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

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

 

ESCOLIN, J.:

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

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

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

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

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

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

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

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

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal

personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may

have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

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

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

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

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

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

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

 

 

Separate Opinions

 

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

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

I shall explain why.

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

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

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

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

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

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

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

 

TEEHANKEE, J., concurring:

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

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

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

 

MELENCIO-HERRERA, J., concurring:

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

 

PLANA, J., concurring (with qualification):

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

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

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

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

Cuevas and Alampay, JJ., concur.

 G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners, vs.COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR., respondents.

R E S O L U T I O N

 

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9, 1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of time to file a motion for reconsideration, which was eventually denied by the appellate court in the Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September 24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied petitioners' motion for extension of time to file a motion for reconsideration, directed entry of judgment and denied their motion for reconsideration. It correctly applied the rule laid down in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208), this Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a motion may be filed only in cases pending with the Supreme Court as the court of last resort, which may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed the prospective application of said rule, and explained the operation of the grace period, to wit:

In other words, there is a one-month grace period from the promulgation on May 30, 1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to file motions for new trial or reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still within the grace period, which expired on June 30, 1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669, October 28, 1986, 145 SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9, 1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no longer within the coverage of the grace period. Considering the length of time from the expiration of the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987, petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazette before they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated, and published in the advance reports of Supreme Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA) and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building or structure is responsible for the damage resulting from its total or partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and , therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear chance," which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of merit.

Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

A.M. No. MTJ-92-706 March 29, 1995

LUPO ALMODIEL ATIENZA, complainant, vs.JUDGE FRANCISCO F. BRILLANTES, JR., Metropolitan Trial Court, Branch 28, Manila, respondent.

 

QUIASON, J.:

This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against Judge Francisco Brillantes, Jr., Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila.

Complainant alleges that he has two children with Yolanda De Castro, who are living together at No. 34 Galaxy Street, Bel-Air Subdivision, Makati, Metro Manila. He stays in said house, which he purchased in 1987, whenever he is in Manila.

In December 1991, upon opening the door to his bedroom, he saw respondent sleeping on his (complainant's) bed. Upon inquiry, he was told by the houseboy that respondent had been cohabiting with De Castro. Complainant did not bother to wake up respondent and instead left the house after giving instructions to his houseboy to take care of his children.

Thereafter, respondent prevented him from visiting his children and even alienated the affection of his children for him.

Complainant claims that respondent is married to one Zenaida Ongkiko with whom he has five children, as appearing in his 1986 and 1991 sworn statements of assets and liabilities. Furthermore, he alleges that respondent caused his arrest on January 13, 1992, after he had a heated argument with De Castro inside the latter's office.

For his part, respondent alleges that complainant was not married to De Castro and that the filing of the administrative action was related to complainant's claim on the Bel-Air residence, which was disputed by De Castro.

Respondent denies that he caused complainant's arrest and claims that he was even a witness to the withdrawal of the complaint for Grave Slander filed by De Castro against complainant. According to him, it was the sister of De Castro who called the police to arrest complainant.

Respondent also denies having been married to Ongkiko, although he admits having five children with her. He alleges that while he and Ongkiko went through a marriage ceremony before a Nueva Ecija town mayor on April 25, 1965, the same was not a valid marriage for lack of a marriage license. Upon the request of the parents of Ongkiko, respondent went through another marriage ceremony with her in Manila on June 5, 1965. Again, neither party applied for a marriage license. Ongkiko abandoned respondent 17 years ago, leaving their children to his care and custody as a single parent.

Respondent claims that when he married De Castro in civil rites in Los Angeles, California on December 4, 1991, he believed, in all good faith and for all legal intents and purposes, that he was single because his first marriage was solemnized without a license.

Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage before a party thereto can enter into a second marriage. Article 40 of said Code provides:

The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

Respondent argues that the provision of Article 40 of the Family Code does not apply to him considering that his first marriage took place in 1965 and was governed by the Civil Code of the Philippines; while the second marriage took place in 1991 and governed by the Family Code.

Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code, said Article is given "retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." This is particularly true with Article 40, which is a rule of procedure. Respondent has not shown any vested right that was impaired by the application of Article 40 to his case.

The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected (Gregorio v. Court of Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws (Billones v. Court of Industrial Relations, 14 SCRA 674 [1965]).

Respondent is the last person allowed to invoke good faith. He made a mockery of the institution of marriage and employed deceit to be able to cohabit with a woman, who beget him five children.

Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963. At the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer. Yet, he never secured any marriage license. Any law student would know that a marriage license is necessary before one can get married. Respondent was given an opportunity to correct the flaw in his first marriage when he and Ongkiko were married for the second time. His failure to secure a marriage license on these two occasions betrays his sinister motives and bad faith.

It is evident that respondent failed to meet the standard of moral fitness for membership in the legal profession.

While the deceit employed by respondent existed prior to his appointment as a Metropolitan Trial Judge, his immoral and illegal act of cohabiting with De Castro began and continued when he was already in the judiciary.

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of impropriety, not only with respect to his performance of his judicial duties but also as to his behavior as a private individual. There is no duality of morality. A public figure is also judged by his private life. A judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must behave with propriety at all times, in the performance of his judicial duties and in his everyday life. These are judicial guideposts too self-evident to be overlooked. No position exacts a greater demand on moral righteousness and uprightness of an individual than a seat in the judiciary (Imbing v. Tiongzon, 229 SCRA 690 [1994]).

WHEREFORE, respondent is DISMISSED from the service with forfeiture of all leave and retirement benefits and with prejudice to reappointment in any branch, instrumentality, or agency of the government, including government-owned and controlled corporations. This decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

THIRD DIVISION

[G.R. No. 145391.  August 26, 2002]

AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs. MARIO LLAVORE LAROYA, respondent.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review on certiorari to set aside the Resolution [1] dated December 28, 1999 dismissing the petition for certiorari and the Resolution[2] dated August 24, 2000 denying the motion for reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special Civil Action No. 17-C (99).

The Facts

Two vehicles, one driven by respondent Mario Llavore Laroya (“Laroya” for brevity) and the other owned by petitioner Roberto Capitulo (“Capitulo” for brevity) and driven by petitioner Avelino Casupanan (“Casupanan” for brevity), figured in an accident.   As a result, two cases were filed with the Municipal Circuit Trial Court (“MCTC” for brevity) of Capas, Tarlac.   Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property, docketed as Criminal Case No. 002-99.  On the other hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict, docketed as Civil Case No. 2089.

When the civil case was filed, the criminal case was then at its preliminary investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-shopping considering the pendency of the criminal case. The MCTC granted the motion in the Order of March 26, 1999 and dismissed the civil case.

On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate civil action which can proceed independently of the criminal case. The MCTC denied the motion for reconsideration in the Order of May 7, 1999.   Casupanan and Capitulo filed a petition for certiorari under Rule 65 before the Regional Trial Court (“Capas RTC” for brevity) of Capas, Tarlac, Branch 66, [3] assailing the MCTC’s Order of dismissal.

The Trial Court’s Ruling

The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari for lack of merit.  The Capas RTC   ruled that the order of dismissal issued by the MCTC is a final order which disposes of the case and therefore the proper remedy should have been an appeal.  The Capas RTC further held that a special civil action for certiorari is not a substitute for a lost appeal.  Finally, the Capas RTC declared that even on the premise that the MCTC erred in dismissing the civil case, such error is a pure error of judgment and not an abuse of discretion.

Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in the Resolution of August 24, 2000.

Hence, this petition.

The Issue

The petition premises the legal issue in this wise:

“In a certain vehicular accident involving two parties, each one of them may think and believe that the accident was caused by the fault of the other.  x x x [T]he first party, believing himself to be the aggrieved party, opted to file a criminal case for reckless imprudence against the second party.   On the other hand, the second party, together with his operator, believing themselves to be the real aggrieved parties, opted in turn to file a civil case for quasi-delict against the first party who is the very private complainant in the criminal case.”[4]

Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case.

The Court’s Ruling

Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the ground of forum-shopping, constitutes a counterclaim in the criminal case.  Casupanan and Capitulo argue that if the accused in a criminal case has a counterclaim against the private complainant, he may file the counterclaim in a separate civil action at the proper time.  They contend that an action on quasi-delict is different from an action resulting from the crime of reckless imprudence, and an accused in a criminal case can be an aggrieved party in a civil case arising from the same incident. They maintain that under Articles 31 and 2176 of the Civil Code, the civil case can proceed independently of the criminal action.  Finally, they point out that Casupanan was not the only one who filed the independent civil action based on quasi-delict but also Capitulo, the owner-operator of the vehicle, who was not a party in the criminal case.

In his Comment, Laroya claims that the petition is fatally defective as it does not state the real antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to question the order of dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there is no question of law to be resolved as the order of dismissal is already final and a petition for certiorari is not a substitute for a lapsed appeal.

In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of whether there is forum-shopping since they filed only one action - the independent civil action forquasi-delict against Laroya.

Nature of the Order of Dismissal

The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme Court Administrative Circular No. 04-94.  The MCTC did not state in its order of dismissal[5] that the dismissal was with prejudice.  Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states it is with prejudice. [6] Absent a declaration that the dismissal is with prejudice, the same is deemed without prejudice.   Thus, the MCTC’s dismissal, being silent on the matter, is a dismissalwithout prejudice.

Section 1 of Rule 41[7] provides that an order dismissing an action without prejudice is not appealable.   The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41 expressly states that “where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.”  Clearly, the Capas RTC’s order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous.

Forum-Shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment.[8]Forum-shopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought.[9] However, there is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action.

Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal

Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code.   These articles on culpa aquiliana read:

“Art. 2176.  Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2177.  Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.”

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another.  Either the private complainant or the accused can file a separate civil action under these articles.   There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles.

Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure (“2000 Rules” for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit:

“SECTION 1. Institution of criminal and civil actions. – (a) x x x.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action.” (Emphasis supplied)

Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action.

Filing of a separate civil action

Section 1, Rule 111 of the 1985 Rules on Criminal Procedure (“1985 Rules” for brevity), as amended in 1988, allowed the filing of a separate civil action independently of the criminal action provided the offended party reserved the right to file such civil action.   Unless the offended party reserved the civil action before the presentation of the evidence for the prosecution,  all civil actions arising from the same act or omission were deemed “impliedly instituted” in the criminal case.  These civil actions referred to the recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the recovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations.

Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the offended party had to reserve in the criminal action the right to bring such action.  Otherwise, such civil action was deemed “impliedly instituted” in the criminal action.   Section 1, Rule 111 of the 1985 Rules provided as follows:

“Section 1. – Institution of criminal and civil actions. – When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission of the accused.

x x x.”  (Emphasis supplied)

Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as follows:

“SECTION 1. Institution of criminal and civil actions. – (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

x x x

(b)      x x x

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this rule governing consolidation of the civil and criminal actions.”  (Emphasis supplied)

Under Section 1 of the present Rule 111, what is “deemed instituted” with the criminal action is only the action to recover civil liability arising from the crime or ex-delicto.  All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer “deemed instituted,” and may be filed separately and prosecuted independently even without any reservation in the criminal action.  The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code.  The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action.  Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action “deemed instituted” in the criminal action.[10]

Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence.   Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action.    If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action.   The consolidation under this Rule does not apply to separate civil actions arising from the  same  act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code.[11]

Suspension of the Separate Civil Action

Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action.   If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action.  This rule applied only to the separate civil action filed to recover liability ex-delicto.  The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action.

The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to wit:

“SEC. 2. When separate civil action is suspended. – After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

x x x.”  (Emphasis supplied)

Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action, filed to recover damages  ex-delicto, is suspended upon the filing of the criminal action.  Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto.

When civil action may proceed independently

The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in the criminal case, can file a separate civil action against the offended party in the criminal case.  Section 3, Rule 111 of the 2000 Rules provides as follows:

“SEC 3.  When civil action may proceed independently. -  In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party.  It shall proceed independently of the criminal action and shall require only a preponderance of evidence.  In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.”  (Emphasis supplied)

Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly allows the “offended party” to bring an independent civil action under Articles 32, 33, 34 and 2176 of the Civil Code.  As stated in Section 3 of the present Rule 111, this civil action shall proceed independently of the criminal action and shall require only a preponderance of evidence.   In no case, however, may the “offended party recover damages twice for the same act or omission charged in the criminal action.”

There is no question that the offended party in the criminal action can file an independent civil action for quasi-delict against the accused.  Section 3 of the present Rule 111 expressly states that the “offended party” may bring such an action but the “offended party” may not recover damages twice for the same act or omission charged in the criminal action.  Clearly, Section 3 of Rule 111 refers to the offended party in the criminal action, not to the accused.

Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos[12] where the Court held that the accused therein could validly institute a separate civil action for quasi-delictagainst the private complainant in the criminal case.  In Cabaero, the accused in the criminal case filed his Answer with Counterclaim for malicious prosecution.  At that time the Court noted the “absence of clear-cut rules governing the prosecution on impliedly instituted civil actions and the necessary consequences and implications thereof.” Thus, the Court ruled that the trial court should confine itself to the criminal aspect of the case and disregard any counterclaim for civil liability.   The Court further ruled that the accused may file a separate civil case against the offended party “after the criminal case is terminated and/or in accordance with the new Rules which may be promulgated.”  The Court explained that a cross-claim, counterclaim or third-party complaint on the civil aspect will only unnecessarily complicate the proceedings and delay the resolution of the criminal case.

Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to address the lacuna mentioned in Cabaero.  Under this provision, the accused is barred from filing a counterclaim, cross-claim or third-party complaint in the criminal case.  However, the same provision states that “any cause of action which could have been the subject (of the counterclaim, cross-claim or third-party complaint) may be litigated in a separate civil action.”  The present Rule 111 mandates the accused to file his counterclaim in a separate civil action which shall proceed independently of the criminal action, even as the civil action of the offended party is litigated in the criminal action.

Conclusion

Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation.   The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code.    The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action.

Thus, the offended party can file two separate suits for the same act or omission.   The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict - without violating the rule on non-forum shopping. The two cases can proceed simultaneously and independently of each other.   The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict.  The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant.  In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused.  In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians.

Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case.   This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused “ may be litigated in a separate civil action.”  This is only fair for two reasons.  First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case.  The accused is therefore forced to litigate separately his counterclaim against the offended party.   If the accused does not file a separate civil action for quasi-delict, the prescriptive period may set in since the period continues to run until the civil action for quasi-delict is filed.

Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action.  To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law.

Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper.  The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is erroneous.

We make this ruling aware of the possibility that the decision of the trial court in the criminal case may vary with the decision of the trial court in the independent civil action.   This possibility has always been recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of the Code.  But the law itself, in Article 31 of the Code, expressly provides that the independent civil action “may proceed independently of the criminal proceedings and regardless of the result of the latter.”   In Azucena vs. Potenciano,[13] the Court declared:

“x x x.  There can indeed be no other logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution — whether it be conviction or acquittal — would render meaningless the independent character of the civil action and the clear injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and regardless of the result of the latter.’”

More than half a century has passed since the Civil Code introduced the concept of a civil action separate and independent from the criminal action although arising from the same act or omission.  The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts, one hearing the criminal case and the other the civil action for  quasi-delict. The fear of conflicting and irreconcilable decisions may be more apparent than real.  In any event, there are sufficient remedies under the Rules of Court to deal with such remote possibilities.

One final point.   The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that -

“x x x statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent.”[14]

WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and Civil Case No. 2089 is REINSTATED.

SO ORDERED.

Puno, (Chairman), Panganiban, JJ., concur.Sandoval-Gutierrez, J., on leave.

  

Republic of the Philippines

Supreme CourtManila

 

THIRD DIVISION  JUAN DE DIOS CARLOS,                       G.R. No. 179922                             Petitioner,                                                                   Present:               -   versus   -                                         YNARES-SANTIAGO, J.,                                                                                            Chairperson,                                                                                                                                 AUSTRIA-MARTINEZ,FELICIDAD SANDOVAL, also                    CHICO-NAZARIO,known as FELICIDAD S. VDA.                    NACHURA, andDE CARLOS or FELICIDAD                                 REYES, JJ.SANDOVAL CARLOS orFELICIDAD SANDOVAL VDA.   DE CARLOS, and TEOFILO                                      Promulgated:CARLOS II,

Respondents.                       December 16, 2008  x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 

D E C I S I O N  REYES, R.T., J.:  

ONLY a spouse can initiate an action to sever the marital bond for marriages solemnized during the effectivity of the Family Code, except cases commenced prior to March 15, 2003.  The nullity and annulment of a marriage cannot be declared in a judgment on the pleadings, summary judgment, or confession of judgment. 

We pronounce these principles as We review on certiorari the Decision[1]  of  the  Court of Appeals (CA) which reversed and set aside the summary judgment[2] of the Regional Trial Court (RTC) in an action for declaration of nullity of marriage, status  of  a  child, recovery of property, reconveyance, sum of money, and damages. 

The Facts 

The events that led to the institution of the instant suit are unveiled as follows: 

Spouses Felix B. Carlos and Felipa Elemia died intestate.  They left six parcels  of  land  to  their compulsory heirs, Teofilo Carlos and petitioner Juan De Dios Carlos.  The lots are particularly described as follows: 

Parcel No. 1 Lot No. 162 of the MUNTINLUPA ESTATE SUBDIVISION, Case No. 6137 of the Court of Land Registration. Exemption from the provisions of Article 567 of the Civil Code is specifically reserved. Area: 1 hectare, 06 ares, 07 centares.  

Parcel No. 2 

A parcel of land (Lot No. 159-B), being a portion of Lot 159, situated in the Bo. of Alabang, Municipality of Muntinlupa, Province of Rizal, x x x containing an area of Thirteen Thousand Four Hundred Forty One (13,441) square meters.  

Parcel No. 3 A parcel of land (Lot 159-B-2 of the subd. plan [LRC] Psd-325903, approved as a non-subd. project), being a portion of Lot 159-B [LRC] Psd- Alabang, Mun. of Muntinlupa, Metro Manila, Island ofLuzon.  Bounded on the NE, points 2 to 4 by Lot 155, Muntinlupa Estate; on the SE, point 4 to 5 by Lot 159-B-5; on the S, points 5 to 1 by Lot 159-B-3; on the W, points 1 to 2 by Lot 159-B-1 (Road widening) all of the subd. plan, containing an area of  ONE HUNDRED THIRTY (130) SQ. METERS, more or less.   

PARCEL No. 4 A parcel of land (Lot 28-C of the subd. plan Psd-13-007090, being a portion of Lot 28, Muntinlupa Estate, L.R.C. Rec. No. 6137), situated in the Bo. of Alabang, Mun. of Muntinlupa, Metro Manila. Bounded on the NE, along lines 1-2 by Lot 27, Muntinlupa Estate; on the East & SE, along lines 2 to 6 by Mangangata River; and on the West., along line 6-1, by Lot 28-B of the subd. plan x x x containing an area of ONE THUSAND AND SEVENTY-SIX (1,076) SQUARE METERS.  

PARCEL No. 5 PARCELA DE TERRENO No. 50, Manzana No. 18, de la subd. de Solocan.  Linda por el NW, con la parcela 49; por el NE, con la parcela 36; por el SE, con la parcela 51; y por el SW, con la calle Dos Castillas.   Partiendo de un punto marcado 1 en el plano, el cual se halla a S. gds. 01'W, 72.50 mts. Desde el punto 1 de esta manzana, que es un mojon de concreto de la Ciudad de Manila, situado on el esquina E. que forman las Calles Laong Laan y Dos. Castillas, continiendo un extension superficial de CIENTO CINCUENTA (150) METROS CUADRADOS.  

PARCEL No. 6 PARCELA DE TERRENO No. 51, Manzana No. 18, de la subd. De Solocon.  Linda por el NW, con la parcela 50; por el NE, con la parcela 37; por el SE, con la parcela 52; por el SW, con la Calle Dos Castillas.  Partiendo de un punto Marcado 1 en el plano, el cual se halla at S. 43 gds. 01'E, 82.50 mts. Desde el punto 1 de esta manzana, que es un mojon de concreto de la Ciudad de Manila, situado on el esquina E. que forman las Calles Laong Laan y Dos. Castillas, continiendo una extension superficial de CIENTO CINCUENTA (150) METROS CUADRADOS.[3]

 During the lifetime of Felix Carlos, he agreed to transfer his estate to Teofilo.   The agreement was made in order to avoid the

payment of inheritance taxes.  Teofilo, in turn, undertook to deliver and turn over the share of the other legal heir,  petitioner Juan De Dios Carlos.

 Eventually, the first three (3) parcels of land were transferred and registered in the name of Teofilo.  These three (3) lots are now

covered by Transfer Certificate of Title (TCT) No. 234824 issued by the Registry of Deeds of Makati City;  TCT No. 139061 issued by the Registry of Deeds of Makati City; and TCT No. 139058 issued by the Registry of Deeds of Makati City. 

Parcel No. 4 was registered in the name of petitioner.  The lot is now covered by TCT No. 160401 issued by the Registry of Deeds of Makati City. 

On May 13, 1992, Teofilo died intestate.  He was survived by respondents Felicidad and their son, Teofilo Carlos II (Teofilo II).  Upon Teofilo’s death, Parcel Nos. 5 & 6 were registered in the name of respondent Felicidad and co-respondent, Teofilo II.   The said two (2) parcels of land are covered by TCT Nos. 219877 and 210878, respectively, issued by the Registry of Deeds of Manila. 

In 1994, petitioner instituted a suit against respondents before the RTC in Muntinlupa City, docketed as Civil Case No. 94-1964.  In the said case, the parties submitted and caused the approval of a partial compromise agreement.   Under the compromise, the parties acknowledged their respective shares in the proceeds from the sale of a portion of the first parcel of land.   This includes the remaining 6,691-square-meter portion of said land. 

On September 17, 1994, the parties executed a deed of extrajudicial partition, dividing the remaining land of the first parcel between them.

 Meanwhile, in a separate case entitled Rillo v. Carlos,[4] 2,331 square meters of  the  second parcel of land were adjudicated in favor

of plaintiffs Rillo.  The remaining 10,000-square meter portion was later divided between petitioner and respondents. 

The division was incorporated in a supplemental compromise agreement executed on August 17, 1994, with respect to Civil Case No. 94-1964.  The parties submitted the supplemental compromise agreement, which was approved accordingly.

Petitioner and respondents entered into two more contracts in August 1994.  Under the contracts, the parties equally divided between them the third and fourth parcels of land. 

In August 1995, petitioner commenced an action, docketed as Civil Case No. 95-135, against respondents before the court a quo with the following causes of action: (a) declaration of nullity of marriage; (b) status of a child; (c) recovery of property; (d) reconveyance; and (e) sum of money and damages.  The complaint was raffled to Branch 256 of the RTC in Muntinlupa. 

In his complaint, petitioner asserted that the marriage between his late brother Teofilo and respondent Felicidad was a nullity in view of the absence of the required marriage license.  He likewise maintained that his deceased brother was neither the natural nor the adoptive father of respondent Teofilo Carlos II. 

Petitioner likewise sought the avoidance of the contracts he entered into with respondent Felicidad with respect to the subject real properties.  He also prayed for the cancellation of the certificates of title issued in the name of respondents.  He argued that the properties covered by such certificates of title, including the sums received by respondents as proceeds, should be reconveyed to him. 

Finally, petitioner claimed indemnification as and by way of moral and exemplary damages, attorney’s fees, litigation expenses, and costs of suit. 

On October 16, 1995, respondents submitted their answer. They denied the material averments of petitioner’s complaint. Respondents contended that the dearth of details regarding the requisite marriage license did not invalidate Felicidad’s marriage to Teofilo.  Respondents declared that Teofilo II was the illegitimate child of the deceased TeofiloCarlos with another woman. 

On the grounds of lack of cause of action and lack of jurisdiction over the subject matter, respondents prayed for the dismissal of the case before the trial court.  They also asked that their counterclaims for moral and exemplary damages, as well as attorney’s fees, be granted. 

But before the parties could even proceed to pre-trial, respondents moved for summary judgment.   Attached to the motion was the affidavit of the justice of the peace who solemnized the marriage. Respondents also submitted the Certificate of Live Birth of respondent Teofilo II.  In the certificate, the late Teofilo Carlos and respondent Felicidad were designated as parents. 

On January 5, 1996, petitioner opposed the motion for summary judgment on the ground of irregularity of the contract evidencing the marriage.  In the same breath, petitioner lodged his own motion for summary judgment.  Petitioner presented a certification from the Local Civil Registrar of Calumpit, Bulacan, certifying that there is no record of birth of respondent Teofilo II. 

Petitioner also incorporated in the counter-motion for summary judgment the testimony of respondent Felicidad in another case.  Said testimony was made in Civil Case No. 89-2384, entitled Carlos v. Gorospe, before the RTC Branch 255, Las Piñas.  In her testimony, respondent Felicidad narrated that co-respondent Teofilo II is her child with Teofilo.[5]

 Subsequently, the Office of the City Prosecutor of Muntinlupa submitted to the trial court its report and manifestation, discounting

the possibility of collusion between the parties.

RTC and CA Dispositions

 

On April 8, 1996, the RTC rendered judgment, disposing as follows:

 WHEREFORE, premises considered, defendant’s (respondent’s) Motion for Summary Judgment is hereby

denied. Plaintiff’s (petitioner’s) Counter-Motion for Summary Judgment is hereby granted and summary judgment is hereby rendered in favor of plaintiff as follows:

 1.         Declaring the marriage between defendant Felicidad Sandoval and Teofilo Carlos solemnized at

Silang, Cavite on May 14, 1962, evidenced by the Marriage Certificate submitted  in  this case, null and void ab initio for lack of the requisite marriage license;

 2.         Declaring that the defendant minor, Teofilo S. Carlos II, is not the natural, illegitimate, or legally

adopted child of the late Teofilo E. Carlos;                                                                                                      

3.         Ordering defendant Sandoval to pay and restitute to plaintiff the sum of P18,924,800.00 together with the interest thereon at the legal rate from date of filing of the instant complaint until fully paid;

 4.         Declaring plaintiff as the sole and exclusive owner of the parcel of land, less the portion adjudicated

to plaintiffs in Civil Case No. 11975, covered by TCT No. 139061 of the Register of Deeds of Makati City, and ordering said Register of Deeds to cancel said title and to issue another title in the sole name of plaintiff herein;

 5.         Declaring the Contract, Annex “K” of complaint, between plaintiff and defendant Sandoval null and

void, and ordering the Register of Deeds of Makati City to cancel TCT No. 139058 in the name of Teofilo Carlos, and to issue another title in the sole name of plaintiff herein;

 6.         Declaring the Contract, Annex M of the complaint, between plaintiff and defendant Sandoval null

and void; 7.         Ordering the cancellation of TCT No. 210877 in the names of defendant Sandoval and defendant

minor Teofilo S. Carlos II and ordering the Register of Deeds of Manila to issue another title in the exclusive name of plaintiff herein;

 8.         Ordering the cancellation of TCT No. 210878 in the name of defendant Sandoval and defendant

Minor Teofilo S. Carlos II and ordering the Register of Deeds of Manila to issue another title in the sole name of plaintiff herein.

 Let this case be set for hearing for the reception of plaintiff’s evidence on his claim for moral damages,

exemplary damages, attorney’s fees, appearance fees, and litigation expenses on June 7, 1996at 1:30 o'clock in the afternoon.

 SO ORDERED.[6]

 

Dissatisfied, respondents appealed to the CA.  In the appeal, respondents argued, inter alia, that the trial court acted without or in

excess of jurisdiction in rendering summary judgment annulling the marriage of Teofilo, Sr. and Felicidad and in declaring Teofilo II as not an

illegitimate child of Teofilo, Sr.

 

On October 15, 2002, the CA reversed and set aside the RTC ruling, disposing as follows:

 WHEREFORE, the summary judgment appealed from is REVERSED and SET ASIDE and in lieu thereof,

a new one  is  entered REMANDING the case to the court of origin for further proceedings. 

SO ORDERED.[7]

 

The CA opined:

 We find the rendition of the herein appealed summary judgment by the court a quo contrary to law and

public policy as ensconced in the aforesaid safeguards. The fact that it was appellants who first sought summary judgment from the trial court, did not justify the grant thereof in favor of appellee.  Not being an action “to recover upon a claim” or “to obtain a declaratory relief,” the rule on summary judgment apply (sic) to an action to annul a marriage. The mere fact  that  no genuine issue was presented and the desire to expedite the disposition of the case cannot justify a misinterpretation of the rule. The first paragraph of Article 88 and 101 of the Civil Code expressly  prohibit  the rendition of decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. Yet, the affidavits annexed to the petition for summary judgment practically amount to these methods explicitly proscribed by the law.

 We are not unmindful of appellee’s argument that the foregoing safeguards have traditionally been applied

to prevent collusion of spouses in the matter of dissolution of marriages and that the death of Teofilo Carlos on May 13, 1992 had effectively dissolved the marriage herein impugned.  The fact, however, that appellee’s own brother and appellant Felicidad Sandoval lived together as husband and wife for thirty years and that the annulment of their

marriage is the very means by which the latter is sought to be deprived of her participation in the estate left by the former call for a closer and more thorough inquiry into the circumstances surrounding the case.  Rather that the summary nature by which the court a quo resolved the issues in the case, the rule is to the effect that the material facts alleged in the complaint for annulment of marriage should always be proved. Section 1, Rule 19 of the Revised Rules of Court provides:

 “Section 1.  Judgment on the pleadings. – Where an answer fails to tender an issue,

or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage     or     for legal separation, the material facts alleged in the complaint shall always be proved.” (Underscoring supplied)

 Moreover, even if We were to sustain the applicability of the rules on summary judgment to the case at

bench, Our perusal of the record shows that the finding of the court a quo for appellee would still not be warranted.  While it may be readily conceded that a valid marriage license is among the formal requisites of marriage, the absence of which renders the marriage void ab initio pursuant to Article 80(3) in relation to Article 58 of the Civil Code the failure to reflect the serial number of the marriage license on the marriage contract evidencing the marriage between Teofilo Carlos and appellant Felicidad Sandoval, although irregular, is not as fatal as appellee represents it to be.  Aside from the dearth of evidence to the contrary, appellant Felicidad Sandoval’s affirmation of the existence of said marriage license is corroborated by the following statement in the affidavit executed by Godofredo Fojas, then Justice of the Peace who officiated the impugned marriage, to wit:

 “That as far as I could remember, there was a marriage license issued at Silang,

Cavite on May 14, 1962 as basis of the said marriage contract executed by Teofilo Carlos and Felicidad Sandoval, but the number of said marriage license was inadvertently not placed in the marriage contract for the reason that it was the Office Clerk who filled up the blanks in the Marriage Contract who in turn, may have overlooked the same.” Rather than the inferences merely drawn by the trial court, We are of the considered view that the veracity

and credibility of the foregoing statement as well as the motivations underlying the same should be properly threshed out in a trial of the case on the merits.

 If the non-presentation of the marriage contract – the primary evidence of marriage – is not proof that a

marriage did not take place, neither should appellants’ non-presentation of the subject marriage license be taken as proof that the same was not procured.  The burden of proof to show  the  nullity  of  the  marriage, it must be emphasized, rests upon the plaintiff and any doubt should be resolved in favor of the validity of the marriage.

 Considering that the burden of proof also rests on the party who disputes the legitimacy of a particular party,

the same may be said of the trial court’s rejection of the relationship between appellant Teofilo Carlos II and his putative father on the basis of the inconsistencies in appellant Felicidad Sandoval’s statements.   Although it had effectively disavowed appellant’s prior claims regarding the legitimacy of appellant Teofilo Carlos II, the averment in the answer that he is the illegitimate son of appellee’s brother, to Our mind, did not altogether foreclose the possibility of the said appellant’s illegitimate filiation, his right to prove the same or, for that matter, his entitlement to inheritance rights as such.

 Without trial on the merits having been conducted in the case, We find appellee’s bare allegation that

appellant Teofilo Carlos II was merely purchased from an indigent couple by appellant Felicidad Sandoval, on the whole, insufficient to support what could well be a minor’s total forfeiture of the rights arising from his putative filiation.  Inconsistent though it may be to her previous statements, appellant Felicidad Sandoval’s declaration regarding the illegitimate filiation of Teofilo Carlos II is more credible when considered in the light of the fact that, during the last eight years of his life, Teofilo Carlos allowed said appellant the use of his name and the shelter of his household.  The least that the trial court could have done in the premises was to conduct a trial on  the  merits in order to be able to thoroughly resolve the issues pertaining to the filiation of appellant Teofilo Carlos II.[8]

 

On November 22, 2006, petitioner moved for reconsideration and for the inhibition of the ponente, Justice Rebecca De Guia-

Salvador.  The CA denied the twin motions.

 

Issues

 

In this petition under Rule 45, petitioner hoists the following issues:

 1. That, in reversing and setting aside the Summary Judgment under the Decision, Annex A hereof, and in

denying petitioner’s Motion for reconsideration under the Resolution, Annex F hereof, with respect to the nullity of the impugned marriage, petitioner respectfully submits that the Court of Appeals committed a grave reversible error in applying Articles 88 and 101 of the Civil Code, despite the fact that the circumstances of this case are different from that contemplated and intended by law, or has otherwise decided a question of substance not theretofore decided by the Supreme Court, or has decided it in a manner probably not in accord with law or with the applicable decisions of this Honorable Court;

 2. That in setting aside and reversing the Summary Judgment and, in lieu thereof, entering another remanding

the case to the court of origin for further proceedings, petitioner most respectfully submits that the Court of Appeals committed a serious reversible error in applying Section 1, Rule 19 (now Section 1, Rule 34) of the Rules of Court providing for judgment on the pleadings, instead of Rule 35 governing Summary Judgments; 

3. That in reversing and setting aside the Summary Judgment and, in lieu thereof, entering another remanding the case to the court of origin for further proceedings, petitioner most respectfully submits that the Court of Appeals committed grave abuse of discretion, disregarded judicial admissions, made findings on ground of speculations, surmises, and conjectures, or otherwise committed misapplications of the laws and misapprehension of the facts .[9]  (Underscoring supplied)

 

          Essentially, the Court is tasked to resolve whether a marriage may be declared void ab initio through a judgment on the pleadings or a

summary judgment and without the benefit of a trial.  But there are other procedural issues, including the capacity of one who is  not  a spouse

in bringing the action for nullity of marriage.

 

Our Ruling

 

I.  The grounds for declaration of absolute nullity of marriage must be proved.  Neither judgment on the pleadings nor

summary judgment is allowed.  So is confession of judgment disallowed.

 

Petitioner faults the CA in applying Section 1, Rule 19[10] of the Revised Rules of Court, which provides:

 SECTION 1.  Judgment on the pleadings. – Where an answer fails to tender an issue, or otherwise admits

the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading.  But in actions for annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved.

 

                   He argues that the CA should have applied Rule 35 of the Rules of Court governing summary judgment, instead of the rule on

judgment on the pleadings.

 

         Petitioner is misguided.  The CA did not limit its finding solely within the provisions of the Rule on judgment on the pleadings.   In

disagreeing with the trial court, the CA likewise considered the provisions on summary judgments, to wit:

 Moreover, even if We are to sustain the applicability of the rules on summary judgment to the case at bench,

Our perusal of the record shows that the finding of the court a quo for appellee would still not be warranted. x x x[11]

 

          But whether it is based on judgment on the pleadings or summary judgment, the CA was correct in reversing the summary judgment

rendered by the trial court.  Both the rules on judgment on the pleadings and summary judgments have no place in cases of declaration of

absolute nullity of marriage and even in annulment of marriage.

 

         With the advent of A.M. No. 02-11-10-SC, known as “Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of

Voidable Marriages,” the question on the application of summary judgments or even judgment on the pleadings in cases of nullity or annulment

of marriage has been stamped with clarity.  The significant principle laid down by the said Rule, which took effect on  March 15, 2003[12] is

found in Section 17, viz.:

 SEC. 17.  Trial. – (1) The presiding judge shall personally conduct the trial of the case. No delegation of

evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (2)  The grounds for declaration of absolute nullity or annulment of marriage must be proved . No judgment

on the pleadings, summary judgment, or confession of judgment shall be allowed. (Underscoring supplied)

 

          Likewise instructive is the Court’s pronouncement in Republic v. Sandiganbayan.[13]  In that case, We excluded actions for nullity or

annulment of marriage from the application of summary judgments.

 

 Prescinding from the foregoing discussion, save for annulment of marriage or declaration of its nullity or for

legal separation, summary judgment is applicable to all kinds of actions.[14]  (Underscoring supplied)

 

By issuing said summary judgment, the trial court has divested the State of its lawful right and duty to intervene in the case.   The

participation of the State is not terminated by the declaration of the public prosecutor   that  no collusion exists between the parties.  The State

should have been given the opportunity to present controverting evidence before the judgment was rendered.[15]

 

         Both the Civil Code and the Family Code ordain that the court should order the prosecuting attorney to appear and intervene for the

State.  It is at this stage when the public prosecutor sees to it that there is no suppression of evidence.  Concomitantly, even if there is no

suppression of evidence, the public prosecutor has to make sure that the evidence to be presented or laid down before the court is not fabricated.

 

                    To  further  bolster its role towards the preservation of marriage, the Rule on Declaration of Absolute Nullity of Void Marriages

reiterates the duty of the public prosecutor, viz.:

 SEC. 13.  Effect of failure to appear at the pre-trial. – (a)  x x x

              (b)  x x x  If there is no collusion,   the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence.  (Underscoring supplied)

         

                   Truly, only the active participation of the public prosecutor or the Solicitor General will ensure that the interest of the State is

represented and protected in proceedings for declaration of nullity of marriages by preventing the fabrication or suppression of evidence.[16]

 

II.  A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife.   Exceptions:

(1) Nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10-SC; and (2) Marriages celebrated during the

effectivity of the Civil Code.

 

          Under the Rule on Declaration of Absolute Nullity of Void Marriages  and Annulment of Voidable Marriages, the petition for

declaration of absolute nullity of marriage may not be filed by any party outside of the marriage.   The Rule made it exclusively a right of the

spouses by stating:

 SEC. 2. Petition for declaration of absolute nullity of void marriages. – (a) Who may file. – A petition for declaration of absolute nullity of   void marriage may be filed solely by the

husband or the wife.  (Underscoring supplied)

 

Section 2(a) of the Rule makes it the sole right of the husband or the wife to file a petition for declaration of absolute nullity of void

marriage.  The rationale of the Rule is enlightening, viz.:

 Only an aggrieved or injured spouse may file a petition   for  annulment of voidable marriages or declaration

of absolute nullity of void marriages.     Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State.  The Committee is of the belief that they do not have a legal right to file the petition.   Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and,   hence,   can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts.  On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution.[17]  (Underscoring supplied)

 

The new Rule recognizes that the husband and the wife are the sole architects of a healthy, loving, peaceful marriage.   They are the

only ones who can  decide  when and how to build the foundations of marriage.  The spouses alone are the engineers of their marital life. They

are simultaneously the directors and actors of their matrimonial true-to-life play.  Hence, they alone can and  should decide when to take a cut,

but only in accordance with the grounds allowed by law.

 

The innovation incorporated in A.M. No. 02-11-10-SC sets forth a demarcation line between marriages covered by the Family Code

and those solemnized under the Civil Code. The Rule extends only to marriages entered into during the effectivity of the Family Code which

took effect on August 3, 1988.[18]

 

The advent of the Rule on Declaration of Absolute Nullity of Void Marriages  marks the  beginning  of  the  end  of  the  right of the

heirs of the deceased spouse to bring a nullity of marriage case against the surviving spouse.   But the Rule never intended to deprive the

compulsory or intestate heirs of their successional rights.

 

While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of  marriage  may  be  filed solely by the

husband or the wife, it does not mean that the compulsory or intestate heirs are without  any recourse under the law.  They can still protect

their successional right, for, as stated in the Rationale  of  the  Rules on Annulment of Voidable Marriages and  Declaration of Absolute

Nullity  of  Void  Marriages, compulsory or intestate heirs can still question the validity  of  the  marriage of the spouses, not in a proceeding for

declaration of nullity  but  upon the death of a spouse in a proceeding for the settlement of the estate  of  the  deceased spouse filed in the regular

courts.[19]

 

It is emphasized, however, that the Rule does not apply to cases already commenced before March 15, 2003 although the marriage

involved is within the coverage of the Family Code.  This is so, as the new Rule which became effective on March 15, 2003[20] is prospective in

its application.  Thus, the Court held in Enrico v. Heirs of Sps. Medinaceli,[21] viz.:

 As has been emphasized, A.M. No.   02-11-10-SC covers marriages under the Family Code of

the   Philippines, and is prospective in its application .[22]  (Underscoring supplied)

 

Petitioner commenced the nullity of marriage case against respondent Felicidad in 1995.  The marriage in controversy was

celebrated on May 14, 1962.  Which law would govern depends upon when the marriage took place.[23]

 

The marriage having been solemnized prior  to  the  effectivity  of  the Family Code, the applicable law  is  the  Civil Code which

was the law in effect at the time of its celebration.[24]  But  the  Civil Code  is silent as to who may bring an action to declare the marriage

void.  Does  this  mean  that  any person can bring an action for the declaration of nullity of marriage?

 

We respond in the negative.  The absence of a provision in the Civil Code cannot be construed as a license for any person to

institute a nullity of marriage case.  Such person must appear to be the party who stands to be benefited or injured by the judgment in the suit, or

the party entitled to the avails of the suit. [25]  Elsewise stated, plaintiff must be the real party-in-interest.  For it is basic in procedural law that

every action must be prosecuted and defended in the name of the real party-in-interest.[26]

 

Interest within the meaning of the rule means material interest or an interest in issue to be affected by the decree or judgment of the

case, as distinguished from mere curiosity about the question involved or a mere incidental interest.   One having no material interest to protect

cannot invoke the jurisdiction of the court as plaintiff in an action.  When plaintiff is not the  real  party-in-interest, the case is dismissible on the

ground of lack of cause of action.[27]

 

Illuminating on this point is Amor-Catalan v. Court of Appeals,[28] where the Court held:

 True, under the New Civil Code which is the law in force at   the time the respondents were married , or even

in the Family Code, there is no specific     provision     as     to     who can file a petition to declare the nullity of marriage; however, only a   party who can demonstrate   “proper interest”   can file the same.     A petition to declare the nullity of marriage, like any other actions,   must be prosecuted or defendedin the name of the real party-in-interest   and   must be based on a cause of action .     Thus, in   Niñal v. Badayog,   the Court held that the children have the personality to file the petition to declare the nullity of marriage of their deceased father to their   stepmother as it affects their successional rights.

 x x x x

 In fine, petitioner’s personality to file the petition to declare the nullity of marriage cannot be ascertained

because of the absence of the divorce decree and the foreign law allowing it.  Hence, a remand of the case to the trial court for reception of additional evidence is necessary to determine whether respondent  Orlando was granted a divorce decree and whether the foreign law which granted the same allows or restricts remarriage.  If it is proved that a valid divorce decree was obtained and the same did not allow respondent Orlando’s remarriage, then the trial court should declare respondent’s marriage as bigamous and void ab initio but reduced the amount of moral damages from P300,000.00 to P50,000.00 and exemplary damages from P200,000.00 to P25,000.00. On the contrary, if it is proved  that  a  valid  divorce decree was obtained which allowed Orlando to remarry, then the trial court must dismiss the instant petition to declare nullity of marriage on the ground that petitioner Felicitas Amor-Catalan  lacks legal personality to file the same.[29]  (Underscoring supplied)

 

III.  The case must be remanded to determine whether or not petitioner is a real-party-in-interest to seek the declaration of

nullity of the marriage in controversy.

 

          In the case at bench, the records reveal that when Teofilo died intestate in 1992, his only surviving compulsory heirs are respondent

Felicidad and their son, Teofilo II. Under the law on succession, successional rights are transmitted from the moment of death of the decedent

and the compulsory heirs are called to succeed by operation of law.[30]

 

          Upon Teofilo’s death in 1992, all his property, rights and obligations to the extent of the value of the inheritance are transmitted to his

compulsory heirs.  These heirs were respondents Felicidad and Teofilo II, as the surviving spouse and child, respectively.

 

          Article 887 of the Civil Code outlined who are compulsory heirs, to wit:

 (1)   Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2)   In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and

descendants; (3)   The widow or widower; (4)   Acknowledged natural children, and natural children by legal fiction; (5)   Other illegitimate children referred to in Article 287 of the Civil Code.[31]

 

          Clearly, a brother is not among those considered as compulsory heirs.  But although a collateral relative, such as a brother, does not fall

within the ambit of a compulsory heir, he still  has  a  right  to  succeed  to  the  estate.  Articles 1001 and 1003 of the New Civil Code provide:

 ART. 1001.  Should brothers and sisters   or their children survive with the widow or widower, the latter shall

be   entitled to one-half of the inheritance  and the   brothers and sisters  or their children to the other half. ART. 1003.  If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the

collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.  (Underscoring supplied)

 

Indeed, only the presence of descendants, ascendants or illegitimate children excludes collateral relatives from succeeding to the

estate of the decedent.  The presence of legitimate, illegitimate, or adopted child or children of the deceased   precludes succession by collateral

relatives.[32]  Conversely, if there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall

succeed to the entire estate of the decedent.[33]

 

If respondent Teofilo II is declared and finally proven not to be the legitimate, illegitimate, or adopted son of Teofilo, petitioner

would then have  a  personality  to  seek  the nullity of marriage of his deceased brother with  respondent  Felicidad.  This  is  so, considering

that collateral relatives, like a brother and sister, acquire successional right over the estate if the decedent dies without issue and without

ascendants in the direct line.

 

The  records  reveal  that  Teofilo was predeceased by his parents.  He had  no other siblings  but  petitioner.  Thus, if Teofilo II is

finally found and proven to be not a legitimate,  illegitimate,  or adopted son of Teofilo, petitioner succeeds to the  other half of the estate of  his

brother, the first half being allotted to  the widow  pursuant to Article 1001  of  the  New Civil Code.  This makes petitioner a real-party-interest

to seek  the  declaration of absolute nullity of  marriage of his deceased  brother with  respondent Felicidad.  If the subject marriage  is  found to

be void ab initio, petitioner succeeds to the entire estate.

 

It bears stressing, however, that the legal personality of petitioner to bring the nullity of marriage case   is  contingent upon the final

declaration that Teofilo II is not a legitimate, adopted, or illegitimate son of Teofilo.

 

If Teofilo II is proven to be a legitimate, illegitimate, or legally adopted son of Teofilo, then petitioner has no legal personality to

ask for the nullity of marriage of his deceased brother and respondent Felicidad.  This is based on the ground that he has no successional right to

be protected, hence, does not have proper interest.  For although the marriage in controversy may be found to be void from the beginning, still,

petitioner would not inherit.  This is because the presence of descendant, illegitimate, [34] or even an adopted child[35] excludes the collateral

relatives from inheriting from the decedent.

 

Thus, the Court finds that a remand of the case for trial on the merits to determine the validity or nullity of the subject marriage is

called for.  But the RTC is strictly instructed to dismiss the nullity of marriage case for lack of cause of action if it is proven by evidence

that Teofilo II is a legitimate, illegitimate, or legally adopted son of Teofilo Carlos, the deceased brother of petitioner.

 

IV.  Remand of the case regarding the question of filiation of respondent Teofilo II is proper and in order.   There is a need

to vacate the disposition of the trial court as to the other causes of action before it.

 

         Petitioner did not assign as error or interpose as issue the ruling of the CA on the remand of the case concerning the filiation of respondent

Teofilo II.  This notwithstanding, We should not leave the matter hanging in limbo.

 

This Court has the authority to review matters not specifically raised or assigned as error by the parties, if their consideration is

necessary in arriving at a just resolution of the case.[36]

 

                   We  agree  with  the  CA  that without trial on the merits having been conducted in the case, petitioner’s bare allegation that

respondent Teofilo II was adopted from an indigent couple is insufficient to support a total forfeiture of rights arising from his putative

filiation.  However, We are not inclined to support its pronouncement that the declaration of respondent Felicidad as to the illegitimate filiation

of respondent Teofilo II is more credible.  For the guidance of the appellate court, such declaration of respondent Felicidad should not be

afforded credence.  We remind the CA of the guaranty provided by Article 167 of the Family Code to protect the status of legitimacy of a child,

to wit:

             ARTICLE 167.  The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.  (Underscoring supplied)

 

                   It is stressed that Felicidad’s declaration against the legitimate status of Teofilo II is the very act that is proscribed by Article 167 of

the Family Code.  The language of the law is unmistakable.  An assertion by the mother against the legitimacy of her child cannot affect the

legitimacy of  a  child born or conceived within a valid marriage.[37]

 

          Finally, the disposition of the trial court in favor of petitioner for causes of action concerning reconveyance, recovery of property, and

sum of money must be vacated. This has to be so, as said disposition was made on the basis of its finding that the marriage in controversy was

null and void ab initio. 

         

          WHEREFORE, the appealed Decision is MODIFIED as follows:

 

1.       The case is REMANDED to the Regional Trial Court in regard to  the  action on the status and filiation of respondent Teofilo

Carlos II and the validity or nullity of marriage between respondent Felicidad Sandoval and the late Teofilo Carlos;

 

2.       If  Teofilo Carlos II is proven to be the legitimate, or illegitimate, or legally adopted son of the late Teofilo Carlos, the RTC is

strictly INSTRUCTED to DISMISSthe action for nullity of marriage for lack of cause of action;

 

3.       The disposition  of  the  RTC in Nos. 1 to 8 of the fallo of its decision is VACATED AND SET ASIDE.

 

The Regional Trial Court is ORDERED to conduct trial on the merits with dispatch and to give this case priority in its calendar.

 

No costs.

 SO ORDERED.

  

Cheng vs Sy           This is a petition[1] for review on certiorari under Rule 45 of the Rules of Court of the Order dated January 2, 2006 [2] of the Regional Trial Court (RTC), Branch 18,Manila in Civil Case No. 05-112452 entitled Anita Cheng v. Spouses William Sy and Tessie Sy. 

The antecedents are as follows—           Petitioner Anita Cheng filed two (2) estafa cases before the RTC, Branch 7, Manila against respondent spouses William and Tessie Sy (Criminal Case No. 98-969952 against Tessie Sy and Criminal Case No. 98-969953 against William Sy) for issuing to her Philippine Bank of Commerce (PBC) Check Nos. 171762 and 71860 for P300,000.00 each, in payment of their loan, both of which were dishonored upon presentment for having been drawn against a closed account.           Meanwhile, based on the same facts, petitioner, on January 20, 1999, filed against respondents two (2) cases for violation of Batas Pambansa Bilang (BP Blg.) 22 before the Metropolitan Trial Court (MeTC), Branch 25, Manila (Criminal Case Nos. 341458-59).

           On March 16, 2004, the RTC, Branch 7, Manila dismissed the estafa cases for failure of the prosecution to prove the elements of the crime.  The Order dismissing Criminal Case No. 98-969952 contained no declaration as to the civil liability of Tessie Sy. [3]  On the other hand, the Order in Criminal Case No. 98-969953 contained a statement, “Hence, if there is any liability of the accused, the same is purely ‘civil,’ not criminal in nature.”[4]

           Later, the MeTC, Branch 25, Manila, dismissed, on demurrer, the BP Blg. 22 cases in its Order [5] dated February 7, 2005 on account of the failure of petitioner to identify the accused respondents in open court.  The Order also did not make any pronouncement as to the civil liability of accused respondents.           On April 26, 2005, petitioner lodged against respondents before the RTC, Branch 18, Manila, a complaint[6] for collection of a sum of money with damages (Civil Case No. 05-112452) based on the same loaned amount of  P600,000.00 covered by the two PBC checks previously subject of the estafa and BP Blg. 22 cases.           In the assailed Order[7] dated January 2, 2006, the RTC, Branch 18, Manila, dismissed the complaint for lack of jurisdiction, ratiocinating that the civil action to collect the amount of P600,000.00 with damages was already impliedly instituted in the BP Blg. 22 cases in light of Section 1, paragraph (b) of Rule 111 of the Revised Rules of Court.           Petitioner filed a motion for reconsideration[8] which the court denied in its Order[9] dated June 5, 2006.  Hence, this petition, raising the sole legal issue – 

            Whether or not Section 1 of Rule 111 of the 2000 Rules of Criminal Procedure and Supreme Court Circular No. 57-97 on the Rules and Guidelines in the filing and prosecution of criminal cases under BP Blg. 22 are applicable to the present case where the nature of the order dismissing the cases for bouncing checks against the respondents was [based] on the failure of the prosecution to identify both the accused (respondents herein)?[10]

            Essentially, petitioner argues that since the BP Blg. 22 cases were filed on January 20, 1999, the 2000 Revised Rules on Criminal Procedure promulgated on December 1, 2000 should not apply, as it must be given only prospective application.   She further contends that that her case falls within the following exceptions to the rule that the civil action correspondent to the criminal action is deemed instituted with the latter— 

(1)     additional evidence as to the identities of the accused is necessary for the resolution of the civil aspect of the case; 

(2)     a separate complaint would be just as efficacious as or even more expedient than a timely remand to the trial court where the criminal action was decided for further hearings on the civil aspect of the case;

 (3)     the trial court failed to make any pronouncement as to the civil liability of the accused amounting to a reservation

of the right to have the civil liability litigated in a separate action; (4)     the trial court did not declare that the facts from which the civil liability might arise did not exist; (5)     the civil complaint is based on an obligation ex-contractu and not ex-delicto pursuant to Article 31[11] of the Civil

Code; and (6)     the claim for civil liability for damages may be had under Article 29[12] of the Civil Code. 

 Petitioner also points out that she was not assisted by any private prosecutor in the BP Blg. 22 proceedings.

           The rule is that upon the filing of the estafa and BP Blg. 22 cases against respondents, where the petitioner has not made any waiver, express reservation to litigate separately, or has not instituted the corresponding civil action to collect the amount of P600,000.00 and damages prior to the criminal action, the civil action is deemed instituted with the criminal cases.[13]  

This rule applies especially with the advent of the 2000 Revised Rules on Criminal Procedure.  Thus, during the pendency of both the estafa and the BP Blg. 22 cases, the action to recover the civil liability was impliedly instituted and remained pending before the respective trial courts.  This is consonant with our ruling in Rodriguez v. Ponferrada[14] that the possible single civil liability arising from the act of issuing a bouncing check can be the subject of both civil actions deemed instituted with the estafa case and the prosecution for violation of BP Blg. 22, simultaneously available to the complaining party, without traversing the prohibition against forum shopping.[15]  Prior to the judgment in either the estafa case or the BP Blg. 22 case, petitioner, as the complainant, cannot be deemed to have elected either of the civil actions both impliedly instituted in the said criminal proceedings to the exclusion of the other.[16]

          The dismissal of the estafa cases for failure of the prosecution to prove the elements of the crime beyond reasonable doubt—where in Criminal Case No. 98-969952 there was no pronouncement as regards the civil liability of the accused and in Criminal Case No. 98-969953

where the trial court declared that the liability of the accused was only civil in nature—produced the legal effect of a reservation by the petitioner of her right to litigate separately the civil action impliedly instituted with the estafa cases, following Article 29 of the Civil Code.[17]

           However, although this civil action could have been litigated separately on account of the dismissal of the estafa cases on reasonable doubt, the petitioner was deemed to have also elected that such civil action be prosecuted together with the BP Blg. 22 cases in light of the Rodriguez v. Ponferrada ruling.           With the dismissal of the BP Blg. 22 cases for failure to establish the identity of the accused, the question that arises is whether such dismissal would have the same legal effect as the dismissed estafa cases.  Put differently, may petitioner’s action to recover respondents’ civil liability be also allowed to prosper separately after the BP Blg. 22 cases were dismissed? 

Section 1 (b), Rule 111 of the 2000 Revised Rules on Criminal Procedure states – 

            Section 1. Institution of criminal and civil actions. –                                                 x x x             (b)   The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action.  No reservation to file such civil action separately shall be allowed.             Upon filing of the joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay the filing fees based on the amounts alleged therein.  If the amounts are not so alleged but any of these damages [is] subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.             Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case.   If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. 

           Petitioner is in error when she insists that the 2000 Rules on Criminal Procedure should not apply because she filed her BP Blg. 22 complaints in 1999.  It is now settled that rules of procedure apply even to cases already pending at the time of their promulgation.   The fact that procedural statutes may somehow affect the litigants’ rights does not preclude their retroactive application to pending actions.  It is axiomatic that the retroactive application of procedural laws does not violate any right of a person who may feel that he is adversely affected, nor is it constitutionally objectionable.  The reason for this is that, as a general rule, no vested right may attach to, nor arise from, procedural laws.[18]

           Indeed, under the present revised Rules, the criminal action for violation of BP Blg. 22 includes the corresponding civil action to recover the amount of the checks.  It should be stressed, this policy is intended to discourage the separate filing of the civil action.   In fact, the Rules even prohibits the reservation of a separate civil action, i.e., one can no longer file a separate civil case after the criminal complaint is filed in court.  The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case.   Even then, the Rules encourages the consolidation of the civil and criminal cases.  Thus, where petitioner’s rights may be fully adjudicated in the proceedings before the court trying the BP Blg. 22 cases, resort to a separate action to recover civil liability is clearly unwarranted on account of  res judicata, for failure of petitioner to appeal the civil aspect of the cases.   In view of this special rule governing actions for violation of BP Blg. 22, Article 31 of the Civil Code is not applicable.[19]

           Be it remembered that rules governing procedure before the courts, while not cast in stone, are for the speedy, efficient, and orderly dispensation of justice and should therefore be adhered to in order to attain this objective.[20]  

However, in applying the procedure discussed above, it appears that petitioner would be left without a remedy to recover from respondents the P600,000.00 allegedly loaned from her.  This could prejudice even the petitioner’s Notice of Claim involving the same amount filed in Special Proceedings No. 98-88390 (Petition for Voluntary Insolvency by Kolin Enterprises, William Sy and Tessie Sy), which case was reportedly archived for failure to prosecute the petition for an unreasonable length of time. [21]  Expectedly, respondents would raise the same defense that petitioner had already elected to litigate the civil action to recover the amount of the checks along with the BP Blg. 22 cases.           It is in this light that we find petitioner’s contention that she was not assisted by a private prosecutor during the BP Blg. 22 proceedings critical.  Petitioner indirectly protests that the public prosecutor failed to protect and prosecute her cause when he failed to have her establish the identities of the accused during the trial and when he failed to appeal the civil action deemed impliedly instituted with the BP Blg. 22 cases.   On this ground, we agree with petitioner.  

Faced with the dismissal of the BP Blg. 22 cases, petitioner’s recourse pursuant to the prevailing rules of procedure would have been to appeal the civil action to recover the amount loaned to respondents corresponding to the bounced checks.  Hence, the said civil action may proceed requiring only a preponderance of evidence on the part of petitioner.   Her failure to appeal within the reglementary period was tantamount to a waiver altogether of the remedy to recover the civil liability of respondents.   However, due to the gross mistake of the prosecutor in the BP Blg. 22 cases, we are constrained to digress from this rule.           It is true that clients are bound by the mistakes, negligence and omission of their counsel.[22]  But this rule admits of exceptions – (1) where the counsel’s mistake is so great and serious that the client is prejudiced and denied his day in court, or (2) where the counsel is guilty of gross negligence resulting in the client’s deprivation of liberty or property without due process of law. [23]  Tested against these guidelines, we hold that petitioner’s lot falls within the exceptions.  

It is an oft-repeated exhortation to counsels to be well-informed of existing laws and rules and to keep abreast with legal developments, recent enactments and jurisprudence.  Unless they faithfully comply with such duty, they may not be able to discharge competently and diligently their obligations as members of the Bar. [24]  Further, lawyers in the government service are expected to be more conscientious in the performance of their duties as they are subject to public scrutiny.  They are not only members of the Bar but are also public servants who owe utmost fidelity to public service.[25]  Apparently, the public prosecutor neglected to equip himself with the knowledge of the proper procedure for BP Blg. 22 cases under the 2000 Rules on Criminal Procedure such that he failed to appeal the civil action impliedly instituted with the BP Blg. 22 cases, the only remaining remedy available to petitioner to be able to recover the money she loaned to respondents, upon the dismissal of the criminal cases on demurrer.  By this failure, petitioner was denied her day in court to prosecute the respondents for their obligation to pay their loan. 

 Moreover, we take into consideration the trial court’s observation when it dismissed the estafa charge in Criminal Case No. 98-

969953 that if there was any liability on the part of respondents, it was civil in nature.   Hence, if the loan be proven true, the inability of petitioner to recover the loaned amount would be tantamount to unjust enrichment of respondents, as they may now conveniently evade payment of their obligation merely on account of a technicality applied against petitioner.  

 There is unjust enrichment when (1) a person is unjustly benefited, and (2) such benefit is derived at the expense of or with damages

to another.  This doctrine simply means that a person shall not be allowed to profit or enrich himself inequitably at another’s expense.   One condition for invoking this principle of unjust enrichment is that the aggrieved party has no other recourse based on contract, quasi-contract, crime, quasi-delict or any other provision of law.[26]

 Court litigations are primarily designed to search for the truth, and a liberal interpretation and application of the rules which will

give the parties the fullest opportunity to adduce proof is the best way to ferret out the truth.    The dispensation of justice and vindication of legitimate grievances should not be barred by technicalities. [27] For reasons of substantial justice and equity, as the complement of the legal jurisdiction that seeks to dispense justice where courts of law, through the inflexibility of their rules and want of power to adapt their judgments to the special circumstances of cases, are incompetent to do so,[28] we thus rule, pro hac vice, in favor of petitioner. 

           WHEREFORE, the petition is GRANTED.  Civil Case No. 05-112452 entitled Anita Cheng v. Spouses William Sy and Tessie Sy is hereby ordered REINSTATED. No pronouncement as to costs.

 SO ORDERED. 

MICHAEL C. GUY,                                  G.R. No. 163707                             Petitioner,                                                                   Present:

                                Panganiban, C.J. (Chairperson),

          - versus -                                              Ynares-Santiago,                                                                      Austria-Martinez,

  Callejo, Sr., and  Chico-Nazario, JJ.

HON. COURT OF APPEALS,HON. SIXTO MARELLA, JR.,Presiding Judge, RTC, Branch 138,Makati City and minors, KARENDANES WEI and KAMILLE DANESWEI, represented by their mother,           Promulgated:REMEDIOS OANES,                             Respondents.                     September 15, 2006

x ---------------------------------------------------------------------------------------- x 

DECISION YNARES-SANTIAGO, J.:            This petition for review on certiorari assails the January 22, 2004 Decision[1] of the Court of Appeals in CA-G.R. SP No. 79742, which affirmed the Orders dated July 21, 2000[2] and July 17, 2003[3] of the Regional Trial Court of Makati City, Branch 138 in SP Proc. Case No. 4549 denying petitioner’s motion to dismiss; and its May 25, 2004Resolution[4] denying petitioner’s motion for reconsideration.           The facts are as follows: 

On June 13, 1997, private respondent-minors Karen Oanes Wei and Kamille Oanes Wei, represented by their mother Remedios Oanes (Remedios), filed a petition for letters of administration[5] before the Regional Trial Court of Makati City, Branch 138.  The case was docketed as Sp. Proc. No. 4549 and entitled Intestate Estate of Sima Wei (a.k.a. Rufino Guy Susim).           Private respondents alleged that they are the duly acknowledged illegitimate children of Sima Wei, who died intestate in Makati City on October 29, 1992, leaving an estate valued at P10,000,000.00 consisting of real and personal properties.  His known heirs are his surviving spouse Shirley Guy and children, Emy, Jeanne, Cristina, George and Michael, all surnamed Guy.  Private respondents prayed for the appointment of a regular administrator for the orderly settlement of Sima Wei’s estate.   They likewise prayed that, in the meantime, petitioner Michael C. Guy, son of the decedent, be appointed as Special Administrator of the estate.   Attached to private respondents’ petition was a Certification Against Forum Shopping[6] signed by their counsel, Atty. Sedfrey A. Ordoñez.           In his Comment/Opposition,[7] petitioner prayed for the dismissal of the petition.  He asserted that his deceased father left no debts and that his estate can be settled without securing letters of administration pursuant to Section 1, Rule 74 of the Rules of Court.  He further argued that private respondents should have established their status as illegitimate children during the lifetime of Sima Wei pursuant to Article 175 of the Family Code.  

The other heirs of Sima Wei filed a Joint Motion to Dismiss [8] on the ground that the certification against forum shopping should have been signed by private respondents and not their counsel.  They contended that Remedios should have executed the certification on behalf of her minor daughters as mandated by Section 5, Rule 7 of the Rules of Court.            In a Manifestation/Motion as Supplement to the Joint Motion to Dismiss, [9] petitioner and his co-heirs alleged that private respondents’ claim had been paid, waived, abandoned or otherwise extinguished by reason of Remedios’ June 7, 1993 Release and Waiver of Claim stating that in exchange for the financial and educational assistance received from petitioner, Remedios and her minor children discharge the estate of Sima Wei from any and all liabilities.           The Regional Trial Court denied the Joint Motion to Dismiss as well as the Supplemental Motion to Dismiss.  It ruled that while the Release and Waiver of Claim was signed by Remedios, it had not been established that she was the duly constituted guardian of her minor daughters.  Thus, no renunciation of right occurred.  Applying a liberal application of the rules, the trial court also rejected petitioner’s objections on the certification against forum shopping.     

Petitioner moved for reconsideration but was denied.  He filed a petition for certiorari before the Court of Appeals which affirmed the orders of the Regional Trial Court in its assailed Decision dated January 22, 2004, the dispositive portion of which states:

 WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and

accordingly DISMISSED, for lack of merit.  Consequently, the assailed Orders dated July 21, 2000 and July 17, 2003 are hereby both AFFIRMED.  Respondent Judge is hereby DIRECTED to resolve the controversy over the illegitimate filiation of the private respondents (sic) minors [-] Karen Oanes Wei and Kamille Oanes Wei who are claiming successional rights in the intestate estate of the deceased Sima Wei, a.k.a. Rufino Guy Susim.

 SO ORDERED.[10]

 The Court of Appeals denied petitioner’s motion for reconsideration, hence, this petition.

           Petitioner argues that the Court of Appeals disregarded existing rules on certification against forum shopping; that the Release and Waiver of Claim executed by Remedios released and discharged the Guy family and the estate of Sima Wei from any claims or liabilities; and that private respondents do not have the legal personality to institute the petition for letters of administration as they failed to prove their filiation during the lifetime of Sima Wei in accordance with Article 175 of the Family Code.   

          Private respondents contend that their counsel’s certification can be considered substantial compliance with the rules on certification of non-forum shopping, and that the petition raises no new issues to warrant the reversal of the decisions of the Regional Trial Court and the Court of Appeals.

 The issues for resolution are: 1) whether private respondents’ petition should be dismissed for failure to comply with the rules on

certification of non-forum shopping; 2) whether the Release and Waiver of Claim precludes private respondents from claiming their successional rights; and 3) whether private respondents are barred by prescription from proving their filiation.           The petition lacks merit.                      

Rule 7, Section 5 of the Rules of Court provides that the certification of non-forum shopping should be executed by the plaintiff or the principal party.  Failure to comply with the requirement shall be cause for dismissal of the case.  However, a liberal application of the rules is proper where the higher interest of justice would be served.  In Sy Chin v. Court of Appeals,[11] we ruled that while a petition may have been flawed where the certificate of non-forum shopping was signed only by counsel and not by the party, this procedural lapse may be overlooked in the interest of substantial justice.[12]  So it is in the present controversy where the merits[13] of the case and the absence of an intention to violate the rules with impunity should be considered as compelling reasons to temper the strict application of the rules.

 As regards Remedios’ Release and Waiver of Claim, the same does not bar private respondents from claiming successional

rights.  To be valid and effective, a waiver must be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him.  A waiver may not be attributed to a person when its terms do not explicitly and clearly evince an intent to abandon a right.[14]

 In this case, we find that there was no waiver of hereditary rights.  The Release and Waiver of Claim does not state with clarity the

purpose of its execution.  It merely states that Remedios received P300,000.00 and an educational plan for her minor daughters “by way of financial assistance and in full settlement of any and all claims of whatsoever nature and kind    x x x against the estate of the  late Rufino Guy Susim.”[15]  Considering that the document did not specifically mention private respondents’ hereditary share in the estate of Sima Wei, it cannot be construed as a waiver of successional rights. 

 Moreover, even assuming that Remedios truly waived the hereditary rights of private respondents, such waiver will not bar the

latter’s claim.  Article 1044 of the Civil Code, provides: 

ART. 1044.  Any person having the free disposal of his property may accept or repudiate an inheritance.             Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians.  Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization.

 The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to

determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. (Emphasis supplied) 

Parents and guardians may not therefore repudiate the inheritance of their wards without judicial approval.   This is because repudiation amounts to an alienation of property[16]which must pass the court’s scrutiny in order to protect the interest of the ward.   Not having been judicially authorized, the Release and Waiver of Claim in the instant case is void and will not bar private respondents from asserting their rights as heirs of the deceased.

 Furthermore, it must be emphasized that waiver is the intentional relinquishment of a known right.  Where one lacks knowledge of a

right, there is no basis upon which waiver of it can rest.  Ignorance of a material fact negates waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact.[17] 

 In the present case, private respondents could not have possibly waived their successional rights because they are yet to prove their

status as acknowledged illegitimate children of the deceased.  Petitioner himself has consistently denied that private respondents are his co-heirs.  It would thus be inconsistent to rule that they waived their hereditary rights when petitioner claims that they do not have such right.  Hence, petitioner’s invocation of waiver on the part of private respondents must fail.

 Anent the issue on private respondents’ filiation, we agree with the Court of Appeals that a ruling on the same would be premature

considering that private respondents have yet to present evidence.  Before the Family Code took effect, the governing law on actions for recognition of illegitimate children was Article 285 of the Civil Code, to wit:

 ART. 285. The action for the recognition of natural children may be brought only during the lifetime of the

presumed parents, except in the following cases: 

(1)        If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority;

 (2)        If after the death of the father or of the mother a document should appear of which nothing had been

heard and in which either or both parents recognize the child. In this case, the action must be commenced within four years from the finding of the document. (Emphasis

supplied) We ruled in Bernabe v. Alejo[18] that illegitimate children who were still minors at the time the Family Code took effect and whose

putative parent died during their minority are given the right to seek recognition for a period of up to four years from attaining majority age.  This vested right was not impaired or taken away by the passage of the Family Code.[19] 

 On the other hand, Articles 172, 173 and 175 of the Family Code, which superseded Article 285 of the Civil Code, provide:  

ART. 172. The filiation of legitimate children is established by any of the following: (1)        The record of birth appearing in the civil register or a final judgment; or (2)        An admission of legitimate filiation in a public document or a private handwritten instrument and

signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1)        The open and continuous possession of the status of a legitimate child; or (2)        Any other means allowed by the Rules of Court and special laws. ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall

be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

 The action already commenced by the child shall survive notwithstanding the death of either or both of the

parties. ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same,

evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based

on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. 

         Under the Family Code, when filiation of an illegitimate child is established by a record of birth appearing in the civil register or a

final judgment, or an admission of filiation in a public document or a private handwritten instrument signed by the parent concerned, the action for recognition may be brought by the child during his or her lifetime.  However, if the action is based upon open and continuous possession of the status of an illegitimate child, or any other means allowed by the rules or special laws, it may only be brought during the lifetime of the alleged parent.  

 It is clear therefore that the resolution of the issue of prescription depends on the type of evidence to be adduced by private

respondents in proving their filiation.  However, it would be impossible to determine the same in this case as there has been no reception of evidence yet.  This Court is not a trier of facts.  Such matters may be resolved only by the Regional Trial Court after a full-blown trial. 

 While the original action filed by private respondents was a petition for letters of administration, the trial court is not precluded

from receiving evidence on private respondents’ filiation.  Its jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers in handling the settlement of the estate, including the determination of the status of each heir. [20]  That the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence. [21]  As held in Briz v. Briz:[22]

 

The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief  in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions

justifying the joinder of the two distinct causes of action are present in the particular case.  In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir.  Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. x x x

 

The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson vs. Tiamson, 32 Phil., 62); and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother (Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya, 13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings.

 

WHEREFORE, the instant petition is DENIED.  The Decision dated January 22, 2004 of the Court of Appeals in CA-G.R. SP No.

79742 affirming the denial of petitioner’s motion to dismiss; and its Resolution dated May 25, 2004 denying petitioner’s motion for

reconsideration, are AFFIRMED.  Let the records be REMANDED to theRegional Trial Court of Makati City, Branch 138 for further

proceedings.

G.R. No. 174689             October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs.REPUBLIC OF THE PHILIPPINES, respondent.

D E C I S I O N

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2)

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

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

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

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

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

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

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

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

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

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

The [c]ourt rules in the affirmative.

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

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

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

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

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

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

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

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court:

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

Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides:

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

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

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

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

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter one’s legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name.

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

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

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

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

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

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

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

xxx       xxx       xxx

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

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

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

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status… include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued.

xxx       xxx       xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of his or her birth, if not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends

to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.