a law each day (keeps trouble away) by jose c. sison

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star)

1 |L a m b d a R h o B e t a F r a t e r n i t y

Void and condemnable A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated July 08, 2010 12:00 AM The disposition or encumbrance of conjugal properties by one spouse must have the consent of the other spouse, or if the latter is incapacitated, the authority of the court. Without such consent or authority, the disposition or encumbrance is void. This is the main rule applied in this case. It also illustrates the rule that anyone who does not act with justice, observe honesty and good faith in the exercise of his/her legal rights is liable for damages caused by those acts. This is the case of Paul and Vicky, husband and wife with four children. When they got married Paul already owned a parcel of land (Lot 8) solely registered in his name under TCT No. 26471. In 1982 the spouses purchased the parcel of land (Lot 7) adjacent to Paul’s property with an area of 555 square meters and covered by TCT 88674. Then they put up their conjugal house on both lots with the savings they accumulated through their joint efforts and with the proceeds of the loan from a bank. Later on they also introduced improvements thereon including a poultry house and an annex. In 1991, the couple’s relationship turned sour when Paul got a mistress and neglected his family. Vicky was thus forced to sell or mortgage some of their movables to support the family and the studies of the children. On the other hand Paul offered to sell their house and the two lots on which it stood to the spouses Willy and Pat without even consulting or informing Vicky. So when Vicky learned about it she objected and informed the couple Pat and Willy of her objections. Nevertheless, Paul still proceeded with the sale to Pat and Willy who accepted his offer despite Vicky’s objections. So on June 21, 1991, Paul executed a Deed of Sale in favor of Pat and Willy without Vicky’s consent and signature over her name. Then on July 5, 1991 when Vicky was out of the house and the four children were in school, Paul, acting in connivance with spouses Pat and Willy began transferring all the belongings of Vicky and her children to an apartment. When Vicky and her daughter came home later, they were stopped from entering. So they just waited at the gate until evening under the rain. They asked for police assistance but to no avail allegedly because it was purely a family matter. Thus Vicky and her children filed a complaint before the RTC for Annulment of Sale, Specific Performance, Damages and Attorney’s fees with Preliminary Mandatory Injunction against Paul and the spouses Pat and Willy. Vicky claimed that the sale of Lot 7 and the house erected thereon which were conjugal properties was null and void because it was without her consent. She also claimed that they are entitled to damages because of the manner they were evicted from their own conjugal home. Were Vicky and her children correct? Yes. Lot 7 covered by TCT 88674 was acquired in 1982 during the marriage of Paul and Vicky. Hence it is presumed to belong to their conjugal partnership. No clear, convincing and satisfactory evidence have been presented to overcome said presumption. Likewise the house built thereon is conjugal property having been constructed through the joint efforts of Vicky and Paul who even obtained a loan from a bank. Under Article 124 of the Family Code which took effect on August 3, 1988, the sale of said properties on June 21, 1991 is void because it is done without the consent of both husband and wife. The manner by which Vicky and her children were removed from their family home was also condemnable. While Vicky was out and her children were in school, Paul, acting in connivance with the spouses Pat and Willy surreptitiously transferred all their personal belongings to another place. Then they were not allowed to enter their



rightful home or family abode despite their impassioned pleas. Hence they are entitled to award for damages. Any person who willfully causes loss or injury to another in a manner contrary to morals, good customs or public policy shall compensate the latter for the damages caused. Hence the sale of lot 7 in favor of Pat and Willy together with the house thereon is declared null and void and Paul should return the price paid for them to Pat and Willy while the latter should re‐convey the lot and house to spouses Vicky and Paul. The spouses Pat and Willy as well as Paul should also jointly and severally pay Vicky P100,000 and her four children P50,000 each as moral damages as well as P10,000 exemplary damages (Ravina vs. Villa Abrille, G.R. 160708, October 16, 2009).



Non‐career officials have security of tenure A Law Each Day (KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star) Updated July 07, 2010 12:00 AM From day one of the P‐Noy government, a raging controversy has swirled around the non‐career positions in the civil service in view of the issuance of memorandum circular No. 1 declaring all of them vacant. The controversy revolves around the question of whether non‐career employees in the civil service enjoy security of tenure. This question is actually an offshoot of the 1987 Administrative Code provision classifying the positions in the civil service into career and non‐career (Section 6 (2), Chapter 2, Tile I‐A Book V). As specified in this code, security of tenure is one of the main characteristics that distinguish a career from a non‐career position. By implication therefore, non‐career positions seem to have no security of tenure. This Administrative Code provision however apparently runs counter to the mandate of Section 2(3) Article IX‐B of the Constitution which provides that “No officer or employee of the civil service shall be removed or suspended except for cause provided by law”. The Constitution is clear. It does not make any distinction. It applies to all civil service employees. It does not say that only the removal or suspension of career employees must be for cause provided by law. In fact, in the case of Jocom vs. Regalado et.al, G.R. 77373, August 22, 1991, the Supreme Court already ruled that “Regardless of the classification of the position held by a government employee covered by civil service rules, be it a career or non‐career position, such employee may not be removed without just cause. An employee who belongs to the non career service is protected from removal or suspension without just cause and non observance of due process”. Based on law and jurisprudence therefore, it is clear that even non‐career civil service employees enjoy security of tenure in the sense that if their appointment is for a fixed or definite term, or for a project, and it has not yet expired, they cannot be removed or suspended from office at the mere whim or caprice of the appointing power but only for causes enumerated in the Administrative Code like dishonesty, oppression, neglect of duty, misconduct and disgraceful or immoral conduct, established after due notice and hearing. Generally all positions in the non‐career service have definite duration or period. It may be up to a specific date fixed in his appointment papers or it may be co‐terminus with the appointing authority. During that period, they have security of tenure. But when that period ends or expires, the holders of such position should vacate the office. The exception here are the positions which are primarily confidential requiring the highest degree of confidence, close intimacy and trust, like the cabinet secretaries and personal staff. They do not have fixed term of office. They hold office at the pleasure of the appointing authority or for as long as the trust and confidence in them last. When required to relinquish their office due to loss of confidence, they cannot complain that their right to security of tenure is violated because they are not actually dismissed or removed. In effect their term of office has simply expired. Expiration of the term is not covered by the constitutional provision on security of tenure (Achacoso vs. Macaraig et.al., G.R. 93023, March 31, 1991). Career and non‐career civil service officials and/or employees therefore both enjoy security of tenure. The main difference between them is that the tenure of the career employees is permanent in the sense that they hold office until they reach the retirement age; while that of the non‐career ones are non‐permanent in the sense that they hold office only for a temporary and limited period.



Difficulty, not incapacity A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated July 06, 2010 12:00 AM Psychological incapacity of a spouse, as a ground to declare a marriage void, is more than just “difficulty”, “refusal” or “neglect” in the performance of some marital obligations. Acts violating marital covenants like infidelity do not show an irreparably hopeless state of psychological incapacity to perform the basic obligations of marriage. This is the ruling reiterated in this case of Mon and Mona. Mon met Mona sometime in 1977 while they were students of nearby schools. Since then, Mon courted Mona and five months later they became sweethearts. While Mona subsequently left for Japan to study Japanese culture, literature and language, and even taught in a university there, their communications with each other still continued. So in 1982, after Mona returned from Japan, the sweethearts decided to tie the knot in a civil ceremony and later affirmed in a church rite. Since their marriage, they showed contentment and love for each other and begot two children. Mona took care of the children and even joined sales activities to augment family income. She traveled a lot and pursued studies abroad but remained faithful to Mon. However, after eight years of harmonious relationship, their marriage started to fail when Mona discovered that Mon was having an affair with her own cousin Naty. He even brought the latter to their conjugal home after sending Mona to Japan to resume her teaching position. Eventually, Mon left the conjugal home sometime in 1992 to live with Naty, leaving Mona who claimed custody of their children. Their separation led to the filing of charges and countercharges. Mona filed a criminal case of concubinage and an administrative case against Mon. On March 7, 1995, Mon in turn filed a petition for the declaration of nullity of their marriage on the ground of psychological incapacity. Mon claimed that their marriage was “tumultuous”. He described Mona as domineering who frequently humiliated him before his friends, a spendthrift who overspent the family budget and who made crucial family decisions without consulting him. Mon added that Mona was tactless, suspicious and given to nagging and jealousy as shown by her filing of the criminal and administrative case against him. During the trial, a psychiatrist was presented as expert witness who found both Mon and Mona to harbor psychological handicaps which could be traced to their unhealthy maturational development because of strict, domineering, and disciplinarian parents; and which will hamper their capacity to comply with their marital obligation. He found Mona to be mistrustful, of low self‐esteem, given to having shallow heterosexual relationships and immature. Mon on the other hand was found to be egoistic who projects himself as dominant person and craves for adulation, reassurance and attention to cover his deep seated insecurity and inadequacy. On May 31, 2000, the RTC found both Mon and Mona psychologically incapacitated to enter into marriage and thus declared it null and void pursuant to Article 36 of the Family Code. Was the RTC correct? No. Psychological incapacity required by Article 36 must be (1) grave or serious such that the parties would be incapable of carrying out the ordinary duties of marriage; (2) rooted in the history of the parties antedating the marriage, although the overt manifestation may emerge only after marriage; and (3) incurable or even if it were otherwise, the cure would be beyond the means of the parties involved. In this case, the psychological examination failed to reveal that these personality traits or psychological conditions were grave or serious enough to bring about incapacity to assume the essential obligations of marriage. Indeed the psychiatrist was able to establish the parties’ personality disorders. But he failed to link them to his conclusion that they are psychologically incapacitated to perform their obligations as husband and wife. Their personality disorders



would not render them unaware of the essential marital obligation or to be in‐cognitive of the basic marital covenants. The fact that these psychological conditions will hamper their performance of their marital obligations does not mean that they suffer psychological incapacity as contemplated by Article 36. Mere difficulty is not synonymous to incapacity. The claimed incapacity is not likewise incurable and permanent. Even assuming their acts violate the covenants of marriage, such acts do not show an irreparably hopeless state of psychological incapacity which will prevent them from undertaking the basic obligations of marriage in the future. At most the psychiatric evaluation of the parties proved only incompatibility and irreconcilable differences which cannot be equated with psychological incapacity (Aspillaga vs. Aspillaga, G.R. 170925, October 25, 2009).



Wrong time, wrong aim, good reasons A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated July 05, 2010 12:00 AM The call for charter change will never die down because there are really enough good reasons for its amendment or revision. But that call will remain unheeded for as long as it is made at the wrong time for the wrong purpose and by the wrong persons. And so it is with this latest resolution filed in Congress by ex‐President now Congresswoman Gloria Arroyo and her son Dato calling for a Constitutional Convention to amend the Constitution. Proposing to change the basic law on day one of a new administration is simply wrong timing. There are so many other problems besetting the new government created by the very proponent when she was still President that have to be tackled first. Amending or revising the charter is not that urgent. It will only distract the new administration in immediately tackling the more pressing problems at hand. It is common knowledge that during her long incumbency several attempts have already been made to change the charter. Apparently the person behind those attempts is the ex‐President herself although she has denied it. It is also obvious that the main purpose is to change the form of government from presidential to parliamentary so that she could have a crack at the Prime Ministership where the real power will be lodged. Those attempts were all foiled precisely because they were done by the wrong persons and for a wrong purpose. This latest resolution filed in Congress is but a repetition of those attempts. In fact it confirms that the ex‐president is really behind those moves. Thus it is also done by the wrong person for the wrong self‐serving purpose. But in due time, when this administration has already identified and assessed the many problems it inherited particularly corruption in government, and has set in place the ways and means of solving them, steps can be taken to change the charter. Admittedly, this move is necessary for the achievement of many other reforms in government. Among the many provisions in the present constitution that must be removed, revised, improved and/or clarified were clearly seen from the many constitutional issues that cropped up in the last election. Foremost among these were: (1) whether an elected ex‐president who has not finished his term can still run for president again; (2) whether the ban on midnight appointments covers appointment of members of the Supreme Court; (3) whether the party list system of representation promoting multi‐party system has really served its purpose of democratizing political power; and (4) whether the prohibition on political dynasties is forceful enough to guarantee equal access to opportunities for public service. The present Constitution seems clear enough when it provides that “the President shall not be eligible for any reelection”. But smart lawyers still found a loophole in it. They came up with another interpretation claiming that it applies only to an incumbent president because “reelection” refers only to president still holding office and running again for the same office. They contended that an ex‐president who has not fully served his term is not actually running for reelection and therefore is not disqualified to run again. And the COMELEC agreed with them. It allowed ex‐President Estrada to run again despite the clear intent of the framers of the charter that said prohibition from running again applies to all elected presidents, incumbent or not, or having served the full term or not. This provision must therefore be clarified to remove this loophole and to more categorically reflect the charter framers’ intent. The same is true with respect to the ban on midnight appointments. The charter bans the president from making appointments two months before the presidential election and up to the end of his term except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. But astute lawyers again found a loophole in it. They claimed that the provision is embodied only in the Article covering the Executive Department; so it does not apply to appointments of members of the Supreme Court including its Chief Justice (CJ). And the SC itself agreed with them thereby paving the way for the appointment of a



new CJ even during the two month ban. So this provision must likewise be amended to plug the loophole and to expressly ban all presidential appointments two months before the next presidential elections except temporary appointments to executive positions in the interest of public service and public safety. The provision on party list system of representation, on the other hand, has not really democratized political power. On the contrary it has been used by those already in power to remain in power because the COMELEC has accredited party list organizations that do not represent the sectors they are supposed to represent; and because the accredited party list organizations have nominated as their representatives persons who do not really belong to their sectors. Thus in the last election, the son of the ex‐president who gave way to his mother in his congressional district, and the outgoing Department of Energy Secretary, have been nominated by the party list organization of security guards and of jeepney drivers respectively. This provision must therefore be scrapped; or if it has to be retained, it must be revised as to be self‐operating. Their implementation should not be left to Congress because, as already shown by the law enacted to implement it, Congress has not democratized but on the contrary, concentrated the power to those already rich and powerful. The prohibition on political dynasty however is another matter. While the charter mandates Congress to enact an enabling law, Congress has not done so up to now because many of its members belong to political dynasties and therefore would not want them dismantled. So this constitutional provision must be revised to make it self‐operating without need of any legislation. There are many more desirable amendments to the charter that will result in true reforms like the conversion of Congress into a unicameral body with less membership which will definitely result in less government expense and more efficient and quality legislation. It will be the subject of another write up for a more detailed and extensive discussion.



Mere evidence A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 30, 2010 12:00 AM In corporate by‐laws, there is usually a provision that if a stockholder decides to sell his stock, he must first offer it to the corporation which has a preemptive right to buy it before offering it to others. But if the stock certificate has not yet been issued, can a stockholder already offer his share for sale to the corporation so that it can exercise its preemptive right? This is one of the questions resolved in this case. The case involved the membership shares of one of the high class sports club in the country (MSCI). On October 20, 1994, its Board of Directors adopted a resolution authorizing the sale of 19 unissued shares at a floor price of P400,000 and P450,000 per share for Class A and B respectively. On July 7, 1995, Mr. Harold wrote MSCI membership committee expressing his interest to buy a class “A” share and requested that his name be included in the waiting list. Nothing was heard from the membership committee about its action on this letter. It only appeared that Miriam who was the head of the MSCI membership section informed Cely its Treasurer about Mr. Harold’s intention to buy a share and that Cely asked for Mr. Harold’s telephone number. Cely on the other hand admitted that she indeed called the wife of Mr. Harold sometime in October 1995 and assured her that that there was already an available share for P2.8 million. At about this time or in November 1995, McF, another interested buyer also expressed its interest in acquiring a share of MSCI and was negotiating for its purchase at P1.8 million. While the sale between McF and MSCI was still under negotiation, Mr. Harold was likewise negotiating with McF to purchase the MSCI share to be acquired by McF. He offered to buy said share for a price of P2.8 million. In fact on November 24, 1995, Mr. Harold already made a down payment of P1.4 million to McF. Hence on November 28, 1995 McF already paid MSCI P1.8 million for one class A share. Then on December 5, 1995, the Deed of Absolute Sale was executed by MSCI and McF. Subsequently on December 27, 1995, Mr. Harold completed the payment of P2.8 million to McF by paying the balance of P1.4 million. On the same date, McF in turn sent a letter to MSCI offering to resell its share for P2.8 million for the latter to exercise its preemptive right pursuant to the by‐laws. In the meantime, on January 5, 1996, Stock Certificate A 2243 was already issued in the name of McF for one MSCI share pursuant to the Deed of Sale dated December 5, 1995. Then on January 29, 1996, or 32 days after MSCI was notified by McF to exercise its pre‐emptive right, and MSCI had not exercised it, McF and Mr. Harold already executed a Deed of Absolute Sale of said share of stock. Thereafter on February 7, 1996, MSCI was advised of said sale so a new Certificate was issued to Mr. Harold. After investigating the transaction, and finding that fraud was committed by Cely and McF who allegedly confabulated with one another, MSCI sued Cely and McF to recover P1 million representing the amount allegedly defrauded, with interest and damages. MSCI contended among others that the notice given by McF on December 27, 1995 for it to exercise its preemptive right was premature since the stock certificate was issued only on January 5, 1996. Was MSCI correct? No. When McF offered to resell one class “A” share of stock to MSCI for the price of P2.8 million so that the latter can exercise its pre‐emptive right as required by its by‐laws, McF legally had the right to do so since it was already an owner of a Class “A” share by virtue of the payment on November 28, 1995 and the Deed of Absolute Sale dated December 15, 1995 notwithstanding the fact that the stock certificate was issued only on January 5, 1996. A certificate of stock is merely evidence of the holder’s interest and status in the corporation representing his ownership of the share. It is not equivalent of such ownership. It expresses the contract between the corporation



and the stockholder, but not essential to the existence of a share of stock or the nature of the relation of the stockholder to the corporation. Therefore McF properly complied with the requirement of the by‐laws on MSCI’s pre‐emptive rights. Without doubt MSCI failed to repurchase McF’s Class “A” share within 30 days pre‐emptive period. It was only on January 29, 1996 when McF and Mr. Harold executed the Deed of Sale, or 32 days after McF notified MSCI to exercise its pre‐emptive rights. While Mr. Harold had the right to demand immediate execution of the Deed upon full payment of the price, he did not do so precisely because he wanted McF to first comply with the pre‐emptive requirement as set forth in the By‐laws (Makati Sports Club vs. Cheng et. al., G.R. 178523, June 16, 2010)



Continued existence A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 29, 2010 12:00 AM Can an employee be dismissed for offenses committed during her employment in a government owned or controlled corporation which were subsequently discovered by same corporation after it was privatized and after it rehired her? This is one of the questions answered in this case of Lucy. Lucy started as a probationary clerk of the Philippine National Bank (PNB), then a government owned bank, on December 4, 1967. She rose from ranks and eventually became an Assistant Department Manager I by 1996. On May 26, 1996, when PNB was privatized, Lucy and her co‐employees were deemed automatically retired. After clearing Lucy of any accountability, PNB computed her gratuity benefits, the monetary value of her leave credits and other benefits due her. The next day May 27, 1996, however, the new management of the privatized PNB rehired Lucy and assigned her in a branch where she had been previously assigned. But less than four months later, the new management discovered that Lucy had committed several offenses and thus charged her administratively with serious misconduct, willful breach of trust and gross violation of the bank’s rules and regulations for: taking part in a “kiting operation” from January 2 to April 3, 1996 while she was assistant department manager in said branch; issuing six certificates of deposits between June 5,1992 to January 10, 1996 in amounts exceeding the balance of the deposits; for issuing two bank commitments dated January 24, 1994 and providing a credit line in favor of a government contractor without authority; and for tardiness and “under time” from October to December 1995. In answer, Lucy denied the charges and explained that her actions were merely accommodations given to valued clients for business development with the knowledge and consent of the Manager and Comptroller where the bank did not suffer any loss; that she could not be guilty of tardiness and “under time” because she was a bank officer, aside from the fact that deductions were already made for such tardiness; and that these causes took place when she was yet a government official and since she already retired from government service, the employment that could be terminated no longer existed. After due investigation however the new PNB management dismissed her from work for willful breach of trust and withheld her fringe benefits, gratuity benefits, monetary value of her leave credits, rights and interests in the provident fund and other benefits due her as of May 26, 1996. Was PNB correct? It is correct in dismissing her for willful breach of trust but wrong in withholding her monetary benefits upon her retirement on May 26, 1996. While PNB began as a government corporation, it did not mean that its corporate being ceased and was subsequently reestablished when it was privatized. It remained the same corporate entity before, during and after the change over with no break in its life as a corporation. Consequently the offenses committed by Lucy against the bank before its privatization continued to be offenses against the bank after privatization except that the Labor Code already governs its disciplinary action since it was already a private corporation when it looked into Lucy’s offenses. As to the existence of a just cause, it is clear that Lucy admitted committing the acts or omissions constituting the offenses. Her uncorroborated defense is unsatisfactory, revealing a mind that was willing to disregard bank rules and regulations when other branch officers concurred. That the bank did not suffer any loss is of no moment. The focal point is that she betrayed the trust of the bank in her fidelity to its interest and rules. So the PNB rightfully separated her from work for willful breach of trust under the Labor Code.



But the PNB is wrong in withholding the monetary benefits due Lucy as of May 26, 1996 when she was automatically retired. Although the transformation of the PNB from a government owned corporation to a private one did not result in a break in its life as a juridical person, the same cannot be said of its employees. Section 27 of Proclamation 50 provided for the automatic termination of employer‐employee relationship upon privatization of government owned and controlled corporation. It also provides that such privatization cannot deprive government employees involved, of their accrued benefits or compensation. Here when PNB was privatized Lucy’s employment with it as a government owned and controlled corporation ceased. In fact the PNB already computed the benefits due her and readied their payment after clearing her of any accountability. In the eyes of the law her record as employee of PNB was untarnished at the time of her separation from it when it was still government owned and controlled. Hence all those benefits already accrued to her on the date of her termination even if PNB as privatized immediately rehired her (Ang vs. PNB, G.R. 178762, June 16, 2010).



Perfected A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 24, 2010 12:00 AM Like any contract a compromise settlement of a case is perfected upon the meeting of the minds between the parties pertaining to the subject matter and the cause or consideration for the settlement. This is illustrated in this case of Hilda. Sometime in January 1993 Hilda engaged the services of Pete, a geodetic engineer, to conduct a relocation, consolidation and subdivision survey of her properties as well as the properties her sister. In the course of conducting his work, Pete asked Hilda and her husband to sign a document which was supposedly needed to facilitate the consolidation‐subdivision and issuance of separate certificates of title over the properties. After completing his work, Pete was paid P4,050.00 for his services. But he failed to return the certificates of title of the said properties for more than one year despite repeated demands to return them. Later on, Hilda and her husband learned that Pete had already sold their lot when a truck loaded with construction materials came to their land. They further discovered that Pete made it appear that she had sold the lot to him for P80,000 and had her certificates of title cancelled and transferred to him using the document that he caused her and her husband to sign. When confronted, Pete told Hilda that he had already sold the lot, He then tried to convince Hilda to accept P400,000, later increased to P500,000 as purchase price of the lot. On May 3, 1994, thinking that she could no longer recover her property, Hilda agreed to accept the P500,000 from Pete but only as partial payment because the lot had a fair market value of P1,338,000. Hilda was made to sign an acknowledgment receipt and other documents where it was made to appear that she received the full and final payment for the lot. Hilda then asked for the payment of the fair market value of her property but to no avail. So the dispute was referred to the Punong Barangay and the Lupong Tagapaymaya. During the conciliation proceedings on June 8, 1994, the parties agreed that Pete will pay an additional amount of P75,000 to the initial P500,000 he already paid to Hilda. But Pete had P70,000 only so he gave the said amount to Hilda who acknowledge receipt of the same as attested by the Lupon Chairman. The next day, Pete tendered the remaining P5,000 to Hilda to compete the amicable settlement. But Hilda refused to accept saying that P5,000 was not enough. She insisted that the case be elevated to the court. After a certification to file action was issued by the Lupon, Hilda filed a complaint in the Municipal Trial Court (MTC) insisting on the non‐perfection of the amicable settlement since there was allegedly no meeting of the minds yet between them on the subject matter and the cause thereof. In answer, Pete asked for the dismissal of the complaint considering that he had already been released from any obligation and that what remains to be done is merely the completion of the amicable settlement between them. The MTC granted Pete’s motion and thus dismissed Hilda’s complaint. Was the MTC correct? Yes. Admittedly, both parties agreed during the barangay conciliation proceedings for Pete to pay and additional sum of P75,000 (which was the object or subject matter of the amicable settlement) to the initial P500,000 Pete had earlier given to Hilda as purchase price of the lot in order to put an end to their dispute (which was the cause or reason of the settlement). Hilda expressly acknowledged that Pete’s offer to pay additional P75,000 was made in order for her to desist from pursuing her case against him. By reason of her unconditional acceptance of the offer and the P70,000 initially tendered to her, Hilda had already effectively waived whatever claims she might have against Pete regarding said lot.



Thus there was already a meeting of the minds between them and a compromise agreement or contract has been perfected where they agreed to avoid litigation or put an end to one already commenced, by making reciprocal concessions. A compromise is a form of amicable settlement that is not only allowed but encouraged in civil cases (Harold vs. Aliba, G.R. 130864, October 2, 2007).



Unfair and unjust A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 23, 2010 12:00 AM Some unfair and unjust acts and omissions of government only come to light when public interest is aroused. One is the case of the famous Arlegui property decided way back in October 2007 which is now very much back in the news because it is one of the properties being considered as residence of the incoming President. The original owner of said property containing an area of 4,924 square meters situated at 1440 Arlegui St. San Miguel, Manila, near Malacanang was Tarcila Laperal Mendoza married to Perfecto Mendoza as shown in Transfer Certificate of Title (TCT) No. 118527. On this lot now stands the Presidential Guest House which is undergoing renovation for possible home of incoming President Noynoy. How the property was acquired by the government highlights one of the many excesses and abuses committed during the Marcos Martial Law regime that remains unredressed up to now allegedly because of adherence to “due process of law”. The evidence adduced during the hearing of the case filed in 1999 by Mendoza after the government has been declared in default for repeated failure to answer her complaint, adequately shows that: (1) since time immemorial, Mendoza and her predecessors‐in‐interest had been in peaceful and adverse possession of the property and the owner’s duplicate of the title; (2) such possession continued until the first week of July 1975 when a group of armed men representing themselves as members of the Presidential Security Group of the then President Marcos forcible entered the property and ordered Mendoza to turn over to them her copy of the TCT and compelled her and members of her household to vacate the same; (3) thus, out of fear for their lives Mendoza handed over the TCT and vacated the property; (4) thereafter a fictitious Deed of Sale purportedly executed although never actually signed by the spouses Mendoza was drawn up and used as basis for the cancellation of their TCT and the issuance of a new TCT 118911 in the name of the Republic. While the lower court decided in favor of Mendoza on August 27, 2003, the case still reached the Supreme Court (SC) because the Republic ironically invokes the deprivation of due process. The SC however said that no such deprivation occurred. The court explained that being deprived of a hearing, does not mean that the right to due process had been violated not only because the “handling solicitor squandered the Republic’s right to be heard”, but more importantly because “the law itself imposes such deprivation of the right to participate as a form of penalty against one unwilling without justification to join issue upon the allegations tendered by the plaintiff” (Mendoza). The SC also ruled that the evidence adduced in the lower court adequately supports a conclusion that the Office of the President during Marcos time wrested possession of the property in question and somehow secured a certificate of title over it without a deed of conveyance having been executed. Accordingly, the SC said that granting Mendoza’s basic plea for recovery of the Arlegui property which was legally hers all along, and the reinstatement of her cancelled certificate of title are legally correct as they are morally right. The SC only found to be erroneous the monetary award of P1.624 billion particularly the P500,000 monthly rental from 1975. The SC said that since the property had an assessed value of P2.3 million only as Mendoza herself declared; that when martial law regime took over it has no new imposing structure; and that it had minimal rental during the relatively long martial law years, given the very restrictive entry and egress conditions at the vicinity at that time and even after, an award of P20,000 a month for the use and occupancy of the property is reasonable and may be granted. So the SC ordered the Republic to pay Mendoza P20,000 a month beginning 1975 until it vacates



the same and the possession thereof restored to Mendoza plus interest of 6% per annum on the total amount due upon the finality of the decision until fully paid (Republic vs. Hidalgo etc, et.al. G.R. 161657, October 4, 2007). Mendoza’s case is not an isolated one. Another lady, Lourdes Paez Villa was deprived of her land with an area of 3,720 square meters way back in 1972 when the government took it away from her for the construction of the Marikina‐Infanta road without instituting expropriation proceedings. After more than 30 years of claiming just compensation, the Republic through the DPWH finally agreed to compensate her by paying the assessed value of the land and rent with interest until fully paid. This was evidenced by a Deed of Absolute sale dated December 20, 2001. Up to now however, 38 years later, DPWH has not yet fully paid the value of the land much less any rental due as stipulated in the Deed giving all sorts of flimsy and shallow excuses. It is hoped that under the new administration, this unfair and unreasonable acts and omissions will be finally corrected and justice rendered with dispatch to our hapless citizens like Mendoza and Villa. The delays in giving them justice are circumstances where corruption thrives best.



Damage without injury A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 22, 2010 12:00 AM Injury is the legal invasion of a legal right while damage is the loss, hurt or harm which results from injury. There can be damage without injury in those instances where the loss or harm is not the result of a violation of a legal duty. This is illustrated in this case of Carlo. Carlo was a reputable businessman engaged in business activities that requires travelling both here and abroad. He was a seasoned traveler visiting places in the US Europe and Asia at least seven times a year. Sometime in September 1984, he was issued a Visa card by one of the leading commercial banks in the country (EBC) which could be used for both peso and dollar transactions within and outside the Philippines. The card has a credit limit of P20,000, while in dollar transactions, he was required to maintain a dollar deposit of $3,000 and the balance of said deposit shall be his credit limit. It also provided for automatic suspension of credit privileges in case he exceeds his credit limit. And in case of suspension, it can be reinstated or altogether terminated upon option of the issuer (EBC). From August to September 1985, Carlo made credit purchases in Japan and HK amounting to more than $14,000 while having a deposit of $3,689 thus exceeding his credit limit. These purchases were accommodated by EBC on the condition that the amount would be covered in a few days. But Carlo failed to make good on his commitment; he also failed to make a deposit on the due date of his purchase. As a consequence, his card privileges for dollar transactions were suspended. In January 1986 he made a deposit of $14,501.89 in his dollar account to cover his purchases but it was not sufficient to maintain the required minimum dollar deposit of $3,000 as it only had a balance of $2,704.94 after satisfaction of his outstanding accounts. In April 1986, Carlo went to HK for business and pleasure trip together with some reputable business friends and associates. A day before leaving, he made a deposit of $14,000 in his dollar account but did not bother to request EBC for the reinstatement of his credit card privileges for dollar transactions, thus the same remained suspended. On April 30, 1986, Carlo went to the Gucci Department Store in HK located at the basement of Peninsula Hotel accompanied by his friend Danny. There he purchased several Gucci items costing HK$4,030 which was equivalent to US$523. Instead of paying the said items in cash he used his Visa card to effect payment thereof on credit. But after presenting his card, the saleslady informed him in the presence of his friend Danny and other shoppers of different nationalities that his card was blacklisted and simply did not honor it, even threatening to cut it in several pieces. Deeply embarrassed and humiliated and to avoid further indignities Carlo paid cash for the goods he bought. But upon his return to the Philippines he filed a complaint before the Regional Trial Court(RTC) for damages against EBC claiming that he suffered much torment on account of EBC’s wrongful act of blacklisting/suspending his Visa card while at the Gucci store. After trial and despite EBC’s defense that Carlo’s card was suspended and remained as such because he failed to settle his previous purchases on time and he failed to maintain the required minimum balance, The RTC ruled in favor of Carlo and awarded him actual damages of $150,000, moral damages of P200,000, exemplary damage of P100,000 and P100,000 attorney’s fees. On appeal to the Court of Appeals (CA), the latter affirmed the RTC decision but only as to the award of moral damages which was reduced to P100,000. The CA justified the award on its assessment that EBC was negligent in not informing Carlo that his credit card was already suspended before he left for HK ratiocinating that its right to automatically suspend had been indiscriminately used against respondent. Was the CA correct?



No. In breach of contract, as here, moral damages are recoverable only if the breach is wanton reckless, malicious, or in bad faith, oppressive or abusive. Given the facts of this case with the express provision on automatic suspension under the Credit Card Agreement, there is simply no basis for holding EBC negligent for not notifying Carlo of the suspended status of his card. It may be so that Carlo made a deposit of US$14,000 to his dollar account before he left for HK. But as issuer of the card, EBC has the option to decide whether to reinstate or altogether terminate a credit card previously suspended. Even on the aspect of negligence therefore, EBC could not be held liable for moral damages. Unquestionably Carlo suffered damages as a result of the dishonor of his card. But in order that he can maintain an action for such injuries, he must establish that they resulted from a breach of duty that EBC owed to him which is the proximate cause. In this case, there was no violation of a legal duty by EBC. So Carlo alone must bear the injury he suffered because the law affords no remedy for damages resulting from an act which does not amount to a legal wrong (Equitable Banking Corp. vs. Calderon, G.R. 156168, December 14, 2004).



Doubtful credibility A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 17, 2010 12:00 AM To be believed, testimonial evidence should come only from the mouth of a credible witness. If the credibility of a lone witness is under a heavy cloud of doubt, the accused must be acquitted. This rule is illustrated in this case of Simon. Simon together with Doming were charged with drug pushing for selling and delivering 108.40 and 105.84 grams of shabu in consideration of P2,000 on or about May 11, 1998 in Navotas Metro Manila. The charge was an offshoot of an alleged buy‐bust operation following a tip from an informant conducted by the Navotas Police team with PO3 Alan acting as poseur‐buyer, the confidential informant, and several police operatives as back‐up. According to PO3 Alan who was the lone prosecution witness, they proceeded to a house in the target place at about 11:15 in the evening where Doming answered the knocking at the door. Thereupon the confidential informant introduced him to Doming and then and there he expressed his desire to buy shabu. Doming replied that he did not have enough supply of shabu but marijuana was available. When he insisted on buying shabu, Doming allegedly told him that someone would be delivering shabu. PO3 Alan continued that after waiting for a few minutes, a man, who turned out to be Simon, arrived. Following the usual introduction Alan said that Simon led him to his motorcycle then took out a bag containing two plastic sachets of shabu while at the same time asking for payment. Alan said he examined the contents then gave Simon four P500 marked bills placed in between boodles or fake money. Thereafter he identified himself as a police officer and arrested Simon. On signal, the back‐up officers joined the scene and frisked Simon and Doming. Simon was found in possession of a 38 paltik revolver, buy bust money and more shabu while Doming had marijuana and shabu. Alan further said that the seized items were then sent to a forensic chemist for laboratory examination and were found positive for shabu and marijuana per Physical Science No. D‐411‐98. During the trial, Alan also identified Simon and Doming, the marked money used and the shabu confiscated from them. With regards to the boodles or fake money where he placed the marked money in between, Alan explained that they are no longer available as they were confiscated by another policeman when he himself was arrested for indulging in a pot session in violation of Section 27 of the Dangerous Drugs Act. For their defense both Simon and Doming denied that there was a buy bust operation and that the charges were just fabricated against them. They said that policemen led by PO3 Alan just barged into the house of Doming and pointed the guns at the people inside including Simon who was visiting Doming at the time. Then they were told to lie face down and stripped of their belongings. The policemen also took the motorcycles of Simon and Doming and brought them to the headquarters and then demanded payment for their release. But only the members of Doming’s household were released as both Doming and Simon were further detained. When they could not pay the amount demanded, charges were filed against them. Simon further said that PO3 Alan had been a drug user and in fact had already been dismissed from the service. Indeed, Simon said that when they were in the headquarters he saw PO3 Alan and two others sniffing shabu. After trial however, the RTC gave full credence to the testimony of PO3 Alan and convicted Simon and Doming of the crime charged. Was the RTC correct? No. PO3 Alan’s involvement as a police officer in illegal drug activities makes him a polluted source and renders his testimony against Simon and Doming suspect at best. It is like a pot calling the kettle black. Given his service record, PO3 Alan can hardly qualify as a witness worthy of full faith and credit under the limited confines of this case. It must



not be overlooked that PO3 Alan is a rogue cop, having been arrested for indulging in a pot session per his own admission, then eventually charged and dismissed from the police service. It would thus appear that PO3 Alan had been a user. His arrest for joining a pot session only confirms this undesirable habit. His involvement in drugs and his alleged attempt to extort money from Simon for the latter’s freedom has put his credibility under a heavy cloud. While the rule is that prosecutions involving illegal drugs depend largely on the credibility of the police buy‐bust operators and that the trial court’s finding on the credibility of a police‐witness deserves respect, acquittal or the least liability is in order when there are circumstances that would support a reasonable doubt in favor of the accused like in this case where PO3 Alan’s credibility is under a heavy cloud because of his involvement in illegal drugs. The constitutional presumption of innocence requires courts to take a more casual consideration of every circumstance or doubt proving the innocence of an accused (People vs. Sitco and Bagtas, G.R. 178202, May 14, 2010).



Strained relations A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 16, 2010 12:00 AM The normal consequences of illegal dismissal are reinstatement without loss of seniority rights and award of back‐wages from the time the salary is withheld up to actual reinstatement. But can separation pay be also awarded aside from back‐wages? This is the issue raised once more in this case of Mang Pepe. In 1990 Mang Pepe was hired as carpenter by Arnie to work in his construction company (GAB) with a daily wage of P220. In 1999, Arnie stopped giving work assignments to Mang Pepe allegedly because GAB no longer had any construction projects available. Believing that he was already a regular employee and that his services were terminated without just cause, Mang Pepe filed a complaint for illegal dismissal against GAB and Arnie. For its defense, GAB and Arnie contended that Mang Pepe was a project employee and so his employment was validly terminated because of unavailability of construction projects. On January 10, 2001, the Labor Arbiter (LA) ruled in favor of Mang Pepe finding that he was a regular employee who was dismissed without cause. So the LA ordered his immediate reinstatement without loss of seniority rights and other privileges, with payment of full back‐wages. GAB and Arnie appealed this ruling to the NLRC. But pending their appeal and in compliance with the LA’s decision, they advised Mang Pepe to report back to work in the construction site within 10 days. On May 15, 2001, Mang Pepe manifested to the LA that actual animosities existed between him and Arnie and there had been threats to his life and his family’s safety. Hence he just asked that his separation pay be paid instead of reinstatement. Meanwhile the NLRC upheld the LA decision in favor of Mang Pepe on April 22, 2002. This ruling was affirmed by the Court of Appeals (CA) and attained finality on September 15, 2004. Controversy again arose when GAB and Arnie found as exorbitant the recomputed amount due to Mang Pepe then already amounting to P562,804.69 subject of a writ of execution issued by the LA. They asked the NLRC to reconsider this re‐computation contending that since Pepe refused to get back to work, the re‐computation of the wages and benefits due him should not be beyond May 15, 2001 the date when he manifested his refusal to be reinstated. On March 9, 2006 the NLRC granted GAB and Arnie’s motion. It held that since Mang Pepe did not appeal the LA’s decision granting him only reinstatement and back wages, not separation pay, and since he refused to go back to work, he may recover back wages only up to May 20, 2001, the day he was supposed to return to the job site. Was the NLRC correct? No. The basis for the payment of back wages is different from the basis for the payment of separation pay. Back wages represent compensation that should have been earned but were not collected because of the unjust dismissal. Separation pay is granted where reinstatement is no longer advisable because of strained relation between employer and employee. Separation pay may avail in lieu of reinstatement if reinstatement is no longer practical or in the best interest of the parties. It may likewise be awarded if the employee decides not be reinstated. Under the doctrine of strained relations, the award of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. Such payment liberates the employee from what could be a highly oppressive work environment, in much the same way that it releases the employer from the grossly unpalatable obligation of maintaining in its employ, a worker it could no longer trust. In this case, actual animosity already existed between Arnie and Mang Pepe as a result of the filing of the illegal dismissal case. Clearly then Mang Pepe is entitled to back wages and separation pay as his reinstatement has been



rendered impossible due to strained relations. He should thus be awarded back wages of P562,804.69 computed from the time he was unjustly dismissed in February 1999 until June 30, 2005 when his reinstatement was rendered impossible without fault on his part. On the other hand, Mang Pepe’s separation pay should be computed from the time he was hired in 1990 until not only in 1999 when he was unjustly dismissed but until June 30, 2005 when his reinstatement was rendered impossible which is the day when he is deemed to have been actually separated or a total of 15 years. At one month pay for every year of service, he should receive P85,800 separation pay (Golden Ace Builders and Azul vs. Talde, G.R. 187200, May 5, 2010).



Constructive possession A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 15, 2010 12:00 AM Is it necessary that a person be in physical possession of the firearms and ammunitions in order to be convicted of the crime of illegal possession of firearms? This is one of the issues raised in this case of Fil. Fil was a Filipino contract worker in Angola. On his way back to the Philippines last January 30, 1996 via Dubai, he was detained by the Arab authorities in the Dubai airport because one Israel Jericho Pistol and Mini‐Uzi with 19 mm bullets were found in his luggage. Since he was listed as a passenger of PAL flight from Dubai to Manila, the PAL station manager in Dubai (Lino) was told by the Dubai Police that said firearms and ammunitions found in Fil’s luggage were confiscated from him; and that Fil would be imprisoned in Dubai and would not be able to board the plane unless the PAL Pilot in command (Captain Ed) would accept custody of Fil and of said firearms and ammunitions. So Lino approached the PAL Captain Ed and informed him of Fil’s case. Ed then agreed to take custody of the items confiscated from Fil so that the latter could leave Dubai for Manila. Lino then got the items from the Arab police and turned them over to Captain Ed who deposited them in the cockpit of the airplane in the presence of the Arab police. Thereafter Fil was allowed to board the plane. Upon arrival here, Max, a customs police who was informed that a PAL passenger will be arriving with firearms and ammunitions met a crew member who introduced him to Fil. When asked by Max if he brought firearms and ammo with him, Fil answered in the affirmative even adding that he bought them from Angola. Fil then signed the Customs Declaration Form which contains the entry “2 pistol guns sent surrender to PAL”. Thereupon Max was led to the cockpit by pilot Captain Ed who turned over to him the said firearms and ammo. Max then brought Fil to the examination room where the luggage was examined and Fil investigated. During the examination Fil admitted to special agent Pol that he bought the items from Angola but they were confiscated in Dubai and turned over to the PAL pilot. After gathering other documents like the Arrival Endorsement Form and the Customs Declaration Form and after verifying from the Firearms and Explosive Office in Camp Crame that Fil was not a licensed holder of said items as well as from the Customs Bureau that the firearms were not legally purchased, Pol endorsed Fil’s case to the Department of Justice State Prosecutor. Subsequently after preliminary investigation the State prosecutor filed in the Regional Trial Court (RTC) an Information charging Fil with illegal possession of firearms in violation of Section 1, PD 1866. After trial, the RTC found Fil guilty of illegal possession of firearms and ammunitions and sentenced him to imprisonment of 6 years and 1 day to 8 years and a fine of P80,000. On appeal, the Court of Appeals (CA) affirmed the said decision. Fil questioned said ruling. He argued that he could not have committed the crime imputed to him for he was never in custody or possession of any firearm and ammunition when he arrived in the Philippines since the said items were in the custody of the PAL pilot captain. Was Fil correct? No. The said firearms and ammo were confiscated in Dubai from Fil who was detained by the Arab police and was released only on the condition that he will bring the guns and ammo to the Philippines upon intercession of PAL station manager Lino who got the items and turned them over to the PAL pilot captain. Moreover, the Customs Declaration Form showed that Fil brought the guns and ammo with him upon arrival in the Philippines. The preparation of said Form is a requirement for all arriving passengers in the international flight like Fil. It provides details that only Fil could have possibly known or supplied. It was not elicited during the custodial investigation that



requires the assistance of a lawyer because Fil was not yet arrested when he filled it up and signed it. In fact he was escorted by Max for investigation only after he signed the Form. Consequently Fil was in constructive possession of the subject firearms and ammo. The kind of possession punishable under PD 1866 is one where the accused possesses the firearms and ammo either physically or constructively with intention to possess the same. In this case, the PAL pilot captain accepted custody of the items and of Fil himself in order that Fil who was being detained in Dubai would be released. In other words, the PAL pilot captain’s custody of said firearms and ammo was for and in behalf of Fil. Thus there was constructive possession. Fil is therefore guilty as charged (Evangelista vs. People, G.R. 163267, May 5, 2010).



Appointment and removal A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 14, 2010 12:00 AM In our presidential system of government, the authority to appoint is one of the President’s foremost powers. It is exercised either exclusively or with the consent of the Congressional Commission on Appointments (CA) or upon recommendation of the Judicial and Bar Council (JBC). The President has the power to appoint, with the consent of the CA, the following officials: (1) the heads of the executive departments; (2) ambassadors; (3) other public ministers and consuls; (4) officers of the armed forces from the rank of colonel or naval captain; and (5) other officers whose appointments are vested in him by the Constitution (Section 16, Article VII); (6) the Chairman and Members of the Civil Service Commission (Article IX B Section 1 [2]); (7) Chairman and Members of the Commission on Elections (Article IX C Section 1 [2]); (8) the Chairman and Members of the Commission on Audit (Article IX D Section 1[2]); (9) the regular members of the Judicial and Bar Council (Article 8 Section 8[2]). On the other hand the President shall appoint only from a list of at least three nominees submitted by the JBC, the members of the Supreme Court, the members of the Court of Appeals, judges of the lower courts (Article VIII, Section 9) and the Ombudsman and his deputies (Article XI Section 9). Hence, except for the above enumerated positions that require the consent of the CA or the recommendation of the JBC, the authority to appoint “all other officers of the government whose appointments are not otherwise provided by law and those whom he may be authorized by law to appoint” is lodged on the President alone. But Congress may by law also vest the appointment of other officers lower in rank, in the courts or in the heads of departments, agencies, commissions or boards (Article VII Section 16). It is true that implicit in the power to appoint is the power to remove the person appointed. The power to fire may really be implied from the power to hire. This is a basic and general rule applicable especially to the President as the government’s chief executive. It is essential for a more effective control and for a more productive and efficient performance of the functions of the head of the Executive Branch of the government. The President can achieve more in running the affairs of the State if he has the power to pull out any member of his team who is not playing well or who does not practice teamwork. But like all general rules, there are exceptions. First of all, the President cannot remove his appointees to the judiciary like the members of the Supreme Court, the Court of Appeals and the lower courts. Their terms are already fixed by the Constitution; and they may be removed only by Congress through impeachment in case of members of the SC and by the SC itself in case of members of the lower courts and their personnel who are under its administrative supervision. This is to insure the independence and autonomy of the judiciary as a co‐equal branch of government. Secondly the President has also no power to fire the members of the Constitutional Commissions and the Ombudsman because their terms of office are also fixed by the Constitution and, like the members of the SC, they may be removed from office only on impeachment for culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust (Article XI Section 2). Hence the President’s power of removal springing forth from his/her power of appointment mainly refers only to officers in the Executive Department, Bureaus, Offices, Subdivisions, Instrumentalities and Agencies of the government, including government owned and controlled corporations with original charters all of which are under his/her control and supervision (Section 17, Article VII). But since these positions are within the scope of the civil service (Section 2[1] Article IX B), the President’s power of removal is also subject to some limitations. Section 2 (3) Article IX B of the Constitution says that “no officer or



employee of the civil service shall be removed or suspended except for causes provided by law” The causes for removal depend on the kind of positions in the civil service. Appointments in the civil service may be appointments to competitive positions which must be made according to merit and fitness to be determined as far as practicable through competitive examination; or to non‐competitive positions where merit and fitness are determined not by competitive examination since by their nature they are “policy determining, primarily confidential or highly technical” (Section 2[2] Article IX B). Competitive positions in the civil service may also be classified as career service under the Civil Service Code (P.D. 807) since appointments are based on merit and fitness determined by competitive examinations or mainly on technical qualifications that assure appointees (1) security of tenure and (2) opportunity for advancement to higher career positions. Non‐competitive positions on the other hand are similar to the non‐career service under the Civil Service Code where entrance is not based on tests for merit and fitness and where tenure is limited either: to a period specified by law, or co‐terminus with that of the appointing authority, or at his pleasure, or to the duration of the project for which the appointee is hired. But whether in competitive or non‐competitive service, security of tenure is guaranteed in the sense that their right to continue in the position held should not be impaired by any arbitrary action. Removal or suspension of competitive‐ career civil servants shall be only for “causes provided by law” which means that they are not only in accordance with the procedure provided by law but also for reasons which the law and sound public policy recognize as sufficient for removal and “substantial in nature directly affecting the rights and interests of the public” (De los Santos vs. Mallare, 87 Phil, 290). With regards to officials and employees holding primarily confidential position, they continue in office only for so long as confidence in them endures. Hence the termination of their official relation can be justified on the ground of loss of confidence which strictly speaking does not involve removal but expiration of the term of office (Hernandez vs. Villegas 14 SCRA, 544). These are guidelines that may help the incoming Noynoy Administration when he takes over the helm and bring in a new team. Of course these rules on removal presuppose previous legitimate appointments of officials clinging on to the position. If there is something wrong with the appointments as when they may be considered “midnight”, then the step to take is more of a revocation of the appointment rather than a removal from office.



Bare assertions A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 10, 2010 12:00 AM Even if contracts are obligatory whether oral or written, a party trying to seek their specific performance should prove their existence and the terms thereof by preponderance of evidence. Bare assertions are not enough. This is the rule applied in this case. The case is about a parcel of land with an area of 1,007 square meters fronting the provincial highway (Lot 9) originally belonging to Pastor who left it intestate in 1962 to his wife Vera, and children Rita, Lucy, Rod, Kiko and Mar (heirs). The heirs were already occupying definite portions of said lot when Pastor died. The front portion along the highway was occupied by the family ancestral home co‐owned by the heirs. Beside it, also fronting the highway is Rod’s hut. Mar’s house on the other hand stood at the back of the ancestral home. In 1968, the heirs leased the ground floor of the ancestral home together with a lot area of 300 square meters, to Larry who immediately took possession thereof. In 1974, Rod, Kiko, Lucy and Rita sold to Larry their shares, interest and participation on the ancestral home and the 300 square meters lot on which it stood. So by virtue of the deeds of sale, Larry’s possession as lessee turned into co‐ownership with Mar and Vera who did not sell their shares in the house and lot. Also, on various dates in 1971, Rod, Kiko and Lucy sold their remaining shares in Lot 9 to Cely. Later on in 1983, Rita likewise sold her share to Cely who thereby acquired a total 493 square meters of Lot 9. On June 18, 1993, the Republic of the Philippines, through the Department of Public Works and Highways (DPWH) expropriated the front portion of Lot 9 for the expansion of the Cebu South Road by filing a petition in Court. As occupant of the expropriated portion, Cely thus moved to withdraw her corresponding share in the expropriation payment. This was opposed by Mar and Vera and was yet unresolved. On July 23, 1993, the heirs executed an affidavit confirming the Oral Partition/Settlement of Pastor’s estate where they alleged: that after the death of Pastor in 1962 they orally made a partition and extra‐judicially declared themselves as his heirs; that in the oral partition the portion to be allotted to Mar and Vera shall be fronting the highway while the share of the rest shall be at the rear as shown by the survey attached to said affidavit. On the basis of this affidavit of oral partition Mar filed an action for ejectment against Larry claiming ownership of the lot occupied by Larry by virtue of the oral partition and praying that Larry pay him rentals and transfer to the rear portion. But the court dismissed this action because the deeds of sale in favor of Larry clearly show that the portion sold to him was fronting the highway. Then on June 3, 1996 Vera and the heirs of Mar (who already died) filed an action against both Cely and Larry citing the alleged oral partition agreed by the heirs even before the sale to both Larry and Cely to which the latter were privy and therefore bound to comply. The other cause of action is directed solely at Cely who allegedly contracted with them to assume payment of real estate taxes, survey Lot 9 in accordance with the oral partition, and obtain titles for each portion. The trial court, as subsequently affirmed by the Court of Appeals (CA) dismissed the complaint holding that the deeds of sale in favor of Larry and Cely which are written documents, the validity of which were never questioned by Vera and Mar, stands superior over the allegations of an oral agreement, the existence of which was not proven. Were the RTC and the CA correct?



Yes. Vera and Mar’s heirs’ only piece of evidence to prove the alleged oral partition was the joint affidavit entitled “Confirmation of Oral Partition/Settlement of Estate” executed by the heirs in 1993 to the effect that such an oral partition has been agreed upon after Pastor’s death. They did not adequately explain why the affidavit was executed only in 1993, several years after Larry and Cely took possession of the front portion of Lot 9. If there had been an oral partition allotting the front portion to Vera and Mar, now represented by his heirs, they should have immediately objected to Larry and Cely’s occupation. Instead they only asserted ownership over the front portion in 1993 (with the execution of the affidavit) when expropriation became imminent and later filed in court. Moreover Vera and Mar’s heirs failed to show that they and other heirs of Pastor took possession of their allotted shares as agreed upon in the alleged oral partition. Actual possession and exercise of dominion over definite portion of the property in accordance with the alleged oral partition would have been its strong proof. In this case Vera and Mar’s heirs failed to present any evidence that they took actual possession of their respective allotted shares. In fact the evidence of the parties indicates that the actual occupants of said front portion are Cely and Larry. In fine Vera and Mar’s heirs failed to prove their allegation of oral partition (Heirs of Pacres etc. et. al. vs. Heirs of Ygona etc et. al, G.R. 174719, May 5, 2010).



Fair market value A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 09, 2010 12:00 AM “Fair market value” is a phrase used not only in ordinary business parlance but in law and jurisprudence where it has already acquired a settled meaning. This case of the Public Estates Authority (PEA), now the Philippine Reclamation Authority (PRA) gives us the meaning of said phrase. The case involves a Compromise Agreement (CA) entered into by PEA with Gerry and the estate of Jessie represented by Benny as their attorney‐in‐fact (second party) which settled the issue on the overlapping parcels of land between PEA and the second party in the reclaimed area. The CA which has already been approved by the court and has become the final judgment between the parties, provides among others: (1) that second party has the option to purchase additional 7.6 hectares of PEA’s land within three years from the date the CA has been approved by the court in a judgment that has become final; and (2) that the value of the land subject of the option shall be based on the fair market value as determined by PEA on the date of the exercise of the option. On January 26, 1999, second party informed PEA that they are exercising the option to purchase. No reply was heard from PEA. So on June 6, 2002, second party moved that the trial court issue an order for the appointment of three licensed real estate appraisers to determine the fair market value on the date of the exercise of the option, and for the suspension of the three‐year period until the trial court’s approval of the appraisal report. By letter of March 26, 2004 however, PEA set the terms and conditions for the second party’s exercise of the option by: (1) specifying the parcels of land comprising the 7.6 hectares; (2) fixing the purchase price at P60,000 per square meter or a total of P4.560 billion; and (3) imposing a period of 122 days within which to exercise the option and to pay the purchase price in cash. Second party did not heed PEA’s imposition of the 122‐day period to exercise the option and instead filed a Supplemental Motion in the trial court asking for the implementation of the option to purchase it has exercised on January 26, 1999, which was well within the three year period, by fixing the fair market value based on the actual condition of said 7.6 hectares as well as the prevailing real estate market price on or about said date. The trial court however denied the second party’s motion on January 11, 2005, holding among others that it is PEA which has the exclusive right to determine the fair market value of the land that second party want to purchase pursuant to the CA. Was the trial court correct? No. The proper interpretation of the stipulation in the CA is that PEA is given the right to determine the price of the subject land, provided it can substantiate that the same is the fair market value as of the date of the exercise of the option. The term fair market value in the stipulation cannot be ignored without running afoul of the intent of the parties. Since it is not disputed that second party exercised the option to purchase on January 26, 1999, the valuation should thus be based on the fair market value of the property on said date. Fair market value is the price at which a property may be sold by a seller who is not compelled to sell and bought by the buyer who is not compelled to buy taking into consideration all uses to which the property is adapted and might, in reason, be applied. Given this yardstick, the proper valuation of the property should be arrived at through the market data approach, which is based on the sales and listings of comparable property registered within the vicinity; and that the property was classified as raw land because there were yet no houses and facilities like electricity, water and others at the time of the exercise of the option.



PEA’s bad faith is abundantly clear. It did not respond to the second party’s notification of their intention to exercise the stipulated option to purchase until after four years, or on March 26, 2004 when it surprised second party with an exorbitant price for the property and gave them only 122 days within which to purchase the same. Undeniably it is enfeebling the CA under the guise of enforcing it. This cannot be sanctioned (Public Estates Authority etc. vs. Estate of Yujuico etc. G.R. 181847, May 5, 2010).



Presumption of lawfulness A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 08, 2010 12:00 AM This is a case about the rule on the presumption of regularity in the performance of official duties unless rebutted by clear and convincing evidence to the contrary. The case involved one motor vehicle and six motorcycles purchased by the Congressman of a district in Agusan del Sur out of his CDF fund and turned over to the Municipality of Bunawan to help in the planning, monitoring and coordination of the implementation of the waterworks projects located throughout the Province. Pursuant to a resolution of the Bunawan Sangguniang Bayan dated May 17, 1995 (Res. 95‐27), Andy, the municipal mayor executed a deed of transfer of said vehicles to the San Francisco Water District (SFWD) which was designated to implement, control or supervise all the CDF funded waterworks projects, so that they could be used for the same purpose for which they were purchased. On July 27, 1995 however the Sangguniang Panlalawigan of the Province disapproved Res. 95‐27 of the Bunawan Sangguniang Bayan and cancelled and declared null and void the deed of transfer executed pursuant thereto for being in violation of the Local Government Code. This prompted the newly elected municipal mayor of Bunawan, to demand from SFWD the return of the said vehicles. But SFWD refused. So on May 13, 1996, a complaint was filed against then already ex‐Mayor Andy, Tino his vice mayor and four Sangguniang Bayan members, Gene, Emil, Ruth and Ernie who passed Res. 95‐27 accusing them of violating Section 3(e) of the Anti‐Graft Law for causing undue injury to the Municipality. Also charged was the general manager of SFWD. On July 31, 2003, after due trial, the Sandiganbayan rendered a decision finding Andy, Tino and Emil guilty as charged. The cases against Gene and Ruth were dropped on the ground of their demise while Ernie and the GM of SFWD were acquitted on the ground of reasonable doubt. Was the Sandiganbayan correct? No. The elements of the offense are: (1) that the accused are public officers or private persons charged in conspiracy with them; (2) that said public officers committed the prohibited acts during the performance of their official duties or in relation to their public positions; (3) that they caused undue injury to any party whether Government or private party; (4) that such injury is caused by giving unwarranted benefits, advantage or preference to another; and (5) that the public officers have acted with manifest partiality, evident bad faith or gross, inexcusable negligence. In this case only the first element was present. All the other elements were not proven. The transfer of the vehicles to SFWD was made in furtherance of the purpose for which the funds were released. The deed of transfer also expressly provided that the said vehicles shall be used for the same purpose for which they were purchased. Moreover the transfer was made to ensure the success of the implementation of the CDF funded waterworks projects and not because SFWD was given any preference, unwarranted benefits or undue advantage. Andy, Tino and Emil were not also motivated by bad faith when they transferred the motor vehicles to SFWD. They have in their favor the presumption of regularity in the performance of official duties as mayor, vice mayor and councilor respectively. This presumption of regularity may be rebutted by affirmative evidence of irregularity or failure to perform a duty. In his case the presumption prevails because of lack of clear and convincing evidence to the contrary. Every reasonable intendment of the law will be made in support of the presumption and in case of doubt as to an officer’s act being lawful or unlawful, construction should be in favor of its lawfulness (Bustillo et. al. vs. People, G.R. 160718, May 12, 2010).



Final even if erroneous A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 03, 2010 12:00 AM This is another case illustrating that a final decision can no longer be modified. This is the case of Lito who was hired as technical salesman by a company engaged in the distribution of various chemicals from foreign suppliers (MTI). After more than six years of employment, MTI terminated Lito’s services on July 15, 1997. So Lito filed a case of illegal dismissal with the Labor Arbiter of the NLRC (LA) against MTI and its President and General Manager Vic. On May 31, 1999, the LA rendered a decision finding Lito’s dismissal illegal and ordering MTI and Vic to reinstate him to his former position or to other equivalent position and to pay his full back‐wages and other benefits totaling P98,694.35. This decision was affirmed after it was elevated all the way up to the Supreme Court. It became final on August 13, 2001 and was remanded to the LA for execution. On August 28, 2001 the LA issued a writ of execution commanding the NLRC Sheriff to collect the amount due to Lito already totaling P296,160.10. Regrettably, in a series of pleadings motions and appeals to the NLRC and the Court of Appeals (CA), MTI and Vic have delayed the execution of the LA’s final decision. When the LA again issued an alias writ of execution on March 11, 2003 commanding the Sheriff to collect the recomputed amount of P251,927.12 due to Lito, the Sheriff garnished the account of MTI and Vic in a bank. Vic and MTI again filed a motion for reconsideration questioning this garnishment alleging that only MTI was the employer of Lito and Vic was only a nominal party. But the LA denied the motion for reconsideration on June 23, 2003 thereby triggering another series of appeal to the NLRC and the CA. On July 14, 2005, the CA issued another decision denying MTI and Vic’s petition for certiorari and upholding the execution made by the Sherriff who levied the real property of Vic under TCT No. 59496. The CA subsequently affirmed this decision on November 16, 2005 by denying Vic’s and MTI’s motion for reconsideration. Once more Vic and MTI elevated the case before the SC. Vic argued that his property cannot be made liable for the monetary award in favor of Lito because of a previous ruling of the SC that to hold president or director liable for debts of the corporation and thus pierce the veil of corporate fiction, the bad faith or wrongdoing of the president or director must be established clearly and convincingly. Was Vic and MTI correct? No. Once a judgment becomes final and executory, the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing party. Final and executory judgments can neither be amended nor altered except for correction of clerical errors, even if the purpose is to correct erroneous conclusions of fact or of law. Everything considered what must be enforced through a writ of execution is the dispositive portion of the LA decision dated May 31, 1999 as affirmed by the NLRC, the CA and the SC. Since the writ of execution issued by the LA does not vary but is in fact completely consistent with the final decision in this case, the order of execution issued by the LA is beyond challenge. It is no longer feasible to modify the final ruling in this case through the expediency of a petition questioning the writ of execution. This late in the day, Vic is barred by final judgment from advancing the argument that his real property cannot be made liable for the monetary award in favor of Lito. The final judgment in this case may no longer be reviewed, or in any way modified, directly or indirectly, by a higher court, not even by the Supreme Court (Marmosy Trading Inc. et.al vs. Court of Appeals et. al. G.R. 170515, May 6, 2010).



Ministerial A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 02, 2010 12:00 AM Can a writ of possession of a mortgaged property that has been foreclosed be denied because of questions on the validity of the mortgage or its foreclosure and sale? This is the issue raised in this case of the brothers Tony and Jim. Tony and Jim are owners of two parcels of land covered by TCT Nos. 79865 and 79866 located at San Francisco del Monte QC which they mortgaged to a bank (PDB) to secure the various loans they obtained totaling P25 million. Since they failed to pay their obligation on due date, PDB instituted an extrajudicial foreclosure sale of the lands before a Notary Public. Notices of scheduled sale of said properties were posted at the main building of the Hall of Justice in QC and published in a newspaper of general circulation in QC once a week for three consecutive weeks. On the scheduled date of foreclosure PBD emerged as the highest bidder, so a Certificate of Sale was issued in its favor and registered with the Register of Deeds on May 19, 1999. Since Tony and Jim failed to redeem the property within the one year period, PDB filed a petition for a writ of possession before the Regional Trial Court (RTC) Branch 77. In the meantime Jim and Tony also filed an action for annulment of the certificate of sale, Promissory Note and Deed of Mortgage before RTC Branch 221 which issued a writ of preliminary injunction on June 14, 2000 restraining PDB from consolidating title to the property and committing any act of disposition that would defeat the brothers’ right of ownership. On the other hand, after numerous incidents arising from PDB’s petition for writ of possession, and after the bank was finally allowed to present its evidence ex‐parte, RTC Branch 77 finally issued an order dated January 19, 2009, denying the writ of possession because of lack of proof that notices of foreclosure sale were duly posted, irregularity in the conduct of sale by the Notary Public which should have been filed and conducted by the Ex‐Officio Sheriff of the Executive Judge and lack of approval of the certificate of sale by said Judge. PDB questioned the said ruling of RTC Br. 77. It contended that said court cannot cite as ground for denial of the writ of possession, questions relating to the validity of the mortgage or its foreclosure. Was PDB correct? Yes. Since Tony and Jim failed to redeem the property foreclosed within the reglementary period, entitlement to the writ of possession becomes a matter of right and the issuance thereof is merely a ministerial function. The judge to whom an application for writ of possession is filed need not look into the validity of the mortgage or the manner of its foreclosure. Questions regarding the validity of a mortgage or its foreclosure as well as the sale of the property covered by the mortgage cannot be raised as grounds to deny the writ of possession. Any such questions must be determined in a subsequent proceeding. In fact Tony and Jim already commenced an action for the annulment of the certificate of sale, promissory note and deed of mortgage. Until the foreclosure sale is annulled, the issuance of the writ of possession is ministerial (Planters Development Bank vs. Ng, G.R. 187556, May 5, 2010).



Internet libel A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated June 01, 2010 12:00 AM In criminal actions especially for libel, the place where the crime is committed determines not only the venue of the action but constitute an essential element of jurisdiction. Pursuant to Article 360 of the Revised Penal Code as amended by R.A. 4363, venue in libel cases where the complainant is a private individual is limited only either to (1) where the complainant actually resides at the time of the commission of the offense, or (2) where the alleged defamatory article was printed and first published. In case the libel is committed in an internet website, can the venue be at the place where it was first accessed by the complainant? This is the issue raised in this case. The case involved 13 counts of libel filed under Article 355 in relation to Article 353 of the Revised Penal Code against the officers and members of the board of trustees of a large group of disgruntled plan holders of the Pacific Plans Inc. (accused) known as Parents Enabling Parents Coalition Inc. (PEPCI). The complaint was filed by Jessie John Gimenez, the attorney‐in‐fact of Alfonso Yuchengco, Helen Y. Dee and the Malaysian Insurance Inc. The alleged libelous materials appeared on an internet website maintained by PEPCI (pepcoalition) to provide a forum by which the plan‐holders could seek redress for their pecuniary loss under their policies. Gimenez alleged that upon accessing the websites in Makati from August 25 to October 2, 2005, he was appalled to read 13 articles, maliciously and recklessly caused to be published by said accused containing highly derogatory statements and false accusations relentlessly attacking the Yuchengco family and Malayan. So he filed complaints for libel before the Makati City Prosecutor’s Office After finding probable cause to indict the accused, the Makati City Prosecutor’s Office filed the 13 Informations charging accused with libel before the Regional Trial Court (RTC) of Makati City. Initially the Informations were quashed because they lacked allegations that the offended parties were residing in Makati City at the time of the commission of the offense. Later on upon motion for reconsideration of the prosecution, the RTC issued an order allowing the prosecution to amend the Informations. In the amended Informations subsequently filed, it was alleged that the supposed libelous articles were posted and published in a website accessible in Makati City, which was accessed by private complainants in said place. The accused again moved to quash the Informations on the ground that prosecution erroneously laid the venue of the case in the place where the offended party accessed the internet‐published article. So the accused contended that the amended information still failed to vest jurisdiction upon the RTC of Makati City. Were they correct? Yes. Republic Act 4363 amending Article 360 was enacted to prevent the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far flung areas meant to accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute when the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need of revenge. If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue, the Information must allege with particularity where the defamatory article was printed and first published as evidenced or supported by, for instance the address of their editorial or business offices in the case of newspapers, magazines or serial publication. This pre‐condition becomes necessary in order to forestall any inclination to harass. But when it pertains to defamatory materials appearing on a website the same rule cannot be applied as there would be no way of determining the situs of the printing and first publication. The offended parties’ first access to the defamatory article on the accused website in Makati cannot be equated with “printing and first publication”, as it would spawn the very ills that the amendment to Article 360 sought to discourage and prevent. It hardly requires



much imagination to see the chaos that would ensue in situations where the website’s author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that private complainant may have allegedly accessed the offending website. To hold that the Amended Information in this case sufficiently vested jurisdiction in the courts of Makati City simply because the defamatory articles were accessed therein would open the floodgates to libel suits being filed in all other locations where the pepcoalition website is likewise accessed or capable of being accessed (Bonifacio et. al vs. RTC of Makati Br. 149 etc. G.R. 184800, May 5, 2010).

a law each day (keeps trouble away) by jose c. sison

Documents