was filed by
defendants' counsel.

Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution
granting the motion to dismiss. I sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into
the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2)
that assuming that the court can entertain the present action, defendants are immune from liability for acts done in the performance of their official
duties; and (3) that the complaint states no cause of action against defendants, since there is no allegation that the defendants named in the
complaint confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and with the possible exception of Major
Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise
direct supervision and control of their subordinates or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower
court stated, "After a careful study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be granted. On the
other hand, plaintiffs' arguments in their opposition are lacking in merit."

A motion to set aside the order dismissing the complaint and a supplemental motion for reconsideration was filed by the plaintiffs on November 18,
1983, and November 24, 1983, respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of plaintiffs, furnishing a
copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez,
Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas Aquino.

On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further proceeding in the case and leaving the resolution of
the motion to set aside the order of dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid
pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion that the undersigned has no authority or
jurisdiction to resolve said pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the
name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April
12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for reconsideration.

In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the motion to set aside order of November 8, 1983,
issued an order, as follows:

It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco Palo,
represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex
Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by
counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to
reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an appeal therefrom within the reglementary
period, as prayed for by the defendants, said Order is now final against said plaintiffs.

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May 28,1984, alleging that it was not true that plaintiffs
Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin
failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within the reglementary period. Plaintiffs claimed that
the motion to set aside the order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs, although
signed by only some of the lawyers.

In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider its order of May 11, 1984 declaring that with
respect to certain plaintiffs, the resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8, 1983
granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the respondent court resolved:

(1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of dismissal of the complaint of
plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo
Mansos and Rolando Salutin is deed for lack of merit;

(2) For lack of cause of action as against the following defendants, to wit:

1. Gen Fabian Ver

2. Col. Fidel Singson

3. Col. Rolando Abadilla

4. Lt. Col. Conrado Lantoria, Jr.

5. Col. Galileo Montanar

 6. Col. Panfilo Lacson

7. Capt. Danilo Pizaro

8. 1 Lt Pedro Tango

9. Lt. Romeo Ricardo

10. Lt. Raul Bacalso

the motion to set aside and reconsider the Resolution of dismissal of the present action or complaint, dated November 8, 1983, is
also denied but in so far as it affects and refers to defendants, to wit:

1. Major Rodolfo Aguinaldo, and

2. Master Sgt. Bienvenido Balaba

the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is granted and the Resolution of
dismissal is, in this respect, reconsidered and modified.

Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set aside the respondent court's resolution of
November 8, 1983, its order of May 11, 1984, and its resolution dated September 21, 1984. Respondents were required to comment on the petition,
which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.

We find the petition meritorious and decide to give it due course.

At the heart of petitioners' complaint is Article 32 of the Civil Code which provides:

ART. 32. Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates or in any
manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process

(7) of law;

(8) The right to a just compensation when private property is taken for public use;

(9) The right to the equal protection of the laws;

(10) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(11) The liberty of abode and of changing the same;

(12) The privacy of cmmunication and correspondence;

(13) The right to become a member of associations or societies for purposes not contrary to law;

(14) The right to take part in a peaceable assembly to petition the Government for redress of grievances;

(15) The right to be free from involuntary servitude in any form;

(16) The rigth of the accused against excessive bail;

(17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witness in behalf;

(18) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced
by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;
 (19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a
statute which has not been judicially declared unconstitutional; and

(20) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the
against grieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal
Code or other penal statute.

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the
Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political
stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law of force rather than the
force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs
or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to
the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the
community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it
is made. Now this respect implies a maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we discover that life demands
of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. 2

Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as public officers they are covered by the mantle of
state immunity from suit for acts done in the performance of official duties or function In support of said contention, respondents maintain that —

Respondents are members of the Armed Forces of the Philippines. Their primary duty is to safeguard public safety and order. The
Constitution no less provides that the President may call them "to prevent or supress lawless violence, invasion, insurrection or
rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9).

On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing for the continued suspension of
the privilege of the writ of habeas corpus in view of the remaining dangers to the security of the nation. The proclamation also
provided "that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insuitection rebellion and
subversion shall continue to be in force and effect."
 Petitioners allege in their complaint that their causes of action proceed from respondent General Ver's order to Task Force
Makabansa to launch pre-emptive strikes against communist terrorist underground houses in Metro Manila. Petitioners claim that
this order and its subsequent implementation by elements of the task force resulted in the violation of their constitutional rights
against unlawful searches, seizures and arrest, rights to counsel and to silence, and the right to property and that, therefore,
respondents Ver and the named members of the task force should be held liable for damages.

But, by launching a pre-emptive strike against communist terrorists, respondent members of the armed forces merely performed
their official and constitutional duties. To allow petitioners to recover from respondents by way of damages for acts performed in
the exercise of such duties run contrary to the policy considerations to shield respondents as public officers from undue
interference with their duties and from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v.
Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of governmental and public functions from
being harassed unduly or constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79 Phil.
819).

xxx xxx xxx

The immunity of public officers from liability arising from the performance of their duties is now a settled jurisprudence Alzua v.
Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360;
Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra;
Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755).

Respondents-defendants who merely obeyed the lawful orders of the President and his call for the suppression of the rebellion
involving petitioners enjoy such immunity from Suit. 3

We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The cases invoked by respondents actually involved
acts done by officers in the performance of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4

No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law,
to do. Therefore, if the Governor-General had authority, under the law to deport or expel the defendants, and circumstances
justifying the deportation and the method of carrying it out are left to him, then he cannot be held liable in damages for the
exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of controlling or
interferring with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow
that the courts cannot intervene for the purpose of declaring that he is liable in damages for the exeercise of this authority.

It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, "to prevent
or suppress lawless violence, insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the
lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive strikes against alleged communist terrorist
underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint, to
disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution
remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times.

Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional
rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability
under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute.

This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no
quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or
subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission,
constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing
Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once
that faith is lost or compromised, the struggle may well be abandoned.

We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas
corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at
the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is indemnification
for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their constitutional rights that they
invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present suit, the judicial inquiry barred by
the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by
the President, petitioners will be able to do by the mere expedient of altering the title of their action."

We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy
petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension
does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention
through the writ of habeas corpus as a speedy means of obtaining his liberty.

Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article
1146 of the Civil Code by adding the following to its text:

However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or
conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention
and/or trial of the plaintiff, the same must be brought within one (1) year.

Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners'
right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered
because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to
protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment.

However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25, 1986, President Corazon C. Aquino issued
Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The
question therefore has become moot and academic.

This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondent superior be answerable for damages,
jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated?

Respondents contend that the doctrine of respondent superior is applicable to the case. We agree. The doctrine of respondent superior has been
generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship
exists between superior officers of the military and their subordinates.

Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or
person 'directly' or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the
one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or
injury caused to the aggrieved party.

By this provision, the principle of accountability of public officials under the Constitution 5 acquires added meaning and asgilrnes a larger dimension.
No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to
answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that
propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually
responsible for, the rampant violations of human rights. While it would certainly be go naive to expect that violators of human rights would easily be
deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the Civil Code makes the
persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors.

In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col.
Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their
subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as defendants on the ground that they alone 'have been
specifically mentioned and Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical violence
constitute a delict or wrong that gave rise to a cause of action. But such finding is not supported by the record, nor is it in accord with law and
jurisprudence.

Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged physical violence" which constituted delict or
wrong. Article 32 clearly specifies as actionable the act of violating or in any manner impeding or impairing any of the constitutional rights and
liberties enumerated therein, among others —

1. Freedom from arbitrary arrest or illegal detention;

2. The right against deprivation of property without due process of law;

3. The right to be secure in one's person, house, papers and effects against unreasonable searches and seizures;

4. The privacy of communication and correspondence;

5. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by
a promise of immunity or reward to make a confession, except when the person confessing becomes a state witness.

The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs' constitutional rights and liberties mentioned in
Article 32 of the Civil Code were violated and impaired by defendants. The complaint speaks of, among others, searches made without search
warrants or based on irregularly issued or substantially defective warrants; seizures and confiscation, without proper receipts, of cash and personal
effects belonging to plaintiffs and other items of property which were not subversive and illegal nor covered by the search warrants; arrest and
detention of plaintiffs without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several undisclosed places of
'safehouses" where they were kept incommunicado and subjected to physical and psychological torture and other inhuman, degrading and brutal
treatment for the purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated upon the plaintiffs
violative of their constitutional rights.

Secondly, neither can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses
within the ambit of its provisions those directly, as well as indirectly, responsible for its violation.

The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is well established in our law and jurisprudence
that a motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of the
complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others, should be considered. 7 For
this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8

Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the complaint against all the defendants, except
Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which, if admitted
hypothetically, would be sufficient to establish a cause or causes of action against all of them under Article 32 of the Civil Code.

This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente,
Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of
said plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting the respondent's motion to dismiss?

It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by 'plaintiffs, through counsel. True, the motion was
signed only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman;
Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel
for Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa.

But the body of the motion itself clearly indicated that the motion was filed on behalf of all the plaintiffs. And this must have been also the
understanding of defendants' counsel himself for when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who
signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez,
Antonio Rosales, Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.

In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiff. They needed no specific
authority to do that. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by the
adverse party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part of respondent judge to take it upon
himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by
its very language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent judge took umbrage under
a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the plaintiffs whose lawyers
did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned.

Accordingly, we grant the petition and annul and set aside the resolution of the respondent court, dated November 8, 1983, its order dated May 11,
1984 and its resolution dated September 21, 1984. Let the case be remanded to the respondent court for further proceedings. With costs against
private respondents.

SO ORDERED.

16. G.R. Nos. 103501-03 February 17, 1997

LUIS A. TABUENA, petitioner,

vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 103507 February 17, 1997

ADOLFO M. PERALTA, petitioner,

vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL
PROSECUTOR, respondents.

FRANCISCO, J.:

Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan
decision dated October 12, 1990,2 as well as the Resolution dated December 20. 19913denying reconsideration, convicting them of malversation
under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt Of having malversed the total amount
of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services
Manager, respectively, of MIAA, and were thus meted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years
and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office,

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years
and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of
TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion
temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount
malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION
PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.
 A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates
of January, 1986. Tabuena appears as the principal accused — he being charged in all three (3) cases. The amended informations in criminal case nos.
11758, 11759 and 11760 respectively read:

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within
the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and
there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the
Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation
(PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was
no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis
A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal
use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay. Philippines and within
the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and
there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager.s check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the
Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation
(PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was
no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis
A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal
 use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within
the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General
Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA),
and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and
there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB Extension Office at the Manila
International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal
use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes the Philippine
National Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-
Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum)
reiterating in black and white such verbal instruction, to wit:

Office of the President

of the Philippines
Malacanang

January
8, 1986

MEMO TO: The General Manager

 Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY
FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a
Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4,
1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS.4

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads
in full:

MEMORANDUM

For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and Request for Partial Deferment of Repayment
of PNCC's Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts
pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12

Package Contract No. 2 P11,106,600.95

2. Supplemental Contract No. 13

5,758,961.52

3. Supplemental Contract No. 14

 Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 15

1,699,862.69

5. Supplemental Contract No. 16

Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17

Package Contract No. 2 8,821,731.08

7. Supplemental Contract No. 18

Package Contract No. 2 6,110,115.75

8. Supplemental Contract No. 3

Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has
accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the
aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from
said billings which will leave a net amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation:

— Approved by Price Escalation Committee

(PEC) but pended for lack of funds P1.9 million

— Endorsed by project consultants and

currently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
——————
 Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been
paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His
Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about
30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but
could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the
excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

(Sgd.) ROBERTO V. ONGPIN

Minister5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55
Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB
extension office at the MIAA — the depository branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check was
encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took
delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same
day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any receipt for the money received

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request for a manager's
check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million.
After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena
to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all
the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

Malacanang
 Manila

January
30,
1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates:

Jan. 10 — P 25,000,000.00
Jan. 16 — 25,000,000.00
Jan. 30 — 5,000,000.00

(Sgd.) Fe Roa-Gimenez

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the normal
procedure". Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for
the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even
affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million.
On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying
with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of
MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same
belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a
total of ten (10) errors6 committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that we
acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations
commonly allege that:
 . . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriated the amount of . . . .

But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is directed to p. 17 of
the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said:

xxx xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled
thereto, either as representatives of MIAA or of the PNCC.

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take
such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the
misappropriation or malversation of P55 Million of public funds. (Emphasis supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with
intentional malversation.7

3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" 9where the Court passed upon
similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

. . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the
information was for intentional malversation, under the circumstances of this case his conviction under the first mode of
misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or
the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be
convicted of falsification through negligence, thus:
 While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor.
G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may
however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful
offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case.
Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in
effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but
merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man
would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the
cases decided by this Tribunal.

xxx xxx xxx

Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the
information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute
the crime proved. . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this
deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly,
having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with
imprudence for a charge of criminal intent is incompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of
malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those
involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence
sustains the latter mode of perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent
on the part of the accused. Thus, in the two (2) vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court
stressed that:

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such
negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum,
nisi mens sit rea — a crime is not committed if the mind of the person performing the act complained of is innocent.

The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public documents and estafa:
 Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be
no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical
mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the
act is innocent or if there is no wrongful purpose.13 The accused may thus always introduce evidence to show he acted in good faith and that
he had no intention to convert.14 And this, to our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum we are swayed to give credit to his claim of
having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or
considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be
faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was
undeniably Tabuena's superior — the former being then the President of the Republic who unquestionably exercised control over government
agencies such as the MIAA and PNCC.15 In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such
as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such
kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor
any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to
an order issued by a superior for some lawful purpose."16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is
the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government
agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that
the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same
time recognizing some of the PNCC's escalation billings which would result in making payable to PNCC the amount of P34.5 million
out of existing MIAA Project funds.

Thus:

"xxx xxx xxx

To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation billings, may we
 request for His Excellency's approval for a deferment of repayment of PNCC's advances to the extent of P30 million
corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been
officially recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This
amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million."

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million
(Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been
officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was based) they
would only be for a sum of up to P34.5 million. 17

xxx xxx xxx

V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was actually
baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1", however, speaks
of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5 million. The order to withdraw the
amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of
January 7, 1985 could not therefore serve as a basis for the President's order to withdraw P55 million. 18

Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him criminally liable. What is more significant to
consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena
acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to
PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that:

ATTY ANDRES
 Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA as of
December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a",
sir, P102,475.392.35

xxx xxx xxx 19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that
the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of
price increases, sir.

xxx xxx xxx 20

ATTY ANDRES

Q When you said these are accounts receivable, do I understand from you that these are due and demandable?

A Yes, sir. 21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then
there would only be a mistake of fact committed in good faith.22 Such is the ruling in "Nassif v. People"23 the facts of which, in brief, are as
follows:

Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial
document alleged to have been falsified the word "sold" by order of his principal. Had he known or suspected that his principal was
 committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no
malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain auditing rules and
regulations such as those pointed out by the Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for
Internal Control dated January 31, 1977 issued by COA)

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, "State Auditing Code of the
Philippines). In this connection, the Sandiganbayan observed that:

There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were
no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million. 25

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing
procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive
that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such
omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the
decision in "Villacorta v. People"26 where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of
malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain
government personnel of their legitimate wages leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in Good faith
mainly to government personnel, some of them working at the provincial auditor's and the provincial treasurer's offices And if
those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held
administratively or civilly liable.

Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to criminal appropriation, although
they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the
revised Manual on Certificate of Settlement and Balances — apparently made to underscore Tabuena's personal accountability, as agency
head, for MIAA funds — would all the more support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295
expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a superior officer who performs his duties with "bad
faith, malice or gross negligence"' and on a subordinate officer or employee who commits "willful or negligent acts . . . which are contrary to
 law, morals, public policy and good customs even if he acted under order or instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to
Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the fraudulent "appropriation to one's own use' of
another's property which does not necessarily mean to one's personal advantage but every attempt by one person to dispose of
the goods of another without right as if they were his own is conversion to his own use." (Terry v. Water Improvement Dist. No. 5
of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)

— At p. 207, Words and Phrases,

Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of
conversion is the usurpation of the owner 's right of property, and not the actual damages inflicted. Honesty of purpose is not a
defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

— At page 168, id.

xxx xxx xxx

The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own. They
presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to one's own use
includes not only conversion to one's personal advantage but every attempt to dispose of the property of another without right.

— People vs. Webber, 57 O.G.

p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of
malversation as if he had personally taken them and converted them to his own use.

— People vs. Luntao, 50 O.G.

p. 1182, 1183 28

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National
Construction Corporation, thru this office the sum of FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered
 the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was
Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million
since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good
faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS
Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of
public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence
shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there
is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have
acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but
not criminally liable.29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of
those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established
between Tabuena and the real embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan",31 both also involving the
crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo",
therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to
turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto
Urbina. The Court reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina without the knowledge and
participation of Acebedo. The Court said, which we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case
against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case,
nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without
the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of
embezzling the same money or any part thereof.32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one
Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence
to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector
 more senior to him. And we also adopt the Court's observation therein, that:

The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor
judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the
petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before
conviction beyond reasonable doubt may be imposed. 33

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for
which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of
P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently
lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and
bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its
face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its
execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities
then prevailing As aptly observed by Mr Justice Cruz in his dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and that the Judiciary was independent and
fearless. We know it was not: even the Supreme Court at that time was not free. This is an undeniable fact that we can not just
blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described
as our incredible credulity. 34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due process.
"Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, "is more important than securing a conviction based on a violation of
the rights of the accused."35 While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a
defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for
us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject
of assignments of error or not. 36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera. then Senior Assistant Vice
President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6)
questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor
Viernes' questions and even more than the combined total of direct and cross-examination questions asked by the counsels) After the defense opted
not to conduct any re-direct examination, the court further asked a total of ten (10) questions.37 The trend intensified during Tabuena's turn on the
witness stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor
Viernes' questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-
one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's case, the Justices,
after his cross-examination, propounded a total of forty-one (41) questions. 39

But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and
insinuation. 40 (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in
length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized
for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although
such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of
Prosecutor Viernes and the court questions).

CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits "7" and "7- a", the items here represent mostly escalation billings.
Were those escalation billings properly transmitted to MIA authorities?

A I don't have the documents right now to show that they were transmitted, but I have a letter by our President,
Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.

*AJ AMORES

*Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the
determination as to the correct amount?

A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables And, in
fact, we have been following up for payment.

*Q This determination of the escalation costs was it accepted as the correct figure by MIA ?

A I don't have any document as to the acceptance by MIA your Honor, but our company was able to get a
document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or
approval by former President Marcos.

*PJ GARCHITORENA

*Q Basically, the letter of Mr. Ongpin is to what effect?

A The subject matter is approval of the supplementary contract and request for partial deferment of payment for
MIA Development Project, your Honor.

*Q It has nothing to do with the implementation of the escalation costs?

A The details show that most of the accounts refer to our escalations, your Honor.

*Q Does that indicate the computation for escalations were already billed or you do not have any proof of that

A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed
our billings to MIA, your Honor.

*AJ AMORES

*Q Were there partial payments made by MIA an these escalation billings?

A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection
is correct, your Honor.

*PJ GARCHITORENA

*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your
company?

WITNESS

A The payments were made after December 31, 1985 but I think the payments were made before the entry of our
President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23
million; and then there was P17.8 million application against advances made or formerly given; and there were
payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual
stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million,
the remaining balance would be about P57 million.

*PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been
payments in cash ?

A Yes, your Honor.

*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?

A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.

*Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These
reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31,
1985?

WITNESS

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments were made?

A Yes, your Honor.

*AJ AMORES

*Q You said there were partial payments before of these escalation billings. Do we get it from you that there was
an admission of these escalation costs as computed by you by MIA, since there was already partial payments?
A Yes, your Honor.

*Q How were these payments made before February 1986, in case or check, if there were payments made?

A The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against
these escalation billings?

A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were
collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits
indicated on the credit side of the ledger.

*AJ AMORES

*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings.
Was the payment in cash or just credit of some sort before December 31, 1985?

A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments
in cash, your Honor.

*Q Do you know how the manner of this payment in cash was made by MIA?

A I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Subsequent thereto, we are talking merely of about P44 million?

A Yes, your Honor, as subsequent settlements.

*Q After December 31, 1985?

A Yes, your Honor.

*Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2
million of cash payment?

A Yes, your Honor.

*AJ AMORES

*Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment,
was the payment in cash or check?

A I would venture to say it was by check, your Honor.

*Q Which is the safest way to do it?

A Yes, your Honor.

"PJ GARCHITORENA
 *Q And the business way?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say
that letter concurs with the escalation billings reflected in Exhibits "7" and "7-a"?

WITNESS

A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a
confirmation of the acceptance of our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in
Exhibit "7" are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation
billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after
payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the
payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains
an amount that is part of the original contract account. What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

A The letter of Minister Ongpin refers to escalation billings, sir.

*Q As of what date?
A The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA in July and
November until December 1985. These were properly credited to the account of MIA?

WITNESS

A Yes, sir.

Q In 1986. from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by MIA for the
months of January to June 1986?

A Yes, sir.

Q And neither was the amount of P22 million remitted to PNCC by MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES
No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA?

WITNESS

A Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on
September 25, 1986.

*Q But that is already under the present administration?

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment,
or by offsets, when did these payments begin?

A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

*Q After December 31, 1985?

A There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements P23 million is just part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State
Investment bought the credit of MIA?

A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million?

A Yes, your Honor.

*Q Is there a payback agreement?

A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.

*AJ AMORES

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6,
1988, your Honor. The amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA
 Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. . . . 41

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and
that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her
office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many
occasions?

A Three times, sir.

Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?

A Yes, sir.

Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez?

A Yes, sir.

*PJ GARCHITORENA

*Q So January 30 is the date of the last delivery?

A I remember it was on the 31st of January, your Honor What happened is that, I did not notice the date placed
by Mrs. Gimenez.

Q Are you telling us that this Exhibit "3" was incorrectly dated

A Yes, your Honor.

*Q Because the third delivery was on January 31st and yet the receipt was dated January 30?

A Yes, your Honor.

*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?

A January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You did not go to Malacañang on January 30, 1986?

A Yes, sir, I did not.

Q Do you know at whose instance this Exhibit "3" was prepared?

A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last delivery?

A Yes, sir.

Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?
A Yes, sir.

Q This receipt was typewritten in Malacañang stationery. Did you see who typed this receipt?

A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.

*PJ GARCHITORENA

Q What you are saying is, you do not know who typed that receipt?

WITNESS

A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q This receipt was prepared on January 31, although it is dated January 30?

A Yes, sir, because I was there on January 31st.

Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
A In her office at Aguado, sir.

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?

A No, sir, I did not. She was inside her room.

Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and
signed?

A Yes, sir.

*AJ HERMOSISIMA

*Q So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests
for something from me. Her writing is familiar to me.

So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you
answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?

A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that
receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you,
you said you saw her signed it. Be careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"?

A Nobody, sir.

Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we
understand from you that this date January 30 is erroneous?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

*Q Why did you not ask for a receipt on the first and second deliveries?
A Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

*Q So you know that the total amount to be delivered was P55 million')

A Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.

*AJ DEL ROSARIO

"Q From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely, who handed
you this memorandum?

A Mrs. Fe Roa Gimenez, your Honor.

Q Did you ask Mrs, Fe Gimenez for what purpose the money was being asked?

A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.

*Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In
other words, why was the delivery of the money not covered by any voucher?

A The instruction to me was to give it to the Office of the President, your Honor.

*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this particular disbursement?

A I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in
payment of its obligation to another entity?

WITNESS

A No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA

*Q So the Order was out of the ordinary?

A Yes, your Honor.

*AJ DEL ROSARIO

Did you file any written protest with the manner with which such payment was being ordered?

A No, your Honor.

*Q Why not?

A Because with that instruction of the President to me, I followed, your Honor.

*Q Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this maitter with you?

A Yes, your Honor.

*Q When was that?

A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office
in cash, your Honor.

*PJ GARCHITORENA

*Q By "I OWE ", you mean the MIAA?

WITNESS

A Yes, your Honor.

*AJ DEL ROSARIO

*Q And what did you say in this discussion you had with him?

A I just said, "Yes, sir, I will do it/"

*Q Were you the one who asked for a memorandum to be signed by him?

A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on your own
accord already prepare the necessary papers and documents for the payment of that obligation?

A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your
Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the President?

A Yes, your Honor.

*Q And was that the last time also that you received such a memorandum?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be
followed instead of the regular procedure?

A No, sir.

*AJ DEL ROSARIO

*Q Why did you not ask?

A I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

*Q You said there was an "I OWE YOU"?

A Yes, your Honor.

*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.

*Q Was this payment covered by receipt from the PNCC?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?

A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and
then the mechanics will come after, your Honor.

*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q That is the former CDCP?

A Yes, your Honor.

*AJ HERMOSISIMA

*Q Why were you not made to pay directly, to the PNCC considering that you are the Manager of MIA at that
time and the PNCC is a separate corporation, not an adjunct of Malacañang?

WITNESS

A I was just basing it from the Order of Malacanang to pay PNCC through the Office of the President, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC?

A Yes, your Honor.

"Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board?

A PNCC was the one that constructed the MIA, your Honor.

*Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In
other words, who signed the contract between PNCC and MIAA?

A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT
which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred
to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your
Honor.

*Q Why did you agree to pay to Malacañang when your obligation was with the PNCC?

A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or
Malacañang was not the creditor?

A I saw nothing wrong with that because that is coming, from the President, your Honor.

*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount
through a mere receipt from the private secretary?

A I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for
sometime?

A Yes, your Honor.

*Q Prior to 1986?

A Yes, your Honor.

*Q Can you tell us when you became the Manager of MIA?

A I became Manager of MIA way back, late 1968, your Honor.

*Q Long before the MIA was constituted as an independent authority?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And by 1986, you have been running the MIA for 18 years?

WITNESS
A Yes, your Honor.

*Q And prior to your Joining the MIA, did you ever work for the government?

A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment ,with
the government?

A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government
also?

A I was also the Chairman of the Games and Amusement Board, your Honor.

*Q But you were not the executive or operating officer of the Games and Amusement Board?

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement Board?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that time?

A I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

WITNESS
A Yes, your Honor.

*Q Here, you were just a member of the Board?

A Yes, your Honor.

*Q So you were not running the commission?

A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years,
you also ran the Games and Amusement Board as its executive officer?

A Yes, your Honor.

*Q And you were a commissioner only of the Came Fowl Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor.

*Q All of us who joined the government, sooner or later, meet with our Resident COA representative?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: "Chairman
or Manager, this cannot be". And we learn later on that COA has reasons for its procedure and we learn to adopt
to them?

WITNESS

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there
is reason in this apparent madness of the COA and so we comply?

A Yes, your Honor.

*Q And more than anything else the COA is ever anxious for proper documentation and proper supporting
papers?

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

A Yes, your Honor.

*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular
credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After
almost 18 years in the government service and having had that much time in dealing with COA people, did it not
occur to you to call a COA representative and say, "What will I do here?"

A I did not, your Honor.

*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this
matter so that you will do it properly?

WITNESS

A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the
COA, your Honor.

*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for
issuance of Manager's checks and you were accommodated by the PNB Office at Nichols without any internal
documentation to justify your request for Manager's checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily
Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come
with so-called expose, is that not so?

A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would always come out with the real or imagined
scandal in the government and place it in the headline, do you recall that?

A Yes, your Honor.

*PJ GARCHITORENA

Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak
you out and banner headline it in some mosquito publications like the Malaya at that time?

WITNESS

A No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear. We are in the government and we in the
government fear the COA and we also fear the press. We might get dragged into press releases on the most
innocent thing. You believe that?

A Yes, your Honor.

*Q And usually our best defense is that these activities are properly documented?

A Yes, your Honor.

*Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado
usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official
car and then you had a back-up truck following your car?

A Yes, your Honor.

*Q Is that not quite a fearful experience to you ?

A I did not think of that at that time, your Honor.

*PJ GARCHITORENA

"Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car?

WITNESS

A We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car,
was that not a nervous experience?

A As I have said, your Honor, I never thought of that.

PJ GARCHITORENA
 Thank you very much, Mr. Tabuena. You are excused. . . . 42

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check for P5 Million
upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He
affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own
benefit said amount or any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES

Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request
for issuance of Manager's check in the amount of P5 million?

A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have
my signature because I was one of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the
issuance of Manager's checks by the PNB?

A That is the only occasion I signed, sir.

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A Yes, sir, and I think the order is part of the exhibits and based on that order, I co-signed in the request for the
issuance of Manager's check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS

A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor. This was the order and it was marked as exhibit "N".

PROS VIERNES

It was marked as Exhibit "M", your Honor.

Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?

A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of
December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00,
your Honor.

Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986, sir.

Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks
after the end of the year?

A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday
of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month
will be presented and discussed during the meeting.

*PJ GARCHITORENA

*Q This matter of preparing Financial Statement was not an annual activity but a monthly activity?

A Yes, your Honor.

*Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of
the year?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that
request?

A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I
just read it.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES
Exhibit "2" and "2-A", your Honor.

PROS VIERNES

Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB
Extension Office at Villamor?

A Yes, sir.

Q Why was it necessary for you to go with him on that occasion?

A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million
and it was placed in two (2) peerless boxes.

Q Did you actually participate in the counting of the money by bundles?

A Yes, sir.

Q Bundles of how much per bundle?

A If I remember right, the bundles consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?

A Yes, your Honor.

PROS VIERNES
Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes,

Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind
and I went back to my office at MIA.

Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon?

A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00
o'clock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of
the Manager at that time.

Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the afternoon of that date?

A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for
Malacanang.

PROS VIERNES

Q And you yourself, returned to your office at MIA?

WITNESS

A Yes, sir.

Q Until what time do you hold office at the MIA?

A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.

Q So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office at MIA?
A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?

WITNESS

A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure,
your Honor.

*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by
vouchers?

A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to
prepare a request to the PNB, then this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?

A We have a copy of the Journal Voucher, your Honor.

*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA ?

A The payment of P5 million was recorded in a Journal Voucher, your Honor.

*PJ GARCHITORENA

*Q In other words, the recording was made directly to the Journal?

WITNESS

A Yes, your Honor.

*Q There are no other separate documents as part of the application for Manager's Check?

A Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt from PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the
payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to
Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that
receipt as a supporting document to the voucher?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your Honor.

*AJ DEL ROSARIO

*Q Since the payment was made on January 31, I986, and that was very close to the election held in that year, did
you not entertain any doubt that the amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think there was any basis, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a
check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities ?

A Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request of Mr.
Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction
covered by a disbursement voucher?

WITNESS

A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal
Vouchers, or even through credit memo, your Honor.

*AJ HERMOSISIMA

*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor
of Mr. Luis Tabuena, your own manager?

A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay
PNCC through the Office of the President and it should be paid in cash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a conclusion of the witness.

*PJ GARCHITORENA

Considering that tire witness is an expert, witness may answer.

WITNESS
A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5
million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for
a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer
funds from one office to another and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA

*Q Are you saying that this transaction was made on the basis of that P.D. which you referred to?

A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order
was to pay the PNCC through the Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA
is supposed to be paid in check?

A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he
received an order coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts
earlier made in the same journal?

In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise
not recorded.

WITNESS

A Yes, your Honor.

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the
exceptional nature of the transactions?

A Yes, your Honor.

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is
properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness
stated is. . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you
might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that. . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this
particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the
order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

A Yes, your Honor, because at that time we have also a recorded liability of P27 million.

*Q we are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Manager by itself adequate with no other supporting papers, to justify the movement of funds?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch
as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of
the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing
liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of
P99.1 million, the payment of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid
obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular
order of Mr. Tabuena is an adequate basis to justify the movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that
there was this existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to
whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that
there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

WITNESS

A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President
Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President
Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is
this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

WITNESS

A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential
Decree to transfer government funds from one office to another.

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

A I think the liability was duly recorded and appropriations to pay the amount is. . . . (interrupted)

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope
that we will forget what the question is?

A No, your Honor.

*Q Are you telling us that the debts incurred by MIAA ate covered by the Appropriations Act so that the payment
of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as
you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?
ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers and different officials in any company
either government or private, which are supposed to check and balance each other, is it not?

A Yes, your Honor.

*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so
that nobody will restrain him?

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the
same purpose?

A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS
A Yes, your Honor.

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In the other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it"., if in your opinion the disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as a co-signatory, you expected to exercise your judgment as to the propriety of a particular
transactions?

A Yes, your Honor.

*Q And this is something you know by the nature of your position and because you are a Certified Public
Accountant?

A Yes, your Honor.

*AJ DEL ROSARIO

*Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were
disposed?

A Yes, your Honor.

*Q Did you submit a written protest to the manner in which such amount was being disposed of?

A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment
was upon the order of President Marcos, then I think as President he can do things which are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was
 an extra-ordinary transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your
Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. . . . 43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which
presents itself during the trial of a case over which he presides. 44 But not only should his examination be limited to asking "clarificatory"
questions, 45 the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither
interfering nor intervening in the conduct of the trial.46 Here, these limitations were not observed. Hardly in fact can one avoid the impression that
the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and
Peralta when the Justices cross-examined the witnesses, their cross- examinations supplementing those made by Prosecutor Viernes and far
exceeding the latter's questions in length. The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and
Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the
Dissenting Opinion to the effect that the majority of this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate.
A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the
court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is
very difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De
Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of
defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that
the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De
Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this
in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court
here conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely
to perform its own function of independent determination of the facts. . . .

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm
applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in
propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via
some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the
President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following
questions to Peralta:

AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did
you not entertain any doubt that the amounts were being used for some other purposes?

ATTY. ESTEBAL

With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think there was any basis, Your Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered
even relevant? What is the connection between the payment made to the President's office and the then forthcoming presidential "snap
election"? In another instance, consider the following questions of Presiding Justice Garchitorena:

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts
earlier made in the same journal?

xxx xxx xxx

*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was
otherwise not recorded.

xxx xxx xxx

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the
exceptional nature of the transactions?

xxx xxx xxx

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is
properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness
stated is . . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you
might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that . . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this
particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled may answer.

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the
order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Manager by itself adequate with no other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid
obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular
order of Mr. Tabuena is an adequate basis to justify the movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to
whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that
there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is
this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope
that we will forget what the question is?

xxx xxx xxx

*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment
of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as
you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

*Q In fact, for purposes of internal control, you have different in officers and different officials in any company
either government or private, which are supposed to check and balance each other, is it not?

*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so
that nobody will restrain him?
 *Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the
same purpose?

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it.", if in your opinion the disbursement is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular
transaction ?

*Q And this is something you know by the nature of your position and because you are a Certified Public
Accountant? 47

How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting
Opinion's focus on the distinction between the two kinds of trial to justify the Sandiganbayan's active participation in the examination of
petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized
anew that:

A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the
prosecution.48

We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a
judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should
always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is
judge in behalf of the state, for the purpose of safeguarding the interests of society. 49

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a
given case as to justify the court in so doing. . . . This court, however, has more than once said that the examination of witnesses is
the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding
judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper
questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a
judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually
not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to
be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and
assume that of an advocate. . . 50

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be
understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an
important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that
justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel. 51

The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the
conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended
examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable. 52

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear
up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in, the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual
circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect
thereto. 53

The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either one side or the other of the
pending controversy is a fundamental and essential rule of special importance in criminal cases. . . 54

Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases
speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of
one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious
reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our courts.55

Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering
this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added
assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due
process. 56
We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at
the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It must never be forgotten,
however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence
warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other
hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this
case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights, it is definitely
the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears
so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos
regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation
as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated
December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.

17.

G.R. No. 159218 March 30, 2004

SALVADOR S. ABUNADO and ZENAIDA BIÑAS ABUNADO, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Responden

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari seeks to reverse and set aside the decision 1 of the Court of Appeals in CA-G.R. No. 26135 which affirmed with
modification the decision of the Regional Trial Court, Branch 77, San Mateo, Rizal in Criminal Case No. 2803 convicting petitioner Salvador S.
Abunado of bigamy.

The records show that on September 18, 1967, Salvador married Narcisa Arceño at the Manila City Hall before Rev. Pedro Tiangco.2 In 1988 Narcisa
left for Japan to work but returned to the Philippines in 1992, when she learned that her husband was having an extra-marital affair and has left their
conjugal home.

After earnest efforts, Narcisa found Salvador in Quezon City cohabiting with Fe Corazon Plato. She also discovered that on January 10, 1989, Salvador
contracted a second marriage with a certain Zenaida Biñas before Judge Lilian Dinulos Panontongan in San Mateo, Rizal. 3

On January 19, 1995, an annulment case was filed by Salvador against Narcisa. 4 On May 18, 1995, a case for bigamy was filed by Narcisa against
Salvador and Zenaida.5

Salvador admitted that he first married Zenaida on December 24, 1955 before a municipal trial court judge in Concepcion, Iloilo and has four children
with her prior to their separation in 1966. It appeared however that there was no evidence of their 1955 marriage so he and Zenaida remarried on
January 10, 1989, upon the request of their son for the purpose of complying with the requirements for his commission in the military.

On May 18, 2001, the trial court convicted petitioner Salvador Abunado of bigamy and sentenced him to suffer imprisonment of six (6) years and one
(1) day, as minimum, to eight (8) years and one (1) day, as maximum. Petitioner Zenaida Biñas was acquitted for insufficiency of evidence.6

On appeal, the Court of Appeals affirmed with modification the decision of the trial court, as follows:

WHEREFORE, the Decision appealed from is hereby MODIFIED as to the penalty imposed but AFFIRMED in all other respects. Appreciating the
mitigating circumstance that accused is 76 years of age and applying the provisions of the Indeterminate Sentence Law, the appellant is hereby
sentenced to suffer an indeterminate prison term of two (2) years, four (4) months and one (1) day of prision correccional as Minimum to six (6)
years and one (1) day of prision mayor as Maximum. No costs.

SO ORDERED.7

Petitioner is now before us on petition for review.

First, he argues that the Information was defective as it stated that the bigamous marriage was contracted in 1995 when in fact it should have been
1989.

Indeed, an accused has the right to be informed of the nature and cause of the accusation against him. 8 It is required that the acts and omissions
complained of as constituting the offense must be alleged in the Information.9
The real nature of the crime charged is determined by the facts alleged in the Information and not by the title or designation of the offense
contained in the caption of the Information. It is fundamental that every element of which the offense is comprised must be alleged in the
Information. What facts and circumstances are necessary to be alleged in the Information must be determined by reference to the definition and
essential elements of the specific crimes.10

The question, therefore, is whether petitioner has been sufficiently informed of the nature and cause of the accusation against him, namely, that he
contracted a subsequent marriage with another woman while his first marriage was subsisting.

The information against petitioner alleges:

That in or about and sometime in the month of January, 1995 at the Municipality of San Mateo, Rizal place (sic) within the jurisdiction of this
Honorable Court, the above-named accused, having been legally married to complainant Narcisa Abunado on September 16, 1967 which has not
been legally dissolved, did then and there willfully, unlawfully and feloniously contract a subsequent marriage to Zenaida Biñas Abunado on January
10, 1989which has all the essential requisites of a valid marriage.

CONTRARY TO LAW.11

The statement in the information that the crime was committed "in or about and sometime in the month of January, 1995," was an obvious
typographical error, for the same information clearly states that petitioner contracted a subsequent marriage to Zenaida Biñas Abunado on January
10, 1989. Petitioner’s submission, therefore, that the information was defective is untenable.

The general rule is that a defective information cannot support a judgment of conviction unless the defect was cured by evidence during the trial and
no objection appears to have been raised.12 It should be remembered that bigamy can be successfully prosecuted provided all its elements concur –
two of which are a previous marriage and a subsequent marriage which possesses all the requisites for validity.13 All of these have been sufficiently
established by the prosecution during the trial. Notably, petitioner failed to object to the alleged defect in the Information during the trial and only
raised the same for the first time on appeal before the Court of Appeals.

Second, petitioner argues that Narcisa consented to his marriage to Zenaida, which had the effect of absolving him of criminal liability.

In this regard, we agree with the Court of Appeals when it ruled, thus:

x x x, while he claims that there was condonation on the part of complainant when he entered into a bigamous marriage, the same was likewise not
established by clear and convincing evidence. But then, a pardon by the offended party does not extinguish criminal action considering that a crime is
committed against the State and the crime of Bigamy is a public offense which can be denounced not only by the person affected thereby but even
by a civic-spirited citizen who may come to know the same. 14

Third, petitioner claims that his petition for annulment/declaration of nullity of marriage was a prejudicial question, hence, the proceedings in the
bigamy case should have been suspended during the pendency of the annulment case. Petitioner, in fact, eventually obtained a judicial declaration
of nullity of his marriage to Narcisa on October 29, 1999.15

A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil
case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of suspending a criminal case in view
of a prejudicial question is to avoid two conflicting decisions.16

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had
already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could
simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We
cannot allow that.17

The outcome of the civil case for annulment of petitioner’s marriage to Narcisa had no bearing upon the determination of petitioner’s innocence or
guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the
time the second marriage is contracted.18

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding.19 In this
case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage
were subsisting before the first marriage was annulled.

Finally, petitioner claims that the penalty imposed on him was improper.

Article 349 of the Revised Penal Code imposes the penalty of prision mayor for bigamy. Under the Indeterminate Sentence Law, the court shall
sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the Revised Penal Code, and the minimum term of which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense. The penalty next lower would be based on the penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the
sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it
might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.20

In light of the fact that petitioner is more than 70 years of age,21 which is a mitigating circumstance under Article 13, paragraph 2 of the Revised
Penal Code, the maximum term of the indeterminate sentence should be taken from prision mayor in its minimum period which ranges from six (6)
years and one (1) day to eight (8) years, while the minimum term should be taken from prision correccional in any of its periods which ranges from
six (6) months and one (1) day to six (6) years.

Therefore, the penalty imposed by the Court of Appeals, i.e., two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to
six (6) years and one (1) day of prision mayor, as maximum, is proper.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-G.R. CR No. 26135, finding petitioner Salvador S. Abunado guilty
beyond reasonable doubt of the crime of bigamy, and sentencing him to suffer an indeterminate penalty of two (2) years, four (4) months and one
(1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, is AFFIRMED.

Costs de oficio.

SO ORDERED.

18.

Adm. Case No. 2474 September 15, 2004

EDUARDO M. COJUANGCO, JR., complainant,

vs.
ATTY. LEO J. PALMA, respondent.

DECISION

PER CURIAM:

"The practice of law is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of
a candidate to the bar, the Rules of Court not only prescribe a test of academic preparation but require satisfactory testimonials of good moral
character. These standards are neither dispensed with nor lowered after admission: the lawyer must continue to adhere to them or else incur the
risk of suspension or removal."1

Eduardo M. Cojuangco, Jr. filed with this Court the instant complaint for disbarment against Atty. Leo J. Palma, alleging as grounds "deceit,
malpractice, gross misconduct in office, violation of his oath as a lawyer and grossly immoral conduct."

The facts are undisputed:

Complainant and respondent met sometime in the 70’s. Complainant was a client of Angara Concepcion Regala & Cruz Law Offices (ACCRA)
and respondent was the lawyer assigned to handle his cases. Owing to his growing business concerns, complainant decided to hire
respondent as his personal counsel.

Consequently, respondent’s relationship with complainant’s family became intimate. He traveled and dined with them abroad. 2 He frequented their
house and even tutored complainant’s 22-year old daughter Maria Luisa Cojuangco (Lisa), then a student of Assumptionlavvphil.net

Convent.

On June 22, 1982, without the knowledge of complainant’s family, respondent married Lisa in Hongkong. It was only the next

day that respondent informed complainant and assured him that "everything is legal." Complainant was shocked, knowing fully well that respondent
is a married man and has three children. Upon investigation, complainant found that respondent courted Lisa during their tutoring sessions.
Immediately, complainant sent his two sons to Hongkong to convince Lisa to go home to Manila and discuss the matter with the family. Lisa was
persuaded.

Complainant also came to know that: (a) on the date of the supposed marriage, respondent requested from his (complainant’s) office an airplane
ticket to and from Australia, with stop-over in Hong Kong; (b) respondent misrepresented himself as "bachelor" before the Hong Kong authorities to
facilitate his marriage with Lisa; and (c) respondent was married to Elizabeth Hermosisima and has three children, namely: Eugene Philippe, Elias
Anton and Eduardo Lorenzo.

On August 24, 1982, complainant filed with the Court of First Instance, Branch XXVII, Pasay City a petition 3 for declaration of nullity of the marriage
between respondent and Lisa, docketed as Civil Case No. Pq-0401-P. In the Decision4 dated November 2, 1982, the CFI declared the marriage null and
void ab initio.
Thereafter, complainant filed with this Court the instant complaint 5 for disbarment, imputing to respondent the following acts:

"a. In grave abuse and betrayal of the trust and confidence reposed in him by complainant and his family and taking undue advantage of his
tutoring sessions with Maria Luisa, respondent secretly courted her. The great disparity in intelligence, education, age, experience and
maturity between Maria Luisa and respondent gave the latter an overwhelming moral ascendancy over Maria Luisa as to overcome her
scruples and apprehensions about respondent’s courtship and advances, considering that he is a married man with three (3) children;

b. Respondent courted Maria Luisa with persistence and determination and even pursued her in her travels abroad under false pretenses
that he was traveling on official business for complainant. To break down the final resistance of Maria Luisa and assuage her pangs of guilt,
he made representations that there was no legal impediment whatsoever to his marrying;

c. With his moral ascendancy over Maria Luisa and his misrepresentation that there was no legal impediment or prohibition to his
contracting a second marriage, respondent succeeded in inducing and beguiling her into marrying him. Without complying with the
requirements of Philippine law that he should first obtain a judicial declaration of nullity of his marriage to Elizabeth H. Palma and that the
"advice" of Maria Luisa’s parents should first be obtained she being only twenty-two (22) years of age, respondent succeeded in contracting
marriage with her in Hongkong on June 22, 1982 by falsely representing himself before the Hongkong authorities that he is a ‘bachelor.’ x x
x."

Respondent filed a motion to dismiss6 on the ground of lack of cause of action. He contended that the complaint fails to allege acts constituting
deceit, malpractice, gross misconduct or violation of his lawyer’s oath. There is no allegation that he acted with "wanton recklessness, lack of skill or
ignorance of the law" in serving complainant’s interest. Anent the charge of grossly immoral conduct, he stressed that he married complainant’s
daughter with "utmost sincerity and good faith" and that "it is contrary to the natural course of things for an immoral man to marry the woman he
sincerely loves."

In the Resolution7 dated March 2, 1983, we referred the case to the Office of the Solicitor General (OSG) for investigation, report and
recommendation. Former Assistant Solicitor General Oswaldo D. Agcaoili conducted the investigation.

Meanwhile, on December 28, 1983, the First Division of this Court issued in G.R. No. 64538 8 a Resolution9 (a)setting aside the CFI Decision dated
November 2, 1982 in Civil Case No. Pq–0401-P declaring the marriage between respondent and Lisa null and void ab initio; and (b) remanding the
case to the CFI for proper proceeding and determination. To this date, the records fail to disclose the outcome of this case.

On March 19, 1984, respondent filed with the OSG an Urgent Motion to Suspend Proceedings10 on the ground that the final outcome of Civil Case
No. Pq–0401-P poses a prejudicial question to the disbarment proceeding. It was denied.

Respondent sought refuge in this Court through an Urgent Motion for Issuance of a Restraining Order.11 In the Resolution dated December 19, 1984,
we enjoined the OSG from continuing the investigation of the disbarment proceedings. 12

Thereafter, the case was referred to the Integrated Bar of the Philippines Commission on Bar Discipline. On October 19, 1998, Commissioner Julio C.
Elamparo issued the following order:

"Considering the length of time that this case has remained pending and as a practical measure to ease the backlog of this Commission,
the parties shall within ten (10) days from notice, manifest whether or not they are still interested in prosecuting this case or supervening
events have transpired which render this case moot and academic or otherwise, this case shall be deemed closed and terminated."13

In his Manifestation,14 complainant manifested and confirmed his continuing interest in prosecuting his complaint for disbarment against
respondent.

On the other hand, respondent sought several postponements of hearing on the ground that he needed more time to locate vital documents in
support of his defense. The scheduled hearing of December 4, 2001 was reset for the last time on January 24, 2002, with a warning that should he
fail to appear or present deposition, the case will be deemed submitted for resolution.15 Respondent again failed to appear on January 24, 2002;
hence, the case was considered submitted for resolution.16

On March 20, 2003, Investigating Commissioner Milagros V. San Juan submitted a Report and Recommendation finding respondent guilty of grossly
immoral conduct and violation of his oath as a lawyer. She recommended that respondent be suspended from the practice of law for a period of
three (3) years. Thus:

"The main issue to be resolved in this case is whether or not respondent committed the following acts which warrant his disbarment:

a) Grave abuse and betrayal of the trust and confidence reposed in him by complainant;

b) His misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage;

c) The acts of respondent constitute deceit, malpractice, gross misconduct in office, grossly immoral conduct and violation of his
oath as a lawyer.
 Respondent admits that he married Maria Luisa in Hongkong representing himself as a bachelor, however, he claimed that the marriage
certificate stated a condition no different from term "spinster" with respect to Luisa.

There is no question that respondent as a lawyer well versed in the law knew fully well that in marrying Maria Luisa he was entering into a
bigamous marriage defined and penalized under Article 349 of the Revised Penal Code. The respondent betrayed the trust reposed in him
by complainant. He was treated as part of the family and was allowed to tutor Maria Luisa.

For the foregoing reasons, it is submitted that respondent committed grossly immoral conduct and violation of his oath as a lawyer, and it is
recommended that respondent be suspended from the practice of law for a period of three (3) years.

SO ORDERED."

The IBP Board of Governors adopted and approved the above Report and Recommendation, but it reduced respondent’s penalty to only one (1) year
suspension.

Except for the penalty, we affirm the IBP’s Report and Recommendation.

At the outset, it must be stressed that the law profession does not prescribe a dichotomy of standards among its members. There is no distinction as
to whether the transgression is committed in the lawyer’s professional capacity or in his private life. This is because a lawyer may not divide his
personality so as to be an attorney at one time and a mere citizen at another.17 Thus, not only his professional activities but even his private life,
insofar as the latter may reflect unfavorably upon the good name and prestige of the profession and the courts, may at any time be the subject of
inquiry on the part of the proper authorities.18

Respondent claims that he had served complainant to the best of his ability. In fact, the complaint does not allege that he acted with "wanton
recklessness, lack of skill and ignorance of the law."

While, complainant himself admitted that respondent was a good lawyer, 19 however, professional competency alone does not make a lawyer a
worthy member of the Bar. Good moral character is always an indispensable requirement.

The ringing truth in this case is that respondent married Lisa while he has a subsisting marriage with Elizabeth Hermosisima. The Certification 20 from
the Local Civil Registrar of Cebu City shows that he married Elizabeth on December 19, 1971 at Cardial’s Private Chapel, Cebu City. On the other
hand, the Certificate of Marriage21 from the Deputy Registrar of Marriages, Hong Kong, proves respondent’s subsequent marriage with Lisa on July 9,
1982. That Elizabeth was alive at the time of respondent’s second marriage was confirmed on the witness stand by Atty. Victor P. Lazatin, Elizabeth’s
classmate and family friend.22

Undoubtedly, respondent’s act constitutes grossly immoral conduct, a ground for disbarment under Section 27, Rule 138 of the Revised Rules of
Court. He exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. In particular, he made a mockery of
marriage which is a sacred institution demanding respect and dignity. His act of contracting a second marriage is contrary to honesty, justice,
decency and morality.23

This is not the first occasion that we censure immorality. Thus, we have somehow come up with a common definition of what constitutes immoral
conduct, i.e., "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and
respectable members of the community."24Measured against this definition, respondent’s act is manifestly immoral. First, he abandoned his lawful
wife and three children. Second, he lured an innocent young woman into marrying him. And third, he misrepresented himself as a "bachelor" so he
could contract marriage in a foreign land.

Our rulings in the following cases are relevant:

1) In Macarrubo vs. Macarrubo,25 respondent entered into multiple marriages and then resorted to legal remedies to sever them. There, we
ruled that "[S]uch pattern of misconduct by respondent undermines the institutions of marriage and family, institutions that this society
looks to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for
the strengthening of our nation as a whole." As such, "there can be no other fate that awaits respondent than to be disbarred."

(2) In Tucay vs. Tucay,26 respondent contracted marriage with another married woman and left complainant with whom he has been
married for thirty years. We ruled that such acts constitute "a grossly immoral conduct and only indicative of an extremely low regard for
the fundamental ethics of his profession," warranting respondent’s disbarment.

(3) In Villasanta vs. Peralta,27 respondent married complainant while his first wife was still alive, their marriage still valid and subsisting. We
held that "the act of respondent of contracting the second marriage is contrary to honesty, justice, decency and morality." Thus, lacking the
good moral character required by the Rules of Court, respondent was disqualified from being admitted to the bar.

(4) In Cabrera vs. Agustin,28 respondent lured an innocent woman into a simulated marriage and thereafter satisfied his lust. We held that
respondent failed to maintain that degree of morality and integrity, which at all times is expected of members of the bar. He is, therefore,
disbarred from the practice of law.

(5) In Toledo vs. Toledo,29 respondent abandoned his wife, who supported him and spent for his law education, and thereafter cohabited
 with another woman. We ruled that he "failed to maintain the highest degree of morality expected and required of a member of the bar."
For this, respondent was disbarred.

(6) In Obusan vs. Obusan, Jr.,30 respondent abandoned his lawful wife and child and resumed cohabitation with his former paramour. Here,
we ruled that "abandoning one’s wife and resuming carnal relations with a former paramour, a married woman," constitute grossly immoral
conduct warranting disbarment.

The circumstances here speak of a clear case of betrayal of trust and abuse of confidence. It was respondent’s closeness to the complainant’s family
as well as the latter’s complete trust in him that made possible his intimate relationship with Lisa. When his concern was supposed to be
complainant’s legal affairs only, he sneaked at the latter’s back and courted his daughter. Like the proverbial thief in the night, he attacked when
nobody was looking. Moreover, he availed of complainant’s resources by securing a plane ticket from complainant’s office in order to marry the
latter’s daughter in Hongkong. He did this without complainant’s knowledge. Afterwards, he even had the temerity to assure complainant that
"everything is legal." Clearly, respondent had crossed the limits of propriety and decency.

Respondent justified his conduct by professing he really loved Lisa and since he married her, he cannot be charged with immorality. His reasoning
shows a distorted mind and a brazen regard on the sanctity of marriage. In such relationship, the man and the woman are obliged to live together,
observe mutual respect and fidelity.31 How could respondent perform these obligations to Lisa when he was previously married to Elizabeth? If he
really loved her, then the noblest thing he could have done was to walk away.

Respondent’s culpability is aggravated by the fact that Lisa was just a 22-year old college student of Assumption Convent and was under
psychological treatment for emotional immaturity.32 Naturally, she was an easy prey.

Anent respondent’s argument that since the validity of his marriage to Lisa has not yet been determined by the court with finality, the same poses a
prejudicial question to the present disbarment proceeding. Suffice it to say that a subsequent judgment of annulment of marriage has no bearing to
the instant disbarment proceeding. As we held in In re Almacen,33 a disbarment case is sui generis for it is neither purely civil nor purely criminal but
is rather an investigation by the court into the conduct of its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an
administrative case against him,34 or if an affidavit of withdrawal of a disbarment case does not affect its course, 35 then the judgment of annulment
of respondent’s marriage does not also exonerate him from a wrongdoing actually committed. So long as the quantum of proof --- clear
preponderance of evidence --- in disciplinary proceedings against members of the bar is met, then liability attaches. 36

The interdict upon lawyers, as inscribed in Rule 1.01 of the Code of Professional Responsibility, is that they "shall not engage in unlawful, dishonest,
immoral or deceitful conduct." This is founded on the lawyers’ primordial duty to society as spelled out in Canon 1 which states:
 "CANON 1 – A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes."

It is not by coincidence that the drafters of our Code of Professional Responsibility ranked the above responsibility first in the enumeration. They
knew then that more than anybody else, it is the lawyers -- the disciples of law -- who are most obliged to venerate the law. As stated in Ex Parte
Wall:37

"Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in
the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bonds of society, argues recreancy to his
position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic."

Corollarily, the above responsibility is enshrined in the Attorney’s Oath which every lawyer in the country has to take before he is allowed to practice.

In sum, respondent committed grossly immoral conduct and violation of his oath as a lawyer. The penalty of one (1) year suspension recommended
by the IBP is not commensurate to the gravity of his offense. The bulk of jurisprudence supports the imposition of the extreme penalty of
disbarment.

WHEREFORE, respondent Leo J. Palma is found GUILTY of grossly immoral conduct and violation of his oath as a lawyer, and is
hereby DISBARRED from the practice of law.

Let respondent’s name be stricken from the Roll of Attorneys immediately. Furnish the Bar Confidant, the Integrated Bar of the Philippines and all
courts throughout the country with copies of this Decision.

SO ORDERED.

19.

[G.R. NO. 171435 : July 30, 2008]

ANTHONY T. REYES, Petitioner, v. PEARLBANK SECURITIES, INC., Respondent.

DECISION
 CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Anthony T. Reyes prays for the reversal of the 26
October 2005 Decision1 and 7 February 2006 Resolution2 of the Court of Appeals in "Anthony T. Reyes v. Secretary of the Department of Justice and
Pearlbank Securities, Inc.," docketed as CA-G.R. SP No. 90006, ruling that the Secretary of the Department of Justice (DOJ) did not commit grave
abuse of discretion in finding probable cause to charge petitioner Reyes with the crime of falsification of commercial and private documents.

Pearlbank Securities, Inc. (PEARLBANK) is a domestic corporation engaged in the securities business.

Westmont Investment Corporation (WINCORP) is a domestic corporation operating as an investment house. Among the services rendered by
WINCORP to its clients in the ordinary course of its business as an investment house is the arranging and brokering of loans. Petitioner Anthony T.
Reyes was formerly the Vice President for Operations and Administration of WINCORP. 3

PEARLBANK alleged that in March 2000, it received various letters from persons who invested in WINCORP demanding payment of their matured
investments, which WINCORP failed to pay, threatening legal action. According to these investors, WINCORP informed them that PEARLBANK was
the borrower of their investments. WINCORP alleged that it was unable to repay its investors because of the failure of its fund borrowers, one of
which was PEARLBANK, to pay the loans extended to them by WINCORP. As proof of their claims, the investors presented Confirmation
Advices,4 Special Powers of Attorney and Certifications signed and issued to them by WINCORP.

The period covered by these Confirmation Advices was from 25 January 2000 to 3 April 2000, with said Confirmation Advices bearing the words
"Borrower: PEARLBANK Securities, Inc."

PEARLBANK denied having any outstanding loan obligation with WINCORP or its investors.

In reaction to the accusations against it, PEARLBANK immediately wrote Antonio T. Ong, WINCORP President, demanding an explanation as to how
and why PEARLBANK was made to appear to be involved in its transactions. According to PEARLBANK, it did not get any reply from WINCORP.

PEARLBANK alleged that WINCORP's acts of stating and making it appear in several Confirmation Advices, Special Powers of Attorney and
Certifications that PEARLBANK was the borrower of funds from the lenders/investors of WINCORP constituted falsification of commercial and private
documents.

While PEARLBANK admitted obtaining loans from WINCORP, it alleged that these accounts were settled by way of an offsetting arrangement. Thus,
the promissory notes executed by PEARLBANK covering such loans were allegedly all stamped "cancelled." It denied obtaining loans from WINCORP
or its lenders/investors from the period 11 December 1998 to 18 January 1999 due to the fact that there was "no valid and effective grant of a credit
facility" in favor of PEARLBANK during the said period.

On 3 April 2000, PEARLBANK served on WINCORP a final demand letter asking for a full and accurate accounting of the identities and investments of
the lenders/investors and the alleged loan obligations of PEARLBANK, with the supporting records and documents including the purported
Confirmation Advices.

WINCORP, however, still did not heed the demands of PEARLBANK and failed to produce the loan agreement documents it allegedly executed with
the latter.

On 7 April 2000, PEARLBANK filed two complaints with the Securities and Exchange Commission (SEC) against Ong and several John Does for full and
accurate accounting of the investments of WINCORP and of PEARLBANK's alleged loan obligations to WINCORP and/or its investors. The cases were
docketed as SEC Cases No. 04-00-6590 and 04-00-6591.

On 6 September 2000, Juanita U. Tan, Treasurer of PEARLBANK, filed a complaint on behalf of PEARLBANK for falsification by private individuals of
commercial and private documents before the DOJ. The case was docketed as I.S. No. 2000-1491. Named respondents in the complaint were the
officers and directors of WINCORP, to wit: petitioner herein Anthony T. Reyes, Antonio T. Ong, Gilda C. Lucena, 5Nemesio R. Briones, Loida C.
Tamundong,6 Eric R.G. Espiritu, and John or Jane Does.

In answer to the complaint of PEARLBANK in I.S. No. 2000-1491, WINCORP, through Ong, explained that among the services offered by WINCORP
was the arranging and/or brokering of loans for clients. Upon application of PEARLBANK, WINCORP agreed to arrange and/or broker loans on behalf
of the former. Thus, in a meeting of its Board of Directors on 28 November 1995, WINCORP approved a credit line in favor of PEARLBANK in the
amount of P250M.

According to Ong, pursuant to this Credit Line Agreement, PEARLBANK was able to obtain, through the brokerage of WINCORP, loans from several
lenders/investors in the total amount of P324,050,474.24 for which PEARLBANK issued promissory notes from 1995 to 1996. The Credit Line
Agreement was renewed for another year or up to 25 October 1996. PEARLBANK made payments, leaving a balance of around P300M on the loan.
On 28 April 1997, the Credit Line Agreement was amended and the credit line was increased from P250M to P850M. On 11 December 1998,
PEARLBANK arranged with WINCORP to transact additional loans from lenders in the amount of P200M, the proceeds of which were deposited in the
account of Farmix Fertilizers, Inc., a corporation wholly owned and/or controlled by Manuel Tankiansee and Juanita Uy Tan. Following the previous
procedure, WINCORP prepared the promissory notes corresponding to the additional loans, totaling P200M, and forwarded said documents to
PEARLBANK. WINCORP maintains, however, that the promissory notes were never returned. WINCORP issued the standard Confirmation Advices to
the lenders of PEARLBANK for said loans. Although the promissory notes were stamped "terminated" or "cancelled," the renewal promissory notes
were not sent back/returned by PEARLBANK to WINCORP.

From the foregoing, WINCORP asserted that PEARLBANK was accurately designated as the borrower from the lenders/investors. The Confirmation
Advices, Special Powers of Attorney, and Certifications it issued to the lenders/investors, indicating PEARLBANK as the borrower, were prepared in
good faith and in accordance with the records of WINCORP. Hence, the officers and directors named as respondents in I.S. No. 2000-1491 who
prepared, signed, and reviewed such documents denied having falsified them.

On 2 January 2001, Ong, Lucena, Briones, Tamundong and Espiritu filed a Motion to Admit Attached Memorandum before the DOJ, asserting that the
criminal complaint against them should be dismissed for lack of probable cause or suspended due to the existence of a prejudicial question involving
the SEC cases.

On 18 June 2001, Prosecutor Estherbella N. Rances of the DOJ Task Force on Financial Fraud issued a Review Resolution recommending the filing of
Informations for falsification of commercial and private documents by private individuals against petitioner Reyes, Ong, Briones, Lucena, Espiritu, and
Tamundong.

On 21 August 2001, prior to the expiry of the period to file a motion for reconsideration, Informations for Falsification of Commercial and Private
Documents under paragraphs 1 and 2, Article 172,7 in relation to paragraph 2 of Article 1718 of the Revised Penal Code, were filed against petitioner,
Ong, Briones, Lucena, Espiritu, and Tamundong before Branch 2 of the Metropolitan Trial Court (MTC) of Manila apparently relying on the Rances
resolution dated 18 June 2001. The cases were docketed as Criminal Cases No. 365255-88.

On 28 August 2001, petitioner filed a motion for reconsideration of the 18 June 2001 Resolution of Prosecutor Rances. He raised the issues earlier
brought up by Ong, Briones, Lucena, Espiritu and Tamundong, contending there was lack of probable cause and that there existed a prejudicial
question. The other respondents in the criminal complaint filed a separate joint motion for reconsideration on 4 September 2001.9

Meanwhile, on 13 November 2001, petitioner filed an Urgent Motion to Suspend Proceedings and to Defer Arraignment of Accused before the MTC
of Manila where the criminal cases were pending, leading to the cancellation of the arraignment scheduled for 21 November 2001.

Citing no cogent reason to modify or reverse the assailed 18 June 2001 Resolution, Prosecutor Rances denied the two motions for reconsideration
filed by petitioner and his co-respondents in a Resolution issued on 13 December 2001.

Ong, Briones, Lucena, Espiritu, and Tamundong appealed the 13 December 2001 Resolution 10 to the Office of the DOJ Secretary while petitioner filed
a Petition for Review with the same office.11
On 27 June 2003, Undersecretary (Usec.) Ma. Merceditas N. Gutierrez (representing the Office of the DOJ Secretary) resolved the appeal and Petition
for Review in a joint Resolution reversing the Resolutions dated 18 June 2001 and 13 December 2001 of Prosecutor Rances. In ruling that the
complaint in I.S. No. 2000-1491 should be dismissed, Usec. Gutierrez took into consideration the following:

(1) That the confirmation advices were mere renewals forming part of the earlier loans of PEARLBANK under an existing credit line agreement;

(2) That [petitioner, Ong, Lucena, Briones, Tamundong, and Espiritu] are mere employees of WINCORP performing perfunctory functions in good
faith;

(3) That Confirmation Advices are not commercial documents;

(4) That SEC Case No. 0400-6590, is a prejudicial question, involving issues which are intimately related to the issues in the present case.

Thus, the Office of the DOJ Secretary ordered the Office of the Chief State Prosecutor to move for the withdrawal of the Informations from the
MTC.12

PEARLBANK filed a motion for reconsideration with the Office of the DOJ Secretary for the setting aside of its 27 June 2003 Resolution, with a
motion13 praying that DOJ Usec. Gutierrez inhibit herself from the proceedings.

On 4 December 2003, DOJ Secretary Simeon Datumanong issued a Resolution granting the motion for reconsideration of PEARLBANK. 14

In effect, DOJ Secretary Datumanong reversed the 27 June 2003 Resolution of Usec. Gutierrez and reinstated the 18 June 2001 Resolution of
Prosecutor Rances finding probable cause to charge petitioner and other respondents in I.S. No. 2000-149, except for Eric R. G. Espiritu, for the crime
of falsification of commercial and private documents:

WHEREFORE, the resolution dated 27 June 2003 (Resolution No. 283, Series of 2003) is hereby REVERSED and SET ASIDE. The Chief State Prosecutor's
Review Resolution dated 18 June 2001 is hereby REINSTATED, with the MODIFICATION that respondent ERIC R.G. ESPIRITU should be excluded. The
Chief State Prosecutor is directed to cause the amendment of the informations filed against said respondent Espiritu by excluding him therefrom,
and to report the action taken hereon within ten (10) days from receipt hereof. 15

In said Resolution, DOJ Secretary Datumanong explained that while Eric R. G. Espiritu was one of the signatories of the Certifications, considering the
nature of the certifications in question and his duties and functions, it would appear that he was entitled to rely on the Certifications and
representations of those in the Treasury group. The DOJ Secretary ratiocinated that there was no prejudicial question involved, since the existence of
an outstanding obligation on the part of PEARLBANK under its Credit Line with WINCORP was irrelevant and immaterial to the falsification cases, and
shall not be determinative of the outcome of said falsification cases. Explaining further, he said that it was clear from the admissions of respondents
therein that the loans reflected in the Confirmation Advices, which appeared to be new loans, were matched against the alleged outstanding loans of
complainant.

On 8 January 2004, petitioner filed a motion for reconsideration of the 4 December 2003 Resolution of the DOJ Secretary. 16

On the other hand, his co-respondents filed a separate motion for reconsideration on 16 January 2004. 17

On 1 March 2005, DOJ Secretary Datumanong denied both motions for reconsideration.

Petitioner sought recourse with the Court of Appeals via a Petition for Certiorari under Rule 65 of the 1997 Revised Rules of Court, docketed as CA-
G.R. No. 90006. Petitioner sought the nullification of the 4 December 2003 DOJ Resolution based on the following arguments:

(a) petitioner did not make any untruthful statements in the Confirmation Advices since [PEARLBANK] allegedly has an outstanding obligation with
Westmont Investment Corporation;

(b) WINCORP's Confirmation Advices subject of the falsification case were not commercial documents; andcralawlibrary

(c) a prejudicial question exists warranting the suspension of proceedings in the falsification case.

During the pendency of the petition for certiorari with the Court of Appeals, petitioner filed an Urgent Ex Parte Motion to Suspend Further
Proceedings before the same MTC Court on 11 July 2005, contending that Criminal Case Nos. 365255 to 88 should be suspended, since he had filed a
pending Petition for Certiorari under Rule 65 of the Rules of Court with the Court of Appeals to annul the 4 December 2003 and 1 March 2005
Resolution of the DOJ.

On 26 October 2005, the Court of Appeals promulgated its Decision dismissing CA-G.R. No. 90006. The appellate court found that the DOJ Secretary
did not commit grave abuse of discretion in finding that there was probable cause for holding that petitioner was guilty of the offense charged. It
noted that the Informations were already filed against petitioner before Branch 2 of the MTC of the National Capital Region (NCR), and petitioner's
liability for the crime of falsification of commercial and private documents could best be threshed out at the trial on the merits of the case.

On 7 February 2006, the Court of Appeals issued a Resolution denying petitioner's motion for reconsideration.
Petitioner thus filed this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, making the following assignment of errors:

I.

THE COURT OF APPEALS SANCTIONED A DEPARTURE FROM ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT ALLOWED THE
ARBITRARY AND CAPRICIOUS EXERCISE BY THE DOJ OF ITS POWER TO DETERMINE PROBABLE CAUSE. THE DOJ COMMITTED GRAVE ABUSE OF
DISCRETION IN ISSUING ITS 4 DECEMBER 2003 AND 1 MARCH 2005 RESOLUTIONS.

II.

THE CONSTITUTION EXPRESSLY PROVIDES THAT NO PERSON SHALL BE DENIED THE EQUAL PROTECTION OF THE LAWS. HOWEVER, THE COURT OF
APPEALS COUNTENANCED THE DOJ'S VIOLATION OF SUCH CONSTITUTIONAL RIGHT OF PETITIONER WHEN THE DOJ DISMISSED THE CHARGES
AGAINST MR. ERIC R. G. ESPIRITU AND YET FOUND PROBABLE CAUSE AGAINST HEREIN PETITIONER EVEN AS BOTH ARE SIMILARLY SITUATED.

III.

THE COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT UPHELD THE DOJ RESOLUTIONS
WHICH DID NOT ONLY FAIL TO CONSIDER THE EVIDENCE ON RECORD. LIKEWISE, THE COURT OF APPEALS SANCTIONED THESE RESOLUTIONS WHICH
WERE NOT IN ACCORD WITH EXISTING LAW AND SUPREME COURT DECISIONS ON PREJUDICIAL QUESTIONS.

IV.

THE COURT OF APPEALS COMMITTED SERIOUS LEGAL ERROR AND DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS
WHEN IT UPHELD THE DOJ'S CLASSIFICATION OF THE CONFIRMATION ADVICES SUBJECT OF THE CASE A QUO AS COMMERCIAL DOCUMENTS, A
CLASSIFICATION WHICH IS CONTRARY TO ITS OWN EARLIER DETERMINATION AND THAT OF THE DOJ.

Essentially, petitioner avers that his rights to due process and equal protection of the law were jeopardized when DOJ Secretary Datumanong issued
his 4 December 2004 Resolution affirming the finding of probable cause against him and the other respondents in I.S. No. 2000-1491, and reversing
the earlier 27 June 2003 Resolution of his Office, which ordered the dismissal of the complaint of PEARLBANK, there being no new evidence
presented between the two Resolutions. He further accuses the DOJ Secretary of violating his right to the equal protection of the law by dismissing
the charges against Espiritu, another respondent in I.S. No. 2000-1491, but not those against him. He insists that the charges against him must be
dismissed, arguing that he and Espiritu are similarly situated.
Petitioner prays that the Court nullify and set aside the Court of Appeals Decision dated 26 October 2005 and Resolution dated 7 February 2006 in
CA-G.R. No. 90006, there being no probable cause to charge him with the crimes of falsification of commercial and private documents. He further
alleges that the proceedings in Criminal Cases No. 365255-88 should be suspended pending resolution of the two SEC Cases which have now been
transferred to the jurisdiction of, and are now pending before, the Regional Trial Courts of Makati on the ground that the these cases constitute a
prejudicial question.

This Court finds the present petition to be without merit and accordingly denies the same.

The issues presented by petitioner may be narrowed down to two:

(a) whether or not there is probable cause to file an information for falsification of private and commercial documents against petitioner;
andcralawlibrary

(b) whether the two cases before the SEC are prejudicial questions which have to be resolved before the criminal cases may proceed.

Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief
that a crime has been committed and that respondent is probably guilty thereof. 18 The term does not mean "actual and positive cause" nor does it
import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. 19

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed by the suspects. It need
not be based on clear and convincing evidence of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt.20 In determining probable cause, the average man weighs facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense.21 What is determined is whether there is
sufficient ground to engender a well-founded belief that a crime has been committed, and that the accused is probably guilty thereof and should be
held for trial. It does not require an inquiry as to whether there is sufficient evidence to secure a conviction.

These findings of probable cause fall within the jurisdiction of the prosecutor or fiscal in the exercise of executive power, which the courts do not
interfere with unless there is grave abuse of discretion. The determination of its existence lies within the discretion of the prosecuting officers after
conducting a preliminary investigation upon complaint of an offended party. Thus, the decision whether to dismiss a complaint or not is dependent
upon the sound discretion of the prosecuting fiscal. 22 He may dismiss the complaint forthwith, if he finds the charge insufficient in form or substance
or without any ground. Or he may proceed with the investigation if the complaint in his view is sufficient and in proper form. To emphasize, the
determination of probable cause for the filing of information in court is an executive function, one that properly pertains at the first instance to the
public prosecutor and, ultimately, to the Secretary of Justice, who may direct the filing of the corresponding information or move for the dismissal of
the case.23 Ultimately, whether or not a complaint will be dismissed is dependent on the sound discretion of the Secretary of Justice. 24 And unless
made with grave abuse of discretion, findings of the Secretary of Justice are not subject to review. 25

For this reason, the Court considers it sound judicial policy to refrain from interfering in the conduct of preliminary investigations and to leave the
Department of Justice ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the
prosecution of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justice's findings and conclusions on the
matter of probable cause except in clear cases of grave abuse of discretion.26

The restraint exercised by this Court in interfering with the determination of probable cause by the prosecutor, unless there is grave abuse of
discretion, is only consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final.
There are, however, exceptions to this rule, 27 none of which are obtaining in the case now before us.

In the present case, petitioner was not able to convince this Court to deviate from the general rule of non-interference. The Court of Appeals did not
err in dismissing petitioner's application for a writ of certiorari, absent grave abuse of discretion on the part of the DOJ Secretary in finding probable
cause against him for the falsification of commercial and private documents.

In D.M. Consunji, Inc. v. Esguerra,28 we defined grave abuse of discretion in this wise:

By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be
so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in
contemplation of law.

Contrary to the claims of petitioner, the Court of Appeals did not perfunctorily or mechanically deny his Petition for Certiorari therein. A
comprehensive review of the assailed Decision of the appellate court readily reveals that it considered and judiciously passed upon all the arguments
presented by both parties before finally decreeing the dismissal of petitioner's Petition for Certiorari.

Although no new evidence was presented by the parties from the time the first Resolution was issued by DOJ Usec. Gutierrez on 7 June 2003 until
the second Resolution was issued by DOJ Secretary Datumanong on 4 December 2004, the DOJ Secretary is not precluded from making inferences of
fact and conclusions of law which may be different from, contrary to, or even entirely abandoning, the findings made by DOJ Usec. Gutierrez
although they were both faced with the same evidence and arguments.
First, it must be noted that DOJ Secretary Datumanong issued his Resolution of 4 December 2004 upon the filing by PEARLBANK of a motion for
reconsideration of the Resolution dated 7 June 2003 of DOJ Usec. Gutierrez entirely dismissing its complaint. The 4 December 2004 Resolution,
therefore, of DOJ Secretary Datumanong was the result of his acting on, and granting of, the motion for reconsideration of PEARLBANK. The purpose
of a motion for reconsideration is precisely to request the court or quasi-judicial body to take a second look at its earlier judgment and correct any
errors it may have committed therein.

Second, it cannot be said that DOJ Secretary Datumanong's final ruling is entirely without basis when, in fact, Reviewing Prosecutor Rances had
earlier made a similar finding on 18 June 2001 that there was probable cause to believe that petitioner and the other respondents in I.S. No. 2000-
1491 were guilty of falsification of commercial and private documents, based on essentially the same evidence and arguments.

And finally, DOJ Secretary Datumanong exhaustively presented in his 4 December 2004 the legal and factual reasons for his reversal of the 27 June
2003 Resolution of DOJ Usec. Gutierrez, which negated petitioner's assertion of capriciousness, whimsicality, or arbitrariness on his part.

Equally without merit is petitioner's assertion that upon dismissal of the charges against his co-respondent Espiritu, those against him must likewise
be dismissed. Petitioner insists that if the charges against an accused rest upon the same evidence used to charge a co-accused, the dismissal of the
charges against the former should benefit the latter.

This is flawed reasoning, a veritable non sequitur.

Suffice it to say that it is indubitably within the discretion of the prosecutor to determine who must be charged with what crime or for what offense.
In Webb v. De Leon29 in which the petitioners questioned the non-inclusion of Alfaro in the Information for rape with homicide filed against them,
despite Alfaro's alleged conspiratorial participation in the crime charged, this Court pronounced that:

[T]he prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws
are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute
vests the prosecutor with a wide range of discretion - - -the discretion of whether, what and whom to charge, the exercise of which depends on a
smorgasboard of factors which are best appreciated by prosecutors x x x.

While the right to equal protection of the law requires that litigants are treated in an equal manner by giving them the same rights under similar
circumstances,30 it may not be perversely used to justify desistance by the authorities from prosecution of a criminal case, just because not all of
those who are probably guilty thereof were charged.

Petitioner further insists that the proceedings in SEC Cases No. 04-00-6590 and No. 04-00-6591, now pending before the RTC of Makati31 (civil cases),
warrant the suspension of Criminal Cases No. 365255-88. (criminal cases).

We disagree.

Under Rule 111 of the Revised Rules of Court, a criminal action may be suspended upon the pendency of a prejudicial question in a civil action, to
wit:

Sec. 6. Suspension by reason of prejudicial question. - A petition for suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action
has been filed in court for trial, the petition to suspend shall be filed in court for trial, and shall be filed in the same criminal action at any time before
the prosecution rests.

A prejudicial question is defined as one which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal.32

The prejudicial question must be determinative of the case before the court, but the jurisdiction to try and resolve the question must be lodged in
another court or tribunal. It is a question based on a fact distinct and separate from the crime, but so intimately connected with it that it determines
the guilt or innocence of the accused; and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related
to those upon which the criminal prosecution would be based, but also that in the resolution of the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined.33

It comes into play generally in a situation in which a civil action and a criminal action are both pending and there exists in the former an issue which
must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of the accused in the criminal case.34

The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. Based on Section 7 of the same rule, it has two
essential elements:

Sec. 7. Elements of prejudicial question. - The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar
or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed.
In Sabandal v. Tongco,35 this Court had the opportunity to further expound on the resolution of prejudicial questions in this manner:

If both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question
would likely exist, provided the other element or characteristic is satisfied. It must appear not only that the civil case involves the same facts upon
which the criminal prosecution would be based, but also that the resolution of the issues raised in the civil action would be necessarily determinative
of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in
the criminal action based on the same facts, or there is no necessity "that the civil case be determined first before taking up the criminal case,"
therefore, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can,
according to law, proceed independently of each other.

There is no prejudicial question here.

We note that the Informations filed in the criminal cases charge petitioner and his other co-accused with falsification of commercial and private
documents under paragraph 1 of Article 172, in relation to paragraph 2 of Article 171 of the Revised Penal Code; and paragraph 2 of Article 172, in
relation to paragraph 2 of Article 171 of the Revised Penal Code, in signing and/or issuing the questioned Confirmation Advices, Special Powers of
Attorney and Certifications on behalf of WINCORP, stating therein that PEARLBANK owed the third parties (lenders and investors). Each of the
Informations36alleged that the therein named accused:

x x x confederating and conspiring together, did then and there willfully, unlawfully and feloniously prepare, execute and sign a Confirmation Advice
of WINCORP x x x to make it appear in the said commercial document that PEARLBANK SECURITIES, INC., a corporation legally established, is a
borrower of WINCORP, having allegedly secured and granted a loan in the amount of x x x when in truth and in fact, the said accused well knew that
PEARLBANK SECURITIES, INC. had not secured nor had been granted said loan on the date above-mentioned, and having falsified said document in
the manner stated, the said accused issued a copy of the said document, which has not been notarized before a notary public or other person legally
authorized to do so, the accused issued the said document to, and was received by one Tiu K. Tiac to the damage and prejudice of PEARLBANK
SECURITIES, INC., represented by its Treasurer and Director Juanita U. Tan.

The principal issue to be resolved in the criminal cases is whether or not petitioner committed the acts referred to in the Informations, and whether
or not these would constitute falsification of commercial and private documents under the law.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

In contrast, the issues to be resolved in SEC Case No. 04-00-6591 are as follows:

(1) whether or not Tankiansee is entitled to the accounting and disclosure pursuant to Section 74, Tile VII of the Corporation Code of the Philippines;
(2) whether or not Tankiansee is entitled to be furnished copies of the records or documents demanded from WINCORP;

(3) whether or not WINCORP is liable to Tankiansee for damages.

SEC Case No. 04-00-6590 involves the following issues:

(1) whether or not PEARLBANK has loan obligations with WINCORP or its stockholders;

(2) whether or not the subject Confirmation Advices and other related documents should be declared to be without force and effect or if PEARLBANK
is entitled to be relieved of the legal effects thereof;

(3) whether or not defendants therein are liable for damages to PEARLBANK as a consequence of this alleged fraudulent scheme. 37

A cursory reading of the above-mentioned issues would show that, although apparently arising from the same set of facts, the issues in the criminal
and civil cases are clearly different from one another. Furthermore, the issues in the civil cases are not determinative of the issues in the criminal
cases.

Petitioner particularly calls attention to the purported prejudicial issue in the civil cases: whether PEARLBANK has outstanding loan obligations to
WINCORP or its stockholders/investors. Although said issue may be related to those in the criminal cases instituted against petitioner, we actually
find it immaterial to the resolution of the latter.

That PEARLBANK does have outstanding loans with WINCORP or its stockholders/investors is not an absolute defense in, and would not be
determinative of the outcome of, the criminal cases. Even if the RTC so rules in the civil cases, it would not necessarily mean that these were the very
same loan transactions reflected in the Confirmation Advices, Special Powers of Attorney and Certifications issued by WINCORP to its
stockholders/investors, totally relieving petitioner and his other co-accused from any criminal liability for falsification. The questioned documents
specifically made it appear that PEARLBANK obtained the loans during the first four months of the year 2000. Hence, in the criminal cases, it is not
enough that it be established that PEARLBANK has outstanding loans with WINCORP or its stockholders/investors, but also that these loans were
acquired by PEARLBANK as WINCORP made it to appear in the questioned documents it issued to its stockholders/investors. This only demonstrates
that the resolution of the two civil cases is not juris et de jure determinative of the innocence or guilt of the petitioner in the criminal cases.

Finally, we note that the criminal cases were already instituted and pending before the MTC. Petitioner would have the opportunity to present the
arguments and evidence in his defense in the course of the trial of said cases which will now proceed by virtue of this Decision.
WHEREFORE, premises considered, the instant Petition for Review on Certiorari is DENIED. The Decision dated 26 October 2005 and Resolution dated
7 February 2006 of the Court of Appeals in CA-G.R. No. 90006 are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

20.

G.R. No. 172060 September 13, 2010

JOSELITO R. PIMENTEL, Petitioner,

vs.
MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals, promulgated on 20 March 2006, in CA-G.R. SP No. 91867.

The Antecedent Facts

The facts are stated in the Court of Appeals’ decision:

On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent) filed an action for frustrated parricide against Joselito R. Pimentel
(petitioner), docketed as Criminal Case No. Q-04-130415, before the Regional Trial Court of Quezon City, which was raffled to Branch 223 (RTC
Quezon City).

On 7 February 2005, petitioner received summons to appear before the Regional Trial Court of Antipolo City, Branch 72 (RTC Antipolo) for the pre-
trial and trial of Civil Case No. 04-7392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito Pimentel) for Declaration of Nullity of Marriage under
Section 36 of the Family Code on the ground of psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion to suspend the proceedings before the RTC Quezon City on the ground of the existence of a
prejudicial question. Petitioner asserted that since the relationship between the offender and the victim is a key element in parricide, the outcome of
Civil Case No. 04-7392 would have a bearing in the criminal case filed against him before the RTC Quezon City.

The Decision of the Trial Court

The RTC Quezon City issued an Order dated 13 May 20053 holding that the pendency of the case before the RTC Antipolo is not a prejudicial question
that warrants the suspension of the criminal case before it. The RTC Quezon City held that the issues in Criminal Case No. Q-04-130415 are the
injuries sustained by respondent and whether the case could be tried even if the validity of petitioner’s marriage with respondent is in question. The
RTC Quezon City ruled:

WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings On the [Ground] of the Existence of a Prejudicial Question is, for lack
of merit, DENIED.

SO ORDERED.4

Petitioner filed a motion for reconsideration. In its 22 August 2005 Order, 5 the RTC Quezon City denied the motion.

Petitioner filed a petition for certiorari with application for a writ of preliminary injunction and/or temporary restraining order before the Court of
Appeals, assailing the 13 May 2005 and 22 August 2005 Orders of the RTC Quezon City.

The Decision of the Court of Appeals

In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The Court of Appeals ruled that in the criminal case for frustrated
parricide, the issue is whether the offender commenced the commission of the crime of parricide directly by overt acts and did not perform all the
acts of execution by reason of some cause or accident other than his own spontaneous desistance. On the other hand, the issue in the civil action for
annulment of marriage is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The Court of Appeals
ruled that even if the marriage between petitioner and respondent would be declared void, it would be immaterial to the criminal case because prior
to the declaration of nullity, the alleged acts constituting the crime of frustrated parricide had already been committed. The Court of Appeals ruled
that all that is required for the charge of frustrated parricide is that at the time of the commission of the crime, the marriage is still subsisting.

Petitioner filed a petition for review before this Court assailing the Court of Appeals’ decision.
 The Issue

The only issue in this case is whether the resolution of the action for annulment of marriage is a prejudicial question that warrants the suspension of
the criminal case for frustrated parricide against petitioner.

The Ruling of this Court

The petition has no merit.

Civil Case Must be Instituted

Before the Criminal Case

Section 7, Rule 111 of the 2000 Rules on Criminal Procedure 6 provides:

Section 7. Elements of Prejudicial Question. - The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the subsequent criminal action and (b) the resolution of such issue determines whether or not the
criminal action may proceed.

The rule is clear that the civil action must be instituted first before the filing of the criminal action. In this case, the Information7 for Frustrated
Parricide was dated 30 August 2004. It was raffled to RTC Quezon City on 25 October 2004 as per the stamped date of receipt on the Information.
The RTC Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial on 14 February 2005. Petitioner was served summons in Civil Case No.
04-7392 on 7 February 2005.8 Respondent’s petition9 in Civil Case No. 04-7392 was dated 4 November 2004 and was filed on 5 November 2004.
Clearly, the civil case for annulment was filed after the filing of the criminal case for frustrated parricide. As such, the requirement of Section 7, Rule
111 of the 2000 Rules on Criminal Procedure was not met since the civil action was filed subsequent to the filing of the criminal action.

Annulment of Marriage is not a Prejudicial Question

in Criminal Case for Parricide

Further, the resolution of the civil action is not a prejudicial question that would warrant the suspension of the criminal action.

There is a prejudicial question when a civil action and a criminal action are both pending, and there exists in the civil action an issue which must be
preemptively resolved before the criminal action may proceed because howsoever the issue raised in the civil action is resolved would be
determinative of the guilt or innocence of the accused in the criminal case. 10 A prejudicial question is defined as:

x x x one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to
another tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt
or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those
upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined.11

The relationship between the offender and the victim is a key element in the crime of parricide, 12 which punishes any person "who shall kill his
father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse."13 The relationship between the
offender and the victim distinguishes the crime of parricide from murder 14 or homicide.15 However, the issue in the annulment of marriage is not
similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not
determinative of the guilt or innocence of the accused.

The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether petitioner is psychologically incapacitated to
comply with the essential marital obligations. The issue in parricide is whether the accused killed the victim. In this case, since petitioner was charged
with frustrated parricide, the issue is whether he performed all the acts of execution which would have killed respondent as a consequence but
which, nevertheless, did not produce it by reason of causes independent of petitioner’s will. 16 At the time of the commission of the alleged crime,
petitioner and respondent were married. The subsequent dissolution of their marriage, in case the petition in Civil Case No. 04-7392 is granted, will
have no effect on the alleged crime that was committed at the time of the subsistence of the marriage. In short, even if the marriage between
petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was
still married to respondent.1avvphi1

We cannot accept petitioner’s reliance on Tenebro v. Court of Appeals17 that "the judicial declaration of the nullity of a marriage on the ground of
psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned x x x."
First, the issue in Tenebro is the effect of the judicial declaration of nullity of a second or subsequent marriage on the ground of psychological
incapacity on a criminal liability for bigamy. There was no issue of prejudicial question in that case. Second, the Court ruled in Tenebro that "[t]here is
x x x a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences."18 In fact, the Court
declared in that case that "a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment
insofar as the State’s penal laws are concerned."19

In view of the foregoing, the Court upholds the decision of the Court of Appeals. The trial in Criminal Case No. Q-04-130415 may proceed as the
resolution of the issue in Civil Case No. 04-7392 is not determinative of the guilt or innocence of petitioner in the criminal case.

WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision of the Court of Appeals in CA-G.R. SP No. 91867.

SO ORDERED.