G.R. No. 191970               April 24, 2012

ROMMEL APOLINARIO JALOSJOS, Petitioner, vs.THE COMMISSION ON ELECTIONS and DAN ERASMO, SR.,

D E C I S I O N

ABAD, J.:

This case is about the proof required to establish the domicile of a reinstated Filipino citizen who seeks election as governor of a province.

The Facts and the Case

Petitioner Rommel Jalosjos was born in Quezon City on October 26, 1973. He migrated to Australia in 1981 when he was eight years old and there acquired Australian citizenship. On November 22, 2008, at age 35, he decided to return to the Philippines and lived with his brother, Romeo, Jr., in Barangay Veteran’s Village, Ipil, Zamboanga Sibugay. Four days upon his return, he took an oath of allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of Immigration.1 On September 1, 2009 he renounced his Australian citizenship, executing a sworn renunciation of the same2 in compliance with Republic Act (R.A.) 9225.3

From the time of his return, Jalosjos acquired a residential property in the same village where he lived and a fishpond in San Isidro, Naga, Zamboanga Sibugay. He applied for registration as a voter in the Municipality of Ipil but respondent Dan Erasmo, Sr., the Barangay Captain of Barangay Veteran’s Village, opposed the same. Acting on the application, the Election Registration Board approved it and included Jalosjos’ name in the Commission on Elections’ (COMELEC’s) voters list for Precinct 0051F of Barangay Veterans Village, Ipil, Zamboanga Sibugay.4

Undaunted, Erasmo filed before the 1st Municipal Circuit Trial Court (MCTC) of Ipil-Tungawan-R.T. Lim in Ipil a petition for the exclusion of Jalosjos name from the official voters list. After hearing, the �MCTC rendered a decision, denying the petition.5 On appeal,6 the Regional Trial Court (RTC) affirmed the MCTC decision. The RTC decision became final and executory.

On November 28, 2009 Jalosjos filed his Certificate of Candidacy (COC) for Governor of Zamboanga Sibugay Province for the May 10, 2010 elections. Erasmo promptly filed a petition to deny due course or to cancel Jalosjos’ COC7 on the ground that the latter made material misrepresentation in the same since he failed to comply with (1) the requirements of R.A. 9225 and (2) the one-year residency requirement of the Local Government Code.

After hearing, the Second Division of the COMELEC ruled that, while Jalosjos had regained Philippine citizenship by complying with the requirements of R.A. 9225, he failed to prove the residency requirement for a gubernatorial candidate. He failed to present ample proof of a bona fide intention to establish his domicile in Ipil, Zamboanga Sibugay. On motion for reconsideration, the COMELEC En Banc affirmed the Second Division’s decision, ruling that Jalosjos had been a mere guest or transient visitor in his brother’s house and, for this reason, he cannot claim Ipil as his domicile.

Acting on Jalosjos’ prayer for the issuance of a temporary restraining order, the Court resolved on May 7, 2010 to issue a status quo ante order, enjoining the COMELEC from enforcing its February 11, 2010 decision pending further orders. Meanwhile, Jolosjos won the election and was proclaimed winner of the 2010 gubernatorial race in the Province of Zamboanga Sibugay.8

The Issue Presented

The sole issue presented in this case is whether or not the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that Jalosjos failed to present ample proof of a bona fide intention to establish his domicile in Ipil, Zamboanga Sibugay.

The Court’s Ruling

The Local Government Code requires a candidate seeking the position of provincial governor to be a resident of the province for at least one year before the election.9 For purposes of the election laws, the requirement of residence is synonymous with domicile,10 meaning that a person must not only intend to reside in a particular place but must also have personal presence in such place coupled with conduct indicative of such intention.11

There is no hard and fast rule to determine a candidate’s compliance with residency requirement since the question of residence is a question of intention.12 Still, jurisprudence has laid down the following guidelines: (a) every person has a domicile or residence somewhere; (b) where once established, that domicile remains until he acquires a new one; and (c) a person can have but one domicile at a time.13

It is inevitable under these guidelines and the precedents applying them that Jalosjos has met the residency requirement for provincial governor of Zamboanga Sibugay.

One. The COMELEC appears hasty in concluding that Jalosjos failed to prove that he successfully changed his domicile to Zamboanga Sibugay. The COMELEC points out that, since he was unable to discharge the burden of proving Zamboanga Sibugay to be his rightful domicile, it must be assumed that his domicile is either Quezon City or Australia.

But it is clear from the facts that Quezon City was Jalosjos’ domicile of origin, the place of his birth. It may be taken for granted that he effectively changed his domicile from Quezon City to Australia when he migrated there at the age of eight, acquired Australian citizenship, and lived in that country for 26 years. Australia became his domicile by operation of law and by choice.14

On the other hand, when he came to the Philippines in November 2008 to live with his brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his domicile for good. He left Australia, gave up his Australian citizenship, and renounced his allegiance to that country. In addition, he reacquired his old citizenship by taking an oath of allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of Immigration. By his acts, Jalosjos forfeited his legal right to live in Australia, clearly proving that he gave up his domicile there. And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.

To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the loss of his domicile of origin (Quezon City) and his domicile of choice and by operation of law (Australia) would violate the settled maxim that a man must have a domicile or residence somewhere.

Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil since he has merely been staying at his brother’s house. But this circumstance alone cannot support such conclusion. Indeed, the Court has repeatedly held that a candidate is not required to have a house in a community to establish his residence or domicile in a particular place. It is sufficient that he should live there even if it be in a rented house or in the house of a friend or relative.15 To insist that the candidate own the house where he lives would make property a qualification for public office. What matters is that Jalosjos has proved two things: actual physical presence in Ipil and an intention of making it his domicile.

Jalosjos presented the affidavits of next-door neighbors, attesting to his physical presence at his residence in Ipil. These adjoining neighbors are no doubt more credible since they have a better chance of noting his presence or absence than his other neighbors, whose affidavits Erasmo presented, who just sporadically passed by the subject residence. Further, it is not disputed that Jalosjos bought a residential lot in the same village where he lived and a fish pond in San Isidro, Naga, Zamboanga Sibugay. He showed correspondences with political leaders, including local and national party-mates, from where he lived. Moreover, Jalosjos is a registered voter of Ipil by final judgment of the Regional Trial Court of Zamboanga Sibugay. 1âwphi1

Three. While the Court ordinarily respects the factual findings of administrative bodies like the COMELEC, this does not prevent it from exercising its review powers to correct palpable misappreciation of evidence or wrong or irrelevant considerations.16 The evidence Jalosjos presented is sufficient to establish Ipil, Zamboanga Sibugay, as his domicile. The COMELEC gravely abused its discretion in holding otherwise.

Four. Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for Zamboanga Sibugay. The Court will respect the decision of the people of that province and resolve all doubts regarding his qualification in his favor to breathe life to their manifest will.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the Resolution of the COMELEC Second Division dated February 11, 2010 and the Resolution of the COMELEC En Banc dated May 4, 2010 that disqualified petitioner Rommel Jalosjos from seeking election as Governor of Zamboanga Sibugay.

SO ORDERED.

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner, vs.COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

 

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the election." 2 The mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community." 3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following information in item no. 8: 4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" 5 with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency requirement for candidates for the House of Representatives on the evidence of declarations made by her in Voter Registration Record 94-No. 3349772 6and in her Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner) disqualified and canceling the certificate of candidacy." 7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On the same day, the Provincial Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed out of time, the deadline for the filing of the same having already lapsed on March 20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on or before the March 20, 1995 deadline. 9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in Intramuros, Manila onMarch 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy was the result of an "honest misinterpretation" 10 which she sought to rectify by adding the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as her domicile or residence. 11 Impugning respondent's motive in filing the petition seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such a move up to the Supreme Court, his purpose being to remove respondent as petitioner's opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking the creation of another legislative district to remove the town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along with respondent for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of Candidacy. 14 Dealing with two primary issues, namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the one year residency requirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an amendment should subsequently be allowed. She averred that she thought that what was asked was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First Legislative District, to which she could have responded "since childhood." In an accompanying affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which she always intended to return whenever absent and which she has never abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's theory of disqualification by alleging that she has been a resident of the First Legislative District of Leyte since childhood, although she only became a resident of the Municipality of Tolosa for seven months. She asserts that she has always been a resident of Tacloban City, a component of the First District, before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced that she would be registering in Tacloban City so that she can be a candidate for the District. However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claim and instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked was her actual and physical presence in Tolosa is not easy to believe because there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding the election." Thus, the explanation of respondent fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the case ofAlialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only applies to the "inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections." The Supreme Court in that case considered the amendment only as a matter of form. But in the instant case, the amendment cannot be considered as a matter of form or an inconsequential deviation. The change in the number of years of residence in the place where respondent seeks to be elected is a substantial matter which determines

her qualification as a candidacy, specially those intended to suppress, accurate material representation in the original certificate which adversely affects the filer. To admit the amended certificate is to condone the evils brought by the shifting minds of manipulating candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order to prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed before this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in her certificate of candidacy can be gleaned from her entry in her Voter's Registration Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further buttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994, requesting for the cancellation of her registration in the Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the respondent's consistent conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore, cannot be persuaded to believe in the respondent's contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with "domicile" which imports not only the intention to reside in a fixed place but also personal presence in-that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991, the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since childhood is nothing more than to give her a color of qualification where she is otherwise constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit. Except for the time that she studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was elected Senator, she lived and resided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San Miguel, Manila where she was again a registered voter. In 1978, she served as member of the Batasang Pambansa as the representative of the City of Manila and

later on served as the Governor of Metro Manila. She could not have served these positions if she had not been a resident of the City of Manila. Furthermore, when she filed her certificate of candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for the cancellation of her registration in the permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places, including Metro Manila. This debunks her claim that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She registered as a voter in different places and on several occasions declared that she was a resident of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned such place when she chose to stay and reside in other different places. In the case of Romualdez vs. RTC(226 SCRA 408) the Court explained how one acquires a new domicile by choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to abandon the old domicile. In other words there must basically be animus manendi withanimus non revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such intention. Respondent's statements to the effect that she has always intended to return to Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice of residence. Respondent has not presented any evidence to show that her conduct, one year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her residence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District of Leyte "since childhood."

To further support the assertion that she could have not been a resident of the First District of Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she resided in the municipality of Tolosa for a period of six months. This may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the district for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte. 17 The Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new substantial matters having been raised therein to warrant re-examination of the resolution granting the petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the canvass show that she obtained the highest number of votes in the congressional elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that the proclamation of petitioner be suspended in the event that she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of petitioner's qualifications after the May 8, 1995 elections.

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a candidate's qualifications for election to the House of Representatives as required by

the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic  20 this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." 21 Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. 22 It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, 23 we laid this distinction quite clearly:

There is a difference between domicile and residence. "Residence" is used to indicate a place of abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous with domicile which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention." 25 Larena vs. Teves  26 reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. 28 So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the

Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, "and a resident thereof", that is, in the district for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. 29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical residence. 30

In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the framers of the 1987 Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having the same meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7) months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not and individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the space provided for the residency qualification requirement. The circumstances leading to her filing the questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in the space provided. These circumstances and events are amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a different interpretation. For instance, when herein petitioner announced that she would be registering in Tacloban City to make her eligible to run in the First District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close

look at said certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where a candidate seeks election thus:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TOBE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 — the first requiring actual residence and the second requiring domicile — coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in the First District if such fact were established by means more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not, have served these positions if she had not been a resident of Metro Manila," the COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes. In Larena vs. Teves, 33 supra, we stressed:

[T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his family in a municipality without having ever had the intention of abandoning it, and without having lived either alone or with his family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an elector in the other municipality in question and having been a candidate for various insular and provincial positions, stating every time that he is a resident of the latter municipality.

More significantly, in Faypon vs. Quirino, 34 We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of course includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from his professional or business activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi  to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment to the place of one's birth must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965, when her husband was elected President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her

parents. She grew up in Tacloban, reached her adulthood there and eventually established residence in different parts of the country for various reasons. Even during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her home province, instituting well-publicized projects for the benefit of her province and hometown, and establishing a political power base where her siblings and close relatives held positions of power either through the ballot or by appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are part of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not established only when her father brought his family back to Leyte contrary to private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing a new one; and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time. 38 In the case at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent  to supplant the former domicile with one of her own choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code concepts of "domicile" and "residence." 39 The presumption that the wife automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the

relation is one of fact while in domicile it is legal or juridical, independent of the necessity of physical presence. 40

Article 110 of the Civil Code provides:

Art. 110. — The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husband's choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe mutual respect and fidelity and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to particular matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision must be made from a consideration of the purpose and intent with which the word is used. Sometimes they are used synonymously, at other times they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. Residence is acquired by living in place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some otherplace. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has recognized certain situations 42 where the spouses could not be compelled to live with each other such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart from being allowed to opt for a new one). In De la Vina vs. Villareal  43 this Court held that "[a] married woman may acquire a residence or domicile separate from that of her husband during the existence of the marriage where the husband has given cause for divorce." 44 Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an event. In instances where the wife actually opts, .under the Civil Code, to live separately from her husband either by taking new residence or reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo45 the Court held that:

Upon examination of the authorities, we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible (sic) by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and he experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it, that court would make a mandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the

remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a preemptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged — by virtue of Article 110 of the Civil Code — to follow her husband's actual place of residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage was actual residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of women's rights in the intervening years by making the choice of domicile a product of mutual agreement between the spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and obligations of husband and wife — the term residence should only be interpreted to mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to choose a new one after her husband died, petitioner's acts following her

return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory, 49 "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would have clearly indicated it." 50 The difference between a mandatory and a directory provision is often made on grounds of necessity. Adopting the same view held by several American authorities, this court inMarcelino vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on grounds of expediency, the reason being that less injury results to the general public by disregarding than enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of thirty (30) days within which a decree may be entered without the consent of counsel, it was held that "the statutory provisions which may be thus departed from with impunity, without affecting the validity of statutory proceedings, are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature or some incident of the essential act." Thus, in said case, the statute under examination was construed merely to be directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having failed to reach a decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, 52 it is evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. 53 Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made on such a ground here. Surely, many established principles of law, even of election laws were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First District of Leyte.

SO ORDERED.

G.R. No. L-22041             May 19, 1966

MELECIO CLARINIO UJANO, petitioner and appellant, vs.REPUBLIC OF THE PHILIPPINES, oppositor and appellee.

Tagayuna, Arce and Tabaino for petitioner and appellant.Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor F. C. Zaballero and Solicitor Camilo D. Quiason for oppositor and appellee.

BAUTISTA ANGELO, J.:

Petitioner seeks to reacquire his Philippine citizenship in a petition filed before the Court of First Instance of Ilocos Sur.

Petitioner was born 66 years ago of Filipino parents in Magsingal Ilocos Sur. He is married to Maxima O. Ujano with whom he has one son, Prospero, who is now of legal age. He left the Philippines for the United States of America in 1927 where after a residence of more than 20 years he acquired American citizenship by naturalization. He returned to the Philippines on November 10, 1960 to which he was admitted merely for a temporary stay. He owns an agricultural land and a residential house situated in Magsingal, Ilocos Sur worth not less than P5,000.00. He receives a monthly pension of $115.00 from the Social Security Administration of the United States of America. He has no record of conviction and it is his intention to renounce his allegiance to the U.S.A. 1äwphï1.ñët

After hearing, the court a quo rendered decision denying the petition on the ground that petitioner did not have the residence required by law six months before he filed his petition for reacquisition of Philippine citizenship. Hence the present appeal.

The court a quo, in denying the petition, made the following comment: "One of the qualifications for reacquiring Philippine citizenship is that the applicant 'shall have resided in the Philippines at least six months before he applies for naturalization' [Section 3(1), Commonwealth Act No. 63]. This 'residence' requirement in cases of naturalization, has already been interpreted to mean the actual or constructive permanent home otherwise known as legal residence or domicile (Wilfredo Uytengsu vs. Republic of the Philippines, 95 Phil. 890). A place in a country or state where he lives and stays permanently, and to which he intends to return after a temporary absence, no matter how long, is his domicile. In other words domicile is characterized by animus manendi. So an alien who has been admitted into this country as a temporary visitor, either for business or pleasure, or for reasons of health, though actually present in this country cannot be said to have established his domicile here because the period of his stay is only temporary in nature and must leave when the purpose of his coming is accomplished. In the present case, petitioner, who is presently a citizen of the United States of America, was admitted into this country as a temporary visitor, a status he has maintained at the time of the filing of the present petition for reacquisition of Philippine citizenship and which continues up to the present. Such being the case, he has not complied with the specific requirement of law regarding six months residence before filing his present petition."

We can hardly add to the foregoing comment of the court a quo. We find it to be a correct interpretation [Section 3 (1) of Commonwealth Act No. 63] which requires that before a person may reacquire his Philippine citizenship he "shall have resided in the Philippines at least six months before he applies for naturalization." The word "residence" used therein imports not only an intention to reside in a fixed place but also personal presence coupled with conduct indicative of such intention (Yen vs. Republic, L-18885, January 31,1964; Nuval vs. Guray, 52 Phil. 645). Indeed, that term cannot refer to the presence in this country of a person who has been admitted only on the strength of a permit for temporary residence. In other words, the term residence used in said Act should have the same connotation as that used in Commonwealth Act No. 473, the Revised Naturalization Law, even if in approving the law permitting the reacquisition of Philippine citizenship our Congress has liberalized its requirement by foregoing the qualifications and special disqualifications prescribed therein. The only way by which petitioner can reacquire his lost Philippine citizenship is by securing a quota for permanent residence so that he may come within the purview of the residence requirement of Commonwealth Act No. 63.

Wherefore, the decision appealed from is affirmed. No costs.

G.R. No. 179851             April 18, 2008

MAYOR JOSE UGDORACION, JR., petitioner, vs.COMMISSION ON ELECTIONS and EPHRAIM M. TUNGOL, respondents.

D E C I S I O N

NACHURA, J.:

At bar is a petition for certiorari and prohibition under Rule 64 of the Rules of Court filed by petitioner Jose Ugdoracion, Jr., pursuant to Article IX-A, Section 7 of the Constitution, challenging the May 8, 2007 and September 28, 2007 Resolutions1 of the public respondent Commission on Elections (COMELEC) First Division and En Banc, respectively.

The facts:

Ugdoracion and private respondent, Ephraim Tungol, were rival mayoralty candidates in the Municipality of Albuquerque, Province of Bohol in the May 14, 2007 elections. Both filed their respective Certificates of Candidacy (COC).

On April 11, 2007, Tungol filed a Petition to Deny Due Course or Cancel the Certificate of Candidacy of Jose Ugdoracion, Jr., contending that Ugdoracion's declaration of eligibility for Mayor constituted material misrepresentation because Ugdoracion is actually a "green card" holder or a permanent resident of the United States of America (USA). Specifically, Ugdoracion stated in his COC that he had resided in Albuquerque, Bohol, Philippines for forty-one years before May 14, 2007 and he is not a permanent resident or an immigrant to a foreign country.

It appears that Ugdoracion became a permanent resident of the USA on September 26, 2001. Accordingly, the United States Immigration and Naturalization Services2 (USINS) issued him Alien Number 047-894-254.3

For his part, Ugdoracion argued that, in our jurisdiction, domicile is equivalent to residence, and he retained his domicile of origin (Albuquerque, Bohol) notwithstanding his ostensible acquisition of permanent residency in the USA. Ugdoracion then pointed to the following documents as proof of his substantial compliance with the residency requirement: (1) a residence certificate dated May 5, 2006; (2) an application for a new voter's registration dated October 12, 2006; and (3) a photocopy of Abandonment of Lawful Permanent Resident Status dated October 18, 2006.

On May 8, 2007, the COMELEC First Division promulgated one of the herein questioned resolutions canceling Ugdoracion's COC and removing his name from the certified list of candidates for the position of Mayor of Albuquerque, Bohol. Posthaste, on May 11, 2007, Ugdoracion filed a motion for reconsideration of the aforesaid resolution arguing in the main that his status as a "green card" holder was not of his own making but a mere offshoot of a petition filed by his sister. He admitted his intermittent travels to the USA, but only to visit his siblings, and short working stint thereat to cover his subsistence for the duration of his stay.

In yet another setback, the COMELEC En Banc issued the other questioned resolution denying Ugdoracion's motion for reconsideration and affirming the First Division's finding of material misrepresentation in Ugdoracion's COC.

Hence, this petition imputing grave abuse of discretion to the COMELEC. Subsequently, Tungol and the COMELEC filed their respective Comments4 on the petition. On March 7, 2008, Ugdoracion filed an Extremely Urgent Motion to Reiterate Issuance of an Injunctive Writ.5 On March 11, 2008, we issued a Status Quo Order. The next day, March 12, 2008, Ugdoracion filed a Consolidated Reply to respondents' Comments.

Ugdoracion's argument focuses on his supposed involuntary acquisition of a permanent resident status in the USA which, as he insists, did not result in the loss of his domicile of origin. He bolsters this contention with the following facts:

1. He was born in Albuquerque, Bohol, on October 15, 1940 and as such, is a natural-born Filipino citizen;

2. He was baptized in the Catholic Church of Sta. Monica Paris in Albuquerque, Bohol on February 2, 1941;

3. He was raised in said municipality;

4. He grew up in said municipality;

5. He raised his own family and established a family home thereat;

6. He served his community for twelve (12) years and had been the former Mayor for three (3) terms;

7. From 1986 to 1988, he was appointed as Officer-in-Charge;

8. He ran for the same position in 1988 and won;

9. He continued his public service as Mayor until his last term in the year 1998;

10. After his term as Mayor, he served his people again as Councilor;

11. He built his house at the very place where his ancestral home was situated;

12. He still acquired several real properties at the same place;

13. He never lost contact with the people of his town; and

14. He secured a residence certificate on May 5, 2006 at Western Poblacion, Albuquerque, Bohol and faithfully paid real property taxes.6

The sole issue for our resolution is whether the COMELEC committed grave abuse of discretion in canceling Ugdoracion's COC for material misrepresentation. Essentially, the issue hinges on whether the representations contained in Ugdoracion's COC, specifically, that he complied with the residency requirement and that he does not have "green card" holder status, are false.

We find no grave abuse of discretion in the COMELEC's cancellation of Ugdoracion's COC for material misrepresentation. Accordingly, the petition must fail.

Section 74, in relation to Section 78 of the Omnibus Election Code, in unmistakable terms, requires that the facts stated in the COC must be true, and any false representation therein of a material fact shall be a ground for cancellation thereof, thus:

SEC. 74. Contents of certificate of candidacy. - The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

x x x x

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing not later than fifteen days before the election.

The false representation contemplated by Section 78 of the Code pertains to material fact, and is not simply an innocuous mistake. A material fact refers to a candidate's qualification for elective office such as one's citizenship and residence.7 Our holding in Salcedo II v. COMELEC8 reiterated in Lluz v. COMELEC9 is instructive, thus:

In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to deny due course to or cancel such certificate upon the filing of a petition by any person pursuant to Section 78. x x x

x x x x

As stated in the law, in order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the false representation mentioned therein pertain[s] to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate- the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a "material representation," the court has interpreted this phrase in a line of decisions applying Section 78 of [B.P. 881].

x x x x

Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refer[s] to qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of having made a false representation in [the] certificate of candidacy are grave-to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws. It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon just any innocuous mistake.

x x x x

Aside from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made with an intention to deceive the electorate as to one's qualifications for public office.

Viewed in this light, the question posed by Ugdoracion is hardly a novel one.

Ugdoracion urges us, however, that he did not lose his domicile of origin because his acquisition of a "green card" was brought about merely by his sister's petition. He maintains that, except for this unfortunate detail, all other facts demonstrate his retention of residence in Albuquerque, Bohol.

Believing in the truth of these circumstances, he simply echoed in his COC a truthful statement that he is a resident of Albuquerque, Bohol, and, therefore, eligible and qualified to run for Mayor thereof.

We are not convinced. Ugdoracion's assertions miss the mark completely. The dust had long settled over the implications of a "green card" holder status on an elective official's qualification for public office. We ruled in Caasi v. Court of Appeals10 that a Filipino citizen's acquisition of a permanent resident status abroad constitutes an abandonment of his domicile and residence in the Philippines. In short, the "green card" status in the USA is a renunciation of one's status as a resident of the Philippines.11

We agree with Ugdoracion that residence, in contemplation of election laws, is synonymous to domicile. Domicile is the place where one actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return (animus revertendi) and remain (animus manendi).12 It consists not only in the intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention.13

Domicile is classified into (1) domicile of origin, which is acquired by every person at birth; (2) domicile of choice, which is acquired upon abandonment of the domicile of origin; and (3) domicile by operation of law, which the law attributes to a person independently of his residence or intention.

In a controversy such as the one at bench, given the parties' naturally conflicting perspectives on domicile, we are guided by three basic rules, namely: (1) a man must have a residence or domicile somewhere; (2) domicile, once established, remains until a new one is validly acquired; and (3) a man can have but one residence or domicile at any given time.14

The general rule is that the domicile of origin is not easily lost; it is lost only when there is an actual removal or change of domicile, a bona fide intention of abandoning the former residence and establishing a new one, and acts which correspond with such purpose.15 In the instant case, however, Ugdoracion's acquisition of a lawful permanent resident status in the United States amounted to an abandonment and renunciation of his status as a resident of the Philippines; it constituted a change from his domicile of origin, which was Albuquerque, Bohol, to a new domicile of choice, which is the USA.

The contention that Ugdoracion's USA resident status was acquired involuntarily, as it was simply the result of his sister's beneficence, does not persuade. Although immigration to the USA through a petition filed by a family member (sponsor) is allowed by USA immigration laws,16 the petitioned party is very much free to accept or reject the grant of resident status. Permanent residency in the USA is not conferred upon the unwilling; unlike citizenship, it is not bestowed by operation of law.17 And to reiterate, a person can have only one residence or domicile at any given time.

Moreover, Ugdoracion's contention is decimated by Section 6818 of the Omnibus Election Code and Section 40(f)19 of the Local Government Code, which disqualifies a permanent resident of, or an immigrant to, a foreign country, unless said person waives his status. Corollary thereto, we are in complete accord with the COMELEC's ruling on the validity and effect of the waiver of permanent resident status supposedly executed by Ugdoracion, to wit:

Following the Caasi case, in order to reacquire residency in the Philippines, there must be a waiver of status as a greencard holder as manifested by some acts or acts independent of and prior to the filing of the certificate of candidacy. In the case at bar, [Ugdoracion] presented a photocopy of a document entitledAbandonment of Lawful Permanent Resident Status dated October 18, 2006. A close scrutiny of this document however discloses that it is a mere application for abandonment of his status as lawful permanent resident of the USA. It

does not bear any note of approval by the concerned US official. Thus, [w]e cannot consider the same as sufficient waiver of [Ugdoracion's] status of permanent residency in the USA. Besides, it is a mere photocopy, unauthenticated and uncertified by the legal custodian of such document.

Assuming arguendo that said application was duly approved, [Ugdoracion] is still disqualified for he failed to meet the one-year residency requirement. [Ugdoracion] has applied for abandonment of residence only on 18 October 2006 or for just about seven (7) months prior to the May 14, 2007 elections, which clearly fall short of the required period.

The Permanent Resident Card or the so-called "greencard" issued by the US government to respondent does not merely signify transitory stay in the USA for purpose of work, pleasure, business or study but to live there permanently. This is the reason why the law considers immigrants to have lost their residency in the Philippines.20

Concededly, a candidate's disqualification to run for public office does not necessarily constitute material misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact (eligibility and qualifications for elective office), but should evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must be made with an intention to deceive the electorate as to one's qualifications to run for public office.21

Ugdoracion claims that he did not misrepresent his eligibility for the public office of Mayor. He categorically declares that he merely stated in his COC that he is a resident of the Philippines and in possession of all the qualifications and suffers from none of the disqualifications prescribed by law. Unfortunately for Ugdoracion, Section 74 specifically requires a statement in the COC that the candidate is "not a permanent resident or an immigrant to a foreign country." Ugdoracion's cause is further lost because of the explicit pronouncement in his COC that he had resided in Albuquerque, Bohol, Philippines before the May 14, 2007 elections for forty-one (41) years.22 Ineluctably, even if Ugdoracion might have been of the mistaken belief that he remained a resident of the Philippines, he hid the fact of his immigration to the USA and his status as a "green card" holder.

Finally, we are not unmindful of the fact that Ugdoracion appears to have won the election as Mayor of Albuquerque, Bohol. Sadly, winning the election does not substitute for the specific requirements of law on a person's eligibility for public office which he lacked, and does not cure his material misrepresentation which is a valid ground for the cancellation of his COC.

WHEREFORE, premises considered, the petition is hereby DENIED. The COMELEC Resolutions dated May 8, 2007 and September 28, 2007 are AFFIRMED. The STATUS QUO Order issued on March 11, 2008 is herebyLIFTED.

SO ORDERED.

G.R. No. L-43314         December 19, 1935

A.L. VELILLA, administrator of the estate of Arthur Graydon Moody, plaintiff -appellant, vs.JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellee.

Ohnick and Opisso for appellant.Office of the Solicitor-General Hilado for appellee.

 

BUTTE, J.:

This is an appeal from a judgment of the Court of First Instant of manila in an action to recover from the defendant-appellee as Collector of Internal Revenue the sum of P77,018.39 as inheritance taxes and P13,001.41 as income taxes assessed against the estate of Arthur G. Moody, deceased.

The parties submitted to the court an agreed statement of facts as follows:

I. That Arthur Graydon Moody died in Calcutta, India, on February 18, 1931.

II. That Arthur Graydon Moody executed in the Philippine Islands a will, certified copy of which marked Exhibit AA is hereto attached and made a part hereof, by virtue of which will, he bequeathed all his property to his only sister, Ida M. Palmer, who then was and still is a citizen and resident of the State of New York, United States of America.

III. That on February 24,1931, a petition for appointment of special administrator of the estate of the deceased Arthur Graydon Moody was filed by W. Maxwell Thebaut with the Court of First Instance of Manila, the same being designated as case No. 39113 of said court. Copy of said petition marked Exhibit BB is hereto attached and made a part hereof.

IV. That subsequently or on April 10, 1931, a petition will of the deceased Arthur Graydon Moody, and the same was, after hearing, duly probated by the court in a decree dated May 5, 1931. Copies of the petition and of the decree marked Exhibits CC and DD, respectively, are hereto attached and made parts hereof.

V. That on July 14, 1931, Ida M. Palmer was declared to be the sole and only heiress of the deceased Arthur Graydon Moody by virtue of an order issued by the court in said case No. 39113, copy of which marked Exhibit EE is hereto attached and made a part hereof; and that during the hearing for the declaration of heirs, Ida M. Palmer presented as evidence a letter dated February 28, 1925, and addressed to her by Arthur Graydon Moody, copy of which marked Exhibit FF hereto attached and made part hereof.

VI. That the property left by the late Arthur Graydon Moody consisted principally of bonds and shares of stock of corporations organized under the laws of the Philippine Islands, bank deposits and other personal properties, as are more fully shown in the inventory of April 17, 1931, filed by the special administrator with the court in said case No. 39113, certified copy of which inventory marked Exhibit GG is hereto attached and made a part hereof. This stipulation does not, however, cover the respective values of said properties for the purpose of the inheritance tax.

VII. That on July 22, 1931, the Bureau of Internal Revenue prepared for the estate of the late Arthur Graydon Moody an inheritance tax return, certified copy of which marked Exhibit HH is hereto attached and made a part, hereof.

VIII. That on September 9, 1931, an income tax return for the fractional period from January 1, 1931 to June 30, 1931, certified copy of which marked Exhibit 11 is hereto attached and

made a part hereof, was also prepared by the Bureau of Internal Revenue for the estate of the said deceased Arthur Graydon Moody. 1awphil.net

IX. That on December 3, 1931, the committee on claims and appraisals filed with the court its report, certified copy of which marked Exhibit KK is hereto attached and made a part hereof.

X. That on September 15, 1931, the Bureau of Internal Revenue addressed to the attorney for the administratrix Ida M. Palmer a letter, copy of which marked Exhibit LL is hereto attached and made a part hereof.

XI. That on October 15, 1931, the attorney for Ida M. Palmer answered the letter of the Collector of Internal Revenue referred to in the preceding paragraph. Said answer marked Exhibit MM is hereto attached and made a part hereof.

XII. That on November 4, 1931, and in answer to the letter mentioned in the preceding paragraph, the Bureau of Internal Revenue addressed to the attorney for Ida M. Palmer another letter, copy of which marked Exhibit NN is hereto attached and made a part hereof.

XIII. That on December 7, 1931, the attorney for Ida M. Palmer again replied in a letter, marked Exhibit OO, hereto attached and made a part hereof.

XIV. That the estate of the late Arthur Graydon Moody paid under protest the sum of P50,000 on July 22, 1931, and the other sum of P40,019.75 on January 19, 1932, making assessment for inheritance tax and the sum of P13,001.41 covers the assessment for income tax against said estate.

XV. That on January 21, 1932, the Collector of Internal Revenue overruled the protest made by Ida M. Palmer through her attorney.

XVI. The parties reserve their right to introduce additional evidence at the hearing of the present case.

Manila, August 15, 1933.

In addition to the foregoing agreed statement of facts, both parties introduced oral and documentary evidence from which it appears that Arthur G. Moody, an American citizen, came to the Philippine Islands in 1902 or 1903 and engaged actively in business in these Islands up to the time of his death in Calcutta, India, on February 18, 1931. He had no business elsewhere and at the time of his death left an estate consisting principally of bonds and shares of stock of corporations organized under the laws of the Philippine Islands, bank deposits and other intangibles and personal property valued by the commissioners of appraisal and claims at P609,767.58 and by the Collector of Internal Revenue for the purposes of inheritance tax at P653,657.47. All of said property at the time of his death was located and had its situs within the Philippine Islands. So far as this record shows, he left no property of any kind located anywhere else. In his will, Exhibit AA, executed without date in Manila in accordance with the formalities of the Philippine law, in which he bequeathed all his property to his sister, Ida M. Palmer, he stated:

I, Arthur G. Moody, a citizen of the United States of America, residing in the Philippine Islands, hereby publish and declare the following as my last Will and Testament . . ..

The substance of the plaintiff's cause of action is stated in paragraph 7 of his complaint as follows:

That there is no valid law or regulation of the Government of the Philippine Islands under or by virtue of which any inheritance tax may be levied, assessed or collected upon transfer, by death and succession, of intangible personal properties of a person not domiciled in the Philippine Islands, and the levy and collection by defendant of inheritance tax computed upon the value of said stocks, bonds, credits and other intangible properties as aforesaid constituted and constitutes the taking and deprivation of property without due process of law contrary to the Bill of Rights and organic law of the Philippine Islands.

Section 1536 of the Revised Administrative Code (as amended) provides as follows:

SEC. 1536. Conditions and rate of taxation. — Every transmission by virtue of inheritance, devise, bequest, gift mortis causa or advance in anticipation of inheritance. devise, or bequest of real property located in the Philippine Islands and real rights in such property; of any franchise which must be exercised in the Philippine Islands, of any shares, obligations, or bonds issued by any corporation or sociedad anonimaorganized or constituted in the Philippine Islands in accordance with its laws; of any shares or rights in any partnership, business or any personal property located in the Philippine Islands shall be subject to the following tax:

x x x           x x x          x x x

It is alleged in the complaint that at the time of his death, Arthur G. Moody was a "non-resident of the Philippine Islands". The answer, besides the general denial, sets up as a special defense "Arthur G. Moody, now deceased, was and prior to the date of his death, a resident in the City of Manila, Philippine Islands, where he was engaged actively in business." Issue was thus joined on the question: Where was the legal domicile of Arthur G. Moody at the time of his death?

The Solicitor-General raises a preliminary objection to the consideration of any evidence that Moody's domicile was elsewhere than in Manila at the time of his death based on the proposition that as no such objection was made before the Collector of Internal Revenue as one of the grounds of the protest against the payment of the tax, this objection cannot be considered in a suit against the Collector to recover the taxes paid under protest. He relies upon the decision in the case of W.C. Tucker vs. A.C. Alexander, Collector (15 Fed. [21, 356). We call attention, however, to the fact that this decision was reversed in 275 U.S., 232; 72 Law. ed., 256, and the case remanded for trial on the merits on the ground that the requirement that the action shall be based upon the same grounds, and only such, as were presented in the protest had been waived by the collector. In the case before us no copy of the taxpayer's protest is included in the record and we have no means of knowing its contents. We think, therefore, the preliminary objection made on behalf of the appellee does not lie.

We proceed, therefore, to the consideration of the question on the merits as to whether Arthur G. Moody was legally domiciled in the Philippine Islands on the day of his death. Moody was never married and there is no doubt that he had his legal domicile in the Philippine Islands from 1902 or 1903 forward during which time he accumulated a fortune from his business in the Philippine Islands He lived in the Elks' Club in Manila for many years and was living there up to the date he left Manila the latter part of February, 1928, under the following circumstances: He was afflicted with leprosy in an advanced stage and been informed by Dr. Wade that he would be reported to the Philippine authorities for confinement in the Culion Leper Colony as required by the law. Distressed at the thought of being thus segregated and in violation of his promise to Dr. Wade that he would voluntarily go to Culion, he surreptitiously left the Islands the latter part of February, 1928, under cover of night, on a freighter, without ticket, passport or tax clearance certificate. The record does not show where Moody was during the remainder of the year 1928. He lived with a friend in Paris, France, during the months of March and April of the year 1929 where he was receiving treatment for

leprosy at the Pasteur Institute. The record does not show where Moody was in the interval between April, 1929, and November 26, 1930, on which latter date he wrote a letter, Exhibit B, to Harry Wendt of Manila, offering to sell him mis interest in the Camera Supply Company, a Philippine corporation, in which Moody owned 599 out of 603 shares. In this letter, among other things, he states: "Certainly I'll never return there to live or enter business again." In this same letter he says:

I wish to know as soon as now (as to the purchase) for I have very recently decided either to sell or put in a line of school or office supplies ... before I go to the necessary investments placing any side lines, I concluded to get your definite reply to this ... I have given our New York buying agent a conditional order not to be executed until March and this will give you plenty of time ... anything that kills a business is to have it peddled around as being for sale and this is what I wish to avoid. He wrote letters dated December 12, 1930, and January 3, 1931, along the same line to Wendt. As Moody died of leprosy less than two months after these letters were written, there can be no doubt that he would have been immediately segregated in the Culion Leper Colony had he returned to the Philippine Islands. He was, therefore, a fugitive, not from justice, but from confinement in the Culion Leper Colony in accordance with the law of the Philippine Islands.

There is no statement of Moody, oral or written, in the record that he had adopted a new domicile while he was absent from Manila. Though he was physically present for some months in Calcutta prior to the date of his death there, the appellant does not claim that Moody had a domicile there although it was precisely from Calcutta that he wrote and cabled that he wished to sell his business in Manila and that he had no intention to live there again. Much less plausible, it seems to us, is the claim that he established a legal domicile in Paris in February, 1929. The record contains no writing whatever of Moody from Paris. There is no evidence as to where in Paris he had any fixed abode that he intended to be his permanent home. There is no evidence that he acquired any property in Paris or engaged in any settled business on his own account there. There is no evidence of any affirmative factors that prove the establishment of a legal domicile there. The negative evidence that he told Cooley that he did not intend to return to Manila does not prove that he had established a domicile in Paris. His short stay of three months in Paris is entirely consistent with the view that he was a transient in Paris for the purpose of receiving treatments at the Pasteur Institute. The evidence in the record indicates clearly that Moody's continued absence from his legal domicile in the Philippines was due to and reasonably accounted for by the same motive that caused his surreptitious departure, namely, to evade confinement in the Cullion Leper Colony for he doubtless knew that on his return he would be immediately confined, because his affliction became graver to us while he was absent than it was on the day of his precipitous departure and he could not conceal himself in the Philippines where he was well known, as he might do in foreign parts.

Our Civil Code (art. 40) defines the domicile of natural persons as "the place of their usual residence". The record before us leaves no doubt in our minds that the "usual residence" of this unfortunate man, whom appellant describes as a "fugitive" and "outcast", was in Manila where he had lived and toiled for more than a quarter of a century, rather than in any foreign country he visited during his wanderings up to the date of his death in Calcutta. To effect the abandonment of one's domicile, there must be a deliberate and provable choice of a new domicile, coupled with actual residence in the place chosen, with a declared or provable intent that it should be one's fixed and permanent place of abode, one's home. There is a complete dearth of evidence in the record that Moody ever established a new domicile in a foreign country.

The contention under the appellant's third assignment of error that the defendant collector illegally assessed an income tax of P13,001.41 against the Moody estate is, in our opinion, untenable. The grounds for this assessment, stated by the Collector of Internal Revenue in his letter, Exhibit NN, appear to us to be sound. That the amount of P59,986.69 was received by the estate of Moody as dividends declared out of surplus by the Camera Supply Company is clearly established by the

evidence. The appellant contends that this assessment in taxation: First, because the corporation paid income tax on the same amount during the years it was accumulated as surplus; second, that an inheritance tax on the same amount was assessed against the estate, and third, the same amount is assessed as income of the estate. As to the first, it appears from the collector's assessment, Exhibit 11, to the collector allowed the estate a deduction of the normal income tax on said amount because it had already been paid at the source by the Camera Supply Company. The only income tax assessed against the estate was the additional tax or surtax that had not been paid by the Camera Supply Company for which the estate, having actually received the income, is clearly liable. As to the second alleged double taxation, it is clear that the inheritance tax and the additional income tax in question are entirely distinct. They are assessed under different statutes and we are not convinced by the appellant's argument that the estate which received these dividends should not be held liable for the payment of the income tax thereon because the operation was simply the conversion of the surplus of the corporation into the property of the individual stockholders. (Cf. U.S. vs.Phellis, 257 U.S., 171, and Taft vs. Bowers, 278 U.S., 460.) Section 4 of Act No. 2833 as amended, which is relied on by the appellant, plainly provides that the income from exempt property shall be included as income subject to tax.

Finding no merit in any of the assignments of error of the appellant, we affirm the judgment of the trial court, first, because the property in the estate of Arthur G. Moody at the time of his death was located and had its situs within the Philippine Islands and, second, because his legal domicile up to the time of his death was within the Philippine Islands. Costs against the appellant.

G.R. No. 180088               January 19, 2009

MANUEL B. JAPZON, Petitioner, vs.COMMISSION ON ELECTIONS and JAIME S. TY, Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rules 641 and 652 of the Revised Rules of Court seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division of public respondent Commission on Elections (COMELEC) and the Resolution4 dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for having been rendered with grave abuse of discretion, amounting to lack or excess of jurisdiction.

Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, in the local elections held on 14 May 2007.

On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a Petition5 to disqualify and/or cancel Ty’s Certificate of Candidacy on the ground of material misrepresentation. Japzon averred in his Petition that Ty was a former natural-born Filipino, having been born on 9 October 1943 in what was then Pambujan Sur, Hernani Eastern Samar (now the Municipality of General Macarthur, Easter Samar) to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty eventually migrated to the United States of America (USA) and became a citizen thereof. Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of Candidacy on 28 March 2007, he falsely represented therein that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for one year before 14 May 2007, and was not a permanent resident or immigrant of any foreign country. While Ty may have applied for the

reacquisition of his Philippine citizenship, he never actually resided in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period of one year immediately preceding the date of election as required under Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991. In fact, even after filing his application for reacquisition of his Philippine citizenship, Ty continued to make trips to the USA, the most recent of which was on 31 October 2006 lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to the Republic of the Philippines, he continued to comport himself as an American citizen as proven by his travel records. He had also failed to renounce his foreign citizenship as required by Republic Act No. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related laws. Hence, Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from running for public office and the cancellation of the latter’s Certificate of Candidacy.

In his Answer6 to Japzon’s Petition in SPA No. 07-568, Ty admitted that he was a natural-born Filipino who went to the USA to work and subsequently became a naturalized American citizen. Ty claimed, however, that prior to filing his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he already performed the following acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to natural-born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty executed an Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA; (3) Ty applied for a Philippine passport indicating in his application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Ty’s application was approved and he was issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured and signed his Community Tax Certificate (CTC) from the Municipality of General Macarthur, in which he stated that his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January 2007 again stating therein his address as Barangay 6, Poblacion, General Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of Foreign Citizenship. Given the aforementioned facts, Ty argued that he had reacquired his Philippine citizenship and renounced his American citizenship, and he had been a resident of the Municipality of General Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty sought the dismissal of Japzon’s Petition in SPA No. 07-568.

Pending the submission by the parties of their respective Position Papers in SPA No. 07-568, the 14 May 2007 elections were already held. Ty acquired the highest number of votes and was declared Mayor of the Municipality of General Macarthur, Eastern Samar, by the Municipal Board of Canvassers on 15 May 2007.7

Following the submission of the Position Papers of both parties, the COMELEC First Division rendered its Resolution8 dated 31 July 2007 in favor of Ty.

The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:

Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.]

9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as commissioned or non-commissioned officer in the armed forces in the country of which he was naturalized citizen.9

The COMELEC First Division also held that Ty did not commit material misrepresentation in stating in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year before the elections on 14 May 2007. It reasoned that:

Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for at least one (1) year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.]

As held in Coquilla vs. Comelec:

"The term ‘residence’ is to be understood not in its common acceptation as referring to ‘dwelling’ or ‘habitation,’ but rather to ‘domicile’ or legal residence, that is, ‘the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi).’ A domicile of origin is acquired by every person at birth. It is usually the place where the child’s parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).

In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien.

Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, §1427(a) of the United States Code provides:

Requirements of naturalization: Residence

(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) year immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States. (Emphasis added)

In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a ‘greencard,’ which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines.

Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on

October 26, 2005; and secured a community tax certificate from the Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14, 2007.10 (Emphasis ours.)

The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus, reads:

WHEREFORE, premises considered, the petition is DENIED for lack of merit.11

Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First Division. On 28 September 2007, the COMELEC en banc issued its Resolution12 denying Japzon’s Motion for Reconsideration and affirming the assailed Resolution of the COMELEC First Division, on the basis of the following ratiocination:

We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate for any local post.

x x x x

It must be noted that absent any showing of irregularity that overturns the prevailing status of a citizen, the presumption of regularity remains. Citizenship is an important aspect of every individual’s constitutionally granted rights and privileges. This is essential in determining whether one has the right to exercise pre-determined political rights such as the right to vote or the right to be elected to office and as such rights spring from citizenship.

Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in which he resides; that citizenship once granted is presumably retained unless voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to establish the fact.

Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues. The arguments made therein have already been dissected and expounded upon extensively by the first Division of the Commission, and there appears to be no reason to depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy would be when there was material misrepresentation meant to mislead the electorate as to the qualifications of the candidate. There was none in this case, thus there is not enough reason to deny due course to the Certificate of Candidacy of Respondent James S. Ty.13

Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the instant Petition for Certiorari, relying on the following grounds:

A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND RESIDENCE.14

B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,

WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TY’S] CERTIFICATE OF CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.15

Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of origin. Ty did not establish his residence in the Municipality of General Macarthur, Eastern Samar, Philippines, just because he reacquired his Philippine citizenship. The burden falls upon Ty to prove that he established a new domicile of choice in General Macarthur, Eastern Samar, a burden which he failed to discharge. Ty did not become a resident of General Macarthur, Eastern Samar, by merely executing the Oath of Allegiance under Republic Act No. 9225.

Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for running as a mayoralty candidate in the 14 May 2007 local elections. The one-year residency requirement for those running for public office cannot be waived or liberally applied in favor of dual citizens. Consequently, Japzon believes he was the only remaining candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local elections.

Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First Division and en banc, respectively; to issue a new resolution denying due course to or canceling Ty’s Certificate of Candidacy; and to declare Japzon as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar.

As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC already found sufficient evidence to prove that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The Court cannot evaluate again the very same pieces of evidence without violating the well-entrenched rule that findings of fact of the COMELEC are binding on the Court. Ty disputes Japzon’s assertion that the COMELEC committed grave abuse of discretion in rendering the assailed Resolutions, and avers that the said Resolutions were based on the evidence presented by the parties and consistent with prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified from running in the local elections, Japzon as the second placer in the same elections cannot take his place.

The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the one-year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14 May 2007 local elections. The OSG opines that Ty was unable to prove that he intended to remain in the Philippines for good and ultimately make it his new domicile. Nonetheless, the OSG still prays for the dismissal of the instant Petition considering that Japzon, gathering only the second highest number of votes in the local elections, cannot be declared the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said position. And since it took a position adverse to that of the COMELEC, the OSG prays from this Court to allow the COMELEC to file its own Comment on Japzon’s Petition. The Court, however, no longer acted on this particular prayer of the COMELEC, and with the submission of the Memoranda by Japzon, Ty, and the OSG, it already submitted the case for decision.

The Court finds no merit in the Petition at bar.

There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking

his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen again.

It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen.

Residency in the Philippines only becomes relevant when the natural-born Filipino with dual citizenship decides to run for public office.

Section 5(2) of Republic Act No. 9225 reads:

SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

x x x x

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.

Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the qualifications for holding such public office as required by the Constitution and existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships before any public officer authorized to administer an oath.

That Ty complied with the second requirement is beyond question. On 19 March 2007, he personally executed a Renunciation of Foreign Citizenship before a notary public. By the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively renounced his American citizenship, keeping solely his Philippine citizenship.

The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications required by the Constitution and existing laws.

Article X, Section 3 of the Constitution left it to Congress to enact a local government code which shall provide, among other things, for the qualifications, election, appointment and removal, term,

salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local Government Code of 1991, Section 39 of which lays down the following qualifications for local elective officials:

SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

x x x x

(c) Candidates for the position of mayor or vice mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.

The challenge against Ty’s qualification to run as a candidate for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet the one-year residency requirement in the said municipality.

The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi)."18

A domicile of origin is acquired by every person at birth. It is usually the place where the child’s parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In Coquilla,19 the Court already acknowledged that for an individual to acquire American citizenship, he must establish residence in the USA. Since Ty himself admitted that he became a naturalized American citizen, then he must have necessarily abandoned the Municipality of General Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the USA, as his domicile of choice.

As has already been previously discussed by this Court herein, Ty’s reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The length of his residence therein shall be determined from the time he made it his domicile of choice, and it shall not retroact to the time of his birth.

How then could it be established that Ty indeed established a new domicile in the Municipality of General Macarthur, Eastern Samar, Philippines?

In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the different principles and concepts in jurisprudence relating to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below:

Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an "intention to return" to the place where he seeks to be elected. Corollary to this is a determination whether there has been an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondent’s immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under §68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to return," stating that his absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi.

In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a person’s legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are synonymous. The term "residence," as used in the election law, imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez established his residence during the early 1980’s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA People’s Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of

residence must be voluntary; and the residence at the place chosen for the new domicile must be actual.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the decisive factor in determining whether or not an individual has satisfied the residency qualification requirement.

As espoused by Ty, the issue of whether he complied with the one-year residency requirement for running for public office is a question of fact. Its determination requires the Court to review, examine and evaluate or weigh the probative value of the evidence presented by the parties before the COMELEC.

The COMELEC, taking into consideration the very same pieces of evidence presently before this Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that factual findings of administrative agencies, such as the COMELEC, which have acquired expertise in their field are binding and conclusive on the Court. An application for certiorari against actions of the COMELEC is confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process, considering that the COMELEC is presumed to be most competent in matters falling within its domain.21

The Court even went further to say that the rule that factual findings of administrative bodies will not be disturbed by courts of justice, except when there is absolutely no evidence or no substantial evidence in support of such findings, should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC—created and explicitly made independent by the Constitution itself—on a level higher than statutory administrative organs. The factual finding of the COMELEC en banc is therefore binding on the Court.22

The findings of facts of quasi-judicial agencies which have acquired expertise in the specific matters entrusted to their jurisdiction are accorded by this Court not only respect but even finality if they are supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court provides that in cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.23

The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First Division and en banc, respectively, were both supported by substantial evidence and are, thus, binding and conclusive upon this Court.

Ty’s intent to establish a new domicile of choice in the Municipality of General Macarthur, Eastern Samar, Philippines, became apparent when, immediately after reacquiring his Philippine citizenship on 2 October 2005, he applied for a Philippine passport indicating in his application that his residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying community tax and securing CTCs from the said municipality stating therein his address as A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for and was registered as a voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar.

In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior to the 14 May 2007 local elections. Japzon maintains that Ty’s trips abroad during said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January 2007), indicate that Ty had no intention to permanently reside in the Municipality of General Macarthur, Eastern Samar, Philippines. The COMELEC First Division and en banc, as well as this Court, however, view these trips differently. The fact that Ty did come back to the Municipality of General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation of his animus manendi and animus revertendi.

There is no basis for this Court to require Ty to stay in and never leave at all the Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local elections so that he could be considered a resident thereof. To the contrary, the Court has previously ruled that absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence.24 The Court also notes, that even with his trips to other countries, Ty was actually present in the Municipality of General Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the 14 May 2007 local elections. Even if length of actual stay in a place is not necessarily determinative of the fact of residence therein, it does strongly support and is only consistent with Ty’s avowed intent in the instant case to establish residence/domicile in the Municipality of General Macarthur, Eastern Samar.

Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement, so Ty could run as a mayoralty candidate in the 14 May 2007 elections. In Aquino v. COMELEC,25 the Court did not find anything wrong in an individual changing residences so he could run for an elective post, for as long as he is able to prove with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law. As this Court already found in the present case, Ty has proven by substantial evidence that he had established residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office of the Mayor and in which he garnered the most number of votes.

Finally, when the evidence of the alleged lack of residence qualification of a candidate for an elective position is weak or inconclusive and it clearly appears that the purpose of the law would not be thwarted by upholding the victor’s right to the office, the will of the electorate should be respected. For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters.26 To successfully challenge Ty’s disqualification, Japzon must clearly demonstrate that Ty’s ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines.

WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.

SO ORDERED.

G.R. No. L-15080             April 25, 1962

IN THE MATTER OF THE ADOPTION OF THE MINOR NORMA LEE CABER, RICARDO R. CARABALLO,petitioner-appellee, 

vs.REPUBLIC OF THE PHILIPPINES, opponent-appellant.

Clemente N. Dayrit for petitioner-appellee.Office of the Solicitor General for opponent-appellant.

PADILLA, J.:

In a verified petition filed on 26 September 1958 in the Court of First Instance of Pampanga, Ricardo R. Caraballo, an American citizen enlisted in the United States Air Force as staff sergeant detailed in Clark Field, Angeles, Pampanga, where he and his wife Graciela G. Caraballo live, alleges that he and his wife have no legitimate, legitimated, acknowledged natural children, natural children by legal fiction or any other descendant; that with his wife's written consent (Exhibit C) he desires to adopt as his child Norma Lee Caber, a five-day old natural daughter of Mercedes J. Caber begotten by an unknown father, who gave her consent to the adoption in a sworn statement (Exhibit B); that since the day following her birth Norma Lee Caber has been reared and cared for by him and his wife who have developed love and affection for her; that he never has been convicted of any crime involving moral turpitude; that financially and morally he is able to support, bring up and educate the child; and prays that after notice, publication and hearing Norma Lee Caber be declared his child for all intents and purposes, free from any obligation of obedience and maintenance with respect to her natural mother Mercedes J. Caber (Sp. Proc. No. 1391).

On 26 September 1958 the Court ordered the verified petition filed by Ricardo R. Caraballo to be published and was published in the Daily Mirror once a week for three consecutive weeks setting the petition for hearing on 18 October 1958 (Exhibit A). As at the hearing nobody appeared to object to the petition for adoption, petitioner's counsel prayed for an order of default, which was entered against all interested parties, except the Solicitor General or Provincial Fiscal who, according to the Court must appear in adoption cases.

On 27 October 1958 the Provincial and Assistant Provincial Fiscal of Pampanga moved for the dismissal of the petition for adoption on the ground that it states no cause of action and that the petitioner, being a non-resident alien, is not qualified to adopt.

On 28 October 1958 the Court granted the petitioner ten days within which to file an answer to the motion to dismiss and submit a memorandum of authorities, and the fiscal the same number of days to reply.

On 3 November 1958 the petitioner filed an answer or objection to the motion to dismiss, to which on 14 November the Provincial Fiscal replied.

On 17 November 1958 the Court denied the motion to dismiss.

On 12 December 1958 the petitioner moved that the case be set for hearing. On 15 December 1958 the Court set the petition for hearing on 22 December 1958 at 9:00 o'clock in the morning.

After hearing, the Court found the following:

... Petitioner is 32 years old while the child sought to be adopted is three months old, having been born on September 20, 1958 (Exhibit E). The petitioner has been residing at Clark Air Base for the last 25 months. He has had the child, Norma Lee Caber, in his household as a daughter since the day following that of her birth and has developed a fondness for her and

intends to bring her up and educate her as his own to the best of his ability. He has never had any children, either with his wife, Graciela G. Caraballo, with whom he has been married for 12 years, or with any other woman.

He is a staff sergeant in the United States Air Force and receives approximately $465.00 a month, including allowances. He expects to retire as a master sergeant after 6 years and 3 months, and as such, he would receive a monthly pension of about $175.00 to $190.00 for the rest of his life. He has an allotment check made out to a bank for $84.00 a month. He has two insurance policies with an aggregate value of P15,000.00 and has a savings of $6,000.00 to $7,000.00 which he has been accumulating for the last 15 to 20 years. After retirement, he intends to settle down permanently in the Philippines where he will engage in the tourist business by putting up a hotel. 1äwphï1.ñët

It also appears that petitioner has never been convicted of any crime whatsoever and rendered a decree as follows: .

PREMISES CONSIDERED, the Court believes that it would be to the best interest of the child to be placed under the care and custody of petitioner who is materially and morally able to educate and bring her up properly and adequately, and, therefore, adjudges that henceforth Norma Lee Caber shall be, for all legitimate intents and purposes, the child of Ricardo R. Caraballo and shall be freed from all legal obligations of obedience and maintenance with respect to her natural mother, Mercedes Caber, and that her surname shall be changed to that of petitioner, and pursuant to Article 346 of the Civil Code of the Philippines, this decision shall be recorded in the local civil registry of Angeles, Pampanga, and the name and surname of the said minor shall thereafter be Norma Lee Caraballo.

x x x           x x x           x x x

The point to determine is whether under the law the petitioner is a person qualified to adopt. The Government contends that he is not, invoking the provisions of article 335 of the Civil Code. The article provides: .

The following cannot adopt —

(1) Those who have legitimate, legitimated, acknowledged natural children, or natural children by legal fiction;

(2) The guardian, with respect to the ward, before the final approval of his accounts;

(3) A married person, without the consent of the other spouse;

(4) Non-resident aliens;

(5) Resident aliens with whose government the Republic of the Philippines has broken diplomatic relations;

(6) Any person who has been convicted of a crime involving moral turpitude, when the penalty imposed was six months' imprisonment or more.

A person is deemed a resident of a place in a country or state where he has his abode and lives there permanently. It is a place chosen by him freely and voluntarily, although he may later on

change his mind and live elsewhere. A place in a country or state where he lives and stays permanently and to which he intends to return after a temporary absence, no matter how long, is his domicile. A sojourn such as a tourist though actually present at a place of his free choice cannot be deemed a resident of that place. A foreigner who has a business or interest therein or property located in a country or state and goes and stays in that country or state to look after his business or property or to check up the manner or way his business or property is being conducted or run by his manager but does not intend to remain in the country indefinitely cannot be deemed a resident of such country. Actual or physical presence or stay of a person in a place, not of his free and voluntary choice and without intent to remain there indefinitely, does not make him a resident of the place. Looking after the welfare of a minor to be adopted the law has surrounded him with safeguards to achieve and insure such welfare. It cannot be gainsaid that an adopted minor may be removed from the country by the adopter, who is not a resident of the Philippines, and placed beyond the reach and protection of the country of his birth.

Ricardo R. Caraballo, the petitioner, an American citizen who now lives in Clark Field, municipality of Angeles, province of Pampanga, Republic of the Philippines, because of his assignment as staff sergeant in the United States Air Force — his stay in the Philippines then being temporary — is a non-resident alien who, pursuant to clause 4 of the above quoted article of the Civil Code, is disqualified to adopt a child in the Philippines.

The decree appealed from is set aside and the petition dismissed, without pronouncement as to costs.

G.R. No. L-35980             February 20, 1932

GO CHIEN and GO LEK, petitioners-appellees, vs.THE COLLECTOR OF CUSTOMS OF CEBU, respondent-appellant.

Attorney-General Jaranilla for appellant.Gullas, Lopez & Tuazon for appellees.

VILLA-REAL, J.:

This appeal was taken by the collector of customs for Cebu against the judgment of the Court of First Instance of the province, granting the writ of habeas corpus applied for by Go Chen and Go Lek, and ordering that they be set at liberty and permitted to remain in the Philippine Islands.

In support of his appeal the appellant assigns the following alleged errors as committed by the court below:

1. The trial court erred in holding that the right of a minor to enter or remain in the Philippine Islands is not a consequence of the exercise of patria potestad.

2. The trial court erred in issuing the writ of habeas corpus applied for by the petitioners.

The following facts were established by a preponderance of evidence:

The petitioners and appellees, Go Chen and Go Lek, are minor children of Go Tuan and Tan Bon. Go Tuan died in China eleven years ago. Two years later, Tan Bon his widow, married another Chinaman, and shortly thereafter came to the Philippine Islands with her second husband, where

she was admitted as the wife of a Chinese merchant, and where she has been residing for the past eight years. The petitioner remained in China under a paternal uncle, together with their three brothers and one sister. Tan Bon is at present engaged in the furniture business in Cebu. Being a resident merchant, she ordered her two sons, the petitioners herein, to join her in these Islands. On October 20, 1930, the petitioners and appellees, Go Lek and Go Chen, then aged 20 and 18, respectively, arrived in the Philippines on board the S. S. Susana II, and took up their abode with their mother, Tan Bon at her home and went to Talisayan, Misamis Province, at the invitation of a friend of his named Go Tian Ho, whom he had been helping in his store in that municipality. The petitioners and appellees are both single and have another brother, also single 21 years of age, named Go Soon, who is living in Cebu with his mother.

Now, then, a Chinese widow who never resided in the Philippine Islands during her first marriage, is admitted and acquires a residence as the wife of a Chinese merchant, her second husband. Is she entitled to bring in her minor children by the first marriage?

In In re Chung Toy Ho (42 Fed., 398, 399), the Circuit Court of Oregon, United States, gives the following reason for the right of a Chinese resident's wife and children, to enter without a residence certificate:

It is impossible to believe that parties to this treaty, which permits the servants of a merchant to enter the country with him, ever contemplated the exclusion of his wife and children. And the reason why they are not expressly mentioned, as entitled to such admission, is found in the fact that the domicile of the wife and children is that of the husband and father, and that the concession to the merchant of the right to enter the United States, and dwell therein at pleasure, fairly, construed, does include his wife and minor children; particularly when it is remembered that such concession is accompanied with a declaration to the effect that, in such entry and sojourn in the country, he shall be entitled to all the rights and privileges of a subject of Great Britain or a citizen of France.

In United States vs. Gue Lim (176 U.S., 459, 468), the United States Supreme Court gives the same reason as follows:

In the case of the minor children, the same result must follow as in that of the wife. All the reasons which favor the construction of the statute as exempting the wife from the necessity of procuring a certificate apply with equal force to the case of minor children of a member or members of the admitted classes. They come in by reason of their relationship to the father, and whether they accompany or follow him, a certificate is not necessary in either case. When the fact is established to the satisfaction of the authorities, that the person claiming to enter, either as wife or minor child, is in fact the wife or minor child of one of the members of a class mentioned in the treaty as entitled to enter, then that person is entitled to admission without the certificate.

Therefore the ground of the wife's right of entry into the territory of the United States and hence, into the Philippine Islands, is the principle of Private International Law and of Civil Law, that a man's domicil is also the domicile of his wife and minor children, and that he is in duty bound to protect, support, and keep them in his company. A Chinaman's Chinese wife and here minor children, then, do not enter the Philippine Islands through their own right, but by virtue of the right of the husband and father, unless the Chinese wife belongs to the privileged class.

The Chinese woman Tan Bon, who seeks to bring in her minor children, the petitioners herein, did not enter through her own but through that of her second husband. If the wife's right to enter is derived from her husband's, and the rights of the minor children from that of their father, then the

petitioners and appellees, not being children of their mother's second husband, are not entitled to enter. The mere fact of their being children of Tan Bon confers on them no right of entry, inasmuch as she herself did not enter of her own right, and they cannot base their right on hers.

Counsel argue that as she is now resident merchant, she is entitled to bring in her minor children. The mere fact that she became a merchant after coming into these Islands, gives her no right to remain, following this court's ruling in the cases of Juan Co vs. Rafferty (14 Phil., 235); United States vs. Yu Wa (28 Phil., 1); United States vs.Sia Lam Han (29 Phil., 159); United States vs. So Hao Ka (31 Phil., 649). She has the latter right by virtue of being the wife of a Chinese merchant who came into the country in that capacity.

As the Chinese woman aforesaid, Tan Bon, did not enter the Philippine Islands by her own right, but by virtue of her second husband's right, she is not entitled to bring in her minor children by another Chinaman who never had a legal residence in the Archipelago.

Wherefore we are of opinion and so hold, that a Chinese woman entering these Islands not on her own right but by virtue of the right of her second husband, a Chinaman, has no right to bring in her minor children by the first husband, who never had a legal residence in this country.

By virtue whereof, the judgment appealed from is reversed, and the writ of habeas corpus denied, with costs against the appellees. So ordered.

G.R. No. L-13982             July 31, 1920

DIEGO DE LA VIÑA, petitioner, vs.ANTONIO VILLAREAL, as Auxiliary Judge of First Instance, and NARCISA GEOPANO, respondents.

Del Rosario and Del Rosario and W. F. Mueller for petitioner.J. Lopez Vito for respondents.

JOHNSON, J.:

This is an original petition presented in the Supreme Court. Its purpose is to obtain an order declaring: (a) That the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the province of Iloilo, has no jurisdiction to take cognizance of a certain action for divorce instituted in said court by the respondent Narcisa Geopano against her husband, Diego de la Viña, the petitioner herein; (b) that the said respondent judge has exceeded his power and authority in issuing, in said action, a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action; and (c) that all the proceedings theretofore had in said court were null and void.

It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in the Court of First Instance of the Province of Iloilo against Diego de la Viña, alleging: (1) That she was a resident of the municipality of Iloilo, Province of Iloilo, and that the defendant was a resident of the municipality of Vallehermoso, Province of Oriental Negros; (2) that she was the legitimate wife of the defendant, having been married to him in the municipality of Guijulñgan, Province of Negros Oriental, in the year 1888; (3) that since their said marriage plaintiff and defendant had lived as husband and wife and had nine children, three of whom were living and were already of age; (4) that during their marriage plaintiff and defendant had acquired property, real and personal, the value of

which was about P300,000 and all of which was under the administration of the defendant; (5) that since the year 1913 and up to the date of the complaint, the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit relations with her and having her as his concubine, with public scandal and in disgrace of the plaintiff; (6) that because of said illicit relations, the defendant ejected the plaintiff from the conjugal home, for which reason she was obliged to live in the city of Iloilo, where she had since established her habitual residence; and (7) that the plaintiff, scorned by her husband, the defendant, had no means of support and was living only at the expense of one of her daughters. Upon said allegations she prayed for (a) a decree of divorce, (b) the partition of the conjugal property, and (c) alimony pendente lite  in the sum of P400 per month.

Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented a motion, which was later amended, alleging, among other things, that since the filing of her complaint she had personal knowledge that the defendant was trying to alienate or encumber the property which belonged to the conjugal partnership between the plaintiff and the defendant, to the prejudice of the plaintiff, and prayed that a preliminary injunction be issued against the defendant restraining and prohibiting him in the premises.

The defendant Diego de la Viña, petitioner herein, opposed the said motion for a preliminary injunction, and, subsequently, demurred to the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause, "nor over the person of the defendant."

After hearing the respective parties the respondent judge, in to separate orders, dated November 1 and November 2, 1917, respectively, overruled the defendant's demurrer, and granted the preliminary injunction prayed for by the plaintiff.

Thereafter and on April 27, 1918, the defendant, Diego de la Viña filed the present petition for certiorari  in this court, upon the ground that the respondent judge had no jurisdiction to take cognizance of the action in question, and had exceeded his power and authority in issuing said preliminary injunction.

The questions arising out of the foregoing facts are as follows:

1. May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage?

2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action?

I.

The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of the said action for divorce because the defendant therein was a resident of the Province of Negros Oriental and the plaintiff, as the wife of the defendant, must also be considered a resident of the same province inasmuch as, under the law, the domicile of the husband is also the domicile of the wife; that the plaintiff could not acquire a residence in Iloilo before the arriage between her and the defendant was legally dissolved.

This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of the wife follows that of her husband. This rule is founded upon the theoretic identity of person and of

interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to promote, strenghten, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in holding that this is not an absolute rule. "Under modern laws it is clear that many exceptions to the rule that the domicile from of the wife is determined by that of her husband must obtain. Accordingly, the wife may acquire another and seperate domicile from that of her husband where the theorical unity of husband and wife is is dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause for divorce; or where there is a separation of the parties by agreement, or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture by the wife of the benefit of the husband's domicile." (9 R. C. L., 545.)

The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to wit: "Where the husband has given cause for divorce, the wife may acquire another and seperate domicile from that of her husband." In support of this proposition there is a formidable array of authorities. We shall content ourselves with illustrative quotations from a few of them, as follows:

Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.), 582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and Eng. Encyc. of Law, p. 756." (Smith vs. Smith, 43 La. Ann., 1140, 1146.)

The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him because his conduct has been such as to entitle her to a divorce, and she thereupon does leave him and go into another state for the purpose of there permanently residing, she acquires a domicile in the latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63 Am. St. Rep., 650.)

The law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ougth to be dissolved, or so modified as to establish separate interests, and especially a separate domicile and home, bed and board being put, apart for the whole, as expressive of the idea of home. Otherwise the parties, in this respect, would stand upon very unequal ground, it being in the power of the husband to change his domicile at will, but not in that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.)

Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her husband; hut this results from his marital rights, and the duties of the wife. If the husband has forfeited those rights be misbehavior, and has left and deserted the wife, they may have different domiciles, in the view of the law regulating divorces. (Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.)

Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife, according to the prevailing view a wife may acquire a residence or domicile separate from her husband so as to confer jurisdiction upon the courts of the state, in which her domicile or residence is established, to decree a divorce in her favor. (9 R. C. L. 400-401, citing various cases.)

The law making the domicile of the husband that of the wife is applicable only to their relations with third parties, and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings. Vence vs. Vence, 15 How. Pr., 497; Schonwald vs. Schonwald, 55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.)

In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the petitioner in this case insists the respondent Narcisa Geopano should have done. In that case the wife filed a bill of divorce in a court in North Carolina, where her husband resided. She herself had not resided in that state for three years previous to the filing of the suit, as required by the statute; but she claimed that the domicile of her husband was also her domicile and, inasmuch as her husband, the defendant, had been a resident of North Carolina for more than three years, she had also been a resident of that state during that time. The court dismissed the bill, holding that the legal maxim that "her domicile is that of her husband" would not avail in the stead of an actual residence. The court said:

It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is not so for every purpose. The maxim that the domicile of the wife follows that of the husband cannot be applied to oust the court of its jurisdiction; neither, from party of reasons can it give jurisdiction. (P. 344.)

Turning to the Spanish authorities, we find that they agree with the American authorities in holding that the maxim or rule that the domicile of the wife follows that of the husband, is not an absolute one. Scaevola, commenting on article 40 of the Civil Code (which is the only legal provision or authority relied upon by the petitioner in this case), says:

Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman, not legally separated from her husband, is that of the latter, yet, when the tacit consent of the husband and other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should be considered as her domicile where her right may be exercised in accordance with article 63. (Scaevola, Civil Code, p. 354.)

Manresa, commenting upon the same article (art. 40) says:

The domicile of married women not legally separated from their husband shall be that of the latter. This principle, maintained by the Supreme Court in numerous decisions, was modified  in a particular case by the decision of June 17, 1887, and in conformity with this last decision, three others were afterwards rendered on October 13, 23, and 28, 1899, in all of which it is declared that when married women as well as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have their own independent domicile, which should be considered in determining jurisdiction in cases of provisional support guardianship of persons, etc. (1 Manresa, 233.)

If the wife can acquire a separate residence when her husband consents or acquiesces, we see no reason why the law will not allow her to do so when, as alleged in the present case, the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit relations with another woman. Under no other circumstance could a wife be more justified in establishing a separate residence from that of her husband. For her to continue living with him, even if he had permitted it, would have been a condonation of his flagrant breach of fidelity and marital duty.

Furthermore, in this case no longer was there an "identity of persons and of interest between the husband and the wife." Therefore the law allowed her to acquire a separate residence. For, "it would do violence to the plainest principle of common sense and common justice of to call this residence of the guilty husband, where the wife is forbidden to come, . . . the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.)

It is clear, therefore, that a married woman may acquire a residence or domicile separate from that of her husband, during the existence of the marriage, where the husband has given cause for divorce.

II.

We come now to the second question — whether or not the respondent judge exceeded his power in issuing the preliminary injunction complained of by the petitioner.

Section 164 of Act No. 190 provides:

A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;

2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;

3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.

The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not entitled to have a preliminary injunction issued against her husband because contrary to the requirement of the first paragraph of said section, she was not entitled to the relief demanded, which consisted in restraining the power and authority which the law confers upon the husband; that under articles 1412 and 1413 of the Civil Code, the husband is the manager of the conjugal partnership and, as such, is empowered to alienate and encumber and conjugal property without the consent of the wife; that neither could the wife obtain a preliminary injunction under paragraph 3 of said section, upon the ground that the defendant was committing some acts in violation of the plaintiff's rights, because the plaintiff, as the wife of the defendant, had nor right to intervene in the administration of the conjugal property, and therefore no right of hers was violated.

We cannot subscribe to that argument of counsel. The law making the husband the sole administrator of the property of the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that, from the very nature of the relating between husband and wife, the former will promote and not injure the interests of the latter. So long as this harmonious relation, as contemplated by law, continues, the wife cannot and should not interfere with the husband in his judicious administration of the conjugal property. But when that relation ceases and, in a proper action, the wife seeks to dissolve the marriage and to partition the conjugal property, it is just and proper, in order to protect the interests of the wife, that the husband's power of

administration be curtailed, during the pendency of the action, insofar as alienating or encumbering the conjugal property is concerned.

In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and this allegation does not appear to have been controverted by the defendant either in this court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share  in the conjugal property upon the dissolution of the conjugal partnership.

The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act No. 190), so that there can be no question, in our opinion, as to the power of the respondent judge to issue the preliminary injunction complained of by the petitioner. Indeed, even in a case not covered by the statute this court had upheld the power of Court of First Instance to grant preliminary injunctions. In the case of Manila Electric Railroad and Light Company vs. Del Rosario and Jose (22 Phil., 433), Doroteo Jose asked for, and the Court of First Instance granted ex parte, a writ of preliminary mandatory injunction directing the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose. Thereupon the Light Company filed in this court a petition for the writ of certiorari against Judge S. del Rosario upon the ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary mandatory injunctions under any circumstances whatever. This court denied that petition, determining the power of the Courts of First Instance to issue preliminary injunction, as follows:

The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of general and unlimited original jurisdiction, both legal and equitable.

Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this, and in cases not covered by or contemplated by the statute, these courts must exercise their jurisdiction in the issuance of preliminary injunctions upon sound principles applicable to the circumstances of each particular case, having in mind the nature of the remedy, and the doctrine and practice established in the courts upon which our judicial is modeled.

The only limitation upon the power of Courts of First Instance to issue preliminary injunctions, either mandatory of preventative, is that they are to be issued in the "manner" or according to the "method" provided therefor in the Code of Civil Procedure.

We conclude, therefore, that in an action for divorce brought by the wife against the husband, in which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband, prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of the action.

It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action.

Therefore, the petition should be and is hereby denied, with costs against the petitioner. So ordered.

G.R. No. L-16439             July 20, 1961

ANTONIO GELUZ, petitioner, vs.THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.

Mariano H. de Joya for petitioner.A.P. Salvador for respondents.

REYES, J.B.L., J.:

This petition for certiorari brings up for review question whether the husband of a woman, who voluntarily procured her abortion, could recover damages from physician who caused the same.

The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit. On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three justices as against two, who rendered a separate dissenting opinion.

The facts are set forth in the majority opinion as follows:

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion.

It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages. Upon application of the defendant Geluz we granted certiorari.

The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being incapable of having rights and obligations.

Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child on account of the injuries it received, no such right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil Code, because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive: "provided it be born later with the condition specified in the following article". In the present case, there is no dispute that the child was dead when separated from its mother's womb.

The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).

This is not to say that the parents are not entitled to collect any damages at all. But such damages must be those inflicted directly upon them, as distinguished from the injury or violation of the rights of the deceased, his right to life and physical integrity. Because the parents can not expect either help, support or services from an unborn child, they would normally be limited to moral damages for the illegal arrest of the normal development of thespes hominis that was the foetus, i.e., on account of distress and anguish attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us, both the trial court and the Court of Appeals have not found any basis for an award of moral damages, evidently because the appellee's indifference to the previous abortions of his wife, also caused by the appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in the administrative and criminal cases against the appellant. His only concern appears to have been directed at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.

The dissenting Justices of the Court of Appeals have aptly remarked that:

It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary; and that his primary concern would be to see to it that the medical profession was purged of an unworthy member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either the administrative or

the criminal cases he had filed, or both, instead of abandoning them in favor of a civil action for damages of which not only he, but also his wife, would be the beneficiaries.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.

Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners for their information and such investigation and action against the appellee Antonio Geluz as the facts may warrant.

G.R. No. 182836               October 13, 2009

CONTINENTAL STEEL MANUFACTURING CORPORATION, Petitioner, vs.HON. ACCREDITED VOLUNTARY ARBITRATOR ALLAN S. MONTAÑO and NAGKAKAISANG MANGGAGAWA NG CENTRO STEEL CORPORATION-SOLIDARITY OF UNIONS IN THE PHILIPPINES FOR EMPOWERMENT AND REFORMS (NMCSC-SUPER), Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, assailing the Decision1 dated 27 February 2008 and the Resolution2 dated 9 May 2008 of the Court of Appeals in CA-G.R. SP No. 101697, affirming the Resolution3 dated 20 November 2007 of respondent Accredited Voluntary Arbitrator Atty. Allan S. Montaño (Montaño) granting bereavement leave and other death benefits to Rolando P. Hortillano (Hortillano), grounded on the death of his unborn child.

The antecedent facts of the case are as follows:

Hortillano, an employee of petitioner Continental Steel Manufacturing Corporation (Continental Steel) and a member of respondent Nagkakaisang Manggagawa ng Centro Steel Corporation-Solidarity of Trade Unions in the Philippines for Empowerment and Reforms (Union) filed on 9 January 2006, a claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent, pursuant to the Collective Bargaining Agreement (CBA) concluded between Continental and the Union, which reads:

ARTICLE X: LEAVE OF ABSENCE

x x x x

Section 2. BEREAVEMENT LEAVE—The Company agrees to grant a bereavement leave with pay to any employee in case of death of the employee’s legitimate dependent (parents, spouse, children, brothers and sisters) based on the following:

2.1 Within Metro Manila up to Marilao, Bulacan - 7 days

2.2 Provincial/Outside Metro Manila - 11 days

x x x x

ARTICLE XVIII: OTHER BENEFITS

x x x x

Section 4. DEATH AND ACCIDENT INSURANCE—The Company shall grant death and accidental insurance to the employee or his family in the following manner:

x x x x

4.3 DEPENDENTS—Eleven Thousand Five Hundred Fifty Pesos (Php11,550.00) in case of death of the employees legitimate dependents (parents, spouse, and children). In case the employee is single, this benefit covers the legitimate parents, brothers and sisters only with proper legal document to be presented (e.g. death certificate).4

The claim was based on the death of Hortillano’s unborn child. Hortillano’s wife, Marife V. Hortillano, had a premature delivery on 5 January 2006 while she was in the 38th week of pregnancy.5 According to the Certificate of Fetal Death dated 7 January 2006, the female fetus died during labor due to fetal Anoxia secondary to uteroplacental insufficiency.6

Continental Steel immediately granted Hortillano’s claim for paternity leave but denied his claims for bereavement leave and other death benefits, consisting of the death and accident insurance.7

Seeking the reversal of the denial by Continental Steel of Hortillano’s claims for bereavement and other death benefits, the Union resorted to the grievance machinery provided in the CBA. Despite the series of conferences held, the parties still failed to settle their dispute,8 prompting the Union to file a Notice to Arbitrate before the National Conciliation and Mediation Board (NCMB) of the Department of Labor and Employment (DOLE), National Capital Region (NCR).9 In a Submission Agreement dated 9 October 2006, the Union and Continental Steel submitted for voluntary arbitration the sole issue of whether Hortillano was entitled to bereavement leave and other death benefits pursuant to Article X, Section 2

and Article XVIII, Section 4.3 of the CBA.10 The parties mutually chose Atty. Montaño, an Accredited Voluntary Arbitrator, to resolve said issue.11

When the preliminary conferences again proved futile in amicably settling the dispute, the parties proceeded to submit their respective Position Papers, 12 Replies,13 and Rejoinders14 to Atty. Montaño.

The Union argued that Hortillano was entitled to bereavement leave and other death benefits pursuant to the CBA. The Union maintained that Article X, Section 2 and Article XVIII, Section 4.3 of the CBA did not specifically state that the dependent should have first been born alive or must have acquired juridical personality so that his/her subsequent death could be covered by the CBA death benefits. The Union cited cases wherein employees of MKK Steel Corporation (MKK Steel) and Mayer Steel Pipe Corporation (Mayer Steel), sister companies of Continental Steel, in similar situations as Hortillano were able to receive death benefits under similar provisions of their CBAs.

The Union mentioned in particular the case of Steve L. Dugan (Dugan), an employee of Mayer Steel, whose wife also prematurely delivered a fetus, which had already died prior to the delivery. Dugan

was able to receive paternity leave, bereavement leave, and voluntary contribution under the CBA between his union and Mayer Steel.15 Dugan’s child was only 24 weeks in the womb and died before labor, as opposed to Hortillano’s child who was already 37-38 weeks in the womb and only died during labor.

The Union called attention to the fact that MKK Steel and Mayer Steel are located in the same compound as Continental Steel; and the representatives of MKK Steel and Mayer Steel who signed the CBA with their respective employees’ unions were the same as the representatives of Continental Steel who signed the existing CBA with the Union.

Finally, the Union invoked Article 1702 of the Civil Code, which provides that all doubts in labor legislations and labor contracts shall be construed in favor of the safety of and decent living for the laborer.

On the other hand, Continental Steel posited that the express provision of the CBA did not contemplate the death of an unborn child, a fetus, without legal personality. It claimed that there are two elements for the entitlement to the benefits, namely: (1) death and (2) status as legitimate dependent, none of which existed in Hortillano’s case. Continental Steel, relying on Articles 40, 41 and 4216 of the Civil Code, contended that only one with civil personality could die. Hence, the unborn child never died because it never acquired juridical personality. Proceeding from the same line of thought, Continental Steel reasoned that a fetus that was dead from the moment of delivery was not a person at all. Hence, the term dependent could not be applied to a fetus that never acquired juridical personality. A fetus that was delivered dead could not be considered a dependent, since it never needed any support, nor did it ever acquire the right to be supported.

Continental Steel maintained that the wording of the CBA was clear and unambiguous. Since neither of the parties qualified the terms used in the CBA, the legally accepted definitions thereof were deemed automatically accepted by both parties. The failure of the Union to have unborn child included in the definition of dependent, as used in the CBA – the death of whom would have qualified the parent-employee for bereavement leave and other death benefits – bound the Union to the legally accepted definition of the latter term.

Continental Steel, lastly, averred that similar cases involving the employees of its sister companies, MKK Steel and Mayer Steel, referred to by the Union, were irrelevant and incompetent evidence, given the separate and distinct personalities of the companies. Neither could the Union sustain its claim that the grant of bereavement leave and other death benefits to the parent-employee for the loss of an unborn child constituted "company practice."

On 20 November 2007, Atty. Montaño, the appointed Accredited Voluntary Arbitrator, issued a Resolution17 ruling that Hortillano was entitled to bereavement leave with pay and death benefits.

Atty. Montaño identified the elements for entitlement to said benefits, thus:

This Office declares that for the entitlement of the benefit of bereavement leave with pay by the covered employees as provided under Article X, Section 2 of the parties’ CBA, three (3) indispensable elements must be present: (1) there is "death"; (2) such death must be of employee’s "dependent"; and (3) such dependent must be "legitimate".

On the otherhand, for the entitlement to benefit for death and accident insurance as provided under Article XVIII, Section 4, paragraph (4.3) of the parties’ CBA, four (4) indispensable elements must be present: (a) there is "death"; (b) such death must be of employee’s "dependent"; (c) such dependent must be "legitimate"; and (d) proper legal document to be presented.18

Atty. Montaño found that there was no dispute that the death of an employee’s legitimate dependent occurred. The fetus had the right to be supported by the parents from the very moment he/she was conceived. The fetus had to rely on another for support; he/she could not have existed or sustained himself/herself without the power or aid of someone else, specifically, his/her mother. Therefore, the fetus was already a dependent, although he/she died during the labor or delivery. There was also no question that Hortillano and his wife were lawfully married, making their dependent, unborn child, legitimate.

In the end, Atty. Montaño decreed:

WHEREFORE, premises considered, a resolution is hereby rendered ORDERING [herein petitioner Continental Steel] to pay Rolando P. Hortillano the amount of Four Thousand Nine Hundred Thirty-Nine Pesos (P4,939.00), representing his bereavement leave pay and the amount of Eleven Thousand Five Hundred Fifty Pesos (P11,550.00) representing death benefits, or a total amount of P16,489.00

The complaint against Manuel Sy, however, is ORDERED DISMISSED for lack of merit.

All other claims are DISMISSED for lack of merit.

Further, parties are hereby ORDERED to faithfully abide with the herein dispositions.

Aggrieved, Continental Steel filed with the Court of Appeals a Petition for Review on Certiorari,19 under Section 1, Rule 43 of the Rules of Court, docketed as CA-G.R. SP No. 101697.

Continental Steel claimed that Atty. Montaño erred in granting Hortillano’s claims for bereavement leave with pay and other death benefits because no death of an employee’s dependent had occurred. The death of a fetus, at whatever stage of pregnancy, was excluded from the coverage of the CBA since what was contemplated by the CBA was the death of a legal person, and not that of a fetus, which did not acquire any juridical personality. Continental Steel pointed out that its contention was bolstered by the fact that the term death was qualified by the phrase legitimate dependent. It asserted that the status of a child could only be determined upon said child’s birth, otherwise, no such appellation can be had. Hence, the conditions sine qua non for Hortillano’s entitlement to bereavement leave and other death benefits under the CBA were lacking.

The Court of Appeals, in its Decision dated 27 February 2008, affirmed Atty. Montaño’s Resolution dated 20 November 2007. The appellate court interpreted death to mean as follows:

[Herein petitioner Continental Steel’s] exposition on the legal sense in which the term "death" is used in the CBA fails to impress the Court, and the same is irrelevant for ascertaining the purpose, which the grant of bereavement leave and death benefits thereunder, is intended to serve. While there is no arguing with [Continental Steel] that the acquisition of civil personality of a child or fetus is conditioned on being born alive upon delivery, it does not follow that such event of premature delivery of a fetus could never be contemplated as a "death" as to be covered by the CBA provision, undoubtedly an event causing loss and grief to the affected employee, with whom the dead fetus stands in a legitimate relation. [Continental Steel] has proposed a narrow and technical significance to the term "death of a legitimate dependent" as condition for granting bereavement leave and death benefits under the CBA. Following [Continental Steel’s] theory, there can be no experience of "death" to speak of. The Court, however, does not share this view. A dead fetus simply cannot be equated with anything less than "loss of human life", especially for the expectant parents. In this light, bereavement leave and death benefits are meant to assuage the employee and the latter’s immediate family, extend to them solace and support, rather than an act conferring legal status or

personality upon the unborn child. [Continental Steel’s] insistence that the certificate of fetal death is for statistical purposes only sadly misses this crucial point.20

Accordingly, the fallo of the 27 February 2008 Decision of the Court of Appeals reads:

WHEREFORE, premises considered, the present petition is hereby DENIED for lack of merit. The assailed Resolution dated November 20, 2007 of Accredited Voluntary Arbitrator Atty. Allan S. Montaño is hereby AFFIRMED and UPHELD.

With costs against [herein petitioner Continental Steel].21

In a Resolution22 dated 9 May 2008, the Court of Appeals denied the Motion for Reconsideration23 of Continental Steel.

Hence, this Petition, in which Continental Steel persistently argues that the CBA is clear and unambiguous, so that the literal and legal meaning of death should be applied. Only one with juridical personality can die and a dead fetus never acquired a juridical personality.

We are not persuaded.

As Atty. Montaño identified, the elements for bereavement leave under Article X, Section 2 of the CBA are: (1) death; (2) the death must be of a dependent, i.e., parent, spouse, child, brother, or sister, of an employee; and (3) legitimate relations of the dependent to the employee. The requisites for death and accident insurance under Article XVIII, Section 4(3) of the CBA are: (1) death; (2) the death must be of a dependent, who could be a parent, spouse, or child of a married employee; or a parent, brother, or sister of a single employee; and (4) presentation of the proper legal document to prove such death, e.g., death certificate.

It is worthy to note that despite the repeated assertion of Continental Steel that the provisions of the CBA are clear and unambiguous, its fundamental argument for denying Hortillano’s claim for bereavement leave and other death benefits rests on the purportedly proper interpretation of the terms "death" and "dependent" as used in the CBA. If the provisions of the CBA are indeed clear and unambiguous, then there is no need to resort to the interpretation or construction of the same. Moreover, Continental Steel itself admitted that neither management nor the Union sought to define the pertinent terms for bereavement leave and other death benefits during the negotiation of the CBA.

The reliance of Continental Steel on Articles 40, 41 and 42 of the Civil Code for the legal definition of death is misplaced. Article 40 provides that a conceived child acquires personality only when it is born, and Article 41 defines when a child is considered born. Article 42 plainly states that civil personality is extinguished by death.

First, the issue of civil personality is not relevant herein. Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied in relation to Article 37 of the same Code, the very first of the general provisions on civil personality, which reads:

Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.

We need not establish civil personality of the unborn child herein since his/her juridical capacity and capacity to act as a person are not in issue. It is not a question before us whether the unborn child acquired any rights or incurred any obligations prior to his/her death that were passed on to or assumed by the child’s parents. The rights to bereavement leave and other death benefits in the instant case pertain directly to the parents of the unborn child upon the latter’s death.

Second, Sections 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical personality could die.

And third, death has been defined as the cessation of life.24 Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from conception,25 that the State must protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as death.

Likewise, the unborn child can be considered a dependent under the CBA. As Continental Steel itself defines, a dependent is "one who relies on another for support; one not able to exist or sustain oneself without the power or aid of someone else." Under said general definition,26 even an unborn child is a dependent of its parents. Hortillano’s child could not have reached 38-39 weeks of its gestational life without depending upon its mother, Hortillano’s wife, for sustenance. Additionally, it is explicit in the CBA provisions in question that the dependentmay be the parent, spouse, or child of a married employee; or the parent, brother, or sister of a single employee. The CBA did not provide a qualification for the child dependent, such that the child must have been born or must have acquired civil personality, as Continental Steel avers. Without such qualification, then child shall be understood in its more general sense, which includes the unborn fetus in the mother’s womb.

The term legitimate merely addresses the dependent child’s status in relation to his/her parents. In Angeles v. Maglaya,27 we have expounded on who is a legitimate child, viz:

A legitimate child is a product of, and, therefore, implies a valid and lawful marriage. Remove the element of lawful union and there is strictly no legitimate filiation between parents and child. Article 164 of the Family Code cannot be more emphatic on the matter: "Children conceived or born during the marriage of the parents are legitimate." (Emphasis ours.)

Conversely, in Briones v. Miguel,28 we identified an illegitimate child to be as follows:

The fine distinctions among the various types of illegitimate children have been eliminated in the Family Code. Now, there are only two classes of children -- legitimate (and those who, like the legally adopted, have the rights of legitimate children) and illegitimate. All children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status. (Emphasis ours.)

It is apparent that according to the Family Code and the afore-cited jurisprudence, the legitimacy or illegitimacy of a child attaches upon his/her conception. In the present case, it was not disputed that Hortillano and his wife were validly married and that their child was conceived during said marriage, hence, making said child legitimate upon her conception.1avvphi1

Also incontestable is the fact that Hortillano was able to comply with the fourth element entitling him to death and accident insurance under the CBA, i.e., presentation of the death certificate of his unborn child.

Given the existence of all the requisites for bereavement leave and other death benefits under the CBA, Hortillano’s claims for the same should have been granted by Continental Steel.

We emphasize that bereavement leave and other death benefits are granted to an employee to give aid to, and if possible, lessen the grief of, the said employee and his family who suffered the loss of a loved one. It cannot be said that the parents’ grief and sense of loss arising from the death of their unborn child, who, in this case, had a gestational life of 38-39 weeks but died during delivery, is any less than that of parents whose child was born alive but died subsequently.

Being for the benefit of the employee, CBA provisions on bereavement leave and other death benefits should be interpreted liberally to give life to the intentions thereof. Time and again, the Labor Code is specific in enunciating that in case of doubt in the interpretation of any law or provision affecting labor, such should be interpreted in favor of labor.29  In the same way, the CBA and CBA provisions should be interpreted in favor of labor. InMarcopper Mining v. National Labor Relations Commission,30 we pronounced:

Finally, petitioner misinterprets the declaration of the Labor Arbiter in the assailed decision that "when the pendulum of judgment swings to and fro and the forces are equal on both sides, the same must be stilled in favor of labor." While petitioner acknowledges that all doubts in the interpretation of the Labor Code shall be resolved in favor of labor, it insists that what is involved-here is the amended CBA which is essentially a contract between private persons. What petitioner has lost sight of is the avowed policy of the State, enshrined in our Constitution, to accord utmost protection and justice to labor, a policy, we are, likewise, sworn to uphold.

In Philippine Telegraph & Telephone Corporation v. NLRC  [183 SCRA 451 (1990)], we categorically stated that:

When conflicting interests of labor and capital are to be weighed on the scales of social justice, the heavier influence of the latter should be counter-balanced by sympathy and compassion the law must accord the underprivileged worker.

Likewise, in Terminal Facilities and Services Corporation v. NLRC  [199 SCRA 265 (1991)], we declared:

Any doubt concerning the rights of labor should be resolved in its favor pursuant to the social justice policy.

IN VIEW WHEREOF, the Petition is DENIED. The Decision dated 27 February 2008 and Resolution dated 9 May 2008 of the Court of Appeals in CA-G.R. SP No. 101697, affirming the Resolution dated 20 November 2007 of Accredited Voluntary Arbitrator Atty. Allan S. Montaño, which granted to Rolando P. Hortillano bereavement leave pay and other death benefits in the amounts of Four Thousand Nine Hundred Thirty-Nine Pesos (P4,939.00) and Eleven Thousand Five Hundred Fifty Pesos (P11,550.00), respectively, grounded on the death of his unborn child, are AFFIRMED. Costs against Continental Steel Manufacturing Corporation.

SO ORDERED.

G.R. No. L-770             April 27, 1948

ANGEL T. LIMJOCO, petitioner, vs.INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.

Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.Bienvenido A. Tan for respondent.

HILADO, J.:

Under date of May 21, 1946, the Public Service Commission, through Deputy Commissioner Fidel Ibañez, rendered its decision in case No. 4572 of Pedro O. Fragante, as applicant for a certificate of public convenience to install, maintain and operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence therein showed that the public interest and convenience will be promoted in a proper and suitable manner "by authorizing the operation and maintenance of another ice plant of two and one-half (2-½) tons in the municipality of San Juan; that the original applicant Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate estate is financially capable of maintaining the proposed service". The commission, therefore, overruled the opposition filed in the case and ordered "that under the provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of public convenience be issued to the Intestate Estate of the deceased Pedro Fragante, authorizing said Intestate Estate through its Special or Judicial Administrator, appointed by the proper court of competent jurisdiction, to maintain and operate an ice plant with a daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan and to sell the ice produced from said plant in the said Municipality of San Juan and in the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions therein set forth in detail (petitioner's brief, pp. 33-34).

Petitioner makes four assignments of error in his brief as follows:

1. The decision of the Public Service Commission is not in accordance with law.

2. The decision of the Public Service Commission is not reasonably supported by evidence.

3. The Public Service Commission erred in not giving petitioner and the Ice and Cold Storage Industries of the Philippines, Inc., as existing operators, a reasonable opportunity to meet the increased demand.

4. The decision of the Public Service Commission is an unwarranted departure from its announced policy with respect to the establishment and operation of ice plant. (Pp. 1-2, petitioner's brief.)

In his argument petitioner contends that it was error on the part of the commission to allow the substitution of the legal representative of the estate of Pedro O. Fragante for the latter as party applicant in the case then pending before the commission, and in subsequently granting to said estate the certificate applied for, which is said to be in contravention of law.

If Pedro O. Fragante had not died, there can be no question that he would have had the right to prosecute his application before the commission to its final conclusion. No one would have denied him that right. As declared by the commission in its decision, he had invested in the ice plant in question P 35,000, and from what the commission said regarding his other properties and business, he would certainly have been financially able to maintain and operate said plant had he not died. His transportation business alone was netting him about P1,440 a month. He was a Filipino citizen and

continued to be such till his demise. The commission declared in its decision, in view of the evidence before it, that his estate was financially able to maintain and operate the ice plant. The aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was one which by its nature did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for which a right was property despite the possibility that in the end the commission might have denied application, although under the facts of the case, the commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947, admits (page 3) that the certificate of public convenience once granted "as a rule, should descend to his estate as an asset". Such certificate would certainly be property, and the right to acquire such a certificate, by complying with the requisites of the law, belonged to the decedent in his lifetime, and survived to his estate and judicial administrator after his death.

If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and during the life of the option he died, if the option had been given him in the ordinary course of business and not out of special consideration for his person, there would be no doubt that said option and the right to exercise it would have survived to his estate and legal representatives. In such a case there would also be the possibility of failure to acquire the property should he or his estate or legal representative fail to comply with the conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply for and acquire the desired certificate of public convenience — the evidence established that the public needed the ice plant — was under the law conditioned only upon the requisite citizenship and economic ability to maintain and operate the service. Of course, such right to acquire or obtain such certificate of public convenience was subject to failure to secure its objective through nonfulfillment of the legal conditions, but the situation here is no different from the legal standpoint from that of the option in the illustration just given.

Rule 88, section 2, provides that the executor or administrator may bring or defend actions, among other cases, for the protection of the property or rights of the deceased which survive, and it says that such actions may be brought or defended "in the right of the deceased".

Rule 82, section 1, paragraph (a), mentions among the duties of the executor or administrator, the making of an inventory of all goods, chattels, rights, credits, and estate of the deceased which shall come to his possession or knowledge, or to the possession of any other person for him.

In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the present chief Justice of this Court draws the following conclusion from the decisions cited by him:

Therefore, unless otherwise expressly provided by law, any action affecting the property or rights(emphasis supplied) of a deceased person which may be brought by or against him if he were alive, may likewise be instituted and prosecuted by or against the administrator, unless the action is for recovery of money, debt or interest thereon, or unless, by its very nature, it cannot survive, because death extinguishes the right . . . .

It is true that a proceeding upon the application for a certificate of public convenience before the Public Service Commission is not an "action". But the foregoing provisions and citations go to prove that the decedent's rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate which, being placed under the control and management of the executor or administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right involved happens to consist in the prosecution of an unfinished proceeding upon an application for a certificate of public convenience of the deceased before the Public Service Commission, it is but logical that the legal representative be empowered and entitled in behalf of the estate to make the right effective in that proceeding.

Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the Civil Code, respectively, consider as immovable and movable things  rights which are not material. The same eminent commentator says in the cited volume (p. 45) that article 336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive of all incorporeal rights which are also property  for juridical purposes.

Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property includes, among other things, "an option", and "the certificate of the railroad commission permitting the operation of a bus line", and on page 748 of the same volume we read:

However, these terms (real property, as estate or interest) have also been declared to include every species of title, inchoate or complete, and embrace rights which lie in contract, whether executory or executed. (Emphasis supplied.)

Another important question raised by petitioner is whether the estate of Pedro O. Fragrante is a "person" within the meaning of the Public Service Act.

Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the jurisdiction of the State of Indiana:

As the estate of the decedent is in law regarded as a person, a forgery committed after the death of the man whose name purports to be signed to the instrument may be prosecuted as with the intent to defraud the estate. Billings vs. State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.

The Supreme Court of Indiana in the decision cited above had before it a case of forgery committed after the death of one Morgan for the purpose of defrauding his estate. The objection was urged that the information did not aver that the forgery was committed with the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as follows:

. . . The reason advanced in support of this proposition is that the law does not regard the estate of a decedent as a person. This intention (contention) cannot prevail. The estate of the decedent is a person in legal contemplation. "The word "person" says Mr. Abbot, "in its legal signification, is a generic term, and includes artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc. Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in another work that 'persons are of two kinds: natural and artificial. A natural person is a human being. Artificial persons include (1) a collection or succession of natural persons forming a corporation; (2) a collection of property to which the law attributes the capacity of having rights and duties. The latter class of artificial persons is recognized only to a limited extent in our law. "Examples are the estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own cases inferentially recognize the correctness of the definition given by the authors from whom we have quoted, for they declare that it is sufficient, in pleading a claim against a decedent's estate, to designate the defendant as the estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless we accept this definition as correct, there would be a failure of justice in cases where, as here, the forgery is committed after the death of a person whose name is forged; and this is a result to be avoided if it can be done consistent with principle. We perceive no difficulty in avoiding such a result; for, to our minds, it seems reasonable that the estate of a decedent should be regarded as an artificial person. It is the creation of law for the purpose of enabling a disposition of the assets to be properly made, and, although natural persons as heirs, devises, or creditors, have an interest in the property, the artificial creature is a distinct legal entity. The interest which natural persons have in it is not complete until there has been a

due administration; and one who forges the name of the decedent to an instrument purporting to be a promissory note must be regarded as having intended to defraud the estate of the decedent, and not the natural persons having diverse interests in it, since ha cannot be presumed to have known who those persons were, or what was the nature of their respective interest. The fraudulent intent is against the artificial person, — the estate — and not the natural persons who have direct or contingent interest in it. (107 Ind. 54, 55, 6 N.E. 914-915.)

In the instant case there would also be a failure of justice unless the estate of Pedro O. Fragrante is considered a "person", for quashing of the proceedings for no other reason than his death would entail prejudicial results to his investment amounting to P35,000.00 as found by the commission, not counting the expenses and disbursements which the proceeding can be presumed to have occasioned him during his lifetime, let alone those defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show that the estate of a deceased person is also considered as having legal personality independent of their heirs. Among the most recent cases may be mentioned that of "Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said estate along with the other plaintiffs in these words:

. . . the judgment appealed from must be affirmed so far as it holds that defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount of P245,804.69 . . . .

Under the regime of the Civil Code and before the enactment of the Code of Civil Procedure, the heirs of a deceased person were considered in contemplation of law as the continuation of his personality by virtue of the provision of article 661 of the first Code that the heirs succeed to all the rights and obligations of the decedent by the mere fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46. However, after the enactment of the Code of Civil Procedure, article 661 of the Civil Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that case, as well as in many others decided by this Court after the innovations introduced by the Code of Civil Procedure in the matter of estates of deceased persons, it has been the constant doctrine that it is the estate or the mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise.

The heirs were formerly considered as the continuation of the decedent's personality simply by legal fiction, for they might not have been flesh and blood — the reason was one in the nature of a legal exigency derived from the principle that the heirs succeeded to the rights and obligations of the decedent. Under the present legal system, such rights and obligations as survive after death have to be exercised and fulfilled only by the estate of the deceased. And if the same legal fiction were not indulged, there would be no juridical basis for the estate, represented by the executor or administrator, to exercise those rights and to fulfill those obligations of the deceased. The reason and purpose for indulging the fiction is identical and the same in both cases. This is why according to the Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary, 954, among the artificial persons recognized by law figures "a collection of property to which the law attributes the capacity of having rights and duties", as for instance, the estate of a bankrupt or deceased person.

Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante can be considered a "citizen of the Philippines" within the meaning of section 16 of the Public Service Act, as amended, particularly the proviso thereof expressly and categorically limiting the power of the commission to issue certificates of public convenience or certificates of public convenience and necessity "only to citizens of the Philippines or of the United States or to corporations,

copartnerships, associations, or joint-stock companies constituted and organized under the laws of the Philippines", and the further proviso that sixty per centum of the stock or paid-up capital of such entities must belong entirely to citizens of the Philippines or of the United States.

Within the Philosophy of the present legal system, the underlying reason for the legal fiction by which, for certain purposes, the estate of the deceased person is considered a "person" is the avoidance of injustice or prejudice resulting from the impossibility of exercising such legal rights and fulfilling such legal obligations of the decedent as survived after his death unless the fiction is indulged. Substantially the same reason is assigned to support the same rule in the jurisdiction of the State of Indiana, as announced in Billings vs. State, supra, when the Supreme Court of said State said:

. . . It seems reasonable that the estate of a decedent should be regarded as an artificial person. it is the creation of law for the purpose of enabling a disposition of the assets to be properly made . . . .

Within the framework and principles of the constitution itself, to cite just one example, under the bill of rights it seems clear that while the civil rights guaranteed therein in the majority of cases relate to natural persons, the term "person" used in section 1 (1) and (2) must be deemed to include artificial or juridical persons, for otherwise these latter would be without the constitutional guarantee against being deprived of property without due process of law, or the immunity from unreasonable searches and seizures. We take it that it was the intendment of the framers to include artificial or juridical, no less than natural, persons in these constitutional immunities and in others of similar nature. Among these artificial or juridical persons figure estates of deceased persons. Hence, we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante should be considered an artificial or juridical person for the purposes of the settlement and distribution of his estate which, of course, include the exercise during the judicial administration thereof of those rights and the fulfillment of those obligations of his which survived after his death. One of those rights was the one involved in his pending application before the Public Service Commission in the instant case, consisting in the prosecution of said application to its final conclusion. As stated above, an injustice would ensue from the opposite course.

How about the point of citizenship? If by legal fiction his personality is considered extended so that any debts or obligations left by, and surviving, him may be paid, and any surviving rights may be exercised for the benefit of his creditors and heirs, respectively, we find no sound and cogent reason for denying the application of the same fiction to his citizenship, and for not considering it as likewise extended for the purposes of the aforesaid unfinished proceeding before the Public Service Commission. The outcome of said proceeding, if successful, would in the end inure to the benefit of the same creditors and the heirs. Even in that event petitioner could not allege any prejudice in the legal sense, any more than he could have done if Fragrante had lived longer and obtained the desired certificate. The fiction of such extension of his citizenship is grounded upon the same principle, and motivated by the same reason, as the fiction of the extension of personality. The fiction is made necessary to avoid the injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the loss of the investment amounting to P35,000, which he has already made in the ice plant, not counting the other expenses occasioned by the instant proceeding, from the Public Service Commission of this Court.

We can perceive no valid reason for holding that within the intent of the constitution (Article IV), its provisions on Philippine citizenship exclude the legal principle of extension above adverted to. If for reasons already stated our law indulges the fiction of extension of personality, if for such reasons the estate of Pedro O. Fragrante should be considered an artificial or juridical person herein, we can find

no justification for refusing to declare a like fiction as to the extension of his citizenship for the purposes of this proceeding.

Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the evidence of record, he would have obtained from the commission the certificate for which he was applying. The situation has suffered but one change, and that is, his death. His estate was that of a Filipino citizen. And its economic ability to appropriately and adequately operate and maintain the service of an ice plant was the same that it received from the decedent himself. In the absence of a contrary showing, which does not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not, there is the simple expedient of revoking the certificate or enjoining them from inheriting it.

Upon the whole, we are of the opinion that for the purposes of the prosecution of said case No. 4572 of the Public Service Commission to its final conclusion, both the personality and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning and intent of the Public Service Act, as amended, in harmony with the constitution: it is so adjudged and decreed.

Decision affirmed, without costs. So ordered.

Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.

Separate Opinions

PERFECTO, J., dissenting:

Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of public convenience to operate an ice plant in San Juan, Rizal. The limitation is in accordance with section 8 of Article XIV of the Constitution which provides

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or other entities organized under the laws of the Philippines, sixty per centum of the capital of which is owned by citizens of the Philippines, nor such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years. No franchise granted to any individual, firm or corporation, except under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the public interest so requires.

The main question in this case is whether the estate of Pedro O. Fragrante fulfills the citizenship requirement. To our mind, the question can be restated by asking whether the heirs of Pedro O. Fragrante fulfill the citizenship requirement of the law.

The estate is an abstract entity. As such, its legal value depends on what it represents. It is a device by which the law gives a kind of personality and unity to undetermined tangible persons, the heirs. They inherit and replace the deceased at the very moment of his death. As there are procedural requisites for their identification and determination that need time for their compliance, a legal fiction has been devised to represent them. That legal fiction is the estate, a liquid condition in process of solidification.

The estate, therefore, has only a representative value. What the law calls estate is, a matter of fact, intended to designate the heirs of the deceased. The question, therefore, in this case, boils down to the citizenship of the heirs of Fragrante.

There is nothing in the record to show conclusively the citizenship of the heirs of Fragrante. If they are Filipino citizens, the action taken by the Public Service Commission should be affirmed. If they are not, it should be reversed.

Petitioner alleges that the estate is just a front or dummy for aliens to go around the citizenship constitutional provision. It is alleged that Gaw Suy, the special administrator of the estate, is an alien.

We are of the opinion that the citizenship of the heirs of Fragrante should be determined by the Commission upon evidence that the party should be present. It should also determine the dummy question raised by the petitioner.

We are of opinion and so vote that the decision of the Public Service Commission of May 21, 1946, be set aside and that the Commission be instructed to receive evidence of the above factual questions and render a new decision accordingly.

[G.R. No. L-6897. November 29, 1956.]

In the Matter of the Claim for Attorney’s Fees. CLARO M. RECTO, claimant-Appellee, vs. ESPERANZA P. DE HARDEN and FRED M. HARDEN, Defendants-Appellants.

 

D E C I S I O N

CONCEPCION, J.:

This is an appeal taken by Esperanza P. de Harden and Fred M. Harden from a decision of the Court of First Instance of Manila, the pertinent part of which is of the following tenor:chanroblesvirtuallawlibrary.

“The contingent fee to which the claimant is entitled under paragraph 3 of the contract, Exhibit JJJ or 20, is 20% of P1,920,554.85 or the sum of P384,110.97.

“WHEREFORE, this Court hereby approves the recommendation of the Commissioner with the above-stated modification, and finds that Attorney Claro M. Recto is entitled to the sum of THREE HUNDRED EIGHTY-FOUR   THOUSAND   ONE   HUNDRED   AND   TEN   PESOS   AND   NINETY-SEVEN   CENTAVOS (P384,110.97), representing 20% of Esperanza P. de Harden’s share in the conjugal properties owned by her and her husband, Fred M. Harden, as contingent fee stipulated in paragraph 3 of the Contract of Professional Services, Exhibit JJJ or 20, and the said Esperanza P. de Harden is hereby ordered to pay the said   amount   above-stated.”   It   appears   that   sometime   in   July,   1941, Appellant,   Mrs.   Harden, and Appellee, Claro M. Recto, executed the following:chanroblesvirtuallawlibrary

“CONTRACT OF PROFESSIONAL SERVICES

KNOW ALL MEN BY THESE PRESENTS:chanroblesvirtuallawlibrary

“That I, ESPERANZA PEREZ DE HARDEN, of age, married to Fred M. Harden, and temporarily residing in the Philippines, with address at 534 Sales Street, Manila, have engaged the services of Attorney Claro M. Recto to appear and act as my counsel   in the action which  I  will  file against my husband,  Fred M. Harden, for the purpose of securing an increase in the amount of support being received by me from the conjugal partnership of myself and said Fred M. Harden, and for the purpose likewise of protecting and 

preserving my rights in the properties of the said conjugal partnership, in contemplation of the divorce suit which I intent to file against him in the competent Court of California and of the liquidation of the conjugal partnership between us, this contract of services to be under the following conditions:chanroblesvirtuallawlibrary

“1.  That in lieu of retainer fee, which under the circumstances I am not in a position to pay, I hereby agree to pay Attorney Claro M. Recto, such payment to be made monthly, during the pendency of the litigation and until the termination of the same, twenty-five (25%) per cent of the total   increase in allowance  or  pension  which  may  be  awarded   to  me  by   the  court  over  and  above   the  amount  of P1,500.00 which I now receive monthly from Defendant Fred M. Harden out of the funds of the conjugal partnership; chan   roblesvirtualawlibraryProvided,   that  should  the case be terminated or  an amicable  settlement  thereof  be arrived at by the parties before the expiration of two years from the date of the filing of the complaint, I shall continue to pay the said twenty-five (25%) per cent up to the end of said period.

“2.  That the aforesaid monthly payments shall be in addition to whatever amount may be adjudged by the court  against   the Defendant Fred M. Harden or against   the conjugal  partnership  by way of   litis expense, that is, attorney’s fees chargeable as expenses of litigation.

“3.  That as full and complete satisfaction of the fees of Attorney Claro M. Recto in connection with the case above referred to, and said case being for the purposes aforestated, that is, to secure an increase in the amount of support I now receive as well as to protect and preserve my rights and interest in the properties  of   the   conjugal   partnership,   in   contemplation  of  divorce   and  of   the   liquidation  of   said partnership, I hereby agree to pay said Attorney Claro M. Recto twenty (20%) per cent of the value of the   share  and  participation  which   I  may   receive   in   the   funds  and  properties  of   the   said   conjugal partnership of myself and Defendant Fred M. Harden, as a result of the liquidation thereof either by death, divorce,  judicial separation, compromise or by any means or method by virtue of which said partnership is or may be liquidated.

“4.  All  expenses   in  connection with  the  litigation are  to  be  for  my account,  but   the  same may be advanced by Attorney Claro M. Recto, to be reimbursed to him either from the money which I receive by way of support or from the funds of the conjugal partnership.

“5.  It   is  hereby  understood   that   this   contract   includes   the   services  of  Attorney  Claro  M.  Recto   in connection with the securing of the liquidation of the properties and assets of the conjugal partnership of myself and Fred M. Harden, upon dissolution of said partnership or for any other cause mentioned in Paragraph (3) hereof.

IN  WITNESS  WHEREOF,   I   have   signed   these  presents   in   the  City   _____  of  Manila,   Philippines   this _______ day of July, 1941.

  s/ Esperanza P. de Harden

  t/ ESPERANZA P. DE HARDEN

ACCEPTED:chanroblesvirtuallawlibrary

s/ Claro M. Recto

t/ CLARO M. RECTO”

In compliance therewith, on July 12, 1941, the Appellee, as counsel for Mrs. Harden, commenced Civil Case No. 59634 of the Court of First Instance of Manila, entitled “Esperanza P. de Harden vs. Fred M. Harden and Jose Salumbides.” In the complaint therein filed, it was prayed, among other things: chanroblesvirtuallawlibrary (a) that Mrs. Harden be given the exclusive administration of the business and all properties of the conjugal partnership of Mr. and Mrs. Harden; chan   roblesvirtualawlibrary(b) that, in the event of denial of this prayer, the Defendants be 

ordered to inform her “of everything pertaining to the administration of said business and properties”, as well as to render accounts thereof and to permit her to examine the books and records pertinent thereto; chan   roblesvirtualawlibrary(c) that Mr. Harden be ordered to account to Mrs. Harden, and to return to this jurisdiction, the sum of P449,015.44 allegedly withdrawn by him from the Philippines or sent by him to Hongkong on April  1,  1941; chan   roblesvirtualawlibrary(d) that Defendant Salumbides be ordered to account for all  moneys,  amounting to P285,000.00, belonging to the business and assets of said conjugal partnership and deposited by him in a safety box, either in his name, or in that of Antonio Wilson, from January 23 to December 23, 1940; chan 

roblesvirtualawlibrary(e) that the transfer, in the name of Salumbides, of certain shares of stock, allegedly belonging to the conjugal partnership, be rescinded and said Defendant ordered to transfer said shares of stock in the name of Mrs. Harden or in that of Mr. and Mrs. Harden, should Mr. Harden be allowed to continue as administrator   of   said   partnership; chan   roblesvirtualawlibrary(   f   )   that   the   transfer,   made   by   Mr.   Harden   and/or by Defendant Salumbides,   as   his   attorney-in-fact,   of   36,000   shares   of   stock   of   the   Angelo  Mining Company, to some residents of Hongkong, be rescinded and said shares returned to the assets of the conjugal partnership and placed in the name of Mr. and Mrs. Harden; chan   roblesvirtualawlibrary(g) that the monthly allowance of Mrs. Harden be increased from P1,500 to P15,000; chan   roblesvirtualawlibrary(h) that, pending final decision, Mr. Harden be ordered to increase the allowance or pension of Mrs. Harden and their daughter Sarah Elizabeth to P10,000   a   month; chan   roblesvirtualawlibraryand   (i)   that   a   writ   of   preliminary   injunction   be   issued   restraining the Defendants from disposing of the assets of the conjugal partnership in fraud of Mrs. Harden.

By an order dated July 12, 1941, the court authorized the issuance of said writ, upon the filing of the corresponding bond. It appears that, pursuant to an agreement submitted by both parties, and with a view to avoiding unnecessary embarrassment, restraint or inconvenience in the financial operations of the business enterprises affected by said writ of preliminary injunction, the same was amended by an order dated July 19, 1941, in the sense that.

“ cralaw without prejudicing  in any way the rights of the parties  in this  case,  a separate bank account be established   in   the  Chartered  Bank  of   India,  Australia   and  China,  of  Manila,   and  all   transactions   in connection  with   the   aforesaid  businesses  passed   through   that   account  by  Mr.  Harden  or  his   duly authorized   representative,  who   at   present   is  Mr.   Salumbides,  without   the  necessity   of   securing   a particular order from this Court on each occasion; chan   roblesvirtualawlibrarythat the present funds in the Philippine National Bank in the name of Plaza Lunch and Fred M. Harden be utilized for the purpose of starting said special bank account in the Chartered Bank of India, Australia and China; chan   roblesvirtualawlibrarythat all income from the aforesaid businesses be deposited in this special bank account and no checks be drawn upon the same, except to pay the necessary overhead and running expenses including purchases of tobacco, merchandise, etc., required for the proper operation of said businesses; chan   roblesvirtualawlibrarythat a new set of books be opened by Mr. Harden or his  duly authorized representative covering all  business transactions passed through said special   bank   account   and   the   same   be   opened   for   inspection   by   the Plaintiff’s   duly   authorized representative.

“The order of injunction of July 12, 1941, is modified only to the above extent, and in all other respects is maintained.”

Subsequently, the Philippines was invaded by the Japanese and placed under military occupation. Then came the liberation, in the course of which the records of this case were destroyed. On October 23, 1946, said records were reconstituted at the instance of Appellee herein. Thereafter, the proceedings were resumed and, in due course, the Court of First Instance of Manila rendered, on or about October 31, 1949, a decision the dispositive part of which we quote:chanroblesvirtuallawlibrary

“In view of the foregoing considerations, this court finds and so holds that —

“(a)  Fred M. Harden abandoned his  domicile  of  origin  in New Jersey and established a domicile  of choice in Manila, Philippines, since 1901;

“(b)  The  matrimonial  domicile  of   Fred  M.  Harden  and  Esperanza  P.  de  Harden  was  established   in Manila, Philippines, from the date of their marriage on December 14, 1917;

“(c)  Since they did not execute any antenuptial contract before their marriage, all the properties, real or personal, acquired by either or both of them on and after December 14, 1917, up to the present, over and above the sum of P20,000.00 representing Fred M. Harden’s capital, are hereby declared conjugal properties;

“(d)  The total amount of P1,944,794.37 representing deposits in safety deposit boxes in the name of Jose Salumbides, the selling price of the house in Los Angeles, California, and the pre-war and post-war remittances abroad of Fred M. Harden, from which has already been deducted the sum of P160,000.00 covering payments for deficiency Federal income taxes and attorney’s fees, both in the tax case and the present  one,   is  hereby  declared   chargeable   to   the   share  ofDefendant Harden  and  deductible   from whatever participation he may still have in the said conjugal partnership upon the liquidation thereof, upon his failure to return and deposit them in the name of the Plaza Lunch with the Manila branch of the Chartered Bank of India, Australia and China up to the time this decision shall become final;

“(e)  A conjugal lien be annotated in the original and owner’s duplicate of Transfer Certificates of Title Nos. 24393, 52436 and 54911 of the Register of Deeds of Manila and in Original Certificate of Title No. 2292 of Quezon Province, and on all the certificates of shares belonging to said conjugal partnership, as well as in the corresponding books of the companies or corporations issuing them, whereby it will be made to appear that any subsequent alienation or encumbrance of said properties by Fred M. Harden alone or his representative without the consent of his wife will be deemed fraudulent and subject to revocation or cancellation for being in fraud and prejudicial to the right of Esperanza P. de Harden;

“( f )  Within a period of fifteen (15) days after this decision shall have become final, Fred M. Harden and Esperanza  P.  de  Harden are  hereby  ordered  to  execute  a  document   to  be  approved  by   this   court creating and express active trust upon the remaining cash assets and income of the conjugal partnership in the Philippines, whereby the Philippine Trust Company, with offices in Manila, will  act as trustee, subject to the right of Fred M. Harden to receive therefrom the sum of P2,500,00 a month by way of allowance and an equal amount for the Plaintiff as separate support and maintenance;

“(g)  Within thirty (30) days after this decision shall  have become final, Fred M. Harden shall   inform the Plaintiff of all the properties and businesses of the conjugal partnership, be they in the Philippines or abroad, and render a true and complete accounting of the earnings and profits thereof;

“(h)  The Plaintiff is entitled to litis expensae in the amount of P175,000.00 for services rendered by her counsel up to the rendition of this judgment, which Fred M. Harden or the herein receiver is ordered to pay within a period of fifteen (15) days after this decision has become final; chan roblesvirtualawlibraryand

“(i)  The writ of preliminary injunction of July 12, 1941, is hereby declared permanent and the order of receivership   of   November   20,   1946,   is   hereby   maintained,   but   said   auxiliary   remedies   will   be automatically lifted upon the conclusion of the annotation of the conjugal lien and the execution of the deed of trust above mentioned. Without costs.

“IT IS SO ORDERED.”

The Defendants appealed from said decision to this Court, where the case was docketed as case No. L-3687. While the appeal was thus pending before us, herein Appellee filed a manifestation and a motion, both dated February 20, 1952. In said “manifestation”, Appellee stated that Mrs. Harden had instructed 

him, by letter, to “discontinue all proceedings relative to” said case, “vacate all orders and judgments rendered therein, and abandon and nullify all her claims to the conjugal partnership existing between her and Mr. Harden”, in accordance with several instruments dated January 29, 1952, and executed without the knowledge, advise and consent of said Appellee, as counsel for Mrs. Harden, whereby: chanroblesvirtuallawlibrary (1) Mr. and Mrs. Harden had purportedly agreed to settle their differences in consideration of the sum of $5,000 paid by Mr. Harden to Mrs. Harden, and a monthly pension of P500 to be paid by him to her; chan 

roblesvirtualawlibrary(2) Mr. Harden had created a trust fund of $20,000 from which said monthly pension of $500 would be taken; chan  roblesvirtualawlibraryand (3) Mr. and Mrs. Harden had mutually released and forever discharged each other from all actions, debts, duties, accounts, demands and claims to the conjugal partnership, in consideration of the  sum of  $1.   It  was   further  asserted,   in Appellee’s   “manifestation”,   that   the  purpose  of   the  said instruments, executed by Mr. and Mrs. Harden, was to defeat the claim of the former for attorney’s fees, for which reason, he prayed, in his aforementioned motion, that

“a)  Pending the resolution of  this  motion,  the receiver appointed herein be authorized to continue holding the properties above mentioned in his custody in order not to defeat the undersigned’s inchoate lien on them;

“b)  A   day   set   aside   to   receive   the   evidence   of   the   undersigned   and   those   of   the Plaintiff and theDefendant Fred M. Harden, in order to determine the amount of fees due to the undersigned, by the appointment of a referee or commissioner for the reception of such

“c)  After due hearing, the undersigned be declared entitled to the sum of P400,000.00 as his fees for services rendered in behalf of the Plaintiff in this case, under paragraph 3 of the contract, Annex ‘A’, and to that end a charging lien therefore be established upon the properties above-mentioned;

“d)  And the receiver be ordered to pay to the undersigned the full amount of the fees to which the latter is found to be entitled.”

Counsel   for   the Defendants-Appellants,   in   turn,   moved   for   the   dismissal   of   the   case,   to whichAppellee objected. Acting upon the issues raised in such motion for dismissal and in Appellee’s motion to establish and enforce his charging lien, as counsel for Mrs. Harden, this Court issued on July 22, 1952, a resolution the pertinent part of which reads:chanroblesvirtuallawlibrary

“It will be seen from the above that the Defendants-Appellants pray for the complete dismissal of the above entitled case without prejudice to the annotation of the contingent claim of Attorney Claro M. Recto   on   the   property   under   receivership,   other   than   the   368,553   shares   of   the   Balatoc  Mining Company which belong to Fred M. Harden. On the other hand, Attorney Claro M. Recto agrees to the lifting of the writ  of preliminary  injunction,  the orders of contempt and commitment,  and all  other interlocutory orders which were issued in the course of this case, with the exception of the receivership, but objects to the dismissal of the case on the ground that, since receivership is merely an auxiliary remedy, the present case should be allowed to remain pending for the purpose of maintaining the receivership to safeguard his right to collect the fees that may be due him.

“Attorney Claro M. Recto prays that a commissioner or referee be immediately appointed by this Court to receive evidence in support of his allegations as to his attorney’s lien and its enforcement. Counsel for the Defendants-Appellants does not object to this proceeding provided that the restrictions set forth by him be observed. However, this Court does not have the proper facilities for receiving evidence in order to determine the amount of the fees claimed by Attorney Claro M. Recto, and it is deemed advisable that   this  matter  be  determined  by   the  Court  of   First   Instance.  This   is   specially   so   considering   the opposition to  the claim of  Attorney Claro M.  Recto filed by Attorney  J.  W. Ferrier,  Sr.   in  behalf  of Esperanza P. de Harden.

“In view of the foregoing, the above entitled case is hereby remanded to the court of origin in order to determine the amount of fees claimed by Attorney Claro M. Recto in his motion dated February 20, 1952.

“It is understood that, after said fees had been finally determined and paid, this case will be completely dismissed as prayed for by the Defendants-Appellants, without prejudice to considering the claim of the receiver for compensation as stated in his urgent motion dated July 2, 1952. “Pending the determination of the amount of fees claimed by Attorney Claro M. Recto, the writ of preliminary injunction, the orders of contempt and commitment, and all interlocutory orders which were issued in the course of this case, are hereby lifted and vacated, and with regard to the receivership, the same is hereby dissolved, only with respect to the 368,553 shares of the Balatoc Mining Company. As to the rest of the properties, the receivership shall be maintained.”

In compliance with said resolution, the records of this case were remanded to the lower court, which, on September   2,   1952,   designated   a   commissioner   to   receive   evidence   on   the   amount   of   the   fees collectible by herein Appellee and to report thereon. After due hearing, said commissioner submitted, on February 6, 1953, a report of about one hundred (100) pages of the printed record on appeal, setting forth,  in detail,  the evidence introduced by both parties, and his findings of fact, with the following conclusion and recommendation:chanroblesvirtuallawlibrary

“Taking into consideration the value of the properties involved in this litigation, the length of time in which   claimant  had  handled   the   same  for  Esperanza  Harden,   the  volume and quality  of   the  work performed,  the complicated  legal  questions  involved,  the responsibility  assumed by the claimant as counsel, his reputation in the bar, the difficulties encountered by him while handling the same in which he had to work hard every inch of the way because of the stiff oppositions filed by adverse counsel, the diligence he employed not only in the preservation of the records in his possession during the days of enemy  occupation  but   also   in   the  protection  of   the   interests   of   Esperanza  Harden,   his   successful handling of said case and those cases growing out of it which reached the Supreme Court, and the extra services he rendered in her behalf   in the tax and other court cases,  the undersigned Commissioner concludes   that   claimant   is  entitled   to   the   full   amount  of  20% of  Esperanza  Harden’s   share  of   the conjugal properties, as provided in paragraph 3 of the Contract of Professional Services, Exhibit JJJ.

“WHEREFORE, the undersigned Commissioner respectfully recommends that Atty. Claro M. Recto be paid the equivalent amount of 20% of Esperanza P. de Harden’s share of the conjugal properties or the sum of P369,410.04 as his contingent fee for services rendered in her behalf.”

After  appropriate  proceedings,   the   lower  court   rendered a  decision dated April  30,  1953,  adopting substantially said report of the commissioner, but increasing the contingent fee ofAppellee herein from P369,410.04, the sum recommended in the report, to P384,110.97. Hence, this appeal taken by Mr. and Mrs. Harden.

The first question for determination therein is the validity of the above-quoted contract of services, which the Appellants assail as void, mainly, upon the ground: chanroblesvirtuallawlibrary (1) that Mrs. Harden cannot bind the conjugal partnership without her husband’s consent; chan   roblesvirtualawlibrary(2) that Article 1491 of the Civil  Code of the Philippines in effect prohibits contingent fees; chan   roblesvirtualawlibrary(3) that the contract in question has for its purpose to secure a decree of divorce, allegedly in violation of Articles 1305, 1352 and 1409 of the Civil Code of the Philippines; chan roblesvirtualawlibraryand (4) that the terms of said contract are harsh, inequitable and oppressive.

The first  objection has no foundation in fact,   for the contract  in dispute does not seek to bind the conjugal partnership. By virtue of said contract, Mrs. Harden merely bound herself  — or assumed the personal obligation — to pay, by way of contingent fees, 20% of her share in said partnership.  The 

contract neither gives, nor purports to give, to the Appellee any right whatsoever, personal or real, in and to her aforesaid share. The amount thereof is simply a basis for the computation of said fees.

For the same reason, the second objection is, likewise, untenable. Moreover, it has already been held that contingent fees are not prohibited in the Philippines and are impliedly sanctioned by our Cannons (No. 13) of Professional Ethics. (see, also, Ulanday vs. Manila Railroad Co., 45 Phil., 540, 554.) Such is, likewise, the rule in the United States (Legal Ethics by Henry S. Drinker, p. 176).

“ cralaw in the United States, the great weight of authority recognizes the validity of contracts for contingent fees, provided such contracts are not in contravention of public policy, and it is only when the attorney has taken an unfair or unreasonable advantage of his client that such a claim is condemned.” (See 5 Am. Jur. 359 et seq.; chan roblesvirtualawlibraryBallentine, Law Dictionary, 2nd ed., p. 276.)

Needless to say, there is absolutely nothing in the records before us to show that Appellee herein had, in any manner, taken an unfair or unreasonable advantage of his client Mrs. Harden.

The third objection is not borne out, either by the language of the contract between them, or by the intent of the parties thereto. Its purpose was not to secure a divorce, or to facilitate or promote the procurement  of  a  divorce.   It  merely  sought   to  protect   the   interest  of  Mrs.  Harden  in   the conjugal partnership, during the pendency of a divorce suit she intended to file in the United States. What is more, inasmuch as Mr. and Mrs. Harden are admittedly citizens of the United States, their status and the dissolution thereof are governed — pursuant to Article 9 of the Civil Code of Spain (which was in force in the Philippines at the time of the execution of the contract in question) and Article 15 of the Civil Code of the Philippines — by the laws of the United States, which sanction divorce. In short, the contract of services, between Mrs. Harden and hereinAppellee,   is not contrary to law, morals, good customs, public order or public policy.

The last objection is based upon principles of equity, but, pursuant thereto, one who seeks equity must come   with   clean   hands   (Bastida,   et   al.,   vs.   Dy   Buncio   &   Co.,   93   Phil.,   195; chan   roblesvirtualawlibrary30 C.J. S.   475), and Appellants have not done so, for the circumstances surrounding the case show, to our satisfaction, that   their   aforementioned   agreements,   ostensibly   for   the   settlement   of   the   differences   between husband   and   wife,   were   made   for   the   purpose   of   circumventing   or   defeating   the   rights   of herein Appellee, under his above-quoted contract of services with Mrs. Harden. Indeed, having secured a  judgment  in her  favor,  acknowledging her rights   to the assets of   the conjugal  partnership,  which turned out to be worth almost P4,000,000 in addition to litis expensae in the sum of P175,000, it  is inconceivable that Mrs. Harden would have waived such rights, as well as the benefits of all orders and judgments in her favor, in consideration of the paltry sum of $5,000 allegedly paid to her by Mr. Harden and the additional sum of $20,000 to be paid by him in installments, at the rate of $500 a month. In fact, no explanation has been given for this most unusual avowed settlement between Mr. and Mrs. Harden. One cannot  even consider   the  possibility  of  a   reconciliation  between the  spouses,   the  same being inconsistent with the monetary consideration for said alleged settlement. What is more, the records show that the relations between said spouses — which were bad indeed, not only in July, 1941, when Mrs. Harden engaged the services of the Appellee,  but, even, before, for Mr. and Mrs. Harden were separated since 1938 — had worsened considerably thereafter, as evidence by an action for divorce filed by Mr. Harden in New Jersey, in July 1948, upon the ground of repeated acts of infidelity allegedly committed by Mrs. Harden in 1940 and 1941.

Again, it appears that Appellee had rendered, under the contract in question, the following services, for the benefit of Mrs. Harden:chanroblesvirtuallawlibrary

1.  He   succeeded   in   defeating Defendants’   motion   for   the   dissolution   of   the   writ   of   preliminary injunction, issued by the Court on July 12, 1941, and amended on July 19, 1941.

2.  On November 12, 1946, Appellee moved for the appointment of a receiver, upon the ground that, despite said writ of preliminary injunction, the Defendants had been disposing of the properties of the conjugal partnership for the purpose of defrauding Mrs. Harden. After due hearing, the court, by an order  dated  November  20,  1946,   directed   the   appointment  of  Abelardo  Perez   as   receiver  of   said properties,   upon   the   filing   of   a   P10,000   bond. Defendants asked,   on   February   13,   1947,   that   the receivership  be   suspended,   or   else,   that   they  be   allowed   to  file   a   bond   for   the  discharge  of   the receivership. Appellee replied   objecting   thereto,   unless   theDefendants posted   a   P4,000,000   bond. Subsequently or on March 5, 1947, the Defendants sought a reconsideration of the order of November 20, 1946, and the discharge of the receiver. By an order dated March 21, 1947, the Court authorized said discharged upon the filing,  by theDefendants,  of a bond in the sum of P500,000,  provided that Mr. Harden   “should  bring  back   all   the   368,553   shares   of   the  Balatoc  Mining  Co.,   in  his   name   to   the Philippines for deposit with the Clerk of Court, or with the Chartered Bank of India, Australia and China, at Manila  cralaw

“3.  On motion of the Appellee dated March 4, 1947, the Court, by an order dated April 5, 1947, directed Mr. Harden to remit to Mrs. Harden the sum of $2,500, to be charged against her litis expensae. Upon similar motion, filed by Appellee on or about April 26, 1947, the Court ordered Mr. Harden, on May 13, 1947, to furnish Mrs. Harden the sum of $5,000, under the same conditions.

4.  On June 21, 1947, the Defendants instituted Civil Case No. G. R. No. L-1499 of this Court, entitled “Fred M. Harden and Jose Salumbides vs. Emilio Peña, Abelardo Perez and Esperanza P. Harden” for the purpose of annulling and setting aside, by writ of certiorari, the aforementioned orders of the lower court dated July 12, 1941, November 20, 1946, and April 5 and May 13, 1947, and to restrain, in the meantime,   the   enforcement   thereof.   After   appropriate   proceedings,   in   the   course   of which Appellee appeared as counsel for Mrs. Harden, and like counsel for thePetitioners therein, filed several   lengthy,  detailed pleadings and memoranda,  decision was rendered on November 21,  1950, denying the writ of certiorari prayed for.

5.  On or about September 9, 1947, Appellee filed a motion alleging that despite the writ of preliminary injunction above mentioned, the Defendants had, fraudulently and without judicial  consent,  remitted abroad several sums of money aggregating P1,000,608.66, and praying that Mr. Harden be ordered to return this sum to the Philippines, within a stated period, said sum to be deposited with the account of the Plaza Lunch at the Manila Branch of the Chartered Bank of India, Australia and China. Mr. Harden objected   to   said  motion. Appellee filed   a   rejoinder,   to   which  Mr.   Harden   replied. Appellee filed   a rejoinder to the rejoinder. On October 7, 1947, the Court granted Appellee’s motion. Mr. Harden sought a reconsideration, which was opposed by the Appellee on October 27, 1947, and denied by an order dated November 13, 1947. Mr. Harden moved, on November 18, 1947, for the suspension of this order, which was immediately objected to by the Appellee and then denied by the Court.

6.  Inasmuch   as   said   order   of   November   13,   1947   had   not   been   complied  with, Appellee filed   on November 27, 1947, a motion praying that Mr. Harden be declared in contempt of court and punished accordingly. Meanwhile, or on November 24, 1947, Mr. Harden had instituted case G. R. No. L-1816 of this Court against Hon. Emilio Peña, as Judge of the Court of First Instance of Manila, and Mrs. Harden. In the petition therein filed, Mr. Harden applied for a writ of certiorari annulling said orders of Judge Peña of October 7 and November 13, 1947, and prayed that, pending disposition of the case, a writ of preliminary   injunction   be   issued   restraining   theRespondents therein   from   enforcing   said   orders, particularly   through   contempt   proceedings.   Hence,   the   lower   court   deferred   action   on   the aforementioned motion of November 27,  1947.  After due hearing,  this  Court,   in a resolution dated February 12, 1948, refused to issue the writ of preliminary injunction prayed for. Subsequently, or on November 21, 1950, decision was rendered denying the petition for a writ of certiorari.

7.  Soon after the issuance of our resolution in said case G. R. No. 1816, dated February 12, 1948, or to be exact on March 27, 1948, the lower court issued an order directing Mr. Harden to comply, within five (5) days from notice, with the order of October 7, 1947. On April 6, 1948,Appellee filed with the lower court the corresponding formal charges against Mr. Harden for contempt of court. After due hearing, Mr. Harden was, by an order of April 28, 1948, found guilty as charged and ordered confined “until he complies with the aforementioned orders” of October 7, 1947 and March 27, 1948. On motion of Mr. Harden, said order of April 28, 1948 was suspended until May 4, 1948, on which date he was arrested and placed in confinement at the New Bilibid Prison, in Muntinglupa, Rizal. On July 10, 1948, he filed with this Court a petition for a writ of habeas corpus against the Director of Prisons, (G. R. No. L-2349, entitled “Fred M. Harden vs. The Director of Prisons”), which, in due course was denied in a decision promulgated on October 22, 1948.

8.  During the military occupation of the Philippines by the Japanese, the Appellee made representations with the Japanese Government to prevent the commandeering of a business establishment belonging to Mr. and Mrs. Harden. Moreover, he succeeded in persuading the Japanese to refrain from interning Mrs. Harden and her daughter and to allow her to withdraw, from the former’s deposit in a local bank, from P200 to P250 a month, for their subsistence. He, likewise, lent her money to meet her needs and spent the sum of P55,000 in the preservation of the records and papers pertaining to the business and other properties of the conjugal partnership of Mr. and Mrs. Harden.

9.  Appellee assisted, also, the receiver, as his counsel and, in such capacity, took all steps essential for the proper discharge of the duties of the former. Among other things, Appelleesought and obtained judicial  authority  for  some important  acts  of  administration of,  and disposition by,  the receiver.  He (Appellee) secured judicial intervention for the protection and preservation of the assets of the conjugal partnership,   including  orders   for   the  delivery  of   certificates  of   stock,   the   return   thereof  and/or   its deposit with the clerk of court. He, likewise, represented the receiver in seeking war damage payments.

10.  In civil case No. 6222 of the Court of First Instance of Manila, entitled “Francisco Dalupan vs. Fred M. Harden”   for   the   recovery  of  P113,837.17,   it  was  decided,   through Appellee’s   intervention,   that   the conjugal assets would bear the payment of P22,767.43 only, the balance to be chargeable exclusively against Mr. Harden’s share of the conjugal partnership.

11.  Appellee instituted civil case No. 6940 of the Court of First Instance of Manila, entitled “Abelardo Perez   vs.  Chartered  Bank  of   India,  Australia   and  China   and   Fred  M.  Harden”,   for   the   recovery  of P1,000,608.66  and the  return  of  stock  certificates  of   the  Balatoc  Mining  Co.,  which  had been sent abroad.

12.  He (Appellee) represented Mrs. Harden in connection with a million-peso federal tax case against Mr. and Mrs. Harden.

13.  Appellee successfully blocked Mr. Harden’s attempts to withdraw: chanroblesvirtuallawlibrary (1) $53,000 and forward the same to the Collector  of   Internal  Revenue of  Los Angeles,  California; chan   roblesvirtualawlibrary(2)  $50,000.00,  allegedly  to defray expenses in resisting a new tax assessment against him in the United States; chan   roblesvirtualawlibraryand (3) P65,000 for his expenses.

Then too, the conjugal  partnership had varried and extensive business interests and its assets were worth almost P4,000,000. The pleadings, motions, oppositions, rejoinders, and memoranda filed, and the evidence introduced, in the aforementioned cases — in which Appellee was pitted against one of the most experienced and able members of the Philippine Bar — were numerous, extensive and exhaustive. For instance, the record on appeal in one of those cases, namely, G. R. No. L-3687, consisted of 966 pages.

In short, considering the character of the services rendered by the Appellee, the nature and importance of the issues in said litigations, the amount of labor, time (1941 to 1952) and trouble involved therein, the skill displayed in connection with said cases, the value of the property affected by the controversy, the professional character and standing of the Appellee, the risks assumed and the results obtained, we are of the opinion, and so hold, that the contract of services in question is neither harsh nor oppressive or inequitable.

Under their second assignment of error, Appellants maintain that:chanroblesvirtuallawlibrary

“The lower court erred in failing to find as a fact borne out by the evidence that the legal services of Attorney Claro M. Recto to Mrs. Esperanza P. de Harden, payment, for which is sought by him in this case, have already been paid by his immediate execution pending appeal of the decision in Civil Case No. CFI-R-59634   (SC-G.R.  No.   L-  3687),  wherein  he  collected   the  sum of  P176,000.00   for  all   such   legal services.”

Said   decision,   however,   states   clearly   that   the   aforementioned   sum   of   P175,000   represents   litis expensae,  and the contract  between the Appellee and Mrs.  Harden explicitly  declares   that   said   litis expensae shall  be “in addition to” Appellee’s  share of 25% of the  increase in the allowance of Mrs. Harden and his attorney’s fees of 20% of her share in the conjugal partnership. The second assignment of error is, therefore, devoid of merit.

Appellants, further contend, that:chanroblesvirtuallawlibrary

3.  The lower court erred in holding that the inchoate share of the wife, Esperanza P. de Harden, in the undissolved  and  unliquidated  conjugal  partnership  properties  of   the  Harden  spouses,   is   capable  of certain valuation before such dissolution and liquidation, and summarily assessing the value of Mrs. Harden’s share in such conjugal properties without proper evidence.

4.  “The lower court erred in awarding 20% of such inchoate share to Attorney Claro M. Recto from Mrs. Harden’s interests in the Harden conjugal properties, summarily assessing such 20% inchoate share as of a value of P384,110.97, and ordering the payment of said sum to Attorney Recto in pursuance of the provisions of paragraph 3 of the Contract of Professional Services.”

Appellants’ arguments in support thereof may be summarized as follows:chanroblesvirtuallawlibrary The contract of services in question provides   that Appellee’s   contingent   fees  shall  be  20% of   the  share  of  Mrs.  Harden  in   the conjugal   partnership.   Pursuant   to   law,   the   share   of  Mrs.   Harden   shall   be   determined   upon   the liquidation of said partnership, which has not taken place, as yet. What is more, it cannot be effected until the dissolution of the marriage relation between Mr. and Mrs. Harden. Inasmuch as this relation subsists,   it   follows that   the amount of  attorney’s   fees due toAppellee herein  should not  have been determined in the decision appealed from.

This   line   of   argument   overlooks   the   fact   that   said   contract   of   services  was  made,   principally,   in contemplation  of   a   suit   for  divorce   that,   according   to  Mrs.  Harden,   she   intended   to  file  before  a competent court in California, “and of the liquidation of the conjugal partnership between” her and Mr. Harden. Had she filed said action for divorce and secured a decree of divorce, said conjugal partnership would have been dissolved and then liquidated, and the share of Mrs. Harden therein would have been fixed.   However,   this   cannot   take   place,   either   now,   or   in   the   foreseeable   future,   owing   to   the aforementioned agreements between Mr. and Mrs. Harden, which were made for the evident purpose of   defeating Appellee’s   claim   for   attorney’s   fees.   In   other  words,   the  occurrence,  within   the  time contemplated by the parties — bearing in mind the nature of, and the circumstances under which they entered into, said contract of services — of the event upon which the amount of said fees depended, was rendered impossible by Mrs. Harden. Hence, whether such event be regarded as a condition or as a 

period,   she  may   not   insist   upon   its   occurrence,   prior   to   the   enforcement   of   the   rights   of   the herein Appellee, for “the condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment” (Art. 1186, Civil Code) and “the debtor shall  lose every right to make use of the period” when he “violates any undertaking, in consideration of which the creditor agreed to the period.” (Art. 1198, Civil Code.)

It should be noted, also, that the compensation agreed upon for Appellee’s services, consists of three (3) parts, namely:chanroblesvirtuallawlibrary (a) 25% of the increase in the allowance of Mrs. Harden; chan  roblesvirtualawlibrary(b) litis expensae; chan  roblesvirtualawlibraryand (c) 20% of her share in the conjugal partnership. The first part was dealt with in the first paragraph of their contract of services. The second and third parts were the object of the second and third paragraphs, respectively. The first paragraph limited the rights of Appelleethereunder to two (2) years, in the event of termination of the case or amicable settlement thereof within two (2) years from the filing of the complaint. No such limitation appears in the second and third paragraphs of said contract. Hence, the same were intended by the parties to be fully operative under any and all conditions.

It may not be amiss to add that the value of the properties involved has been assessed, not summarily, but after due notice and full dress hearing, in the course of which both parties introduced testimonial and documentary evidence. Appellants presented Exhibits 1 to 58, whereas those of the Appellee were so numerous that, having begun with Exhibit A, his last piece of documentary evidence was marked Exhibit 26 Y’s. The transcript of the hearing, which lasted ten (10) days, covers over 220 pages.

The   other   assignments   of   error  made   by Appellants herein   are  mere   corollaries   of   those   already disposed of, and, hence, no further discussion thereof is necessary.

In conclusion, it appears that the assets of the conjugal partnership between Mr. and Mrs. Harden are reasonably valued at P3,841,109.70. One-half (1/2) thereof, representing the share of Mrs. Harden, is therefore,  worth  P1,920,554.85.  Twenty  percentum (20%)  of   this  sum  is  P384,110.97,  which   is   the contingent fee due to the Appellee,  apart   from the  litis expensae already paid to him.   Inasmuch as the Appellee has collected, also, the sum of P80,000.00, on account of said contingent fees, there results in his favor a balance of P304,110.97.

Subject to this qualification, the decision appealed from is hereby affirmed, therefore, with costs against the Appellants. SO ORDERED.

G.R. No. 187512               June 13, 2012

REPUBLIC OF THE PHILIPPINES, Petitioner, vs.YOLANDA CADACIO GRANADA, Respondent.

D E C I S I O N

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 20091 and 3 April 20092issued by the Court of Appeals (CA), which affirmed the grant by the Regional Trial Court (RTC) of the Petition for Declaration of Presumptive Death of the absent spouse of respondent.

In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at Sumida Electric Philippines, an electronics company in Paranaque where both were then working. The two eventually got married at the Manila City Hall on 3 March 1993. Their marriage resulted in the birth of their son, Cyborg Dean Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan to seek employment. Yolanda claimed that from that time, she had not received any communication from her husband, notwithstanding efforts to locate him. Her brother testified that he had asked the relatives of Cyrus regarding the latter’s whereabouts, to no avail.

After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively dead. The Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-0530.

On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.

On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to locate Cyrus and thus failed to prove her well-founded belief that he was already dead. However, in an Order dated 29 June 2007, the RTC denied the motion.

Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41, Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the CA had no jurisdiction over the appeal. She argued that her Petition for Declaration of Presumptive Death, based on Article 41 of the Family Code, was a summary judicial proceeding, in which the judgment is immediately final and executory and, thus, not appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolanda’s Motion to Dismiss on the ground of lack of jurisdiction. Citing Republic v. Bermudez-Lorino,3 the CA ruled that a petition for declaration of presumptive death under Rule 41 of the Family Code is a summary proceeding. Thus, judgment thereon is immediately final and executory upon notice to the parties.

Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a Resolution dated 3 April 2009.4

Hence, the present Rule 45 Petition.

Issues

1. Whether the CA seriously erred in dismissing the Petition on the ground that the Decision of the RTC in a summary proceeding for the declaration of presumptive death is immediately final and executory upon notice to the parties and, hence, is not subject to ordinary appeal

2. Whether the CA seriously erred in affirming the RTC’s grant of the Petition for Declaration of Presumptive Death under Article 41 of the Family Code based on the evidence that respondent presented

Our Ruling

1. On whether the CA seriously erred in dismissing the Petition on the ground that the Decision of the RTC in a summary proceeding for the declaration of presumptive death is immediately final and executory upon notice to the parties and, hence, is not subject to ordinary appeal

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the RTC’s grant of the Petition for Declaration of Presumptive Death of the absent spouse under Article 41 of the Family Code. Citing Republic v. Bermudez-Lorino,5 the appellate court noted that a petition for

declaration of presumptive death for the purpose of remarriage is a summary judicial proceeding under the Family Code. Hence, the RTC Decision therein is immediately final and executory upon notice to the parties, by express provision of Article 247 of the same Code. The decision is therefore not subject to ordinary appeal, and the attempt to question it through a Notice of Appeal is unavailing.

We affirm the CA ruling.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (Underscoring supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding "as provided for" under the Family Code.

Further, Title XI of the Family Code is entitled "Summary Judicial Proceedings in the Family Law." Subsumed thereunder are Articles 238 and 247, which provide:

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.

x x x           x x x          x x x

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

Further, Article 253 of the Family Code reads:

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.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for declaration of presumptive death is a summary proceeding, the judgment of the court therein shall be immediately final and executory.

In Republic v. Bermudez-Lorino,6 the Republic likewise appealed the CA’s affirmation of the RTC’s grant of respondent’s Petition for Declaration of Presumptive Death of her absent spouse. The Court therein held that it was an error for the Republic to file a Notice of Appeal when the latter elevated the matter to the CA, to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code, supra, are "immediately final and executory."

x x x           x x x          x x x

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the RTC’s decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed the appeal outright on that ground.

Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the Court in Republic v. Bermudez-Lorino, additionally opined that what the OSG should have filed was a petition for certiorari under Rule 65, not a petition for review under Rule 45.

In the present case, the Republic argues that Bermudez-Lorino has been superseded by the subsequent Decision of the Court in Republic v. Jomoc,7 issued a few months later.

In Jomoc, the RTC granted respondent’s Petition for Declaration of Presumptive Death of her absent husband for the purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court disapproved the Notice of Appeal on the ground that, under the Rules of Court,8 a record on appeal is required to be filed when appealing special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for declaration of death or absence under Rule 72, Section 1(m), expressly falls under the category of special proceedings, a petition for declaration of presumptive death under Article 41 of the Family Code is a summary proceeding, as provided for by Article 238 of the same Code. Since its purpose was to enable her to contract a subsequent valid marriage, petitioner’s action was a summary proceeding based on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the Rules of Court. Considering that this action was not a special proceeding, petitioner was not required to file a record on appeal when it appealed the RTC Decision to the CA.

We do not agree with the Republic’s argument that Republic v. Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not expound on the characteristics of a summary proceeding under the Family Code. In contrast, the Court in Bermudez-Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a vehicle for questioning the trial court’s Decision in a summary proceeding for declaration of presumptive death under Article 41 of the Family Code was intended "to set the records straight and for the future guidance of the bench and the bar."

At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments rendered in summary proceedings under the Family Code when it ruled in Republic v. Tango:9

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. 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.

In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court.

Evidently then, the CA did not commit any error in dismissing the Republic’s Notice of Appeal on the ground that the RTC judgment on the Petition for Declaration of Presumptive Death of respondent’s spouse was immediately final and executory and, hence, not subject to ordinary appeal.

2. On whether the CA seriously erred in affirming the RTC’s grant of the Petition for Declaration of Presumptive Death under Article 41 of the Family Code based on the evidence that respondent had presented

Petitioner also assails the RTC’s grant of the Petition for Declaration of Presumptive Death of the absent spouse of respondent on the ground that she had not adduced the evidence required to establish a well-founded belief that her absent spouse was already dead, as expressly required by Article 41 of the Family Code. Petitioner cites Republic v. Nolasco,10 United States v. Biasbas11 and Republic v. Court of Appeals and Alegro12 as authorities on the subject.

In Nolasco, petitioner Republic sought the reversal of the CA’s affirmation of the RTC’s grant of respondent’s Petition for Declaration of Presumptive Death of his absent spouse, a British subject who left their home in the Philippines soon after giving birth to their son while respondent was on

board a vessel working as a seafarer. Petitioner Republic sought the reversal of the ruling on the ground that respondent was not able to establish his "well-founded belief that the absentee is already dead," as required by Article 41 of the Family Code. In ruling thereon, this Court recognized that this provision imposes more stringent requirements than does Article 83 of the Civil Code.13 The Civil Code provision merely requires either that there be no news that the absentee is still alive; or that the absentee is generally considered to be dead and is believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. In comparison, the Family Code provision prescribes a "well-founded belief" that the absentee is already dead before a petition for declaration of presumptive death can be granted. As noted by the Court in that case, the four requisites for the declaration of presumptive death under the Family Code are as follows:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

In evaluating whether the present spouse has been able to prove the existence of a "well-founded belief" that the absent spouse is already dead, the Court in Nolasco cited United States v. Biasbas,14 which it found to be instructive as to the diligence required in searching for a missing spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining the whereabouts of his first wife, considering his admission that that he only had a suspicion that she was dead, and that the only basis of that suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of the CA ruling affirming the RTC’s grant of the Petition for Declaration of Presumptive Death of the absent spouse on the ground that the respondent therein had not been able to prove a "well-founded belief" that his spouse was already dead. The Court reversed the CA, granted the Petition, and provided the following criteria for determining the existence of a "well-founded belief" under Article 41 of the Family Code:

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello Callon writes that "es menester que su creencia sea firme se funde en motivos racionales."

Belief is a state of the mind or condition prompting the doing of an overt act. 1âwphi1 It may be proved by direct evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or assist to a determination probably founded in truth. Any fact or circumstance relating to the

character, habits, conditions, attachments, prosperity and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends to explain or characterize their disappearance or throw light on their intentions, competence [sic] evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by present spouse. (Footnotes omitted, underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did not initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio testified to having inquired about the whereabouts of Cyrus from the latter’s relatives, these relatives were not presented to corroborate Diosdado’s testimony. In short, respondent was allegedly not diligent in her search for her husband. Petitioner argues that if she were, she would have sought information from the Taiwanese Consular Office or assistance from other government agencies in Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not. Worse, she failed to explain these omissions.

The Republic’s arguments are well-taken. Nevertheless, we are constrained to deny the Petition.

The RTC ruling on the issue of whether respondent was able to prove her "well-founded belief" that her absent spouse was already dead prior to her filing of the Petition to declare him presumptively dead is already final and can no longer be modified or reversed. Indeed, "[n]othing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law."15

WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.

SO ORDERED.

G.R. No. L-28274 April 30, 1982

IN THE MATTER OF THE PETITION FOR CHANGE OF NAME. DOLORES GEMORA PADILLA, in representation of her minor children MICHAEL, ABIGAIL, RAFAEL, GABRIEL and ANNABELLE, all surnamed COPUACO, except the last whose surname is CO, petitioner-appellee, vs.REPUBLIC OF THE PHILIPPINES, oppositor- appellant.

 

ESCOLIN, J.:

This is an appeal by the State from the decision of the Court of First Instance of Pampanga perfected before the effectivity of Republic Act No. 5440 — granting the petition of Dolores Gemora

for change of surname of her minor children: Michael, Abigail, Rafael, Gabriel and Annabelle, from "Copuaco" or "Co" to "Padilla".

Dolores Gemora and Vincent Co, a Chinese national, were married on May 5, 1954. This matrimonial union begot five children, namely: Michael Copuaco, Abigail Copuaco, Rafael Copuaco, Gabriel Copuaco, and Annabelle Co.

Sometime in November 1960, Vincent Co left the conjugal abode in Caloocan City and has since never returned to, or even visited, his family. It is alleged that he was a fugitive from justice, having been charged with several offenses of estafa before the Court of First Instance of Manila 1 and the City Court of Caloocan City. 2

Because of his continuous absence, the Court of First Instance of Pampanga, on petition of Dolores Gemora, issued an order dated December 29, 1964 in Sp. Proc. No. 1776, declaring Vincent Co as an absentee. 3

On October 30, 1965, Dolores Gemora contracted a second marriage with Sgt. Edward Padilla, an Americas serviceman stationed at Clark Air Base, Angeles City. The five minor children, who had been living with said spouses, were generously supported by Padilla and were treated by him with affection as if they were his own children.

This harmonious relation existing between said minors and their stepfather prompted Dolores Gemora to file the instant petition for change of the minors' surname from "Copuaco" or "Co" to "Padilla", which petition was granted by the lower court after due notice and hearing.

Hence, this appeal.

We find merit in the contention of the Solicitor General that our laws do not authorize legitimate children to adopt the surname of a person who is not their father. Said minors are the legitimate children of Vincent Co; and Article 364 of the Civil Code explicitly provides that "legitimate children ... shall principally use the surname of their father."

To allow said minors to adopt the surname of their mother's second husband, who is not their father, could result in confusion in their paternity. It could also create the suspicion that said minors, who were born during the coverture of their mother with her first husband, were in fact sired by Edward Padilla, thus bringing their legitimate status into discredit.

The case before Us is not of first impression. In Moore vs. Republic, 4 a case involving the same factual melieu, We held that:

Our laws do not authorize a legitimate child to use the surname of a person who is not his father. Article 364 of the Civil Code specifically provides that legitimate children shall principally use the surname of their father, and Article 369 of the same Code provides that in case of annulment of a voidable marriage the children conceived before the annulment shall principally use the surname of the father, and considering by analogy the effect of a decree of divorce, it is correctly concluded that the children who are conceived before such a decree should also be understood as carrying the surname of the real father.

If a child born out of a lawful wedlock be allowed to bear the surname of the second husband of the mother, should the first husband die or be separated by a decree of

divorce, there may result a confusion as to his real paternity. In the long run the change may redound to the prejudice of the child in the community. While the purpose which may have animated petitioner, the minor's mother, is plausible and may run along the feeling of cordiality and spiritual relationship that pervades among the members of the family of her second husband, there is a legal barrier which cannot at present be overlooked or brushed aside. ...

Apart from the legal obstacles discussed above, We consider the instant action taken by petitioner in behalf of her minor children to be premature. Indeed, the matter of change of their surname should better be left to the judgment and discretion of the children themselves when they reach the age of maturity. If in their adulthood they want to change their surname, then they themselves or any of them may take such appropriate action as the law may permit.

WHEREFORE, the decision of the lower court granting the petition is hereby set aside, and the petition dismissed. No costs.

SO ORDERED.

G.R. No. 174689             October 22, 2007

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

D E C I S I O N

CORONA, J.:

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

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

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

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

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

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

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

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

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

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

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

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

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

The [c]ourt rules in the affirmative.

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

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

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

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,

specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5

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

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

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

The petition lacks merit.

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

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

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

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

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

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

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

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

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude

the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.

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

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

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

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

(3) The change will avoid confusion.

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

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

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

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

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

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

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now

be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23

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

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

xxx       xxx       xxx

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

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

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

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

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

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

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

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

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status

and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

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

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

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

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

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

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

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

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

xxx       xxx       xxx (emphasis supplied)

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

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a

male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female."

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

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

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

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

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

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

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege.

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

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

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

REPUBLIC OF THE PHILIPPINES,

Petitioner,

- versus -

JENNIFER B. CAGANDAHAN,

Respondent.

G.R. No. 166676

Present:

Quisumbing, J., Chairperson,

Carpio Morales,

Tinga,

VELASCO, JR., and

BRION, JJ.

Promulgated:

September 12, 2008x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISIONQUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahan’s birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to "male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that respondent’s condition is known as CAH. He explained that genetically respondent is female but because her body secretes male hormones, her female organs did not develop normally and she has two sex organs – female and male. He testified that this condition is very rare, that respondent’s uterus is not fully developed because of lack of female hormones, and that she has no monthly period. He further testified that respondent’s condition is permanent and recommended the change of gender because respondent has made up her mind, adjusted to her chosen role as male, and the gender change would be advantageous to her.

The RTC granted respondent’s petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the granting of his petition. It was medically proven that petitioner’s body produces male hormones, and first his body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal person and wants to be acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate, and other pertinent records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:

I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED WITH; AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A "MALE."4

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondent’s petition before the court a quo did not implead the local civil registrar.5 The OSG further contends respondent’s petition is fatally defective since it failed to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3) years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court.6 The OSG argues that Rule 108 does not allow change of sex or gender in the birth certificate and respondent’s claimed medical condition known as CAH does not make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in the course of the proceedings,8 respondent is actually a male person and hence his birth certificate has to be corrected to reflect his true sex/gender,9 change of sex or gender is allowed under Rule 108,10 and respondent substantially complied with the requirements of Rules 103 and 108

of the Rules of Court.11

Rules 103 and 108 of the Rules of Court provide:

Rule 103

CHANGE OF NAME

Section 1. Venue. – A person desiring to change his name shall present the petition to the Regional Trial Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic Relations Court].

Sec. 2. Contents of petition. – A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

Sec. 3. Order for hearing. – If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

Sec. 4. Hearing. – Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

Sec. 5. Judgment. – Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

Sec. 6. Service of judgment. – Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register.

Rule 108

CANCELLATION OR CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY

Section 1. Who may file petition. – Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located.

Sec. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

Sec. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

Sec. 4. Notice and publication. – Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province.

Sec. 5. Opposition. – The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.

Sec. 6. Expediting proceedings. – The court in which the proceedings is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings.

Sec. 7. Order. – After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because respondent’s petition did not implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding for the correction of name in the civil registry. He is an indispensable party without whom no final determination of the case can be had.[12] Unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling much too short of the requirements of the rules.13 The corresponding petition should also implead as respondents the civil registrar and all other persons who may have or may claim to have any interest that would be affected thereby.14 Respondent, however,

invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar.

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

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

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048[17] in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.18

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.19

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

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

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

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

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.20

Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine adopted the term "intersexuality" to apply to human beings who cannot be classified as either male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality "is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes."

Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role.[23] Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals.[24] More commonly, an intersex individual is considered as suffering from a "disorder" which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. "It has been suggested that there is some middle ground between the sexes, a ‘no-man’s land’ for those individuals who are neither truly ‘male’ nor truly ‘female’."[25] The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the

subject’s birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes. However, respondent’s body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication,[26] to force his body into the categorical mold of a female

but he did not. He chose not to do so. Nature has instead taken its due course in respondent’s development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an "incompetent"[27] and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent’s position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.

As for respondent’s change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.[28] The trial court’s grant of respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent’s change of name merely recognizes his preferred gender, we find merit in respondent’s change of name. Such a change will conform with the change of the entry in his birth certificate from female to male.

WHEREFORE, the Republic’s petition is DENIED. The Decision dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

G.R. No. L-2935             March 23, 1909

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.GEORGE I. FRANK, defendant-appellant.

Bishop and O'Brien for appellant. Attorney-General Wilfley for appellee.

JOHNSON, J.:

Judgment was rendered in the lower court on the 5th day of September, 1905. The defendant appealed. On the 12th day of October, 1905, the appellant filed his printed bill of exceptions with the clerk of the Supreme Court. On the 5th day of December, 1905, the appellant filed his brief with the clerk of the Supreme Court. On the 19th day of January, 1906, the Attorney-General filed his brief in said cause. Nothing further was done in said cause until on or about the 30th day of January, 1909, when the respective parties were requested by this court to prosecute the appeal under the penalty of having the same dismissed for failure so to do; whereupon the appellant, by petition, had the caused placed upon the calendar and the same was heard on the 2d day of February, 1909.

The facts from the record appear to be as follows:

First. That on or about the 17th day of April, 1903, in the city of Chicago, in the state of Illinois, in the United States, the defendant, through a respective of the Insular Government of the Philippine Islands, entered into a contract for a period of two years with the plaintiff, by which the defendant was to receive a salary of 1,200 dollars per year as a stenographer in the service of the said plaintiff, and in addition thereto was to be paid in advance the expenses incurred in traveling from the said city of Chicago to Manila, and one-half salary during said period of travel.

Second. Said contract contained a provision that in case of a violation of its terms on the part of the defendant, he should become liable to the plaintiff for the amount expended by the Government by way of expenses incurred in traveling from Chicago to Manila and one-half salary paid during such period.

Third. The defendant entered upon the performance of his contract upon the 30th day of April, 1903, and was paid half-salary from that date until June 4, 1903, the date of his arrival in the Philippine Islands.

Fourth. That on the 11th day of February, 1904, the defendant left the service of the plaintiff and refused to make further compliance with the terms of the contract.

Fifth. On the 3d day of December, 1904, the plaintiff commenced an action in the Court of First Instance of the city of Manila to recover from the defendant the sum of 269.23 dollars, which amount the plaintiff claimed had been paid to the defendant as expenses incurred in traveling from Chicago to Manila, and as half salary for the period consumed in travel.

Sixth. It was expressly agreed between the parties to said contract that Laws No. 80 and No. 224 should constitute a part of said contract.

To the complaint of the plaintiff the defendant filed a general denial and a special defense, alleging in his special defense that the Government of the Philippine Islands had amended Laws No. 80 and No. 224 and had thereby materially altered the said contract, and also that he was a minor at the time the contract was entered into and was therefore not responsible under the law.

To the special defense of the defendant the plaintiff filed a demurrer, which demurrer the court sustained.

Upon the issue thus presented, and after hearing the evidence adduced during the trial of the cause, the lower court rendered a judgment against the defendant and in favor of the plaintiff for the sum of 265.90 dollars. The lower court found that at the time the defendant quit the service of the plaintiff

there was due him from the said plaintiff the sum of 3.33 dollars, leaving a balance due the plaintiff in the sum of 265.90 dollars. From this judgment the defendant appealed and made the following assignments of error:

1. The court erred in sustaining plaintiff's demurrer to defendant's special defenses.

2. The court erred in rendering judgment against the defendant on the facts.

With reference to the above assignments of error, it may be said that the mere fact that the legislative department of the Government of the Philippine Islands had amended said Acts No. 80 and No. 224 by the Acts No. 643 and No. 1040 did not have the effect of changing the terms of the contract made between the plaintiff and the defendant. The legislative department of the Government is expressly prohibited by section 5 of the Act of Congress of 1902 from altering or changing the terms of the contract. The right which the defendant had acquired by virtue of Acts No. 80 and No. 224 had not been changed in any respect by the fact that said laws had been amended. These acts, constituting the terms of the contract, still constituted a part of said contract and were enforceable in favor of the defendant.

The defendant alleged in his special defense that he was a minor and therefore the contract could not be enforced against him. The record discloses that, at the time the contract was entered into in the State of Illinois, he was an adult under the laws of that State and had full authority to contract. The plaintiff [the defendant] claims that, by reason of the fact that, under the laws of the Philippine Islands at the time the contract was made, male persons in said Islands did not reach their majority until they had attained the age of 23 years, he was not liable under said contract, contending that the laws of the Philippine Islands governed. It is not disputed — upon the contrary the fact is admitted — that at the time and place of the making of the contract in question the defendant had full capacity to make the same. No rule is better settled in law than that matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where the contract is made. (Scudder vs. Union National Bank, 91 U. S., 406.) Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting a remedy, such as the bringing of suit, admissibility of evidence, and statutes of limitations, depend upon the law of the place where the suit is brought. (Idem.)

The defendant's claim that he was an adult when he left Chicago but was a minor when he arrived at Manila; that he was an adult at the time he made the contract but was a minor at the time the plaintiff attempted to enforce the contract, more than a year later, is not tenable.

Our conclusions with reference to the first above assignment of error are, therefore:

First. That the amendments to Acts No. 80 and No. 224 in no way affected the terms of the contract in question; and

Second. The plaintiff [defendant] being fully qualified to enter into the contract at the place and time the contract was made, he cannot plead infancy as a defense at the place where the contract is being enforced.

We believe that the above conclusions also dispose of the second assignment of error.

For the reasons above stated, the judgment of the lower court is affirmed, with costs.