3.

G.R. No. 167011 April 30, 2008

SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ, petitioners,

vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.

DECISION

CHICO-NAZARIO, J.:

This treats of the Petition for Review on Certiorari with a prayer for the issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction filed by petitioners Spouses Carlos S.
Romualdez and Erlinda R. Romualdez seeking to annul and set aside the Resolutions, dated 11
June 20041 and 27 January 20052 of the Commission on Elections (COMELEC) in E.O. Case No.
2000-36. In the Resolution of 11 June 2004, the COMELEC En Banc directed the Law Department to
file the appropriate Information with the proper court against petitioners Carlos S. Romualdez and
Erlinda Romualdez for violation of Section 10(g) and (j)3 in relation to Section 45(j)4 of Republic Act
No. 8189, otherwise known as The Voter’s Registration Act of 1996.5 Petitioners’ Motion for
Reconsideration thereon was denied.

The factual antecedents leading to the instant Petition are presented hereunder:

On 12 July 2000, private respondent Dennis Garay, along with Angelino Apostol6 filed a Complaint-
Affidavit7 with the COMELEC thru the Office of the Election Officer in Burauen, Leyte, charging
petitioners with violation of Section 261(y)(2)8 and Section 261(y)(5)9 of the Omnibus Election
Code, similarly referred to as Batas Pambansa Blg. 881; and Section 1210 of Republic Act No. 8189.

Private respondent deposed, inter alia, that: petitioners (SPS Romualdez) are of legal ages and
residents of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City; on 9 May
2000 and 11 May 2000, petitioners Carlos S. Romualdez and Erlinda R. Romualdez, applied for
registration as new voters with the Office of the Election Officer of Burauen, Leyte, as evidenced by
Voter Registration Record Nos. 42454095 and 07902952, respectively; in their sworn applications,
petitioners made false and untruthful representations in violation of Section 1011 of Republic Act
Nos. 8189, by indicating therein that they are residents of 935 San Jose Street, Burauen, Leyte,
when in truth and in fact, they were and still are residents of 113 Mariposa Loop, Mariposa Street,
Bagong Lipunan ng Crame, Quezon City, and registered voters of Barangay Bagong Lipunan ng
Crame, District IV, Quezon City, Precinct No. 4419-A, as evidenced by Voter Registration Record
Nos. 26195824 and 26195823; and that petitioners, knowing fully well said truth, intentionally and
willfully, did not fill the blank spaces in said applications corresponding to the length of time which they
have resided in Burauen, Leyte. In fine, private respondent charged petitioners, to wit:

Respondent-spouses, Carlos Sison Romualdez and Erlinda Reyes Romualdez committed and
consummated election offenses in violation of our election laws, specifically, Sec. 261,
paragraph (y), subparagraph (2), for knowingly making any false or untruthful statements
relative to any data or information required in the application for registration, and of Sec.
261, paragraph (y), subparagraph (5), committed by any person who, being a registered
voter, registers anew without filing an application for cancellation of his previous
registration, both of the Omnibus Election Code (BP Blg. 881), and of Sec. 12, RA 8189
(Voter Registration Act) for failure to apply for transfer of registration records due to change of
residence to another city or municipality."12
The Complaint-Affidavit contained a prayer that a preliminary investigation be conducted by the
COMELEC, and if the evidence so warrants, the corresponding Information against petitioners be filed
before the Regional Trial Court (RTC) for the prosecution of the same.

PETITIONERS (SPS. ROMUALDEZ) filed a Joint Counter-Affidavit with Motion to Dismiss13 dated 2
April 2001. They contended therein that they did not make any false or untruthful statements in
their application for registration. They avowed that they intended to reside in Burauen, Leyte, since
the year 1989. On 9 May 2000, they took actual residence in Burauen, Leyte, by leasing for five
(5) years, the house of Juanito and Fe Renomeron at No. 935, San Jose Street in Burauen, Leyte.
On even date, the Barangay District III Council of Burauen passed a Resolution of Welcome,
expressing therein its gratitude and appreciation to petitioner Carlos S. Romualdez for
choosing the Barangay as his official residence.14

On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal, COMELEC Investigating Officer,

issued a Resolution, recommending to the COMELEC Law Department (Investigation and
Prosecution Division), the filing of the appropriate Information against petitioners, disposing, thus:

PREMISES CONSIDERED, the Law Department (Investigation and Prosecution Division),

RECOMMENDS to file the necessary information against Carlos Sison Romualdez before
the proper Regional Trial Court for violation of Section 10 (g) and (j) in relation to Section 45
(j) of Republic Act 8189 and to authorize the Director IV of the Law Department to designate
a Comelec Prosecutor to handle the prosecution of the case with the duty to submit periodic
report after every hearing of the case.15

On 11 June 2004, the COMELEC En Banc found no reason to depart from the recommendatory
Resolution of 28 November 2003, and ordered, viz:

WHEREFORE, premises considered, the Law Department is hereby directed to file the
appropriate information with the proper court against respondents CARLOS S. ROMUALDEZ
AND ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in relation to Section 45 (j)
of the Republic Act No. 8189.16

Petitioners filed a Motion for Reconsideration thereon.

Acting on the Motion, the COMELEC found no cogent reason to disturb the assailed En
Banc Resolution of 11 June 2004,17 rationalizing, thus:

However, perusal of the records reveal (sic) that the arguments and issues raised in the Motion
for Reconsideration are merely a rehash of the arguments advanced by the Respondents
in [their] Memorandum received by the Law Department on 17 April 2001, the same [w]as
already considered by the Investigating Officer and was discussed in her recommendation
which eventually was made as the basis for the En Banc’s resolution.

As aptly observed by the Investigating Officer, the filing of request for the cancellation and
transfer of Voting Registration Record does not automatically cancel the registration
records. The fact remains that at the time of application for registration as new voter of the
herein Respondents on May 9 and 11, 2001 in the Office of Election Officer of Burauen, Leyte
their registration in Barangay 4419-A, Barangay Bagong Lipunan ng Crame Quezon City
was still valid and subsisting.18

On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of the COMELEC filed with the
RTC, Burauen, Leyte, separate Informations against petitioner Carlos S. Romualdez19 for violation of
Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, and against petitioner Erlinda R.
Romualdez20 for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189,
subsequently docketed as Crim. Case No. BN-06-03-4185 and Crim. Case No. BN-06-03-4183,
respectively. Moreover, separate Informations for violation of Section 10(j), in relation to Section 45(j)
of Republic Act No. 8189 were filed against petitioners.21

PETITIONERS: come to us via the instant Petition, submitting the following arguments:

RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS DISCRETION

AMOUNTING TO LACK OF OR IN EXCESS OF ITS JURISDICTION; and

II

COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT PREMISED ITS RESOLUTION

ON A MISAPPREHENSION OF FACTS AND FAILED TO CONSIDER CERTAIN RELEVANT
FACTS THAT WOULD JUSTIFY A DIFFERENT CONCLUSION.22

On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance of Writ of Preliminary
Injunction and to Cite for Indirect Contempt,23 alleging that two separate Informations, both dated 12
January 2006, were filed with the RTC by the COMELEC against petitioner Carlos S. Romualdez for
violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No.
BN-06-03-9184; and for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189,
in Criminal Case No. BN-06-03-9185. Similarly, the Motion alleged that the COMELEC filed with the
RTC, two separate Informations, both dated 12 January 2006, against petitioner Erlinda R.
Romualdez, charging her with the same offenses as those charged against petitioner Carlos S.
Romualdez, and thereafter, docketed as Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.

On 20 June 2006, this Court issued a Resolution24 denying for lack of merit petitioners’ Motion
Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt.

We shall now resolve, in seriatim, the arguments raised by petitioners.

PETITIONERS contend that the election offenses for which they are charged by private respondent
are entirely different from those which they stand to be accused of before the RTC by the COMELEC.
According to petitioners, private respondent’s complaint charged them for allegedly violating, to wit:
1) Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code, and 2) Section 12 of the
Voter’s Registration Act; however, the COMELEC En Banc directed in the assailed Resolutions,
that they be charged for violations of Section 10(g) and (j), in relation to Section 45(j) of the Voter’s
Registration Act. Essentially, petitioners are of the view that they were not accorded due process
of law. Specifically, their right to refute or submit documentary evidence against the new
charges which COMELEC ordered to be filed against them. Moreover, petitioners insist that
Section 45(j) of the Voter’s Registration Act is vague as it does not refer to a definite provision of
the law, the violation of which would constitute an election offense; hence, it runs contrary to
Section 14( No person shall be held to answer for a criminal offense without due process of
law.)25 and Section 14(In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have compulsory process to secure
the attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable.),26 Article III of the 1987
Constitution.

We are not persuaded.

First. The Complaint-Affidavit filed by private respondent with the COMELEC is couched in a language
which embraces the allegations necessary to support the charge for violation of Section 10(g) and (j),
in relation to Section 45(j) of Republic Act No. 8189.

A reading of the relevant laws is in order, thus:

Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as follows:

SEC. 10 – Registration of Voters. - A qualified voter shall be registered in the permanent

list of voters in a precinct of the city or municipality wherein he resides to be able to vote in
any election. To register as a voter, he shall personally accomplish an application form for
registration as prescribed by the Commission in three (3) copies before the Election Officer on
any date during office hours after having acquired the qualifications of a voter.

The application shall contain the following data:

xxxx

(g) Periods of residence in the Philippines and in the place of registration;

xxxx

(j) A statement that the application is not a registered voter of any precinct;

The application for registration shall contain three (3) specimen signatures of the applicant,
clear and legible rolled prints of his left and right thumbprints, with four identification size copies
of his latest photograph, attached thereto, to be taken at the expense of the Commission.

Before the applicant accomplishes his application for registration, the Election Officer shall
inform him of the qualifications and disqualifications prescribed by law for a voter, and
thereafter, see to it that the accomplished application contains all the data therein required and
that the applicant’s specimen signatures, fingerprints, and photographs are properly affixed in
all copies of the voter’s application.

Moreover, Section 45(j) of the same Act, recites, thus:

SEC. 45. Election Offense. – The following shall be considered election offenses under this
Act:

xxxx

(j) Violation of any of the provisions of this Act.

Significantly, the allegations in the Complaint-Affidavit which was filed with the Law Department of the
COMELEC, support the charge directed by the COMELEC En Banc to be filed against petitioners with
the RTC. Even a mere perusal of the Complaint-Affidavit would readily show that Section 10 of
Republic Act No. 8189 was specifically mentioned therein. On the matter of the acts covered by
Section 10(g) and (j), the Complaint-Affidavit, spells out the following allegations, to wit:

5. Respondent-spouses made false and untruthful representations in their applications

(Annexes "B" and "C") in violation of the requirements of Section 10, RA 8189 (The Voter’s
Registration Act):

5.1 Respondent-spouses, in their sworn applications (Annexes "B" and "C", claimed to
be residents of 935 San Jose [S]treet, Burauen, Leyte, when in truth and in fact, they
were and still are residents of 113 Mariposa Loop, Mariposa [S]treet, Bagong
Lipunan ng Crame, Quezon City and registered voters of Barangay Bagong Lipunan
ng Crame, District IV, Quezon City, Precinct No. 4419-A, a copy of the Certification
issued by Hon. Emmanuel V. Gozon, Punong Barangay, Bagong Lipunan ng Crame,
Quezon City is hereto attached and made an integral part hereof, as Annex "D";

5.2 Respondent-spouses knowing fully well said truth, intentionally and willfully,
did not fill the blank spaces in their applications (Annexes "B" and "C")
corresponding to the length of time they have resided in Burauen, Leyte;

6. Respondent-spouses, in (sic) all intents and purposes, were and still are residents and
registered voters of Quezon City, as evidenced by Voter Registration Record Nos.
26195824 and 26195823, respectively; photocopies of which are hereto attached as Annexes
"E" and "F"[.] Likewise, attached is a "Certification" (Annex "G") of Ms. Evelyn B. Bautista,
Officer-in-Charge of the Office of the Election Officer, Fourth District, Quezon City, dated May
31, 2000, together with a certified copy of the computer print-out of the list of voters of Precinct
No. 4419-A (Annex "G-1" ) containing the names of voters Carlos Romualdez and Erlinda
Reyes Romualdez. The Certification reads as follows:

"THIS IS TO CERTIFY that as per office record MR. CARLOS ROMUALDEZ and MS.
ERLINDA REYES ROMUALDEZ are registered voters of Barangay Bagong Lipunan
ng Crame, District IV, Quezon City, Precinct Number 4419A with voters affidavit serial
nos. 26195824 and 26195823, respectively.

This certification is issued for whatever legal purpose it may serve."

7. Respondent-spouses, registered as new voters of the Municipality of Burauen, Leyte, [in

spite of] the fact that they were and still are, registered voters of Quezon City as early as June
22, 1997;

7.1 That, Double Registration is an election offense.

A person qualified as a voter is only allowed to register once.

If a person registers anew as a voter in spite of a subsisting registration, the new

application for registration will be disapproved. The registrant is also liable not
only for an election offense of double registration, but also for another election
offense of knowingly making any false or untruthful statement relative to any data
or information required in the application for registration.
 In fact, when a person applies for registration as a voter, he or she fills up a Voter
Registration Record form in his or her own handwriting, which contains a Certification
which reads:

"I do solemnly swear that the above statements regarding my person are true and
correct; that I possess all the qualifications and none of the disqualifications of a voter;
that the thumbprints, specimen signatures and photographs appearing herein are
mine; and that I am not registered as a voter in any other precinct."27

PETITIONERS CANNOT BE SAID TO HAVE BEEN DENIED DUE PROCESS on the claim that the
election offenses charged against them by private respondent are entirely different from those for
which they stand to be accused of before the RTC, as charged by the COMELEC. In the first place,
there appears to be no incongruity between the charges as contained in the Complaint-Affidavit
and the Informations filed before the RTC, notwithstanding the denomination by private respondent of
the alleged violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the Omnibus
Election Code and Section 12 of Republic Act No. 8189. Evidently, the Informations directed to be filed
by the COMELEC against petitioners, and which were, in fact, filed with the RTC, were based on the
same set of facts as originally alleged in the private respondent’s Complaint-Affidavit.

Petitioners buttress their claim of lack of due process by relying on the case of Lacson v.
Executive Secretary.28Citing Lacson, petitioners argue that the real nature of the criminal charge
is determined by the actual recital of facts in the Complaint or Information; and that the object of
such written accusations was to furnish the accused with such a description of the charge against
him, as will enable him to make his defense. Let it be said that, in Lacson, this court resolved the
issue of whether under the allegations in the subject Informations therein, it is the Sandiganbayan or
the Regional Trial Court which has jurisdiction over the multiple murder case against therein petitioner
and intervenors. In Lacson, we underscored the elementary rule that the jurisdiction of a court is
determined by the allegations in the Complaint or Information, and not by the evidence
presented by the parties at the trial.29 Indeed, in Lacson, we articulated that the real nature of the
criminal charge is determined not from the caption or preamble of the Information nor from the
specification of the provision of law alleged to have been violated, they being conclusions of
law, but by the actual recital of facts in the Complaint or Information.30

Petitioners’ reliance on Lacson, however, does not support their claim of lack of due process
because, as we have said, the charges contained in private respondent’s Complaint-Affidavit
and the charges as directed by the COMELEC to be filed are based on the same set of facts. In
fact, the nature of the criminal charges in private respondent’s Complaint-Affidavit and that of the
charges contained in the Informations filed with the RTC, pursuant to the COMELEC Resolution En
Banc are the same, such that, petitioners cannot claim that they were not able to refute or submit
documentary evidence against the charges that the COMELEC filed with the RTC. Petitioners
were afforded due process because they were granted the opportunity to refute the allegations
in private respondent’s Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-
Affidavit, petitioners filed a Joint Counter-Affidavit with Motion to Dismiss with the Law Department of
the COMELEC. They similarly filed a Memorandum before the said body. Finding that due process
was not dispensed with under the circumstances in the case at bar, we agree with the stance of the
Office of the Solicitor General that petitioners were reasonably apprised of the nature and description
of the charges against them. It likewise bears stressing that preliminary investigations were
conducted whereby petitioners were informed of the complaint and of the evidence submitted
against them. They were given the opportunity to adduce controverting evidence for their
defense. In all these stages, petitioners actively participated.
The instant case calls to our minds Orquinaza v. People,31 wherein the concerned police officer
therein designated the offense charged as sexual harassment; but, the prosecutor found that
there was no transgression of the anti-sexual harassment law, and instead, filed an Information
charging therein petitioner with acts of lasciviousness. On a claim that there was deprivation of
due process, therein petitioner argued that the Information for acts of lasciviousness was void
as the preliminary investigation conducted was for sexual harassment. The court held that the
designation by the police officer of the offense is not conclusive as it is within the competence of
the prosecutor to assess the evidence submitted and determine therefrom the appropriate
offense to be charged.

Accordingly, the court pronounced that the complaint contained all the allegations to support the
charge of acts of lasciviousness under the Revised Penal Code; hence, the conduct of another
preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because
the complainant would only be presenting the same facts and evidence which have already been
studied by the prosecutor.32 The court frowns upon such superfluity which only serves to delay the
prosecution and disposition of the criminal complaint.33

Second. Petitioners would have this court declare Section 45(j) of Republic Act No. 8189 vague, on
the ground that it contravenes the fair notice requirement of the 1987 Constitution, in particular, Section
14(1) and Section 14(2), Article III of thereof. Petitioners submit that Section 45(j) of Republic Act No.
8189 makes no reference to a definite provision of the law, the violation of which would constitute an
election offense.

We are not convinced.

The void-for-vagueness doctrine holds that a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its application.34 However,
this Court has imposed certain limitations by which a criminal statute, as in the challenged law at bar,
may be scrutinized. This Court has declared that facial invalidation35 or an "on-its-face" invalidation of
criminal statutes is not appropriate.36 We have so enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 37 thus:

WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated 11 June 2004 and 27 January
2005 of the COMELEC En Banc are AFFIRMED. Costs against petitioners.

SO ORDERED.

4. G.R. No. 156296 November 12, 2012

DENNIS Q. MORTEL, Petitioner,

vs.
SALVADOR E. KERR, Respondent.

DECISION

BERSAMIN, J.:

When the incompetence, ignorance or inexperience of counsel is so great and the resulting error
is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day
in court, the client deserves another chance to present his case. Hence, the litigation may be
reopened for that purpose.

The client seeks the reversal of the resolution dated September 5, 2002,1 whereby the Court of
Appeals (CA) denied his petition for review on certiorari from the order of the Regional Trial Court,
Branch 72, in Olongapo City (RTC) issued in Civil Case No. 279-0-2000. He pleads that the rules
of procedure should be liberally construed in his case, and that he should not be bound by the
negligence and errors of his previous counsels that deprived him of his property without
being afforded his day in court.

Antecedents

On July 19, 2000, respondent Salvador E. Kerr (Kerr) instituted a complaint for foreclosure of
mortgage, docketed as Civil Case No. 279-0-2000, against Dennis Q. Mortel (Mortel), who duly
filed an answer on August 11, 2000 through Atty. Leonuel N. Mas (Atty. Mas) of the Public
Attorney’s Office. The pre-trial was re-set four times for various reasons, but on the fifth setting
on December 7, 2000, Mortel and Atty. Mas were not around when the case was called. On
motion of Kerr’s counsel, the RTC declared Mortel as in default and allowed Kerr to present
evidence ex parte.

On December 28, 2000, Atty. Eugenio S. Tumulak (Atty. Tumulak) filed a notice of appearance in
behalf of Mortel, but the RTC did not act on the notice of appearance.

On February 28, 2001, the RTC rendered judgment in favor of Kerr,2 disposing as follows:

WHEREFORE, judgment is hereby rendered ordering the defendant Dennis Q. Mortel to pay the
plaintiff Salvador E. Kerr within a period of not more than ninety (90) days from receipt of this
Decision the sum of P130,000.00 plus interest of P6,000.00 per month from November 1999 until
the whole obligation has been fully paid and the further sum of P20,000.00 by way of attorney’s fees
and the costs.

In default of such payment, let the house and lot described in the Deed of Real Estate Mortgage
(Exhibits "A-1" and "A-2") in the plaintiff’s complaint be sold at public auction and the proceeds
thereof applied to the aforesaid obligation and the costs of this suit.

SO ORDERED.

On March 22, 2001, Mortel, through Atty. Leopoldo C. Lacambra, Jr. (Atty. Lacambra), filed a
motion for new trial.3

On March 23, 2001, Atty. Mas filed his withdrawal of appearance.4

On April 5, 2001, the RTC denied Mortel’s motion for new trial, noting that Atty. Mas’ withdrawal
as counsel of Mortel had been filed only on March 23, 2001 and approved by the RTC on March 26,
2001. It held that considering that the records of the case showed that Atty. Mas had received the
decision on March 1, 2001, the motion for new trial had been filed out of time on March 20,
2001.5

On May 4, 2001, Mortel, this time through Atty. Tumulak, filed a verified petition for relief from
judgment under Rule 38 of the Rules of Court.6
On August 20, 2001, the RTC denied the verified petition for relief from judgment on the ground that
the petition for relief had been filed beyond the reglementary period of 60 days based on a
reckoning of the start of the period from March 1, 2001, the date when Atty. Mas received the notice
and copy of the Order,7 to wit:

x x x. Now, the petition for relief is again filed by a counsel whose Notice of Appearance has not
been acted upon. Defendant’s counsel on record received the Decision on March 1, 2001, which is
the reckoning point to count the mandatory sixty (60) days in order that a Petition for

Relief can be filed. It is elementary that notice to counsel is notice to party (People v. Midtomod,
283 SCRA 395). Hence, from March 1, 2001 up to May 4, 2001 – the filing of the Petition for Relief –
is already sixty-four (64) days which is four days beyond the period within which to file the same.
The defendant’s Counsel now reckoned the period from the time the client received the said
Decision.8

On November 14, 2001, Mortel moved for the reconsideration of the denial of his petition for
relief from judgment.9

On December 6, 2001, the RTC granted the withdrawal of Atty. Lacambra and Atty. Mas as
counsels for Mortel, and finally recognized Atty. Tumulak as the only counsel.10

On January 16, 2002, the RTC treated Mortel’s motion for reconsideration as a mere scrap of
paper and ordered it stricken from the records for failure of the counsel to serve a notice of
hearing with the motion for reconsideration.11

Mortel filed an urgent motion for reconsideration vis-à-vis the RTC’s order of January 16, 2002.12

On June 17, 2002, the RTC denied the urgent motion for reconsideration for being a second
motion for reconsideration and for being moot and academic; and granted Kerr’s ex parte
motion for the issuance of a writ of possession.13

Subsequently, the RTC issued a writ of execution on June 20, 2002,14 and Kerr was then placed
in possession of the property.

On August 26, 2002, Mortel, through Atty. Tumulak, filed in the CA a petition for review on
certiorari with prayer for the issuance of a restraining order.15

On September 5, 2002, the CA issued a resolution dismissing Mortel’s petition for review for
failing to state the specific material dates showing that the petition had been filed within the
reglementary period, in violation of Section 6(d), Rule 43 of the Rules of Court. It observed that
Mortel thereby resorted to the wrong remedy considering that he was assailing the propriety of the
RTC’s order declaring him in default, against which the proper remedy was a petition for certiorari.16

On October 14, 2002, Mortel sought the reconsideration of the denial of his petition for review.17

On November 18, 2002, the CA denied Mortel’s motion for reconsideration for lack of merit
because the defects of the petition for review were not corrected, and for availing himself of the
remedy of petition for review when he should have filed a petition for certiorari instead.18

Atty. Tumulak received the denial by the CA on December 5, 2002.19

Instead of appealing via petition for review on certiorari in the Supreme Court (SC), Mortel,
through Atty. Tumulak, filed in the CA on December 20, 2002 an urgent motion for extension of
time to appeal to the SC.20

On December 23, 2002, Mortel, by himself, sought an extension of time to file a petition for
review on certiorari.21

On January 27, 2003, the Court granted Mortel’s motion for extension with a warning that no
further extension would be given.22

On January 22, 2003, Mortel, still by himself, filed his petition for review on certiorari assailing
the CA’s dismissal of his petition for review on certiorari.

Issues

Mortel contends that:

WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS ERRED IN DENYING THE
MOTION FOR RECONSIDERATION DATED SEPTEMBER 28, 2002 FROM THE RESOLUTION
DATED SEPTEMBER 5, 2002 DISMISSING THE PETITION FOR REVIEW FILED BY THE
PETITIONER.23

Mortel prays that the Rules of Court be liberally interpreted in his favor to allow his petition
for review on certiorari despite the various lapses of his counsels resulting in the loss of his
opportunity to assail the resolutions of the RTC.

On the other hand, Kerr insists that the CA correctly dismissed the petition because the errors of
his former counsels bound Mortel.24

Accordingly, the issues to be resolved are the following:

1. Whether or not the negligence of Mortel’s previous counsels should bind him; and

2. Whether or not Mortel was deprived of his property without due process of law.

Ruling

The petition, being meritorious, is granted.

The CA found that despite the opportunity given to him to do so, Mortel’s counsel erred in
failing to state the specific material dates required by Section 6(d) of Rule 43, Rules of Court
to show that the petition for review was filed within the reglementary period; and that Mortel
resorted to the wrong remedy by filing a petition for review instead of a petition for certiorari because
he was questioning the propriety of the RTC’s order declaring him as in default.25

Mortel’s counsel committed another error when he filed his urgent motion for extension of
time to file an appeal in the CA, instead of in the SC, resulting in not stopping the running of the
period of appeal and in thereby rendering the Resolution of the CA final.
As a rule, a client is bound by his counsel’s conduct, negligence and mistake in handling a
case.26 To allow a client to disown his counsel’s conduct would render proceedings indefinite,
tentative, and subject to reopening by the mere subterfuge of replacing counsel.27

But the rule admits of exceptions. In several rulings, the Court held the client not concluded by
the negligence, incompetence or mistake of the counsel. For instance, in Suarez v. Court of
Appeals,28 the Court set aside the judgment and mandated the trial court to reopen the case for
the reception of the evidence for the defense after finding that the negligence of the therein
petitioner’s counsel had deprived her of the right to present and prove her defense. Also, in

Legarda v. Court of Appeals,29 the Court ordered restored to the petitioner her property that
had been sold at public auction in satisfaction of a default judgment resulting from the failure
of her counsel to file an answer and from counsel’s lack of vigilance in protecting her
interests in subsequent proceedings before the trial court and the CA. Lastly, in

Amil v. Court of Appeals,30 the Court declared that an exception to the rule that a client is bound by
the mistakes of his counsel is when the negligence of the counsel is so gross that the client was
deprived of his day in court, thereby also depriving the client of his property without due
process of law.

The relevant question becomes, therefore, whether the negligence of Mortel’s counsels was
so gross and palpable as to deprive him of his property without due process of law.

We hold that it was.

Mortel did not have his day in court, because he was unable to submit his evidence to
controvert the claim of Kerr about his contractual default after the RTC declared Mortel as in default
due to his counsel’s failure to appear at the fifth setting of the pre-trial. Yet, he explained that he was
only late because he arrived in court a few minutes after the case had been called. His
explanation appears plausible, considering that he had unfailingly appeared in court in the four
previous settings of the pre-trial. In view of the fact that it was his first time not to be present when
the case was called at the fifth setting of the pre-trial, the RTC could have allowed a second or a
third call instead of immediately granting his adverse party’s motion to declare him as in
default. In Leyte v. Cusi,31 the Court has admonished against precipitate orders of default because
such orders have the effect of denying a litigant the chance to be heard. Indeed, we have reminded
trial courts that although there are instances when a party may be properly defaulted, such instances
should be the exception rather than the rule and should be allowed only in clear cases of a litigant’s
obstinate refusal or inordinate neglect to comply with the orders of the court. Without such a
showing, the litigant must be given every reasonable opportunity to present his side and to refute the
evidence of the adverse party in deference to due process of law.32

Nevertheless, the negligence that actually warrants the undoing of the RTC’s decision was
serial on the part of Atty. Mas, the RTC and Atty. Tumulak.

The primary negligence occurred on the part of Atty. Mas. He did not appear at the pre-trial
despite being notified of it. What is very disturbing is that he was then an attorney in the Public
Attorney’s Office in Olongapo City whose place of work was located in the same Hall of Justice of
Olongapo City where the RTC was then sitting. Moreover, he did not offer any explanation for
his non-appearance at the pre-trial despite notice to him; nor did he take the necessary move to
protect the interest of Mortel upon learning that Mortel had been declared as in default by the
RTC. His non-appearance despite notice and his subsequent inaction for his client’s cause
manifested his indifference and lack of professionalism, and is difficult to comprehend
considering that he was the primary cause why Mortel was declared as in default by the RTC. 1âw phi 1

The RTC was equally responsible for Mortel’s dire plight. It appears that Mortel engaged Atty.
Tumulak to take over as counsel from Atty. Mas. Atty. Tumulak notified the RTC of his appearance
for Mortel on December 28, 2000. The RTC could have easily noted and acted on Atty. Tumulak’s
entry of appearance for Mortel, or, if the RTC still desired to require the submission of Atty. Mas’
withdrawal as counsel, to direct such withdrawal to be first submitted, especially after Atty. Mas filed
his withdrawal of appearance on March 23, 2001. But the RTC uncharacteristically did not take
either of such actions on the notice of appearance but proceeded to render its judgment on the
merits, a copy of which it dispatched to Atty. Mas (who received it on March 1, 2001) and to Mortel
himself (who received it on March 7, 2001). In effect, the RTC disregarded Atty. Tumulak’s notice of
his substitution of Atty. Mas as counsel of Mortel. The disregard continued for nearly a year, and the
RTC finally recognized Atty. Tumulak as the only counsel of Mortel on December 6, 2001. The
reason for the RTC’s disregard of and long-delayed action upon a matter as essential to the client
and to the administration of justice in the case as the substitution of counsel is not easy to
appreciate, especially because the RTC tendered no good reason for it.

With Atty. Tumulak left out and remaining unaware of the developments in the case because of
the RTC’s inaction on his notice of appearance, Mortel, upon receipt of the decision and feeling
abandoned again by Atty. Tumulak, his new counsel, engaged Atty. Lacambra to collaborate as his
counsel. Atty. Lacambra filed on March 20, 2001 a motion for new trial. Counting from the time when
Mortel received the copy of the decision on March 7, 2001, Mortel probably thought that he had filed
the motion for new trial within the required period. However, the RTC considered March 1, 2001 as
the reckoning date, being the date when Atty. Mas received the notice of the decision, and ruled that
Mortel’s motion for new trial was already filed beyond the prescribed period. That action of the RTC
was not prudent and circumspect, considering that the records of the case already contained since
December 28, 2000 the entry of appearance of Atty. Tumulak as replacement of Atty. Mas as
Mortel’s counsel. The RTC should have at least informed either Mortel or Atty. Tumulak or both of
them that it was either allowing or disallowing Atty. Tumulak’s entry of appearance in order to enable
Mortel to seasonably clarify his dire situation and, if necessary, even to rectify it. That prudential and
circumspect approach would have been easy for the RTC to take because the RTC became all too
aware of the neglect of Atty. Mas in protecting the interest of Mortel following the declaration of
Mortel as in default. In addition, the RTC could have reckoned the period for Mortel to bring the
motion for new trial from March 7, 2001, the date when Mortel received a copy of the decision the
RTC sent to him directly, instead of March 1, 2001, the date when Atty. Mas received the copy of the
decision, considering all the indications about Atty. Mas having neglected the interest of Mortel.

Atty. Tumulak shared the blame for the predicament of Mortel through his own series of errors
that mirrored an ignorance of the rules of procedure. There is no question that the errors
deprived Mortel of the timely means to successfully undo the adverse decision rendered by the
RTC. Atty. Tumulak’s first error was in filing a motion for reconsideration vis-à-vis the RTC’s
denial of the petition for relief from judgment without including a proper notice of hearing. He
next filed a motion for reconsideration vis-à-vis the RTC’s denial of his first motion for
reconsideration, which the RTC then denied on the ground of its being already a prohibited second
motion for reconsideration. This was another fatal error. The series of errors did not end there, for
Atty. Tumulak opted to file in the CA a petition for review on certiorari instead of a petition for
certiorari, which was the appropriate remedy due to his alleging grave abuse of discretion on the
part of the RTC. This was one more error. The ultimate error was not any less serious, because Atty.
Tumulak filed in the CA instead of in this Court the motion for extension of time to appeal the CA’s
November 18, 2002 denial of Mortel’s motion for reconsideration. Atty. Tumulak’s moves in behalf of
Mortel, no matter how well intentioned, were contrary to the pertinent rules of procedure and worked
against the client’s interest.
The negligence and mistakes committed by his several counsels were so gross and palpable that
they denied due process to Mortel and could have cost him his valuable asset. They thereby
prevented him from presenting his side, which was potentially highly unfair and unjust to him on
account of his defense being plausible and seemingly meritorious. He stated that he had already
paid the principal of the loan and the interest, submitting in support of his statement a receipt for
P200,000.00 that Kerr had allegedly signed. He also stated that he had actually overpaid in view of
his arrangement for Kerr to withdraw P6,000.00 each month from Mortel’s bank account as payment
of the interest, a statement that he would confirm in court through the testimony of a bank
representative.33

We held in Apex Mining, Inc. v. Court of Appeals34 that when the incompetence, ignorance or
inexperience of counsel is so great and the result is so serious that the client, who otherwise has a
good cause, is prejudiced and denied his day in court, the client deserves another chance to present
his case; hence, the litigation may be reopened for that purpose. Also, when an unsuccessful party
has been prevented from fully and fairly presenting his case because of his attorney’s professional
delinquency or infidelity the litigation may be reopened to allow the party to present his side. Lastly,
where counsel is guilty of gross ignorance, negligence and dereliction of duty, which resulted in the
client’s being held liable for damages in a damage suit, the client is deprived of his day in court and
the judgment may be set aside on such ground.35

Court litigation is primarily a search for truth, and a liberal interpretation of the rules that gives to both
parties the fullest opportunity to adduce proof is the best way to ferret out such truth.36 Thus, a court
may suspend its own rules or except a case from them in order to serve the ends of justice; or, it
may altogether disregard the rules in a proper case.37 To cling to the general rule of having the
ignorance, negligence and dereliction of duty of the counsel bind the client is only to condone rather
than to rectify a serious injustice to a party whose only fault was to repose his faith and entrust his
cause to his counsel.38

WHEREFORE, the Court REVERSES the resolution promulgated on September 5, 2002; ANNULS
and SETS ASIDE the decision rendered in Civil Case No. 279-0-2000 on February 28, 2001 by the
Regional Trial Court, Branch 72, in Olongapo City; and RE-OPENS Civil Case No. 279-0-2000 for
the reception of evidence for the petitioner as the defendant.

Costs of suit to be paid by the respondent.

5.

G.R. No. 170701 January 22, 2014

RALPH P. TUA, Petitioner,

vs.
HON. CESAR A. MANGROBANG, Presiding Judge, Branch 22, Regional Trial Court, Imus,
Cavite; and ROSSANA HONRADO-TUA, Respondents.

DECISION
PERALTA, J.:

Before us is a petition for review on certiorari which seeks to annul the Decision1

dated October 28, 2005 of the Court of Appeals (CA) issued in CA-G.R. SP No. 89939.

On May 20, 2005, respondent Rossana Honrado-Tua (respondent) filed with the Regional Trial
Court (RTC) of Imus, Cavite a Verified Petition2 for herself and in behalf of her minor children,
Joshua Raphael, Jesse Ruth Lois, and J ezreel Abigail, for the issuance of a protection order,
pursuant to Republic Act (RA) 9262 or the Anti-Violence Against Women and their Children Act of
2004, against her husband, petitioner Ralph Tua. The case was docketed as Civil Case No. 0464-
05 and raffled-off to Branch 22.

Rossana (Respondent) claimed that she and her children had suffered from petitioner’s abusive
conduct; that petitioner had threatened to cause her and the children physical harm for the
purpose of controlling her actions or decisions; that she was actually deprived of custody and
access to her minor children; and, that she was threatened to be deprived of her and her
children’s financial support.

Respondent and petitioner were married on January 10, 1998 in Makati City. They have three
children, namely, Joshua Raphael born on February 9, 1999, Jesse Ruth Lois, born on June 27, 2000,
and Jezreel Abigail, born on December 25, 2001. In her Affidavit3 attached to the petition,

RESPONDENT claimed, among others, that: there was a time when petitioner went to her room
and cocked his gun and pointed the barrel of his gun to his head as he wanted to convince her
not to proceed with the legal separation case she filed; she hid her fears although she was scared;
there was also an instance when petitioner fed her children with the fried chicken that her
youngest daughter had chewed and spat out; in order to stop his child from crying, petitioner
would threaten him with a belt; when she told petitioner that she felt unsafe and insecure with
the latter's presence and asked him to stop coming to the house as often as he wanted or she
would apply for a protection order, petitioner got furious and threatened her of withholding his
financial support and even held her by the nape and pushed her to lie flat on the bed; and, on
May 4, 2005, while she was at work, petitioner with companions went to her new home and
forcibly took the children and refused to give them back to her.

On May 23, 2005, the RTC issued a Temporary Protection Order (TPO),4 which we quote in full:

Pursuant to the provisions of R.A. 9262, otherwise known as the "Anti-Violence Against Women and
their Children Act of 2004, a Temporary Protection Order (TPO) effective for thirty (30) days from date
of receipt is hereby issued against respondent Ralph P. Tua.

For the purpose of the implementation of the Temporary Protection Order, the respondent (herein
petitioner Ralph) is hereby ordered to:

1. Enjoin from committing and threatening to commit personally or through another,

physical, verbal and emotional harm or abuse against the herein petitioner (respondent)
and other family and household members;

2. Restrain from harassing, annoying, texting, telephoning, contacting or otherwise

communicating with the petitioner (respondent) whether directly or indirectly or
engaged in any psychological form of harassment;
VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW.

The Sheriff of this Court, the PNP Imus, Cavite, or any Officers of the Law are hereby commanded
to effect this Order immediately and to use necessary force and measures under the law to
implement this Order.

Let the hearing for Permanent Protection Order be set on June 9, 2005 at 2:00 o’clock in the afternoon.

SO ORDERED.5

In his Comment6 to respondent's Petition with Urgent Motion to Lift TPO, petitioner denied
respondent’s allegations and alleged, among others, that he had been maintaining a separate
abode from petitioner since November 2004; that it was respondent who verbally abused and
threatened him whenever their children's stay with him was extended; that respondent had
been staying with a certain Rebendor Zuñiga despite the impropriety and moral implications of such
set-up; that despite their written agreement that their minor children should stay in their conjugal
home, the latter violated the same when she surreptitiously moved out of their conjugal dwelling
with their minor children and stayed with said Zuñiga; and, that respondent is mentally,
psychologically, spiritually and morally unfit to keep the children in her custody. Petitioner
contended that the issuance of the TPO on May 23, 2005 is UNCONSTITUTIONAL FOR BEING
VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

Without awaiting for the resolution of his Comment on the petition and motion to lift TPO, petitioner
filed with the CA a petition for certiorari with prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order and preliminary injunction and hold departure
order assailing the May 23, 2005 TPO issued by the RTC.

On June 9, 2005, the CA, in order not to render the petition moot and to avoid grave and irreparable
injury, issued a temporary restraining order to temporarily enjoin the parties and their agents from
enforcing the assailed May 23, 2005 TPO issued in Civil Case No. 0464-05.7

Petitioner later filed an Urgent Motion for Issuance of a Writ of Preliminary Injunction with
Manifestation,8 praying that the enforcement of all orders, decision to be issued by the RTC and all the
proceedings therein be restrained. A hearing9 was, subsequently, conducted on the motion.

On October 28, 2005, the CA issued its assailed decision, the decretal portion of which reads:

WHEREFORE, based on the foregoing premises, the instant petition is hereby DENIED for lack of
merit. Accordingly, the assailed Temporary Protection Order dated May 23, 2002 (sic) issued by the
Regional Trial Court of Imus, Cavite, Branch 22 in Civil Case No. 0464-05 is UPHELD.10

In so ruling, the CA found that the petition filed by respondent under RA 9262 is still pending before
the RTC; thus, the factual matters raised therein could not be passed upon in the petition for certiorari
filed with it. The CA noted that during the pendency of the herein proceedings, petitioner filed an urgent
motion to quash warrant issued by the RTC and which matter could not also be a subject of this petition
which assails the TPO dated May 23, 2005 and that the motion to quash should have been filed with
the RTC.

The CA found that the TPO dated May 23, 2005 was validly issued by the RTC and found no grave
abuse of discretion in the issuance thereof as the same were in complete accord with the provision of
RA 9262.
As to petitioner's argument that there was no basis for the issuance of the TPO, considering that the
provision authorizing such issuance is unconstitutional, the CA ruled that since the matter raised
herein was the RTC’s alleged grave abuse of discretion in issuing the TPO, such matter could
be resolved without having to rule on the constitutionality of RA 9262 and its provisions. And that the
requisites that the constitutionality of the law in question be the very lis mota of the case was
absent.

Dissatisfied, PETITIONER files the instant petition raising the following issues:

THE HONORABLE COURT OF APPEALS WITH DUE RESPECT SERIOUSLY ERRED IN

HOLDING AND FINDING IN A MANNER CONTRARY TO ESTABLISHED RULES AND
JURISPRUDENCE THAT PUBLIC RESPONDENT COMMITTED NO GRAVE ABUSE OF
DISCRETION WHEN THE LATTER ISSUED THE TEMPORARY PROTECTIVE ORDER
(TPO) DATED 23 MAY 2005 WITHOUT OBSERVING DUE PROCESS OF LAW AND
CONSIDERATIONS OF JUSTICE AND BASIC HUMAN RIGHTS.

II

THE HONORABLE COURT OF APPEALS IN REFUSING TO RULE ON THE

CONSTITUTIONALITY OF THE PROVISIONS OF RA 9262 HAS DECIDED THE CASE IN A
MANNER NOT IN ACCORD WITH ESTABLISHED LAWS AND JURISPRUDENCE
CONSIDERING THAT CONTRARY TO ITS FINDINGS THE CONSTITUTIONALITY OF THE
SAID LAW IS THE LIS MOTA OF THE CASE.11

Petitioner claims that contrary to the stance of the CA in not deciding the issue of the constitutionality
of RA 9262, the issue presented is the very lis mota in the instant case.

The issue of constitutionality of RA 9262 was raised by petitioner in his Comment to respondent's
Petition with Urgent Motion to Lift TPO dated May 23, 2005 filed with the RTC. However, without
awaiting for the resolution of the same, petitioner filed a petition for certiorari with the CA assailing
the TPO issued for violating the due process clause of the Constitution. Contrary to the CA's
finding that the matter raised in the petition filed with it was the RTC’s alleged grave abuse of discretion
in issuing the TPO which could be resolved without having to rule on the constitutionality of RA 9262
and its provisions, we find that since petitioner is assailing the validity of RA 9262 wherein respondent's
right to a protection order is based upon, the constitutionality of the said law must first be decided
upon. After all, the alleged unconstitutionality of RA 9262 is, for all intents and purposes, a valid cause
for the non-issuance of a protection order.12 Notwithstanding, however, we still find no merit to declare
RA 9262 unconstitutional.

Petitioner particularly directs his constitutional attack on Section 15 of RA 9262 contending that had
there been no ex parte issuance of the TPO, he would have been afforded due process of law
and had properly presented his side on the matter; that the questioned provision simply
encourages arbitrary enforcement repulsive to basic constitutional rights which affects his life, liberty
and property.

We are not impressed.

Section 15 of RA 9262 provides:

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs) refers to
the protection order issued by the court on the date of filing of the application after ex parte
determination that such order should be issued. A court may grant in a TPO any, some or all
of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall
schedule a hearing on the issuance of a [Permanent Protection Order] PPO prior to or on the
date of the expiration of the TPO. The court shall order the immediate personal service of the
TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement
agents for the service. The TPO shall include notice of the date of the hearing on the merits of
the issuance of a PPO.

In Garcia v. Drilon,13 wherein petitioner therein argued that Section 15 of RA 9262 is a violation of the
due process clause of the Constitution, we struck down the challenge and held:

A protection order is an order issued to prevent further acts of violence against women and
their children, their family or household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm, minimize any disruption in
their daily life and facilitate the opportunity and ability to regain control of their life.

The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated
family or household member safety in the family residence, and to prevent the perpetrator from
committing acts that jeopardize the employment and support of the victim. It also enables the
court to award temporary custody of minor children to protect the children from violence, to
prevent their abduction by the perpetrator and to ensure their financial support.

The rules require that petitions for protection order be in writing, signed and verified by the petitioner
thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since "time is of
the essence in cases of VAWC if further violence is to be prevented," the court is authorized to
issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property
of the victim is in jeopardy and there is reasonable ground to believe that the order is necessary
to protect the victim from the immediate and imminent danger of VAWC or to prevent such
violence, which is about to recur.

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her
witnesses' affidavits to the petition.

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because
the time in which the hearing will take could be enough to enable the defendant to abscond or
dispose of his property, in the same way, the victim of VAWC may already have suffered
harrowing experiences in the hands of her tormentor, and possibly even death, if notice and
hearing were required before such acts could be prevented. It is a constitutional commonplace
THAT THE ORDINARY REQUIREMENTS OF PROCEDURAL DUE PROCESS MUST YIELD TO
THE NECESSITIES OF PROTECTING VITAL PUBLIC INTERESTS, AMONG WHICH IS
PROTECTION OF WOMEN AND CHILDREN FROM VIOLENCE AND THREATS TO THEIR
PERSONAL SAFETY AND SECURITY.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5)
days from service. Moreover, the court shall order that notice, copies of the petition and TPO
be served immediately on the respondent by the court sheriffs. The TPOs are initially effective
for thirty (30) days from service on the respondent.

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition
within five (5) days from service. The date of the preliminary conference and hearing on the
merits shall likewise be indicated on the notice.

The opposition to the petition which the respondent himself shall verify, must be accompanied
by the affidavits of witnesses and shall show cause why a temporary or permanent protection
order should not be issued.

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. x x x.
The essence of due process is to be found in the reasonable opportunity to be heard and submit
any evidence one may have in support of one's defense. "To be heard" does not only mean
verbal arguments in court; one may be heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural
due process.14

Petitioner also assails that there is an invalid delegation of legislative power to the court and to
barangay officials to issue protection orders.

Section 2 of Article VIII of the 1987 Constitution provides that "the Congress shall have the power to
define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme
Court of its jurisdiction over cases enumerated in Section 5 hereof." Hence, the primary judge of the
necessity, adequacy, wisdom, reasonableness and expediency of any law is primarily the function of
the legislature.15 The act of Congress entrusting us with the issuance of protection orders is in
pursuance of our authority to settle justiciable controversies or disputes involving rights that are
enforceable and demandable before the courts of justice or the redress of wrongs for violations of
such rights.16

As to the issuance of protection order by the Punong Barangay, Section 14 pertinently provides:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives
applications for a BPO shall issue the protection order to the applicant on the date of filing after ex
parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the
BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the
Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO.
BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the
Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent,
or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay. 1âw phi 1

Hence, the issuance of a BPO by the Punong Barangay or, in his unavailability, by any available
Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the
woman or her child; and (2) threatening to cause the woman or her child physical harm.
Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance of his duty
under the Local Government Code to "enforce all laws and ordinances," and to "maintain public order
in the barangay."17

Petitioner assails that the CA erred in finding that the RTC did not commit grave abuse of discretion
in issuing the TPO dated May 23, 2005 as the petition was bereft of any indication of grounds for the
issuance of the same. Petitioner claims that while the issuance of the TPO is ex parte, there must be
a judicial determination of the basis thereof. He contends that the allegations in respondent's affidavit
attached to the petition, and without admitting the same to be true, are nothing more than normal or
usual quarrels between a husband and wife which are not grave or imminent enough to merit the
issuance of a TPO.

We are not persuaded.

We quote again Section 15 of RA 9262 for ready reference, thus:

SECTION 15. Temporary Protection Orders. – Temporary Protection Orders (TPOs) refers to the
protection order issued by the court on the date of filing of the application after ex parte determination
that such order should be issued. A court may grant in a TPO any, some or all of the reliefs mentioned
in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance
of a PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate
personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of
law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the
merits of the issuance of a PPO.

Clearly, the court is authorized to issue a TPO on the date of the filing of the application after ex parte
determination that there is basis for the issuance thereof. Ex parte means that the respondent need
not be notified or be present in the hearing for the issuance of the TPO. Thus, it is within the court’s
discretion, based on the petition and the affidavit attached thereto, to determine that the violent acts
against women and their children for the issuance of a TPO have been committed.

And Section 5 of the same law provides:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against
women and their children is committed through any of the following acts:

(a) Causing physical harm to the woman or her child;

(b) Threatening to cause the woman or her child physical harm;

(c) Attempting to cause the woman or her child physical harm;

(d) Placing the woman or her child in fear of imminent physical harm;

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the
woman or her child has the right to desist from or desist from conduct which the woman or her
child has the right to engage in, or attempting to restrict or restricting the woman's or her child's
freedom of movement or conduct by force or threat of force, physical or other harm or threat
of physical or other harm, or intimidation directed against the woman or child. This shall
include, but not limited to, the following acts committed with the purpose or effect of controlling
or restricting the woman's or her child's movement or conduct:
 (1) Threatening to deprive or actually depriving the woman or her child of custody to
her/his family;

(2) Depriving or threatening to deprive the woman or her children of financial support
legally due her or her family, or deliberately providing the woman's children insufficient
financial support;

(3) Depriving or threatening to deprive the woman or her child of a legal right;

(4) Preventing the woman in engaging in any legitimate profession, occupation,

business or activity or controlling the victim's own money or properties, or solely
controlling the conjugal or common money, or properties;

(f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her
actions or decisions;

(g) Causing or attempting to cause the woman or her child to engage in any sexual activity
which does not constitute rape, by force or threat of force, physical harm, or through
intimidation directed against the woman or her child or her/his immediate family;

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that
alarms or causes substantial emotional or psychological distress to the woman or her child.
This shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her child;

(3) Entering or remaining in the dwelling or on the property of the woman or her child
against her/his will;

(4) Destroying the property and personal belongings or inflicting harm to animals or
pets of the woman or her child; and

(5) Engaging in any form of harassment or violence;

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her
child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial
support or custody of minor children of access to the woman's child/children.

In this case, the alleged acts of petitioner among others, i.e., he cocked the gun and pointed the same
to his head in order to convince respondent not to proceed with the legal separation case; feeding his
other children with the food which another child spat out; and threatening the crying child with a belt
to stop him from crying which was repeatedly done; and holding respondent by her nape when he got
furious that she was asking him not to come often to their conjugal home and hold office thereat after
their agreed separation and threatening her of withholding half of the financial support for the kids,
while not conclusive, are enough bases for the issuance of a TPO. Petitioner's actions would fall under
the enumeration of Section 5, more particularly, paragraphs a, d, e (2), f, h, and i.

It is settled doctrine that there is grave abuse of discretion when there is a capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent
and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law.18 We find that the CA did not err when it found no grave
abuse of discretion committed by the RTC in the issuance of the TPO.

The factual matters herein raised by petitioner should be presented during the hearing on the merits
on the issuance of the Permanent Protection Order.

WHEREFORE, the petition is DENIED. The Decision dated October 28, 2005 of the Court of Appeals
issued in CA-G.R. SP No. 89939, upholding the Regional Trial Court's issuance of the Temporary
Protection Order dated May 23, 2005, is AFFIRMED. The Regional Trial Court of

Imus, Cavite is hereby ORDERED to resolve with dispatch respondent's Petition for a Permanent
Protection Order.

SO ORDERED.