G.R. No.

154380 October 5, 2005

REPUBLIC
OF
vs.
CIPRIANO ORBECIDO III, Respondent.

THE

PHILIPPINES,

Petitioner,

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign
citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse
likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on this
apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional
Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the
motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is
capacitated to remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by
reason of the divorce decree obtained against him by his American wife, the petitioner is given the
capacity to remarry under the Philippine Law.
IT IS SO ORDERED.
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ
in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter,
Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later,
Cipriano discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then
married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut
Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of
Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted
the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought
reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case
because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino
citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for
1

legal separation.5 Furthermore, the OSG argues there is no law that governs respondents situation. The
OSG posits that this is a matter of legislation and not of judicial determination.6
For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when
his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise
capacitated by operation of law pursuant to Section 12, Article II of the Constitution.7
At the outset, we note that the petition for authority to remarry filed before the trial court actually
constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court
provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petitionAny person interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other
governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration
of his rights or duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the
controversy must be between persons whose interests are adverse; (3) that the party seeking the relief
has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.8
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino
citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in
the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its
duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of
his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue
raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues
and puts into question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the
case of respondent? Necessarily, we must dwell on how this provision had come about in the first place,
and what was the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise
known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation presented by the case at
hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties
are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American
citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried
an American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings on the Family Code, the Catholic Bishops Conference
of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them
abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners
who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those
whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here
and can re-marry. We propose that this be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The
Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein
that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently,
the Filipino spouse is capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of the celebration of the marriage, the parties
were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties
were, as in this case, Filipino citizens when they got married. The wife became a naturalized American
citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter
3

dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine
law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry
as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact
and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it
should be construed according to its spirit and reason, disregarding as far as necessary the letter of the
law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as
they come within its spirit or intent.
If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino
spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of
Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as
follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage,
but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the
latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage
that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife
subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced"
Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file
either a petition for annulment or a petition for legal separation. Annulment would be a long and
tedious process, and in this particular case, not even feasible, considering that the marriage of the
parties appears to have all the badges of validity. On the other hand, legal separation would not be a
sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse
would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted by respondent
concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one
who alleges a fact has the burden of proving it and mere allegation is not evidence.13
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was
naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our
4

own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it.14 Such foreign law must also be proved as our courts cannot take judicial notice
of foreign laws. Like any other fact, such laws must be alleged and proved.15 Furthermore, respondent
must also show that the divorce decree allows his former wife to remarry as specifically required in
Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter
into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O.
No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been
divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient evidence submitted and on record, we are
unable to declare, based on respondents bare allegations that his wife, who was naturalized as an
American citizen, had obtained a divorce decree and had remarried an American, that respondent is
now capacitated to remarry. Such declaration could only be made properly upon respondents
submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated
May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del
Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 124862 December 22, 1998

FE
D.
QUITA,
vs.
COURT OF APPEALS and BLANDINA DANDAN, * respondents.

petitioner,

FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in the Philippines on 18 May 1941. They
were not however blessed with children. Somewhere along the way their relationship soured. Eventually
Fe sued Arturo for divorce in San Francisco, California, U.S.A. She submitted in the divorce proceedings a
private writing dated 19 July 1950 evidencing their agreement to live separately from each other and a
settlement of their conjugal properties. On 23 July 1954 she obtained a final judgment of divorce. Three
(3) weeks thereafter she married a certain Felix Tupaz in the same locality but their relationship also
ended in a divorce. Still in the U.S.A., she married for the third time, to a certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a petition with
the Regional Trial Court of Quezon City for issuance of letters of administration concerning the estate of
Arturo in favor of the Philippine Trust Company. Respondent Blandina Dandan (also referred to as
Blandina Padlan), claiming to be the surviving spouse of Arturo Padlan, and Claro, Alexis, Ricardo,
Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the children of Arturo Padlan opposed
the petition and prayed for the appointment instead of Atty. Leonardo Casaba, which was resolved in
favor of the latter. Upon motion of the oppositors themselves, Atty. Cabasal was later replaced by
Higino Castillon. On 30 April 1973 the oppositors (Blandina and Padlan children) submitted certified
photocopies of the 19 July 1950 private writing and the final judgment of divorce between petitioner
and Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving brother of the deceased Arturo,
intervened.
On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and the
distribution of his estate. At the scheduled hearing on 23 October 1987, private respondent as well as
the six (6) Padlan children and Ruperto failed to appear despite due notice. On the same day, the trial
court required the submission of the records of birth of the Padlan children within ten (10) days from
receipt thereof, after which, with or without the documents, the issue on the declaration of heirs would
be considered submitted for resolution. The prescribed period lapsed without the required documents
being submitted.
The trial court invoking Tenchavez v. Escao which held that "a foreign divorce between Filipino citizens
sought and decreed after the effectivity of the present Civil Code (Rep. Act 386) was not entitled to
recognition as valid in this jurisdiction," disregarded the divorce between petitioner and Arturo.
Consecuently, it expressed the view that their marriage subsisted until the death of Arturo in 1972.
Neither did it consider valid their extrajudicial settlement of conjugal properties due to lack of judicial
approval. On the other hand, it opined that there was no showing that marriage existed between private
respondent and Arturo, much less was it shown that the alleged Padlan children had been
acknowledged by the deceased as his children with her. As regards Ruperto, it found that he was a
brother of Arturo. On 27 November 1987 only petitioner and Ruperto were declared the intestate heirs
of Arturo. Accordingly, equal adjudication of the net hereditary estate was ordered in favor of the two
intestate heirs.
On motion for reconsideration, Blandina and the Padlan children were allowed to present proofs that
the recognition of the children by the deceased as his legitimate children, except Alexis who was
recognized as his illegitimate child, had been made in their respective records of birth. Thus on 15
6

February 1988 6 partial reconsideration was granted declaring the Padlan children, with the exception of
Alexis, entitled to one-half of the estate to the exclusion of Ruperto Padlan, and petitioner to the other
half. 7 Private respondent was not declared an heir. Although it was stated in the aforementioned
records of birth that she and Arturo were married on 22 April 1947, their marriage was clearly void since
it was celebrated during the existence of his previous marriage to petitioner.
In their appeal to the Court of Appeals, Blandina and her children assigned as one of the errors allegedly
committed by the trial court the circumstance that the case was decided without a hearing, in violation
of Sec. 1, Rule 90, of the Rules of Court, which provides that if there is a controversy before the court as
to who are the lawful heirs of the deceased person or as to the distributive shares to which each person
is entitled under the law, the controversy shall be heard and decided as in ordinary cases.
Respondent appellate court found this ground alone sufficient to sustain the appeal; hence, on 11
September 1995 it declared null and void the 27 November 1987 decision and 15 February 1988 order
of the trial court, and directed the remand of the case to the trial court for further proceedings. 8 On 18
April 1996 it denied reconsideration.
Should this case be remanded to the lower court for further proceedings? Petitioner insists that there is
no need because, first, no legal or factual issue obtains for resolution either as to the heirship of the
Padlan children or as to the decedent; and, second, the issue as to who between petitioner and private
respondent is the proper hier of the decedent is one of law which can be resolved in the present
petition based on establish facts and admissions of the parties.
We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there is a
controversy before the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.
We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan children to
inherit from the decedent because there are proofs that they have been duly acknowledged by him and
petitioner herself even recognizes them as heirs of Arturo Padlan; 10 nor as to their respective hereditary
shares. But controversy remains as to who is the legitimate surviving spouse of Arturo. The trial court,
after the parties other than petitioner failed to appear during the scheduled hearing on 23 October 1987
of the motion for immediate declaration of heirs and distribution of estate, simply issued an order
requiring the submission of the records of birth of the Padlan children within ten (10) days from receipt
thereof, after which, with or without the documents, the issue on declaration of heirs would be deemed
submitted for resolution.
We note that in her comment to petitioner's motion private respondent raised, among others, the issue
as to whether petitioner was still entitled to inherit from the decedent considering that she had secured
a divorce in the U.S.A. and in fact had twice remarried. She also invoked the above quoted procedural
rule. 11 To this, petitioner replied that Arturo was a Filipino and as such remained legally married to her
in spite of the divorce they obtained. 12 Reading between the lines, the implication is that petitioner was
no longer a Filipino citizen at the time of her divorce from Arturo. This should have prompted the trial
court to conduct a hearing to establish her citizenship. The purpose of a hearing is to ascertain the truth
of the matters in issue with the aid of documentary and testimonial evidence as well as the arguments
of the parties either supporting or opposing the evidence. Instead, the lower court perfunctorily settled
her claim in her favor by merely applying the ruling in Tenchavez v. Escao.

Then in private respondent's motion to set aside and/or reconsider the lower court's decision she
stressed that the citizenship of petitioner was relevant in the light of the ruling in Van Dorn v. Romillo Jr.
13
that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are
valid according to their national law. She prayed therefore that the case be set for hearing. 14 Petitioner
opposed the motion but failed to squarely address the issue on her citizenship. 15 The trial court did not
grant private respondent's prayer for a hearing but proceeded to resolve her motion with the finding
that both petitioner and Arturo were "Filipino citizens and were married in the Philippines." 16 It
maintained that their divorce obtained in 1954 in San Francisco, California, U.S.A., was not valid in
Philippine jurisdiction. We deduce that the finding on their citizenship pertained solely to the time of
their marriage as the trial court was not supplied with a basis to determine petitioner's citizenship at the
time of their divorce. The doubt persisted as to whether she was still a Filipino citizen when their divorce
was decreed. The trial court must have overlooked the materiality of this aspect. Once proved that she
was no longer a Filipino citizen at the time of their divorce, Van Dorn would become applicable and
petitioner could very well lose her right to inherit from Arturo.
Respondent again raised in her appeal the issue on petitioner's citizenship; it did not merit enlightenment however
from petitioner. In the present proceeding, petitioner's citizenship is brought anew to the fore by private
respondent. She even furnishes the Court with the transcript of stenographic notes taken on 5 May 1995 during
the hearing for the reconstitution of the original of a certain transfer certificate title as well as the issuance of new
owner's duplicate copy thereof before another trial court. When asked whether she was an American citizen
19
petitioner answered that she was since 1954. Significantly, the decree of divorce of petitioner and Arturo was
obtained in the same year. Petitioner however did not bother to file a reply memorandum to erase the uncertainty
about her citizenship at the time of their divorce, a factual issue requiring hearings to be conducted by the trial
court. Consequently, respondent appellate court did not err in ordering the case returned to the trial court for
further proceedings.
We emphasize however that the question to be determined by the trial court should be limited only to the right of
petitioner to inherit from Arturo as his surviving spouse. Private respondent's claim to heirship was already
resolved by the trial court. She and Arturo were married on 22 April 1947 while the prior marriage of petitioner
and Arturo was subsisting thereby resulting in a bigamous marriage considered void from the beginning under
Arts. 80 and 83 of the Civil Code. Consequently, she is not a surviving spouse that can inherit from him as this
status presupposes a legitimate relationship.
As regards the motion of private respondent for petitioner and a her counsel to be declared in contempt of court
21
and that the present petition be dismissed for forum shopping, the same lacks merit. For forum shopping to exist
the actions must involve the same transactions and same essential facts and circumstances. There must also be
22
identical causes of action, subject matter and issue. The present petition deals with declaration of heirship while
the subsequent petitions filed before the three (3) trial courts concern the issuance of new owner's duplicate
copies of titles of certain properties belonging to the estate of Arturo. Obviously, there is no reason to declare the
existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals ordering the remand of the case
to the court of origin for further proceedings and declaring null and void its decision holding petitioner Fe D. Quita
and Ruperto T. Padlan as intestate heirs is AFFIRMED. The order of the appellate court modifying its previous
decision by granting one-half (1/2) of the net hereditary estate to the Padlan children, namely, Claro, Ricardo,
Emmanuel, Zenaida and Yolanda, with the exception of Alexis, all surnamed Padlan, instead of Arturo's brother
Ruperto Padlan, is likewise AFFIRMED. The Court however emphasizes that the reception of evidence by the trial
court should he limited to the hereditary rights of petitioner as the surviving spouse of Arturo Padlan.
The motion to declare petitioner and her counsel in contempt of court and to dismiss the present petition for
forum shopping is DENIED. SO ORDERED.

G.R. No. L-12105

January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor-appellee,

vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA BOHANAN, oppositorsappellants.
Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose, presiding,
dismissing the objections filed by Magdalena C. Bohanan, Mary Bohanan and Edward Bohanan to the
project of partition submitted by the executor and approving the said project.
On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding, admitted to
probate a last will and testament of C. O. Bohanan, executed by him on April 23, 1944 in Manila. In the
said order, the court made the following findings:
According to the evidence of the opponents the testator was born in Nebraska and therefore a
citizen of that state, or at least a citizen of California where some of his properties are located.
This contention in untenable. Notwithstanding the long residence of the decedent in the
Philippines, his stay here was merely temporary, and he continued and remained to be a citizen
of the United States and of the state of his pertinent residence to spend the rest of his days in
that state. His permanent residence or domicile in the United States depended upon his
personal intent or desire, and he selected Nevada as his homicide and therefore at the time of
his death, he was a citizen of that state. Nobody can choose his domicile or permanent
residence for him. That is his exclusive personal right.
Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a citizen
of the United States and of the State of Nevada and declares that his will and testament, Exhibit
A, is fully in accordance with the laws of the state of Nevada and admits the same to probate.
Accordingly, the Philippine Trust Company, named as the executor of the will, is hereby
appointed to such executor and upon the filing of a bond in the sum of P10,000.00, let letters
testamentary be issued and after taking the prescribed oath, it may enter upon the execution
and performance of its trust. (pp. 26-27, R.O.A.).
It does not appear that the order granting probate was ever questions on appeal. The executor filed a
project of partition dated January 24, 1956, making, in accordance with the provisions of the will, the
following adjudications: (1) one-half of the residuary estate, to the Farmers and Merchants National
Bank of Los Angeles, California, U.S.A. in trust only for the benefit of testator's grandson Edward George
Bohanan, which consists of several mining companies; (2) the other half of the residuary estate to the
testator's brother, F.L. Bohanan, and his sister, Mrs. M. B. Galbraith, share and share alike. This consist
in the same amount of cash and of shares of mining stock similar to those given to testator's grandson;
(3) legacies of P6,000 each to his (testator) son, Edward Gilbert Bohana, and his daughter, Mary Lydia
Bohanan, to be paid in three yearly installments; (4) legacies to Clara Daen, in the amount of
P10,000.00; Katherine Woodward, P2,000; Beulah Fox, P4,000; and Elizabeth Hastings, P2,000;
It will be seen from the above that out of the total estate (after deducting administration expenses) of
P211,639.33 in cash, the testator gave his grandson P90,819.67 and one-half of all shares of stock of
several mining companies and to his brother and sister the same amount. To his children he gave a
legacy of only P6,000 each, or a total of P12,000.

The wife Magadalena C. Bohanan and her two children question the validity of the testamentary
provisions disposing of the estate in the manner above indicated, claiming that they have been deprived
of the legitimate that the laws of the form concede to them.
The first question refers to the share that the wife of the testator, Magdalena C. Bohanan, should be
entitled to received. The will has not given her any share in the estate left by the testator. It is argued
that it was error for the trial court to have recognized the Reno divorce secured by the testator from his
Filipino wife Magdalena C. Bohanan, and that said divorce should be declared a nullity in this
jurisdiction, citing the case of Querubin vs. Querubin, 87 Phil., 124, 47 Off. Gaz., (Sup, 12) 315, Cousins
Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42 Phil., 855 and Gorayeb vs. Hashim, 50 Phil., 22. The
court below refused to recognize the claim of the widow on the ground that the laws of Nevada, of
which the deceased was a citizen, allow him to dispose of all of his properties without requiring him to
leave any portion of his estate to his wife. Section 9905 of Nevada Compiled Laws of 1925 provides:
Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his
or her estate, real and personal, the same being chargeable with the payment of the testator's
debts.
Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the testator's
estafa had already been passed upon adversely against her in an order dated June 19, 1955, (pp. 155159, Vol II Records, Court of First Instance), which had become final, as Magdalena C. Bohanan does not
appear to have appealed therefrom to question its validity. On December 16, 1953, the said former wife
filed a motion to withdraw the sum of P20,000 from the funds of the estate, chargeable against her
share in the conjugal property, (See pp. 294-297, Vol. I, Record, Court of First Instance), and the court in
its said error found that there exists no community property owned by the decedent and his former wife
at the time the decree of divorce was issued. As already and Magdalena C. Bohanan may no longer
question the fact contained therein, i.e. that there was no community property acquired by the testator
and Magdalena C. Bohanan during their converture.
Moreover, the court below had found that the testator and Magdalena C. Bohanan were married on
January 30, 1909, and that divorce was granted to him on May 20, 1922; that sometime in 1925,
Magdalena C. Bohanan married Carl Aaron and this marriage was subsisting at the time of the death of
the testator. Since no right to share in the inheritance in favor of a divorced wife exists in the State of
Nevada and since the court below had already found that there was no conjugal property between the
testator and Magdalena C. Bohanan, the latter can now have no longer claim to pay portion of the
estate left by the testator.
The most important issue is the claim of the testator's children, Edward and Mary Lydia, who had
received legacies in the amount of P6,000 each only, and, therefore, have not been given their shares in
the estate which, in accordance with the laws of the forum, should be two-thirds of the estate left by
the testator. Is the failure old the testator to give his children two-thirds of the estate left by him at the
time of his death, in accordance with the laws of the forum valid?
The old Civil Code, which is applicable to this case because the testator died in 1944, expressly provides
that successional rights to personal property are to be earned by the national law of the person whose
succession is in question. Says the law on this point:
Nevertheless, legal and testamentary successions, in respect to the order of succession as well
as to the extent of the successional rights and the intrinsic validity of their provisions, shall be
10

regulated by the national law of the person whose succession is in question, whatever may be
the nature of the property and the country in which it is found. (par. 2, Art. 10, old Civil Code,
which is the same as par. 2 Art. 16, new Civil Code.)
In the proceedings for the probate of the will, it was found out and it was decided that the testator was
a citizen of the State of Nevada because he had selected this as his domicile and his permanent
residence. (See Decision dated April 24, 1950, supra). So the question at issue is whether the
estementary dispositions, especially hose for the children which are short of the legitime given them by
the Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada allow a testator to
dispose of all his properties by will (Sec. 9905, Complied Nevada Laws of 1925, supra). It does not
appear that at time of the hearing of the project of partition, the above-quoted provision was
introduced in evidence, as it was the executor's duly to do. The law of Nevada, being a foreign law can
only be proved in our courts in the form and manner provided for by our Rules, which are as follows:
SEC. 41. Proof of public or official record. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy
tested by the officer having the legal custody of he record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has the custody. . . .
(Rule 123).
We have, however, consulted the records of the case in the court below and we have found that during
the hearing on October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of P20,000 as
her share, the foreign law, especially Section 9905, Compiled Nevada Laws. was introduced in evidence
by appellant's (herein) counsel as Exhibits "2" (See pp. 77-79, VOL. II, and t.s.n. pp. 24-44, Records, Court
of First Instance). Again said laws presented by the counsel for the executor and admitted by the Court
as Exhibit "B" during the hearing of the case on January 23, 1950 before Judge Rafael Amparo (se
Records, Court of First Instance, Vol. 1).
In addition, the other appellants, children of the testator, do not dispute the above-quoted provision of
the laws of the State of Nevada. Under all the above circumstances, we are constrained to hold that the
pertinent law of Nevada, especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken
judicial notice of by us, without proof of such law having been offered at the hearing of the project of
partition.
As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions are to be
governed by the national law of the testator, and as it has been decided and it is not disputed that the
national law of the testator is that of the State of Nevada, already indicated above, which allows a
testator to dispose of all his property according to his will, as in the case at bar, the order of the court
approving the project of partition made in accordance with the testamentary provisions, must be, as it is
hereby affirmed, with costs against appellants.

11

G.R. No. L-68470 October 8, 1985

ALICE
REYES
VAN
DORN,
petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National
Capital Region Pasay City and RICHARD UPTON respondents.
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the
Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent
Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the
Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a
citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that they begot two children born on April 4, 1973 and
December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the
Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to
render an accounting of that business, and that private respondent be declared with right to manage
the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is
barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent
had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court
below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is
located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the
subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of
the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise
its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack
of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead
with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have
given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in
the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that they
had no community of property; that the Galleon Shop was not established through conjugal funds, and
that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over
the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a

12

foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of
jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations between
petitioner and private respondent, after their marriage, were upon absolute or relative community
property, upon complete separation of property, or upon any other regime. The pivotal fact in this case
is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his
attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility
in the understanding that there were neither community property nor community obligations. 3 As
explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336
W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear on
my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx
There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local
law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public police and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the
divorce in Nevada released private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States
in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage tie when thus severed as
to one party, ceases to bind either. A husband without a wife, or a wife without a
husband, is unknown to the law. When the law provides, in the nature of a penalty. that
13

the guilty party shall not marry again, that party, as well as the other, is still absolutely
freed from the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her heirs
with possible rights to conjugal property. She should not be discriminated against in her own country if
the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint
filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.

14

G.R. No. 80116 June 30, 1989

IMELDA
MANALAYSAY
PILAPIL,
petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be
followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay
down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent
Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and
Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough,
and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil
Geiling, was born on April 20, 1980.
Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local
Court in January, 1983. He claimed that there was failure of their marriage and that they had been living
apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and separation of property
before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866.
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the
child was granted to petitioner. The records show that under German law said court was locally and
internationally competent for the divorce proceeding and that the dissolution of said marriage was
legally founded on and authorized by the applicable law of that foreign jurisdiction.
On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent
filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said
respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another
man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of
evidence. However, upon review, the respondent city fiscal approved a resolution, dated January 8,
1986, directing the filing of two complaints for adultery against the petitioner. The complaints were
accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The
case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case
No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case,
"People of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434
went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court.

15

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the cases against her be dismissed. A similar petition
was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice,
through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city
fiscal to inform the Department of Justice "if the accused have already been arraigned and if not yet
arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his
office for review.
Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend
further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner
moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal
Case No. 87-52435 until after the resolution of the petition for review then pending before the Secretary
of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12
which motion was denied by the respondent judge in an order dated September 8, 1987. The same
order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The
latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the
petitioner being considered by respondent judge as direct contempt, she and her counsel were fined
and the former was ordered detained until she submitted herself for arraignment. 13 Later, private
respondent entered a plea of not guilty.
On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer
for a temporary restraining order, seeking the annulment of the order of the lower court denying her
motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to
try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio
(sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having
obtained a final divorce decree under his national law prior to his filing the criminal complaint."
On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case
No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the
aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the complaints against the petitioner.
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other crimes against
chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It
has long since been established, with unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. While in point of strict law the jurisdiction of the
court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint
is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding and
without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can
legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of
seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the
crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The
16

so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do
not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added
and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of
lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the
crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily
follows that such initiator must have the status, capacity or legal representation to do so at the time of
the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the
same requirement and rationale would not apply. Understandably, it may not have been found
necessary since criminal actions are generally and fundamentally commenced by the State, through the
People of the Philippines, the offended party being merely the complaining witness therein. However, in
the so-called "private crimes" or those which cannot be prosecuted de oficio, and the present
prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since
the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and
option.
This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial. Hence, as cogently argued by
petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still
subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence
since the raison d'etre of said provision of law would be absent where the supposed offended party had
ceased to be the spouse of the alleged offender at the time of the filing of the criminal case.
In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or capacity
must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring
the action would be determined by his status before or subsequent to the commencement thereof,
where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did
not exist at the time of, the institution of the case. We would thereby have the anomalous spectacle of a
party bringing suit at the very time when he is without the legal capacity to do so.
To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to
when precisely the status of a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be categorized as possessed of such status.
Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary
in the commencement of a criminal action for adultery that the marital bonds between the complainant
and the accused be unsevered and existing at the time of the institution of the action by the former
against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with
ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to
institute proceedings against the offenders where the statute provides that the innocent spouse shall
17

have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been
properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion.
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant when
the offense is said to have been committed, he had ceased to be such when the
prosecution was begun; and appellant insists that his status was not such as to entitle
him to make the complaint. We have repeatedly said that the offense is against the
unoffending spouse, as well as the state, in explaining the reason for this provision in
the statute; and we are of the opinion that the unoffending spouse must be such when
the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and
by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines
insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the
matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United
States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in
a trial court here alleging that her business concern was conjugal property and praying that she be
ordered to render an accounting and that the plaintiff be granted the right to manage the business.
Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any of the States of
the United States. The decree is binding on private respondent as an American citizen.
For instance, private respondent cannot sue petitioner, as her husband, in any State of
the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code,
only Philippine nationals are covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and morality. However, aliens
may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. ...

18

Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was the
offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When
said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a
family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there
be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the
particular formulation of our law on adultery, 26 since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had the effect of dissociating the former
spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent.
In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal
Code, which punished adultery "although the marriage be afterwards declared void", the Court merely
stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her
marital vows, even though it should be made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually secures a formal judicial declaration to that
effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the
declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating
that it never existed. There being no marriage from the beginning, any complaint for adultery filed after
said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is the situation where the criminal
action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity
ab initio. The same rule and requisite would necessarily apply where the termination of the marriage
was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the
same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had
duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but
which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the
one at bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary
restraining order issued in this case on October 21, 1987 is hereby made permanent.
SO ORDERED.

19

G.R. No. 138322

October 2, 2001

GRACE
J.
GARCIA,
vs.
REDERICK A. RECIO, respondents.

a.k.a.

GRACE

J.

GARCIA-RECIO,

petitioner,

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner. However, the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the
national law of the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7,
1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28,
in Civil Case No. 3026-AF. The assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now
remarry under existing and applicable laws to any and/or both parties."3
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987. They lived together as husband and wife in Australia. On May 18, 1989, a decree of
divorce, purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian government.6 Petitioner a Filipina and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a
marriage license, respondent was declared as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution
of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16,
1996, in accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a quo,
on the ground of bigamy respondent allegedly had a prior subsisting marriage at the time he married
her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only
in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior
marriage and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally
capacitated to marry petitioner in 1994.

20

On July 7, 1998 or about five years after the couple's wedding and while the suit for the declaration of
nullity was pending respondent was able to secure a divorce decree from a family court in Sydney,
Australia because the "marriage ha[d] irretrievably broken down."
Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no
cause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and
admitted the documentary evidence of both parties.16 After they submitted their respective
memoranda, the case was submitted for resolution.
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was
valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any
defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to
remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian
divorce had ended the marriage; thus, there was no more martial union to nullify or annual.
Hence, this Petition.
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him
to contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner'
marriage to the respondent.
"3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of
the Family Code as the applicable provisions in this case.
"5

21

The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that
the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to
remarry, without first securing a recognition of the judgment granting the divorce decree before
our courts."
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal
ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these
two, there is no more necessity to take up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the
foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent
miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In
effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in
question to the legal requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage
between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 22
and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the
Family Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained
abroad by the alien spouse capacitating him or her to remarry."26 A divorce obtained abroad by a
couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their
respective national laws.27
A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made.
Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law."28 Therefore, before a foreign
divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it.29 Presentation solely of the divorce decree
is insufficient.
Divorce as a Question of Fact

22

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the
registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as
follows:
"ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which shall
specify the following:
xxx

xxx

xxx

"(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
xxx

xxx

xxx

"ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of
annulment or declaration of nullity of his or her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise,
the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce decree is a public document a
written official act of an Australian family court. Therefore, it requires no further proof of its authenticity
and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary
value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The
decree purports to be a written act or record of an act of an officially body or tribunal of a foreign
country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy thereof
attested33 by the officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in which the record is
kept and (b) authenticated by the seal of his office.34
The divorce decree between respondent and Editha Samson appears to be an authentic one issued by
an Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned
rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was
23

admissible, subject to petitioner's qualification.37 Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent
was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992.39
Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights
belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former states, don
the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to
the Philippines and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she
is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with
the original of the divorce decree and was cognizant of the marital laws of Australia, because she had
lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly
known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound
discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are denied by the answer; and defendants
have the burden of proving the material allegations in their answer when they introduce new matters.42
Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian
law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.43 Like any
other facts, they must be alleged and proved. Australian marital laws are not among those matters that
judges are supposed to know by reason of their judicial function.44 The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.
Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a
lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones
are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is
no showing in the case at bar which type of divorce was procured by respondent.
24

Respondent presented a decree nisi or an interlocutory decree a conditional or provisional judgment

of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may
follow after the lapse of the prescribed period during which no reconciliation is effected.46
Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still
restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the
guilty party in a divorce which was granted on the ground of adultery may be prohibited from
remarrying again. The court may allow a remarriage only after proof of good behavior.47
On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute (unless the
other party has died) commits the offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this
matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the
simple reason that no proof has been presented on the legal effects of the divorce decree obtained
under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not
submitted together with the application for a marriage license. According to her, its absence is proof
that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the
party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient
to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and
admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant
for a marriage license.50
As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry
petitioner. A review of the records before this Court shows that only the following exhibits were
presented before the lower court: (1) for petitioner: (a) Exhibit "A" Complaint;51 (b) Exhibit "B"
Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on
January 12, 1994 in Cabanatuan City, Nueva Ecija;52 (c) Exhibit "C" Certificate of Marriage Between
Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;53 (d) Exhibit "D" Office of the City Registrar of Cabanatuan City Certification that no
information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54 and (e)
Exhibit "E" Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit "1"
Amended Answer;56 (b) Exhibit "S" Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the
Family Court of Australia;57 (c) Exhibit "3" Certificate of Australian Citizenship of Rederick A. Recto;58
(d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;59 and
25

Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J.
Garcia Recio since October 22, 1995.60
Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with
petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to
show the Australian personal law governing his status; or at the very least, to prove his legal capacity to
contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the
ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to
remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to
marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on
the ground of bigamy, there being already in evidence two existing marriage certificates, which were
both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in
Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the
court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity
to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy,
as above discussed. No costs.
SO ORDERED.

26

G.R. No. 142820

June 20, 2003

WOLFGANG
O.
ROEHR,
petitioner,
vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of
Makati RTC, Branch 149, respondents.
At the core of the present controversy are issues of (a) grave abuse of discretion allegedly committed by
public respondent and (b) lack of jurisdiction of the regional trial court, in matters that spring from a
divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30, 1999 of
public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati Regional Trial Court,2
Branch 149, in Civil Case No. 96-1389 for declaration of nullity of marriage, and (b) the order3 dated
March 31, 2000 denying his motion for reconsideration. The assailed orders partially set aside the trial
courts order dismissing Civil Case No. 96-1389, for the purpose of resolving issues relating to the
property settlement of the spouses and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private respondent
Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their marriage was
subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental.4 Out of their union were born
Carolynne and Alexandra Kristine on November 18, 1981 and October 25, 1987, respectively.
On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage before the
Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a motion to dismiss,6 but
it was denied by the trial court in its order7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an order8 dated
August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with the Court of
Appeals. On November 27, 1998, the appellate court denied the petition and remanded the case to the
RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of HamburgBlankenese, promulgated on December 16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge van
Buiren of the Court of First Instance on the basis of the oral proceedings held on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of
Hamburg-Altona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987

27

is granted to the father.

The litigation expenses shall be assumed by the Parties.9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the ground that
the trial court had no jurisdiction over the subject matter of the action or suit as a decree of divorce had
already been promulgated dissolving the marriage of petitioner and private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to dismiss. Private
respondent filed a Motion for Partial Reconsideration, with a prayer that the case proceed for the
purpose of determining the issues of custody of children and the distribution of the properties between
petitioner and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the petitioner
on the ground that there is nothing to be done anymore in the instant case as the marital tie between
petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had already been severed by the
decree of divorce promulgated by the Court of First Instance of Hamburg, Germany on December 16,
1997 and in view of the fact that said decree of divorce had already been recognized by the RTC in its
order of July 14, 1999, through the implementation of the mandate of Article 26 of the Family Code, 10
endowing the petitioner with the capacity to remarry under the Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially setting aside her order
dated July 14, 1999 for the purpose of tackling the issues of property relations of the spouses as well as
support and custody of their children. The pertinent portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the second
paragraph of Article 26 of the Family Code was included as an amendment thru Executive Order
227, to avoid the absurd situation of a Filipino as being still married to his or her alien spouse
though the latter is no longer married to the Filipino spouse because he/she had obtained a
divorce abroad which is recognized by his/her national law, and considering further the effects
of the termination of the marriage under Article 43 in relation to Article 50 and 52 of the same
Code, which include the dissolution of the property relations of the spouses, and the support and
custody of their children, the Order dismissing this case is partially set aside with respect to these
matters which may be ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by
respondent judge in an order dated March 31, 2000.12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part of
respondent judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not allowed
by 1997 Rules of Civil Procedure.13

28

2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had
recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg,
Germany.14
3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets
alleged in the Petition for Annulment of Marriage and in the Divorce petition, and the custody of
the children had already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in issuing her order dated
September 30, 1999, which partially modified her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she assumed and
retained jurisdiction over the present case despite the fact that petitioner has already obtained
a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is completely
inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil Procedure, which
provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim, deny
the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon
is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor. (Emphasis
supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action or claim, denying the
motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order dated July 14, 1999
because it had not yet attained finality, given the timely filing of respondents motion for
reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil Procedure,
which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set aside the
judgment or final order and grant a new trial, upon such terms as may be just, or may deny the
motion. If the court finds that excessive damages have been awarded or that the judgment or
final order is contrary to the evidence or law, it may amend such judgment or final order
accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule appear
to the court to affect the issues as to only a part, or less than all of the matters in controversy,
or only one, or less than all, of the parties to it, the court may order a new trial or grant
29

reconsideration as to such issues if severable without interfering with the judgment or final order
upon the rest. (Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that has not
yet attained finality. Considering that private respondent filed a motion for reconsideration within the
reglementary period, the trial court's decision of July 14, 1999 can still be modified. Moreover, in
Saado v. Court of Appeals,16 we held that the court could modify or alter a judgment even after the
same has become executory whenever circumstances transpire rendering its decision unjust and
inequitable, as where certain facts and circumstances justifying or requiring such modification or
alteration transpired after the judgment has become final and executory17 and when it becomes
imperative in the higher interest of justice or when supervening events warrant it.18 In our view, there
are even more compelling reasons to do so when, as in this case, judgment has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave abuse of discretion
when she partially set aside her order dated July 14, 1999, despite the fact that petitioner has already
obtained a divorce decree from the Court of First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we consistently held
that a divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner. Relevant to the present case is Pilapil v. IbaySomera,22 where this Court specifically recognized the validity of a divorce obtained by a German citizen
in his country, the Federal Republic of Germany. We held in Pilapil that a foreign divorce and its legal
effects may be recognized in the Philippines insofar as respondent is concerned in view of the
nationality principle in our civil law on the status of persons.
In this case, the divorce decree issued by the German court dated December 16, 1997 has not been
challenged by either of the parties. In fact, save for the issue of parental custody, even the trial court
recognized said decree to be valid and binding, thereby endowing private respondent the capacity to
remarry. Thus, the present controversy mainly relates to the award of the custody of their two children,
Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in our
jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children, must still be
determined by our courts.23 Before our courts can give the effect of res judicata to a foreign judgment,
such as the award of custody to petitioner by the German court, it must be shown that the parties
opposed to the judgment had been given ample opportunity to do so on grounds allowed under Rule 39,
Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign country,
having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the
thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by a subsequent title; but the judgment
may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact.

30

It is essential that there should be an opportunity to challenge the foreign judgment, in order for the
court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of Court clearly
provide that with respect to actions in personam, as distinguished from actions in rem, a foreign
judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is
subject to proof to the contrary.
In the present case, it cannot be said that private respondent was given the opportunity to challenge the
judgment of the German court so that there is basis for declaring that judgment as res judicata with
regard to the rights of petitioner to have parental custody of their two children. The proceedings in the
German court were summary. As to what was the extent of private respondents participation in the
proceedings in the German court, the records remain unclear. The divorce decree itself states that
neither has she commented on the proceedings nor has she given her opinion to the Social Services
Office.26 Unlike petitioner who was represented by two lawyers, private respondent had no counsel to
assist her in said proceedings. More importantly, the divorce judgment was issued to petitioner by virtue
of the German Civil Code provision to the effect that when a couple lived separately for three years, the
marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who the offending
spouse was. Absent any finding that private respondent is unfit to obtain custody of the children, the
trial court was correct in setting the issue for hearing to determine the issue of parental custody, care,
support and education mindful of the best interests of the children. This is in consonance with the
provision in the Child and Youth Welfare Code that the childs welfare is always the paramount
consideration in all questions concerning his care and custody.
On the matter of property relations, petitioner asserts that public respondent exceeded the bounds of
her jurisdiction when she claimed cognizance of the issue concerning property relations between
petitioner and private respondent. Private respondent herself has admitted in Par. 14 of her petition for
declaration of nullity of marriage dated August 26, 1996 filed with the RTC of Makati, subject of this
case, that: "[p]etitioner and respondent have not acquired any conjugal or community property nor
have they incurred any debts during their marriage."29 Herein petitioner did not contest this averment.
Basic is the rule that a court shall grant relief warranted by the allegations and the proof.30 Given the
factual admission by the parties in their pleadings that there is no property to be accounted for,
respondent judge has no basis to assert jurisdiction in this case to resolve a matter no longer deemed in
controversy.
In sum, we find that respondent judge may proceed to determine the issue regarding the custody of the
two children born of the union between petitioner and private respondent. Private respondent erred,
however, in claiming cognizance to settle the matter of property relations of the parties, which is not at
issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on September 30,
1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby declare that the trial court
has jurisdiction over the issue between the parties as to who has parental custody, including the care,
support and education of the children, namely Carolynne and Alexandra Kristine Roehr. Let the records
of this case be remanded promptly to the trial court for continuation of appropriate proceedings. No
pronouncement as to costs.
SO ORDERED.

31

G.R. No. 101949 December 1, 1994

THE
HOLY
SEE,
petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch
61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the
Orders dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati,
Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No.
90-183, while the Order dated September 19, 1991 denied the motion for reconsideration of the June
20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is
represented in the Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real
estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in the Municipality of Paraaque, Metro Manila and
registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos.
271108 and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the
sellers. Later, Licup assigned his rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to
who of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the
relations of the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development
Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61,
Makati, Metro Manila for annulment of the sale of the three parcels of land, and specific performance
and damages against petitioner, represented by the Papal Nuncio, and three other defendants: namely,
Msgr.
Domingo
A.
Cirilos,
Jr.,
the
PRC
and
Tropicana
(Civil
Case
No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC,
agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the
sellers, and that the sellers clear the said lots of squatters who were then occupying the same; (3) Licup
paid the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the
32

property to private respondent and informed the sellers of the said assignment; (5) thereafter, private
respondent demanded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the property
of squatters; however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the
lots, proposing instead either that private respondent undertake the eviction or that the earnest money
be returned to the latter; (6) private respondent counterproposed that if it would undertake the eviction
of the squatters, the purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per
square meter; (7) Msgr. Cirilos returned the earnest money of P100,000.00 and wrote private
respondent giving it seven days from receipt of the letter to pay the original purchase price in cash; (8)
private respondent sent the earnest money back to the sellers, but later discovered that on March 30,
1989, petitioner and the PRC, without notice to private respondent, sold the lots to Tropicana, as
evidenced by two separate Deeds of Sale, one over Lot 5-A, and another over Lots 5-B and 5-D; and that
the sellers' transfer certificate of title over the lots were cancelled, transferred and registered in the
name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots to it and thus enriched
itself at the expense of private respondent; (10) private respondent demanded the rescission of the sale
to Tropicana and the reconveyance of the lots, to no avail; and (11) private respondent is willing and
able to comply with the terms of the contract to sell and has actually made plans to develop the lots into
a townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the
PRC on the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3)
specific performance of the agreement to sell between it and the owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for
lack of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party.
An opposition to the motion was filed by private respondent.
On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss
after finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in
question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed
a "Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity,
petitioner prayed that a hearing be conducted to allow it to establish certain facts upon which the said
defense is based. Private respondent opposed this motion as well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the resolution on the motion for
reconsideration until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of
sovereign immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign
Affairs, claiming that it has a legal interest in the outcome of the case as regards the diplomatic
immunity of petitioner, and that it "adopts by reference, the allegations contained in the petition of the
Holy See insofar as they refer to arguments relative to its claim of sovereign immunity from suit" (Rollo,
p. 87).

33

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with
the resolution of this Court, both parties and the Department of Foreign Affairs submitted their
respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari
under Rule 65 of the Revised Rules of Court can be availed of to question the order denying petitioner's
motion to dismiss. The general rule is that an order denying a motion to dismiss is not reviewable by the
appellate courts, the remedy of the movant being to file his answer and to proceed with the hearing
before the trial court. But the general rule admits of exceptions, and one of these is when it is very clear
in the records that the trial court has no alternative but to dismiss the complaint (Philippine National
Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In
such a case, it would be a sheer waste of time and energy to require the parties to undergo the rigors of
a trial.
The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of "suggestion," where the foreign state or
the international organization sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant
is immune from suit, he, in turn, asks the Attorney General to submit to the court a "suggestion" that
the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign
Office issues a certification to that effect instead of submitting a "suggestion" (O'Connell, I International
Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50
Yale Law Journal 1088 [1941]).
In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter
directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer
could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48
SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v.
Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the Commander of the United States Naval Base at Olongapo City,
Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department
to file its memorandum in support of petitioner's claim of sovereign immunity.

34

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the nature of the acts and transactions
involved.
III
The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a
foreign state enjoying sovereign immunity. On the other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and that petitioner has divested itself of such a cloak
when, of its own free will, it entered into a commercial transaction for the sale of a parcel of land
located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign
state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the
Holy See, was considered a subject of International Law. With the loss of the Papal States and the
limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in
International Law became controversial (Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter
into treaties according to International Law (Garcia, Questions and Problems In International Law, Public
and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the
field of international relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two
international persons the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the attribution to it of
"sovereignty" must be made in a sense different from that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states,
the Vatican City represents an entity organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide
interests and activities of the Vatican City are such as to make it in a sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law 160 [1956]).

35

One authority wrote that the recognition of the Vatican City as a state has significant implication that
it is possible for any entity pursuing objects essentially different from those pursued by states to be
invested with international personality (Kunz, The Status of the Holy See in International Law, 46 The
American Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See
that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are
deemed incorporated as part of the law of the land as a condition and consequence of our admission in
the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but
not
with
regard
to
private
acts
or
acts
jure
gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public
International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the executive or judicial determination when an
act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as "either a regular course of commercial conduct or a
particular commercial transaction or act." Furthermore, the law declared that the "commercial
character of the activity shall be determined by reference to the nature of the course of conduct or
particular transaction or act, rather than by reference to its purpose." The Canadian Parliament enacted
in 1982 an Act to Provide For State Immunity in Canadian Courts. The Act defines a "commercial activity"
as any particular transaction, act or conduct or any regular course of conduct that by reason of its
nature, is of a "commercial character."
The restrictive theory, which is intended to be a solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries
which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign
state with a private party is an act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true with
respect to the Communist states which took control of nationalized business activities and international
trading.

36

This Court has considered the following transactions by a foreign state with private parties as acts jure
imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers
(Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a
United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change of employment
status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for the operation of barber shops in Clark Air Base in
Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants
and other facilities open to the general public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract with the cook in the discharge of its
proprietary function, the United States government impliedly divested itself of its sovereign immunity
from suit.
In the absence of legislation defining what activities and transactions shall be considered "commercial"
and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may
be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign
state is engaged in the activity in the regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the
act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially
when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract in its
proprietary or private capacity. It is only when the contract involves its sovereign or
governmental capacity that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it
acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in
the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November 15, 1965.

37

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the sovereign itself, which in this case is the
Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental
character.
Petitioner
did
not
sell
Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon
made it almost impossible for petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the
premises, has been admitted by private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial court without going to trial in the
light of the pleadings, particularly the admission of private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines'
foreign relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs
has formally intervened in this case and officially certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country
(Rollo, pp. 156-157). The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is conclusive
upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where
the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to
accept this claim so as not to embarrass the executive arm of the government in conducting the
country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in
International Catholic Migration Commission and in World Health Organization, we abide by the
certification of the Department of Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R.
No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See
the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of
its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.
38

According to the Permanent Court of International Justice, the forerunner of the International Court of
Justice:
By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
rights its right to ensure, in the person of its subjects, respect for the rules of
international law (The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against
petitioner is DISMISSED.
SO ORDERED.

39

G.R. No. L-54204 September 30, 1982

NORSE MANAGEMENT CO. (PTE) and PACIFIC SEAMEN SERVICES, INC., petitioners,
vs.
NATIONAL SEAMEN BOARD, HON. CRESCENCIO M. SIDDAYAO, OSCAR M. TORRES, REBENE C.
CARRERA and RESTITUTA C. ABORDO, respondents.
In this petition for certiorari, petitioners pray that the order dated June 20, 1979 of the National Seamen
Board, and the decision dated December 11, 1979 of the Ministry of Labor be nullified and set aside, and
that "if petitioners are found liable to private respondent, such a liability be reduced to P30,000.00 only,
in accordance with respondent NSB's Standard Format of a Service Agreement."
Napoleon B. Abordo, the deceased husband of private respondent Restituta C. Abordo, was the Second
Engineer of M.T. "Cherry Earl" when he died from an apoplectic stroke in the course of his employment
with petitioner NORSE MANAGEMENT COMPANY (PTE). The M.T. "Cherry Earl" is a vessel of
Singaporean Registry. The late Napoleon B. Abordo at the time of his death was receiving a monthly
salary of US$850.00 (Petition, page 5).
In her complaint for "death compensation benefits, accrued leave pay and time-off allowances, funeral
expenses, attorney's fees and other benefits and reliefs available in connection with the death of
Napoleon B. Abordo," filed before the National Seamen Board, Restituta C. Abordo alleged that the
amount of compensation due her from petitioners Norse Management Co. (PTE) and Pacific Seamen
Services, Inc., principal and agent, respectively, should be based on the law where the vessel is
registered. On the other hand, petitioners contend that the law of Singapore should not be applied in
this case because the National Seamen Board cannot take judicial notice of the Workmen's Insurance
Law of Singapore. As an alternative, they offered to pay private respondent Restituta C. Abordo the sum
of P30,000.00 as death benefits based on the Board's Memorandum Circular No. 25 which they claim
should apply in this case.
The Hearing Officer III, Rebene C. Carrera of the Ministry of Labor and Employment, after hearing the
case, rendered judgment on June 20, 1979, ordering herein petitioners "to pay jointly and severally the
following:
I. US$30,600 (the 36-month salary of the decreased)) or its equivalent in Philippine
currency as death compensation benefits;
II. US$500.00 or its equivalent in Philippine currency as funeral expenses;
III. US$3,110 or 10% of the total amount recovered as attorney's fees.
It is also ordered that payment must be made thru the National Seamen Board within
ten (10) days from receipt of this decision.
Petitioners appealed to the Ministry of Labor. On December 11, 1979, the Ministry rendered its decision
in this case as follows:
Motion for reconsideration filed by respondents from the Order of this Board dated 20
June 1979 requiring them to pay complainant, jointly and severally, the amount of

40

Thirty-four thousand and two hundred ten dollars ($34,210.00) representing death
benefits, funeral expenses and attorney's fees.
The facts in the main are not disputed. The deceased, husband of complainant herein,
was employed as a Second Engineer by respondents and served as such in the vessel
"M.T. Cherry Earl" until that fatal day in May 1978 when, while at sea, he suffered an
apoplectic stroke and died four days later or on 29 May 1978. In her complaint filed
before this Board, Abordo argued that the amount of compensation due her should be
based on the law where the vessel is registered, which is Singapore law. Agreeing with
said argument, this Board issued the questioned Order. Hence this Motion for
Reconsideration.
In their motion for reconsideration, respondents strongly argue that the law of
Singapore should not be applied in the case considering that their responsibility was not
alleged in the complaint that no proof of the existence of the Workmen's Insurance Law
of Singapore was ever presented and that the Board cannot take judicial notice of the
Workmen's Insurance Law of Singapore. As an alternative, they offered to pay
complainant the amount of Thirty Thousand Pesos (P30,000.00) as death benefits based
on this Board's Memorandum Circular No. 25 which, they maintained, should apply in
this case.
The only issue we are called upon to rule is whether or not the law of Singapore ought
to be applied in this case.
After an exhaustive study of jurisprudence on the matter. we rule in the affirmative.
Respondents came out with a well-prepared motion which, to our mind, is more
appropriate and perhaps acceptable in the regular court of justice. Nothing is raised in
their motion but question of evidence. But evidence is usually a matter of procedure of
which this Board, being merely a quasi-judicial body, is not strict about.
It is true that the law of Singapore was not alleged and proved in the course of the
hearing. And following Supreme Court decisions in a long line of cases that a foreign law,
being a matter of evidence, must be alleged and proved, the law of Singapore ought not
to be recognized in this case. But it is our considered opinion that the jurisprudence on
this matter was never meant to apply to cases before administrative or quasi-judicial
bodies such as the National Seamen Board. For well-settled also is the rule that
administrative and quasi-judicial bodies are not bound strictly by technical rules. It has
always been the policy of this Board, as enunciated in a long line of cases, that in cases
of valid claims for benefits on account of injury or death while in the course of
employment, the law of the country in which the vessel is registered shall be
considered. We see no reason to deviate from this well-considered policy. Certainly not
on technical grounds as movants herein would like us to.
WHEREFORE, the motion for reconsideration is hereby denied and the Order of tills
Board dated 20 June 1979 affirmed. Let execution issue immediately.
In Section 5(B) of the "Employment Agreement" between Norse Management Co. (PTE) and the late
Napoleon B. Abordo, which is Annex "C" of the Supplemental Complaint, it was stipulated that:

41

In the event of illness or injury to Employee arising out of and in the course of his
employment and not due to his own willful misconduct and occurring whilst on board
any vessel to which he may be assigned, but not any other time, the EMPLOYER win
provide employee with free medical attention, including hospital treatment, also
essential medical treatment in the course of repatriation and until EMPLOYEE's arrival at
his point of origin. If such illness or injury incapacitates the EMPLOYEE to the extent the
EMPLOYEE's services must be terminated as determined by a qualified physician
designated by the EMPLOYER and provided such illness or injury was not due in part or
whole to his willful act, neglect or misconduct compensation shall be paid to employee
in accordance with and subject to the limitations of the Workmen's Compensation Act of
the Republic of the Philippines or the Workmen's Insurance Law of registry of the vessel
whichever is greater. (Emphasis supplied)
In the aforementioned "Employment Agreement" between petitioners and the late Napoleon B. Abordo,
it is clear that compensation shall be paid under Philippine Law or the law of registry of petitioners'
vessel, whichever is greater. Since private respondent Restituta C. Abordo was offered P30,000.00 only
by the petitioners, Singapore law was properly applied in this case.
The "Employment Agreement" is attached to the Supplemental Complaint of Restituta C. Abordo and,
therefore, it forms part thereof. As it is familiar with Singapore Law, the National Seamen Board is
justified in taking judicial notice of and in applying that law. In the case of VirJen Shipping and Marine
Services, Inc. vs. National Seamen Board, et al (L41297), the respondent Board promulgated a decision,
as follows:
The facts established and/or admitted by the parties are the following: that the late
Remigio Roldan was hired by the respondent as Ordinary Seamen on board the M/V
"Singapura Pertama," a vessel of Singapore Registry; that on September 27, 1973, the
deceased Remigio Roldan met an accident resulting in his death while on board the said
M/V "Singapura Pertama" during the performance of his duties; that on December 3,
1973, the respondent Virjen Shipping and Marine Services, Inc. paid the complainant
Natividad Roldan the amount of P6,000.00 representing Workmen's Compensation
benefits and donations of the company; that the amount of P4,870 was spent by the
respondent company as burial expenses of the deceased Remegio Roldan.
The only issue therefore remaining to be resolved by the Board in connection with the
particular case, is whether or not under the existing laws (Philippine and foreign), the
complainant Natividad Roldan is entitled to additional benefits other than those
mentioned earlier. The Board takes judicial notice, (as a matter of fact, the respondent
having admitted in its memorandum) of the fact that "Singapura Pertama" is a foreign
vessel of Singapore Registry and it is the policy of this Board that in case of award of
benefits to seamen who were either injured in the performance of its duties or who
died while in the course of employment is to consider the benefits allowed by the
country where the vessel is registered. Likewise, the Board takes notice that Singapore
maritime laws relating to workmen's compensation benefits are similar to that of the
Hongkong maritime laws which provides that in case of death, the heirs of the deceased
seaman should receive the equivalent of 36 months wages of the deceased seaman; in
other words, 36 months multiplied by the basic monthly wages. In the employment
contract submitted with this Board, the terms of which have never been at issue, is
shown that the monthly salary of the deceased Remigio Roldan at the time of his death
42

was US$80.00; such that, 36 months multiplied by $80 would come up to US$2,880 and
at the rate of P7.00 to $1.00, the benefits due the claimant would be P20,160. However,
since there was voluntary payment made in the amount of P6,000 and funeral expenses
which under the Workmen's Compensation Law had a maximum of P200.00, the
amount of P6,200.00 should be deducted from P20,160 and the difference would be
P13,960.00.
WHEREFORE, the Board orders the respondent Virjen Shipping and Marine Services, Inc.
to pay the complainant Natividad Roldan the amount of P13,960.00 within ten (10) days
from receipt of this Decision. The Board also orders the respondent that payment
should be made through the National Seamen Board.
The foregoing decision was assailed as null and void for allegedly having been rendered without
jurisdiction and for awarding compensation benefits beyond the maximum allowable and on the ground
of res judicata. This Court in its resolution dated October 27, 1975 and December 12, 1975, respectively
dismissed for lack of merit the petition as well as the motion for reconsideration in said G.R. No. L41297.
Furthermore, Article 20, Labor Code of the Philippines, provides that the National Seamen Board has
original and exclusive jurisdiction over all matters or cases including money claims, involving employeremployee relations, arising out of or by virtue of any law or contracts involving Filipino seamen for
overseas employment. Thus, it is safe to assume that the Board is familiar with pertinent Singapore
maritime laws relative to workmen's compensation. Moreover, the Board may apply the rule on judicial
notice and, "in administrative proceedings, the technical rules of procedure particularly of evidence
applied in judicial trials, do not strictly apply." (Oromeca Lumber Co. Inc. vs. Social Security
Commission, 4 SCRA 1188).
Finally, Article IV of the Labor Code provides that "all doubts in the implementation and interpretation
of the provisions of this code, including its implementing rules and resolved in favor of labor.
For lack of merit, this petition is DENIED.
SO ORDERED.

43

G.R. No. 119571 March 11, 1998

MITSUI O.S.K. LINES LTD., represented by MAGSAYSAY AGENCIES,
vs.
COURT OF APPEALS and LAVINE LOUNGEWEAR MFG. CORP., respondents.

INC.,

petitioner,

This is a petition for review on certiorari of the January 25, 1995 decision of the Court of Appeals 1 and
its resolution of March 22, 1995 denying petitioner's motion for reconsideration. The appellate court
upheld orders of Branch 68 (Pasig) of the Regional Trial Court, National Capital Judicial Region, denying
petitioner's motion to dismiss in the original action filed against petitioner by private respondent.
The facts are not in dispute.
Petitioner Mitsui O.S.K. Lines Ltd. is a foreign corporation represented in the Philippines by its agent,
Magsaysay Agencies. It entered into a contract of carriage through Meister Transport, Inc., an
international freight forwarder, with private respondent Lavine Loungewear Manufacturing Corporation
to transport goods of the latter from Manila to Le Havre, France. Petitioner undertook to deliver the
goods to France 28 days from initial loading. On July 24, 1991, petitioner's vessel loaded private
respondent's container van for carriage at the said port of origin.
However, in Kaoshiung, Taiwan the goods were not transshipped immediately, with the result that the
shipment arrived in Le Havre only on November 14, 1991. The consignee allegedly paid only half the
value of the said goods on the ground that they did not arrive in France until the "off season" in that
country. The remaining half was allegedly charged to the account of private respondent which in turn
demanded payment from petitioner through its agent.
As petitioner denied private respondent's claim, the latter filed a case in the Regional Trial Court on April
14, 1992. In the original complaint, private respondent impleaded as defendants Meister Transport, Inc.
and Magsaysay Agencies, Inc., the latter as agent of petitioner Mitsui O.S.K. Lines Ltd. On May 20, 1993,
it amended its complaint by impleading petitioner as defendant in lieu of its agent. The parties to the
case thus became private respondent as plaintiff, on one side, and Meister Transport Inc. and petitioner
Mitsui O.S.K. Lines Ltd. as represented by Magsaysay Agencies, Inc., as defendants on the other.
Petitioner filed a motion to dismiss alleging that the claim against it had prescribed under the Carriage
of Goods by Sea Act.
The Regional Trial Court, as aforesaid, denied petitioner's motion as well as its subsequent motion for
reconsideration. On petition for certiorari, the Court of Appeals sustained the trial court's orders. Hence
this petition containing one assignment of error:
THE RESPONDENT COURT OF APPEALS COMMITTED A SERIOUS ERROR OF LAW IN
RULING THAT PRIVATE RESPONDENT'S AMENDED COMPLAINT IS (sic) NOT PRESCRIBED
PURSUANT TO SECTION 3(6) OF THE CARRIAGE OF GOODS BY SEA ACT.
The issue raised by the instant petition is whether private respondent's action is for "loss or damage" to
goods shipped, within the meaning of 3(6) of the Carriage of Goods by Sea Act (COGSA).
Section 3 provides:

44

(6) Unless notice of loss or damage and the general nature of such loss or damage be
given in writing to the carrier or his agent at the port of discharge or at the time of the
removal of the goods into the custody of the person entitled to delivery thereof under
the contract of carriage, such removal shall be prima facie evidence of the delivery by
the carrier of the goods as described in the bill of lading. If the loss or damage is not
apparent, the notice must be given within three days of the delivery.
Said notice of loss or damage may be endorsed upon the receipt for the goods given by
the person taking delivery thereof.
The notice in writing need not be given if the state of the goods has at the time of their
receipt been the subject of joint survey or inspection.
In any event the carrier and the ship shall be discharged from all liability in respect of
loss or damage unless suit is brought within one year after delivery of the goods or the
date when the goods should have been delivered: Provided, that, if a notice of loss or
damage, either apparent or concealed, is not given as provided for in this section, that
fact shall not affect or prejudice the right of the shipper to bring suit within one year
after the delivery of the goods or the date when the goods should have been delivered.
In the case of any actual or apprehended loss or damage, the carrier and the receiver
shall give all reasonable facilities to each other for inspecting and tallying the goods.
In Ang v. American Steamship Agencies, Inc., the question was whether an action for the value of goods
which had been delivered to a party other than the consignee is for "loss or damage" within the
meaning of 3(6) of the COGSA. It was held that there was no loss because the goods had simply been
misdelivered. "Loss" refers to the deterioration or disappearance of goods. 3
As defined in the Civil Code and as applied to Section 3(6), paragraph 4 of the Carriage
of Goods by Sea Act, "loss" contemplates merely a situation where no delivery at all was
made by the shipper of the goods because the same had perished, gone out of
commerce, or disappeared in such a way that their existence is unknown or they cannot
be recovered.
Conformably with this concept of what constitutes "loss" or "damage," this Court held in another case
5
that the deterioration of goods due to delay in their transportation constitutes "loss" or "damage"
within the meaning of 3(6), so that as suit was not brought within one year the action was barred:
Whatever damage or injury is suffered by the goods while in transit would result in loss
or damage to either the shipper or the consignee. As long as it is claimed, therefore, as
it is done here, that the losses or damages suffered by the shipper or consignee were
due to the arrival of the goods in damaged or deteriorated condition, the action is still
basically one for damage to the goods, and must be filed within the period of one year
from delivery or receipt, under the above-quoted provision of the Carriage of Goods by
Sea Act.
But the Court allowed that

45

There would be some merit in appellant's insistence that the damages suffered by him
as a result of the delay in the shipment of his cargo are not covered by the prescriptive
provision of the Carriage of Goods by Sea Act above referred to, if such damages were
due, not to the deterioration and decay of the goods while in transit, but to other
causes independent of the condition of the cargo upon arrival, like a drop in their
market value. . . .
The rationale behind limiting the said definitions to such parameters is not hard to find or fathom. As
this Court held in Ang:
Said one-year period of limitation is designed to meet the exigencies of maritime
hazards. In a case where the goods shipped were neither lost nor damaged in transit but
were, on the contrary, delivered in port to someone who claimed to be entitled thereto,
the situation is different, and the special need for the short period of limitation in cases
of loss or damage caused by maritime perils does not obtain.
In the case at bar, there is neither deterioration nor disappearance nor destruction of goods caused by
the carrier's breach of contract. Whatever reduction there may have been in the value of the goods is
not due to their deterioration or disappearance because they had been damaged in transit.
Petitioner contends:
Although we agree that there are places in the section (Article III) in which the phrase
need have no broader meaning than loss or physical damage to the goods, we disagree
with the conclusion that it must so be limited wherever it is used. We take it that the
phrase has a uniform meaning, not merely in Section 3, but throughout the Act; and
there are a number of places in which the restricted interpretation suggested would be
inappropriate. For example Section 4(2) [Article IV(2) (sic) exempts exempts (sic) the
carrier, the ship (sic), from liability "loss or damage" (sic) resulting from certain courses
beyond their control.
Indeed, what is in issue in this petition is not the liability of petitioner for its handling of goods as
provided by 3(6) of the COGSA, but its liability under its contract of carriage with private
respondent as covered by laws of more general application.
Precisely, the question before the trial court is not the particular sense of "damages" as it refers to the
physical loss or damage of a shipper's goods as specifically covered by 3(6) of COGSA but petitioner's
potential liability for the damages it has caused in the general sense and, as such, the matter is governed
by the Civil Code, the Code of Commerce and COGSA, for the breach of its contract of carriage with
private respondent.
We conclude by holding that as the suit below is not for "loss or damage" to goods contemplated in
3(6), the question of prescription of action is governed not by the COGSA but by Art. 1144 of the Civil
Code which provides for a prescriptive period of ten years.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

46

G.R. No. 120900

July 20, 2000

CANON
KABUSHIKI
KAISHA,
vs.
COURT OF APPEALS and NSR RUBBER CORPORATION, respondents.

petitioner,

Before us is a petition for review that seeks to set aside the Decision1 dated February 21, 1995 of the
Court of Appeals in CA-GR SP No. 30203, entitled "Canon Kabushiki Kaisha vs. NSR Rubber Corporation"
and its Resolution dated June 27, 1995 denying the motion for reconsideration of herein petitioner
Canon Kabushiki Kaisha (petitioner).
On January 15, 1985, private respondent NSR Rubber Corporation (private respondent) filed an
application for registration of the mark CANON for sandals in the Bureau of Patents, Trademarks, and
Technology Transfer (BPTTT). A Verified Notice of Opposition was filed by petitioner, a foreign
corporation duly organized and existing under the laws of Japan, alleging that it will be damaged by the
registration of the trademark CANON in the name of private respondent. The case was docketed as Inter
Partes Case No. 3043.
Petitioner moved to declare private respondent in default for its failure to file its answer within the
prescribed period. The BPTTT then declared private respondent in default and allowed petitioner to
present its evidence ex-parte.
Based on the records, the evidence presented by petitioner consisted of its certificates of registration
for the mark CANON in various countries covering goods belonging to class 2 (paints, chemical products,
toner, and dye stuff). Petitioner also submitted in evidence its Philippine Trademark Registration No.
39398, showing its ownership over the trademark CANON also under class 2.
On November 10, 1992, the BPTTT issued its decision dismissing the opposition of petitioner and giving
due course to private respondent's application for the registration of the trademark CANON. On
February 16, 1993, petitioner appealed the decision of the BPTTT with public respondent Court of
Appeals that eventually affirmed the decision of BPTTT. Hence, this petition for review.
Petitioner anchors this instant petition on these grounds:
A) PETITIONER IS ENTITLED TO EXCLUSIVE USE OF THE MARK CANON BECAUSE IT IS ITS
TRADEMARK AND IS USED ALSO FOR FOOTWEAR.
B) TO ALLOW PRIVATE RESPONDENT TO REGISTER CANON FOR FOOTWEAR IS TO PREVENT
PETITIONER FROM USING CANON FOR VARIOUS KINDS OF FOOTWEAR, WHEN IN FACT,
PETITIONER HAS EARLIER USED SAID MARK FOR SAID GOODS.
C) PETITIONER IS ALSO ENTITLED TO THE RIGHT TO EXCLUSIVELY USE CANON TO PREVENT
CONFUSION OF BUSINESS.
D) PETITIONER IS ALSO ENTITLED TO THE EXCLUSIVE USE OF CANON BECAUSE IT FORMS PART
OF ITS CORPORATE NAME, PROTECTED BY THE PARIS CONVENTION.2
The BPTTT and the Court of Appeals share the opinion that the trademark "CANON" as used by
petitioner for its paints, chemical products, toner, and dyestuff, can be used by private respondent for
47

its sandals because the products of these two parties are dissimilar. Petitioner protests the
appropriation of the mark CANON by private respondent on the ground that petitioner has used and
continues to use the trademark CANON on its wide range of goods worldwide. Allegedly, the corporate
name or tradename of petitioner is also used as its trademark on diverse goods including footwear and
other related products like shoe polisher and polishing agents. To lend credence to its claim, petitioner
points out that it has branched out in its business based on the various goods carrying its trademark
CANON3, including footwear which petitioner contends covers sandals, the goods for which private
respondent sought to register the mark CANON. For petitioner, the fact alone that its trademark CANON
is carried by its other products like footwear, shoe polisher and polishing agents should have precluded
the BPTTT from giving due course to the application of private respondent.
We find the arguments of petitioner to be unmeritorious. Ordinarily, the ownership of a trademark or
tradename is a property right that the owner is entitled to protect4 as mandated by the Trademark Law.5
However, when a trademark is used by a party for a product in which the other party does not deal, the
use of the same trademark on the latter's product cannot be validly objected to.6
A review of the records shows that with the order of the BPTTT declaring private respondent in default
for failure to file its answer, petitioner had every opportunity to present ex-parte all of its evidence to
prove that its certificates of registration for the trademark CANON cover footwear. The certificates of
registration for the trademark CANON in other countries and in the Philippines as presented by
petitioner, clearly showed that said certificates of registration cover goods belonging to class 2 (paints,
chemical products, toner, dyestuff). On this basis, the BPTTT correctly ruled that since the certificate of
registration of petitioner for the trademark CANON covers class 2 (paints, chemical products, toner,
dyestuff), private respondent can use the trademark CANON for its goods classified as class 25 (sandals).
Clearly, there is a world of difference between the paints, chemical products, toner, and dyestuff of
petitioner and the sandals of private respondent.
Petitioner counters that notwithstanding the dissimilarity of the products of the parties, the trademark
owner is entitled to protection when the use of by the junior user "forestalls the normal expansion of his
business".7 Petitioner's opposition to the registration of its trademark CANON by private respondent
rests upon petitioner's insistence that it would be precluded from using the mark CANON for various
kinds of footwear, when in fact it has earlier used said mark for said goods. Stretching this argument,
petitioner claims that it is possible that the public could presume that petitioner would also produce a
wide variety of footwear considering the diversity of its products marketed worldwide.
We do not agree. Even in this instant petition, except for its bare assertions, petitioner failed to attach
evidence that would convince this Court that petitioner has also embarked in the production of
footwear products. We quote with approval the observation of the Court of Appeals that:
"The herein petitioner has not made known that it intends to venture into the business of
producing sandals. This is clearly shown in its Trademark Principal Register (Exhibit "U") where
the products of the said petitioner had been clearly and specifically described as "Chemical
products, dyestuffs, pigments, toner developing preparation, shoe polisher, polishing agent". It
would be taxing one's credibility to aver at this point that the production of sandals could be
considered as a possible "natural or normal expansion" of its business operation".
In Faberge, Incorporated vs. Intermediate Appellate Court, the Director of patents allowed the junior
user to use the trademark of the senior user on the ground that the briefs manufactured by the junior
user, the product for which the trademark BRUTE was sought to be registered, was unrelated and non48

competing with the products of the senior user consisting of after shave lotion, shaving cream,
deodorant, talcum powder, and toilet soap. The senior user vehemently objected and claimed that it
was expanding its trademark to briefs and argued that permitting the junior user to register the same
trademark would allow the latter to invade the senior user's exclusive domain. In sustaining the Director
of Patents, this Court said that since "(the senior user) has not ventured in the production of briefs, an
item which is not listed in its certificate of registration, (the senior user), cannot and should not be
allowed to feign that (the junior user) had invaded (the senior user's) exclusive domain."10 We reiterated
the principle that the certificate of registration confers upon the trademark owner the exclusive right to
use its own symbol only to those goods specified in the certificate, subject to the conditions and
limitations stated therein.11 Thus, the exclusive right of petitioner in this case to use the trademark
CANON is limited to the products covered by its certificate of registration.
Petitioner further argues that the alleged diversity of its products all over the world makes it plausible
that the public might be misled into thinking that there is some supposed connection between private
respondent's goods and petitioner. Petitioner is apprehensive that there could be confusion as to the
origin of the goods, as well as confusion of business, if private respondent is allowed to register the
mark CANON. In such a case, petitioner would allegedly be immensely prejudiced if private respondent
would be permitted to take "a free ride on, and reap the advantages of, the goodwill and reputation of
petitioner Canon".In support of the foregoing arguments, petitioner invokes the rulings in Sta. Ana vs.
Maliwat13 , Ang vs. Teodoro14 and Converse Rubber Corporation vs. Universal Rubber Products, Inc.
The likelihood of confusion of goods or business is a relative concept, to be determined only according
to the particular, and sometimes peculiar, circumstances of each case.16 Indeed, in trademark law cases,
even more than in other litigation, precedent must be studied in the light of the facts of the particular
case.17 Contrary to petitioner's supposition, the facts of this case will show that the cases of Sta. Ana vs.
Maliwat,, Ang vs. Teodoro and Converse Rubber Corporation vs. Universal Rubber Products, Inc. are
hardly in point. The just cited cases involved goods that were confusingly similar, if not identical, as in
the case of Converse Rubber Corporation vs. Universal Rubber Products, Inc. Here, the products involved
are so unrelated that the public will not be misled that there is the slightest nexus between petitioner
and the goods of private respondent.
In cases of confusion of business or origin, the question that usually arises is whether the respective
goods or services of the senior user and the junior user are so related as to likely cause confusion of
business or origin, and thereby render the trademark or tradenames confusingly similar.18 Goods are
related when they belong to the same class or have the same descriptive properties; when they possess
the same physical attributes or essential characteristics with reference to their form, composition,
texture or quality. They may also be related because they serve the same purpose or are sold in grocery
stores.
Thus, in Esso Standard Eastern, Inc. vs. Court of Appeals, this Court ruled that the petroleum products on
which the petitioner therein used the trademark ESSO, and the product of respondent, cigarettes are
"so foreign to each other as to make it unlikely that purchasers would think that petitioner is the
manufacturer of respondent's goods"21. Moreover, the fact that the goods involved therein flow through
different channels of trade highlighted their dissimilarity, a factor explained in this wise:
"The products of each party move along and are disposed through different channels of
distribution. The (petitioner's) products are distributed principally through gasoline service and
lubrication stations, automotive shops and hardware stores. On the other hand, the
(respondent's) cigarettes are sold in sari-sari stores, grocery store, and other small distributor
49

outlets. (Respondnet's) cigarettes are even peddled in the streets while (petitioner's) 'gasul'
burners are not. Finally, there is a marked distinction between oil and tobacco, as well as
between petroleum and cigarettes. Evidently, in kind and nature the products of (respondent)
and of (petitioner) are poles apart."
Undoubtedly, the paints, chemical products, toner and dyestuff of petitioner that carry the trademark
CANON are unrelated to sandals, the product of private respondent. We agree with the BPTTT, following
the Esso doctrine, when it noted that the two classes of products in this case flow through different
trade channels. The products of petitioner are sold through special chemical stores or distributors while
the products of private respondent are sold in grocery stores, sari-sari stores and department stores.23
Thus, the evident disparity of the products of the parties in the case at bar renders unfounded the
apprehension of petitioner that confusion of business or origin might occur if private respondent is
allowed to use the mark CANON.
In its bid to bar the registration of private respondent of the mark CANON, petitioner invokes the
protective mantle of the Paris Convention. Petitioner asserts that it has the exclusive right to the mark
CANON because it forms part of its corporate name or tradename, protected by Article 8 of the Paris
Convention, to wit:
"A tradename shall be protected in all the countries of the Union without the obligation of filing
or registration, whether or not it forms part of a trademark."
Public respondents BPTTT and the Court of Appeals allegedly committed an oversight when they
required petitioner to prove that its mark is a well-known mark at the time the application of private
respondent was filed. Petitioner questions the applicability of the guidelines embodied in the
Memorandum of then Minister of Trade and Industry Roberto Ongpin (Ongpin) dated October 25, 1983
which according to petitioner implements Article 6bis of the Paris Convention, the provision referring to
the protection of trademarks. The memorandum reads:
"a) the mark must be internationally known;
b) the subject of the right must be a trademark, not a patent or copyright or anything else;
c) the mark must be for use in the same or similar class of goods;
d) the person claiming must be the owner of the mark."
According to petitioner, it should not be required to prove that its trademark is well-known and that the
products are not similar as required by the quoted memorandum. Petitioner emphasizes that the
guidelines in the memorandum of Ongpin implement Article 6bis of the Paris Convention, the provision
for the protection of trademarks, not tradenames. Article 6bis of the Paris Convention states:
(1) The countries of the Union undertake, either administratively if their legislation so permits,
or at the request of an interested party, to refuse or to cancel the registration and to prohibit
the use of a trademark which constitutes a reproduction, imitation or translation, liable to
create confusion, of a mark considered by the competent authority of the country of
registration or use to be well-known in that country as being already the mark of a person
entitled to the benefits of the present Convention and used for identical or similar goods. These

50

provisions shall also apply when the essential part of the mark constitutes a reproduction of any
such well-known mark or an imitation liable to create confusion therewith.
(2) A period of at least five years from the date of registration shall be allowed for seeking the
cancellation of such a mark. The countries of the Union may provide for a period within which
the prohibition of use must be sought.
(3) No time limit shall be fixed for seeking the cancellation or the prohibition of the use of marks
or used in bad faith."
Petitioner insists that what it seeks is the protection of Article 8 of the Paris Convention, the provision
that pertains to the protection of tradenames. Petitioner believes that the appropriate memorandum to
consider is that issued by the then Minister of Trade and Industry, Luis Villafuerte, directing the Director
of patents to:
"reject all pending applications for Philippine registration of signature and other world famous
trademarks by applicants other than the original owners or users."
As far as petitioner is concerned, the fact that its tradename is at risk would call for the protection
granted by Article 8 of the Paris Convention. Petitioner calls attention to the fact that Article 8, even as
embodied in par. 6, sec. 37 of RA 166, mentions no requirement of similarity of goods. Petitioner claims
that the reason there is no mention of such a requirement, is "because there is a difference between the
referent of the name and that of the mark" and that "since Art. 8 protects the tradename in the
countries of the Union, such as Japan and the Philippines, Petitioner's tradename should be protected
here."25
We cannot uphold petitioner's position.
The term "trademark" is defined by RA 166, the Trademark Law, as including "any word, name, symbol,
emblem, sign or device or any combination thereof adopted and used by a manufacturer or merchant to
identify his goods and distinguish them for those manufactured, sold or dealt in by others."26 Tradename
is defined by the same law as including "individual names and surnames, firm names, tradenames,
devices or words used by manufacturers, industrialists, merchants, agriculturists, and others to identify
their business, vocations, or occupations; the names or titles lawfully adopted and used by natural or
juridical persons, unions, and any manufacturing, industrial, commercial, agricultural or other
organizations engaged in trade or commerce."27 Simply put, a trade name refers to the business and its
goodwill; a trademark refers to the goods.28
The Convention of Paris for the Protection of Industrial Property, otherwise known as the Paris
Convention, of which both the Philippines and Japan, the country of petitioner, are signatories29, is a
multilateral treaty that seeks to protect industrial property consisting of patents, utility models,
industrial designs, trademarks, service marks, trade names and indications of source or appellations of
origin, and at the same time aims to repress unfair competition. We agree with public respondents that
the controlling doctrine with respect to the applicability of Article 8 of the Paris Convention is that
established in Kabushi Kaisha Isetan vs. Intermediate Appellate Court. As pointed out by the BPTTT:
"Regarding the applicability of Article 8 of the Paris Convention, this Office believes that there is
no automatic protection afforded an entity whose tradename is alleged to have been infringed
through the use of that name as a trademark by a local entity.
51

In Kabushiki Kaisha Isetan vs. The Intermediate Appellate Court, et. al., G.R. No. 75420, 15
November 1991, the Honorable Supreme Court held that:
'The Paris Convention for the Protection of Industrial Property does not automatically
exclude all countries of the world which have signed it from using a tradename which
happens to be used in one country. To illustrate if a taxicab or bus company in a town
in the United Kingdom or India happens to use the tradename "Rapid Transportation", it
does not necessarily follow that "Rapid" can no longer be registered in Uganda, Fiji, or
the Philippines.
This office is not unmindful that in the Treaty of Paris for the Protection of Intellectual Property
regarding well-known marks and possible application thereof in this case. Petitioner, as this
office sees it, is trying to seek refuge under its protective mantle, claiming that the subject mark
is well known in this country at the time the then application of NSR Rubber was filed.
However, the then Minister of Trade and Industry, the Hon. Roberto V. Ongpin, issued a
memorandum dated 25 October 1983 to the Director of Patents, a set of guidelines in the
implementation of Article 6bis (sic) of the Treaty of Paris. These conditions are:
a) the mark must be internationally known;
b) the subject of the right must be a trademark, not a patent or copyright or anything
else;
c) the mark must be for use in the same or similar kinds of goods; and
d) the person claiming must be the owner of the mark (The Parties Convention
Commentary on the Paris Convention. Article by Dr. Bogsch, Director General of the
World Intellectual Property Organization, Geneva, Switzerland, 1985)'
From the set of facts found in the records, it is ruled that the Petitioner failed to comply with the
third requirement of the said memorandum that is the mark must be for use in the same or
similar kinds of goods. The Petitioner is using the mark "CANON" for products belonging to class
2 (paints, chemical products) while the Respondent is using the same mark for sandals (class 25).
Hence, Petitioner's contention that its mark is well-known at the time the Respondent filed its
application for the same mark should fail. "
Petitioner assails the application of the case of Kabushi Kaisha Isetan vs. Intermediate Appellate Court to this case.
Petitioner points out that in the case of Kabushi Kaisha Isetan vs. Intermediate Appellate Court, petitioner therein
was found to have never at all conducted its business in the Philippines unlike herein petitioner who has
extensively conducted its business here and also had its trademark registered in this country. Hence, petitioner
submits that this factual difference renders inapplicable our ruling in the case of Kabushi Kaisha Isetan vs.
Intermediate Appellate Court that Article 8 of the Paris Convention does not automatically extend protection to a
tradename that is in danger of being infringed in a country that is also a signatory to said treaty. This contention
deserves scant consideration. Suffice it to say that the just quoted pronouncement in the case of Kabushi Kaisha
Isetan vs. Intermediate Appellate Court, was made independent of the factual finding that petitioner in said case
had not conducted its business in this country.
WHEREFORE, in view of the foregoing, the instant petition for review on certiorari is DENIED for lack of merit. SO
ORDERED.

52

G.R. No. 114508 November 19, 1999

PRIBHDAS
J.
MIRPURI,
petitioner,
vs.
COURT OF APPEALS, DIRECTOR OF PATENTS and the BARBIZON CORPORATION, respondents.
The Convention of Paris for the Protection of Industrial Property is a multi-lateral treaty which the
Philippines bound itself to honor and enforce in this country. As to whether or not the treaty affords
protection to a foreign corporation against a Philippine applicant for the registration of a similar
trademark is the principal issue in this case.
On June 15, 1970, one Lolita Escobar, the predecessor-in-interest of petitioner Pribhdas J. Mirpuri, filed
an application with the Bureau of Patents for the registration of the trademark "Barbizon" for use in
brassieres and ladies undergarments. Escobar alleged that she had been manufacturing and selling these
products under the firm name "L & BM Commercial" since March 3, 1970.
Private respondent Barbizon Corporation, a corporation organized and doing business under the laws of
New York, U.S.A., opposed the application. It claimed that:
The mark BARBIZON of respondent-applicant is confusingly similar to the trademark
BARBIZON which opposer owns and has not abandoned.
That opposer will be damaged by the registration of the mark BARBIZON and its
business reputation and goodwill will suffer great and irreparable injury.
That the respondent-applicant's use of the said mark BARBIZON which resembles the
trademark used and owned by opposer, constitutes an unlawful appropriation of a mark
previously used in the Philippines and not abandoned and therefore a statutory
violation of Section 4 (d) of Republic Act No. 166, as amended. 1
This was docketed as Inter Partes Case No. 686 (IPC No. 686). After filing of the pleadings, the
parties submitted the case for decision.
On June 18, 1974, the Director of Patents rendered judgment dismissing the opposition and giving due
course to Escobar's application, thus:
WHEREFORE, the opposition should be, as it is hereby, DISMISSED. Accordingly,
Application Serial No. 19010 for the registration of the trademark BARBIZON, of
respondent Lolita R. Escobar, is given due course.
IT IS SO ORDERED. 2
This decision became final and on September 11, 1974, Lolita Escobar was issued a certificate of
registration for the trademark "Barbizon." The trademark was "for use in "brassieres and lady's
underwear garments like panties." 3
Escobar later assigned all her rights and interest over the trademark to petitioner Pribhdas J. Mirpuri
who, under his firm name then, the "Bonito Enterprises," was the sole and exclusive distributor of
Escobar's "Barbizon" products.
53

In 1979, however, Escobar failed to file with the Bureau of Patents the Affidavit of Use of the trademark
required under Section 12 of Republic Act (R.A.) No. 166, the Philippine Trademark Law. Due to this
failure, the Bureau of Patents cancelled Escobar's certificate of registration.
On May 27, 1981, Escobar reapplied for registration of the cancelled trademark. Mirpuri filed his own
application for registration of Escobar's trademark. Escobar later assigned her application to herein
petitioner and this application was opposed by private respondent. The case was docketed as Inter
Partes Case No. 2049 (IPC No. 2049).
In its opposition, private respondent alleged that:
(a) The Opposer has adopted the trademark BARBIZON (word), sometime in June 1933
and has then used it on various kinds of wearing apparel. On August 14, 1934, Opposer
obtained from the United States Patent Office a more recent registration of the said
mark under Certificate of Registration No. 316,161. On March 1, 1949, Opposer
obtained from the United States Patent Office a more recent registration for the said
trademark under Certificate of Registration No. 507,214, a copy of which is herewith
attached as Annex "A." Said Certificate of Registration covers the following goods
wearing apparel: robes, pajamas, lingerie, nightgowns and slips;
(b) Sometime in March 1976, Opposer further adopted the trademark BARBIZON and
Bee design and used the said mark in various kinds of wearing apparel. On March 15,
1977, Opposer secured from the United States Patent Office a registration of the said
mark under Certificate of Registration No. 1,061,277, a copy of which is herein enclosed
as Annex "B." The said Certificate of Registration covers the following goods: robes,
pajamas, lingerie, nightgowns and slips;
(c) Still further, sometime in 1961, Opposer adopted the trademark BARBIZON and a
Representation of a Woman and thereafter used the said trademark on various kinds of
wearing apparel. Opposer obtained from the United States Patent Office registration of
the said mark on April 5, 1983 under Certificate of Registration No. 1,233,666 for the
following goods: wearing apparel: robes, pajamas, nightgowns and lingerie. A copy of
the said certificate of registration is herewith enclosed as Annex "C."
(d) All the above registrations are subsisting and in force and Opposer has not
abandoned the use of the said trademarks. In fact, Opposer, through a wholly-owned
Philippine subsidiary, the Philippine Lingerie Corporation, has been manufacturing the
goods covered by said registrations and selling them to various countries, thereby
earning valuable foreign exchange for the country. As a result of respondent-applicant's
misappropriation of Opposer's BARBIZON trademark, Philippine Lingerie Corporation is
prevented from selling its goods in the local market, to the damage and prejudice of
Opposer and its wholly-owned subsidiary.
(e) The Opposer's goods bearing the trademark BARBIZON have been used in many
countries, including the Philippines, for at least 40 years and has enjoyed international
reputation and good will for their quality. To protect its registrations in countries where
the goods covered by the registrations are being sold, Opposer has procured the
registration of the trademark BARBIZON in the following countries: Australia, Austria,
Abu Dhabi, Argentina, Belgium, Bolivia, Bahrain, Canada, Chile, Colombia, Denmark,
54

Ecuador, France, West Germany, Greece, Guatemala, Hongkong, Honduras, Italy, Japan,
Jordan, Lebanon, Mexico, Morocco, Panama, New Zealand, Norway, Sweden,
Switzerland, Syria, El Salvador, South Africa, Zambia, Egypt, and Iran, among others;
(f) To enhance its international reputation for quality goods and to further promote
goodwill over its name, marks and products, Opposer has extensively advertised its
products, trademarks and name in various publications which are circulated in the
United States and many countries around the world, including the Philippines;
(g) The trademark BARBIZON was fraudulently registered in the Philippines by one Lolita
R. Escobar under Registration No. 21920, issued on September 11, 1974, in violation of
Article 189 (3) of the Revised Penal Code and Section 4 (d) of the Trademark Law. Herein
respondent applicant acquired by assignment the "rights" to the said mark previously
registered by Lolita Escobar, hence respondent-applicant's title is vitiated by the same
fraud and criminal act. Besides, Certificate of Registration No. 21920 has been cancelled
for failure of either Lolita Escobar or herein respondent-applicant, to seasonably file the
statutory affidavit of use. By applying for a re-registration of the mark BARBIZON subject
of this opposition, respondent-applicant seeks to perpetuate the fraud and criminal act
committed by Lolita Escobar.
(h) Opposer's BARBIZON as well as its BARBIZON and Bee Design and BARBIZON and
Representation of a Woman trademarks qualify as well-known trademarks entitled to
protection under Article 6bis of the Convention of Paris for the Protection of Industrial
Property and further amplified by the Memorandum of the Minister of Trade to the
Honorable Director of Patents dated October 25, 1983 [sic], 4 Executive Order No. 913
dated October 7, 1963 and the Memorandum of the Minister of Trade and Industry to
the Honorable Director of Patents dated October 25, 1983.
(i) The trademark applied for by respondent applicant is identical to Opposer's
BARBIZON trademark and constitutes the dominant part of Opposer's two other marks
namely, BARBIZON and Bee design and BARBIZON and a Representation of a Woman.
The continued use by respondent-applicant of Opposer's trademark BARBIZON on goods
belonging to Class 25 constitutes a clear case of commercial and criminal piracy and if
allowed registration will violate not only the Trademark Law but also Article 189 of the
Revised Penal Code and the commitment of the Philippines to an international treaty. 5
Replying to private respondent's opposition, petitioner raised the defense of res judicata.
On March 2, 1982, Escobar assigned to petitioner the use of the business name "Barbizon International."
Petitioner registered the name with the Department of Trade and Industry (DTI) for which a certificate
of registration was issued in 1987.
Forthwith, private respondent filed before the Office of Legal Affairs of the DTI a petition for
cancellation of petitioner's business name.
On November 26, 1991, the DTI, Office of Legal Affairs, cancelled petitioner's certificate of registration,
and declared private respondent the owner and prior user of the business name "Barbizon
International." Thus:

55

WHEREFORE, the petition is hereby GRANTED and petitioner is declared the owner and
prior user of the business name "BARBIZON INTERNATIONAL" under Certificate of
Registration No. 87-09000 dated March 10, 1987 and issued in the name of respondent,
is [sic] hereby ordered revoked and cancelled. . . . . 6
Meanwhile, in IPC No. 2049, the evidence of both parties were received by the Director of Patents. On
June 18, 1992, the Director rendered a decision declaring private respondent's opposition barred by res
judicata and giving due course to petitioner's application for registration, to wit:
WHEREFORE, the present Opposition in Inter Partes Case No. 2049 is hereby DECLARED
BARRED by res judicata and is hereby DISMISSED. Accordingly, Application Serial No.
45011 for trademark BARBIZON filed by Pribhdas J. Mirpuri is GIVEN DUE COURSE.
SO ORDERED. 7
Private respondent questioned this decision before the Court of Appeals in CA-G.R. SP No. 28415. On
April 30, 1993, the Court of Appeals reversed the Director of Patents finding that IPC No. 686 was not
barred by judgment in IPC No. 2049 and ordered that the case be remanded to the Bureau of Patents for
further proceedings, viz:
WHEREFORE, the appealed Decision No. 92-13 dated June 18, 1992 of the Director of
Patents in Inter Partes Case No. 2049 is hereby SET ASIDE; and the case is hereby
remanded to the Bureau of Patents for further proceedings, in accordance with this
pronouncement. No costs. 8
In a Resolution dated March 16, 1994, the Court of Appeals denied reconsideration of its
decision. 9 Hence, this recourse.
Before us, petitioner raises the following issues:
1. WHETHER OR NOT THE DECISION OF THE DIRECTOR OF PATENTS IN INTER PARTES
CASE NO. 686 RENDERED ON JUNE 18, 1974, ANNEX C HEREOF, CONSTITUTED RES
JUDICATA IN SO FAR AS THE CASE BEFORE THE DIRECTOR OF PATENTS IS CONCERNED;
2. WHETHER OR NOT THE DIRECTOR OF PATENTS CORRECTLY APPLIED THE PRINCIPLE
OF RES JUDICATA IN DISMISSING PRIVATE RESPONDENT BARBIZON'S OPPOSITION TO
PETITIONER'S APPLICATION FOR REGISTRATION FOR THE TRADEMARK BARBIZON,
WHICH HAS SINCE RIPENED TO CERTIFICATE OF REGISTRATION NO. 53920 ON
NOVEMBER 16, 1992;
3. WHETHER OR NOT THE REQUISITE THAT A "JUDGMENT ON THE MERITS" REQUIRED A
"HEARING WHERE BOTH PARTIES ARE SUPPOSED TO ADDUCE EVIDENCE" AND
WHETHER THE JOINT SUBMISSION OF THE PARTIES TO A CASE ON THE BASIS OF THEIR
RESPECTIVE PLEADINGS WITHOUT PRESENTING TESTIMONIAL OR DOCUMENTARY
EVIDENCE FALLS WITHIN THE MEANING OF "JUDGMENT ON THE MERITS" AS ONE OF
THE REQUISITES TO CONSTITUTE RES JUDICATA;
4. WHETHER A DECISION OF THE DEPARTMENT OF TRADE AND INDUSTRY CANCELLING
PETITIONER'S FIRM NAME "BARBIZON INTERNATIONAL" AND WHICH DECISION IS STILL
56

PENDING RECONSIDERATION NEVER OFFERED IN EVIDENCE BEFORE THE DIRECTOR OF

PATENTS IN INTER PARTES CASE NO. 2049 HAS THE RIGHT TO DECIDE SUCH
CANCELLATION NOT ON THE BASIS OF THE BUSINESS NAME LAW (AS IMPLEMENTED BY
THE BUREAU OF DOMESTIC TRADE) BUT ON THE BASIS OF THE PARIS CONVENTION AND
THE TRADEMARK LAW (R.A. 166) WHICH IS WITHIN THE ORIGINAL AND EXCLUSIVE
JURISDICTION OF THE DIRECTOR OF PATENTS. 10
Before ruling on the issues of the case, there is need for a brief background on the function and
historical development of trademarks and trademark law.
A "trademark" is defined under R.A. 166, the Trademark Law, as including "any word, name, symbol,
emblem, sign or device or any combination thereof adopted and used by a manufacturer or merchant to
identify his goods and distinguish them from those manufactured, sold or dealt in by others. 11 This
definition has been simplified in R.A. No. 8293, the Intellectual Property Code of the Philippines, which
defines a "trademark" as "any visible sign capable of distinguishing goods." 12 In Philippine
jurisprudence, the function of a trademark is to point out distinctly the origin or ownership of the goods
to which it is affixed; to secure to him, who has been instrumental in bringing into the market a superior
article of merchandise, the fruit of his industry and skill; to assure the public that they are procuring the
genuine article; to prevent fraud and imposition; and to protect the manufacturer against substitution
and sale of an inferior and different article as his product. 13
Modern authorities on trademark law view trademarks as performing three distinct functions: (1) they
indicate origin or ownership of the articles to which they are attached; (2) they guarantee that those
articles come up to a certain standard of quality; and (3) they advertise the articles they symbolize. 14
Symbols have been used to identify the ownership or origin of articles for several centuries. 15 As early
as 5,000 B.C., markings on pottery have been found by archaeologists. Cave drawings in southwestern
Europe show bison with symbols on their flanks. 16 Archaeological discoveries of ancient Greek and
Roman inscriptions on sculptural works, paintings, vases, precious stones, glassworks, bricks, etc. reveal
some features which are thought to be marks or symbols. These marks were affixed by the creator or
maker of the article, or by public authorities as indicators for the payment of tax, for disclosing state
monopoly, or devices for the settlement of accounts between an entrepreneur and his workmen. 17
In the Middle Ages, the use of many kinds of marks on a variety of goods was commonplace. Fifteenth
century England saw the compulsory use of identifying marks in certain trades. There were the baker's
mark on bread, bottlemaker's marks, smith's marks, tanner's marks, watermarks on paper, etc. 18 Every
guild had its own mark and every master belonging to it had a special mark of his own. The marks were
not trademarks but police marks compulsorily imposed by the sovereign to let the public know that the
goods were not "foreign" goods smuggled into an area where the guild had a monopoly, as well as to aid
in tracing defective work or poor craftsmanship to the artisan. 19 For a similar reason, merchants also
used merchants' marks. Merchants dealt in goods acquired from many sources and the marks enabled
them to identify and reclaim their goods upon recovery after shipwreck or piracy. 20
With constant use, the mark acquired popularity and became voluntarily adopted. It was not intended
to create or continue monopoly but to give the customer an index or guarantee of quality. 21 It was in
the late 18th century when the industrial revolution gave rise to mass production and distribution of
consumer goods that the mark became an important instrumentality of trade and commerce. 22 By this
time, trademarks did not merely identify the goods; they also indicated the goods to be of satisfactory
quality, and thereby stimulated further purchases by the consuming public. 23 Eventually, they came to
57

symbolize the goodwill and business reputation of the owner of the product and became a property
right protected by law. 24 The common law developed the doctrine of trademarks and tradenames "to
prevent a person from palming off his goods as another's, from getting another's business or injuring his
reputation by unfair means, and, from defrauding the public." 25 Subsequently, England and the United
States enacted national legislation on trademarks as part of the law regulating unfair trade. 26 It became
the right of the trademark owner to exclude others from the use of his mark, or of a confusingly similar
mark where confusion resulted in diversion of trade or financial injury. At the same time, the trademark
served as a warning against the imitation or faking of products to prevent the imposition of fraud upon
the public. 27
Today, the trademark is not merely a symbol of origin and goodwill; it is often the most effective agent
for the actual creation and protection of goodwill. It imprints upon the public mind an anonymous and
impersonal guaranty of satisfaction, creating a desire for further satisfaction. In other words, the mark
actually sells the goods. 28 The mark has become the "silent salesman," the conduit through which direct
contact between the trademark owner and the consumer is assured. It has invaded popular culture in
ways never anticipated that it has become a more convincing selling point than even the quality of the
article to which it refers. 29 In the last half century, the unparalleled growth of industry and the rapid
development of communications technology have enabled trademarks, tradenames and other
distinctive signs of a product to penetrate regions where the owner does not actually manufacture or
sell the product itself. Goodwill is no longer confined to the territory of actual market penetration; it
extends to zones where the marked article has been fixed in the public mind through advertising. 30
Whether in the print, broadcast or electronic communications medium, particularly on the Internet, 31
advertising has paved the way for growth and expansion of the product by creating and earning a
reputation that crosses over borders, virtually turning the whole world into one vast marketplace.
This is the mise-en-scene of the present controversy. Petitioner brings this action claiming that
"Barbizon" products have been sold in the Philippines since 1970. Petitioner developed this market by
working long hours and spending considerable sums of money on advertisements and promotion of the
trademark and its products. Now, almost thirty years later, private respondent, a foreign corporation,
"swaggers into the country like a conquering hero," usurps the trademark and invades petitioner's
market. 32 Justice and fairness dictate that private respondent be prevented from appropriating what is
not its own. Legally, at the same time, private respondent is barred from questioning petitioner's
ownership of the trademark because of res judicata. 33
Literally, res judicata means a matter adjudged, a thing judicially acted upon or decided; a thing or
matter settled by judgment. 34 In res judicata, the judgment in the first action is considered conclusive as
to every matter offered and received therein, as to any other admissible matter which might have been
offered for that purpose, and all other matters that could have been adjudged therein. 35 Res judicata is
an absolute bar to a subsequent action for the same cause; and its requisites are: (a) the former
judgment or order must be final; (b) the judgment or order must be one on the merits; (c) it must have
been rendered by a court having jurisdiction over the subject matter and parties; (d) there must be
between the first and second actions, identity of parties, of subject matter and of causes of action. 36
The Solicitor General, on behalf of respondent Director of Patents, has joined cause with petitioner.
Both claim that all the four elements of res judicata have been complied with: that the judgment in IPC
No. 686 was final and was rendered by the Director of Patents who had jurisdiction over the subject
matter and parties; that the judgment in IPC No. 686 was on the merits; and that the lack of a hearing
was immaterial because substantial issues were raised by the parties and passed upon by the Director of
Patents. 37
58

The decision in IPC No. 686 reads as follows:

xxx xxx xxx.
Neither party took testimony nor adduced documentary evidence. They submitted the
case for decision based on the pleadings which, together with the pertinent records,
have all been carefully considered.
Accordingly, the only issue for my disposition is whether or not the herein opposer
would probably be damaged by the registration of the trademark BARBIZON sought by
the respondent-applicant on the ground that it so resembles the trademark BARBIZON
allegedly used and owned by the former to be "likely to cause confusion, mistake or to
deceive purchasers."
On record, there can be no doubt that respondent-applicant's sought-to-be-registered
trademark BARBIZON is similar, in fact obviously identical, to opposer's alleged
trademark BARBIZON, in spelling and pronunciation. The only appreciable but very
negligible difference lies in their respective appearances or manner of presentation.
Respondent-applicant's trademark is in bold letters (set against a black background),
while that of the opposer is offered in stylish script letters.
It is opposer's assertion that its trademark BARBIZON has been used in trade or
commerce in the Philippines prior to the date of application for the registration of the
identical mark BARBIZON by the respondent-applicant. However, the allegation of facts
in opposer's verified notice of opposition is devoid of such material information. In fact,
a reading of the text of said verified opposition reveals an apparent, if not deliberate,
omission of the date (or year) when opposer's alleged trademark BARBIZON was first
used in trade in the Philippines (see par. No. 1, p. 2, Verified Notice of Opposition, Rec.).
Thus, it cannot here and now be ascertained whether opposer's alleged use of the
trademark BARBIZON could be prior to the use of the identical mark by the herein
respondent-applicant, since the opposer attempted neither to substantiate its claim of
use in local commerce with any proof or evidence. Instead, the opposer submitted the
case for decision based merely on the pleadings.
On the other hand, respondent-applicant asserted in her amended application for
registration that she first used the trademark BARBIZON for brassiere (or "brasseire")
and ladies underwear garments and panties as early as March 3, 1970. Be that as it may,
there being no testimony taken as to said date of first use, respondent-applicant will be
limited to the filing date, June 15, 1970, of her application as the date of first use (Rule
173, Rules of Practice in Trademark Cases).
From the foregoing, I conclude that the opposer has not made out a case of probable
damage by the registration of the respondent-applicant's mark BARBIZON.
WHEREFORE, the opposition should be, as it is hereby, DISMISSED. Accordingly,
Application Serial No. 19010, for the registration of the trademark BARBIZON of
respondent Lolita R. Escobar, is given due course. 38

59

The decision in IPC No. 686 was a judgment on the merits and it was error for the Court of Appeals to
rule that it was not. A judgment is on the merits when it determines the rights and liabilities of the
parties based on the disclosed facts, irrespective of formal, technical or dilatory objections. 39 It is not
necessary that a trial should have been conducted. If the court's judgment is general, and not based on
any technical defect or objection, and the parties had a full legal opportunity to be heard on their
respective claims and contentions, it is on the merits although there was no actual hearing or arguments
on the facts of the case. 40 In the case at bar, the Director of Patents did not dismiss private respondent's
opposition on a sheer technicality. Although no hearing was conducted, both parties filed their
respective pleadings and were given opportunity to present evidence. They, however, waived their right
to do so and submitted the case for decision based on their pleadings. The lack of evidence did not deter
the Director of Patents from ruling on the case, particularly on the issue of prior use, which goes into the
very substance of the relief sought by the parties. Since private respondent failed to prove prior use of
its trademark, Escobar's claim of first use was upheld.
The judgment in IPC No. 686 being on the merits, petitioner and the Solicitor General allege that IPC No.
686 and IPC No. 2049 also comply with the fourth requisite of res judicata, i.e., they involve the same
parties and the same subject matter, and have identical causes of action.
Undisputedly, IPC No. 686 and IPC No. 2049 involve the same parties and the same subject matter.
Petitioner herein is the assignee of Escobar while private respondent is the same American corporation
in the first case. The subject matter of both cases is the trademark "Barbizon." Private respondent
counter-argues, however, that the two cases do not have identical causes of action. New causes of
action were allegedly introduced in IPC No. 2049, such as the prior use and registration of the trademark
in the United States and other countries worldwide, prior use in the Philippines, and the fraudulent
registration of the mark in violation of Article 189 of the Revised Penal Code. Private respondent also
cited protection of the trademark under the Convention of Paris for the Protection of Industrial
Property, specifically Article 6bis thereof, and the implementation of Article 6bis by two Memoranda
dated November 20, 1980 and October 25, 1983 of the Minister of Trade and Industry to the Director of
Patents, as well as Executive Order (E.O.) No. 913.
The Convention of Paris for the Protection of Industrial Property, otherwise known as the Paris
Convention, is a multilateral treaty that seeks to protect industrial property consisting of patents, utility
models, industrial designs, trademarks, service marks, trade names and indications of source or
appellations of origin, and at the same time aims to repress unfair competition. 41 The Convention is
essentially a compact among various countries which, as members of the Union, have pledged to accord
to citizens of the other member countries trademark and other rights comparable to those accorded
their own citizens by their domestic laws for an effective protection against unfair competition. 42 In
short, foreign nationals are to be given the same treatment in each of the member countries as that
country makes available to its own citizens. 43 Nationals of the various member nations are thus assured
of a certain minimum of international protection of their industrial property. 44
The Convention was first signed by eleven countries in Paris on March 20, 1883. 45 It underwent several
revisions at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at
Lisbon in 1958, 46 and at Stockholm in 1967. Both the Philippines and the United States of America,
herein private respondent's country, are signatories to the Convention. The United States acceded on
May 30, 1887 while the Philippines, through its Senate, concurred on May 10, 1965. 47 The Philippines'
adhesion became effective on September 27, 1965, 48 and from this date, the country obligated itself to
honor and enforce the provisions of the Convention. 49

60

In the case at bar, private respondent anchors its cause of action on the first paragraph of Article 6bis of
the Paris Convention which reads as follows:
Article 6bis
(1) The countries of the Union undertake, either administratively if their legislation so
permits, or at the request of an interested party, to refuse or to cancel the registration
and to prohibit the use, of a trademark which constitutes a reproduction, an imitation,
or a translation, liable to create confusion, of a mark considered by the competent
authority of the country of registration or use to be well-known in that country as being
already the mark of a person entitled to the benefits of this Convention and used for
identical or similar goods. These provisions shall also apply when the essential part of
the mark constitutes a reproduction of any such well-known mark or an imitation liable
to create confusion therewith.
(2) A period of at least five years from the date of registration shall be allowed for
seeking the cancellation of such a mark. The countries of the Union may provide for a
period within which the prohibition of use must be sought.
(3) No time limit shall be fixed for seeking the cancellation or the prohibition of the use
of marks registered or used in bad faith. 50
This Article governs protection of well-known trademarks. Under the first paragraph, each
country of the Union bound itself to undertake to refuse or cancel the registration, and prohibit
the use of a trademark which is a reproduction, imitation or translation, or any essential part of
which trademark constitutes a reproduction, liable to create confusion, of a mark considered by
the competent authority of the country where protection is sought, to be well-known in the
country as being already the mark of a person entitled to the benefits of the Convention, and
used for identical or similar goods.
Art. 6bis was first introduced at The Hague in 1925 and amended in Lisbon in 1952. 51 It is a selfexecuting provision and does not require legislative enactment to give it effect in the member country.
52
It may be applied directly by the tribunals and officials of each member country by the mere
publication or proclamation of the Convention, after its ratification according to the public law of each
state and the order for its execution. 53
The essential requirement under Article 6bis is that the trademark to be protected must be "wellknown" in the country where protection is sought. The power to determine whether a trademark is
well-known lies in the "competent authority of the country of registration or use." This competent
authority would be either the registering authority if it has the power to decide this, or the courts of the
country in question if the issue comes before a court. 54
Pursuant to Article 6bis, on November 20, 1980, then Minister Luis Villafuerte of the Ministry of Trade
issued a Memorandum to the Director of Patents. The Minister ordered the Director that:
Pursuant to the Paris Convention for the Protection of Industrial Property to which the
Philippines is a signatory, you are hereby directed to reject all pending applications for
Philippine registration of signature and other world-famous trademarks by applicants
other than its original owners or users.
61

The conflicting claims over internationally known trademarks involve such name brands
as Lacoste, Jordache, Vanderbilt, Sasson, Fila, Pierre Cardin, Gucci, Christian Dior, Oscar
de la Renta, Calvin Klein, Givenchy, Ralph Lauren, Geoffrey Beene, Lanvin and Ted
Lapidus.
It is further directed that, in cases where warranted, Philippine registrants of such
trademarks should be asked to surrender their certificates of registration, if any, to
avoid suits for damages and other legal action by the trademarks' foreign or local
owners or original users.
You are also required to submit to the undersigned a progress report on the matter.
For immediate compliance. 55
Three years later, on October 25, 1983, then Minister Roberto Ongpin issued another Memorandum to
the Director of Patents, viz:
Pursuant to Executive Order No. 913 dated 7 October 1983 which strengthens the rulemaking and adjudicatory powers of the Minister of Trade and Industry and provides
inter alia, that "such rule-making and adjudicatory powers should be revitalized in order
that the Minister of Trade and Industry can . . . apply more swift and effective solutions
and remedies to old and new problems . . . such as infringement of internationallyknown tradenames and trademarks . . ." and in view of the decision of the Intermediate
Appellate Court in the case of LA CHEMISE LACOSTE, S.A., versus RAM SADWHANI [ACG.R. SP NO. 13359 (17) June 1983] 56 which affirms the validity of the MEMORANDUM of
then Minister Luis R. Villafuerte dated 20 November 1980 confirming our obligations
under the PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY to
which the Republic of the Philippines is a signatory, you are hereby directed to
implement measures necessary to effect compliance with our obligations under said
Convention in general, and, more specifically, to honor our commitment under Section
6bis 57 thereof, as follows:
1. Whether the trademark under consideration is well-known in the
Philippines or is a mark already belonging to a person entitled to the
benefits of the CONVENTION, this should be established, pursuant to
Philippine Patent Office procedures in inter partes and ex parte cases,
according to any of the following criteria or any combination thereof:
(a) a declaration by the Minister of Trade and Industry
that the trademark being considered is already wellknown in the Philippines such that permission for its use
by other than its original owner will constitute a
reproduction, imitation, translation or other
infringement;
(b) that the trademark is used in commerce
internationally, supported by proof that goods bearing
the trademark are sold on an international scale,
advertisements, the establishment of factories, sales
62

offices, distributorships, and the like, in different

countries, including volume or other measure of
international trade and commerce;
(c) that the trademark is duly registered in the industrial
property office(s) of another country or countries,
taking into consideration the date of such registration;
(d) that the trademark has long been established and
obtained goodwill and international consumer
recognition as belonging to one owner or source;
(e) that the trademark actually belongs to a party
claiming ownership and has the right to registration
under the provisions of the aforestated PARIS
CONVENTION.
2. The word trademark, as used in this MEMORANDUM, shall include
tradenames, service marks, logos, signs, emblems, insignia or other
similar devices used for identification and recognition by consumers.
3. The Philippine Patent Office shall refuse all applications for, or cancel
the registration of, trademarks which constitute a reproduction,
translation or imitation of a trademark owned by a person, natural or
corporate, who is a citizen of a country signatory to the PARIS
CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY.
4. The Philippine Patent Office shall give due course to the Opposition in
cases already or hereafter filed against the registration of trademarks
entitled to protection of Section 6bis of said PARIS CONVENTION as
outlined above, by remanding applications filed by one not entitled to
such protection for final disallowance by the Examination Division.
5. All pending applications for Philippine registration of signature and
other world-famous trademarks filed by applicants other than their
original owners or users shall be rejected forthwith. Where such
applicants have already obtained registration contrary to the
abovementioned PARIS CONVENTION and/or Philippine Law, they shall
be directed to surrender their Certificates of Registration to the
Philippine Patent Office for immediate cancellation proceedings.
xxx xxx xxx. 58
In the Villafuerte Memorandum, the Minister of Trade instructed the Director of Patents to reject all
pending applications for Philippine registration of signature and other world-famous trademarks by
applicants other than their original owners or users. The Minister enumerated several internationallyknown trademarks and ordered the Director of Patents to require Philippine registrants of such marks to
surrender their certificates of registration.

63

In the Ongpin Memorandum, the Minister of Trade and Industry did not enumerate well-known
trademarks but laid down guidelines for the Director of Patents to observe in determining whether a
trademark is entitled to protection as a well-known mark in the Philippines under Article 6bis of the
Paris Convention. This was to be established through Philippine Patent Office procedures in inter partes
and ex parte cases pursuant to the criteria enumerated therein. The Philippine Patent Office was
ordered to refuse applications for, or cancel the registration of, trademarks which constitute a
reproduction, translation or imitation of a trademark owned by a person who is a citizen of a member of
the Union. All pending applications for registration of world-famous trademarks by persons other than
their original owners were to be rejected forthwith. The Ongpin Memorandum was issued pursuant to
Executive Order No. 913 dated October 7, 1983 of then President Marcos which strengthened the rulemaking and adjudicatory powers of the Minister of Trade and Industry for the effective protection of
consumers and the application of swift solutions to problems in trade and industry. 59
Both the Villafuerte and Ongpin Memoranda were sustained by the Supreme Court in the 1984
landmark case of La Chemise Lacoste, S.A. v. Fernandez. 60 This court ruled therein that under the
provisions of Article 6bis of the Paris Convention, the Minister of Trade and Industry was the
"competent authority" to determine whether a trademark is well-known in this country. 61
The Villafuerte Memorandum was issued in 1980, i.e., fifteen (15) years after the adoption of the Paris
Convention in 1965. In the case at bar, the first inter partes case, IPC No. 686, was filed in 1970, before
the Villafuerte Memorandum but five (5) years after the effectivity of the Paris Convention. Article 6bis
was already in effect five years before the first case was instituted. Private respondent, however, did not
cite the protection of Article 6bis, neither did it mention the Paris Convention at all. It was only in 1981
when IPC No. 2049 was instituted that the Paris Convention and the Villafuerte Memorandum, and,
during the pendency of the case, the 1983 Ongpin Memorandum were invoked by private respondent.
The Solicitor General argues that the issue of whether the protection of Article 6bis of the Convention
and the two Memoranda is barred by res judicata has already been answered in Wolverine Worldwide,
Inc.
v.
Court
of
Appeals. 62 In this case, petitioner Wolverine, a foreign corporation, filed with the Philippine Patent
Office a petition for cancellation of the registration certificate of private respondent, a Filipino citizen,
for the trademark "Hush Puppies" and "Dog Device." Petitioner alleged that it was the registrant of the
internationally-known trademark in the United States and other countries, and cited protection under
the Paris Convention and the Ongpin Memorandum. The petition was dismissed by the Patent Office on
the ground of res judicata. It was found that in 1973 petitioner's predecessor-in-interest filed two
petitions for cancellation of the same trademark against respondent's predecessor-in-interest. The
Patent Office dismissed the petitions, ordered the cancellation of registration of petitioner's trademark,
and gave due course to respondent's application for registration. This decision was sustained by the
Court of Appeals, which decision was not elevated to us and became final and
executory. 63
Wolverine claimed that while its previous petitions were filed under R.A. No. 166, the Trademark Law,
its subsequent petition was based on a new cause of action, i.e., the Ongpin Memorandum and E.O. No.
913 issued in 1983, after finality of the previous decision. We held that the said Memorandum and E.O.
did not grant a new cause of action because it did "not amend the Trademark Law," . . . "nor did it
indicate a new policy with respect to the registration in the Philippines of world-famous trademarks." 64
This conclusion was based on the finding that Wolverine's two previous petitions and subsequent
petition dealt with the same issue of ownership of the trademark. 65 In other words, since the first and
second cases involved the same issue of ownership, then the first case was a bar to the second case.
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In the instant case, the issue of ownership of the trademark "Barbizon" was not raised in IPC No. 686.
Private respondent's opposition therein was merely anchored on:
(a) "confusing similarity" of its trademark with that of Escobar's;
(b) that the registration of Escobar's similar trademark will cause damage to private
respondent's business reputation and goodwill; and
(c) that Escobar's use of the trademark amounts to an unlawful appropriation of a mark
previously used in the Philippines which act is penalized under Section 4 (d) of the
Trademark Law.
In IPC No. 2049, private respondent's opposition set forth several issues summarized as follows:
(a) as early as 1933, it adopted the word "BARBIZON" as trademark on its products such
as robes, pajamas, lingerie, nightgowns and slips;
(b) that the trademark "BARBIZON" was registered with the United States Patent Office
in 1934 and 1949; and that variations of the same trademark, i.e., "BARBIZON" with Bee
design and "BARBIZON" with the representation of a woman were also registered with
the U.S. Patent Office in 1961 and 1976;
(c) that these marks have been in use in the Philippines and in many countries all over
the world for over forty years. "Barbizon" products have been advertised in
international publications and the marks registered in 36 countries worldwide;
(d) Escobar's registration of the similar trademark "BARBIZON" in 1974 was based on
fraud; and this fraudulent registration was cancelled in 1979, stripping Escobar of
whatsoever right she had to the said mark;
(e) Private respondent's trademark is entitled to protection as a well-known mark under
Article 6bis of the Paris Convention, Executive Order No. 913, and the two Memoranda
dated November 20, 1980 and October 25, 1983 of the Minister of Trade and Industry to
the Director of Patents;
(f) Escobar's trademark is identical to private respondent's and its use on the same class
of goods as the latter's amounts to a violation of the Trademark Law and Article 189 of
the Revised Penal Code.
IPC No. 2049 raised the issue of ownership of the trademark, the first registration and use of the
trademark in the United States and other countries, and the international recognition and
reputation of the trademark established by extensive use and advertisement of private
respondent's products for over forty years here and abroad. These are different from the issues
of confusing similarity and damage in IPC No. 686. The issue of prior use may have been raised
in IPC No. 686 but this claim was limited to prior use in the Philippines only. Prior use in IPC No.
2049 stems from private respondent's claim as originator of the word and symbol "Barbizon," 66
as the first and registered user of the mark attached to its products which have been sold and
advertised worldwide for a considerable number of years prior to petitioner's first application
for registration of her trademark in the Philippines. Indeed, these are substantial allegations that
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raised new issues and necessarily gave private respondent a new cause of action. Res judicata
does not apply to rights, claims or demands, although growing out of the same subject matter,
which constitute separate or distinct causes of action and were not put in issue in the former
action. 67
Respondent corporation also introduced in the second case a fact that did not exist at the time the first
case was filed and terminated. The cancellation of petitioner's certificate of registration for failure to file
the affidavit of use arose only after IPC No. 686. It did not and could not have occurred in the first case,
and this gave respondent another cause to oppose the second application. Res judicata extends only to
facts and conditions as they existed at the time judgment was rendered and to the legal rights and
relations of the parties fixed by the facts so determined. 68 When new facts or conditions intervene
before the second suit, furnishing a new basis for the claims and defenses of the parties, the issues are
no longer the same, and the former judgment cannot be pleaded as a bar to the subsequent action. 69
It is also noted that the oppositions in the first and second cases are based on different laws. The
opposition in IPC No. 686 was based on specific provisions of the Trademark Law, i.e., Section 4 (d) 70 on
confusing similarity of trademarks and Section 8 71 on the requisite damage to file an opposition to a
petition for registration. The opposition in IPC No. 2049 invoked the Paris Convention, particularly
Article 6bis thereof, E.O. No. 913 and the two Memoranda of the Minister of Trade and Industry. This
opposition also invoked Article 189 of the Revised Penal Code which is a statute totally different from
the Trademark Law. 72 Causes of action which are distinct and independent from each other, although
arising out of the same contract, transaction, or state of facts, may be sued on separately, recovery on
one being no bar to subsequent actions on others. 73 The mere fact that the same relief is sought in the
subsequent action will not render the judgment in the prior action operative as res judicata, such as
where the two actions are based on different statutes. 74 Res judicata therefore does not apply to the
instant case and respondent Court of Appeals did not err in so ruling.
Intellectual and industrial property rights cases are not simple property cases. Trademarks deal with the
psychological function of symbols and the effect of these symbols on the public at large. 75 Trademarks
play a significant role in communication, commerce and trade, and serve valuable and interrelated
business functions, both nationally and internationally. For this reason, all agreements concerning
industrial property, like those on trademarks and tradenames, are intimately connected with economic
development. 76 Industrial property encourages investments in new ideas and inventions and stimulates
creative efforts for the satisfaction of human needs. They speed up transfer of technology and
industrialization, and thereby bring about social and economic progress. 77 These advantages have been
acknowledged by the Philippine government itself. The Intellectual Property Code of the Philippines
declares that "an effective intellectual and industrial property system is vital to the development of
domestic and creative activity, facilitates transfer of technology, it attracts foreign investments, and
ensures market access for our products." 78 The Intellectual Property Code took effect on January 1,
1998 and by its express provision, 79 repealed the Trademark Law, 80 the Patent Law, 81 Articles 188 and
189 of the Revised Penal Code, the Decree on Intellectual Property, 82 and the Decree on Compulsory
Reprinting of Foreign Textbooks. 83 The Code was enacted to strengthen the intellectual and industrial
property system in the Philippines as mandated by the country's accession to the Agreement
Establishing the World Trade Organization (WTO). 84
The WTO is a common institutional framework for the conduct of trade relations among its members in
matters related to the multilateral and plurilateral trade agreements annexed to the WTO Agreement. 85
The WTO framework ensures a "single undertaking approach" to the administration and operation of all
agreements and arrangements attached to the WTO Agreement. Among those annexed is the
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Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPs. 86 Members to this

Agreement "desire to reduce distortions and impediments to international trade, taking into account
the need to promote effective and adequate protection of intellectual property rights, and to ensure
that measures and procedures to enforce intellectual property rights do not themselves become
barriers to legitimate trade." To fulfill these objectives, the members have agreed to adhere to minimum
standards of protection set by several Conventions. 87 These Conventions are: the Berne Convention for
the Protection of Literary and Artistic Works (1971), the Rome Convention or the International
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations,
the Treaty on Intellectual Property in Respect of Integrated Circuits, and the Paris Convention (1967), as
revised in Stockholm on July 14, 1967. 88
A major proportion of international trade depends on the protection of intellectual property rights. 89
Since the late 1970's, the unauthorized counterfeiting of industrial property and trademarked products
has had a considerable adverse impact on domestic and international trade revenues. 90 The TRIPs
Agreement seeks to grant adequate protection of intellectual property rights by creating a favorable
economic environment to encourage the inflow of foreign investments, and strengthening the multilateral trading system to bring about economic, cultural and technological independence. 91
The Philippines and the United States of America have acceded to the WTO Agreement. This Agreement
has revolutionized international business and economic relations among states, and has propelled the
world towards trade liberalization and economic globalization. 92 Protectionism and isolationism belong
to the past. Trade is no longer confined to a bilateral system. There is now "a new era of global
economic cooperation, reflecting the widespread desire to operate in a fairer and more open
multilateral trading system." 93 Conformably, the State must reaffirm its commitment to the global
community and take part in evolving a new international economic order at the dawn of the new
millenium.
IN VIEW WHEREOF, the petition is denied and the Decision and Resolution of the Court of Appeals in CAG.R. SP No. 28415 are affirmed.
SO ORDERED.

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