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1. FELIPE MADRINAN v. FRANCISCA MADRINAN

GR NO. 159374
FACTS
Felipe and Francisca were married on July 7, 1993 and their union was blessed with three
sons and a daughter namely Ronnick, born on Jan. 30, 1994; Phillip, born on Nov. 19, 1996;
Francis Angelo, born on May 12, 1998 and Krizia Ann, born on Dec.12, 2000.
After a bitter quarrel on May 18, 2002, Felipe, the petitioner, allegedly left their home and
took their three sons with him to Ligao City, Albay and subsequently to Sta. Rosa, Laguna.
With that, Francisca, the respondent, sought the help of her parents and parents-in-law to
patch things up between her and petitioner but to no avail. So, she then brought the
matter to the Lupong Tagapamayapa in their barangay but this
too proved futile.
Thus, she filed a petition for habeas corpus of her three sons in the Court of Appeals
alleging that the petitioners act of leaving disrupted the education of their children and
deprived them of their mothers care and prayed that petitioner be ordered to appear and
produce their sons before the court and to explain why they should not be returned to her
custody.
On Oct. 21, 2002, the CA rendered a decision asserting its authority to take cognizance of
the petition, and ruled that, under Art.213 of the FC, respondent was entitled to the
custody of Phillip and Francis Angelo who were at that time aged six and four, respectively,
subject to the visitation rights of the petitioner.
Now, the Petitioner challenges the jurisdiction of the CA over the petition of habeas corpus
and insists that jurisdiction over the case is lodged in the family courts under section 5 (b)
RA 8369:
Section 5. Jurisdiction of the Family Courts.- The Family Courts shall have exclusive
original jurisdiction to hear and decide the following cases:
Xxx

xxx

xxx

b) Petitions for guardianship, custody of children, habeas corpus in relation to the

latter;
xxx

xxx

xxx

ISSUE
WHETHER OR NOT THE COURT OF APPEALS HAS JURISDICTION OVER PETITIONS
FOR HABEAS CORPUS?
RULING:
Yes, the CA has jurisdiction over petitions for habeas corpus, and the contention of the
petitioner is misplaced.
This case cited the case of Thornton v. Thornton which resolved the CAs jurisdiction to
issue writs of habeas corpus in cases involving custody of minors in the light of the
provision in RA 8369 giving family courts exclusive original jurisdiction over such petitions:
The Court of Appeals should take cognizance of the case since there is
nothing in RA 8369 that revoked its jurisdiction to issue writs of habeas corpus
involving the custody of minors.
The Court in this case ruled that RA 8369 did not divest the Court of
Appeals and the Supreme Court of their jurisdiction over habeas corpus cases
involving the custody of minors.

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The provisions of RA 8369 reveal no manifest intent to revoke the

jurisdiction of the Court of Appeals and Supreme Court to issue writs of habeas
corpus relating to the custody of minors. Further, it cannot be said that the
provisions of RA 8369, RA 7092 (An Act Expanding the Jurisdiction of the Court of
Appeals) and BP 129 ( The Judiciary Reorganization Act of 1980) are absolutely
incompatible since RA 8369 does not prohibit the Court of Appeals and the
Supreme Court from issuing writs of habeas corpus in cases involving the custody
of minors. Thus, the provisions of RA 8369 must be read in harmony with RA 7029
and BP 129- the family courts have concurrent jurisdiction with the Court of
Appeals and the Supreme Court in petitions for habeas corpus where the custody
of minors is at issue.
In addition, the jurisdiction of the Court of Appeals over petitions for habeas corpus was
further affirmed by A.M. No. 03-03-04-SC (April 22, 2004) in Re: Rule on Custody of Minors
and Writ of Habeas Corpus in Relation to Custody of Minors:
In any case, whatever uncertainty there was has been settled
with the adoption of A.M. No. 03-03-04-SC Re: Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to Custody of Minors.
Section 20 of the rule provides that:
Section 20. Petition for writ of habeas corpus. A
verified petition for a writ of habeas corpus involving custody
of minors shall be filed with the Family Court. The writ shall
be enforceable within its judicial region to which the Family
Court belongs.
xxx
xxx
xxx
The petition may likewise be filed with
the Supreme Court, Court of Appeals, or with any of its
members and, if so granted, the writ shall be
enforceable anywhere in the Philippines. The writ may be
made returnable to a Family Court or to any regular court
within the region where the petitioner resides or where the
minor may be found for hearing and decision on the merits.
From the foregoing, there is no doubt that the Court of
Appeals and Supreme Court have concurrent jurisdiction with family
courts in habeas corpus cases where the custody of minors is
involved.
We note that after petitioner moved out of their Paraaque residence on May 18, 2002, he
twice transferred his sons to provinces covered by different judicial regions. This situation
is what the Thornton interpretation of RA 8369s provision on jurisdiction precisely
addressed:
[The reasoning that by giving family courts exclusive jurisdiction
over habeas corpus cases, the lawmakers intended them to be the sole
courts which can issue writs ofhabeas corpus] will result in an iniquitous
situation, leaving individuals like [respondent] without legal recourse in
obtaining custody of their children. Individuals who do not know the
whereabouts of minors they are looking for would be helpless since they
cannot seek redress from family courts whose writs are enforceable only in
their respective territorial jurisdictions. Thus, if a minor is being
transferred from one place to another, which seems to be the case
here, the petitioner in a habeas corpus case will be left without legal
remedy. This lack of recourse could not have been the intention of
the lawmakers when they passed [RA 8369]
Harvey Marie I. Diapana
2. IN THE MATTER OF THE PETITION FOR THE HABEAS CORPUS OF ATTY.
FERNANDO ARGUELLES, JR., ATTY. REYNALDO GERONIMO, ET.AL., Petitioners,
vs.
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MAJ. GEN. JOSE BALAJADIA, JR., In his capacity as Sergeant-at-Arms of the

Senate, Respondent.
G.R. No. 167211 March 14, 2006

AZCUNA, J.:

FACTS: On March 15, 2005, petitioners filed a petition for habeas corpus because they
were detained in a room at the Senate pursuant to an Order dated March 15, 2005 issued
to respondent by the Senate Committee on Banks, Financial Institutions and Currencies
(Senate Committee).

The Senate Committee scheduled a hearing on March 15, 2005 at 10:30 a.m. to conduct an
investigation, in aid of legislation, regarding the alleged illegal sale of unregistered and
high risk securities by the Standard Chartered Bank. At the hearing, Atty. Fernando
Arguelles, Jr. and Atty. Reynaldo Geronimo were present as their counsel of the Standard
Chartered Bank.

The minutes of the hearing show that Standard Chartered Banks counsel provided the
Senate Committee with a copy of the petition for prohibition. The banks counsel also filed
an urgent motion to suspend or defer the proceedings of the Senate Committee apparently
to await the action of the Court on the petition for prohibition.

During the hearing, Senator Juan Ponce Enrile declared that "there is one portion of the
petition for prohibition that casts a slur on this Committee and the proceedings of the
Committee." Senator Juan Ponce Enrile moved to cite the officers of Standard Chartered
Bank and their counsel, Atty. Fernando Arguelles, Jr. and Atty. Reynaldo Geronimo, for
contempt for making the allegation.

Senator Edgardo Angara, chairperson of the Senate Committee, issued an Order directing
respondent Major General Jose Balajadia, Jr., sergeant-at-arms of the Senate, to detain for
direct contempt of the Committee the officers of Standard Chartered Bank and their
counsel, Atty. Fernando Arguelles, Jr. and Atty. Reynaldo Geronimo, for a period of not more
than six hours.

The persons who were detained in a room at the Senate then filed this petition for habeas
corpus, alleging that the Committee acted in violation of the Constitution and without
jurisdiction, for the following reason: that petitioners are being illegally deprived of their
liberty at the Senate building.

Petitioners prayed that respondent be directed to appear before this Court to produce their
bodies and to explain why they should not be set at liberty without delay.
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On March 18, 2005, petitioners filed a Manifestation and Motion stating that they were
released from the custody of the Senate by the Office of the Sergeant-at-Arms on March 15,
2005 at 5:56 p.m. Notwithstanding their release, petitioners submitted that it is imperative
that the issues involved in this case be resolved, because they are of unprecedented and
transcendental importance and they involve the impact of the exercise of the powers of
Congress upon human rights.

ISSUE: Whether or not the petition for habeas corpus has become moot.
HELD: YES

The petition has become moot.

A writ of habeas corpus extends to all cases of illegal confinement or detention by which
any person is deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled to it. Its essential object and purpose is to inquire into all
manner of involuntary restraint and to relieve a person from it if such restraint is illegal.

The singular function of a petition for habeas corpus is to protect and secure the basic
freedom of physical liberty. Petitioners have been released. While the issues raised by
petitioners are important, it is not appropriate to resolve them now in these proceedings.
This is all the more so considering that the only respondent here is Maj. Gen. Jose
Balajadia, Jr., the Senate sergeant-at-arms, impleaded in that capacity for holding
petitioners in custody. The Senate Committee itself has not been made a respondent and,
therefore, has not been given the opportunity to be heard on the issues sought to be
resolved.

Alexis Enriquez

3. Camara vs Pagayatan, GR No. 176563, April 2, 2007; 520 SCRA 182

(Special Proceedings Habeas Corpus, contempt)
Facts:
Petitioner Assistant Vice-President and Head of the Land Compensation Division of the
Land Bank of the Philippines (LBP) was detained under a warrant of arrest respondent
judge issued from a contempt citation against the former for LBPs failure to deposit the
preliminary compensation in Civil Case No. R-1390 as provided under the trial courts order.
LBP was directed to deposit the preliminary compensation, in cash and bonds, in the total
amount of P71,634,027.30 with the LBP, Manila, within 7 days from receipt of this order,
and to notify the Court of compliance within such period.
LBP then complied with this order by depositing the said amount in its head office in cash
under its account in trust for, and in bond payable to, the trial courts clerk of court.
However the respondent judge found LBPs compliance insufficient and ordered LBP to
place the deposit in the name of Josefina Lubrica as payee, in the form that is readily
withdrawable.
Respondent judge ordered Camara to remain in detention until LBP complies with such
order. Hence, petitioner filed this petition for a writ of habeas corpus.
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Issue: WON a respondent judge committed grave abuse of discretion amounting to lack or
in excess of his jurisdiction when he refused to release Camara from detention despite
LBPs compliance.
Held: Yes. Under section 4, Rule 102 of the Rules of Court, a writ of habeas corpus does
not lie if it appears that the person alleged to be restrained of his liberty is in custody of an
officer under process issued by a court or judge, and that the court or judge had
jurisdiction to issue the process. Petitioner does not question the trial courts jurisdiction to
issue the Order citing petitioner in contempt. What petitioner assails is respondent judges
refusal to release Camara from detention despite LBPs compliance of the full amount of
the preliminary compensation.
This is grave abuse of respondent judges contempt powers, amounting to lack or excess of
his jurisdiction.
Ramon A. Taghoy II

4. IN RE: PETITION FOR HABEAS CORPUS OF DAVID CRUZ y GONZAGA

MARIA CRUZ y GONZAGA and DAVID CRUZ y GONZAGA, petitioners, vs. COURT
OF APPEALS, SUPERINTENDENT OF THE NATIONAL PENITENTIARY, DIRECTOR
OF THE BUREAU OF CORRECTIONS, respondents.
FACTS:
Maria Cruzs filed a petition for habeas corpus. Her son, David, was tried and convicted by
the trial court for violation of the Dangerous Drugs Act of 1972 (RA 6425). He was
convicted on September 27, 1993 and sentenced to life imprisonment. He was committed
to the National Penitentiary on October 13, 1993. On December 31, 1993, R.A. No. 769
took effect. This law amended provisions of several penal laws, including the Dangerous
Drugs Act of 1972.
The penalty for the illegal sale of marijuana under the old law was life imprisonment to
death. Under R.A. 7659, the penalty depended on the quantity of the drug. The sale of
750 grams or more of Indian hemp or marijuana became punishable by reclusion
perpetua, to death. The penalty for the sale of less than 750 grams of marijuana was
reduced to a range from prision correccional to reclusion perpetua, depending upon the
quantity of the drug.
The amount of marijuana for which David Cruz was convicted is 2.70 grams. The imposable
penalty for this amount under the Simon ruling is prision correctional which has a duration
of six (6) months and one (1) day to six (6) years. Presently, David Cruz has already served
six (6) years and three (3) months of his sentence which is way beyond the last day
of prision correccional. The continued detention of Cruz at, the National Penitentiary has
been admitted by the Solicitor General as already illegal.
ISSUE:
WON a petition for a writ of habeas corpus be granted. YES
HELD:
The writ of habeas corpus extends to all cases of illegal confinement or detention by which
any person is deprived of his liberty. An application for the writ of habeas corpus is made
upon verified petition setting forth: (1) that the person in whose behalf the application is
made is imprisoned or restrained of his liberty; (2) the officer or name of the person by
whom he is imprisoned or restrained; (3) the place where he is imprisoned or restrained of
his liberty; and (4) a copy of the commitment or cause of detention of such person.
DON NICO G. SANCHEZ

5. NORBERTO FERIA Y PACQUING, petitioner,

vs.
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THE COURT OF APPEALS,

DIRECTOR OF THE BUREAU OF CORRECTIONS, MUNTINLUPA,
METRO MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA CITY JAIL),
THE PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA,
and
THE CITY PROSECUTOR, CITY OF MANILA, respondents.

The mere loss or destruction of the records of a criminal case subsequent to conviction of
the accused will not render the judgment of conviction void, nor will it warrant the release
of the convict by virtue of a writ of habeas corpus

FACTS:
Petitioner Feria has been under detention since May 21, 1981 up to the present by reason
of his conviction of the crime of Robbery with Homicide for the jeepney hold-up and killing
of US Peace Corps Volunteer Carmona
June 9, 1993 Petitioner sought to be transferred from the Manila City Jail to the Bureau
of Corrections in Muntinlupa City but the jail warden of Manila informed the Judge that the
transfer cannot be effected without the submission of the following requirements:
1. Commitment order or mittimus
2. Decision, and
3. Information
It was then discovered that the entire records of the case, including the copy of the
judgment were missing
The entire records appear to have been lost or destroyed in the fire which occurred on
November 3, 1986
October 3, 1994 Petitioner filed a Petition for the issuance of a Writ of Habeas Corpus
against the:
1. jail warden
2. city prosecutor
praying for his discharge from confinement on the ground that this continued detention
without any valid judgment is illegal and violative of his constitutional right to due process

ISSUE: W/N THE WRIT OF HABEAS CORPUS IS THE PROPER REMEDY NO

RULING:
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Writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and only sufficient defense of personal
freedom.
It secures to a prisoner the right to have the cause of his detention examined and
determined by a court of justice, and to have the issue ascertained as to whether he is held
under lawful authority.
The writ may also be availed of where, as a consequence of a judicial proceeding,
(a) there has been a deprivation of a constitutional right resulting in the restraint of
a person,
(b) the court had no jurisdiction to impose the sentence, or
(c) an excessive penalty has been imposed, as such sentence is void as to such
excess
Petitioner's claim is anchored on the first ground considering, as he claims, that his
continued detention, notwithstanding the lack of a copy of a valid judgment of conviction, is
violative of his constitutional right to due process.
There is sufficient evidence on record to establish the fact of conviction of petitioner
which serves as the legal basis for his detention. Petitioner made judicial admissions, both
verbal and written, that he was charged with and convicted of the crime of Robbery with
Homicide, and sentenced to suffer imprisonment "habang buhay".
As a general rule, the burden of proving illegal restraint by the respondent rests on the
petitioner who attacks such restraint. In other words, where the return is not subject to
exception, that is, where it sets forth process which on its face shows good ground for the
detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that
tends to invalidate the apparent effect of such process.
If the detention of the prisoner is by reason of lawful public authority, the return is
considered prima facie evidence of the validity of the restraint and the petitioner has the
burden of proof to show that the restraint is illegal based on Section 13 of Rule 102 of the
Rules of Court
Public respondents having sufficiently shown good ground for the detention, petitioner's
release from confinement is not warranted under Section 4 of Rule 102 of the Rules of
Court
In the present case, there is also no showing that petitioner duly appealed his conviction
of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment
has already become final and executory.
When a court has jurisdiction of the offense charged and of the party who is so charged,
its judgment, order, or decree is not subject to collateral attack by habeas corpus. Put
another way, in order that a judgment may be subject to collateral attack by habeas corpus,
it must be void for lack of jurisdiction.
Petitioner's invocation of Ordoez v. Director of Prisons, 235 SCRA 152 (1994), is
misplaced since the grant of the petition for habeas corpus therein was premised on the
loss of records prior to the filing of Informations against the prisoners, and therefore "[t]he
government has failed to show that their continued detention is supported by a valid
conviction or by the pendency of charges against them or by any legitimate cause
whatsoever."

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In this case, the records were lost after petitioner, by his own admission, was already
convicted by the trial court of the offense charged.
Further, the same incident which gave rise to the filing of the Information for Robbery
with Homicide also gave rise to another case for Illegal Possession of Firearm, the records
of which could be of assistance in the reconstitution of the present case.

Kaye Stephanie M. Sorrosa

6. MONCUPA vs. ENRILE
G.R. No. L-63345
January 30, 1986
FACTS:
Petitioners were arrested and detained on the allegation that they were members of a
subversive organization. They filed a petition for a writ of habeas corpus.
Two separate information were filed against the petitioner, one, for illegal possession of
firearms before the Court of First Instance of Rizal and the other for violation of P.D. 33
before the City Court of Quezon City.
The respondents, in their return of the writ justified the validity of petitioner's detention on
the ground that the privilege of the writ had been suspended as to the petitioner. However,
on August 30, 1983, the respondents filed a motion to dismiss stating that on May 11, 1983,
the petitioner was temporarily released from detention on orders of the Minister temporary
of National Defense with the approval of the President. The respondents stated that since
the petitioner is free and no longer under the custody of the respondents, the present
petition for habeas corpus may be deemed moot and academic as in similar cases.
ISSUE:
Whether or not a petition for a writ of habeas corpus becomes moot and academic in view
of the detained persons release with restrictions.
RULING:
NO.
Restraints attached to temporary release of a detained person warrant the Supreme
Courts inquiry into the nature of the involuntary restraint and relieving him of such
restraints may be illegal. Temporary release of detainee from detention with involuntary
restraints does not render the petition for writ of habeas corpus moot and academic. It is
available where a person continue to be unlawfully denied of one or more of his
constitutional freedom, where there is denial of due process, where the restraints are not
merely involuntary but are necessary, and where a deprivation of freedom originally valid
has later become arbitrary.
EDRIANNE BETH M. JASO
7. FRED M. HARDEN vs. THE DIRECTOR OF PRISONS
G.R. No. L-2349
October 22, 1948
Facts: Fred Harden was imprisoned for contempt of court for failing to comply with the
October 7, 1947, and March 27, 1948 Orders of the trial court, containing among others,
an order for Harden to return 368,553 shares of the Balatoc Mining Co., and the amount of
P1,000,608.66 to the Philippines and to redeposit the same with the accounts of the Plaza
Lunch at the Manila Branch of the Chartered Bank of India, Australia and China. These
Orders originated from a civil case instituted by Mrs. Harden against Fred Harden
involving the administration of a conjugal partnership, payment of alimony, and accounting.
Said orders were issued with the understanding that upon failure to comply with this order
he will be declared in contempt of court.
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On July 28, 1947, Mrs. Harden complained that her husband failed to comply with the
above orders and prayed that he be ordered to show cause why he should not be declared
in contempt. On January 7, 1948, the receiver informed the court that, notwithstanding the
expiration of Harden's extended time to comply with the Orders, the records of the Balatoc
Mining Co. showed that the certificate had not been registered (nor the money deposited in
the Philippines). At this stage of the case, Fred Harden was committed to jail.
Issue: Whether or not a writ of Habeas Corpus may lie against the court? NO.
Ruling: The imprisonment of Fred Harden was by virtue of a courts lawful holding of
petitioner in contempt for his non-compliance of its Orders.
The grounds for relief by habeas corpus are only (1) deprivation of any fundamental or
constitutional rights, (2) lack of jurisdiction of the court to impose the sentence, or (3)
excessive penalty.
(1) AS TO DEPRIVATION OF RIGHTS: The order of commitment expressly gives noncompliance with the lower courts Orders of October 7, 1947, and March 27, 1948, as the
grounds for the warrant of commitment, and thus by reference makes them part of it, in
turn clearly specify the acts with the petitioner was commanded to fulfill. It is equally clear
from these orders that in the opinion of the court that Harden is in a position to bring back
to the Philippines from Hongkong part of the cash and the Balatoc shares he had remitted
to that colony.
(2) AS TO LACK OF JURISDICTION: The failure of the order of commitment to state that
the acts which the contemner (a person held in contempt by the court) fails to do are still
in his power to perform, does not void the order of imprisonment. While a court cannot give
its receiver authority to act in another state without the assistance of the courts thereof,
yet it may act directly upon the parties before it with respect to property beyond the
territorial limits of its jurisdiction, and hold them in contempt if they resist the court's
orders with reference to its custody or disposition. SC did not agree with the fact that if the
property is in a foreign country, it would deprive the court of jurisdiction, the remedy in
such case being, as contended by petitioner, ancillary receivership. Whether the property
was removed before or after the appointment of the receiver is likewise immaterial.
(3) AS TO EXCESSIVE PENALTY: The punishment meted out to HARDEN is not
excessive. It is suitable and adapted to its objective; and it accords with section 7, Rule 64,
of the Rules of Court which provides that "when the contempt consists in the omission to do
an act which is yet in the power of the accused to perform, he may be imprisoned by order
of a superior court until he performs it. Citing American jurisprudence, SC held that, In a
civil contempt the proceeding is remedial, it is a step in the case the object of which is to
coerce one party for the benefit of the other party to do or to refrain from doing some act
specified in the order of the court. Hence, if imprisonment be ordered, it is remedial in
purpose and coercive in character, and to that end must relate to something to be done by
the defendant by the doing of which he many discharge himself. As quaintly expressed, the
imprisoned man "carries the keys to his prison in his own pocket."
Whether or not in truth the court's findings are supported by sufficient evidence is a
different matter; it is a matter of fact which cannot be reviewed by habeas corpus. In a long
line of decisions, this Court has steadfastly held that habeas corpus does not lie to correct
errors of fact or law. When a court has jurisdiction of the offense charged and of the party
who is so charged, its judgment, order or decree is not subject to collateral attack by
habeas corpus. The writ of habeas corpus cannot be made to perform the function of a writ
of error; and this holds true even if the judgment, orders or decree was erroneous,
provided it is within the jurisdiction of the court which rendered such judgment or issued
such an order or decree. So whether the act charged has been committed or can still be
performed is conclusively determined by the order or judgment of the trial court in the
proceeding wherein the petitioner for habeas corpus is adjudged in contempt.
Lourdes Angelie Edig
8. Olaguer vs. Military Comm
G.R. No. L-54558, May 22, 1987
FACTS: In 1979, Olaguer and some others who were all civilians, were detained by military
personnel at Camp Bagong Diwa. Petitioners were charged with
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(1) unlawful possession of explosives and incendiary devices;

(2) conspiracy to assassinate President and Mrs. Marcos;
(3) conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad and
Vicente Paterno;
(4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roo and Onofre Corpus;
(5) arson of nine buildings;
(6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals Romeo
Espino and Fabian Ver; and
(7) conspiracy and proposal to commit rebellion, and inciting to rebellion.
The Chief-of- Staff of the AFP created a military tribunal, named Military Commission No.
34. Petitioners were then convicted and have been imposed a penalty of death.
On August 19, 1980, the petitioners went to the SC and filed the instant Petition for
prohibition and habeas corpus.
ISSUE: Whether or not the petition for habeas corpus is proper.
HELD: The petition for habeas corpus is moot and academic by the time the case reached
the SC. Peritioners have already been released from military confinement.
When the release of the persons in whose behalf the application for a writ of habeas
corpus was filed is effected, the Petition for the issuance of the writ becomes moot and
academic. The instant Petitions for the issuance of a writ of habeas corpus should be
dismissed for having become moot and academic. But the military court created to try the
case of Olaguer (and the decision it rendered) still continues to subsist.
ISSUE: Whether or not the military tribunal had jurisdiction to try civilians as opposed to
the civil courts.
HELD: The SC ruled on the lack of jurisdiction of the military tribunals and all decisions
rendered by it during the period of martial law in all cases involving civilian defendants. A
military commission or tribunal cannot try and exercise jurisdiction, even during the period
of martial law, over civilians for offenses allegedly committed by them as long as the civil
courts are open and functioning. Judgment rendered by such body relating to a civilian is
null and void for lack of jurisdiction on the part of the military tribunal concerned.
Missy Ansaldo
9. PEOPLE OF THE PHILIPPINES vs. MARTIN SIMON y SUNGA, G.R. No. 93028
FACTS:
Martin Simon was convicted by the trial court for violation of Section 4, Article II of
R.A. No. 6425 (Dangerous Drugs Act of 1972), as amended, in December 4, 1989. However,
while this case was pending on appeal before the Supreme Court, R.A. No. 6425 was
further amended by Republic Act No. 7659 effective December 31, 1993, which
supervenience necessarily affects the original disposition of this case and entails additional
questions of law.
HELD:
The provisions of the aforesaid amendatory law, pertinent to the adjudication of the
case at bar, are to this effect:

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Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as

amended, known as the Dangerous Drugs Act of 1972, are hereby amended
to read as follows:
xxx xxx xxx
Sec. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. The penalty of reclusion
perpetua to death and a fine ranging from five hundred
thousand pesos to ten million pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of
such transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known
as the Dangerous Drugs Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of
the Proceeds or Instrument of the Crime. The penalties for
offenses under Sections 3, 4, 7, 8 and 9 of Article II and
Sections 14, 14-A, 15 and 16 of Article III of this Act shall be
applied if the dangerous drugs involved is in any of the
following quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less than the foregoing
quantities,
the
penalty
shall
range
from prision
correccional to reclusion
perpetua depending
upon
the
quantity.
Considering that herein appellant is being prosecuted for the sale of four tea bags of
marijuana with a total weight of only 3.8 grams and, in fact, stands to be convicted for the
sale of only two of those tea bags, the initial inquiry would be whether the patently
favorable provisions of Republic Act No. 7659 should be given retroactive effect to entitle
him to the lesser penalty provided thereunder, pursuant to Article 22 of the Revised Penal
Code.
Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory
and in substitution of the previous Articles 190 to 194 of the Revised Penal Code, it has
long been settled that by force of Article 10 of said Code the beneficient provisions of
Article 22 thereof applies to and shall be given retrospective effect to crimes punished by
special laws. The execution in said article would not apply to those convicted of drug
offenses since habitual delinquency refers to convictions for the third time or more of the
crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification.
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then
been involved nor invoked in the present case, a corollary question would be whether this
court,
at
the
present
stage,
can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on
appellant. That issue has likewise been resolved in the cited case of People vs. Moran, et
al., ante., thus:
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. . . . The plain precept contained in article 22 of the Penal Code, declaring

the retroactivity of penal laws in so far as they are favorable to persons
accused of a felony, would be useless and nugatory if the courts of justice
were not under obligation to fulfill such duty, irrespective of whether or not
the accused has applied for it, just as would also all provisions relating to the
prescription of the crime and the penalty.
If the judgment which could be affected and modified by the reduced penalties provided in
Republic Act No. 7659 has already become final and executory or the accused is serving
sentence thereunder, then practice, procedure and pragmatic considerations would
warrant and necessitate the matter being brought to the judicial authorities for relief under
a writ of habeas corpus.
Anthony L. Yap
10. ERLINDA K. ILUSORIO, petitioner,
vs.
ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE,
respondents.
GR No. 139808 May 12, 2000
POTENCIO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO,
petitioners,
vs.
HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents
FACTS:
Erlinda Kalaw Ilusorio
(POTENCIANO).

(ERLINDA)

is

the

wife

of

lawyaer

Potenciano

Ilusorio

ERLINDA and POTENCIANO contracted matrimony and lived together for a period of 30
years. In 1972, they separated from bed and board for undisclosed reasons. POTENCIANO
lived in Makati or in Baguio City, while ERLINDA lived in Antipolo City.
Out of their marriages, the spouses produced six children, to wit:

Ramon Ilusorio
Erlinda Ilusorio Bildner
Maximo
Sylvia
Marietta
Shereen

On 12/30/1997, POTENCIANO stayed with ERLINDA for about 5 months in Antipolo City.
The children, alleged that during this time, their mother gave POTENCIANO an overdose of
Zoloft, an antidepressant which led to the deterioration of the latters health.
On 5/31/1998, POTENCIANO after attending a meeting, did not return to Antipolo City and
instead lived in Makati City, which prompted ERLINDA to file for a petition for habeas
corpus.
She alleged that respondents refused petitioners demands to see and visit her husband
and prohibited POTENCIANO from returning to Antipolo City.
ISSUE:
Whether or not a wife may secure a writ of habeas corpus to compel her husband to live
with her in conjugal bliss?
RULING:
No, the wife cannot secure a writ of habeas corpus to compel her husband to live with her.

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Marital rights including coverture and living in conjugal dwelling may not be enforced by
the extra-ordinary writ of habeas corpus.
Habeas corpus is a writ directed to the person detaining another, commanding him to
produce the body of the prisoner at a designated time and place, with the day and cause of
his capture and detention, to do, submit to, and receive whatsoever the court or judge
awarding the writ shall consider in that behalf.
A writ of habeas corpus extends to all cases of illegal confinement or detention, or by which
the rightful custody of a person is withheld from the one entitled thereto.
The essential object and purpose of the writ of habeas corpus is to inquire into all manner
of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.
To justify the grant of the petition, the following must be present:

The restraint of liberty must be illegal

There is involuntary deprivation of freedom of action
The illegal restraint of liberty must be actual and effective, not merely nominal or
moral.

In the above case, evidence concludes that there was no actual and effective detention or
deprivation of lawyer POTENCIANO ILUSORIOs liberty that would justify the issuance of
the writ. The fact that POTENCIANO is in his primary years and under medication does not
necessarily render him mentally incapacitated.
Being of sound mind, he is thus possessed with the capacity to make choices. In the case at
bar, the crucial choice revolve on his residence and the people he opts to see or live with.
He made it clear before the Court of Appeals that he was not prevented from leaving his
house or seeing people.
With that declaration, and absent any true restraint on his liberty, the petition for habeas
corpus should be denied.
ARBIE MAE R. MAGALE
11. ZACARIAS VILLAVICENCIO, ET AL. vs.
JUSTO LUKBAN, ET AL
Facts: The Mayor of the city of Manila, Justo Lukban, to exterminate vice, ordered the
segregated district for women(170) of ill repute/ prostitutes, which had been permitted for
a number of years in the city of Manila, closed. The women were kept confined to their
houses in the district by the police. Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of Labor for sending the women to Davao,
Mindanao, as laborers; with some government office for the use of the coastguard cutters
Corregidor and Negros, and with the Constabulary for a guard of soldiers.
The attorney for the relatives and friends of a considerable number of the deportees
presented an application for habeas corpus to a member of the Supreme Court. The writ
was granted.
Issue: WON HC is the proper remedy?
Held: NO
The writ of habeas corpus was devised and exists as a speedy and effectual remedy to
relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the
writ, whose principal purpose is to set the individual at liberty.
The persons in question are not restrained of their liberty.
When the writ was prayed for, says counsel, the parties in whose behalf it was asked were
under no restraint; the women, it is claimed, were free in Davao. Others h
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
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involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if

such restraint is illegal. Any restraint which will preclude freedom of action is sufficient.
The forcible taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been imprisoned.
NOTE: The writ has already been granted, and since SC find a substantial compliance with
it, nothing further in this connection remains to be done.
Alfie Luzana Omega
12. In Re: Azucena L. Garcia G.R. No. 141443, August 30, 2000
Facts: Garcia was charged with three counts of falsification of public documents in three
separate criminal informations, the first being for falsification of technical description of
land and other two being for falsification of Declarations of Real Property.
In its decision, the trial court found Garcia guilty. On appeal, CA and SC affirmed Garcias
conviction and entry of judgment was made.
In the instant petition, Garcia questions the validity of the judgment rendered in the
criminal case. She contends that where the proceedings were attended by violations of the
constitutional rights of the accused, the judgment of conviction is void thereby warranting
relief by the extraordinary legal remedy of habeas corpus.
Issue: WON the writ of habeas corpus can be availed of.
Held: No. The high prerogative writ of habeas corpus was devised and exists as a speedy
and effectual remedy to relieve persons from unlawful restraint. Its object is to inquire into
the legality of ones detention, and if found illegal, to order the release of the detainee.
However, it is equally well-settled that the writ will not issue where the person in whose
behalf the writ is sought is out on bail, or is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issued the process, render the judgment, or make the
order.
In the case at bar, therefore, Garcia can no longer seek relief via a petition for habeas
corpus having been convicted by final judgment of the crime of falsification of public
document and use thereof. Said judgment is already final and executory.
Madel Malone-Cervantes
13. Tijing vs. CA
G.R. No. 125901 March 8, 2001
Facts:
Edgardo and Bienvenida Tijing filed a petition for habeas corpus in order to recover their
youngest child, Edgardo Jr., from Angela Diamante. Diamante took the spouses' son four
years earlier and raised him as her own son. The trial court granted the petition and
ordered Angelita Diamante to immediately release the child, now named John Thomas D.
Lopez, and turn him over to his parents. CA reversed and set aside the decision rendered
by the lower court.
Issue: Whether or not habeas corpus is the proper remedy?
Ruling: Yes.
The Court that the writ of habeas corpus extends to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful custody of
any person is withheld from the person entitled thereto. Thus, it is the proper legal remedy
to enable parents to regain the custody of a minor child even if the latter be in the custody
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of a third person of his own free will. It may even be said that in custody cases involving
minors, the question of illegal and involuntary restraint of liberty is not the underlying
rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose
of determining the right of custody over a child. It must be stressed too that in habeas
corpus proceedings, the question of identity is relevant and material, subject to the usual
presumptions including those as to identity of the person.
In the case at bar, the minor's identity is crucial in determining the propriety of the writ
sought. Thus, the Court resolved first who between Bienvenida and Angelita is the minor's
biological mother.
A close scrutiny of the records of this case reveals that the evidence presented by
Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son,
Edgardo Tijing, Jr. The court ruled that the trial court was correct in its judgment based on
the evidence established by the parents and by the witness who is the brother of the late
common-law husband of Angelita. Furthermore, there are no clinical records, log book or
discharge from the clinic where John Thomas was allegedly born were presented. Strong
evidence directly proves that Thomas Lopez, Angela's "husband", was not capable of siring
a child.
Also, the birth certificate of John Thomas Lopez were attended by irregularities. It was filed
by Thomas Lopez, the alleged father. Under Sec. 4, Act No. 3753 (Civil Register Law), the
attending physician or midwife in attendance of the birth should cause the registration of
such birth. Only in default of the physician or midwife, can the parent register the birth of
his child. Certificate must be filed with the LCR within 30 days after the birth.
Trial court also observed several times that when the child and Bienvenida were both in
court, the two had strong similarities in their faces. Resemblance between a minor and his
alleged parent is competent and material evidence to establish parentage. Lastly, the
spouses presented clinical records and testimony of the midwife who attended Bienvenida's
childbirth.
Thus, the writ of habeas corpus is proper to regain custody of said child.
Lizette Tuballa
15. Roxas v. Macapagal-Arroyo
G.R. No. 189155
07 September 2010
PONENTE: Perez, J.
PARTIES:
PETITIONER: MELISSA ROXAS
RESPONDENTS: PRESIDENT GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN.
VICTOR IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN BANGIT, PC/SIPT/
LEON NILO DELA CRUZ, MAJ.GEN. RALPH VILLANUEVA, PS/SUPT. RUDY GAMIDO
LACADIN, DEX, RC, and ROSE
NATURE: Petition for Review on Certiorari
PROCEDURAL BACKGROUND:
Supreme Court: Petition for the issuance of Writs of Amparo and Habeas Data
Court of Appeals: Upon order of the Supreme Court, the Court of Appeals summarily heard
the Original Action for Petition of Amparo. Thereafter, the Court of Appeals issued a
judgment which is the subject of the present Petition for Review on Certiorari.
FACTS:

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Melissa Roxas, an American citizen of Filipino descent, while in the United States, enrolled
in an exposure program to the Philippines with the group Bagong Alyansang MakabayanUnited States of America (BAYAN- USA) of which she is a member.
On 19 May 2009, after doing survey work in Tarlac, Roxas and her companions rested in
the house of Mr. Jesus Paolo in Sitio Bagong Sikat. While Roxas and her companions were
resting, 15 heavily armed men in civilian clothes forcibly entered the house and dragged
them inside a van. When they alighted from the van, she was informed that she is being
detained for being a member of Communist Party of the Philippines-New Peoples Army
(CPP-NPA). She was then separated from her companions and was brought to a room, from
where she could hear sounds of gunfire, noise of planes taking off and landing, and some
construction bustle.
She was interrogated and tortured for 5 straight days to convince her to abandon her
communist beliefs. She was informed by a person named RC that those who tortured her
came from the Special Operations Group and that she was abducted because her name is
included in the Order of Battle.
On 25 May 2009, Roxas was finally released and was given a cellular phone with a sim
card. She was sternly warned not to report the incident to the group Karapatan or
something untoward will happen to her and her family. After her release, Roxas continued
to receive calls from RC thru the cell phone given to her. Out of apprehension, she threw
the phone and the sim card.
Hence, on 01 June 2009, Roxas filed a petition for the issuance of Writs of Amparo and
Habeas Data before the Supreme Court, impleading the high-ranking officials of military
and Philippine National Police (PNP), on the belief that it was the government agents who
were behind her abduction and torture.
On 09 June 2009, the Supreme Court issued the writs and referred the case to the Court of
Appeals for hearing, reception of evidence and appropriate action. The Court of Appeals
granted the privilege of writs of amparo and habeas data. However, the court a quo
absolved the respondents because it was not convinced that the respondents were
responsible for the abduction and torture of Roxas.
Aggrieved, Roxas filed an appeal with the Supreme Court.
PERTINENT ISSUES:
Whether or not the doctrine of command responsibility is applicable in an amparo petition.
Whether or not circumstantial evidence with regard to the identity and affiliation of the
perpetrators is enough ground for the issuance of the privilege of the writ of amparo.
Whether or not substantial evidence to prove actual or threatened violation of the right to
privacy in life, liberty or security of the victim is necessary before the privilege of the writ
may be extended.
ANSWERS:
No.
It depends. Direct evidence of identity, when obtainable must be preferred over mere
circumstantial evidence.
Yes.
SUPREME COURT RULINGS:
1.

DOCTRINE OF COMMAND RESPONSIBILITY AND THE WRIT OF AMPARO

Command responsibility as justification in impleading respondents is legally inaccurate

The use of the doctrine of command responsibility as justification in impleading the
respondents in her amparo petition, is legally inaccurate, if not incorrect. Such doctrine is
a rule of substantive law that establishes liability and, by this account, cannot be a proper
legal basis to implead a party-respondent in an amparo petition.

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The Writ of Amparo as a protective remedy As held in the case of Rubrico v. Arroyo, the
writ of amparo is a protective remedy aimed at providing judicial relief consisting of the
appropriate remedial measures and directives that may be crafted by the court, in order to
address specific violations or threats of violation of the constitutional rights to life, liberty
or security. It does not fix liability for such disappearance, killing or threats, whether that
may be criminal, civil or administrative under the applicable substantive law. Since the
application of command responsibility presupposes an imputation of individual liability, it is
more aptly invoked in a full-blown criminal or administrative case rather than in a summary
amparo proceeding. However, the inapplicability of the doctrine of command responsibility
does not preclude impleading military or police commanders on the ground that the
complained acts in the petition were committed with their direct or indirect acquiescence.
In which case, commanders may be impleaded not actually on the basis of command
responsibilitybut rather on the ground of their responsibility, or at least accountability.
2.

EVIDENCE REQUIRED IN AMPARO PROCEEDINGS

In amparo proceedings, direct evidence of identity must be preferred over mere

circumstantial evidence In amparo proceedings, the weight that may be accorded to
parallel circumstances as evidence of military involvement depends largely on the
availability or non-availability of other pieces of evidence that has the potential of directly
proving the identity and affiliation of the perpetrators. Direct evidence of identity, when
obtainable, must be preferred over mere circumstantial evidence based on patterns and
similarity, because the former indubitably offers greater certainty as to the true identity
and affiliation of the perpetrators.
3.

EVIDENCE REQURED IN HABEAS DATA PROCEEDINGS

Substantial evidence of an actual or threatened violation of the right to privacy in life,

liberty or security of the victim is an indispensable requirement before the privilege of the
writ may be extended An indispensable requirement before the privilege of the writ may
be extended is the showing, at least by substantial evidence, of an actual or threatened
violation of the right to privacy in life, liberty or security of the victim. In the case at bar,
Roxas failed to show that there is an actual or threatened violation of such right. Hence,
until such time that any of the respondents were found to be actually responsible for the
abduction and torture of Roxas, any inference regarding the existence of reports being kept
in violation of the petitioners right to privacy becomes farfetched, and premature. The
Court must, at least in the meantime, strike down the grant of the privilege of the writ of
habeas data.
DISPOSITIVE:
The Supreme Court affirmed the decision of the Court of Appeals. However, it modified the
directive of the Court of the Appeals for further investigation, as follows:
Appointing the CHR as the lead agency tasked with conducting further investigation
regarding the abduction and torture of the petitioner. Accordingly, the CHR shall, under the
norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify
the persons described in the cartographic sketches submitted by the petitioner, as well as
their whereabouts; and (b) to pursue any other leads relevant to petitioners abduction and
torture.
Directing the incumbent Chief of the Philippine National Police (PNP), or his successor, and
the incumbent Chief of Staff of the AFP, or his successor, to extend assistance to the
ongoing investigation of the CHR, including but not limited to furnishing the latter a copy
of its personnel records circa the time of the petitioners abduction and torture, subject to
reasonable regulations consistent with the Constitution and existing laws.
Further directing the incumbent Chief of the PNP, or his successor, to furnish to this Court,
the Court of Appeals, and the petitioner or her representative, a copy of the reports of its
investigations and their recommendations, other than those that are already part of the
records of this case, within ninety (90) days from receipt of this decision.
Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90) days
from receipt of this decision, a copy of the reports on its investigation and its
corresponding recommendations; and to (b) provide or continue to provide protection to
the petitioner during her stay or visit to the Philippines, until such time as may hereinafter
be determined by this Court.
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The Supreme Court likewise referred the case back to the Court of Appeals, for the
purposes of monitoring compliance with the above directives and determining whether, in
light of any recent reports or recommendations, there would already be sufficient evidence
to hold any of the public respondents responsible or, at least, accountable. After making
such determination, the Court of Appeals shall submit its own report with recommendation
to the Supreme Court for its consideration. It was declared that the Court of Appeals will
continue to have jurisdiction over this case in order to accomplish its tasks under this
decision.
Edwin Gutierez
16. PHILIP SIGFRID A. FORTUN and ALBERT LEE G. ANGELES
vs.
GLORIA MACAPAGAL-ARROYO
Facts:
Heavily armed men, believed led by the ruling Ampatuan family, gunned down and buried
under shoveled dirt 57 innocent civilians. In response to this carnage, President Arroyo
issued Presidential Proclamation 1946, declaring a state of emergency in Maguindanao,
Sultan Kudarat, and Cotabato City to prevent and suppress similar lawless violence in
Central Mindanao.
Believing that she needed greater authority to put order in Maguindanao and secure it
from large groups of persons that have taken up arms against the constituted authorities in
the province, President Arroyo issued Presidential Proclamation 1959 declaring martial law
and suspending the privilege of the writ of habeas corpus in that province except for
identified areas of the Moro Islamic Liberation Front.
Two days later President Arroyo submitted her report to Congress in accordance with
Section 18, Article VII of the 1987 Constitution which required her, within 48 hours from
the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, to submit to that body a report in person or in writing of her action.
Congress, in joint session, convened pursuant to Section 18, Article VII of the 1987
Constitution to review the validity of the Presidents action. before Congress could act, the
President issued Presidential Proclamation 1963, lifting martial law and restoring the
privilege of the writ of habeas corpus .
Petitioners Philip Sigfrid A. Fortun and the other petitioners brought the present actions to
challenge the constitutionality of President Arroyos Proclamation 1959.
Issue:
Whether or not the constitutionality of Proclamation 1959 unavoidable?
Ruling:
The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:
One. President Arroyo withdrew her proclamation of martial law and suspension of the
privilege of the writ of habeas corpus before the joint houses of Congress could fulfill their
automatic duty to review and validate or invalidate the same.
Section 18, Article VII of the 1987 Constitution state:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all
its Members in regular or special session, may revoke such proclamation or suspension,
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which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or suspension
for a period to be determined by the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without any need of a call.
Although the above vests in the President the power to proclaim martial law or suspend the
privilege of the writ of habeas corpus, he shares such power with the Congress. Thus:
1. The Presidents proclamation or suspension is temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation or suspension, report his action in person
or in writing to Congress;
3. Both houses of Congress, if not in session must jointly convene within 24 hours of the
proclamation or suspension for the purpose of reviewing its validity; and
4. The Congress, voting jointly, may revoke or affirm the Presidents proclamation or
suspension, allow their limited effectivity to lapse, or extend the same if Congress deems
warranted.
It is evident that under the 1987 Constitution the President and the Congress act in tandem
in exercising the power to proclaim martial law or suspend the privilege of the writ of
habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since,
after the President has initiated the proclamation or the suspension, only the Congress can
maintain the same based on its own evaluation of the situation on the ground, a power that
the President does not have.
Consequently, although the Constitution reserves to the Supreme Court the power to
review the sufficiency of the factual basis of the proclamation or suspension in a proper
suit, it is implicit that the Court must allow Congress to exercise its own review powers,
which is automatic rather than initiated. Only when Congress defaults in its express duty to
defend the Constitution through such review should the Supreme Court step in as its final
rampart. The constitutional validity of the Presidents proclamation of martial law or
suspension of the writ of habeas corpus is first a political question in the hands of Congress
before it becomes a justiciable one in the hands of the Court.
President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which
had in fact convened, could act on the same. Consequently, the petitions in these cases
have become moot and the Court has nothing to review. The lifting of martial law and
restoration of the privilege of the writ of habeas corpus in Maguindanao was a supervening
event that obliterated any justiciable controversy.2
Two. Since President Arroyo withdrew her proclamation of martial law and suspension of
the privilege of the writ of habeas corpus in just eight days, they have not been
meaningfully implemented. The military did not take over the operation and control of local
government units in Maguindanao. The President did not issue any law or decree affecting
Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass arrest
had been reported. Those who were arrested during the period were either released or
promptly charged in court. Indeed, no petition for habeas corpus had been filed with the
Court respecting arrests made in those eight days.
In the present case, the Court has not bothered to examine the evidence upon which
President Arroyo acted in issuing Proclamation 1959, precisely because it felt no need to,
the proclamation having been withdrawn within a few days of its issuance.
Justice Antonio T. Carpio points out in his dissenting opinion the finding of the Regional
Trial Court (RTC) of Quezon City that no probable cause exist that the accused before it
committed rebellion in Maguindanao since the prosecution failed to establish the elements
of the crime. But the Court cannot use such finding as basis for striking down the
Presidents proclamation and suspension. For, firstly, the Court did not delegate and could
not delegate to the RTC of Quezon City its power to determine the factual basis for the
presidential proclamation and suspension. Secondly, there is no showing that the RTC of
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Quezon City passed upon the same evidence that the President, as Commander-in-Chief of
the Armed Forces, had in her possession when she issued the proclamation and suspension.
Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only 30 days
from the filing of an appropriate proceeding to review the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus. Thus
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing. (Emphasis supplied)
Justice Carpio of course points out that should the Court regard the powers of the
President and Congress respecting the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus as sequential or joint, it would be impossible for the
Court to exercise its power of review within the 30 days given it.
But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its
duty without pre-empting congressional action. Section 18, Article VII, requires the
President to report his actions to Congress, in person or in writing, within 48 hours of such
proclamation or suspension. In turn, the Congress is required to convene without need of a
call within 24 hours following the Presidents proclamation or suspension.
If the Congress procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it, then the Court can step in,
hear the petitions challenging the Presidents action, and ascertain if it has a factual basis.
If the Court finds none, then it can annul the proclamation or the suspension. The 30-day
period does not operate to divest this Court of its jurisdiction over the case.
The problem in this case is that the President aborted the proclamation of martial law and
the suspension of the privilege of the writ of habeas corpus in Maguindanao in just eight
days. The proclamation and the suspension never took off. The Congress itself adjourned
without touching the matter, it having become moot and academic.
The present cases do not present sufficient basis for the exercise of the power of judicial
review.
Olan Dave L. Lachica
17. DE LIMA v. GATDULA
FACTS
What happened in this case was that, on Feb 12, 2012, Magtanggol B. Gatdula, the
respondent herein filed a Petition for the Issuance of a Writ of Amparo in the RTC of
Manila. It was docketed as In the Matter of the Petition for Issuance of Writ of Amparo of
Atty. Magtanggol B. Gatdula, SP no. 12-127405 and was raffled to the sala of Judge Silvino
T. Pampilo.
The Amparo was directed against petitioners Justice Secretary Leila De Lima, Director
Rojas and Deputy Director Esmeralda of the NBI. The respondent wanted De Lima, et. al.
to cease and desist from framing up Gatdula for the fake ambush incident by filing bogus
charges of Frustrated Murder against him in relation to the alleged ambush incident.
Now, instead of deciding on whether to issue a Writ of Amparo, the judge issued summons
and ordered De Lima, et al. to file an Answer. During the hearing, counsel for De Lima, et
al manifested that a Return, not an Answer, is appropriate for Amparo cases.
In an order dated March 2, 2012, Judge Pampilo insisted that since no writ has been issued,
return is not the required pleading but answer. The judge also noted that the Rules of Court
apply suppletorily in Amparo Cases. He opined that the Revised Rules on Summary
Procedure applies and thus required an Answer.
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Judge Pampilo proceeded to conduct a hearing on the main case. Even without a Return or
an Answer, he ordered the parties to file their respective memoranda within five (5)
working days after that hearing. Since the period to file an Answer had not yet lapsed by
then, the judge also decided that the memorandum of De Lima, et al would be filed in lieu
of their Answer.
On March 20, 2012, the RTC rendered a decision granting the issuance of the writ of
Amparo. The RTC also granted the interim reliefs prayed for, namely: temporary protection,
production and inspection orders.
On October 8, 2012, the RTC denied the Motion for Reconsideration filed by De Lima, et al
And so, De Lima, et al came to this Court assailing the RTC decision through a Petition for
Review on Certiorari via Rule 45, as enunciated in Section 19 of the Rule on the Writ of
Amparo:
Section 19 APPEAL- Any party may appeal from the final judgment or order to the
Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. x x x
ISSUE
WHETHER OR NOT PETITION FOR ON CERTIORARI under RULE 45 IS THE PROPER
REMEDY TO ASSAIL THE DECISION DATED MARCH 20, 2012
RULING
The Court ruled that a Petition for Review under Rule 45 may not yet be the proper remedy
at this time for the reason that the decision dated March 20, 2012 granting the writ of
Amparo is not the judgment or final order contemplated under this rule.
Reason:
The "Decision" dated 20 March 2012 assailed by the petitioners could not be the
judgment or final order that is appealable under Section 19 of the Rule on the Writ
of Amparo. This is clear from the tenor of the dispositive portion of the "Decision", to wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to issue the Writ of Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect the service of the Writ
of Amparo in an expeditious manner upon all concerned, and for this purpose may call
upon the assistance of any military or civilian agency of the government.
This "Decision" pertained to the issuance of the writ under Section 6 of the Rule on the
Writ of Amparo, not thejudgment under Section 18. The "Decision" is thus an
interlocutory order, as suggested by the fact that temporary protection, production
and inspection orders were given together with the decision. The temporary
protection, production and inspection orders are interim reliefs that may be
granted by the court upon filing of the petition butbefore final judgment is
rendered.
The confusion of the parties arose due to the procedural irregularities in the RTC.
First, the insistence on filing of an Answer was inappropriate. It is the Return that serves
as the responsive pleading for petitions for the issuance of Writs of Amparo. The
requirement to file an Answer is contrary to the intention of the Court to provide a speedy
remedy to those whose right to life, liberty and security are violated or are threatened to be
violated. In utter disregard of the Rule on the Writ of Amparo, Judge Pampilo insisted on
issuing summons and requiring an Answer.
It is clear from this rule that this type of summary procedure only applies to
MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply to proceedings
in an RTC. Aside from that, this Court limited the application of summary procedure to
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certain civil and criminal cases. A writ of Amparo is a special proceeding. It is a remedy
by which a party seeks to establish a status, a right or particular fact. 34 It is not a civil nor a
criminal action, hence, the application of the Revised Rule on Summary Procedure is
seriously misplaced.
The second irregularity was the holding of a hearing on the main case prior to the issuance
of the writ and the filing of a Return. Without a Return, the issues could not have been
properly joined.
Worse, is the trial courts third irregularity: it required a memorandum in lieu of a
responsive pleading (Answer) of De Lima, et al.
The Return in Amparo cases allows the respondents to frame the issues subject to a
hearing. Hence, it should be done prior to the hearing, not after. A memorandum, on the
other hand, is a synthesis of the claims of the party litigants and is a final pleading usually
required before the case is submitted for decision. One cannot substitute for the other
since these submissions have different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under the Rule on the Writ
of Amparo.35
The fourth irregularity was in the "Decision" dated 20 March 2012 itself. In the body of its
decision, the RTC stated:
"Accordingly
this
court GRANTS
the
privilege
of
the
the interim reliefs prayed for by the petitioner." (Emphasis supplied).

writ

and

This gives the impression that the decision was the judgment since the phraseology is
similar to Section 18 of the Rule on the Writ of Amparo:
"SEC. 18. Judgment. The court shall render judgment within ten (10) days from the time
the petition is submitted for decision. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such reliefs as
may be proper and appropriate; otherwise, the privilege shall be denied." (Emphasis
supplied).
The privilege of the Writ of Amparo should be distinguished from the actual
order called the Writ of Amparo. The privilege includes availment of the entire procedure
outlined in A.M. No. 07-9-12-SC, the Rule on the Writ ofAmparo. After examining the
petition and its attached affidavits, the Return and the evidence presented in the summary
hearing, the judgment should detail the required acts from the respondents that will
mitigate, if not totally eradicate, the violation of or the threat to the petitioner's life, liberty
or security.
A judgment which simply grants "the privilege of the writ" cannot be executed.1wphi1 It
is tantamount to a failure of the judge to intervene and grant judicial succor to the
petitioner. Petitions filed to avail of the privilege of the Writ ofAmparo arise out of very real
and concrete circumstances. Judicial responses cannot be as tragically symbolic or
ritualistic as "granting the privilege of the Writ of Amparo."
The procedural irregularities in the RTC affected the mode of appeal that petitioners used
in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues using the proper procedure
at the right time. Procedural rules are meant to assist the parties and courts efficiently deal
with the substantive issues pertaining to a case. When it is the judge himself who
disregards the rules of procedure, delay and confusion result.

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The Petition for Review is not the proper remedy to assail the interlocutory order
denominated as "Decision" dated 20 March 2012. A Petition for Certiorari, on the other
hand, is prohibited.36 Simply dismissing the present petition, however, will cause grave
injustice to the parties involved. It undermines the salutary purposes for which the Rule on
the Writ of Amparo were promulgated.
In many instances, the Court adopted a policy of liberally construing its rules in order to
promote a just, speedy and inexpensive disposition of every action and proceeding. 37 The
rules can be suspended on the following grounds: (1) matters of life, liberty, honor or
property, (2) the existence of special or compelling circumstances, (3) the merits of the
case, (4) a cause not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules, (5) a lack of any showing that the review sought is merely
frivolous and dilatory, and (6) the other party will not be unjustly prejudiced thereby. 38
Harvey Marie I. Diapana
18. REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
TRINIDAD R.A. CAPOTE, Respondent.
G.R. No. 157043 February 2, 2007
CORONA, J.:
FACTS: Respondent Trinidad R. A. Capote, Giovannis guardian ad litem, filed a petition for
change of name of her ward from Giovanni N. Gallamaso to Giovanni Nadores on
September 9, 1998.
She averred in her petition that Giovanni N. Gallamaso is a Filipino Citizen, 16 years old,
minor. As guardian ad litem, authorizing her to file in court a petition for change of name of
said minor in accordance with the desire of his mother, who is residing and working abroad
Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of Corazon P. Nadores
and Diosdado Gallamaso. He was born on July 9, 1982, prior to the effectivity of the New
Family Code and as such, his mother used the surname of the natural father despite the
absence of marriage between them; and Giovanni has been known by that name since birth
as per his birth certificate registered at the Local Civil Register of San Juan, Southern
Leyte.
The father, Diosdado Gallamaso, from the time Giovanni was born and up to the present,
failed to take up his responsibilities [to him] on matters of financial, physical, emotional
and spiritual concerns. That Giovannis mother might eventually petition him to join her in
the United States and his continued use of the surname Gallamaso, the surname of his
natural father, may complicate his status as natural child.
Publication of the petition in a newspaper of general circulation in the province of Southern
Leyte once a week for three consecutive weeks was likewise ordered. The trial court also
directed that the local civil registrar be notified and that the Office of the Solicitor General
(OSG) be sent a copy of the petition and order.
Since there was no opposition to the petition, respondent moved for leave of court to
present her evidence ex parte before a court-appointed commissioner. The OSG, acting
through the Provincial Prosecutor, did not object; hence, the lower court granted the
motion.
RTC: After the reception of evidence, the trial court rendered a decision ordering the
change of name from Giovanni N. Gallamaso to Giovanni Nadores.
From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal
with a lone assignment of error: the court a quo erred in granting the petition in a
summary proceeding.
CA: the CA affirmed the RTC decision ordering the change of name.
ISSUE: Whether or not the apellee Capote guardian ad litem availed of the proper
remedy on the change of name under Rule 103 of the Rules of Court.
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HELD: YES

The law and facts obtaining here favor Giovannis petition. Giovanni availed of the proper
remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied
with all the procedural requirements. After hearing, the trial court found (and the
appellate court affirmed) that the evidence presented during the hearing of
Giovannis petition sufficiently established that, under Art. 176 of the Civil Code:

According to the Family Code which repealed, among others, Article 366 of the Civil Code:

Art. 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.
xxx xxx xxx (emphasis ours)

Giovanni is entitled to change his name as he was never recognized by his father
while his mother has always recognized him as her child. A change of name will erase
the impression that he was ever recognized by his father. It is also to his best interest as it
will facilitate his mothers intended petition to have him join her in the United States. This
Court will not stand in the way of the reunification of mother and son.

ISSUE: Whether or not a petition for change of name under Rule 103 of the Rules
of Court must be heard in an adversarial proceeding.
HELD: YES
The issue of non-joinder of alleged indispensable parties in the action before the court a
quo is intertwined with the nature of the proceedings there. The point is whether the
proceedings were sufficiently adversarial.

While the OSG is correct in its stance that the proceedings for change of name should be
adversarial, the OSG cannot void the proceedings in the trial court on account of its own
failure to participate therein. As the CA correctly ruled:

The OSG is correct in stating that a petition for change of name must be heard in an
adversarial proceeding. Unlike petitions for the cancellation or correction of clerical
errors in entries in the civil registry under Rule 108 of the Rules of Court, a
petition for change of name under Rule 103 cannot be decided through a
summary proceeding. There is no doubt that this petition does not fall under Rule
108 for it is not alleged that the entry in the civil registry suffers from clerical or
typographical errors. The relief sought clearly goes beyond correcting erroneous
entries in the civil registry, although by granting the petition, the result is the same
in that a corresponding change in the entry is also required to reflect the change in
name.

In this regard, [appellee] Capote complied with the requirement for an adversarial
proceeding by posting in a newspaper of general circulation notice of the filing of
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the petition. The lower court also furnished the OSG a copy thereof. Despite the
notice, no one came forward to oppose the petition including the OSG. The fact
that no one opposed the petition did not deprive the court of its jurisdiction to
hear the same nor does it make the proceeding less adversarial in nature. The
lower court is still expected to exercise its judgment to determine whether the petition is
meritorious or not and not merely accept as true the arguments propounded. Considering
that the OSG neither opposed the petition nor the motion to present its evidence ex parte
when it had the opportunity to do so, it cannot now complain that the proceedings in the
lower court were not adversarial enough. (emphasis supplied)

A proceeding is adversarial where the party seeking relief has given legal warning
to the other party and afforded the latter an opportunity to contest it. Respondent
gave notice of the petition through publication as required by the rules. With this, all
interested parties were deemed notified and the whole world considered bound by the
judgment therein. In addition, the trial court gave due notice to the OSG by serving a copy
of the petition on it. Thus, all the requirements to make a proceeding adversarial were
satisfied when all interested parties, including petitioner as represented by the OSG, were
afforded the opportunity to contest the petition.

Alexis Enriquez
19. ROMMEL JACINTO DANTES SILVERIO
vs.
REPUBLIC OF THE PHILIPPINESG.R. No. 174689, October 22, 2007
Facts:
Rommel Jacinto Dantes Silverio, born and registered as a male, underwent sex
reassignment in Bangkok, Thailand, the fact of which was certified here in the Philippines
by virtue of a medical certificate issued by one Dr. Marcelino Reysio-Cruz. He then lived his
life as a woman. On November 26, 2002, Rommel filed a petition for the change of his first
name and sex before the RTC of Manila. The court having underwent
the jurisdictional requirements, and there having no opposition, the court proceeded with t
he hearing where Rommel presented his American Fiance as witness. RTC gave due course
to his petition, ruling based on equity, that petitioners misfortune to be trapped in
amans body is not his own doing and should not be taken against him and that no harm,
injury or prejudice will be caused to anybody if the petition were to be granted. His name
was thus changed to Mely, and sex to female. Republic filed a petition for certiorari in
the CA. The appellate court reversed the decision of the RTC.
Petitioners claim/ Issue:
Petitioner essentially claims that the change of his name and sex in his birth certificate is
allowed under Articles407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court
and RA 9048.
Held:
Petitioner, your contention is not meritorious.
Ratio decidendi:
1.) Change of Name, primarily Administrative in nature:
Section 1 of RA 9048 provides in essence that no entry in a civil register shall be changed
or corrected without a judicial order, except for clerical or typographical errors, which can
be changed by concerned city or municipal civil registrar or consul general . The
jurisdiction therefore is primarily lodged with these 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. In sum, the remedy and the proceedings regulating change of first
name are primarily administrative in nature, not judicial. Hence, the venue to
which petitioner filed is improper.
2.) Grounds for change of name:
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RA 9048 provides the grounds for which change of first name may be allowed: 1) 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. From these grounds, it
can be gleaned that RA 9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioners name for his declared
purpose may only create grave complications. Before a person can legally change his given
name, he must present proper or reasonable cause or any compelling reason justifying
such change. In addition, he must show that he will be prejudiced by the use of his true and
official name. 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.
3.) No Law Allows The Change of Entry In The Birth Certificate As To Sex On the
Ground of Sex Reassignment: By virtue of RA 9048, Rule 108 now applies only to
substantial changes and corrections in entries in the civil register , excluding the clerical or
typographical error. Section 2 of RA9048 provides expressly that no correction must
involve the change of nationality, age, status or sex of the petitioner.
Ramon A. Taghoy II
20. REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
ROSELIE ELOISA BRINGAS BOLANTE a.k.a. MARIA ELOISA BRINGAS
BOLANTE, respondent.
FACTS:
Respondent filed a petition for change of name before the RTC. She alleged that her
registered name (birth certificate) is Roselie Eloisa Bringas Bolante which she did not use
but instead the name Maria Eloisa Bringas Bolante appears in all her school as well as in
her other public and private records.
The RTC upon finding that the petition is sufficient in form and substance ordered
respondent to comply with the jurisdictional requirements of notice and publication, and
set the hearing on Feb. 20, 2001. At the scheduled Feb. 20 initial hearing the RTC ordered
the respondent to file a written formal offer of evidence.
The Clerk of Court acting on courts express directive for a resetting issued another notice
for a hearing and a second resetting was made after notice was given scheduled on
September 25, 2001 and actually held.
On the Sept. 25 hearing, respondent presented several documents without any objection on
the part of petitioner, represented by the OSG. She also took the witness to state the
purpose of her petition which was to have her registered name changed to that which she
had actually been using thru the years. She testified that she wanted to secure a passport
issued with her correct name and to avoid any complication on her records upon her
retirement.
The RTC granted the petition and the appellate court affirmed the same, hence; the current
case. Petitioner argued that the jurisdictional facts were not complied with as prescribed
by Rule 103 Section 3 in which xxx the date set for hearing shall not be within 30 days
prior to an election nor within 4 months after the last publication of the notice. Petitioner
argued that the notices were published on these dates: Nov. 23, 30 and December 7 and
the hearing was set on Feb. 20 which is within the prohibited period of 4 months. Petitioner
also argued that the reasons given by respondent is not sufficient to grant the request for
change of name.
ISSUE:
WON the jurisdictional facts were not complied with (that the hearing was made within the
4 months prohibited period), thus; the petition should be dismissed. NO
HELD:
The Jurisdictional requirements were complied with. The notice of hearing was published in
the Nov. 23, 30 and Dec. 7, counted from the last day of publication of the order, the initial
hearing scheduled on Feb 20 is indeed within the 4-month prohibited period prescribed
under the RoC. However, the RTC upon realizing the error, lost no time in rectifying its
mistake by rescheduling, with due notice to all concerned, the initial hearing for several
times, finally settling for Sept 25, 2001.
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In a petition for change of name being a proceeding in rem, any person may appear at the
hearing and oppose the petition. The OSG shall appear on behalf of the government. In the
present case the republic was fully apprised of the new dates of the initial hearing
therefore, there is no need for a republication of notice. The Sept. 25 hearing was already
outside the 4-month prohibited period, thus the jurisdictional requirement of publication
was complied with.
DON NICO G. SANCHEZ
21. REPUBLIC OF THE PHILIPPINES, petitioner
vs.
HON. FELICIANO BELMONTE, Judge of the Court of First Instance of Baguio and
Benguet
ANITA PO alias VERONICA PAO, assisted by her mof her HELEN POA, respondents.

FACTS:
Private respondent Anita Po filed a Petition for the change of her name from Anita Po to
Veronica Pao
She also sought to have her birth records corrected in that:
1. her fathers name appearing as Po Yu be corrected to Pao Yu and
2. her mof hers name recorded as Pakiat Chan be changed to Helen Chan
Petitioner was a 16-year old minor then; thus, she was assisted by her mof her in the case
Petitioner alleged that:
1. maiden name of her mof her is Helen Chan and that the given name Pakiat
written on her birth certificate is actually the given name of her maternal grandmof
her
2. name of her father is Pao Yu and not Po Yu as erroneously written in her birth
certificate and as such her real surname is Pao
3. she had been baptized by a Catholic priest and that she was christened as
Veronica Pao, the first being her Christian given name and the latter being the
correct spelling of her surname
4. since her childhood up to the present, she had always been known and referred to
as Veronica Pao and not Anita Po
OSG opposed and sought the dismissal of the same on the ground that the remedies
prayed for by the petitioner cannot be allowed by the mere submission of the said petition
Among the written arguments in the opposition are as follows:
Rule 103 and Rule 108 are distinct and separate from each of her and each
provides for different requirements that must be satisfied in order that a person
may avail of any one of them
The present petition satisfies the requirements of Rule 103 on change of
name but fails on the request for correction of certain entries because the civil
registrar and the of her parties affected by the corrections have not been included
in the petition as required by section 3 of Rule 108
ISSUE: W/N A PETITION FOR A CHANGE OF NAME & THE CORRECTION OF
CERTAIN ENTRIES IN THE CIVIL REGISTRY BE JOINED IN THE SAME
PROCEEDING NO
RULING:
Private respondents claim to the supposed correct name of Veronica Pao is predicated on
the assumption that the correct name of her father is Pao Yu and not Po Yu as recited in her
own birth certificate
The assumption is baseless, absent any proof that the name of her father in her birth
certificate was entered erroneously, as correctly observed by the Office of the Solicitor
General - until the name of her father is shown to have been registered in her birth
certificate erroneously, there is no justification for allowing the petitioner to use the
surname Pao
The corrections sought by the petitioner involve the very Identity of her parents; thus, the
propriety of such corrections should first be determined in a different proceeding more
adversary in character than the summary case instituted by the petitioner with the trial
court

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Aside from the change of her name, the petitioner seeks a correction of entries in the civil
registry for the benefit of her parents --- this she may not do through a summary
proceeding
The summary procedure for correction of the civil register under Rule 108 is confined to
innocuous or clerical errors and not to a material change in the spelling of a surname as
prayed for by the petitioner
A clerical error must be apparent on the face of the record and should be capable of
being corrected by reference to the record alone. Here, the petitioner seeks more than just
the correction of a clerical error.
Under Section 3 of Rule 108, when cancellation or correction of an entry in the civil
register is sought, the civil registrar and all persons who have or who claim any interest
which would be affected thereby should be made parties to the proceeding.
- Here, the local civil registrar concerned was never made a party to the proceeding
- Said civil registrar being an indispensable party, a final determination of the case
cannot be made
The procedure in Rule 103 regarding change of name and in Rule 108 concerning the
cancellation or correction of entries in the civil registry are separate and distinct.
- They may not be substituted one for the other for the sole purpose of expediency
- To hold of otherwise would render nugatory the provisions of the Rules of Court
allowing the change of one's name or the correction of entries in the civil registry only
upon meritorious grounds.
If both reliefs are to be sought in the same proceedings, all the requirements of Rules 103
and 108 must be complied with.
Thus, the petition filed with the trial court is not sufficient in form and substance and
should have been dismissed by the trial court for lack of merit.
Kaye Stephanie M. Sorrosa
22. HAW LIONG vs. REPUBLIC OF THE PHILIPPINES
G.R. No. L-21194
April 29, 1966
FACTS:
Petitioner seeks to change his name from Haw Liong to Alfonso Lantin in a petition filed
before the Court of First Instance of Leyte.
He testified that he wants to change his name to Alfonso Lantin because he is called by his
Filipino friends as Alfonso and the name of his father is Placido Lantin; that he wants to
have a Filipino name because he will soon be a Filipino citizen; that he came to the
Philippines in 1925 and since then his Filipino friends have been calling him Alfonso. After
hearing, the court a quo allowed petitioner to change his name from Haw Liong to Alfonso
Lantin. The government has appealed.
ISSUE: Whether or not the petition for change of name may be granted.
RULING:
NO.
This Court has already had occasion to state the view that the State has an interest in the
names borne by individuals for purposes of identification and that a change of name is a
privilege and not a matter of right. So that before a person can be authorized to change the
name given him either in his certificate of birth or civil registry he must show proper or
reasonable cause or any compelling reason which may justify such change. Otherwise, the
request should be denied. The following may be considered, among others, as proper or
reasonable causes that may warrant the grant of a petitioner for change of name: (1) when
the name is ridiculous, tainted with dishonor, or is extremely difficult to write or
pronounce; (2) when the request for change is a consequence of a change of status, such as
when a natural child is acknowledged or legitimated; and (3) when the change is necessary
to avoid confusion.
Petitioner has not shown any proper or compelling reason that may justify the request for a
change of name other than his desire to adopt the name Alfonso for the reason that he has
always been known by that name by his Filipino friends and associates and because that is
the family name of his father which he desires to follow to conform with the customs and
traditions in the Philippines. But this claim which is merely supported by his own testimony
cannot overcome the fact that the name given him from the very beginning as Haw Liong
as in fact this is the name that appears in his landing certificate. The fact that he claims to
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be the son of one Placido Lantin, a Filipino is of no moment because if the same were true
it is strange that the name that was given him upon birth is Haw Liong and he had to file a
petition for naturalization to become a Filipino citizen. This indirectly belies his claim that
the name that should be given him is Alfonso Lantin because that is the family name of his
father "to conform with the customs and traditions and also for sentimental reasons."
The true situation however is, as was disclosed in his cross examination, that in his
business dealings with other people he always signed as Haw Liong and never used the
name Alfonso Lantin; that he came to be called Alfonso by his friends only when during the
Japanese occupation his Filipino friends asked him how he was called and he told them that
his name was Alfonso, and since then they started calling him by that name; and that he is
known in Tacloban City as Haw Liong and has not contracted with any person under the
name of Alfonso Lantin. We find, therefore, no proper or compelling reason that may justify
the change of name desired by petitioner for his petition does not come under any of the
cases above adverted to.
EDRIANNE BETH M. JASO
23. IN THE MATTER OF THE PETITION FOR CHANGE OF NAME OF MARIA
ESTRELLA VERONICA PRIMITIVA DUTERTE, ESTRELLA S. ALFON vs. REPUBLIC
OF THE PHILIPPINES
G.R. No. L-51201
May 29, 1980
Facts: This is a verified petition filed by petitioner praying that her name be changed from
Maria Estrella Veronica Primitiva Duterte to Estrella S. Alfon.
Petitioner was born on May 15, 1952 and was registered at the local Civil Registrar's Office
as Maria Estrella Veronica Primitiva Duterte. She was baptized with the same name in
church. Her parents Filomeno Duterte and Estrella Veronica Primitiva Duterte has been
taken cared of by Mr. and Mrs. Hector Alfon. Petitioner and her uncle, Hector Alfon, has
been residing at 728 J.R. Yulo Street corner Ideal Street, Mandaluyong, Metro Manila for
twenty-three (23) years. She attended her first grade up to fourth year high school at Stella
Maris College using the name Estrella S. Alfon. Her scholastic records from elementary to
college show that she was registered by the name of Estrella S. Alfon.
Petitioner has advanced the following reasons for filing the petition:
1. She has been using the name Estrella Alfon since her childhood;
2. She has been enrolled in the grade school and in college using the same name;
3. She has continuously used the name Estrella S. Alfon since her infancy and all her
friends and acquaintances know her by this name;
4. She has exercised her right of suffrage under the same name.
The trial court granted the petition insofar as the first name is granted but denied with
respect to the surname. TC rationized that petitoner is authorized to change her name from
Maria Estrella Veronica Primitiva Duterte to Estrella Alfon Duterte. Further, that her
birth certificate clearly shows that the father of petitioner is Filomeno Duterte ad to allow
petitioner to change her surname from Duterte to Alfon is equivalent to allowing her to use
her mother's surname, and citing Article 364 of the Civil Code which provides that,
Legitimate and legitimated children shall principally use the surname of the father.
Lower court further discussed that, if another purpose of the petitioner is to carry the
surname of Alfon because her uncle who reared her since childhood has the surname
"Alfon" then the remedy is not a petition for change of name.
Issue: Whether or not the full change of name should be granted? YES.
Ruling: Petitioner is allowed to change not only her first name but also her surname so as
to be known as ESTRELLA S. ALFON.
SC cited the case of Haw Liong vs. Republic, G.R. No. L-21194, which ruled that:
The following may be considered, among others, as proper or reasonable causes that may
warrant the grant of a petitioner for change of name; (1) when the name is ridiculous,
tainted with dishonor, or is extremely difficult to write or pronounce; (2) when the request
for change is a consequence of a change of' status, such as when a natural child is
acknowledged or legitimated; and (3) when the change is necessary to avoid confusion.
The only reason why the lower court denied the petitioner's prayer to change her surname
is that as the legitimate child of Filomeno Duterte and Estrella Alfon, she should principally
use the surname of her father invoking Art. 364 of the Civil Code. But the word
"principally" as used in the codal provision is not equivalent to "exclusively" so that there is
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no legal obstacle if a legitimate or legitimated child should choose to use the surname of its
mother to which it is equally entitled.
In the case at bar, it has been shown that petitioner has, since childhood, borne the name
Estrella S. Alfon, although her birth records and baptismal certificate show otherwise; she
was enrolled in the schools from the grades up to college under the name Estrella S. Alfon;
all her friends call her by this name; she finished her course in Nursing in college and was
graduated and given a diploma under this name; and she exercised the right of suffrage
likewise under this name. There is therefore ample justification to grant fully her petition
which is not whimsical but on the contrary is based on a solid and reasonable ground, i.e.
to avoid confusion.
Lourdes Angelie Edig
24. Ang Chay vs. Republic
G.R. No. L-28507 July 31, 1970
FACTS: Josefina Ang Chay and Mercedita Ang Chay petitioned for the change of their
names to Josefina Hernandez and Mercedita Hernandez, alledging they were of legal age,
single and residents of San Francisco del Monte.
They elected Philippine citizenship on 7 February 1966, and would like to use their Filipino
surnames "Ang Chay" changed to "Hernandez", the surname that they have been using
from the time they started schooling until they finished their studies and used even in
employment, resulting to them being known by everbody as such.
Hernandez was the surname of their mothers first husband but the two petitioners were
daughters of the former by her second marriage to a certain Alejandro Ang Chay.
ISSUE: WON petitioners be granted the use of the surname Hernandez.
HELD: There is valid reason to the continued use of the names by which they have been
known, and have always conducted, in good faith, their various social and business
activities. Petitioners had no knowledge that their father was Chinese and that their
surnames should have been Ang Chay.
Petitioners have been using "Hernandez" and finished their schooling, got employments,
voted in the local and national elections, and paid their income taxes, under that surname.
"Ang Chay at this time would cause no little amount of confusion and trouble in the lives of
these girls, who do not appear to have any hand at all in creating the situation they now
find themselves in. Besides there is nothing on the record to intimate that herein
petitioners' use of the surname "Hernandez" would cause damage or prejudice, either to
the government or to any other private party, including their mother's children by the first
marriage. For, as this Court has succinctly declared, a mere change of name would not
cause a change in one's existing family relations, nor create new family rights and duties
where none exists before. Neither would it affect a person's legal capacity, civil status or
citizenship. What would only be altered is the word or group of words by which he is
identified and distinguished from the rest of his fellow men.
Missy Ansaldo
25. CANDIDO UY alias RICARDO UY vs. REPUBLIC OF THE PHILIPPINES, G.R. No.
L-22712
FACTS:
Candido Uy wanted to change his family name from Uy to Baluyot because,
according to him, he is frequently mistaken for and identified as a Chinese citizen to his
chagrin, embarrassment and disappointment. He filed a petition for change of name.
However, the Republic appeared to oppose the petition on the ground that there was no
sufficient showing that petitioner will be prejudiced by the continued use of his present
name.

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ISSUE:
The only issue is whether petitioner has shown a "proper and reasonable cause" to
warrant his change of name under Rule 103 of the Rules of Court.
HELD:
In granting or denying petition for change of name, the question of "proper and
reasonable cause" is left to the sound discretion of the court. The evidence presented need
only be satisfactory to the Court and not all best evidence available.
In the present case the trial court found to its satisfaction that petitioner was in
earnest in his desire to do away with all traces of his former Chinese nationality and
henceforth to be recognized as a Filipino. Such desire is in line with the policy of our
naturalization laws that applicants for naturalization should fully embrace Filipino customs
and traditions and socially mingle with Filipinos.
It is true, as appellant points out, that the surname Uy is used by native born
Filipinos prominent in government and prosperous in business. The fact remains that it is
basically Chinese. And in the community where petitioner resides said surname has been
shown to be the source of his being taken for a Chinese in view of his ancestry. So much so
that his business suffers from time lost in having to explain in his dealings, especially with
government agencies, that he is naturalized Filipino. Similarly, it has proved a social
liability, causing much difficulty for him in entering civil organizations, such as the Lions
Club.
It has not been shown that petitioner has any fraudulent intent in seeking a change
of name. No criminal, civil, tax or any other liability on his part, which he may avoid by the
change of name, has been suggested. Nothing has been presented to show any prejudice to
the Government or to any individual should the petition be granted. In the absence of
prejudice to the State or any individual, a sincere desire to adopt a Filipino name to erase
signs of a former alien nationality which unduly hamper social and business life, is a proper
and reasonable cause for a change of name. It is not trivial, whimsical or capricious.
Anthony L. Yap
26. ELISA LAPERAL, petitioner
vs.
REPUBLIC OF THE PHILIPPINES, oppositor
FACTS:
Elisea Laperal married Enrique R. Santamaria on March 4, 1939. On January 18, 1958 a
final decree of legal separation was given by the Court to Enrique Santamaria and Elisea
Laperal.
During the subsistence of their marriage, Elisea Laperal used the name Elisea L.
Santamaria. Upon the grant of the legal separation, Elisea on May 10, 1960, filed in the
Court of First Instance a petition to allow her to change her name and/or permit her to
resume using her maiden name in accordance to Rule 103 of the Rules of Court..
The court, at first, denied that petition. However, after petitioners motion, the court
treating the petition as one for change of name, reconsidered its decision and granted the
petition on the ground that to allow petitioner, who is a businesswoman decreed legally
separated from her husband, to continue using her married named would give rise to
confusion.
ISSUE:
1. Whether or not the wife, after the legal separation has been decreed, may petition
to change her name and surname?
2. Whether or not Rule 103 of the Rules of Court prevails over the specific provisions
of Art. 372 of the New Civil Code?
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RULING:
ISSUE NO. 1
No. The wife cannot petition to change her name and surname on the ground of legal
separation.
Under Article 372 of the New Civil Code which reads:
Art. 372. When legal separation has been granted, the wife shall continue using her
name and surnames employed before the legal separation.
Note that the language of the statute is mandatory that the wife, even after the legal
separation has been decreed, shall continue using her name and surname employed before
the legal separation.
The marriage status is unaffected by the separation, there being no severance of the
vinculum.
ISSUE NO. 2
Even applying Rule 103 to this case, the fact of legal separation alone, being the basis for
the petition at bar, is not a sufficient ground to justify a change of name, for it would
tantamount to provide for an easy circumvention of the mandatory provisions of Art. 372.
Arbie Mae R. Magale
27. REPUBLIC OF THE PHILIPPINES, petitioner,
vs. COURT OF APPEALS and MAXIMO WONG
Facts: Respondent Maximo Wong is the legitimate son of Maximo Alcala, Sr. and
Segundina Y. Alcala. When he was but two and a half years old and then known as Maximo
Alcala, Jr., and his sister Margaret Alcala, was then nine years old, they were, with the
consent of their natural parents and by order of the court adopted by spouses Hoong Wong
and Concepcion Ty Wong, both naturalized Filipinos.
Hoong Wong, now deceased, was an insurance agent while Concepcion Ty Wong was a high
school teacher. They decided to adopt the children as they remained childless after fifteen
years of marriage. The couples showered their adopted children with parental love and
reared them as their own children.
Upon reaching the age of twenty-two, herein private respondent, by then married and a
junior Engineering student at Notre Dame University, Cotabato City, filed a petition to
change his name to Maximo Alcala, Jr. It was averred that his use of the surname Wong
embarrassed and isolated him from his relatives and friends, as the same suggests a
Chinese ancestry when in truth and in fact he is a Muslim Filipino residing in a Muslim
community, and he wants to erase any implication whatsoever of alien nationality; that he is
being ridiculed for carrying a Chinese surname, thus hampering his business and social
life; and that his adoptive mother does not oppose his desire to revert to his former
surname.
Petitioner's prayer to change his name from Maximo Wong to Maximo Alcala, Jr. was
granted. 5 On appeal to respondent court, and over the opposition of petitioner Republic
through the Solicitor General, the decision of the court below was affirmed in full, hence,
this petition for review on certiorari.
ISSUE: whether or not the reasons given by private respondent in his petition for change
of name are valid, sufficient and proper to warrant the granting of said petition.
Held: YES.

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Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the substantive rules
which regulate the use of surnames. Considering the subject and personalities involved in
this present review, particular attention must be called to Article 365 which mandates that
"(a)n adopted child shall bear the surname of the adopter," in correlation with Article 341
on the effects of adoption, among which is to"(e)ntitle the adopted person to use the
adopter's surname." This same entitlement of an adopted child is maintained in Article
39(3), Title II of Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code. More recently, Executive Order No. 209, as amended by Executive Order No.
227, or the Family Code, echoes the same statutory right of an adopted child to use the
surname of the adopter.
A change of name is a special proceeding to establish the status of a person involving his
relation with others, that is, his legal position in, or with regard to, the rest of the
community. It is a proceeding in rem 14 and, as such, strict compliance with all
jurisdictional requirements, particularly on publication, is essential in order to vest the
court with jurisdiction thereover.
The purpose of the law an allowing of change of name as contemplated by the provisions of
Rule 103 of the Rules of Court is to give a person an opportunity to improve his personality
and to provide his best interest. (Calderon vs. Republic, 19 SCRA 721).
It bears stressing at this point that to justify a request for change of name, petitioner must
show not only some proper or compelling reason therefor but also that he will be
prejudiced by the use of his true and official name. 24 Among the grounds for change of
name which have been held valid are: (a) When the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) When the change results as a legal
consequence, as in legitimation; (c) When the change will avoid confusion; 25 (d) Having
continuously used and been known since childhood by a Filipino name, unaware of her
alien parentage; 26 (e) A sincere desire to adopt a Filipino name to erase signs of former
alienage, all in good faith and without prejudicing anybody; 27 and (f) When the surname
causes embarrassment and there is no showing that the desired change of name was for a
fraudulent purpose or that the change of name would prejudice public interest.
While it is true that the statutory fiat under Article 365 of the Civil Code is to the effect that
an adopted child shall bear the surname of the adopter, it must nevertheless be borne in
mind that the change of the surname of the adopted child is more an incident rather than
the object of adoption proceedings.
While we appreciate the Solicitor General's apprehensions and concern, we find the same
to be unfounded. We do not believe that by reverting to his old name, private respondent
would then be using a name which he is prohibited by law from using. True, the law
prescribes the surname that a person may employ; but the law does not go so far as to
unqualifiedly prohibit the use of any other surname, and only subjects such recourse to the
abstention of the requisite judicial sanction. What the law does not prohibit, it permits.
A petition for change of name is a remedy allowed under our law only by way of exception
to the mandatory provisions of the Civil Code on the use of surna
Alfie Omega
28. Ng Yao Siong vs. Republic G.R. No. L-20306 March 31, 1966
Facts: Petitioner, a Chinese resident of Dumaguete City, bears a number of names:
(1)
(2)
(3)
(4)
(5)
(6)

Jesus Ng, in his birth certificate and certificate of residence,

Jesus Uy, Keng Lee, in his school records,
Uy Keng Lee Jesus, also in his school records,
Keng Lee Uy, to his friends and to the general public,
Uy Keng Lee, in his income tax returns, and
Jesus Ng Yao Siong, in his alien certificate of registration.

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These diverse names, his petition avers, "had caused much confusion in his school records
and unnecessary delay and embarrassment to him in his dealing with the public". To
obviate all these, petitioner would want to be known only by one name Keng Lee Uy
and accordingly petitioned that the court authorize the change of all the other names to
Keng Lee Uy. The city attorney of Dumaguete opposed the petition, alleged that there is no
necessity for the change of name and that petitioner is guilty of a violation of the laws
regarding the use of names and surnames. The court ruled in favor of petitioner. The
Republic filed an appeal.
Issue: WON the petition can be granted.
Held: No.
1. Change of name is a judicial proceeding in rem. Jurisdiction to hear and determine a
petition, by law, is acquired after publication of the "order reciting the purpose of the
petition" and the "date and place for the hearing thereof" for three (3) successive weeks
in a newspaper of general circulation. Publication is notice to the whole world that the
proceeding has for its object "to bar indifferently all who might be minded to make an
objection of any sort against the right sought to be established".
But, for that publication to be effective, it must give a correct information. To inform, the
publication should recite, amongst others, the following facts:
(1) the name or names of the applicant,
(2) the cause for which the change of name is sought, and
(3) the new name asked for.
Change of name is a matter of public interest. Petitioner might be in the gallery of wanted
criminals; he could be in hiding to avoid service of sentence or compliance with a judgment
in a criminal case; he could have escaped a penal institution into which he had been
confined. If an alien, he might have given cause for deportation or might be one against
whom an order of deportation had actually been issued. And again the new name petitioner
desires to adopt may be similar to that of a respectable person. The latter may have
evidence that petitioner is with unsavory reputation. Naturally, it is to the interest of the
person actually enjoying the good name to protect it against possible mistaken reference to
him as the petitioner.
Change of name is not a right. It is a privilege. The court may give or withhold its consent.
In a proceeding for a change of name, the name in the civil register, for legal purposes, is
his real name because the civil register is an official record of the civil status of persons. A
name given to a person in the church records or elsewhere or by which he is known in the
community when at variance with that entered in the civil register is unofficial and
cannot be recognized as his real name. The only name that may be changed is the true or
official name recorded in the civil register.
With the foregoing guidelines, let us now examine petitioner's application, and the order of
publication and the actual publication thereof. The order of publication herein based on
the petition was published in "The Negros Time", a weekly newspaper in Dumaguete
City. The title of this case was there printed as follows:
"In the matter of the change of name of Jesus Ng Yao Siong, Jesus Ng Yao Siong,
petitioner."
But Jesus Ng Yao Siong the name appearing in the petition, the order of publication, and
the publication itself, is not the true name of petitioner. As heretofore stated, his name
appearing in the civil register is merely "Jesus Ng" without the Yao Siong. The name is to
be changed, if any, Jesus Ng not Jesus Ng Yao Siong. It thus results that there is no name
to be changed in the petition.

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It is our view that this failure in the heading of the application to give the true name sought
to be changed is fundamental; such failure is non-compliance with the strict requirements
of publication; it is fatal; and the court did not acquire jurisdiction to hear the case.
2. Petitioner's other names are recited in the body of the order of publication. Petitioner
himself admits that he is known by all these names. This gives rise to the necessity of
including his aliases in the title of the petition not only in the body thereof. So that, the
title of this petition should read
"In the matter of the change of name of Jesus Ng, otherwise known as Jesus Ng Yao Siong,
Jesus Uy Keng Lee, Uy Keng Lee Jesus, Keng Lee Uy and Uy Keng Lee" (this last being the
name he uses in his income tax returns).
The reason for this is obvious. Notices in the newspapers, like the one under consideration,
usually appear in the back pages. The reader, as is to be expected, merely glances at the
title of the petition. It is only after he has satisfied himself that the title interests him, that
he proceeds to read down further. The probability is that the portions in the publication
heretofore quoted will escape the reader's notice. The purpose of which the publication is
made, that is, to inform, may thus be unserved.
We accordingly hold that for a publication of a petition for a change of name to be valid, the
title thereof should include, first, his real name, and second, his aliases, if any.
3. The admitted fact that petitioner had been using aliases ushers us to another problem:
Can a court of justice lawfully grant an application for a change of name where he has
violated a law regarding the use of aliases? This poser comes to the fore, because
petitioner was never authorized to use an alias by a competent court pursuant to the
provisions of Commonwealth Act 142, entitled "An act to regulate the use of aliases". With
reference to the name Uy Keng Jesus or Jesus Uy Keng Lee which he has used in school, or
Keng Lee Uy by which he is known to his friends and the general public, or Uy Keng Lee
which he uses in his income tax returns, or Jesus Ng Yao Siong which appears in his alien
certificate of registration, none of these names is a "pseudonym for literary purposes", or a
name "by which he had been known since his childhood" or "authorized by a competent
court". This use is prohibited by that law. Neither did he use these other names as "pen
names" or "stage names"; and another statute prohibits him from using the same. To grant
the petition here is to sanction an unlawful act which might reach the proportions of a
crime.
4. The touchstone for the grant of a change of name is that there be "proper and
reasonable cause" for which the change is sought.
The petition and petitioner's testimony are one in the claim that his various names caused
much confusion in the school records and unnecessary delay and embarrassment to him in
his dealings with the public. This does not constitute proper and reasonable justification to
legally authorize a change of name for him. For indeed he had been using these names all
along. And that use naturally facilitates his transactions with others who knew him by the
one name or the other. Again we say that the petition not being supported by weighty
reasons, the condition for the grant thereof is non-existent; and, nothing is left for the court
but to dismiss the petition.
Madel Malone-Cervantes
29. Secon Kok vs. Republic
G.R. No. L-27621

August 30, 1973

Facts:
Secon Kok used three names: Cua Kian Kok, his real name; Secan Kok, the name reflected
in his ACR; and Antonio Cua, the name he was baptized with. He then filed a petition to
change his name and that of his daughter Marilyn Se respectively to Antonio Cuakok and
Gloria Cuakok. Finding the petition meritorious, the court granted the names as prayed
for. Thereafter, he filed a motion for supplemental judgment, alleging that the Bureau of
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Immigration refused to change the surname of his wife Lucia O. Tee and their aforesaid six
(6) minor children to Cuakok who were then registered in the Bureau of Immigration with
the surname of Cua. The motion for supplemental judgment of was granted thereby
authorizing appellee's legal wife Lucia O. Tee and their minor children namely, Perfecto,
Romeo, Tomas, Daniel and Antonio, Jr., to bear his newly granted surname Cuakok.
Issue: Whether or not there is a need for the wife of Secon Kok to file a separate petition to
change her name.
Ruling: Yes.
The Court ruled that the rules are very explicit. Section 2 of Rule 103 of the Revised Rules
of Court provides that a petition for a change of name shall be signed and verified by the
person desiring his name to be changed, or some other person in his behalf. There is need
therefore for a separate petition to be filed by the wife Lucia O. Tee, who is already of age,
in her own behalf and in behalf of her minor children.
To allow the change of name of the wife and other minor children of petitioner-appellee,
upon a mere motion as an incident in the proceedings for the change of name of petitionerappellee, will not only deprive the government of the required filing fees therefor but will
also dispense with the essential requirements respecting the recitals in the title of the
petition and the publication to apprise persons, who may be in possession of adverse
information or evidence against the grant of the petition, so that they will come forward
with such information or evidence in order to protect public interest as well as the interest
of private individuals who may be prejudiced by the change of name of the petitioner.
The court held that to confer jurisdiction on the court, strict compliance with the
requirements is essential, namely, that such verified petition should be published for three
(3) successive weeks in some newspapers of general circulation in the province; and that
both the title or caption of the petition and its body shall recite (1) the name or names or
aliases of the applicant; (2) the cause for which the change of name is sought; and (3) the
name or names or aliases of the applicant; (4) the cause for which the change of name is
sought; and (5) the new name asked for. The reason for these requirements is that a change
of name is a matter of public interest. Being a privilege and not a right, a change of name
lies within the discretion of the court give or withhold. Failure to comply with these
jurisdictional requirements, renders the proceedings a nullity.
The court also ruled that as far as the petitioner-appellee's own petition is concerned, the
publication of the same did not include all his names and aliases, the new name he desires
to bear as well as those of his minor daughter Marilyn Se, thus, the trial court did not
acquire jurisdiction over his petition and the decision granting his petition is void ab initio
and could be attacked collaterally, vitiated as it was by a fatal flaw lack of jurisdiction.
Lizette Tuballa
30. G.R. No. L-27298 March 4, 1976
IN THE MATTER OF THE PETITION FOR CHANGE OF NAME MARIO PABELLAR,
petitioner-appellee, vs.REPUBLIC OF THE PHILLIPPINES, oppositor-appellant.
FACTS:

MARIO PABELLAR was an illegitimate child of Teofila Pabellar and Esteban

Carandang, who is married to Rufina Marasigan.

For more than three decades Mario Pabellar uses the surname Carandang as
appeared in his school and official records records except in his Baptismal
Certificate wherein the name Mario Pabellar was indicated with mother Teofila
Pabellar and unknown father.

For this reason, a petition for the change of name was filed.

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The City Fiscal opposed the petition on the grounds that the change of name was
not justified and that since the petitioner is an illegitimate child he has no right to
use his father's surname.

ISSUE:

WHETHER OR NOT PETITION FOR CHANGE OF NAME IS PROPER IN

ORDER TO CHANGE THE SURNAME APPEARING IN THE BAPTISMAL
CERTIFICATE?

HELD:

NO.

RATIONALE:
It is true that as a supposed illegitimate child other than natural he
should use his mother's surname, Pabellar (Art. 368, Civil Code). But the
decisive fact is that since childhood he has been using his father's surname,
Carandang, in school and official records.
Section 1 of Commonwealth Act No. 142, which regulates the use of aliases,
allows a person to use a name "by which he has been known since childhood"
Even legitimate children cannot enjoin the illegitimate children of their father
from using his surname.
The fact that the petitioner was christened Mario Pabellar does not justify his
petition for the change of his surname to Carandang. "The real name of a person
is that given to him in the civil register, not the name by which he was baptized
in his church. The evidence herein does not reveal petitioner's real name in the
civil register.
In a petition for change of name "the only name that may be changed is
the true or official name recorded in the civil register, a name which, as
already noted, was not proven by the petitioner.
Judicial authority is required for a change of name or surname (Art. 376, Civil
Code) but not for the use of a surname which the petitioner has already been
using since childhood. Hence, the petition in this case was uncalled for. In
colloquial parlance, it has no leg to stand on.
RA BANDALA

31. Republic vs. Hernandez, GR No. 117209, February 9, 1996

Facts: The RTC granted the petition for adoption of Kevin Earl Bartolome Moran and
simultaneously granted the prayer therein for the change of the first name of said adoptee
to Aaron Joseph, to complement the surname Munson y Andrade which he acquired
consequent to his adoption.
Petitioner opposed the inclusion of the relief for change of name in the same petition for
adoption objecting to the joinder of the petition for adoption and the petitions for the
change of name in a single proceeding, arguing that these petition should be conducted
and pursued as two separate proceedings.
Petitioner argues that a petition for adoption and a petition for change of name are two
special proceedings which, in substance and purpose, are different from and are not
related to each other, being respectively governed by distinct sets of law and rules.
Petitioner further contends that what the law allows is the change of the surname of the
adoptee, as a matter of right, to conform with that of the adopter and as a natural
consequence of the adoption thus granted. If what is sought is the change of the registered
given or proper name, and since this would involve a substantial change of ones legal

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name, a petition for change of name under Rule 103 should accordingly be instituted, with
the substantive and adjective requisites therefor being conformably satisfied.
Private respondents, on the contrary, admittedly filed the petition for adoption with a
prayer for change of name predicated upon Section 5, Rule 2 which allows permissive
joinder of causes of action in order to avoid multiplicity of suits and in line with the policy
of discouraging protracted and vexatious litigations. It is argued that there is no
prohibition in the Rules against the joinder of adoption and change of name being pleaded
as two separate but related causes of action in a single petition.
Issue: WON respondent judge erred in granting prayer for the change of the given or
proper name if the adoptee in a petition for adoption.
Held: No.
Par (1), Art. 189 of the Family Code provides one of the legal effect of adoption:
(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname of
the adopters;
The law allows the adoptee, as a matter of right and obligation, to bear the surname of the
adopter, upon issuance of the decree of adoption. It is the change of the adoptees surname
to follow that of the adopter which is the natural and necessary consequence of a grant of
adoption and must specifically be contained in the order of the court, in fact, even if not
prayed for by petitioner.
However, the given or proper name, also known as the first or Christian name, of the
adoptee must remain as it was originally registered in the civil register. The creation of an
adoptive relationship does not confer upon the adopter a license to change the adoptees
registered Christian or first name. The automatic change thereof, premised solely upon the
adoption thus granted, is beyond the purview of a decree of adoption. Neither is it a mere
incident in nor an adjunct of an adoption proceeding, such that a prayer therefor furtively
inserted in a petition for adoption, as in this case, cannot properly be granted.
The official name of a person whose birth is registered in the civil register is the name
appearing therein. If a change in ones name is desired, this can only be done by filing and
strictly complying with the substantive and procedural requirements for a special
proceeding for change of name under Rule 103 of the Rules of Court, wherein the
sufficiency of the reasons or grounds therefor can be threshed out and accordingly
determined.
A petition for change of name being a proceeding in rem, strict compliance with all the
requirements therefor is indispensable in order to vest the court with jurisdiction for its
adjudication. It is an independent and discrete special proceeding, in and by itself,
governed by its own set of rules. A fortiori, it cannot be granted by means of any other
proceeding. To consider it as a mere incident or an offshoot of another special proceeding
would be to denigrate its role and significance as the appropriate remedy available under
our remedial law system.
Edwin Gutierrez

32. MARIA VIRGINIA V. REMO

vs.
THE HONORABLE SECRETARY OF FOREIGN AFFAIRS
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Facts:
Petitioner Maria Virginia V. Remo married Filipino citizen whose Philippine passport was
expiring. Petitioner being married to Francisco R. Rallonza, the following entries appear in
her passport: "Rallonza" as her surname, "Maria Virginia" as her given name, and "Remo"
as her middle name. Prior to the expiry of the validity of her passport, petitioner, whose
marriage still subsists, applied for the renewal of her passport with DFA office in Chicago,
with a request to revert to her maiden name and surname in the replacement passport.
Petitioners request having been denied, counsel representing petitioner, wrote then
Secretary of Foreign Affairs expressing a similar request.
The DFA, through Assistant Secretary denied the request, stating thus:
It is not obligatory for a married woman to use her husbands name. Use of maiden name is
allowed in passport application only if the married name has not been used in previous
application. The Implementing Rules and Regulations for Philippine Passport Act of 1996
clearly defines the conditions when a woman applicant may revert to her maiden name,
that is, only in cases of annulment of marriage, divorce and death of the husband. Ms.
Remos case does not meet any of these conditions.4
Issue:
Whether petitioner, who originally used her husbands surname in her expired passport,
can revert to the use of her maiden name in the replacement passport, despite the
subsistence of her marriage.
Ruling:
The petition lacks merit.
Title XIII of the Civil Code governs the use of surnames. In the case of a married woman,
Article 370 of the Civil Code provides:
ART. 370. A married woman may use:
(1) Her maiden first name and surname and add her husbands surname, or
(2) Her maiden first name and her husband's surname, or
(3) Her husbands full name, but prefixing a word indicating that she is his wife, such as
"Mrs."
We agree with petitioner that the use of the word "may" in the above provision indicates
that the use of the husbands surname by the wife is permissive rather than obligatory.
A married woman has an option, but not a duty, to use the surname of the husband in any
of the ways provided by Article 370 of the Civil Code. 13 She is therefore allowed to use not
only any of the three names provided in Article 370, but also her maiden name upon
marriage. She is not prohibited from continuously using her maiden name once she is
married because when a woman marries, she does not change her name but only her civil
status. 14
In the present case, petitioner, whose marriage is still subsisting and who opted to use her
husbands surname in her old passport, requested to resume her maiden name in the
replacement passport arguing that no law prohibits her from using her maiden name.
The law governing passport issuance is RA 8239 and the applicable provision in this case is
Section 5(d), which states:
No passport shall be issued to an applicant unless the Secretary or his duly authorized
representative is satisfied that the applicant is a Filipino citizen who has complied with the
following requirements:

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(d) In case of a woman who is married, separated, divorced or widowed or whose marriage
has been annulled or declared by court as void, a copy of the certificate of marriage, court
decree of separation, divorce or annulment or certificate of death of the deceased spouse
duly issued and authenticated by the Office of the Civil Registrar General: Provided, That in
case of a divorce decree, annulment or declaration of marriage as void, the woman
applicant may revert to the use of her maiden name: Provided, further, That such divorce is
recognized under existing laws of the Philippines;
The Office of the Solicitor General, on behalf of the Secretary of Foreign Affairs, argues
that the highlighted proviso in Section 5(d) of RA 8239 "limits the instances when a
married woman may be allowed to revert to the use of her maiden name in her passport."
These instances are death of husband, divorce decree, annulment or nullity of marriage.
Significantly, Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239
provides:
The passport can be amended only in the following cases:
a) Amendment of womans name due to marriage;
b) Amendment of womans name due to death of spouse, annulment of marriage or divorce
initiated by a foreign spouse; or
c) Change of surname of a child who is legitimated by virtue of a subsequent marriage of
his parents.
Since petitioners marriage to her husband subsists, placing her case outside of the
purview of Section 5(d) of RA 8239 , she may not resume her maiden name in the
replacement passport.15
In the case of renewal of passport, a married woman may either adopt her husbands
surname or continuously use her maiden name. If she chooses to adopt her husbands
surname in her new passport, the DFA additionally requires the submission of an
authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using
her maiden name, she may still do so. The DFA will not prohibit her from continuously
using her maiden name.17
However, once a married woman opted to adopt her husbands surname in her passport,
she may not revert to the use of her maiden name, except in the cases enumerated in
Section 5(d) of RA 8239. These instances are: (1) death of husband, (2) divorce, (3)
annulment, or (4) nullity of marriage. Since petitioners marriage to her husband subsists,
she may not resume her maiden name in the replacement passport. Thus, for passport
issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not
change her family name at will.
Olan Dave L. Lachica
33. REPUBLIC v. MERCADERA
FACTS
What happened in this case was that Merlyn Mercadera, represented by her sister and duly
constituted Atty-In-Fact, Evelyn M. Oga, sought the correction of her given name as it
appeared in her Certificate of Live Birth - from Marilyn L. Mercadera to Merlyn L.
Mercadera before the Office of the Local Civil Registrar of Dipolog City pursuant to
Republic Act No. 9048.
Under R.A. No. 9048, the city or municipal civil registrar or consul general, as the case
may be, is now authorized to effect the change of first name or nickname and the
correction of clerical or typographical errors in civil registry entries. Under said law,
jurisdiction over applications for change of first name is now primarily lodged with
administrative officers.
The Office of the Local Civil Registrar of Dipolog City, however, refused to effect the
correction unless a court order was obtained because the Civil Registrar therein is not yet
equipped with a permanent appointment before he can validly act on petitions for
corrections filed before their office as mandated by Republic Act 9048.
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Mercadera was then constrained to file a Petition For Correction of Some Entries as
Appearing in the Certificate of Live Birth under Section 2 of Rule 108.
Upon the date of hearing, the testimony of Mercaderas sister established the fact that
Merlyn was born on August 19, 1970 at Dipolog City. She is the daughter of spouses Tirso
U. Mercadera and Norma C. Lacquiao. In the certification of birth dated May 9, 2005 issued
by the civil registry, her given name appears as Marilyn and not Merlyn. she was baptized
according to the rites of UCCP, and as reflected in her certificate of baptism issued, she
was baptized by the name Merlyn L. Mercadera. In addition, in her elementary, highschool,
and college diploma uniformly show her name as Merlyn L. Mercadera. Presently, she is
working in UP Mindanao, and her certificate of membership issued by the GSIS also bears
his complete name as Merlyn Lacquiao Mercadera. When she secured an authenticated
copy of her certificate of live birth from the NSO, she discovered that her given name as
registered is Marilyn and not Merlyn.
The RTC ruled that the documentary evidence presented by Mercadera sufficiently
supported the circumstances alleged in her petition. Considering that she had used
Merlyn as her given name since childhood until she discovered the discrepancy in her
Certificate of Live Birth, the RTC was convinced that the correction was justified.
But the OSG timely interposed an appeal praying for the reversal and setting aside of the
RTC decision for the reason that correction in the spelling of Mercaderas given name
might seem innocuous enough to grant but it is in truth a material correction as it would
modify or increase substantive rights.
ISSUE:
WHETHER OR NOT MERCADERAS GIVEN NAME AS REGISTERED MARILYN BE
CHANGED TO THAT OF MERLYN UNDER 108
RULING:
YES, the petition filed by Mercadera before the RTC correctly falls under Rule 108
as it simply sought a correction of a misspelled given name.
To correct simply means to make or set aright; to remove the faults or error from.
To change means to replace something with something else of the same kind or with
something that serves as a substitute. [36] From the allegations in her petition, Mercadera
clearly prayed for the lower court to remove the faults or error from her registered given
name MARILYN, and to make or set aright the same to conform to the one she grew up
to, MERLYN. It does not take a complex assessment of said petition to learn of its
intention to simply correct the clerical error in spelling.
Indeed, there are decided cases involving mistakes similar to Mercaderas case
which recognize the same a harmless error. In Yu v. Republic[37] it was held that to change
Sincio to Sencio which merely involves the substitution of the first vowel i in the first
name into the vowel e amounts merely to the righting of a clerical error. InLabayo-Rowe
v. Republic,[38] it was held that the change of petitioners name from Beatriz
Labayo/Beatriz Labayu to Emperatriz Labayo was a mere innocuous alteration wherein a
summary proceeding was appropriate. In Republic v. Court of Appeals, Jaime B. Caranto
and Zenaida P. Caranto, the correction involved the substitution of the letters ch for the
letter d, so that what appears as Midael as given name would read Michael. In the
latter case, this Court, with the agreement of the Solicitor General, ruled that the error was
plainly clerical, such that, changing the name of the child from Midael C. Mazon to
Michael C. Mazon cannot possibly cause any confusion, because both names can be read
and pronounced with the same rhyme (tugma) and tone (tono, tunog, himig).[39]
In this case, the use of the letter a for the letter e, and the deletion of the letter
i, so that what appears as Marilyn would read as Merlyn is patently a rectification of
a name that is clearly misspelled. The similarity between Marilyn and Merlyn may well
be the object of a mix- up that blemished Mercaderas Certificate of Live Birth until her
adulthood, thus, her interest to correct the same.
Harvey Marie I. Diapana
34. PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND, CILIA T.
MORING
and
HUSBAND,
petitioners,
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vs.
COURT OF APPEALS and ABDON GILIG, respondents.
G.R. No. 108532 March 9, 1999

KAPUNAN, J.:

FACTS: As a result of a judgment in a civil case (for recovery of property) in favor of

private respondent, two (2) of petitioners' properties were levied to satisfy the
judgment amount of about P5,000.00: one was a parcel of land and the other was the
family home.

The subject properties were sold at public auction on February 12, 1966 to the private
respondent as the highest bidder. Consequently, after petitioners' failure to redeem the
same, a final deed of conveyance was executed on February 9, 1968, definitely selling,
transferring, and conveying said properties to the private respondent.

To forestall such conveyance, petitioners filed an action on November 5, 1985 to declare

the deed of conveyance void and to quiet title over the land with a prayer for a writ of
preliminary injunction.
Deputy Provincial Sheriff Jose V. Yasay issued a Sheriffs Deed of Conveyance in favor of the
private respondent over the subject property including their family home which was
extrajudicially constituted in accordance with law.

Petitioners aver that the house which their father constituted as family home is exempt
from execution. In a last ditch effort to save their property, petitioners invoke the benefits
accorded to the family home under the Family Code.

ISSUE: Whether or not the family home of the petitioners as constituted by their
father is exempt from execution.
HELD: NO

A family home is the dwelling place of a person and his family. It is said, however, that the
family home is a real right, which is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is situated, which confers upon
a particular family the right to enjoy such properties, which must remain with the person
constituting it and his heirs. It cannot be seized by creditors except in certain specials
cases.

Under the Civil Code (Articles 224 to 251), a family home may be constituted
judicial and extrajudicially, the former by the filing of the petition and with the approval
of the proper court, and the latter by the recording of a public instrument in the proper
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registry of property declaring the establishment of the family home. The operative act then
which created the family home extrajudicially was the registration in the Registry of
Property of the declaration prescribed by Articles 240 and 241 of the Civil Code.

Under the Family Code, however. registration was no longer necessary Article 153
of the Family Code provides that the family home is deemed constituted on a house
and lot from the time it is occupied in the family. It reads:

The family home is deemed constituted on a house and lot from the time it is
occupied as family residence. From the time of its constitution and so long as its
beneficiaries actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment, except as hereinafter provided
and to the extent of the value allowed by law.

In the case of Manacop v. Court of Appeals 11 on the retroactive effect of the Family Code,
particularly on the provisions on the family home, to wit:

While Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as a family residence, it
does not mean that said article has a retroactive effect such that all existing family
residences, petitioner's included, are deemed to have been constituted as family
homes at the time of their occupation prior to the effectivity of the Family Code and
henceforth, are exempt from execution for the payment of obligations incurred
before the effectivity of the Family Code on August 3, 1988. Neither does Article 162
of said Code state that the provisions of Chapter 2, Title V thereof have retroactive
effect. It simply means that all existing family residences at the time of the
effectivity of the Family Code are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the
Family Code.

The applicable law, therefore in the case at bar is still the Civil Code where registration of
the declaration of a family home is a prerequisite. Nonetheless, the law provides certain
instances where the family home is not exempted from execution, forced sale or
attachment.

Art. 243 of the Civil Code states that: The family home extrajudicially formed shall be
exempt from execution, forced sale or attachment, except:

(2) For debts incurred before the declaration was recorded in the Registry of
Property;

The trial court found that on March 7, 1964, Pablo Taneo constituted the house in question,
erected on the land of Plutarco Vacalares, as the family home.
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The instrument constituting the family home was registered only on January 24, 1966. The
money judgment against Pablo Taneo was rendered on January 24, 1964. Thus, at that time
when the "debt" was incurred, the family home was not yet constituted or even registered.
Clearly, petitioners' alleged family home, as constituted by their father is not exempt as it
falls under the exception of Article 243 (2).

Moreover, the constitution of the family home by Pablo Taneo is even doubtful
considering that such constitution did not comply with the requirements of the
law. The trial court found that the house was erected not on the land which the Taneos
owned but on the land of one Plutarco Vacalares. By the very definition of the law that the
"family home is the dwelling house where a person and his family resides and the land on
which it is situated," 13 it is understood that the house should be constructed on a land not
belonging to another.

Alexis Enriquez
36. In re Instate of the deceased Marciana Escao.
ANGELITA JONES., petitioner-appellant-appellee,
vs.
FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellantappellee
FACTS:
Marciana Escano and Arthur Jones got married in December 1914. On January 10, 1918,
Jones secured a passport to go abroad and thereafter nothing was ever heard of him.
Therefore, in October, 1919, proceedings were institute in the Court of First Instance of
Maasin, Leyte, at the instance of Marciana Escao, to have her husband judicially declared
an absentee
On October 25, 1919, the court declared Arthur as an absentee with the proviso that said
judicial declaration of absence would not take effect until six months after its publication in
the official newspapers pursuant to Art. 186 of the Old Civil Code.
In 23 April 1921, the court issued another order for the taking effect of the declaration of
absence, publication thereof having been made in the Official Gazette and in El Ideal.
On May 6, 1927, Marciana contracted a second marriage with Felix Hortiguela. When
Marciana died intestate, Felix was appointed as judicial administrator of the estate.
Angelita Jones, Marcianas daughter from her first marriage, filed a case and alleged that
she is the only heir of her mother and that her mothers marriage to Felix was null and void
on the ground that from April 23, 1921 (when the court issued an order for the taking
effect of declaration of absence & publication thereof) to May 6, 1927 (her mother and
Felixs marriage) was below the 7-year prescriptive period or only 6 years and 14 days.
With this, the marriage would be null and void and would render her as the sole heir.
ISSUE:
WON Arthur Jones is considered as an absentee? YES
Whether or not Felix Hortiguelas alleged marriage to Marciana Escao was celebrated?
YES
HELD:
His absence should be counted from January 10, 1918, the date on which the last news
concerning Arthur W. Jones was received and from said date to May 6, 1927, more than
nine years elapsed. Said marriage is, therefore, valid and lawful.
For the purposes of the civil marriage law, it is not necessary to have the former spouse
judicially declared an absentee. For the celebration of civil marriage, however, the law only
requires that the former spouse has been absent for seven consecutive years at the time of
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the second marriage, that the spouse present does not know his or her former spouse to be
living, that such former spouse is generally reputed to be dead and the spouse present so
believe at the time of the celebration of the marriage.
DON NICO G. SANCHEZ

37. RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES.

ERLINDA REYNOSO REYES, petitioner
vs.
HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First Instance of
Cavite, Branch II, Cavite City, respondents.

FACTS:
October 25, 1969 Erlinda Reynoso in a petition prayed for the declaration of the
absence of her husband Roberto Reyes alleging that:
1. her husband had been absent from their conjugal dwelling since April 1962 and
2. since then had not been heard from and his whereabouts unknown
3. husband left no will nor any property in his name nor any debts
The evidence established that:
1. they were married on March 20, 1960
2. in April 1962 her husband left the conjugal home due to some misunderstanding
over personal matters
- since then the petitioner has not received any news about the whereabouts
of her husband
3. they have not acquired any properties during their marriage & no outstanding
obligation in favor of anyone
4. her only purpose in filing the petition is to establish the absence of her husband,
invoking the provisions of:
a. Rule 107, ROC
b. Article 384, CC

Court a quo dismissed the petition on the ground that since Roberto Reyes left no
properties, there was no necessity to declare him judicially an absentee. It said:

Rule 107, ROC on absentees reveals that it is based on the provisions of Title 14
New Civil Code (NCC) on absence

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The reason and purpose of the provisions are:

(1) The interest of the person himself who has disappeared;
(2) The rights of third parties against the absentee, especially those who
have rights which would depend upon the death of the absentee; and
(3) The general interest of society which may require that property does not
remain abandoned without someone representing it and without an owner
Provisions of the NCC are concerned with absence only with reference to its
effects on the property
Article 384 NCC refers to the second period or stage of absence, and specifically
indicates the precise moment when the same may begin:
1. after the lapse of 2 years without any news about the absentee or since
the receipt of the last news, and
2. after 5 years in case the absentee has left a person in charge of the
administration of his property of the absentee
Article 381 NCC provides for provisional measures the appointment by the Court
of a person to represent the absentee in all that may be necessary when a mere
presumption of his absence arises
Article 382 enjoins the judge to take necessary measures to safeguard the rights
and interests of the absentee appointment of a representative of the absentee is for
the protection of the interest of the latter
It is not enough that a person is declared an absentee. The law requires the judge
to appoint a representative for the absentee precisely to safeguard the property or interest
of the latter
Declaration of absence is for a specific purpose and that is the protection of the
interest or property of the absentee
Rule 107 ROC, Sections 6 and 7 make it mandatory upon the court to appoint a
representative, trustee or administrator who shall safeguard the rights and interest of the
absentee
Considering that neither the petition alleges, nor the evidence shows, that
Roberto Reyes has any rights, interests or property in the Philippines, there is no point in
judicially declaring him an absentee

The need to have a person judicially declared an absentee is when:

1. he has properties which have to be taken cared of or administered by a
representative appointed by the court
2. the spouse of the absentee is asking for separation of property, or
3. his wife is asking the court that the administration of classes of property in the
marriage be transferred to her
The following petitions may be combined and adjudicated in the same proceeding:
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1. Petition to declare the husband an absentee

2. Petition to place the management of the conjugal properties in the hands of the
wife

Kaye Stephanie M. Sorrosa

38. ARMAS vs. CALISTERIO
GR No. 136467
April 6, 2000
FACTS:
Teodorico Calisterio, husband of Marietta Calisterio, the respondent, died intestate in April
1992 leaving several parcel of land estimated value of P604,750.00. He was the second
husband of Marietta who was previously married with William Bounds in January 1946.
The latter disappeared without a trace in February 1947. 11 years later from the
disappearance of Bounds, Marietta and Teodorico were married in May 1958 without
Marietta securing a court declaration of Bounds presumptive death.
Antonia Armas y Calisterio, surviving sister of Teodorico filed a petition claiming to be the
sole surviving heir of the latter and that marriage between Marietta and his brother being
allegedly bigamous is thereby null and void. She prayed that her son Sinfroniano be
appointed as administrator, without bond, of the estate of the deceased and inheritance be
adjudicated to her after all the obligations of the estate would have been settled.
ISSUE: Whether Marrieta and Teodoricos marriage was void due to the absence of the
declaration of presumptive death.
HELD:
NO.
The marriage between the respondent and the deceased was solemnized in May 1958
where the law in force at that time was the Civil Code and not the Family Code which only
took effect in August 1988. Article 256 of the Family Code itself limit its retroactive
governance only to cases where it thereby would not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws. Since the Civil Code provides that
declaration of presumptive death is not necessary before contracting marriage, where at
least 7 consecutive years of absence of the spouse is enough to remarry then Marrietas
marriage with Teodorico is valid and therefore she has a right to claim a portion of the
estate.
EDRIANNE BETH M. JASO
39. REPUBLIC OF THE PHILIPPINES vs. GREGORIO NOLASCO
G.R. No. 94053
March 17, 1993
Facts: Gregorio Nolasco, a seaman, met Janet Monica Parker in a bar in England while
being in port, and lived with her on his ship for 6 months up to the expiry of his contract.
They married in Nolascos hometown (San Jose, Antique) in 1982. Sometime in January
1983, while working overseas, Gregorio received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter informed him that Janet
Monica had left Antique. Gregorio further testified that his efforts to look for her himself
whenever his ship docked in England proved fruitless. He also stated that all the letters he
had sent to his missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the
address of the bar where he and Janet Monica first met, were all returned to him. He also
claimed that he inquired from among friends but they too had no news of Janet Monica.
On 5 August 1988, Gregorio filed before the RTC of Antique, a petition for the declaration
of presumptive death of his wife Janet Monica Parker, invoking Art. 41 of the Family Code.
The petition prayed that respondent's wife be declared presumptively dead or, in the
alternative, that the marriage be declared null and void, which the trial court granted in his
favor. The Republic appealed to the Court of Appeals contending that the trial court erred
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in declaring Janet Monica Parker presumptively dead because respondent Nolasco had
failed to show that there existed a well-founded belief for such declaration.
Issue: Whether or not Nolasco had complied with all the requirements for declaration of
presumptive death of his missing wife? NO.
Ruling: Nolasco failed to discharge the third element of presumptive death in this case, a
well-founded belief that the absentee is dead.
There are four (4) requisites for the declaration of presumptive death under Article 41 of
the Family Code: 1.That the absent spouse has been missing for four consecutive years, or
two consecutive years if the disappearance occurred where there is danger of death under
the circumstances laid down in Article 391, Civil Code; 2.That the present spouse wishes to
remarry; 3.That the present spouse has a well-founded belief that the absentee is dead; and
4.That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee.
The Court believes that respondent Nolasco failed to conduct a search for his missing wife
with such diligence as to give rise to a "well-founded belief" that she is dead. The
investigation allegedly conducted by respondent in his attempt to ascertain Janet Monica
Parker's whereabouts is too sketchy to form the basis of a reasonable or well-founded belief
that she was already dead. When he arrived in San Jose, Antique after learning of Janet
Monica's departure, instead of seeking the help of local authorities or of the British
Embassy, he secured another seaman's contract and went to London, a vast city of many
millions of inhabitants, to look for her there. He confused London for Liverpool and this
casts doubt on his supposed efforts to locate his wife in England. SC did not consider
walking into a major city like Liverpool or London with a simple hope of somehow bumping
into one particular person can be regarded as a reasonably diligent search. The Court also
views respondent's claim that Janet Monica declined to give any information as to her
personal background even after she had married respondent, too convenient an excuse to
justify his failure to locate her. Neither did the SC give much credence to respondent's bare
assertion that he had inquired from their friends of her whereabouts, considering that
respondent did not identify those friends in his testimony. Respondent failed to explain why
he did not even try to get the help of the police or other authorities in London and
Liverpool in his effort to find his wife. The circumstances of Janet Monica's departure and
respondent's subsequent behavior make it very difficult to regard the claimed belief that
Janet Monica was dead a well-founded one.
The Court emphasized on this jurisdictions belief in preserving the sanctity of marriage.
Spouses should not be allowed, by the simple expedient of agreeing that one of them leave
the conjugal abode and never to return again, to circumvent the policy of the laws on
marriage. The Court notes that respondent even tried to have his marriage annulled before
the trial court in the same proceeding. While the Court understands the need of
respondent's young son, Gerry Nolasco, for maternal care, still the requirements of the law
must prevail. Since respondent failed to satisfy the clear requirements of the law, his
petition for a judicial declaration of presumptive death must be denied. The law does not
view marriage like an ordinary contract.
In fine, respondent failed to establish that he had the well-founded belief required by law
that his absent wife was already dead that would sustain the issuance of a court order
declaring Janet Monica Parker presumptively dead.
Lourdes Angelie Edig
40. Tol-Noquera vs. Villamor
211 SCRA 616
FACTS: Daya Maria-Tol alleged that she was the acknowledged natural child of Remigio
Tol, who had been missing since 1984. She claims that a certain Diosdado Tol had
fraudulently secured a free patent over her father's property and successfully had it titled
in his name. She prays to be appointed administrator of her father's estate and declare him
an absentee so that she can process to recover the property.
The petition was opposed by Diosdado Tol saying that Daya Maria Tol is not an
acknowledged natural child of the absentee and that the property sought to be
administered was covered by an original certificate of title already issued in his name.
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RTC: DISMISSED on the ground that a collateral attack on a Torrens title is not proper for
such is deemed incontrovertible.
ISSUE: Whether or not petitioner should be appointed administratrix of Remigios estate
HELD: YES. Petitioner can be appointed administratrix of the estate of Remigio, provided
that her personality be established. The Supreme Court held that the RTC ruled hastily in
concluding the petition was a collateral attack on a Torrens title. The petitioner alleged
there was a need to appoint an administrator to prevent the property from being usurped,
but this did not amount to a collateral attack on the title. The alleged fraudulent issuance of
title was mentioned as a justification for her appointment as administrator.
The purpose of the rules is to protect the property of the absentee, not of the administrator.
Thus, questioning whether the administrator could inherit the property being administered
is not material. What is material is whether she is one of those allowed by law to seek the
declaration of absence of Remigio Tol and whether she is competent to be an administratrix
of his estate.
Petition is GRANTED. Case is REMANDED to the court of origin for determination of the
legal personality of Daya Maria Tol to petition the declaration of Remigio Tol's absence and
of her competence to be appointed as administratrix of his estate.
Missy Ansaldo
41. RIVERO v. COURT OF APPEALS, G.R. No. 141273
FACTS:
In behalf of her minor child, Benedick Arevalo, her mother filed a complaint against
defendants for compulsory recognition as the illegitimate child of their deceased father.
During trial, Mary Jane Dy-Chiao De Guzman, one of the sisters entered a compromised
agreement with plaintiff whereby she is acknowledging the petitioner as the illegitimate
son
of
her
father
and
pay petitioner
P6M as
a share
in the
estate of
their deceased father. The RTC granted the compromise agreement.
Meanwhile, the Dy Chiao Brothers represented by their uncle filed for annulment
of judgment and TRO for the writ of execution of judgment and motion to dismiss. CA direc
ted Mary Jane on the other hand to file a comment on the opposition of her uncle. In her
reply, she questions assailed decision of RTC since the illegitimate filiation of Benedick
could not be the subject of a compromise agreement. She further alleged that the parties
thereunder did not recognize the validity of the compromise agreement, as in fact she and
the petitioners were exploring the possibility of modifying their extrajudicial settlement.
CA ruled in favor of the defendants, hence a petition.
ISSUE:
W/N the compromise regarding filiation is valid?
Held:
NO. The ruling of RTC based on the compromise agreement executed by Mary Jane i
s null and void.
Article 2035(1) of the New Civil Code provides that no compromise upon the civil
status of persons shall be valid. As such, paternity and filiation, or the lack of the same, is a
relationship that must be judicially established, and it is for the court to determine
its existence or absence. It cannot be left to the will or agreement of the parties.
Such recognition by Mary Jane, however, is ineffectual, because under the law, the
recognition must be made personally by the putative parent and not by any brother, sister
or relative.
Anthony L. Yap

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42.
RITA DAIS, ET AL., petitioners
vs.
HONORABLE LEONARDO GARDUNO, Judge of the Seventeenth Judicial District,
and JOSE ALTAVAS, respondents
FACTS:
This is a petition for a writ of mandamus to compel the respondent judge to admit an
appeal interposed in a probate case by the petitioners.
On January 14, 1924, Respondent Altavas filed a motion in the intestate proceedings of
SERAPION DAIS asking that the administrator of the estate be ordered to pay him the sum
of P 5,000.00 in settlement of his fees for legal services rendered and to be rendered in the
said intestate proceedings.
Judge Salas approved the said petition. The decision indicated that the fees of respondent
Altavas were fixed at P 5,000.00 with the understanding that this amount would be
considered full compensation for his services until the termination of the case.
However, on January 20, 1925, Judge Abeto issued another order stating that although as
adjudged and fixed by the court, the amount prayed for must not be paid in its entirety as
the case for intestacy is still pending final decision. The court granted a portion of the
amount prayed amounting to P 1,500.00 be paid to Altavas.
On November 28, 1925, the same judge ordered that the administrator can sell at public
auction the parcels of land involved in the intestate proceedings. The administrator is
ordered to report to the court its negotiations and seek the approval of the same court
before the sale of the said goods may be affected.
To this order the herein petitioners excepted, alleging that it was contrary to law and
issued without jurisdiction, and asked for a reconsideration and new hearing. Upon denial
of their motion on January 1926, the petitioners filed an appeal. The appeal was denied on
the ground that the orders of November 1925 were merely interlocutory and not
appealable.
On February 15, 1926, the parcels of land were sold by private sale and the proceeds were
paid over to respondent Altavas who now moved for the dismissal of the present
proceedings on the grount that the matters at issue had become moot and academic.
ISSUE:
Whether or not the appeal from the orders of November 28, 1925 and January 11, 1926
were premature?
Whether or not the word Termination as employed in the order meant the termination of
the whole case?
RULING:
ISSUE No. 1
No, the orders were not premature or interlocutory in nature.
An interlocutory order is one which does not of itself definitely settle or conclude any of the
rights of the parties to the action.
ISSUE No. 2
Yes, the word termination as employed in the order meant the final determination of the
litigation.
No provision was made for prepayment of fees and it can therefore not be argued that they
were due until after the services were rendered.
Notwithstanding the fact that so far there appears to have been no complete termination of
the litigation in any of the cases referred to, the respondent has nevertheless been paid

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practically his entire fee, and in order to satisfy his claim the court has authorized the sale
of real property pertaining to the estate.
Arbie Mae R. Magale
43. G.R. No. 138731
December 11, 2000
TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs. ROSALINA
C. BIASCAN
Facts: Respondent Rosalina J. Biascan filed a petition praying for her appointment as
administratrix of the intestate estate of Florencio Biascan and Timotea Zulueta.
Respondent was appointed as regular administratrix of the estates.
Maria Manuel Vda. De Biascan, the legal wife of Florencio Biascan entered her appearance
as Oppositor. Simultaneous with her appearance, she filed a pleading containing several
motions including a motion for intervention, a motion for the setting aside of private
respondents appointment as special administratrix and administratrix, and a motion for
her appointment as administratrix of the estate of Florencio Biascan. 4
After an exchange of pleadings between the parties, CFI granted Marias intervention and
set for trial the motion to set aside the Orders appointing respondent as administratrix.
Trial court issued an Order6 resolving that: (1) Maria is the lawful wife of Florencio; (2)
respondent and her brother are the acknowledged natural children of Florencio; (3) all
three are the legal heirs of Florencio who are entitled to participate in the settlement
proceedings; (4) the motion to set aside the order appointing private respondent as
administratrix is denied; and (5) the motion to approve inventory and appraisal of private
respondent be deferred. Maria, through her counsel, received a copy of this April 2, 1981
Order on April 9, 1981.7
On June 6, 1981, or fifty-eight (58) days after he receipt of the April 2, 1981 Order, Maria
filed her motion for reconsideration8 which private respondent opposed.9
On November 15, 1981, the fourth floor of the City Hall of Manila was completely gutted by
fire. The records of the settlement proceedings were among those lost in the fire. Thus, on
January 2, 1985, private respondent filed a Petition for Reconstitution 10 of the said records.
Due to the delay caused by the fire and the reconstitution of the records, it was only on
April 30, 1985 that the Regional Trial Court of Manila, Branch 4 issued an Order 11 denying
Marias June 6, 1981 Motion for Reconsideration.
Sometime thereafter, Maria died and her testate estate also became the subject of
settlement proceedings.
The trial court issued an Order 16 denying petitioners appeal on the ground that the appeal
was filed out of time. The trial court ruled that the April 2, 1981 Order which was the
subject of the appeal already became final as the Motion for Reconsideration thereof was
filed sixty-five (65) days after petitioner received the same. In addition, the court ruled that
the notice of appeal itself was filed manifestly late as the same was filed more than 11
years after the issuance of the June 11, 1985 Order denying petitioners Motion for
Reconsideration. The Motion for Reconsideration dated November 13, 1996 of petitioner
was likewise denied by the trial court in an Order17 dated February 12, 1997.
ISSUE: WON Appeal is still proper?
Held: NO
The ruling of the trial court that Maria, private respondent Rosalina Biascan and German
Biascan were entitled to participate in the settlement proceedings falls squarely under
paragraph (b), Section 1, Rule 109 of the Rules of Court as a proper subject of appeal. By
so ruling, the trial court has effectively determined that the three persons are the lawful
heirs of the deceased. As such, the same may be the proper subject of an appeal.

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Similarly, the ruling of the trial court denying petitioners motion to set aside the order
appointing private respondent as the regular administratrix of the estate of Florencio
Bisacan is likewise a proper subject of an appeal.
In special proceedings, such as the instant proceeding for settlement of estate, the period
of appeal from any decision or final order rendered therein is thirty (30) days, a notice of
appeal and a record on appeal being required.
Petitioner admits that Maria Manuel Vda. De Biascan, its predecessor-in-interest, received
a copy of the same of April 9, 1981. Applying these rules, Maria or her counsel had thirty
(30) days or until May 9 within which to file a notice of appeal with record on appeal. She
may also file a motion for reconsideration, in which case the appeal period is deemed
interrupted.
Considering that it was only June 6, 1981, or a full fifty-eight (58) days after receipt of the
order, that a motion for reconsideration was filed, it is clear that the same was filed out of
time. As such, when the said motion for reconsideration was filed, there was no more
appeal period to interrupt as the Order had already become final.
ALfie Luzana Omega
45. Lopez vs. Teodoro
G.R. No. L-3071

May 29, 1950

Facts:
Eulalio Lopez, Sr., an incapacitated under the judicial guardianship of Eulalio Lopez, Jr.,
was the exclusive and absolute owner of an hacienda. On September 3, 1948, the Court of
First Instance, acting upon a motion of Senen L. Gamboa and Adelaida Gamboa filed in the
proceedings for guardianship, ordered the guardian to pay the movants P7,312 plus 12 per
cent interest from August, 1944, amount which represented loans properly authorized by
court. The order provided that if the guardian did not have funds to pay those debts, he
should take the necessary steps for the sale of some of the property of the guardianship.
In pursuance of this authority, the guardian sold the above tract of land, the only property
the incapacitated possessed.
In authorizing the sale of some of the property of the incapacitated, the court did not follow
the requirement of section 2 of Rule 96 to the effect that the court shall direct the next of
kin of the ward, and all persons interested in the estate, to appear at a reasonable time and
place to be specified in the order, to show cause why the prayer for the sale should not be
granted. Nor did the court specify, as provided by section 4 of the same Rule, whether the
sale should be effected publicly or privately.
Believing that the sale was prejudicial to her brother's interest, Salvacion Lopez, the ward's
sister, filed a motion for reconsideration of the court's order authorizing said sale, and upon
the motion being denied, she brought a petition for certiorari and mandamus, contending
that the sale was null and void by reason of the court's failure to adhere to Rule 96, and
praying that the orders of the respondent court be corrected and the said court directed to
revoke the sale
Issue: Whether or not the orders of the respondent court must be corrected and the said
court be directed to revoke the sale.
Ruling: No.
The court held that the petitioner has no legal interest in her complaint. The incapacitated
has children, all of age, one of whom is the judicial guardian, while the petitioner is only
the ward's sister. Neither is the petitioner the ward's next of kin. "Next of kin" within the
meaning of Rule 96 are relatives whose relationship is such that they are entitled to share
in the estate as distributees. "Next of kin" is also defined in Black's Law Dictionary, 3rd ed.,
as to mean not the next of kindred but those relatives who share in the estate according to
the statute of distribution including those claiming per stripes or by representation.
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Not being Eulalio Lopez's forced heir, she was not prejudiced by the sale she seeks to
impugn. Although she was a creditor however, she does not claim any right to be notified of
the sale as such creditor, and her credit was not impaired. On the contrary, she was
benefited by the sale in that she was paid what was due her from its proceeds. As to the
other creditors, they did not appear to have any objection to the action taken by the judicial
guardian and authorized by the court. None of the children of the incapacitated is or was
opposed to the sale sought to be set aside. Only these had an interest in the land of their
father, besides the creditors, and only they or the creditors who may have been prejudiced
by the sale have a right to object thereto.
Lizette Tuballa
[G.R. No. 138731. December 11, 2000]
46. TESTATE ESTATE OF MARIA MANUEL Vda. DE BIASCAN, petitioner, vs.
ROSALINA C. BIASCAN, respondent.
FACTS:
Respondent Rosalina J. Biascan filed a petition at the then Court of First Instance,
Branch 4, Manila praying for her appointment as administratrix of the intestate estate of
Florencio Biascan and Timotea Zulueta which was granted by the said court. This was
opposed by the legal wife of the decedent, Maria Manuel Vda. de Biascan. She questioned
and move to set asided the appointment of Rosalina as administratrix and she prayed for
her appointment as administratrix.
On April 2, 1981, the trial court issued an Order resolving that: (1) Maria is the lawful
wife of Florencio; (2) respondent and her brother are the acknowledged natural children of
Florencio; (3) all three are the legal heirs of Florencio who are entitled to participate in the
settlement proceedings; (4) the motion to set aside the order appointing private respondent
as administratrix is denied; and (5) the motion to approve inventory and appraisal of
private respondent be deferred.
A copy of the order was received by Maria, through her counsel, on April 9, 1981 and
filed a Motion for Reconsideration on June 6, 1981 or fifty-eight (58) days after the receipt
of the said Order.
On November 15, 1981, the fourth floor of the City Hall of Manila was completely
gutted by fire and destroyed the records of the court including that of the settlement
proceedings. Due to the delay caused by the fire and the reconstitution of the records, it
was only on April 30, 1985 that the Regional Trial Court of Manila, Branch 4 issued an
Order denying Marias June 6, 1981 Motion for Reconsideration.
Sometime thereafter, Maria died and her testate estate also became the subject of
settlement proceedings. Atty. Marcial F. Lopez was appointed as interim special
administrator and engaged the services of the Siguion Reyna Montecillo and Ongsiako Law
Offices on Behalf of the estate.
It was only on August 21, 1996, as alleged, that the law firm made aware of and given
notice of the April 30, 1985 Order and was able to secure a certification from the Clerk of
Court that there was no proof of service of the April 30, 1985 Order.
A Notice of Appeal was filed on August 22, 1996 was filed. While the said notice of
appeal was dated April 22, 1996, the stamp of the trial court on the first page of the notice
clearly indicated that the same was received by the trial court on September 20, 1996. A
Record of Appeal dated September 20, 1996 was likewise filed by petitioner.
The trial court denied the petitioners appeal on the ground that it was filed out of
time.
The CA affirmed the order of the trial court.
The petitioner appealed to the Supreme Court contending that the order dated April
2, 1981 of the trial court did not become final and executory as no opposition on its
timeliness was filed and no ruling as regards its timeliness was made.
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WHETHER OR NOT, IN SPECIAL PROCEEDINGS, EVEN THE LAPSE OF

THE PRESCRIBE PERIOD BUT ABSENCE OF OPPOSITION TO AND
JUDICIAL RULING ON THE TIMELINESS TO FILE AN APPEAL HAS
NOT RENDER THE ORDER FINAL AND EXECUTORY, HENCE,
APPEALABLE?

RULING: NO.
In special proceedings, such as the instant proceeding for settlement of estate, the
period of appeal from any decision or final order rendered therein is thirty (30) days, a
notice of appeal and a record on appeal being required. Once the appeal period expires
without an appeal or a motion for reconsideration or new trial being perfected, the decision
or order becomes final.
Maria or her counsel received the Order on April 9, therefore, they had only thirty
(30) days or until May 9 within which to file a notice of appeal with record on appeal. She
may also file a motion for reconsideration, in which case the appeal period is deemed
interrupted. However, it is clear that the motion for reconsideration was filed out of time
for it was filed only on June 6, 1981 or full fifty-eight (58) days after the receipt of the said
order.
It is well-settled that judgment or orders become final and executory by operation of
law and not by judicial declaration. Thus, finality of a judgment becomes a fact upon the
lapse of the reglamentary period of appeal if no appeal is perfected or motion for
reconsideration or new trial is filed. The trial court need not even pronounce the finality of
the order as the same becomes final by operation of law.
Assuming that the Motion for Reconsideration filed by petitioner had the effect of
suspending the running of the appeal period for the April 2, 1981 Order, it is clear that
petitioners notice of appeal of the orders of the trial court was still filed out of time.
Under Section 3, Rule 41 of the Rules of Court then applicable, the time during which
a motion to set aside the judgment or order or for a new trial shall be deducted from the
period from which to make an appeal. The rule further states that where the motion was
filed during office hours of the last day of the appeal period, the appeal must be perfected
within the day following that in which the party appealing received notice of the denial of
said motion.
Giving petitioner the benefit of the doubt that it had indeed received notice of the
order denying its motion for reconsideration on August 21, 1996, it follows that petitioner
only had until the following day or on August 22, 1996 within which to perfect the appeal.
While the Notice of Appeal was ostensibly dated August 22, 1996, it is clear from the
stamp of the trial court that the same was received only on September 20, 1996.
Considering that it is clear from the records that petitioners notice of appeal was
filed on September 20, 1996, the same was clearly filed out of time as it only had until
August 22, 1996 within which to file the said pleading.
RA BANDALA
End

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