[G.R. No. 109557. November 29, 2000]JOSE UY and his Spouse GLENDA J. UY and GILDA L. JARDELEZA, petitioners, vs. COURT OF APPEALS and TEODORO L.

JARDELEZA,respondents.

D E C I S I O N

PARDO, J.:

The case is an appeal via certiorari from the decision[1] of the Court of Appeals and its resolution denying reconsideration[2] reversing that of the Regional Trial Court, Iloilo, Branch 32[3]and declaring void the special proceedings instituted therein by petitioners to authorize petitioner Gilda L. Jardeleza, in view of the comatose condition of her husband, Ernesto Jardeleza, Sr., with the approval of the court, to dispose of their conjugal property in favor of co-petitioners, their daughter and son in law, for the ostensible purpose of “financial need in the personal, business and medical expenses of her ‘incapacitated’ husband.”

The facts, as found by the Court of Appeals, are as follows:

“This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the one hand, against his mother Gilda L. Jardeleza, and sister and brother-in-law, the spouses Jose Uy and Glenda Jardeleza (herein petitioners) on the other hand. The controversy came about as a result of Dr. Ernesto Jardeleza, Sr.’s suffering of a stroke on March 25, 1991, which left him comatose and bereft of any motor or mental faculties. Said Ernesto Jardeleza, Sr. is the father of herein respondent Teodoro Jardeleza and husband of herein private respondent Gilda Jardeleza.

“Upon learning that one piece of real property belonging to the senior Jardeleza spouses was about to be sold, petitioner Teodoro Jardeleza, on June 6, 1991, filed a petition (Annex “A”) before the R.T.C. of Iloilo City, Branch 25, where it was docketed as Special Proceeding No. 4689, in the matter of the guardianship of Dr. Ernesto Jardeleza, Sr. The petitioner averred therein that the present physical and mental incapacity of Dr. Ernesto Jardeleza, Sr. prevent him from competently administering his properties, and in order to prevent the loss and dissipation of the Jardelezas’ real and personal assets, there was a need for a court-appointed guardian to administer said properties. It was prayed therein that Letters of Guardianship be issued in favor of herein private respondent Gilda Ledesma Jardeleza, wife of Dr. Ernesto Jardeleza, Sr. It was further prayed that in the meantime, no property of Dr. Ernesto Jardeleza, Sr. be negotiated, mortgaged or otherwise alienated to third persons, particularly Lot No. 4291 and all the improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by T.C.T. No. 47337.

“A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself filed a petition docketed as Special Proceeding NO. 4691, before Branch 32 of the R.T.C. of Iloilo City, regarding the declaration of incapacity of Ernesto Jardeleza, Sr., assumption of sole powers of administration of conjugal properties, and authorization to sell the same (Annex “B”). Therein, the petitioner Gilda L. Jardeleza averred the physical and mental incapacity of her husband, who was then confined for intensive medical care and treatment at the Iloilo Doctor’s Hospital. She signified to the court her desire to assume sole powers of administration of their conjugal properties. She also alleged that her husband’s medical treatment and hospitalization expenses were piling up, accumulating to several hundred thousands of pesos already. For this, she urgently needed to sell one piece of real property, specifically Lot No. 4291 and its improvements. Thus, she prayed for authorization from the court to sell said property.

“The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an Order (Annex “C”) finding the petition in Spec. Proc. No. 4691 to be sufficient in form and substance, and setting the hearing thereof for June 20, 1991. The scheduled hearing of the petition proceeded, attended by therein petitioner Gilda Jardeleza, her counsel, her two children, namely Ernesto Jardeleza, Jr., and Glenda Jardeleza Uy, and Dr. Rolando Padilla, one of Ernesto Jardeleza, Sr.’s attending physicians.

“On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered its Decision (Annex “D”), finding that it was convinced that Ernesto Jardeleza, Sr. was truly incapacitated to participate in the administration of the conjugal properties, and that the sale of Lot No. 4291 and the improvements thereon was necessary to defray the mounting expenses for treatment and Hospitalization. The said court also made the pronouncement that the petition filed by

Gilda L. Jardeleza was “pursuant to Article 124 of the Family Code, and that the proceedings thereon are governed by the rules on summary proceedings sanctioned under Article 253 of the same Code x x x.

“The said court then disposed as follows:

“WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991, the Court hereby renders judgment as follows:

“1) declaring Ernesto Jardeleza, Sr., petitioner’s husband, to be incapacitated and unable to participate in the administration of conjugal properties;

“2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of administration of their conjugal properties; and

“3) authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey of Iloilo, situated in Iloilo City and covered by TCT No. 47337 issued in the names of Ernesto Jardeleza, Sr. and Gilda L. Jardeleza and the buildings standing thereof.

“SO ORDERED.

“On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the proceedings before Branch 32 in Spec. Proc. Case No. 4691, said petitioner being unaware and not knowing that a decision has already been rendered on the case by public respondent.

“On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for reconsideration of the judgment in Spec. Proc. No. 4691 and a motion for consolidation of the two cases (Annex “F”). He propounded the argument that the petition for declaration of incapacity, assumption of sole powers of administration, and authority to sell the conjugal properties was essentially a petition for guardianship of the person and properties of Ernesto Jardeleza, Sr. As such, it cannot be prosecuted in accordance with the provisions on summary proceedings set out in Article 253 of the Family Code. It should follow the rules governing special proceedings in the Revised Rules of Court which require procedural due process, particularly the need for notice and a hearing on the merits. On the other hand, even if Gilda Jardeleza’s petition can be prosecuted by summary proceedings, there was still a failure to comply with the basic requirements thereof, making the decision in Spec. Proc. No. 4691 a defective one. He further alleged that under the New Civil Code, Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal partner, and that these rights cannot be impaired or prejudiced without his consent. Neither can he be deprived of his share in the conjugal properties through mere summary proceedings. He then restated his position that Spec. Proc. No. 4691 should be consolidated with Spec. Proc. No. 4689 which was filed earlier and pending before Branch 25.

“Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and the improvements thereon supposedly to pay the accumulated financial obligations arising from Ernesto Jardeleza, Sr.’s hospitalization. He alleged that the market value of the property would be around Twelve to Fifteen Million Pesos, but that he had been informed that it would be sold for much less. He also pointed out that the building thereon which houses the Jardeleza Clinic is a monument to Ernesto Jardeleza Sr.’s industry, labor and service to his fellowmen. Hence, the said property has a lot of sentimental value to his family. Besides, argued Teodoro Jardeleza, then conjugal partnership had other liquid assets to pay off all financial obligations. He mentioned that apart from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo Doctors’ Hospital which can be off-set against the cost of medical and hospital bills. Furthermore, Ernesto Jardeleza, Sr. enjoys certain privileges at the said hospital which allows him to pay on installment basis. Moreover, two of Ernesto Jardeleza Sr.’s attending physicians are his own sons who do not charge anything for their professional services.

“On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to his motion for reconsideration (Annex “G”). He reiterated his contention that summary proceedings was irregularly applied. He also noted that the provisions on summary proceedings found in Chapter 2 of the Family Code comes under the heading on “Separation in Fact Between Husband and Wife” which contemplates of a situation where both spouses are of disposing mind. Thus, he

argued that were one spouse is “comatose without motor and mental faculties,” the said provisions cannot be made to apply.

“While the motion for reconsideration was pending, Gilda Jardeleza disposed by absolute sale Lot No. 4291 and all its improvements to her daughter, Ma. Glenda Jardeleza Uy, for Eight Million Pesos (P8,000,000.00), as evidenced by a Deed Absolute Sale dated July 8, 1991 executed between them (p. 111, Rollo). Under date of July 23, 1991, Gilda Jardeleza filed an urgent ex-parte motion for approval of the deed of absolute sale.

“On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for approval of the deed of sale on the grounds that: (1) the motion was prematurely filed and should be held in abeyance until the final resolution of the petition; (2) the motion does not allege nor prove the justifications for the sale; and (3) the motion does not allege that had Ernesto Jardeleza, Sr. been competent, he would have given his consent to the sale.

“Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent Court, who had penned the decision in Spec. Proc. No. 4691 had in the meantime formally inhibited herself from further acting in this case (Annex “I”). The case was then reraffled to Branch 28 of the said court.

“On December 19, 1991, the said court issued an Order (Annex “M”) denying herein petitioner’s motion for reconsideration and approving respondent Jardeleza’s motion for approval of the deed of absolute sale. The said court ruled that:

“After a careful and thorough perusal of the decision, dated June 20, 1991, the Motion for Reconsideration, as well as its supplements filed by “oppositor”, Teodoro L. Jardeleza, through counsel, and the opposition to the Motion for Reconsideration, including its supplements, filed by petitioner, through counsel, this Court is of the opinion and so holds, that her Honor, Amelita K. del Rosario-Benedicto, Presiding Judge of Branch 32, of this Court, has properly observed the procedure embodied under Article 253, in relation to Article 124, of the Family Code, in rendering her decision dated June 20, 1991.

“Also, as correctly stated by petitioner, through counsel, that “oppositor” Teodor L. Jardeleza does not have the personality to oppose the instant petition considering that the property or properties, subject of the petition, belongs to the conjugal partnership of the spouses Ernesto and Gilda Jardeleza, who are both still alive.

“In view thereof, the Motion for Reconsideration of “oppositor” Teodoro L. Jardeleza, is hereby denied for lack of merit.

“Considering the validity of the decision dated June 20, 1991, which among others, authorized Gilda L. Jardeleza to sell Lot No. 4291 of the Cadastral Survey of Iloilo, covered by Transfer Certificate of Title No. 47337 issued in the names of Ernesto Jardeleza, Sr., and Gilda L. Jardeleza and the building standing thereon, the Urgent Ex-Parte Motion for Approval of Deed of Absolute Sale dated July 23, 1991, filed by petitioner, through counsel, is hereby granted and the deed of absolute sale, executed and notarized on July 8, 1991, by and between Gilda L. Jardeleza, as vendor, and Ma. Glenda Jardeleza, as vendee, is hereby approved, and the Register of Deeds of Iloilo City, is directed to register the sale and issue the corresponding transfer certificate of title to the vendee.

“SO ORDERED.”[4]

On December 9, 1992, the Court of Appeals promulgated its decision reversing the appealed decision and ordering the trial court to dismiss the special proceedings to approve the deed of sale, which was also declared void.[5]

On December 29, 1992, petitioners filed a motion for reconsideration, [6] however, on March 29, 1993, the Court of Appeals denied the motion, finding no cogent and compelling reason to disturb the decision.[7]

Hence, this appeal.[8]

The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr. who suffered a stroke, a cerebrovascular accident, rendering him comatose, without motor and mental faculties, and could not manage their

conjugal partnership property may assume sole powers of administration of the conjugal property under Article 124 of the Family Code and dispose of a parcel of land with its improvements, worth more than twelve million pesos, with the approval of the court in a summary proceedings, to her co-petitioners, her own daughter and son-in-law, for the amount of eight million pesos.

The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the procedural rules on summary proceedings in relation to Article 124 of the Family Code are not applicable. Because Dr. Jardeleza, Sr. was unable to take care of himself and manage the conjugal property due to illness that had rendered him comatose, the proper remedy was the appointment of a judicial guardian of the person or estate or both of such incompetent, under Rule 93, Section 1, 1964 Revised Rules of Court. Indeed, petitioner earlier had filed such a petition for judicial guardianship.

Article 124 of the Family Code provides as follows:

“ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy which must be availed of within five years from the date of the contract implementing such decision.

“In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (165a).”

In regular manner, the rules on summary judicial proceedings under the Family Code govern the proceedings under Article 124 of the Family Code. The situation contemplated is one where the spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot be obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated or incompetent to give consent. In this case, the trial court found that the subject spouse "is an incompetent" who was in comatose or semi-comatose condition, a victim of stroke, cerebrovascular accident, without motor and mental faculties, and with a diagnosis of brain stem infarct. [9] In such case, the proper remedy is a judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules of Court.

Even assuming that the rules of summary judicial proceedings under the Family Code may apply to the wife's administration of the conjugal property, the law provides that the wife who assumes sole powers of administration has the same powers and duties as a guardian under the Rules of Court.[10]

Consequently, a spouse who desires to sell real property as such administrator of the conjugal property must observe the procedure for the sale of the ward’s estate required of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the summary judicial proceedings under the Family Code.

In the case at bar, the trial court did not comply with the procedure under the Revised Rules of Court. Indeed, the trial court did not even observe the requirements of the summary judicial proceedings under the Family Code. Thus, the trial court did not serve notice of the petition to the incapacitated spouse; it did not require him to show cause why the petition should not be granted.

Hence, we agree with the Court of Appeals that absent an opportunity to be heard, the decision rendered by the trial court is void for lack of due process. The doctrine consistently adhered to by this Court is that a denial of due process suffices to cast on the official act taken by whatever branch of the government the impress of nullity. [11] A decision rendered without due process is void ab initio and may be attacked directly or collaterally.[12] “A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard.” [13]“A void decision may be assailed or impugned at any time either directly or collaterally, by means of a separate action, or by resisting such decision in any action or proceeding where it is invoked.”[14]

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G. R. SP No. 26936, in toto.

Costs against petitioners.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

SECOND DIVISION REPUBLIC OF THE PHILIPPINES, Petitioner,

- versus - FERVENTINO U. TANGO, Respondent.

G.R. No. 161062 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, CHICO-NAZARIO,*

LEONARDO-DE CASTRO,** and PERALTA,*** JJ. Promulgated:

July 31, 2009x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

This is a petition for review on certiorari of the Decision[1] dated November 28, 2003 of the Court of Appeals in CA-G.R. CV No. 76387 which denied the Republic’s appeal from the Order [2] dated July 23, 2002 of the Regional Trial

Court (RTC) of Ligao City, Branch 11 in Special Proceeding No. 357. The trial court had declared the wife of respondent Ferventino U. Tango (Ferventino), Maria Jose Villarba (Maria), presumptively dead under Article 41[3] of the Family Code.

The present controversy arose from the following facts:

On March 9, 1987, Ferventino and Maria were married[4] in civil rites before then Mayor Ignacio Bunye of Muntinlupa City. None of Maria’s relatives witnessed the ceremony as they were opposed to her relationship with Ferventino. The two had only spent a night together and had been intimate once when Maria told Ferventino that she and her family will soon be leaving for the United States of America (USA). Maria assured Ferventino, however, that she will file a petition so he can live with her in the USA. In the event that said petition is denied, she promised to return to the Philippines to live with him. On March 13, 1987, Maria and her family flew to Seattle, USA.

Ferventino alleges that Maria kept in touch for a year before she stopped responding to his letters. Out of resentment, he burned all the letters Maria wrote him. He claims to have forgotten her address since.

Ferventino recounts the efforts he made to find Maria. Upon inquiry from the latter’s uncle, Antonio Ledesma, in Las Piñas, Ferventino learned that even Maria’s relatives were unaware of her whereabouts. He also solicited the assistance of a friend in Texas, Capt. Luis Aris of the U.S. Air Force, but to no avail. Finally, he sought the aid of his parents Antonio and Eusebia in Los Angeles, and his aunt Anita Castro-Mayor in Seattle. Like, Ledesma though, their attempts to find Maria proved fruitless. The next 14 years went by without any news of Maria.

On the belief that his wife had died, Ferventino filed a verified petition [5] dated October 1, 2001 before the Ligao City RTC for the declaration of presumptive death of Maria within the contemplation of Article 41 of the Family Code.

When the case was called for initial hearing on January 8, 2002, nobody entered any opposition. On July 22, 2002, Ferventino presented evidence ex parte and testified in court about the details of his search. On July 23, 2002, Branch 11 of the Ligao City RTC issued an Order, the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered, declaring MARIA JOSE V. VILLARBA, wife of FERVENTINO U. TANGO, presumptively dead within the meaning of Article 41 of the Family Code.

SO ORDERED. [6]

This prompted the Office of the Solicitor General (OSG), for the Republic, to file a Notice of Appeal. [7] Acting thereon, Presiding Judge Romulo SG. Villanueva of the Ligao City RTC had the records of the case transmitted to the Court of Appeals.

The Court of Appeals, treating the case as an ordinary appealed case under Rule 41 of the Rules of Court, affirmed the RTC’s Order. It held that Maria’s absence for 14 years without information about her location despite diligent search by Ferventino was sufficient to support a well-founded belief of her death. The appellate court observed that neither the OSG nor the Assistant Provincial Prosecutor objected to the evidence which Ferventino presented on trial. It noted, in particular, that the OSG did not dispute the adequacy of Ferventino’s basis to engender a well-founded belief that Maria is dead. Hence, in a Decision dated November 28, 2003, the Court of Appeals denied the Republic’s appeal in this tenor:

WHEREFORE, the appeal is hereby DENIED. Accordingly, the July 23, 2002 Order of the Regional Trial Court of Ligao City, Branch 11 in Spec. Proc. No. 357 is AFFIRMED.

SO ORDERED.[8]

Before us, petitioner anchors this petition for review on certiorari on the following two grounds:

I.

THE TESTIMONY OF RESPONDENT ON THE ALLEGED EFFORTS MADE BY HIS FRIEND AND RELATIVES IN LOCATING HIS MISSING WIFE IN SEATTLE, UNITED STATES, IS HEARSAY AND DEVOID OF PROBATIVE VALUE[; AND]

II.

EVEN ASSUMING THAT THE AFORESAID TESTIMONY MAY BE CONSIDERED IN EVIDENCE, THE ALLEGED EFFORTS OF RESPONDENT’S FRIEND AND RELATIVES IN LOCATING HIS MISSING WIFE IN SEATTLE, UNITED STATES, DO NOT SUFFICIENTLY SUPPORT A “WELL-FOUNDED BELIEF” THAT RESPONDENT’S ABSENT SPOUSE IS PROBABLY DEAD.[9]

Unadorned, the issues for our determination are: (1) whether the testimony of respondent Ferventino is hearsay; and (2) whether respondent Ferventino has established a basis to form a well-founded belief that his absent spouse is already dead.

The Republic, through the OSG, contests the appellate court’s holding that the absence of respondent’s wife Maria for 14 years provides sufficient basis to entertain a well-founded belief that she is dead. The OSG discounts respondent’s testimony, on the steps he took to find Maria, as hearsay because none of the persons who purportedly helped in his search testified in court. Notably, the OSG observes that only Capt. Aris gave a detailed account of his efforts to track down Maria. According to Capt. Aris, he went over the Seattle phone directory for Maria’s name and inquired about her from the registrar’s office in Seattle, but both efforts proved to be in vain.

The OSG belittles its failure to object to the admissibility of respondent’s testimony during trial. Instead, it invokes Constitutional provisions that advocate the state policy of preserving marital institutions.

On March 16, 2007, respondent’s counsel, Atty. Richie R. Regala, manifested to this Court his intent to withdraw as counsel for respondent. According to Atty. Regala, he received a letter by which respondent expressed a desire to withdraw from the proceeding.[10] In view of this, the Court issued a Resolution[11] on April 21, 2008 which deemed as waived the filing of respondent’s comment on the petition. Previously, the Court of Appeals had also issued a Resolution[12] dated October 15, 2003 submitting the case for decision and ordering its re-raffling for respondent’s failure to file an appellee’s brief. In other words, apart from the verified petition for the declaration of presumptive death of Maria dated October 1, 2001, which respondent filed before the Ligao City RTC, he has not submitted any other pleading in connection with the petition.

Respondent’s apparent lack of desire to pursue the proceedings notwithstanding, the Court is inclined to rule against the Republic.

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary proceedings under the Family Code and accordingly, refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Court’s original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum.[13] From the decision of the Court of Appeals, the losing party may then file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal.[14]

In the case before us, petitioner committed a serious procedural lapse when it filed a notice of appeal in the Court of Appeals instead of a petition for certiorari. The RTC equally erred in giving due course to said appeal and ordering the transmittal of the records of the case to the appellate court. By no means did the Court of Appeals acquire jurisdiction to review the judgment of the RTC which, by express provision of law, was immediately final and executory.

Adding to the confusion, the Court of Appeals entertained the appeal and treated the same as an ordinary appeal under Rule 41 of the Rules of Court. As it were, the Court of Appeals committed grave reversible error when it failed to dismiss the erroneous appeal of the Republic on the ground of lack of jurisdiction because, by express provision of the law, the judgment was not appealable.[15]

Before us, petitioner filed a petition for review on certiorari under Rule 45 of the Rules of Court. But, even if petitioner used the correct mode of appeal at this level, the hands of the Court are tied. Without a doubt, the decision of the trial court had long become final.

Deeply ingrained in our jurisprudence is the principle that a decision that has acquired finality becomes immutable and unalterable. As such, it may no longer be modified in any respect even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land. [16] In light of the foregoing, it would be unnecessary, if not useless, to discuss the issues raised by petitioner.

The doctrine of finality of judgment is grounded on the fundamental principle of public policy and sound practice that, at the risk of occasional error, the judgment of courts and the award of quasi-judicial agencies must become final on some definite date fixed by law. The only exceptions to the general rule are the correction of clerical errors, the so-called nunc pro tunc entries which cause no prejudice to any party, void judgments, and whenever circumstances transpire after the finality of the decision which render its execution unjust and inequitable. [17] None of the exceptions obtains here to merit the review sought.

WHEREFORE the instant petition is DENIED for lack of merit. No pronouncement as to costs.

SO ORDERED.

G.R. No. 140817 December 7, 2001

SABRINA ARTADI BONDAGJY, petitioner, vs.FOUZI ALI BONDAGJY, JUDGE BENSAUDI I. ARABANI, SR., in his capacity as presiding judge of the 3rd Shari'a District Court, Shari'a Judicial District, Zamboanga City, respondent.

PARDO, J.:

Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back to Catholicism upon their separation, still bound by the moral laws of Islam in the determination of her fitness to be the custodian of her children?

We apply civil law in the best interest of the children.

The Facts

Respondent Fouzi (then 31 years of age) and Sabrina (then 20 years of age) were married on February 3,1988, at the Manila Hotel, Ermita, Manila under Islamic rites.1 On October 21, 1987, or four (4) months before her marriage, Sabrina became a Muslim by conversion. However, the conversion was not registered with the Code of Muslim Personal Laws of the Philippines.

Out of their union, they begot two (2) children, namely, Abdulaziz, born on June 13, 1989,2 and Amouaje, born on September 29, 1990.3 The children were born in Jeddah, Saudi Arabia.

At the time of their marriage, unknown to petitioner, respondent was still married to a Saudi Arabian woman whom he later divorced.

After their marriage, the couple moved in with respondent's family in Makati City. In 1990, the parties migrated and settled in Jeddah, Saudi Arabia where they lived for more than two years.

Sometime in December 1995, the children lived in the house of Sabrina's mother in 145 Tanguile Street, Ayala Alabang. Fouzi alleged that he could not see his children until he got an order from the court. Even with a court order, he could only see his children in school at De La Salle-Zobel, Alabang, Muntinlupa City .

On December 15, 1996, Sabrina had the children baptized as Christians4 and their names changed from Abdulaziz Bondagjy to Azziz Santiago Artadi and from Amouaje Bondagjy to Amouage Selina Artadi.

Respondent alleged that on various occasions Sabrina was seen with different men at odd hours in Manila,5 and that she would wear short skirts, sleeveless blouses, and bathing suits.6 Such clothing are detestable under Islamic law on customs.

Fouzi claimed that Sabrina let their children sweep their neighbor's house for a fee of P40.00 after the children come home from school. Whenever Fouzi sees them in school,7 the children would be happy to see him but they were afraid to ride in his car. Instead, they would ride the jeepney in going home from school.

The Case

On March 11, 1996, respondent Fouzy Ali Bondagjy filed with the Shari'a District Court, Marawi City, an actions8 to obtain custody of his two minor children, Abdulaziz, 10 and Amouaje, 9.

On June 6, 1996, petitioner filed her answer with motion to dismiss on the ground of lack of jurisdiction over the persons of the parties since both parties were residents of Manila and for lack of cause of action. Petitioner likewise moved to transfer the venue to Zamboanga, which was more accessible by plane.

On June 18, 1996, the Shari'a District Court granted petitioner's motion to transfer the venue to Zamboanga.9

On June 27, 1996, respondent filed a reply10 and motion for a temporary restraining order against petitioner.11 He moved that petitioner desist from preventing him from exercising parental authority over his minor children.

On July 12, 1996, the court granted the motion and issued a writ of preliminary injunction.12

On August 12, 1996, the court ordered the parties to submit their memoranda on the issue of jurisdiction.

On October 30, 1996, the court granted petitioner's motion to withdraw motion to dismiss on the issue of jurisdiction and set the proceedings for pre-trial conference on November 14, 1996.

On November 14, 1996, respondent filed a motion to drop Joyce Artadi as defendant in the case and the trial court issued an order:

"During the pre-trial conference held this morning, the parties made their respective offer and counter proposals for amicable settlement. The plaintiff proposed (1) solidarity of the family, and (2) alternate custody. The defendant advanced the proposal of reasonable visitation of the father at their residence, for which the court will possibly fix the period or time and schedule of visitations.

"With these proposals, both parties agreed to continue the pre-trial conference on December 9, 1996.

"WHEREFORE, let the pre-trial conference be again held on December 9, 1996, at 9:00 o'clock in the morning."13

Meantime, petitioner filed with the Regional Trial Court, Branch 256, Muntinlupa City14 an action for nullity of marriage, custody and support, ordered the parties to maintain status quo until further orders from said court.15

On March 2, 1999, petitioner filed another motion to dismiss16 on the ground of lack of jurisdiction over the subject matter of the case since P.D. No. 1083 is applicable only to Muslims. On March 3, 1999, Fouzi filed an opposition to the motion to dismiss and argued that at the inception of the case, both parties were Muslims, Fouzi by birth and Sabrina by conversion.

On March 29, 1999, the court denied the motion to dismiss since P.D. No. 1083 had jurisdiction over all cases of Muslims involving custody.17

On April 23, 1999, Sabrina filed a motion to reconsider the order of March 29, 1999 denying the motion to dismiss.18

On June 22, 1999, the court denied petitioner's motion for reconsideration. Thus-

"WHEREFORE, in view of the foregoing reasons, the motion for reconsideration of the defendant-movant is hereby ordered DENIED; Defendant is further ordered to comply with the order of this Court dated July 12, 1996, to allow plaintiff to exercise his right of parental authority over their minor children with that of the defendant in accordance with article 71, of P.D. 1083, the Code of Muslim Personal Laws.

"Let the continuation of this case be set on July 15, 1999 at 8:30 in the morning."19

On July 15, 1999, the trial court decided to move forward to the next stage of the case and allowed respondent Fouzi to present evidence ex-parte.

On August 18, 1999, the court issued an Order20 giving respondent fifteen (15) days to submit his formal offer of evidence and fifteen (15) days from receipt of transcript of stenographic notes to submit memorandum.

The Shari'a District Court's Decision

On November 16, 1999, the Shari'a Court rendered a decision, the dispositive portion of which reads:

"WHEREFORE, foregoing considered, judgment is hereby rendered:

(a) Awarding the custody of the minors Abdulaziz Artadi Bondagjy and Amouaje Artadi Bondagjy in favor of their natural father, petitioner Fouzi Ali Bondagjy; and for this purpose ordering the respondent Sabrina Artadi Bodagjy or any person having the care of said minors in her stead or behalf, to turn over, relinguish and surrender the custody of said minors to their natural father, the petitioner in this case Fouzi Ali Bondagjy;

(b) Ordering the petitioner Fouzi Ali Bondagjy to ensure that the said minors are provided with reasonable support according to his means and in keeping with the standard of his family, and, a suitable home conducive to their physical,

(c) mental and moral development; and, with his knowledge and under reasonable circumstances allow the respondent and natural mother of the said minors Mrs. Sabrina Artadi Bondagjy to visit her minor children Abdulaziz Artadi Bondagjy and Amouje Artadi Bondagjy."21

Hence, this petition.22

The Court's Ruling

The Shari'a District Court held that P.D. No. 1083 on Custody and Guardianship does not apply to this case because the spouses were not yet divorced.

However, the Shari' a District Court found petitioner unworthy to care for her children. Thus -

"A married woman, and a mother to growing children, should live a life that the community in which she lives considers morally upright, and in a manner that her growing minor children will not be socially and morally affected and prejudiced. It is sad to note that respondent has failed to observe that which is expected of a married woman and a mother by the society in which she lives. xxx The evidence of this case shows the extent of the moral depravity of the respondent, and the kind of concern for the welfare of her minor children which on the basis thereof this Court finds respondent unfit with the custody of her minor children.

"xxx Under the general principles of Muslim law, the Muslim mother may be legally disentitled to the custody of her minor children by reason of 'wickedness' when such wickedness is injurious to the mind of the child, such as when she engages in 'zina' (illicit sexual relation); or when she is unworthy as a mother; and, a woman is not worthy to be trusted with the custody of the child who is continually going out and leaving the child hungry .(A. Baillie, Muhammadan Law, p. 435; citing Dar-ul-Muktar, p. 280)."23

On the other hand, the Shari'a Court found that respondent Fouzi was capable both personally and financially to look after the best interest of his minor children.24

"When he was asked during the direct examination the question that, 'if ever this Honorable Court will grant you custody of your children will you be able to house and give support to your children?' He answered, "Of course, even up to now I am giving support to my children; And my comment is that the father should give everything the needs of the family and now whatever the children needs even in school, considering the past,I have to love them, I have to care for my children. In school, even when they see something they love and like, I buy it for

them. Or sometime (sic) I send my staff and bring something for them in their house. It is very hard, in school in front of other parents my son would still climb on my shoulder. I want to see them happy. I have pictures of my children with me, taken only last week."25

As a rule, factual findings of the lower courts are final and binding upon the parties.26 The Court is not expected or required to examine or contrast the oral and documentary evidence submitted by the parties.27 However, although this Court is not a trier of facts, it has the authority to review or reverse the factual findings of the lower courts if we find that these do not conform to the evidence on record.28

In Reyes vs. Court of Appeals,29 the Court held that the exceptions to the rule that factual findings of the trial court are final and. conclusive and may not be reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; ( 6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion, and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.1âwphi1.nêt

Fitness as a Mother

The burden is upon respondent to prove that petitioner is not worthy to have custody of her children. We find that the evidence presented by the respondent was not sufficient to establish her unfitness according to Muslim law or the Family Code.

In Pilipinas Shell Corp. vs. Court of Appeals (April 20, 2001, G. R. No. 114923), we said that in the hierarchy of evidentiary values, proof beyond reasonable doubt is at the highest level, followed by clear and convincing evidence, preponderance of evidence and substantial evidence, in that order.30

The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a Muslim.

Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children,31 and the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents.

The record shows that petitioner is equally financially capable of providing for all the needs of her children. The children went to school at De La Salle Zobel School, Muntinlupa City with their tuition paid by petitioner according to the school's certification.32

Parental Authority and Custody

The welfare of the minors is the controlling consideration on the issue.33

In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take into account all relevant considerations.34

Article 211 of the Family Code provides that the father and mother shall jointly exercise parental authority over the persons of their common children"

Similarly, P. D. No. 1083 is clear that where the parents are not divorced or legally separated, the father and mother shall jointly exercise just and reasonable parental authority and fulfill their responsibility over their legitimate children.

In Sagala-Eslao v. Court of Appeals,35 we stated:

"xxx [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses.36 As regards parental authority, 'there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.37

"xxx

"The father and mother, being the natural guardians of unemancipated children, are dutybound and entitled to keep them in their custody and company. 38

We do not doubt the capacity and love of both parties for their children, such that they both want to have them in their custody.

Either parent may lose parental authority over the child only for a valid reason. In cases where both parties cannot have custody because of their voluntary separation, we take into consideration the circumstances that would lead us to believe which parent can better take care of the children. Although we see the need for the children to have both a mother and a father, we believe that petitioner has more capacity and time to see to the children's needs. Respondent is a businessman whose work requires that he go abroad or be in different places most of the time. Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the contrary, is given to the mother.39

However, the award of custody to the wife does not deprive" the husband of parental authority. In the case of Silva v. Court of Appeals,40 we said that:

"Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child."

Thus, we grant visitorial rights to respondent as his Constitutionally protected natural and primary right.41

The Fallo

WHEREFORE, the petition is hereby GRANTED. The decision in Spl. Proc. No. 13-96 is hereby SET ASIDE. Petitioner SABRINA ARTADI BONDAGJY shall have custody over minors Abdulaziz, and Amouaje Bondagjy, until the children reach majority age. Both spouses shall have joint responsibility over all expenses of rearing the children.

The father, FOUZI ALl BONDAGJY, shall have visitorial rights at least once a week and may take the children out only with the written consent of the mother.

No costs. 1âwphi1.nêt

[G.R. No. 114742. July 17, 1997]

CARLITOS E. SILVA, petitioner, vs. HON. COURT OF APPEALS and SUZANNE T. GONZALES, respondents.

D E C I S I O N

VITUG, J.:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their proper upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

The petition bears upon this concern.

Carlitos E. Silva, a married businessman, and Suzanne T. Gonzales, an unmarried local actress, cohabited without the benefit of marriage. The union saw the birth of two children: Ramon Carlos and Rica Natalia. Not very long after, a rift in their relationship surfaced. It began, according to Silva, when Gonzales decided to resume her acting career over his vigorous objections. The assertion was quickly refuted by Gonzales who claimed that she, in fact, had never stopped working throughout their relationship. At any rate, the two eventually parted ways.

The instant controversy was spawned, in February 1986, by the refusal of Gonzales to allow Silva, in apparent contravention of a previous understanding, to have the children in his company on weekends. Silva filed a petition for custodial rights over the children before the Regional Trial Court (“RTC”), Branch 78, of Quezon City. The petition was opposed by Gonzales who averred that Silva often engaged in "gambling and womanizing" which she feared could affect the moral and social values of the children.

In an order, dated 07 April 1989, the trial court adjudged:

"WHEREFORE, premises considered, judgment is rendered directing respondent to allow herein petitioner visitorial rights to his children during Saturdays and/or Sundays, but in no case should he take out the children without the written consent of the mother or respondent herein. No pronouncement as to costs."[1]

Silva appeared somehow satisfied with the judgment for only Gonzales interposed an appeal from the RTC’s order to the Court of Appeals.

In the meantime, Gonzales got married to a Dutch national. The newlyweds emigrated to Holland with Ramon Carlos and Rica Natalia.

On 23 September 1993, the appellate tribunal ruled in favor of Gonzales; it held:

"In all questions, regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration' - not the welfare of the parents (Art. 8, PD 603). Under the predicament and/or status of both petitioner-appellee and respondent-appellant, We find it more wholesome morally and emotionally for the children if we put a stop to the rotation of custody of said children. Allowing these children to stay with their mother on weekdays and then with their father and the latter's live-in partner on weekends may not be conducive to a normal up-bringing of children of tender age. There is no telling how this kind of set-up, no matter how temporary and/or remote, would affect the moral and emotional conditions of the minor children. Knowing that they are illegitimate is hard enough, but having to live with it, witnessing their father living with a woman not their mother may have a more damaging effect upon them.

"Article 3 of PD 603, otherwise known as the Child and Youth Welfare Code, provides in part:

"`Art. 3. Rights of the Child. - x x x

`(1) x x x

`(2) x x x

`(3) x x x

`(4) x x x

`(5) Every child has the right to be brought up in an atmosphere of morality and rectitude for the enrichment and the strengthening of his character.

`(6) x x x

`(7) x x x

`(8) Every child has the right to protection against exploitation, improper influences, hazards and other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral development.

`x x x'

"With Articles 3 and 8 of PD 603, in mind, We find it to the best interest of the minor children, to deny visitorial and/or temporary custodial rights to the father, even at the expense of hurting said parent. After all, if indeed his love for the children is genuine and more divine than the love for himself, a little self-sacrifice and self-denial may bring more benefit to the children. While petitioner-appellee, as father, may not intentionally prejudice the children by improper influence, what the children may witness and hear while in their father's house may not be in keeping with the atmosphere of morality and rectitude where they should be brought up.

"The children concerned are still in their early formative years of life. The molding of the character of the child starts at home. A home with only one parent is more normal than two separate houses - (one house where one parent lives and another house where the other parent with another woman/man lives). After all, under Article 176 of the Family Code, illegitimate children are supposed to use the surname of and shall be under the parental authority of their mother.

"The child is one of the most important assets of the nation. It is thus important we be careful in rearing the children especially so if they are illegitimates, as in this case.

"WHEREFORE, in view of all the foregoing, judgment is hereby rendered giving due course to the appeal. The Order of the Regional Trial Court of Quezon City dated April 7, 1989 is hereby reversed. Petitioner-appellee's petition for visitorial rights is hereby denied.

"SO ORDERED."[2]

Silva comes to this Court for relief.

The issue before us is not really a question of child custody; instead, the case merely concerns the visitation right of a parent over his children which the trial court has adjudged in favor of petitioner by holding that he shall have “visitorial rights to his children during Saturdays and/or Sundays, but in no case (could) he take out the children without the written consent of the mother x x x." The visitation right referred to is the right of access of a noncustodial parent to his or her child or children.[3]

There is, despite a dearth of specific legal provisions, enough recognition on the inherent and natural right of parents over their children. Article 150 of the Family Code expresses that "(f)amily relations include those x x x (2) (b)etween parents and children; x x x." Article 209, in relation to Article 220, of the Code states that it is the natural right and duty of parentsand those exercising parental authority to, among other things, keep children in their company and to give them love and affection, advice and counsel, companionship and understanding. The Constitution itself speaks in terms of the "natural and primary rights” of parents in the rearing of the youth.[4] There is nothing conclusive to indicate that these provisions are meant to solely address themselves to legitimate relationships. Indeed, although in varying degrees, the laws on support and successional rights, by way of examples, clearly go beyond the legitimate members of the family and so explicitly encompass illegitimate relationships as well. [5] Then, too, and most importantly, in the declaration of nullity of marriages, a situation that presupposes a void or inexistent marriage, Article 49 of the Family Code provides for appropriate visitation rights to parents who are not given custody of their children.

There is no doubt that in all cases involving a child, his interest and welfare is always the paramount consideration. The Court shares the view of the Solicitor General, who has recommended due course to the petition, that a few hours spent by petitioner with the children, however, could not all be that detrimental to the children. Similarly, what the trial court has observed is not entirely without merit; thus:

"The allegations of respondent against the character of petitioner, even assuming as true, cannot be taken as sufficient basis to render petitioner an unfit father. The fears expressed by respondent to the effect that petitioner shall be able to corrupt and degrade their children once allowed to even temporarily associate with petitioner is but the product of respondent's unfounded imagination, for no man, bereft of all moral persuasions and goodness, would ever take the trouble and expense in instituting a legal action for the purpose of seeing his illegitimate children. It can just be imagined the deep sorrows of a father who is deprived of his children of tender ages."[6]

The Court appreciates the apprehensions of private respondent and their well-meant concern for the children; nevertheless, it seems unlikely that petitioner would have ulterior motives or undue designs more than a parent’s natural desire to be able to call on, even if it were only on brief visits, his own children. The trial court, in any case, has seen it fit to understandably provide this precautionary measure, i.e., "in no case (can petitioner) take out the children without the written consent of the mother."

WHEREFORE, the decision of the trial court is REINSTATED, reversing thereby the judgment of the appellate court which is hereby SET ASIDE. No costs.

SO ORDERED.

G.R. No. 194366 October 10, 2012

NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR, VISMINDA D. NERI-CHAMBERS, ROSA D. NERI-MILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUT-COCKINOS AND VICTORIA D. ILLUT-PIALA, Petitioners, vs.HEIRS OF HADJI YUSOP UY AND JULPHA* IBRAHIM UY, Respondents.

D E C I S I O N

PERLAS-BERNABE, J.:

In this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, petitioners Napoleon D. Neri (Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers (Visminda), Rosa D. Neri-Millan (Rosa), Douglas D. Neri (Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria D. Illut-Piala (Victoria) seek to reverse and set aside the April 27, 2010 Decision2 and October 18, 2010 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 01031-MIN which annulled the October 25, 2004 Decision4 of the Regional Trial Court (RTC) of Panabo City, Davao del Norte and instead, entered a new one dismissing petitioners’ complaint for annulment of sale, damages and attorney’s feesagainst herein respondents heirs of spouses Hadji Yusop Uy and Julpha Ibrahim Uy (heirs of Uy).

The Facts

During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from her first marriage with Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five (5) from her second marriage with Enrique Neri (Enrique), namely: Napoleon, Alicia, Visminda, Douglas and Rosa. Throughout the marriage of spouses Enrique and Anunciacion, they acquired several homestead properties with a total area of 296,555 square meters located in Samal, Davao del Norte, embraced by Original Certificate of Title (OCT) Nos. (P-7998) P-21285, (P-14608) P-51536and P-20551 (P-8348)7issued on February 15, 1957, August 27, 1962 and July 7, 1967, respectively.

On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his personal capacity and as natural guardian of his minor children Rosa and Douglas, together with Napoleon, Alicia, and Vismindaexecuted an Extra-Judicial Settlement of the Estate with Absolute Deed of Sale8 on July 7, 1979, adjudicating among themselves the said homestead properties, and thereafter, conveying themto the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy (spouses Uy)for a consideration of P 80,000.00.

On June 11, 1996, the children of Enrique filed a complaint for annulment of saleof the said homestead properties against spouses Uy (later substituted by their heirs)before the RTC, docketed as Civil Case No.96-28, assailing the validity of the sale for having been sold within the prohibited period. Thecomplaint was later amended to include Eutropia and Victoriaas additional plaintiffs for having been excluded and deprived of their legitimes as childrenof Anunciacion from her first marriage.

In their amended answer with counterclaim, the heirs of Uy countered that the sale took place beyond the 5-year prohibitory period from the issuance of the homestead patents. They also denied knowledge of Eutropia and Victoria’s exclusionfrom the extrajudicial settlement and sale of the subject properties, and interposed further the defenses of prescription and laches.

The RTC Ruling

On October 25, 2004, the RTC rendered a decision ordering, among others, the annulment of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale. It ruled that while the sale occurred beyond the 5-year prohibitory period, the sale is still void because Eutropia and Victoria were deprived of their hereditary rights and that Enrique had no judicial authority to sell the shares of his minor children, Rosa and Douglas.

Consequently, it rejected the defenses of laches and prescription raised by spouses Uy, who claimed possession of the subject properties for 17 years, holding that co-ownership rights are imprescriptible.

The CA Ruling

On appeal, the CAreversed and set aside the ruling of the RTC in its April 27, 2010 Decision and dismissed the complaint of the petitioners. It held that, while Eutropia and Victoria had no knowledge of the extrajudicial settlement and sale of the subject properties and as such, were not bound by it, the CA found it unconscionable to permit the annulment of the sale considering spouses Uy’s possession thereof for 17 years, and thatEutropia and Victoriabelatedlyfiled their actionin

1997, ormore than two years fromknowledge of their exclusion as heirs in 1994 when their stepfather died. It, however, did not preclude the excluded heirs from recovering their legitimes from their co-heirs.

Similarly, the CA declared the extrajudicial settlement and the subsequent saleas valid and binding with respect to Enrique and hischildren, holding that as co-owners, they have the right to dispose of their respective shares as they consider necessary or fit.While recognizing Rosa and Douglas to be minors at that time, they were deemed to have ratified the sale whenthey failed to question it upon reaching the age of majority.Italso found laches to have set in because of their inaction for a long period of time.

The Issues

In this petition, petitioners imputeto the CA the following errors:

I. WHEN IT UPHELDTHE VALIDITY OF THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" AS FAR AS THE SHARES OF EUTROPIA AND VICTORIA WERE CONCERNED, THEREBY DEPRIVING THEM OF THEIR INHERITANCE;

II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" WITH RESPECT TO THE SHARESOF ROSA AND DOUGLAS, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; and

III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION HAS SET IN.

The Ruling of the Court

The petitionis meritorious.

It bears to stress that all the petitioners herein are indisputably legitimate children of Anunciacion from her first and second marriages with Gonzalo and Enrique, respectively, and consequently, are entitled to inherit from her in equal shares, pursuant to Articles 979 and 980 of the Civil Code which read:

ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.

xxx

ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares.

As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique acquired their respective inheritances,9 entitling them to their pro indiviso shares in her whole estate, as follows:

Enrique 9/16 (1/2 of the conjugal assets + 1/16)

Eutropia 1/16

Victoria 1/16

Napoleon 1/16

Alicia 1/16

Visminda 1/16

Rosa 1/16

Douglas 1/16

Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses Uy, all the heirs of Anunciacionshould have participated. Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid and binding uponthem and consequently, a total nullity.

Section 1, Rule 74 of the Rules of Court provides:

SECTION 1. Extrajudicial settlement by agreement between heirs. – x x x

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (Underscoring added)

The effect of excluding the heirs in the settlement of estate was further elucidated in Segura v. Segura,10 thus:

It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule "no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years from its execution…

However, while the settlement of the estate is null and void, the subsequent sale of the subject propertiesmade by Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents isvalid but only with respect to their proportionate shares therein.It cannot be denied that these heirs have acquired their respective shares in the properties of Anunciacion from the moment of her death11and that, as owners thereof, they can very well sell their undivided share in the estate.12

With respect to Rosa and Douglas who were minors at the time of the execution of the settlement and sale, their natural guardian and father, Enrique, represented them in the transaction. However, on the basis of the laws prevailing at that time, Enrique was merely clothed with powers of administration and bereft of any authority to dispose of their 2/16 shares in the estate of their mother, Anunciacion.

Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of the settlement and sale, provide:

ART. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance.

ART. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the child’s property, subject to the duties and obligations of guardians under the Rules of Court.

Corollarily, Section 7, Rule 93 of the Rules of Court also provides:

SEC. 7. Parents as Guardians. – When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the child’s property, with the duties and obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable persons.

Administration includes all acts for the preservation of the property and the receipt of fruits according to the natural purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of the patrimony of child, exceeds the limits of administration.13 Thus, a father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the ward’s property and even then only with courts’ prior approval secured in accordance with the proceedings set forth by the Rules of Court.14

Consequently, the disputed sale entered into by Enrique in behalf of his minor children without the proper judicial authority, unless ratified by them upon reaching the age of majority,15 is unenforceable in accordance with Articles 1317 and 1403(1) of the Civil Code which provide:

ART. 1317. No one may contract in the name of another without being authorized by the latter or unless he has by law a right to represent him.

A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party.

ART. 1403. The following contracts are unenforceable, unless they are ratified:

(1) Those entered into the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers;

xxx

Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice, knowingly made, which amounts to a ratification of what was theretofore unauthorized, and becomes the authorized act of the party so making the ratification.16 Once ratified, expressly or impliedly such as when the person knowingly received benefits from it, the contract is cleansed from all its defects from the moment it was constituted,17 as it has a retroactive effect.

Records, however, show that Rosa had ratified the extrajudicial settlement of the estate with absolute deed of sale. In Napoleon and Rosa’s Manifestation18 before the RTC dated July 11, 1997,they stated:

"Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred in and conformed to by us and our other two sisters and brother (the other plaintiffs), in favor of Hadji Yusop Uy and his spouse Hadja Julpa Uy on July 7, 1979, we both confirmed that the same was voluntary and freely made by all of us and therefore the sale was absolutely valid and enforceable as far as we all plaintiffs in this case are concerned;" (Underscoring supplied)

In their June 30, 1997 Joint-Affidavit,19 Napoleon and Rosa also alleged:

"That we are surprised that our names are included in this case since we do not have any intention to file a case against Hadji Yusop Uy and Julpha Ibrahim Uy and their family and we respect and acknowledge the validity of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale dated July 7, 1979;" (Underscoring supplied)

Clearly, the foregoing statements constitutedratification of the settlement of the estate and the subsequent sale, thus, purging all the defects existing at the time of its execution and legitimizing the conveyance of Rosa’s 1/16 share in the estate of Anunciacion to spouses Uy. The same, however, is not true with respect to Douglas for lack of evidence showing ratification.

Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not binding on Eutropia, Victoria and Douglas, only the shares ofEnrique, Napoleon, Alicia, Visminda and Rosa in the homestead properties have

effectivelybeen disposed in favor of spouses Uy. "A person can only sell what he owns, or is authorized to sell and the buyer can as a consequence acquire no more than what the sellercan legally transfer."20 On this score, Article 493 of the Civil Codeis relevant, which provides:

Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.

Consequently, spouses Uy or their substituted heirs became pro indiviso co-owners of the homestead properties with Eutropia, Victoria and Douglas, who retained title to their respective 1/16 shares. They were deemed to be holding the 3/16 shares of Eutropia, Victoria and Douglas under an implied constructive trust for the latter’s benefit, conformably with Article 1456 of the Civil Code which states:"if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes." As such, it is only fair, just and equitable that the amount paid for their shares equivalent to P 5,000.0021 each or a total of P 15,000.00 be returned to spouses Uy with legal interest.

On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed in so far as it seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of

Court reckoned from the execution of the extrajudicial settlement finds no application to petitioners Eutropia, Victoria and Douglas, who were deprived of their lawful participation in the subject estate. Besides, an "action or defense for the declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil Code.

However, the action to recover property held in trust prescribes after 10 years from the time the cause of action accrues,22 which is from the time of actual notice in case of unregistered deed.23 In this case, Eutropia, Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of 10 years.

WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and October 18, 2010 Resolution of the Court of Appeals are REVERSED and SET ASIDE and a new judgment is entered:

1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and VOID;

2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy as regards the 13/16 total shares of the late Enrique Neri, Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan VALID;

3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as the LAWFUL OWNERSof the 3/16 portions of the subject homestead properties, covered by Original Certificate of Title Nos. (P-7998) P-2128, (P-14608) P-5153 and P-20551 (P-8348); and

4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the respondents jointly and solidarily the amount paid corresponding to the 3/16 shares of Eutropia, Victoria and Douglas in the total amount of P 15,000.00, with legal interest at 6% per annum computed from the time of payment until finality of this decision and 12% per annum thereafter until fully paid.

No pronouncement as to costs.

NELSON CABALES and G.R. No. 162421RITO CABALES, Petitioners, Present:

PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ, - versus - CORONA, AZCUNA, and

GARCIA,JJ.

COURT OF APPEALS, Promulgated:JESUS FELIANO andANUNCIACION FELIANO, Respondents. August 31, 2007 x-----------------------------------------------------------------------------------------x

D E C I S I O N PUNO, C.J.:

This is a petition for review on certiorari seeking the reversal of the decision[1] of the Court of Appeals dated October 27, 2003, in CA-G.R. CV No. 68319 entitled“Nelson Cabales and Rito Cabales v. Jesus Feliano and Anunciacion Feliano,” which affirmed with modification the decision[2] of the Regional Trial Court of Maasin, Southern Leyte, Branch 25, dated August 11, 2000, in Civil Case No. R-2878. The resolution of the Court of Appeals dated February 23, 2004, which denied petitioners’ motion for

reconsideration, is likewise herein assailed.

The facts as found by the trial court and the appellate court are well established. Rufino Cabales died on July 4, 1966 and left a 5,714-square meter parcel of land located in Brgy. Rizal,

Sogod, Southern Leyte, covered by Tax Declaration No. 17270 to his surviving wife Saturnina and children Bonifacio, Albino, Francisco, Leonora, Alberto and petitioner Rito. On July 26, 1971, brothers and co-owners Bonifacio, Albino and Alberto sold the subject property to Dr. Cayetano Corrompido for P2,000.00, with right to repurchase within eight (8) years. The three (3) siblings divided the proceeds of the sale among themselves, each getting a share of P666.66. The following month or on August 18, 1971, Alberto secured a note (“vale”) from Dr. Corrompido in the amount of P300.00. In 1972, Alberto died leaving his wife and son, petitioner Nelson. On December 18, 1975, within the eight-year redemption period, Bonifacio and Albino tendered their payment of P666.66 each to Dr. Corrompido. But Dr. Corrompido only released the document of sale with pacto de retro after Saturnina paid for the share of her deceased son, Alberto, including his “vale” of P300.00. On even date, Saturnina and her four (4) children Bonifacio, Albino, Francisco and Leonora sold the subject parcel of land to respondents-spouses Jesus and Anunciacion Feliano for P8,000.00. The Deed of Sale provided in its last paragraph, thus:

It is hereby declared and understood that the amount of TWO THOUSAND TWO HUNDRED EIGHTY SIX PESOS (P2,286.00) corresponding and belonging to the Heirs of Alberto Cabales and to Rito Cabales who are still minors upon the execution of this instrument are heldin trust by the VENDEE and to be paid and delivered only to them upon reaching the age of 21.

On December 17, 1985, the Register of Deeds of Southern Leyte issued Original Certificate of Title No. 17035 over the purchased land in the names of respondents-spouses.

On December 30, 1985, Saturnina and her four (4) children executed an affidavit to the effect that petitioner Nelson would only receive the amount of P176.34 from respondents-spouses when he reaches the age of 21 considering that Saturnina paid Dr. Corrompido P966.66 for the obligation of petitioner Nelson’s late father Alberto, i.e.,P666.66 for his share in the redemption of the sale with pacto de retro as well as his “vale” of P300.00. On July 24, 1986, 24-year old petitioner Rito Cabales acknowledged receipt of the sum of P1,143.00 from respondent Jesus Feliano, representing the former’s share in the proceeds of the sale of subject property. In 1988, Saturnina died. Petitioner Nelson, then residing in Manila, went back to his father’s hometown in Southern Leyte. That same year, he learned from his uncle, petitioner Rito, of the sale of subject property. In 1993, he signified his intention to redeem the subject land during a barangay conciliation process that he initiated.

On January 12, 1995, contending that they could not have sold their respective shares in subject property when they were minors, petitioners filed before the Regional Trial Court of Maasin, Southern Leyte, a complaint for redemption of the subject land plus damages. In their answer, respondents-spouses maintained that petitioners were estopped from claiming any right over subject property considering that (1) petitioner Rito had already received the amount corresponding to his share of the proceeds of the sale of subject property, and (2) that petitioner Nelson failed to consign to the court the total amount of

the redemption price necessary for legal redemption. They prayed for the dismissal of the case on the grounds of laches and prescription. No amicable settlement was reached at pre-trial. Trial ensued and on August 11, 2000, the trial court ruled against petitioners. It held that (1) Alberto or, by his death, any of his heirs including petitioner Nelson lost their right to subject land when not one of them repurchased it from Dr. Corrompido; (2) Saturnina was effectively subrogated to the rights and interests of Alberto when she paid for Alberto’s share as well as his obligation to Dr. Corrompido; and (3) petitioner Rito had no more right to redeem his share to subject property as the sale by Saturnina, his legal guardian pursuant to Section 7, Rule 93 of the Rules of Court, was perfectly valid; and it was shown that he received his share of the proceeds of the sale on July 24, 1986, when he was 24 years old.

On appeal, the Court of Appeals modified the decision of the trial court. It held that the sale by Saturnina of petitioner Rito’s undivided share to the property was unenforceable for lack of authority or legal representation but that the contract was effectively ratified by petitioner Rito’s receipt of the proceeds on July 24, 1986. The appellate court also ruled that petitioner Nelson is co-owner to the extent of one-seventh (1/7) of subject property as Saturnina was not subrogated to Alberto’s rights when she repurchased his share to the property. It further directed petitioner Nelson to pay the estate of the late Saturnina Cabales the amount of P966.66, representing the amount which the latter paid for the obligation of petitioner Nelson’s late father Alberto. Finally, however, it denied petitioner Nelson’s claim for redemption for his failure to tender or consign in court the redemption money within the period prescribed by law.

In this petition for review on certiorari, petitioners contend that the Court of Appeals erred in (1) recognizing

petitioner Nelson Cabales as co-owner of subject land but denied him the right of legal redemption, and (2) not recognizing petitioner Rito Cabales as co-owner of subject land with similar right of legal redemption.

First, we shall delineate the rights of petitioners to subject land. When Rufino Cabales died intestate, his wife Saturnina and his six (6) children, Bonifacio, Albino, Francisco,

Leonora, Alberto and petitioner Rito, survived and succeeded him. Article 996 of the New Civil Code provides that “[i]f a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.” Verily, the seven (7) heirs inherited equally on subject property. Petitioner Rito and Alberto, petitioner Nelson’s father, inherited in their own rights and with equal shares as the others.

But before partition of subject land was effected, Alberto died. By operation of law, his rights and obligations to

one-seventh of subject land were transferred to his legal heirs – his wife and his son petitioner Nelson. We shall now discuss the effects of the two (2) sales of subject land to the rights of the parties.

The first sale with pacto de retro to Dr. Corrompido by the brothers and co-owners Bonifacio, Albino and Alberto was valid but only as to their pro-indiviso shares to the land. When Alberto died prior to repurchasing his share, his rights and obligations were transferred to and assumed by his heirs, namely his wife and his son, petitioner Nelson. But the records show that it was Saturnina, Alberto’s mother, and not his heirs, who repurchased for him. As correctly ruled by the Court of Appeals, Saturnina was not subrogated to Alberto’s or his heirs’ rights to the property when she repurchased the share.

In Paulmitan v. Court of Appeals,[3] we held that a co-owner who redeemed the property in its entirety did not

make her the owner of all of it. The property remained in a condition of co-ownership as the redemption did not provide for a mode of terminating a co-ownership. [4] But the one who redeemed had the right to be reimbursed for the redemption price and until reimbursed, holds a lien upon the subject property for the amount due. [5] Necessarily, when Saturnina redeemed for Alberto’s heirs who had then acquired his pro-indiviso share in subject property, it did not vest in her ownership over the pro-indiviso share she redeemed. But she had the right to be reimbursed for the redemption price and held a lien upon the property for the amount due until reimbursement. The result is that the heirs of Alberto, i.e., his wife and his son petitioner Nelson, retained ownership over their pro-indiviso share.

Upon redemption from Dr. Corrompido, the subject property was resold to respondents-spouses by the co-owners. Petitioners Rito and Nelson were then minors and as indicated in the Deed of Sale, their shares in the proceeds were held in trust by respondents-spouses to be paid and delivered to them upon reaching the age of majority.

As to petitioner Rito, the contract of sale was unenforceable as correctly held by the Court of Appeals. Articles

320 and 326 of the New Civil Code[6] state that:

Art. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance.

Art. 326. When the property of the child is worth more than two thousand pesos, the father or

mother shall be considered a guardian of the child’s property, subject to the duties and obligations of guardians under the Rules of Court.

In other words, the father, or, in his absence, the mother, is considered legal administrator of the property pertaining to the child under his or her parental authority without need of giving a bond in case the amount of the property of the child does not exceed two thousand pesos.[7] Corollary to this, Rule 93, Section 7 of the Revised Rules of Court of 1964, applicable to this case, automatically designates the parent as legal guardian of the child without need of any judicial appointment in case the latter’s property does not exceed two thousand pesos,[8] thus:

Sec. 7. Parents as guardians. – When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian x x x x[9]

Saturnina was clearly petitioner Rito’s legal guardian without necessity of court appointment considering that the amount of his property or one-seventh of subject property was P1,143.00, which is less than two thousand pesos. However, Rule 96, Sec. 1[10] provides that:

Section 1. To what guardianship shall extend. – A guardian appointed shall have the care and custody of the person of his ward, and the management of his estate, or the management of the estate only, as the case may be. The guardian of the estate of a nonresident shall have the management of all the estate of the ward within the Philippines, and no court other than that in which such guardian was appointed shall have jurisdiction over the guardianship.

Indeed, the legal guardian only has the plenary power of administration of the minor’s property. It does not include the power of alienation which needs judicial authority.[11] Thus, when Saturnina, as legal guardian of petitioner Rito, sold the latter’s pro-indiviso share in subject land, she did not have the legal authority to do so.

Article 1403 of the New Civil Code provides, thus:

Art. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into in the name of another person by one who has been given no authority

or legal representation, or who has acted beyond his powers;

x x x x Accordingly, the contract of sale as to the pro-indiviso share of petitioner Rito was unenforceable. However, when he acknowledged receipt of the proceeds of the sale onJuly 24, 1986, petitioner Rito effectively ratified it. This act of ratification rendered the sale valid and binding as to him. With respect to petitioner Nelson, on the other hand, the contract of sale was void. He was a minor at the time of the sale. Saturnina or any and all the other co-owners were not his legal guardians with judicial authority to alienate or

encumber his property. It was his mother who was his legal guardian and, if duly authorized by the courts, could validly sell his undivided share to the property. She did not. Necessarily, when Saturnina and the others sold the subject property in its entirety to respondents-spouses, they only sold and transferred title to their pro-indiviso shares and not that part which pertained to petitioner Nelson and his mother. Consequently, petitioner Nelson and his mother retained ownership over their undivided share of subject property.[12]

But may petitioners redeem the subject land from respondents-spouses? Articles 1088 and 1623 of the New Civil Code are pertinent:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor.

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within

thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining owners.

Clearly, legal redemption may only be exercised by the co-owner or co-owners who did not part with his or their pro-indiviso share in the property held in common. As demonstrated, the sale as to the undivided share of petitioner Rito became valid and binding upon his ratification on July 24, 1986. As a result, he lost his right to redeem subject property.

However, as likewise established, the sale as to the undivided share of petitioner Nelson and his mother was not valid such that they were not divested of their ownership thereto. Necessarily, they may redeem the subject property from respondents-spouses. But they must do so within thirty days from notice in writing of the sale by their co-owners vendors. In reckoning this period, we held in Alonzo v. Intermediate Appellate Court,[13] thus:

x x x we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law

and justice are inseparable, and we must keep them so. x x x x

x x x x While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to “the letter that killeth” but to “the spirit that vivifieth,” to give effect to the lawmaker’s will.

In requiring written notice, Article 1088 (and Article 1623 for that matter) [14] seeks to ensure that

the redemptioner is properly notified of the sale and to indicate the date of such notice as the starting time of the 30-day period of redemption. Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise date it is supposed to begin, to obviate the problem of alleged delays, sometimes consisting of only a day or two.

In the instant case, the right of redemption was invoked not days but years after the sale was made in 1978. We are not unmindful of the fact that petitioner Nelson was a minor when the sale was perfected. Nevertheless, the

records show that in 1988, petitioner Nelson, then of majority age, was informed of the sale of subject property. Moreover, it was noted by the appellate court that petitioner Nelson was likewise informed thereof in 1993 and he signified his intention to redeem subject property during a barangayconciliation process. But he only filed the complaint for legal redemption and damages on January 12, 1995, certainly more than thirty days from learning about the sale.

In the face of the established facts, petitioner Nelson cannot feign ignorance of the sale of subject property in

1978. To require strict proof of written notice of the sale would be to countenance an obvious false claim of lack of knowledge thereof, thus commending the letter of the law over its purpose, i.e., the notification of redemptioners.

The Court is satisfied that there was sufficient notice of the sale to petitioner Nelson. The thirty-day redemption

period commenced in 1993, after petitioner Nelson sought the barangay conciliation process to redeem his property. By January 12, 1995, when petitioner Nelson filed a complaint for legal redemption and damages, it is clear that the thirty-day period had already expired.

As in Alonzo, the Court, after due consideration of the facts of the instant case, hereby interprets the law in a

way that will render justice.[15]

Petitioner Nelson, as correctly held by the Court of Appeals, can no longer redeem subject property. But he and

his mother remain co-owners thereof with respondents-spouses. Accordingly, title to subject property must include them.

IN VIEW WHEREOF, the petition is DENIED. The assailed decision and resolution of the Court of Appeals

of October 27, 2003 and February 23, 2004 are AFFIRMED WITH MODIFICATION. The Register of Deeds of Southern Leyte is ORDERED to cancel Original Certificate of Title No. 17035 and to issue in lieu thereof a new certificate of title in the name of respondents-spouses Jesus and Anunciacion Feliano for the 6/7 portion, and petitioner Nelson Cabales and his mother for the remaining 1/7 portion, pro indiviso.

SO ORDERED.

REYNATO S. PUNO

Chief Justice

[A.M. No. RTJ-03-1753.  February 5, 2004]

CAPISTRANO OBEDENCIO, JR., complainant, vs. JUDGE JOAQUIN M. MURILLO, PRESIDING JUDGE, RTC, BRANCH 26, MEDINA, MISAMIS ORIENTAL, respondent.

R E S O L U T I O N

QUISUMBING, J.:

In a letter-complaint,[1] complainant Capistrano Obedencio, Jr., charged respondent Judge Joaquin M. Murillo, Presiding Judge of the Regional Trial Court of Medina, Misamis Oriental, Branch 26, of unjustly dismissing Criminal Case No. 1401-M (2000) for rape, entitled “People v. Dexter Z. Acenas.”

Complainant averred that on May 3, 2000, he and his wife assisted their 14-year-old daughter, Licel Acenas Obedencio, in filing with the Office of the Provincial Prosecutor, Hall of Justice in Cagayan de Oro City, a criminal complaint for rape allegedly committed upon her when she was 11 years old by her uncle, Dexter Z. Acenas.  After the preliminary investigation, which the accused did not attend, the case was filed in respondent judge’s sala.[2]

On May 25, 2001, following Licel’s abduction from their house,[3] complainant sought to secure from the court a copy of the warrant of arrest issued against the accused.  To his great surprise, respondent judge told him that the case had been dismissed three days earlier on May 22, 2001.[4] According to respondent judge, Licel Obedencio had come to court, accompanied by her maternal grandparents and Asst. Provincial Prosecutor Emmanuel Hallazgo.  There she was presented to affirm her affidavit of desistance.[5]

Complainant claims that the dismissal was marred by serious irregularities.  He specifically lamented the absence of any subpoena or notice of hearing from the court to him, his wife, or their counsel.  He believes that since Prosecutor Hallazgo, Licel’s maternal grandparents, and the accused are relatives, this fact contributed to the unjust dismissal of the case.[6]

In his comment,[7] respondent judge stated that he heard Criminal Case No. 1401-M (2000) on May 22, 2001, upon the request of Prosecutor Hallazgo who was prosecuting the case. During the hearing, Prosecutor Hallazgo presented an affidavit of desistance executed by Licel.  Then, Licel took the witness stand and was asked on matters contained in her affidavit. She recanted the allegations in her affidavit-complaint and denied having been molested by her uncle, Dexter.   She explained that her mother forced her to file the rape charge because of family inheritance problems.  Respondent judge asserts that, with the filing of the affidavit of desistance, the court had no other recourse but to dismiss the case.[8]

The Office of the Court Administrator (OCA), through Deputy Court Administrator Christopher O. Lock, found respondent judge liable for ignorance of the law for unjustly dismissing Criminal Case No. 1401-M (2000).  OCA recommended that respondent judge be reprimanded with warning that a repetition of the same or similar offense would be dealt with more severely.[9]

This Court agrees with the findings of the OCA, but not with the recommended penalty.

Article 220(6)[10] of the Family Code gives to complainant and his wife the right and duty to represent Licel in all matters affecting her interest.  Thus, they were entitled to be notified and to attend every hearing on the case.  As a judge, respondent is duty-bound to acquaint himself with the cases pending before him.[11] He should have known that Licel filed the criminal complaint with the assistance of her parents, who are her natural guardians. [12] It was incumbent upon respondent judge to inquire into the reason behind their nonappearance before the court instead of simply relying on the bare explanation of the defense counsel that he and his client could not find Licel’s parents.[13] Respondent judge ought to remember that the accused, Dexter Acenas, is the maternal uncle of the victim.  That Licel came to court with her maternal grandparents, and not her parents, on the day she was examined to affirm her affidavit of desistance, should have alerted respondent judge to be more circumspect.  Being still a minor, Licel cannot fully comprehend for herself the impact and legal consequence of the affidavit of desistance.  Given her tender age, the probability is that Licel succumbed to illicit influence and undue pressure on her to desist from pursuing her complaint.

Licel was only 14 years old, definitely a minor, on May 22, 2001, when she was presented before respondent’s sala to affirm the execution of her affidavit of desistance.  This being the case, said affidavit should have been executed with the concurrence of her parents.  Licel could not validly give consent to an affidavit of desistance, for a minor is incompetent to execute such an instrument.  Yet, notwithstanding the absence of her parents’ conformity to the affidavit of desistance and lack

of notice to them or their lawyer of the scheduled hearing, respondent judge dismissed the criminal case.   Truly, he should have exercised more prudence and caution instead of perfunctorily dismissing the case, considering the nature and gravity of the offense charged.

At the very least, herein respondent should have appointed a guardian ad litem for Licel, to protect her welfare and interest, instead of hastily dismissing the rape case.  The Rule on Examination of a Child Witness,[14] which took effect on December 15, 2000, governs the examination of child witnesses who are victims of, accused of, or witnesses to a crime.  In the absence or incapacity of the parents to be the guardian, Section 5 (a)[15] of said rule provides that the court may appoint a guardian ad litem to promote the best interests of the child.  This rule was already in effect when respondent judge dismissed the rape case on May 22, 2001.

Respondent is reminded that a judge is the visible representation of the law and, more important, of justice.[16] A judge owes it to the public to be knowledgeable, for ignorance of the law is the mainspring of injustice.[17] A judge must know the laws and apply them properly in all good faith.[18] Rule 3.01, Canon 3 of the Code of Judicial Conduct requires a judge to be faithful to the law and to maintain professional competence.  He should conduct the functions and perform the duties of his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of law.[19] Where the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law.[20]

For respondent judge’s infraction, the penalty of reprimand, recommended by the OCA, is inapplicable.  It is too light and incommensurate to the gravity of the administrative offense charged and proved.  Instead, the penalty of fine is proper in this case, following Sandoval v. Garin,[21] in the amount of P10,000.00.

WHEREFORE, the respondent Judge Joaquin M. Murillo, Presiding Judge of the Regional Trial Court of Medina, Misamis Oriental, Branch 26, is found LIABLE for gross ignorance of the law in connection with the unjust dismissal of Criminal Case No. 1401-M (2000).  He is ORDERED to pay the fine of Ten Thousand Pesos (P10,000) and ADMONISHED to be more circumspect in the performance of his judicial duties and functions.  He is further warned sternly that a repetition of the same or similar offense would be dealt with more severely.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.

[1] Rollo, pp. 6-7.

[G.R. No. 143363.  February 6, 2002]

ST. MARY’S ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR.,and VIVENCIO VILLANUEVA, respondents.

D E C I S I O N

PARDO, J.:

The Case

The case is an appeal via certiorari from the decision[1] of the Court of Appeals as well as the resolution denying reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student who had joined a campaign to visit the public schools in Dipolog City to solicit enrollment.

The Facts

The facts, as found by the Court of Appeals, are as follows:

“Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St. Mary’s Academy before the Regional Trial Court of Dipolog City.

“On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive portion of which reads as follows:

“‘WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:

1.            Defendant St. Mary’s Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa Carpitanos, the following sums of money:

a.  FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos;

b.  FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by plaintiffs for burial and related expenses;

c.  TEN THOUSAND PESOS (P10,000.00) for attorney’s fees;

d.  FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs.

2.            Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay herein plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Mary’s Academy of Dipolog City;

3.            Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special parental authority of defendant St. Mary’s Academy, is ABSOLVED from paying the above-stated damages, same being adjudged against defendants St. Mary’s Academy, and subsidiarily, against his parents;

4.            Defendant Vivencio Villanueva is hereby ABSOLVED of any liability.  His counterclaim not being in order as earlier discussed in this decision, is hereby DISMISSED.

IT IS SO ORDERED.”’ (Decision, pp. 32-33; Records, pp. 205-206).”

“From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Mary’s Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996.  A facet of the enrollment campaign was the visitation of schools from where prospective enrollees were studying.  As a student of St. Mary’s Academy, Sherwin Carpitanos was part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School, Larayan, Dapitan City.  The jeep was driven by James Daniel II then 15 years old and a student of the same school.  Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle.

“Sherwin Carpitanos died as a result of the injuries he sustained from the accident.”[2]

In due time, petitioner St. Mary’s academy appealed the decision to the Court of Appeals.[3]

On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but otherwise affirming the decision a quo, in toto.[4]

On February 29, 2000, petitioner St. Mary’s Academy filed a motion for reconsideration of the decision.  However, on May 22, 2000, the Court of Appeals denied the motion.[5]

Hence, this appeal.[6]

The Issues

1)  Whether the Court of Appeals erred in holding the petitioner liable for damages for the death of Sherwin Carpitanos.

2)  Whether the Court of Appeals erred in affirming the award of moral damages against the petitioner.

The Court’s Ruling

We reverse the decision of the Court of Appeals.

The Court of Appeals held petitioner St. Mary’s Academy liable for the death of Sherwin Carpitanos under Articles 218[7] and 219[8] of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having a teacher accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or institution engaged in child care.  This special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution.  Thus, such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers.[9]

Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction, or custody.[10]

However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident.[11]

“In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words, the negligence must be the proximate cause of the injury.  For, ‘negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’”[12]

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the victim.

Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the jeep.

In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep.  Hence, the cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva.  Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the report and testimony of the traffic investigator who stated that the cause of the accident was the detachment of the steering wheel guide that caused the jeep to turn turtle.

Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the negligence of the school authorities, or the reckless driving of James Daniel II.  Hence, the respondents’ reliance on Article 219 of the Family Code that “those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor” was unfounded.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of respondent Vivencio Villanueva.  It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had possession and control of the jeep.  He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minor’s parents primarily.  The negligence of petitioner St. Mary’s Academy was only a remote cause of the accident.  Between the remote cause and the injury, there intervened the negligence of the minor’s parents or the detachment of the steering wheel guide of the jeep.

“The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.”[13]

Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by respondent Villanueva was an event over which petitioner St. Mary’s Academy had no control, and which was the proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident.

Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00 awarded by the trial court and affirmed by the Court of Appeals.

Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission.[14] In this case, the proximate cause of the accident was not attributable to petitioner.

For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted.  Moreover, the grant of attorney’s fees as part of damages is the exception rather than the rule.[15] The power of the court to award attorney’s fees under Article 2208 of the Civil Code demands factual, legal and equitable justification. [16] Thus, the grant of attorney’s fees against the petitioner is likewise deleted.

Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva.  He never denied and in fact admitted this fact.  We have held that the registered owner of any vehicle, even if not used for public service, would primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle was being driven on the highways or streets.”[17] Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for damages for the death of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals[18] and that of the trial court.[19] The Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner St. Mary’s Academy, Dipolog City.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.